Sita Ram vs State (Delhi Administration)
1997 Latest Caselaw 49 Del

JUDGMENT

N.G. Nandi, J.

(1) This appeal under Section 374 of the Criminal Procedure Code is directed against the judgment of conviction recorded under Section 302/34 Indian Penal Code in Fir No. 291/86, P.S.Alipur, North Delhi, in Sessions Case No. 20/90 by the learned Additional Sessions Judge, Delhi, sentencing the appellant Sita Ram to imprisonment for life and to pay a fine of Rs. 500.00 and in default to under go R.I. for one month.

(2) The prosecution case as revealed from the record, is that Mahender Singh son of Ram Bilas Singh, who hails from Village Locha, P.S.Gaighat, District Mujaffarpur, Bihar and who works at Village Samaipur, Delhi had a quarrel with one Ram Chander - Vakil over said Mahender Singh kidnapping a girl; that Mahender had threatened Ram Chander, to do away with him as former was insulted by the latter in presence of the Panchayat; that Ram Chander had come to Azad Pur, Delhi at the place of his brother Mithlesh Singh since the last 15 days in order to provide medical treatment to his son at All India Institute of Medical Sciences, New Delhi; that Ram Chander had come to the tea stall at Railway Station, of Mithlesh at 12 noon on 14.12.1986, accompanied by Sita Ram and one unknown person, wherefrom, Ram Chander was taken by Sita Ram to Samai Pur along with him; that during the night of 14/15.12.1986, Ram Chander was murdered and his dead body was found in the house of Lachhman Mandal and Narain Mandal; that Mithlesh Singh was informed about' the incident by one Ravindra whereupon Mithlesh lodged Fir with P.S.Samai Pur, Delhi on 15.12.1986. The offence was registered. On completion of usual investigation, charge sheet came to be filed against this appellant and two other accused persons, namely, Lachhman Mandal and Narain Mandal with Mahender Singh as P.O. Charge came to be framed against the appellant, Lachhman Mandal and Narain Mandal for the offence punishable u/s.302/34 Indian Penal Code The accused denied the charge and claimed trial. The prosecution, in order to bring guilt home to the accused, adduced oral as well as documentary evidence. On appreciation of evidence and the further statements under Section 313 Criminal Procedure Code ., the trial court found the appellant Sita Ram guilty for the offence charged and sentenced the appellant, as aforestated. The two other accused persons, namely, Narain Mandal and Lachhman Mandal were acquitted of the charges leveled against them. It is this judgment of conviction and sentence, which is assailed by the appellant/convict Sita Ram in this appeal.

(3) It may be noted at the out set that deceased Ram Chander - Vakil of Village Locha (Bihar) died a Homicidal death during the night of 14/15.12.1986 as per the evidence of Public Witness 14 Dr.L.T.Ramani and Ex.PW-14/A, the post mortem report.

(4) One of the arguments advanced by Mr.Sanjiv Khanna, learned amices curiae for the appellant-convict is that the only evidence against the appellant-convict is that on 14.12.86 deceased Ram Chander, the brother of complainant Mithlesh (Public Witness -7) left the tea stall of Public Witness 7 at 12 noon for going to Samaipur, in company of the appellant; that there is no other evidence against this appellant and this evidence is not sufficient to sustain the finding of guilt against the appellant recorded by the trial court.

(5) EX.PW-I/A is the complaint filed by Mithlesh (Public Witness -7), the brother of deceased Ram Chander. Perusal of the same suggests that Ram Chander, the elder brother of the complainant, had come to the complainant at Azad Pur for the purpose of medical treatment of his son since last about 15 days; that one Sita Ram, who also bails from the village of complainant and his brother deceased Ram Chander, also came at the shop of the complainant at about 12 noon and took Ram Chander, the brother of the complainant to Samai Pur along with him; that today (15.12.86) in the rooming, complainant has been told by Ravinder that his brother Ram Chander has been murdered at Samai Pur; that on hearing the news, the complainant along with Ravinder came at the place of occurrence at Samai Pur; that the complainant strongly apprehended that his brother Ram Chander has been murdered by Mahender and Sita Ram (appellant).

(6) PW7 Mithleshwar Singh complainant stated in his evidence that accused Sita Ram also belongs to his village Locha (Bihar); that on 14.12.1986 at about 12 noon, the witness was present at his tea stall at Railway Gate No. 4, Azad Pur, Delhi; that his brother Ram Chander was also there with the witness; that accused Sita Ram came to the tea stall of the witness and proposed to Ram Chander at the tea stall of the witness to go to Samai Pur, Delhi to meet Lachhman Mandal and Narain Mandal, who arc also of the village of the witness, whereupon, Ram Chander Singh accompanied Sita Ram and they both went to Samai Pur, Delhi; that on 15.12.1986 at about 6 a.m. Ravinder Singh came to the tea stall and informed him that his brother namely Vakil Sahib was murdered at Samai Pur, Delhi; that thereafter, the witness went to the premises where Lachhman Mandal and Narain Mandal were residing at Samai Pur, Delhi on rent. There in the room of Lachhman Mandal and Narain Mandal, the witness found the dead body of his brother Ram Chander .on a Charpal (cot); that the witness also noticed two injuries inflicted on the neck of Ram Chander Singh with sharp edged weapon. In the cross-examination, it has been stated by the witness that within his hearing, no talk took place between deceased Ram Chander Singh and Sita Ram except the proposal by Sita Ram to visit Samai Pur; that deceased Ram Chander left the tea stall of the witness in company of Sita Ram at about 12 noon on 14.12.86 for going to Samaipur. Thus, it will be seen from the rukka EX.PW-1/A and the evidence of the complainant (PW7) that Ram Chander had come to Delhi in connection with medical treatment of his son before about 15 days of the incident; that on 14.12.86 at about 12 O'clock Ram Chander had come to the tea stall of the witness and both happened to be the brothers; that Sita Ram also.came to the tea stall of the witness and proposed to Ram chander to meet Lachhman Mandal and Narain Mandal who also hailed from the same village and thereafter. Ram Chander left the said tea stall around 12 noon or 14.12.86 in company of Sita Ram for going to Sami Pur to meet Lachhman Mandal and Narain Mandal. It is also suggested from the evidence of Public Witness 7 that on 15.12.86 at about 6 a.m. Ravinder Singh, Public Witness 11 came to the tea stall of the witness at Azad Pur Railway Station and informed him that his brother Ram Chander-Vakil Sahib was murdered at Samai Pur, Delhi.

(7) PW-8 Shanker Yadav stated in his evidence that on 14.12.86 at about 12JO p.m. he was at the tea stall of his neighbour Mithleshwar Singh (Public Witness -7) who introduced the witness with his brother Ram Chander-Vakil Sahib and accused Sita Ram, who was also present at the said tea stall; that after taking the tea, Sita Ram asked Vakil Sahib to visit Mohinder and Mandal of their native village at Samai Pur; that Vakil Sahib bad told Sita Ram that he had not seen Samai Pur whereupon accused Sita Ram told that he will lead him to Samai Pur. Then Vakil Sahib along with Sita Ram and 2-4 companions proceeded to Samai Pur on foot and reached the bus stop on foot. In the cross-examination by the prosecution the witness has denied the suggestion that Sita Ram had come to the tea stall only with one unknown person; that Sita Ram accused had remained at the tea stall for 10-15 minutes. Sita Ram had no conversation in presence of the witness with Vakil Sahib. However, the witness had over heard Sita Ram saying to Vakil Sahib to visit Samai Pur where some persons hailing from their native village arc staying. The evidence of Public Witness 8, as reproduced above, corroborates Public Witness 7 in as much as on 14.12.1986, at about 12 noon deceased Ram Chander and accused Sita Ram were at the tea stall of Public Witness 7 who happened to be the brother of Ram Chander and from the tea stall of Public Witness 7, accused Sita Ram took Ram Chander with him for going to Samai Pur to meet some persons of their native village, which fact is also mentioned in the Fir, as pointed out above. Thus, the evidence of Public Witness 7 and Public Witness 8 substantiate the prosecution version to the extent that deceased Ram Chander-Vakil left the tea stall of PW7 with accused Sita Ram at about 12 noon on 14.12.1986 for going to Samai Pur.

(8) PW-11 Ravinder singh stated in his evidence that he knew Mithleshwar, residing at Azad Pur; that Ram Chander had come to his brother Mithleshwar for getting his son medically treated at Delhi; that he knew accused Sita Ram as also Lachman Mandal and Narain Mandal as also Mithleshwar and his brother Ram Chander, that on 14.12.1986 (it should be 15.12.1986), at about 7 a.m., three accused present in court, came to his house and told him that deceased Ram Chander had been murdered by accused Mohinder Singh and that they were drunk at that time in the said house; that thereafter the witness went to the house of incident and found the dead body of Ram Chander, Advocate. Thereafter, the witness informed Mithleshwar Singh, the brother of deceased Ram Chander, of the said incident. As stated above, Public Witness 7 has stated in his evidence that he was informed about the murder of his brother by Ravinder Singh (Public Witness -II) in the morning of 15.12.1986.

(9) Before we go to the evidence of Public Witness -3 Mahesh Singh, it may be noted that the incident is of 14/15.12.1986. The statement u/s.161 Criminal Procedure Code , of this witness has been recorded by the investigating officer on 24.7.1987 i.e. after seven months of the incident. There is no evidence on record to the effect as to why the statement of Public Witness 3 u/s.161 Cr.P.C. could not be recorded earlier. In other words, the delay in recording the statement of Public Witness 3 by the investigating agency has not been explained by the prosecution. It is a settled legal position that inordinate delay in recording the statement of the witnesses, not explained by the prosecution, would render the evidence of such a witness unworth of credence as not reliable.

(10) As far as the evidence of Public Witness 3 Mahesh Singh is concerned, it may be seen that according to this witness, on 14.12.86, between 5 and 6 p.m., he had gone to buy fish and while returning home, he saw Mohinder Singh and three accused persons sitting in the park; that the witness saw the face of Mohinder singh while others were having their back towards the witness; that the witness went towards these persons and stood quite near them; that at that time, Mohinder Singh is stated to have uttered "AAJ Rat Ko Ram Chander Vakil Kaa Kam Kar Dana HAI"; that when the accused persons and Mohinder singh saw the witness, they all kept quite and they all started talking to the witness about his well being and after talking to them the witness returned home. On 16.12.86 on reading in daily news paper "NAV Bharat TIMES'. he learnt that Ram chander Vakil has been murdered; that he went to Mithlesh Singh who is the brother of deceased, but found that he had gone to the village. In his cross-examination, it has been deposed that the accused were silting inside the part and witness himself had gone near them and after hearing their conversation, he he talked to Mohinder and then to Sila Ram; that he remained with the accused person in the part for about 5 to 6 minutes. It has been admitted that he can not read Devnagari; that some persons were reading Nav Bharat Times and they told the witness about the news.

(11) It is not suggested from the evidence of this witness as to what was the occasion for him to go in the park to the accused and Mohinder Singh. He remained with the accused for about 5 to 6 minutes and talked to them. Yet, he saw the face of Mohinder Singh only while the others were having their back towards him. Moreover, in the cross-examination, the witness has admitted that he can not read Devnagri and some persons were reading 'Nav Bharat Times' and they told him about the news whereas in examination-in-chief, what has been stated is, that he himself read 'Nav Bharat Times' and learnt about the murder of Ram Chander-Vakil and on top of all these the statement of this witness u/s.161 Criminal Procedure Code . has been recorded after about seven months of the incident. Considering the evidence of this witness, we do not find the witness to be reliable and trust worthy for the aforesaid reasons.

(12) Another argument advanced on behalf of the appellant is that the disclosure statement Ex.PW-13A and the subsequent discovery is not believable in as much as the same is highly improbable, fabricated; that no public witnesses have been joined and the recovery is from the public place and the same is stated to be on 9.1.1987, whereas the incident took place on 14/15.12.1986.

(13) Perusal of the disclosure statement Ex.PW-13/B suggests that the same is in two parts. The admissible portion in the First part being a statement made by the accused, expressing his willingness to point out the place where the weapon i.e. knife was concealed by him in a bush near the bridge in presence of the two witness and the second part of the statement/Panchnama Ex.PW-13/C suggesting the accused having led the witnesses and the 1.0. to a place-bush near the bridge of Badli Canal and from there, the weapon/knife is stated to have been taken out after putting his hand into the bush and produced the same before the 1.0. in presence of the witnesses. It is pertinent to note that the persons shown to be the witnesses to Ex.PW-13/B and 13/C are S.I. Sri Chand and Const Navin Kumar, both of Police Station Alipur. It need hardly be said that these two witnesses can not be regarded as independent witnesses so as to lend assurance, firstly to the making of the First part of the statement i.e. disclosure statement voluntarily by the accused and secondly, the witnesses and the 1.0. having been led to the place wherefrom the accused is stated to have taken out the weapon and produced before the 1.0. in presence of the independent witnesses. It is more important to note that besides the witnesses to the disclosure statement and discovery Panchanama being not before the independent witnesses, neither of them has been examined to prove the making of the first part of the statement voluntarily to point out the place and produce the weapon and secondly the accused having led the witnesses and the 10 to the place wherefrom the accused is stated to have taken out and produced the weapon in question. Thus, in absence of the evidence of the witnesses regarding the making of the the statement by the accused, as aforestated, and the production of the weapon in question before the 10 in presence of the witnesses, can not be said to have been proved on record as the discovery can not be said to have been proved merely on the statement of the 1.0. apart from other things.

(14) The weapon of offence is stated to be Ex.P-6. As per Ex.PW-13/C, the accused him self look out the knife after pulling his hand into the bush and produced the same, meaning thereby that the knife in question was not concealed below the surface of the land but it was taken out from the bush. In other words, the weapon is not stated to be not visible and the fact that the incident took place on 14/15.12.86, and the discovery is stated to be on 9.1.1987 from the place, as suggested from Ex.PW-13/C. Under the circumstances, the place being a public place, the possibility of access by other persons to such a place can not be ruled out and it can not be said that it is only the accused and the accused alone who must have put the weapon in bush wherefrom it is stated to have been taken out by the accused and produced before the 1.0. These observations are only because as per the evidence, the weapon of offence was not concealed under/below the surface of the land and the knowledge of the same could only be to the accused.

(15) The Cfsl report is to be found at EX.PW-IO/D. Perusal of the same suggests that Ex.9 is the knife containing human blood. It is further suggested that the group of human blood on the said knife could not be ascertained as the A.B.O. remark column suggests 'no reaction'. In view of the Cfsl report as above, the group of human blood on the knife in question having not been ascertained, it can not be said that this was the weapon which was used in the incident besides the other lacunas, as pointed out above, in the prosecution evidence.

(16) The evidence of Public Witness -14 Dr.L.T.Ramani, who performed the post mortem on the dead body of deceased Ram Chander, suggests that the three injuries in question are possible with the said knife. This would not be sufficient to connect either the weapon Ex.P-6 or the accused with the inflicting of injuries on deceased Ram Chander.

(17) The law regarding the proof of guilt of the accused, in absence of any direct evidence, through the circumstantial evidence being that there must be a chain of evidence/circumstance so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in any of human probability the act must have been done by the accused and the accused alone, In the inslant, case in view of the stale of evidence as above, the only circumstance which can be said to have been proved by the prosecution evidence is that the deceased Ram Chander was taken by the accused Sita Ram at about 12 noon on 14.12.86 to Samai Pur to meel Lachhman Mandal and Narain Mandal and nothing further, which, in our opinion, would not be sufficient, in absence of the complete chain of circumstances suggesting the involvement of the accused with regard to the inflicting of the injury on Ram Chander Singh, coupled with the circumstance of the discovery of weapon by the appellant containing the blood of the deceased. Under these circumstances, the prosecution can not be said to have established the circumstances of such a nature as to capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. In our opinion, the finding of guilt could not have been justifiably recorded against the appellant and the learned trial Judge has erred in finding the appellant guilty of the offences charged and imposing the consequent sentence.

(18) In the above view of the mailer, the appeal deserves to be allowed and the conviction and sentence recorded against the appellant-convict under Section 302/34 Indian Penal Code in Fir No. 291/86, P.S.Alipur, North Delhi, in Sessions Case No. 20/90 by the learned Additional Sessions Judge, Delhi set aside.

(19) In the result, the appeal is allowed. The conviction and sentence recorded against the appellant Sita Ram son of Rajmangal Singh under Section 302/34 Indian Penal Code in Fir No. 291/86, P.S.Alipur, North Delhi, in Sessions Case No. 20/90 by the trial court are set aside. The appellant is in custody. He is ordered to be set at liberty forthwith, if not required in any other case.