Nanhe @ Ram Chander vs The State Of Nct Of Delhi
2007 Latest Caselaw 626 Del

JUDGMENT

R.S. Sodhi, J.

Page 1321

1. Criminal Appeal Nos. 306 of 2002, 316 of 2002 and 322 of 2002 seek to challenge the judgment and order of the learned Additional Sessions Judge, New Delhi, in Sessions Case No. 10/2000 arising out of F.I.R. No. 389 of 1999, Police Station Mehrauli, whereby the learned Judge vide his judgment dated 12.09.2001 has convicted the appellants, Ram Chander @ Nanhe, Survesh and Bitola Devi, guilty for offence punishable under Sections 302/34 IPC and under Section 201 IPC read with Section 34 IPC. The learned Judge further by his order dated 13.09.2001 has sentenced all the appellants under Section 302 IPC for life imprisonment together with the fine of Rs. 5,000/- (rupees five thousand) each and in default, rigorous imprisonment for six months each. He also sentenced the accused persons under Section 201 IPC to undergo rigorous imprisonment for 5 years with a fine of Rs. 3,000/- (rupees three thousand) and in default, rigorous imprisonment for three months each. Benefit of Section 428 Cr.P.C. was awarded to the accused persons. Both the sentences were directed to run concurrently.

2. The brief facts of the case as have been noted by the learned Additional Sessions Judge in his judgment under challenge are as follows:

Kishore a native of Distt Kannoj (UP) was living in Delhi in a rented room in village Raj Pur and Along with him there used to live his brother Deepu and two more persons Nanne and Survesh. He was married to one Bitola Devi in his village about 11 months prior to the incident. He brought his wife also to Delhi sometime in February, 1999 and she also started living in the same room Along with others. Sometime in March '99 on Page 1322 the occasion of Holi, Depu left this room and went to his village. Now in this rented room Kishore, Bitola Devi, Nanne and Suresh used to live. On 16-4-99, PW3 Jai Ram Sharma who was living in the same locality about 100-200 yards away from house of Kishore had come from his duty in the evening and at about 9.00 p.m., Bitola Devi went to him with a bleeding injury on her finger and requested him to save her from her husband who was beating her. Her husband also came behind her. Nane and Survesh, the other two persons living in that room also came there following these two and Jai Ram Sharma advised and counselled them to live peacefully. Next day, Jai Ram Sharma did not see Kishore there and he asked Nanne about Kishore. Nanne told him that Kishore had run away from the place during night. Bitola Devi Along with Survesh also left the place on the same day and went to village Gariha which was near village of Kishore and in the same village sister of Kishore was married. On 18-4-99, Deepu went to this village to meet his sister and found Surveh and Bitola Devi in the village. He enquired from Survesh about Kishore and then Survesh told that Kishore had run away from room in Delhi, after quarrelling and beating Bitola Devi and taking money and attachee case. Bitola Devi also supported this version of Survesh. After one day, Nanne also reached in the village, he was also enquired about Kishore. Nanne also told that Kishore had left the room after quarrelling with Bitola Devi and after beating her. Deepu waited for his brother for 15-20 days. When his brother did not reach village he then searched for him in relatives' houses but could not find him. Then he Along with, other relatives came to Delhi and went to the room of his brother but found the room locked. He made enquiries from Jai Ram Sharma and Jai Ram Sharma told him that a quarrel had taken place on the night of 16/17 April, 1999 between Kishore and Survesh and while they were grappling with each other, Nanne was trying to separate them. Everybody was drunken. Kishore had given a knife blow on Bitola Devi's hand resulting into injury and he (Jai Ram Sharma) had tied a piece of cloth on her hand and pacified all of them. Thereafter, he did not see them. After 5-6 days, a dead body was recovered in putrefied condition from a well near the house of he accused persons. Jai Ram Sharma advised Deepu to go to police station to find out if the dead body was of his brother.

Deepu went to the police station. There, he was shown one 'kara' and one 'Tabeez' which were removed from the dead body and were retained in the police station for identification of the dead body. Deepu identified Kara and Tabij belonging to his brother Kishore. After coming to know that dead body was of his brother, he made a statement to the police which was recorded and case of murder of his brother was registered. Bitola Devi, Nanne and Survesh who were last seen together with Kishore were arrested. They were interrogated and they made disclosure statement admitting their crime.

After completing the investigating challan was filed. Accused persons were charged with offence Under Section 302 IPC for committing murder of Kishore and Under Section 201 IPC for eliminating the evidence after Page 1323 commission of crime to which accused persons pleaded not guilty and claimed trial.

3. The case of the prosecution is primarily based on circumstantial evidence which the prosecution has tried to prove by the testimony of PW-2, Deepu, who is the brother of the deceased, Kishore. PW-2, in his testimony deposes to the effect that he knew all the three accused persons present in the Court and that the deceased Kishore was his elder brother. Kishore used to live at Rajpur in Delhi and ply a rickshaw. He was married to Bitola Devi. The deceased used to live along with Nanhe, Survesh and Bitola in one room. The deceased suspected the fidelity of his wife with Nanhe and Survesh. Consequently, he had told Nanhe and Survesh to take a separate room. Since, Nanhe and Survesh refused to take a separate room, quarrel ensued. He goes on to depose that on the night of 17.04.1999, Jai Ram Sharma, a neighbour, intervened as all of them went to his room. The witness deposes that he was told by Jai Ram Sharma that on that fateful night Nanhe, Survesh and the deceased were drunk. They had a quarrel and came to him for advice. After patching up the differences, Bitola Devi, Nanhe and Survesh went to their room while his brother was held back since he was heavily drunk. The witness further goes on to depose that on 18.04.1999, Bitola Devi came to the village and informed him that her husband's whereabouts were not known since he had left the previous night after a quarrel. This witness kept Bitola Devi at his house for 3-4 days and thereafter, left her at her parents' house. During this time on 18.04.1999, he came to Delhi and made inquiries from the neighbours and learnt that there had been a quarrel between the accused persons and his brother. After 4-5 days, a dead body was recovered from a well. He made inquiries from Jai Ram Sharma who stated that he had witnessed the quarrel between Kishore and others and that Jai Ram had pacified them. The witness goes on to state that he went to the Police Station Mehrauli to make inquiries but was told that no dead body had been recovered. He then went to Police Station Neb Sarai where he was asked to state any identification mark of his brother on which the witness stated that his brother was wearing one Tabeez and a brass Kara. However, no photograph was shown to him. The police recorded his statement Exhibit PW 2/A. The witness then goes on to narrate that the Tabeez was rectangular and that it is Exhibit P-2 while the Kara is Exhibit P-1.

4. PW-3, Jai Ram Sharma, states that he knew deceased as he was living in Rajpur near him. He also claims to know Bitola Devi as she used to live in the room along with deceased Kishore. Both Nanhe and Survesh also lived in the same room. On 16.04.1999, Bitola Devi came running to his room having an injury on her finger which was bleeding. She sought protection from this witness. Kishore followed her. This witness counseled both Kishore and Bitola Devi and they both left peacefully. On the following day, he was told by Nanhe that Kishore had ran away during the night. In cross-examination, the witness states that the distance between the room of Kishore and his room was 100 yards and room of Kishore was a single room. He denied that he had witnessed a quarrel after Kishore was drunk. However on that night, all the three males were drunk. He stated that after he had counseled the three persons not to quarrel, he did not hear anything Page 1324 nor did he go to their room thereafter. He goes on to depose that it is correct that there is a jungle behind their house and that there is a well at some distance.

5. PW-10, ASI Suraj Bhan, deposes to the effect that he was posted at Police Post Maidan Gari on 22.04.1999 and he received a call that a dead body was lying in a well in Rajpur village, vide D.D. No. 15 which is Exhibit PW 10/A. He went to the spot and got the body drawn out from the well and sent the same to A.I.I.M.S. mortuary. Since, the dead body was of an unknown person, wireless message was sent to all the police stations and districts throughout India. From the body, one brass Kara and one black colour thread tied on the arm with Tabeez were recovered. The witness kept the Kara and the Tabeez with him so that it may assist in identification of the deceased. However, he did not prepare a recovery memo. He recorded his karyawahi in D.D. No. 18 Exhibit PW 10/B. On 28.04.1999, postmortem was got done of the unidentified body and last rites were performed. The application for postmortem is Exhibit PW 10/C. On 09.06.1999, this witness handed over one Kara and Tabeez to Additional SHO Mr. Meena, who seized the same vide memo Exhibit PW 10/D. The same had been identified in Court. PW-12, Inspector Jagdish Meena, is the Investigating Officer. He deposes that he was posted at Police Station Mehrauli and investigated the case. He inspected the spot of incident, recorded the statement of witness and seized one Tabeez and one Kara from Head Constable Suraj Bhan vide memo Exhibit PW 10/D. In cross-examination, the witness states that the place from where the dead body was recovered was around 200 yards from the house of Sukhpal and that there is no latrine in the house of Sukhpal. The diameter of the well was around 15 feet. It is a kuccha kua (well) about 2 feet above the ground. He also admits that the Tabeez and Kara were given to him in an unsealed condition. In the statement under Section 313 Cr.P.C., accused Ram Chander @ Nanhe and Bitola Devi admitted about the quarrel having ensued but denied any hand in the death of Kishore.

6. The trial court, on analysis of the material, came to the conclusion that the prosecution has proved circumstances: (1) Kishore, Bitola Devi, Nanhe and Survesh were living together in one room before the incident; (2) Kishore had doubt about illicit relations of Bitola Devi with Nanhe and Survesh and had told them to vacate the room; (3) A quarrel had ensued on 16.04.1999 at about 9 p.m. and Kishore had caused injuries to Bitola Devi; (4) Bitola Devi went to Jai Ram Sharma, PW-3, in injured condition followed by Nanhe, Survesh and Kishore where after they returned to their room; (5) Kishore was not seen on the next morning and PW-3, inquired about Kishore. He was falsely told that Kishore had ran away; (6) Bitola Devi and Survesh had left the room on the same very morning and went to the village Gariha where on 18.04.1999, Deepu, PW-2, narrated the story that Kishore had run away after beating Bitola Devi; (7) Nanhe sold rickshaw of Kishore to shopkeeper for Rs. 900/-. He also left Delhi and went to his village; (8) Nanhe also told Deepu, brother of Kishore, the same story that Kishore had left after beating Bitola Devi; and (10) The dead body of Kishore was recovered from the well which was near the house of the accused persons and dead body was identified with the aid of Tabeez and Kara by Deepu. Based on the Page 1325 aforesaid circumstances, according to the trial court having been proved, the prosecution has brought home the guilt of the accused.

7. It is argued by learned Counsel for the appellants that none of the circumstances taken together or singularly make a chain so complete as to prove the guilt on the accused persons for the murder of Kishore. She contends that there is nothing on record to show that Kishore has died a homicidal death. She also contends that mere recovery of Tabeez and Kara from a dead body on 22.04.1999, cannot itself be said to have identified the dead body to be that of Kishore. There are no distinguishing marks brought on record in respect of the Kara or the Tabeez to link the same to Kishore. She also contends that from the postmortem, it appears that the body recovered had died about 10 days prior to its recovery whereas according to the deposition of PW-2, on 18.04.1999, he had come to Delhi and 3 or 4 days thereafter, he was informed by the Jai Ram that the body of Kishore had already been recovered. Learned Counsel also contends that the recovery of the Tabeez and Kara itself is doubtful. No recovery memo was made of the same and that it was handed over to Investigating Officer PW-12 on 09.06.1999, after registration of the F.I.R. Cumulatively, counsel submits the prosecution has miserably failed in their attempt to link accused with any crime.

8. We have heard counsel for the parties and carefully gone through the judgment under challenge as also the material placed before us. From the statement of PW-2, Deepu, it appears that Bitola Devi on the following morning, after the quarrel came to the village and informed Deepu that his brother had ran away. She was injured and was treated for a finger injury. She continued to stay at the house of PW-2 till she was finally dispatched to her parental home. PW-2 came to Delhi on 18.04.1999. After 4-5 days, a dead body was recovered. He identified Kishore on 06.06.1999. from the Tabeez and Kara for the first time in court. According to PW-10, a dead body was recovered from a well in Rajpur village on 22.04.1999. The dead body was highly decomposed. It had a brass Kara on one hand and a Tabeez tied with a black thread on its arm. The body was not identified at any stage and was cremated as unidentified. PW-10 does not make a recovery memo of Tabeez and Kara nor does he deposit the same in the malkhana or in the police station. There is no entry anywhere of the recovery of the Tabeez and the Kara on 22.04.1999. However, this witness handed over a Kara and Tabeez on 09.06.1999 to PW-12 which were seized vide memo Exhibit PW 10/D. The Investigating Officer, PW-12, categorically found that the well from where the body had been recovered, was around 200 yards from the house of Sukhpal who was the landlord of the deceased. From the postmortem report, no inference could be made as to the cause of death. It is also evident from the postmortem report that the death had occurred about 10 days prior to the postmortem. From this material which is available on record, it cannot be said that the body recovered was that of Kishore nor can it be said that the deceased met a homicidal death nor can it be said that Bitola Devi or the other accused persons Survesh and Nanhe had caused the death of Kishore. Merely because a quarrel had ensued between husband and wife, it cannot itself mean that Kishore had been murdered as a consequence thereof. There is evidence on record to show Page 1326 that Kishore occasionally ran away after quarreling with his wife. Therefore, her non-reporting the matter to the police on the following day, could not be taken to be a circumstance against her. Although, Bitola Devi informed the brother of the deceased on the following day about the incident.

9. The cryptic nature of evidence that is sought to be linked to form a chain is so disjointed that none of the links in the chain by itself or conjointly are strong enough to bring about a conclusion that the only hypothesis available is that the accused have murdered Kishore. In view of this, we find that the trial court has completely erred in coming to the conclusion that the appellants are guilty of the offence charged. We, therefore, set aside the judgment of conviction dated 12.09.2001 and order on sentence dated 13.09.2001 and allow Criminal Appeal Nos. 306 of 2002, 316 of 2002 and 322 of 2002.