* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15.12.2009
+ CRL. A. No.257 of 1996
SUKH CHAIN ...APPELLANT
Through: Mr. Tarique Siddiqui and
Mr.Vishnu Sharma, Advocates
Versus
THE STATE ...RESPONDENT
Through: Mr. Sunil Sharma, Advocate.
AND
+ CRL. A. No.97 of 1997
HARGOVIND @ PAPPU ...APPELLANT
Through: Mr. Naveen Chawla, Advocate
with Mr.Prakash Kumar,
Advocate.
Versus
THE STATE ...RESPONDENT
Through: Mr. Sunil Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 1 of 10
AJIT BHARIHOKE, J. (ORAL)
1. The appellants having been convicted for the offence of murder of Subhash Sharma punishable under Section 302 of IPC r/w Section 34 of IPC in terms of the impugned judgment dated 13.09.1996 and on being sentenced in terms of Order on Sentence of even date to undergo imprisonment for life and also to pay fine of Rs.1,000/- each and in the event of default of payment of fine to undergo RI for a further period of three months, have preferred the instant appeals.
2. Briefly stated the case of the prosecution is that the deceased Subhash Sharma was a government employee and with a view to augment his income, he was running a side business of giving rickshaws on hire. One such rickshaw was given on hire by him to the appellant Hargovind on a daily hire charge of Rs.10/-. The appellant Hargovind is stated to have defaulted in payment of hire charges for 15-20 days. The deceased in the evening of 06.04.1991 at around 5 P.M. left his house telling his wife Ms.Kamla PW-10 that he was going in search of the appellant Hargovind to seek payment of the hire charges. He, however, returned back after a futile search and again left the house in search of Hargovind at around 9 P.M. and thereafter he did not return. Therefore, on 07.04.91, a missing report ExPW16/A was lodged at Police Station Civil Lines. On 09.04.1991 at around 9.45 P.M., a dead body was found near gutter no.3, in the bushes of Ring Road, Yamuna Bank, Chandrawal. This information was conveyed to the police station and it was recorded as DD No.10. A copy of the DD report was entrusted to PW21 SI Rajender Singh CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 2 of 10 for verification, who left for the spot where he found a highly decomposed dead body of a male person. PW21 SI Rajinder Singh suspected the dead body to be that of the missing person Subhash Sharma. He accordingly sent Constable Jai Bhagwan to deceased's house who brought father of the deceased Mr.Satya Prakash and his brother Sarvottam Sharma, who identified the dead body of the deceased Subhash Sharma. During investigation, statement of witnesses were recorded and on the basis of statement of Ms.Kamla PW-10, wife of the deceased Subhash Sharma, the needle of suspicion pointed towards the appellant Hargovind and as such, police party searched for him. Appellants were arrested on 11.04.1991. On questioning, the appellants stated that at the time of occurrence also they were wearing the same clothes, but on cursory examination some old washed blood stains were noticed on the clothes, as such the clothes of the appellants were seized vide seizure memo Ex.PW2/G. Appellant Hargovind on interrogation made a disclosure statement and pursuant to that he led the police party to a heap of bricks near a latrine near Magazine Road, Hathi Wala Park, Chandrawal and from there, he took out a closed knife Ex.P- 1 after removing the bricks. Sketch of the knife was prepared and it was taken into possession vide memo Ex.PW2/F. The incriminating exhibits were sent to CFSL for serological examination along with the blood-stained clothes of the deceased as also blood-stained vegetation seized from the spot and the cloth gauze and blood sample of the deceased. As per the CFSL report, the clothes of the appellants were found to contain the CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 3 of 10 blood stains of human blood group 'B'. So far as the clothes of the deceased and his blood sample taken on a cloth gauze as well as blood stained vegetation seized from the spot is concerned, those samples tested positive for human blood but the blood group could not be ascertained. The dead body was sent for post mortem and as per the post mortem report, the cause of death was hemorrhage and shock consequent to a cut-throat injury. PW-13 Dr.L.T.Ramani opined that the said injury could have been caused by knife ExP-1 or any other similar knife. On completion of investigation, the appellants were charge sheeted and sent for trial for the offence punishable under Section 302/34 of IPC. Both the appellants pleaded innocence and claimed trial.
3. In order to bring home the guilt of the appellants, the prosecution has examined 21 witnesses in all. However, the main witnesses examined by the prosecution are PW-1 Satya Parkash Sharma, PW-2 Sarvotam Sharma, PW-10 Smt.Kamla and PW-18 Kishan Lal besides PW-13 Dr.L.T.Ramani who conducted the post mortem and the investigating officers. The appellants, in their statements recorded under Section 313 Cr.P.C., denied having played any role whatsoever in the murder of the deceased.
4. The Trial Court, relying upon the testimony of the prosecution witnesses, came to the conclusion that the prosecution has been able to bring home the guilt of the appellants by establishing the motive, recovery of incriminating articles i.e. knife and blood stained clothes of the appellants which were found to have stains of human blood group B and the teeth bite injury on the finger of the appellant Sukh Chain which CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 4 of 10 was taken as the discovery of fact pursuant to the disclosure made by the appellant Hargovind.
5. Learned counsel for the appellants has referred to the matter of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 wherein it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must establish the following tests:
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
6. In light of the law enunciated in the aforesaid judgment, learned counsel for the appellants has submitted that the prosecution has miserably failed to prove the circumstances so as to form a chain so complete that there is no escape from the conclusion that within all probabilities the crime was committed by the appellants alone and none else. He has submitted that the prosecution case is based mainly upon the recovery of knife Ex.P- 1 at the instance of appellant Hargovind and the recovery of the blood-stained clothes from the person of the appellants at the time of their arrest, which on serological examination gave positive tests for presence of the stains of human blood group 'B'. CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 5 of 10 Learned counsel has submitted that even if, for the sake of argument, it is assumed that aforesaid recovery was actually effected during investigation, that evidence by itself is of no avail to the prosecution because the blood group found on the clothes recovered from the person of the appellants has not been connected with the blood group of the deceased, which could not be established in serological examination as is apparent from the report Ex.PW20/F. Learned counsel has also further pointed out that even the medical evidence, i.e., the post mortem report Ex.PW13/A and the MLC of the appellant Sukh Chain Ex.PW17/A also belies the prosecution version. In this context, he has argued that as per the case of the prosecution, the deceased had left in search of appellant Hargovind at around 9:00 pm on 06.04.91. Therefore, his death obviously must have occurred some time after 9:00 pm on the fateful night. As per the post mortem report, it is pointed out that the post mortem was conducted by PW13 Dr. L.T. Ramani on 09.04.91 at around 1:05 pm and the time of death has been fixed three days earlier to the post mortem. This implies that the death of the deceased ought to have occurred on 06.04.91, somewhere around 1:05 pm, which belies the prosecution story. Learned counsel for the appellants has further contended that the case of prosecution as per the disclosure statement made by Hargovind is that the appellant Sukh Chain had suffered teeth bite injury in the process of committing the murder of the deceased. Aforesaid version of the prosecution is also belied by the MLC of Sukh Chain Ex.PW17/A which was prepared on 12.04.91. The duration of injury CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 6 of 10 mentioned in the MLCV is seven days prior to the preparation of the MLC, which means that the injury on the finger of the appellant Sukh Chain was caused perhaps on 05.04.91. Thus, said injury also does not get linked with the alleged murder of deceased Subhash Sharma. Thus, learned counsel or the appellant has urged us to at least extend the benefit of doubt to the appellants.
7. Learned counsel for the State, on the other hand, has argued in support of the impugned judgment and he has submitted that the learned Trial court has rightly convicted the appellants for the offence under Section 302/34 IPC as the prosecution has been able to establish the motive of guilt on the part of the appellant Hargovind. It has also been established that the deceased had left his house on the night of 06.04.91 at about 9:00 pm in search of the appellant. Therefore, it is obvious that no one else other than the appellant Hargovind could have murdered the deceased. Learned counsel for the State has further submitted that the serological examination also established the existence of blood stains on the clothes of the appellants and those blood stains pertained to the blood group 'B', whereas during the pendency of appeal the blood samples of the appellants were sent for serological examination and as per the serological report, the blood group of Hargovind was AB+ while that of Sukh Chain was O+. Thus, it is argued that human blood group 'B' found on the clothes must have been of the deceased Subhash Sharma.
CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 7 of 10
8. We have considered the rival submissions and perused the material on record.
9. As per the case of the prosecution, the deceased left his house in search of appellant Hargovind at about 9 P.M. on 06.04.1991. Therefore, his death obviously must have occurred sometime in the night after 9 P.M. The post mortem report Ex.PW13/A tells a different story. The post mortem, as per the report, was conducted on 09.04.1991 at 1.05 P.M. and the duration of death is given as 3 days prior to the post mortem being conducted. This fixes the time of death of the deceased Subhash Sharma somewhere around 1.05 P.M. on 06.04.1991, which is not the case of the prosecution. Similarly, the prosecution case is that the appellant Sukh Chain suffered teeth bite injury in the process of committing murder of the deceased. He was sent for medical examination. As per his MLC, which was prepared on 12.04.1991, the duration of injury found on his finger was 7 days, which fixes the time of injury on the finger of the appellant Sukh Chain some time on 05.04.1991. Therefore, the appellant Sukh Chain could not possibly have suffered said injury while committing murder of the deceased. Further, the doctor concerned, who prepared the MLC, has not appeared in the witness box and the MLC has been proved by the record clerk. As per the MLC Ex.PW17/A, the concerned doctor has opined that the injury found on the finger of the appellant Sukh Chain could have been caused by a teeth bite. This opinion does not rule out the injury being caused in any other manner. Therefore, non- production of the doctor, in our view, has caused prejudice to the CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 8 of 10 appellants as they have been deprived of getting the facts clarified by the Doctor in his cross-examination.
10. We may also note that as per the prosecution case, when the appellants were arrested on 11.04.91, they were wearing stained clothes on which washed blood stains were noticed. If this is to be taken as true, then obviously the appellants had washed their clothes after the occurrence, if at all they were involved in the incident. In that eventuality, it is highly improbable that the clothes of the appellants on serological examination could have tested positive for the human blood group 'B'. This circumstance also casts a shadow of doubt against the correctness of the prosecution version.
11. There is no evidence on record to suggest that the appellants were either seen with the deceased on the fateful night or they were seen near the spot of occurrence from where the dead body of the deceased was subsequently recovered on 09.04.91. The only evidence worth name on the record is the testimony of PW10 Kamla to the effect that her husband Subhash Sharma had given a rickshaw on hire to the appellant Hargovind who had defaulted in paying the hire charges for the last 15-20 days and that the appellant on the fateful night had left his house for tracing Hargovind in order to recover his hire charges. This circumstance, at best, raises a suspicion that perhaps the appellant Hargovind may be involved in the murder of the deceased but there is quite a difference between may be and must be. May be means suspicion, but the suspicion howsoever grave, cannot be a substitute for proof. Thus, we are of the CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 9 of 10 considered view that the appellants in this case are entitled to the benefit of doubt.
12. In view of the above, we accept the appeal and set aside the impugned judgment dated 13.09.1996 and the order on sentence of the even date and acquit both the appellants, giving them benefit of doubt.
13. Bail-cum-surety bonds of the appellants stand discharged.
SANJAY KISHAN KAUL, J.
December 15, 2009 AJIT BHARIHOKE, J.
dm
CRL. A. No.257/1996 and CRL. A. No.97/1997 Page 10 of 10