Budhdev Paul vs State
2002 Latest Caselaw 1516 Del

JUDGMENT

R.S. Sodhi, J.

1. This criminal appeal is directed against the judgment and order dated 3.5.2000 and 6.5.2000 of the learned Additional District & Sessions Judge convicting the appellant under Section 302 IPC and under Section 27 of the Arms Act and sentencing him to undergo imprisonment for life with a fine of Rs. 25,000/- under Section 302 IPC and in default of payment of fine to further undergo simple imprisonment for three years and further rigorous imprisonment for three years with a fine of Rs. 5,000/- under Section 27 of the Arms Act and in default of payment of fine to further undergo simple rigorous imprisonment for six months.

2. Brief facts of the case, as have been noted by the learned Additional Sessions Judge, are that:

"on 11.11.1996 on receipt of DD No. 3A, regarding some dead body lying on the way going towards village Jharoda from Sangam Vihar, SI Ram Kumar along with Constable Ram Khilari reached at the spot and after sometime on the basis of the said DD No. 3A, Ins. K.s. Bhatnagar along with HC Gopi Ram also reached at the spot i.e. Jharoda Pusta Gandanala; that there a dead body was found lying, which was of a young boy of about 30 years of age and blood was lying on the left and right side of neck, with the help of a sharp edged weapon; that dead body was wearing a T-shirt of yellow colour and on its collar label "SHREESUN-XL"

was affixed, a pant of light 'AASHMANI' colour and sports shoes and all these three articles were having blood stains; that on the jamatalashi, a purse of raxin was recovered from the pocket of pant, which was found to contain two passport size photo of a girl and deceased, a receipt of donation shown in the name of Deepak Mishra, 5/116, Nirankari Colony, Delhi-9 for Rs. 101/- dated 7.11.96 and Rs. 845/- were also found in the said purse and thereafter all these articles were taken into possession; that no eye witness was available at the spot and dead body could not be identified; that a rukka for the offence punishable under Section 302 IPC was prepared by the Inspector and case was got registered; Crime Team and photographer were summoned at the spot and site plan was prepared; that blood lying at the spot was lifted by the IO, that at the spot Gangadhar Mishra and Tarun Mandal came at the spot and identified the dead body as of Jayant Ghosh @ Bachchi, S/O. Karunamay Ghosh, R/o Village Nanagarh, PO Koshigram, PS Katav, Disttt. Vardhman, West Bengal and present address was know as Harit Vihar, near Pepsi Godown, Burari, Delhi; that inquest proceedings were conducted and post mortem on the dead body was conducted; that Gangadhar Mishra and Tarun Mandal - both stated in their statements to the Inspector that on 10.11.1996 all the friends collected at the house of Mehar Pall for a tea party and in that party Jayant Ghosh was also present; that accused Budhdev Pal took Jayant Ghosh with him from there and after sometime accused Budhdev Paul came alone and stated to them that he has purchased a house for Rs. 42000/- from Jayant Ghosh; that accused Budhdev Paul was joined in the investigation of this case and during investigation he has made a disclosure statement that he has committed the murder of Jayant Ghosh with a knife and he threw the said knife on the way on the right side of the pushta and had also burned the briefcase and clothes belonging to Jayant Ghosh and that he can get the said knife and ash recovered from the places where he had thrown the said knife and burnt the briefcase; that as per the disclosure statement made by the accused, the knife - weapon of offence and the ash were recovered from the places pointed out by the accused; that the accused also pointed out the place of occurrence; that the dead body of Jayant Ghosh was sent for post-mortem and after the post-mortem the dead body was handed over to her mother and other relatives;

that the exhibits collected during the course of investigation were deposited in the malkhana and were sent for Chemical analysis; that accused was arrested in this case and after completion of the investigation, the accused was sent for trial to the court."

3. The case of the Prosecution hinges on circumstantial evidence and the circumstances that need examination are (a) last seen. (b) motive. (c) disclosure accused, the Prosecution has pressed into service the depositions of PW-3, Mehar Pal and PW-4, Tarun Mandal, who state that on 10.11.1998, on the day of diwali, they had collected at the residence of Mehar Pal, resident of Nirankari Colony at a party hosted by him. In the party, besides this witness, Jayant Ghosh, Budhdev Paul and a few others were present. When this witness arrived Budhdev Paul and Jayant Ghosh were already present and soon thereafter went outside together. Later on at around 9/9.30 p.m. Budhdev Paul returned alone carrying a helmet with him. On enquiry about Jayant Ghosh, Budhdev Paul replied that he might be around and will join shortly. At that time, Budhdev Paul also disclosed that he had purchased the share of Jayant Ghosh in the house situated at Harit Vihar. The following morning while at work, this witness came to know that Jayant Ghosh had been murdered and that his body was lying in Jharoda. So, he along with PW-14, Ganga Dhar Mishra went to the spot and identified the body of Jayant Ghosh. His statement was recorded, Ex.PW-4/A. The witness has also stated that on 11.11.1996 when he joined investigation. No. statement of Mehar Pal was recorded in his presence. However, the statement of this witness was recorded in the police station. The witness has categorically stated that no disclosure statement was made in his presence by the accused. PW-3, Mehar Pal corroborates the version of PW-4, From this it can safely be inferred that the prosecution has proved the fact that the accused was last seen with the deceased.

4. To establish motive, the Prosecution examined three witnesses. PW-3, PW-4 and PW-14. Ganga Dhar Mishra has stated that he was working as a Foreman in Jeet Prento Industry situated on the ground floor of the house where he lived. He knew Jayant Ghosh who also used to work in the same factory. He has stated that the police had come to him on 11.11.1996 and had shown him the receipt of donation made for Kali puja a photograph of Jayant Ghosh, Ex.PW23. this witness has further deposed to the effect that the police had informed him that Jayant Ghosh had been murdered. Thereafter he along with Tarun Mandal, PW-4 and the police went to the place of occurrence and Tarun Mandal identified the body of Jayant Ghosh. After preliminary paper work this witness along with Tarun Mandal took the police to the residence of Jayant. At the residence of Jayant Ghosh, Mehar Pal and Budhdev Paul were present, Budh Dev Paul was lying on the bed in the single room. On enquiry from Mehar Pal, the police entered the room where the accused, Budhdev Paul, was present. He was perplexed and in the course of interrogation the accused was apprehended and his blood stained clothes were taken into possession by the police. This witness has further stated that the accused made a disclosure statement that he had thrown away the knife but could get it recovered. Thereafter the dead body was sent for post mortem. The witness was declared hostile and subjected to cross-examination by the Public Prosecutor. He was confronted with his previous statement. The witness categorically denied having any knowledge of Jayant Ghosh making a demand of the accused in respect of his share in the house and that the accused had murdered him on that account. Although the accused was having joint property with the deceased, there is nothing on record to show any ill-will between the two. There is also nothing to show that the accused entertained the desire to acquire the whole, nor is there any material to show that the share of the deceased had in fact been bought over by the accused. Properties do not change hands on oral understandings. The motive, therefore, is not free from doubt.

5. Taking the evidence as regards the disclosure statements, the Prosecution has relief upon the deposition of PW-3, PW-4, PW-19 and PW-9, Head Constable Gopi Ram. PW-3 and PW-4 have not deposed to a disclosure statement having been made in their presence while PW-14 has not supported the disclosure statement in his examination-in-chief but upon cross-examination by the Public Prosecutor affirmed the previous statement made by him. There is the statement of the accused to the effect that clothes were handed over to the police, they were not blood stained.

6. Analysing the evidence on record, there is no doubt that the last seen evidence produced by the Prosecution is sufficient to prove this circumstance. PW-3 and PW-4 have fully supported the story of the of the Prosecution that the deceased was last seen in the company of the appellant. However, on the question of motive, PW-3 and PW-4 do make a reference of the accused having purchased the share of the deceased in the house. There is no reliable evidence regarding payment of Rs. 42,000/- as the share amount. The three witnesses examined, PW-3, PW-4 and PW-14, were subjected to cross-examination by the Public Prosecutor on this point. While PW-14 denied any knowledge, PW-3 and PW-4 also did not support their previous statements. The disclosure statement, which has purportedly led to recovery, has not been supported by PW-3, PW-4 and PW-14 in their examination-in-chief although PW-9, Head Constable Gopi Ram does support the case of the Prosecution.

7. As regards the recovery of the blood stained clothes of the accused, it has come in the statement of PW-9 Head Constable Gopi Ram as also PW-16, Inspector Bhatnagar, that the dead body was dispatched to the mortuary around 1.00 p.m. through Constable Ram Khilari from the spot of recovery. It is also in evidence that the mortuary is about 3 kms. Away from the place where the dead body was found. Ex.PW-16/C indicates that the body was received at the mortuary at 6.00 p.m. There is also evidence that the dead body was taken to the police station and not directly sent to the mortuary. This can be gathered from the statement of PW-14.

8. It is the case of the accused that he handed over his clothes to the police on their asking but the clothes were not blood stained. The blood on them has been smeared at the police station where the dead body was kept in order to create evidence. Another interesting feature is that the three public witnesses who were allegedly present at the time of recovery of the clothes have not been signatories to the seizure memo. The blood stains on the clothes, in view of the above, become doubtful. There was every possibility of the clothes being stained in the police station where the dead body was kept for about four hours. The Investigating officer as also PW-9 omitted to state that the body was kept in the police station before being sent to the mortuary. This suppression creates doubt regarding the veracity of the recoveries and also the manner in which the blood came on the clothes. The recovery of knife, according to the Prosecution, was on 12.11.1996, but PW-9. who is a witness to the recovery of the knife, has stated in his supplementary statement under Section 161 of the Criminal Procedure Code that the same was recovered on 23.11.1996. He was duly confronted with this. Further, no public witness was joined in the recovery of the knife which also makes this recovery doubtful. Handle-grips of the scooter taken into possession on 12.11.1996 and sent to the CFSL, had traces of human blood on them, but PW-5, Surinder Singh Sethi, owner of the scooter, who had brought the same to the police station has categorically stated that he did not notice presence of any blood on them nor were the grips sealed in his presence. Since the recoveries do not inspire confidence, the chain of circumstances leading to an irresistible conclusion is incomplete. Last seen is one of the links and not sufficient to compete the chain of circumstances and to bring home guilt of the accused. Motive. even if proved, does not lead to the irresistible conclusion that it was the accused who had done away the deceased. The Prosecution, having failed to establish the chain of circumstances, has failed to bring home guilt of the accused. Consequently, the judgment and order 3.5.2000 and 6.5.2000 are set aside and the appeal is allowed. The appellant shall be set at liberty forthwith, if not wanted in any other case. The appellant be informed.