* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: August 19, 2009
Judgment delivered on : September 03, 2009
+ CRIMINAL APPEAL NO.85/1995
NAWAL ..... Appellant
Through: Ms. Ritu Gauba, Advocate
Versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Advocate
AND
CRIMINAL APPEAL NO.121/1995
RAJINDER ..... Appellant
Through: Ms. Ritu Gauba, Advocate
Versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. Above appeals are directed against the judgment of conviction and the order on sentence in Sessions case No.53/1993 flowing out of FIR No.292/89, P.S. Najafgarh vide which both the appellants have been convicted under Section 302 IPC read with Section 34 IPC and Section 201 IPC read with Section 34 IPC and sentenced accordingly. Crl.A.Nos.85/1995 & 121/1995 Page 1 of 11
2. Briefly stated, the case of the prosecution is that on 03.10.1989 at about 12.48 PM, an information about a dead body packed in a gunny bag found in a vacant house No.85, RZ-B1, Nehru Garden, New Roshan Pura, was received at Police Station Najafgarh. It was recorded as DD No.7A(Ex.PW8/A). Copy of the DD report was entrusted to SI Bhim Singh for verification. He immediately left the police station and reached at the spot along with Head Constable Jai Narain and Constable Umed Singh. The information was also conveyed to the SHO, Inspector M.S. Yadav, who also reached at the spot and took over the investigation. The gunny bag was opened and the dead body was extracted. Multiple stab wounds were found on the dead body. SHO, prima facie, found it to be the case of murder. He prepared Rukka (Ex.PW2/A) and sent it to the Duty Officer for the registration of formal FIR under Sections 302/201 IPC. On the basis of the Rukka, formal FIR was recorded.
3. Inspector M.S. Yadav seized the gunny bag (Ex.P1) and string (Ex.P2) with which the gunny bag was tied. He also took into possession the blood stained earth as well as sample earth from the place of occurrence and prepared the rough site plan. No eye-witness could be found and the body could not be identified.
4. On 05.10.1989, PW5 Ram Chander, the father of the deceased, visited the police station and informed that his son Dharmender, who had left the house on 02.10.1989 at 8.00 PM along with the appellants Crl.A.Nos.85/1995 & 121/1995 Page 2 of 11 Rajinder and Nawal, was missing since then. He was shown the aforementioned dead body and he identified the body as that of his missing son Dharmender.
5. On 06.10.1989, appellant Rajinder was arrested from Ram Lila Ground near Primary Health Centre on the pointing of PW5 Ram Chander. On interrogation, appellant Rajinder made a disclosure statement disclosing about his and the appellant Nawal's involvement in the murder and he led the police party to the house of Nawal and got him arrested.
6. On 07.10.1989, appellant Nawal led the police party to his residential house in Village Roshan Pura and from there, he got recovered blood stained dagger and his blood stained pant and shirt which were taken into possession vide memo Ex.PW9/A. On the same day, appellant Nawal led the police party to the shop of Subash Chand at Gandhi Chowk, Bahadurgarh and got recovered deceased's gold chain. Subash Chand stated that the gold chain was pawned with him by the appellants Nawal and Rajinder for Rs.1100/- on 03.10.1989. The chain was seized vide memo Ex.PW9/D.
7. On the same day, appellant Rajinder led the police party to his room in House No. RZN-1, New Roshan Pura and disclosed that he in collusion with appellant Nawal had murdered the deceased in that very room. Thereafter he got recovered a Pyjama and a shirt, both stained with blood, and disclosed that he was wearing those clothes at the time Crl.A.Nos.85/1995 & 121/1995 Page 3 of 11 of murder. Those clothes were also taken into possession vide memo Ex.PW9/C.
8. The Investigating Officer prepared the inquest papers, sent the body for post mortem, obtained post mortem report, sent exhibits to CFSL for serological examination, obtained the report of CFSL and on completion of investigation, filed the charge sheet against both the appellants.
9. The appellants were charged for having committed offence punishable under Sections 302 IPC read with Section 34 IPC and 201 IPC read with Section 34 IPC. Both the appellants pleaded not guilty and claimed to be tried.
10. On conclusion of trial, the learned Additional Sessions Judge found both the appellants guilty of offences punishable under Section 302 IPC read with Section 34 IPC and Section 201 IPC read with Section 34 IPC. He returned the finding of conviction on the basis of following circumstances found to be established on record:
(i) Deceased was last seen with the appellants on 02.10.1989 at 8.00 PM;
(ii) His dead body was found in a vacant house in the area of Roshan Pura packed in a gunny bag on 03.10.1989 at 12.48 PM;
(iii) Gold chain of the deceased, which he was wearing when he left his house with the appellants, was got recovered at the instance of appellant Nawal from the shop of one Subhash Chand;
(iv) The recovery of the weapon of offence i.e. dagger and blood stained clothes of the appellant Nawal at his instance;Crl.A.Nos.85/1995 & 121/1995 Page 4 of 11
(v) The recovery of blood stained clothes of appellant Rajinder from his house, at his instance;
(vi) The recovery of blood stained niwar, gadda, bed sheet etc. at the instance of the appellant Rajinder;
(vii) The serological report that all the seized articles on analysis were found to have human blood and the blood stains on the dagger, niwar, gadda, bed sheet, pant and shirt of Nawal and shirt of Rajinder were that of human blood group "B" linking the weapon of offence and the clothes of the appellants with the murder of deceased.
11. The learned counsel for the appellants has submitted that law on circumstantial evidence is well-settled. Though the conviction can be based upon circumstantial evidence but the quality of the evidence in such a case is required to be of high degree and the circumstances proved should be such so as to form a complete chain pointing towards the guilt of the accused. If on the basis of circumstances proved on record there could be an alternative hypothesis pointing towards the innocence of the accused, then he would be entitled to the benefit of doubt.
12. The learned counsel for the appellants has submitted that the learned Trial Court has erred in appreciation of evidence, inasmuch as it has failed to take notice of the fact that the prosecution has miserably failed either to prove the factum of last seen or the recovery of incriminating articles at the instance of the appellants. She has submitted that the gold chain of the deceased, which has been projected as a motive for the crime, has not been produced in the court for identification by PW5 Ram Chander father or PW1 Devender Kumar, Crl.A.Nos.85/1995 & 121/1995 Page 5 of 11 brother of the deceased. She has also pointed out that the learned Trial Court has failed to take notice of the fact that though PW5 Ram Chander, the father of the deceased, the alleged witness to recovery of gold chain from the Shop of Subhash Chand at the instance of Nawal, has denied the recovery of gold chain in his presence. Thus, she has submitted that the Trial Court ought to have extended benefit of doubt to the appellants.
13. Learned counsel for the State, on the other hand, has submitted that the learned Trial Court has rightly held that above referred circumstances have been proved on record and those circumstances lead to only one conclusion that the appellants have committed murder of the deceased with a view to grab his gold chain which he was wearing at the time of murder.
14. We have considered the submissions made on behalf of the appellants as well as the State and perused the material on record.
15. The case of the prosecution rests heavily on the last seen evidence. As per prosecution, on 02.10.1989 at about 8.00 PM appellants Rajinder and Nawal had visited the house of the deceased to take him along for watching Ram Lila and the deceased left with them, thereafter he never returned. To prove this, prosecution has examined PW1 Devender Kumar, brother of the deceased and PW5 Ram Chander, father of the deceased. Testimony of these witnesses is contradictory on the aspect whether or not Nawal had visited the house of the Crl.A.Nos.85/1995 & 121/1995 Page 6 of 11 Dharmender on the night of 02.10.1989. PW1 Devender Kumar has stated that on the said night his deceased brother had left the house along with both the appellants, whereas PW5 Ram Chander, father of the deceased, has given a contradictory version stating that only appellant Rajinder had visited their house on the said night and took his son along with him. In his cross-examination, he denied the suggestion put to him that appellant Nawal had also accompanied Rajinder to call his son Dharmender. The aforesaid contradiction casts doubt against the correctness of prosecution story.
16. It is the admitted case of the prosecution that the dead body was recovered in a vacant house at Roshan Pura on 03.10.1989 but, on the said day it could not be identified. PW11, Inspector M.S. Yadav, the Investigating Officer in his cross-examination has stated that the identity of the deceased Dharmender could be fixed only on 05.10.1989 when his father PW5 Ram Chander visited the Police Station to report about his missing son and identified the dead body of his son when shown to him. PW11, Inspector M.S. Yadav has stated in his cross-examination that he met PW1 Devender Kumar and PW5 Ram Chander for the first time on 05.10.1989. Statement Ex.PW5/A of PW5 Ram Chander recorded under Section 161 Cr.P.C. is purported to have been recorded on 05.10.1989. Aforesaid stand of the Investigating Officer is belied by inquest papers Exhibits PW2/E, PW11/E and PW11/D which are dated 03.10.1989. The Investigating Officer in his cross- examination is categoric that he prepared those inquest documents on Crl.A.Nos.85/1995 & 121/1995 Page 7 of 11 03.10.1989. A perusal of the inquest report Ex.PW11/D reveals that as per this document, deceased Dharmender was identified by the witnesses PW5 Ram Chander S/o Rewa Prasad and PW1 Devender Kumar on 03.10.1989, meaning thereby, the witnesses Ram Chander and Devender Kumar had met the Investigating Officer on 03.10.1989. No explanation has come on record as to why the statement under Section 161 Cr.P.C. of said two witnesses regarding the last seen evidence i.e. the deceased having left with the appellants on 02.10.1989 at about 8.00 PM was not recorded by the Investigating Officer on 03.10.1989. Instead, the Investigating Officer has tried to conceal this fact and is insistent that he met the witnesses Ram Chander and Devender Kumar for the first time on 05.10.1989. The aforesaid distortion of facts on the part of the Investigating Officer points towards an unfair investigation and raises a strong doubt against the correctness of the prosecution case, and a possibility cannot be ruled out that the evidence of last seen evidence was introduced as an after thought by the Investigating Officer with a view to solve the blind case by recording the statements of PW1 and PW5 to that effect on 05.10.1989.
17. The other main circumstance forming basis of conviction of appellants is the recovery of incriminating articles at their instance. Case of the prosecution is that appellant Nawal got recovered the weapon of offence (dagger) Ex.P-1 as also blood stained pant Ex.P-2 and blood stained shirt Ex.P-3 which he was wearing at the time of the Crl.A.Nos.85/1995 & 121/1995 Page 8 of 11 alleged murder vide pointing-cum-seizure memos Ex.PW-9/A and Ex.PW-9/B. It is also the case of the prosecution that appellant Rajinder got recovered his blood stained shirt Ex.P-4, and Pyjama Ex.P- 5 which he was wearing at the time of the alleged murder, vide pointing-cum-seizure memo Ex.P-9/D. On perusal of the above referred pointing out-cum-seizure memos, it transpires that these memos are purported to have been witnessed by SI Bhim Singh, SI Geeta Ram, PW-5 Ram Chander, father of the deceased. Only non-official witness to the aforesaid seizure memos, PW-5 Ram Chander, has not supported the case of the prosecution regarding the recovery of incriminating articles i.e. dagger Ex.P-1, blood stained clothes of the appellant Nawal Ex.P-2 and Ex.P-3 and blood stained clothes of the appellant Rajinder Ex.P-4 and Ex.P-5 at the instance of respective appellants. Though he was cross examined by learned APP, strangely he was not confronted with his signatures on either of the above referred pointing out-cum-seizure memos Ex.PW-9/A, Ex.PW-9/B and Ex.PW-9/D. He was not even asked about the recovery of the blood stained clothes Ex.P-2 to Ex.P-5 at the instance of respective appellants Nawal and Rajinder. In the cross examination, he denied the suggestion that the dagger Ex.P-1 was recovered in his presence. Since only non-official witness PW5 Ram Chander, who happens to be the father of the deceased, has failed to support the prosecution case regarding recovery of the incriminating articles at the instance of respective appellants, we do not consider it safe to rely upon the Crl.A.Nos.85/1995 & 121/1995 Page 9 of 11 version of police officers PW-9, SI G. R. Kanshwal, PW-13, Bhim Singh and the Investigating Officer PW-11, Inspector M.S. Yadav regarding recovery of dagger Ex.P1 and blood stained clothes Ex.P2 to P5 at the instance of respective appellants.
18. The third main circumstance forming basis of conviction of the appellants is the alleged recovery of the gold chain belonging to the deceased at the instance of appellant Nawal from the shop of one Subhash Chand situated at Gandhi Chowk, Bahadurgarh. Ex.PW9/D is the recovery memo pertaining to the said recovery. It is purported to have been signed by PW5 Ram Chander as one of the witnesses. PW5 Ram Chander, who is the only non-official witness to the recovery of the gold chain, has categorically stated that the gold chain was not recovered in his presence. He was declared hostile and during cross- examined, the learned APP did not opt to suggest to him that the appellant Nawal led the Police party to the shop of Subhash Chand and got the gold chain recovered. Further, the case of the prosecution is that while producing the gold chain, Subhash Chand disclosed that it was pawned with him by the appellants Nawal and Rajinder. Neither the said gold smith Subhash Chand has been produced as a witness nor has any document regarding the pawning of the gold chain by the appellants been proved on record. In this view of the matter, we do not find it safe to rely upon the testimony, regarding recovery of gold chain, of the official witnesses, namely, SI G. R. Kanshwal and the Crl.A.Nos.85/1995 & 121/1995 Page 10 of 11 Investigating Officer, Inspector M.S. Yadav who obviously are interested in the success of the case.
19. From the above discussion, it emerges that the prosecution has failed to establish following circumstance i.e. the deceased was last seen leaving with the appellants on 02.10.1989, recovery of the weapon of offence Ex.P1 and blood stained clothes of the appellants Ex.P2 to P5 and the recovery of gold chain of the deceased at the instance of the appellant Nawal, beyond reasonable doubt. The remaining circumstance i.e. recovery of the dead body packed in a gunny bag and the serological report, in our view, are not sufficient to establish the guilt of either of the appellants. They are, therefore, entitled to benefit of doubt.
20. Both the appeals are, accordingly, allowed. Impugned judgment and order on sentence are herby set aside and the appellants are acquitted of charges under Section 302 IPC read with Section 34 IPC and Section 201 IPC read with Section 34 IPC.
21. The appellants are on bail. Their bail bonds and surety bonds are cancelled and discharged.
AJIT BHARIHOKE, J.
SEPTEMBER 03, 2009 SANJAY KISHAN KAUL, J.
gm/pst
Crl.A.Nos.85/1995 & 121/1995 Page 11 of 11