Delhi High Court

Matadin vs State on 8 September, 2008

Author: P.K.Bhasin

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                CRL. APPEAL NO. 449 OF 2003

+                        Date of Decision: 8th September, 2008


#    MATADIN                                        ...Appellant
!                                    Through: Ms. Rakhi Nigam,
                                     Advocate


                            versus
$    STATE                                         ...Respondent
^                                    Through: Ms. Richa Kapoor,
                                     APP



     CORAM:
*    HON'BLE MR. JUSTICE B.N. CHATURVEDI
     HON'BLE MR. JUSTICE P.K.BHASIN

1.   Whether Reporters of local papers may be allowed to see
     the judgment?(No)
2.   To be referred to the Reporter or not?(Yes)
3.   Whether the judgment should be reported in the digest?(Yes)



                      JUDGMENT

P.K.BHASIN, J:

The appellant Matadin and three other persons were tried

for the offences punishable under Sections 302 and 201 IPC read

with Section 34 IPC for committing the murder of one Hari Shankar and causing disappearance of the evidence of his murder

but vide judgment dated 27.08.2002 the learned Additional

Sessions Judge convicted the appellant alone under Sections

302/201 IPC and acquitted his three co-accused of both the

charges. Vide order dated 28.8.2002 the appellant was sentenced

to undergo life imprisonment and also to a fine of Rs. 5000/-

under Section 302 IPC and rigorous imprisonment for three years

and a fine of Rs. 1000/- under Section 201 IPC. Sentences of

further imprisonment in case of default in payment of fine were

also imposed. Questioning the correctness of his conviction and

the sentences awarded to him the appellant(hereinafter referred

to as „the accused‟) has preferred this appeal.

2. Before delving into the correctness of the impugned

judgment of the trial Court it would be necessary to notice the

case of the prosecution. A dead body of a boy aged 20-22 years

was noticed lying on the railway track near Pandav Nagar on

6.3.96 at about 10.45 a.m. by one Head Constable of Police

Control Room. Intimation about that was given to the Railway

police station at Delhi‟s main station. ASI B.D. Sharma (PW-15)

was asked to go to the spot. He reached the spot where he found

dead body of a boy aged 20-22 years lying on the railway track.

The legs were found tied with a rope and the face and neck of the

body were swollen and injuries were also present on the face and

neck of the deceased person. Since it appeared to be a case of

murder a case under Section 302 IPC was registered vide FIR no.

48/96 (on the report Ex. PW-15/A) (Ex. PW-3/B) at Railway police

station on the report of ASI B.D. Sharma. Since the dead body

could not be got identified it was preserved in the mortuary for 72

hours. Intimation about recovery of a dead body of an unknown

person was flashed to all the police stations so that it could be got

identified.

3. It so happened that on 7.3.96 PW-9 Sukhai went to Moti

Nagar police station to lodge a missing report of his cousin brother

Hari Shankar who had been missing from his house since 5.3.96.

That report was recorded as DD no. 5-A. He stated in his report

that his cousin brother Hari Shankar was living with him for about

1-1/2 months and was working in Venkateshwara Rolling Mill at

63, Najafgarh Road. On 05.03.96, which was the day of Holi

festival, at about 8 a.m. one Matadin(appellant herein) who was a

close associate of the owner of the said Mill had taken Hari

Shankar for playing holi. Hari Shankar, however, did not return till

4 p.m. and then he(Sukhai) went to the factory and enquired from

Matadin about Hari Shankar who told him that Hari Shankar was

sleeping after eating and drinking(thoda kuch kha-pi liya hai aur

so raha hai) and he would bring him to his house after he would

wake up but Hari Shankar had not come back. Sukhai raised

suspicion against Matadin as well as the owner of his factory and

requested the police to trace his cousin. By that time the dead

body found from the railway track on 06/03/96 was lying in the

mortuary and on the same day Sukhai was taken to the mortuary

at Subzi Mandi and was shown that dead body and on seeing the

dead body Sukhai identified the same to be that of his cousin Hari

Shankar. PW-16 Insp. R.S. Dahiya who was the SHO posted at

Railway Police Station at Delhi Railway Station then recorded the

statement of Sukhai under Section 161 Cr. P.C. and started the

search of Matadin and went to his house as well as his factory

where he was working but he was not found at any of these two

places. He was reported to be absenting from duty. Accused

Matadin could finally be arrested on 11.3.96 on the pointing out of

PW-9 Sukhai from his house. At that time accused Matadin was

found packing his luggage to flee away. From the room of Matadin

PW-16 recovered one whisky bottle(half) having some liquor in it

and the same was taken into police possession and sealed.

Accused Matadin made a disclosure statement in police custody

and pursuant to that the police arrested two more persons,

namely, Mukhtiar Singh and Ram Singh on 11.3.96. Matadin had

in his disclosure statement disclosed about his involvement in the

murder of the deceased Hari Shankar as also that of the said

Mukhtiar Singh and Ram Singh and one Shitla Prasad who,

however, could not be arrested by the police but subsequently he

himself surrendered before the concerned Court on 27.5.96.

4. The dead body of the deceased was subjected to post

mortem examination by PW-13 Dr. L.T. Ramani on 11.3.96. He

noticed the following external injuries on the dead body of the

deceased at the time of post mortem examination:

1. Bruise with abrasion 1 inch x ½ inch on the left sub-mandibular area.

2. Multiple abrasion on the left cheek over 2 inch x 2 inch area.

3. Abrasion 1 ½ inch x 1 inch on the lower part of right cheek.

4. Abrasion 1 ¼ inch x 1 ¼ inch on the under surface of chin on the right side.

5. An abrasion ½ inch x 1 ¼ inch on the right sub-mandibular area.

6. Multiple grazed abrasion running vertically on the lower front of chest and front of abdomen involving 11 inch x 9 inch area with pealing off cuticle from below upwards at several places in vertical direction. There was no evidence of blockage/effusion beneath(post mortem injury).

7. Impression of ligature(rope) over lower parts of thighs 2 inch above the knee level.

On internal examination the autopsy surgeon had found the

smell of alcohol from the stomach. The cause of death was

opined to be asphyxia resulting from strangulation and time since

death was opined to be about 5 to 6 days.

5. The case was finally transferred to Patel Nagar Police

Station since the place from where the dead body of the deceased

was recovered fell within the jurisdiction of Patel Nagar Police

Station. There a separate FIR was registered(being FIR

No.168/96, Ex PW-6/A). On completion of the investigation the

appellant Matadin and the three other accused persons, named

already, were charged under Sections 302/201 read with Section

34 IPC. The trial Court framed charges against all the four

accused persons under Section 302/34 IPC and also under

Section 201/34 IPC. Since the accused persons had pleaded not

guilty to these charges framed against them the prosecution was

called upon to establish its case. Thereafter the prosecution

examined 19 witnesses. Since there was no eye-witness of the

murder of the deceased the prosecution had sought to establish

its case against the accused persons on the basis of

circumstantial evidence. The learned trial Court has not

enumerated the circumstances specifically in its judgment but

we find all the circumstances found to have been accepted by the

trial Judge summed up in para nos. 30 and 31 of the judgment

which are reproduced hereunder:

"30. Thus the deceased was last seen alive in the company of Matadin on 5.3.1996 his dead body was recovered from the railway track which was just near the house of Matadin. The deceased was employed by Matadin and he was taken to the house of Matadin by Matadin for celebrating holi and when he did not return to the

house of Sukhai he made enquiries from him and was given different version at different time. Three different versions were given by Matadin to Sukhai. First that the Hari Shankar was taking rest after taking liquor. Second that he had gone to Shahdra after taking 1000/ from him (Matadin). And third that Hari Shankar had left for his village. Matadin was himself not attending to his work at Venkateshwar Mill and was found missing for two days. All these facts conclusively prove that Hari Shankar was taken by Matadin for celebrating the Holi and he was offered liquor which was also found in his body at the time of post mortem and thereafter he was killed by strangulation and his dead body was put on the railway track to cause disappearance of the evidence.

31. The liquor bottle recovered from the house of Matadin was examined by Chemical Examiner and he found that the liquor bottle contained Ethyl Alcohol of 42.0 % V/V. The viscera was also found containing Ethyle Alcohol. These facts proved that Hari Shankar was in the company of Matadin on 5.3.1996 the date when it was holi and he was given liquor and thereafter he was killed by strangulation and his dead body thrown on the track to cause disappearance of the evidence."

6. From the aforesaid two paras of the impugned judgment we

have been able to cull out the circumstances which the

prosecution had relied upon and the trial Court also found the

same to have been established beyond any doubt and proved the

involvement of accused Matadin in the murder of the deceased

Hari Shankar. Those circumstances are:

1. The death of the deceased was homicidal.

2. On 5.3.96 accused Matadin had taken Hari Shankar at about 8.30 a.m. from his house for playing holi.

3. On the same day i.e. 5.3.96 at about 12.00 noon the appellant and the three acquitted accused persons and the deceased Hari Shankar had consumed liquor at the house of accused Matadin in Pandav Nagar.

4. Hari Shankar did not return back to his home on 5.3.96 after the drinks party at the house of Matadin. In the evening of 5.3.96 when PW-9 Sukhai went to the factory to inquire about Hari Shankar from Matadin, he was told by Matadin that Hari Shankar was sleeping as he had consumed excessive liquor. Then on 7.3.96 in the morning by which time also Hari Shankar had not come back home, when Sukhai again enquired from Matadin about Hari Shankar

Matadin gave different and unsatisfactory versions about the whereabouts of Hari Shankar.

5. On 7.3.96 the dead body of Hari Shankar was found lying on the railway track in Pandav Nagar area where accused Matadin was living.

6. After PW-9 Sukhai had expressed his suspicion against accused Matadin he absconded and could be arrested only on 11.3.96.

7. After examining the evidence of various prosecution

witnesses the learned trial Court came to the conclusion that the

prosecution had succeeded in establishing the guilt of accused

Matadin alone on the basis of aforesaid circumstances which

were found to have been established but the involvement of other

three accused persons had not been established. Consequently,

Matadin was convicted under Sections 302 and 201 IPC while the

other three co-accused persons were acquitted. Feeling aggrieved

by his conviction and the sentences imposed upon him accused

Matadin preferred the present appeal.

8. It was argued by Ms. Rakhi Nigam, learned counsel for the

appellant, that she was not disputing that the deceased died a

homicidal death but this is a case of conviction of the appellant-

accused for the offence of murder without there being any

incriminating piece of evidence against him and the learned trial

Court has convicted him primarily relying upon the confessional

statement of the appellant which he had allegedly made after his

arrest and was clearly inadmissible in evidence since it had not led

to the recovery of anything incriminating which could be used

against the accused. Learned counsel contended that both the

prosecution witnesses examined to establish the circumstance of

the deceased having been last seen alive in the company of the

appellant Matadin and the acquitted accused persons had turned

hostile during the trial and had not supported the prosecution case

but still the learned trial Judge came to the conclusion that the

deceased was seen alive for the last time in the company of the

appellant Matadin. Learned counsel further contended that

despite noticing that no witness had seen the deceased Hari

Shankar in the house of Matadin enjoying liquor there the learned

trial Judge gave a conjectural finding that the deceased must have

consumed liquor in the house of Matadin since alcohol was found

in his viscera and one bottle of whisky having some whisky in it

was seized by the police from his room at the time of his arrest.

Learned counsel submitted that just because alcohol was found in

the stomach contents of the deceased after his death and PW-10

Shyam Narain had claimed that on the day of holi some persons

were consuming liquor in the house of Matadin and Hari Shankar

had left his house that day telling his cousin that he was going to

Matadin it could not be inferred by the trial Judge that Hari

Shankar also must have taken liquor in that gathering and so

appellant Matadin could not have been convicted. It was also

submitted that even if all the circumstances relied upon by the

prosecution are taken to have been established the appellant

could still be not convicted as from those circumstances taken

together it could be said that the same formed a complete chain

from which the only conclusion which could be drawn was of the

guilt of the appellant-accused and those circumstances were

incompatible with his innocence.

9. On the other hand, Ms. Richa Kapoor, learned Additional

Public Prosecutor supported the trial Court‟s judgment under

challenge and submitted that there was no infirmity in the

findings arrived at by the learned trial Judge and, therefore, the

present appeal deserved to be dismissed by this Court.

10. That the death of the deceased was homicidal is fully

established from the evidence of autopsy surgeon and this fact

was not disputed before us also by the learned counsel for the

appellant. We will now proceed to examine if the other

circumstances which the learned trial Court has found to have

been established have actually been established or not and

whether from those circumstances, the guilt of the appellant can

be said to have been proved beyond any shadow of doubt.

Regarding the second circumstance the prosecution as well as

the learned trial Judge had relied upon the testimony of PW-9

Sukhai, cousin brother of the deceased with whom the deceased

was living. The relevant part of his evidence reads like this:

"In the year 1996 I was working in Mittal Steel Mill in village Mundka. I had a cousin brother, son of my uncle whose name was Hari Shankar. Hari Shankar was working at Venkateshwar Steel and Rolling Mill as contract

labour under accused Mata Din who is present in the court today. Hari Shankar was residing with me in a house bearing no. W-153C/84, Rama Road, New Delhi.

On 5.3.96 at about 8 - 8.15 p.m. accused Matadin came to my house to call Hari Shankar and at that time I was cooking meals and it was a day of holi. Matadin had taken Hari Shankar to celebrate holi at Venkateshwar Rolling Mill. Hari Shankar left telling me that he was going with Matadin and would return in a short while.

Hari Shankar did not return and I waited till 4/4.30 p.m. and then I went to Venkateshwar Rolling Mill. Matadin told me that Hari Shankar was resting in his room after taking something (KHA PEEKE ARAAM KARR AHA HAI) and that he would come back to my house in the evening. Thereafter I returned to my house. Hari Shankar did not return at all though I went in search of him at one or two places. He did not return till next morning. I went to my duty and while leaving for my duty I had asked Ganga Ram to go to the mill where Hari Shankar was working and asked Mata Din about Hari Shankar. When I returned in the evening from my duty I enquired from Ganga Ram who told me that he had visited the mill and could not find Hari Shankar. He also informed me that he did not see Matadin in the Mill. In the evening I went in search of Hari Shankar to various places........................................

The holi was on Tuesday. Matadin accused met me again on Thursday when I went to the Mill to enquire about Hari Shankar. On enquiry Matadin told me that Hari Shankar had gone to Shahdara and would be returning by about 8.00 A.M. today to join the duty. I had gone to the Mill on that day at about 6.30 A.M. He again said that may be Hari Shankar had gone to his village as he (Hari Shankar) had taken Rs. 1000/- from him. I waited at the mill till 8.00 AM and when Hari Shankar did not turn up I went to Moti Nagar PS and lodged report which was recorded DD

No. 5A mark X. On my report one Sanjeev Kr. was sent from PS who brought accused Mata Din to PS and after some time he was allowed to go but I kept on sitting at PS. After about two hours police officials again brought Matadin to PS and made enquiries from him. I do not know what kind of enquiries were made.

At the police station somebody said that a dead body has been recovered from near Rly. Lines and then I was taken to mortuary Subzi Mandi where I identified the dead body of my cousin Hari Shankar. After post-mortem the dead body was handed over to me vide receipt Ex. PW-7/A......................................................................."

11. This is what he deposed in his chief-examination. However in

his cross-examination on behalf of the accused he claimed that he

himself had not seen Matadin on 05.03.96 taking Hari Shankar

from his house for playing holi but Hari Shankar had told him that

he was going to Matadin. He also admitted that during

investigation stage he had told the police that, in fact, one person

had come and told Hari Shankar that Matadin was calling him. He

further claimed that he had not seen that person who had come to

call Hari Shankar and that he himself had not seen Matadin also

on 5.3.1996 at his house and he had presumed that Matadin had

come to call Hari Shankar as Hari Shankar while leaving the house

had told him that he was going with Matadin.

12. The learned trial Judge, however, despite having noticed in

his judgment that PW-9 Sukhai had claimed in cross-examination

that Hari Shankar had told him that he was „going to Matadin‟ and

he himself had not seen Matadin at his house taking away Hari

Shankar came to the conclusion that on 05/03/96 Hari Shankar

was taken by Matadin for celebrating the Holi. The conclusion of

the learned trial Court in this regard is to be found in the following

lines of para no. 30 of the impugned judgment:

"Thus the deceased was last seen alive in the company of Matadin on 5.3.96.......The deceased was employed by Matadin and he was taken to the house of Matadin by Matadin for celebrating holi........All these facts conclusively prove that Hari Shankar was taken by Matadin for celebrating the holi........"

This conclusion appears to have been arrived at by relying

upon the missing report (Mark „X‟) lodged by PW-9 Sukhai on

7.3.96 wherein he had claimed that Matadin had come to his

house and had taken Hari Shankar along with him for playing Holi.

That missing report, however, could not be taken into

consideration as a piece of substantive evidence. If Sukhai had

stuck to that version in Court then only that document could have

been pressed into service by the prosecution to corroborate

Sukhai‟s testimony. As noticed already, PW-9 in cross-examination

had claimed that in his statement to the police(under Section 161

Cr.P.C. recorded after he had identified the dead body recovered

from railway track on 06/03/96) that in fact on 05/03/96

somebody sent by Matadin had come to his house and had called

Hari Shankar from outside their house saying that Matadin had

called him for playing holi. It appears that the trial Judge relied

upon that statement also when he observed in para no. 32 of his

judgment that as per the prosecution evidence in fact Matadin had

called Hari Shankar to his house for celebrating holi. That shows

that PW-9 Sukhai had not been consistent in his version regarding

what had actually transpired on 5.3.1996. In our view, no reliance

can be placed on this kind of a witness. It is significant to note that

the prosecution had not examined any other witness to establish

that it was Matadin who had taken Hari Shankar from his house in

the morning of 5.3.96 for celebrating holi and, therefore, in these

circumstances the conclusion of the learned trial Court that the

deceased had been taken away from his house by Matadin in the

morning of 5.3.96 cannot be accepted by us. In our view, from the

answers given by PW-9 in his cross-examination it is clear that the

circumstance of the deceased having been taken by accused

Matadin from his house in the morning of 5.3.1996 for playing

holi, as was the prosecution case, was not established and on the

contrary the statement of PW-9 in cross-examination demolished

the prosecution case in respect of this circumstance relied upon by

the prosecution. The aforesaid conclusions arrived at by the

learned trial Court regarding the circumstance of accused Matadin

having come to the house of the deceased Hari Shankar in the

morning of 5-3-1996 and his having taken Hari Shankar with him

for playing holi have been arrived at without giving any importance

to the answers given by PW-9 Sukhai in cross-examination to the

effect that he himself had not seen Matadin that day coming to his

house and taking away his cousin Hari Shankar with him. It is now

well settled that whatever a witness states in cross-examination is

as much a part of his testimony as is the statement made during

examination-in-chief and if in cross-examination on behalf of the

accused something favourable for the accused has been elicited

that part of his statement cannot be ignored and has to be given

due weightage otherwise the whole purpose of giving an

opportunity to the accused to cross-examine prosecution

witnesses becomes redundant. Grave prejudice is caused to the

accused if the favourable answers elicited on his behalf from

some material prosecution witness in cross-examination are not

taken into consideration, as has been done in the present case by

the learned trial Court, and are totally ignored without assigning

any reason. In our considered view, the prosecution cannot be

said to have established this circumstance.

13. We find from the evidence adduced by the prosecution that

even the third circumstance found to have been established by the

learned trial Judge cannot be said to have been established at all.

The findings of the trial Court regarding the third circumstance are

totally based on surmises and conjectures. It was the prosecution

case that after the deceased had left his house on the day of holi in

the morning he was seen in the company of the appellant-accused

and the three acquitted co-accused having liquor at the house of

accused Matadin around noon time that day. The only witness on

this circumstance was PW-10 Shyam Narain but he did not support

the prosecution and so he was cross-examined by the prosecutor.

Even then he did not claim that he had seen the deceased also in

the house of Matadin having drinks although he admitted that that

day some people including Matadin were enjoying drinks at his

house. Despite this witness having claimed that Hari Shankar was

not seen by him at the house of Matadin having drinks and the trial

Judge himself having taken note of this fact held in paras no. 31,

32 and 33 of the impugned judgment that :

"31. The liquor bottle recovered from the house of Matadin was examined by Chemical Examiner and he found that the liquor bottle contained Ethyl Alcohol of 42.0 % V/V. The viscera was also found containing Ethyle Alcohol. These facts proved that Hari Shankar was in the company of Matadin on 5.3.1996 the date when it was holi and he was given liquor and thereafter he was killed by strangulation and his dead body thrown on the track to cause disappearance of the evidence.

32. It is in evidence that at the house of Mata Din people were taking liquor on Holi festival. P.W. Sham Narain saw people consuming liquor in his house. He did not see Hari Shankar in the house but his statement proves one fact that liquor was being offered and taken by the guests and friends of Matadin. It is also in evidence that on the same day in the morning Matadin had called Hari Shankar to his house for celebrating holi...........................

33. The statement of PW Sukhai, the postmortem report that Ethyle Alcohl was found in the viscera and the liquor found in the house of Matadin also found containing Ethyle Alcohl of 42 % VV similar to the one found in viscera prove that ethyl alcohl was given to Hari Shankar at the house of Matadin by Matadin and thereafter he was strangulated to death and his dead body thrown at the railway track to cause the disappearance of the evidence. "

We see no logic whatsoever in the reasoning given by the

trial Court for arriving at the conclusion that the deceased had

consumed liquor on 5.3.96 offered by accused Matadin at his

house. Just because alcohol was detected in the viscera of the

deceased which was got examined from CFSL and PW-10

Shyam Narain had seen people drinking liquor at the house of

Matadin on the day of holi it cannot be inferred that Hari Shankar

too must have consumed liquor at that party particularly when the

only witness, namely, PW-10 Shyam Narain examined by the

prosecution to establish this fact had not claimed so during his

evidence. When he was cross-examined by the public prosecutor

with the permission of the trial Court he categorically denied the

suggestion that when he had gone to the room of Matadin on the

day of holi he had seen Hari Shankar sitting in that room. It is a

matter of common knowledge that on the day of holi many

people consume liquor as a part of holi celebration. The presence

of alcohol in the viscera of the deceased can only show that he

too must have consumed liquor on the day of holi but from that

fact it can certainly be not said that he had consumed liquor in

the company of accused Matadin and the three acquitted accused

persons. We tried to find out if there was any other evidence

adduced by the prosecution from which it could be said that

deceased Hari Shankar had consumed liquor in the company of

accused Matadin and the three acquitted accused persons but

found none.

14. We are also of the view that even if prosecution had been

successful in establishing that the deceased had participated in

the drinks party at the house of Matadin on 5.3.96 that fact by

itself would still not be sufficient to incriminate accused Matadin

for the murder of Hari Shankar since it is the prosecution case

itself that at the house of Matadin besides Matadin and the three

acquitted accused persons many other persons were present

there and were taking liquor. PW-10 Shyam Narain had deposed

that around 20-25 persons were present in the room of Matadin

enjoying drinks but he did not claim to have seen the deceased

Hari Shankar also there. However, even if it were to be accepted

that the deceased was also a part of that gathering at the house

of Matadin, as has been found by the learned trial Court, it cannot

be said that the deceased was last seen alive in the company of

Matadin alone for which he was expected to offer some

explanation as to when they parted each other‟s company and

under what circumstances. The learned trial Court itself has

rejected the prosecution case against the three other accused

persons who were also, as per the prosecution case, seen

together with the deceased Hari Shankar at the house of Matadin.

If the prosecution case to that effect which was sought to be

established on the basis of evidence of PW-10 Shyam Narain was

not found by the trial Court to have been established then, in our

view, this part of the prosecution case against accused Matadin

also could not be said to have been established on the same very

evidence which was sought to be utilized against three acquitted

persons.

15. The fourth circumstance relied upon by the prosecution was

that on 5.3.96, i.e. on the day of holi when the deceased Hari

Shankar who had allegedly gone with accused Matadin did not

return till the evening the complainant Sukhai( PW-9) went to his

factory and enquired from Matadin about Hari Shankar on which

he was told that because of having consumed excessive liquor

Hari Shankar was sleeping in his room and when Hari Shankar did

not come back home even till 7th morning PW-9 Sukhai again

enquired from Matadin about Hari Shankar at about 6.30 a.m.

and at that time Matadin had told him that Hari Shankar had

gone to Shahdara and would return by about 8.00 a.m. and then

he changed his version and had told Sukhai that Hari Shankar

might have gone to his village as he had taken Rs. 1000 from him

(Matadin). Thus, as per the prosecution case accused Matadin

gave different answers to PW-9 Sukhai on 5th and 7th March,

1996 when Sukhai had enquired from him about the deceased

Hari Shankar when, in fact, Hari Shankar had already died and

that conduct of Matadin has been found by the learned trial Judge

to be of incriminating nature. However, in our view, this

circumstance cannot be said to have been established beyond

reasonable doubt. PW-9 Sukhai is the only witness examined by

the prosecution on this aspect of the prosecution case. We have

already found him to be unreliable because of his having given

different versions regarding the departure of deceased Hari

Shankar from his house in the morning of 5.3.96. There is yet

another reason for not accepting his version that accused Matadin

had falsely told him in the evening of 5.3.96 that Hari Shankar

was sleeping in his room after consuming liquor. As per the

prosecution case, PW-9 Sukhai had not tried to find out at that

time itself whether his cousin was sleeping in the room of

Matadin as was being told to him by Matadin. When Hari Shankar

did not return home even during the night and not even the next

day the matter was not reported to the police by Sukhai

expressing his suspicion regarding the involvement of accused

Matadin in the disappearance of the deceased which he would

have done if actually Matadin had told him on 5th evening that

Hari Shankar was sleeping in his room after consuming liquor.

PW-9 had also claimed that on 6.3.96 he had requested one

Gangaram to enquire from Matadin about Hari Shankar and that

Gangaram had told him that he could not find Matadin. However,

that Gangaram has not been examined by the prosecution. In

these circumstances, the delayed lodging of missing report by

PW-9 Sukhai in which suspicion was raised against Matadin for

the first time assumes significance and the unexplained delay

casts doubt on the correctness of his version regarding

contradictory answers given by Matadin regarding the

whereabouts of Hari Shankar. Therefore, we are not inclined to

place reliance on the testimony of this witness in respect of this

part of the prosecution case also.

16. The learned trial Court has also found that the dead body of

the deceased Hari Shankar was recovered from the railway track

which was near the house of accused Matadin. Apart from this

fact that there is no evidence whatsoever adduced by the

prosecution to the effect that the place of the recovery of the

dead body was near the house of accused Matadin. This

circumstance, even otherwise, cannot be accepted to be

incriminating one which could be utilized by the prosecution.

17. The next circumstance relied upon by the trial Court for

convicting the appellant is his abscondence. However, we find

from the evidence of PW-14 Sub Insp. Sanjeev Kumar, who was

entrusted with the investigation of the matter after PW-9 Sukhai

had lodged the missing report on 7.3.96 at Moti Nagar Police

Station, that accused Matadin had not absconded at all. PW-14

had deposed that when on getting a copy of DD no. 5A, which is

the missing report lodged by Sukhai, he alongwith complainant

Sukhai had gone to Venkateshwar Rolling Mill accused Matadin

was found present and he had interrogated Matadin and

thereafter Matadin was allowed to go. In our view, this statement

of PW-14 totally demolishes the prosecution case regarding the

circumstance of accused Matadin having absconded after the

complainant Sukhai had expressed his suspicion against him.

Although PW-16 Insp. R.S. Dahiya had deposed that when he had

gone in search of accused Matadin he was not found in the Mill

where he was working and even at his house also he was not

found on 8.3.96 but from this statement of this witness it cannot

be said that accused Matadin had absconded. If actually Matadin

was to abscond he would have done that after he was

interrogated by PW-14 S.I. Sanjeev Kumar in connection with the

murder of Hari Shankar and he would not have been found in his

house on 11.3.96 when he was arrested. We are, therefore, of

the view that this circumstance also cannot be said to have been

established beyond reasonable doubt.

18. The upshot of the foregoing conclusions arrived at by us in

respect of the various circumstances relied upon by the

prosecution for securing the conviction of accused Matadin is that

the prosecution has miserably failed to establish any of the

circumstances relied upon by it except that the deceased died a

homicidal death. But despite that he has been found guilty by the

trial Court. A reading of the impugned judgment of the trial Court

clearly shows that the learned trial Judge has based the

conviction relying upon the confessional statement of accused

Matadin and that is evident from the observations made by the

learned trial Judge in para no. 34 of the impugned judgment

which is being reproduced below:

"34. Accused Matadin after giving three different versions about the whereabouts of Hari Shankar when questioned by Sukhai himself disappeared and was traced by the police after few days when he made disclosure statement

disclosing how he killed Hari Shankar during a quarrel with him and how he caused the disappearance of the dead body. His disclosure statement proves his conduct."

We also find it quite shocking that despite the fact that

none of the witnesses had claimed in evidence that deceased Hari

Shankar was taken by accused Matadin on 5.3.96 from his house

for celebrating holi the learned trial Judge while recording the

statement of accused Matadin under Section 313 Cr.P.C. framed

a question to the effect that Matadin had himself gone to the

house of Hari Shankar and had taken him away after telling PW-9

Sukhai that they were going to Venkateshwar Rolling Mill to

celebrate holi. In our view, when this incriminating circumstance

was not available in the prosecution evidence the same could not

have been put to the accused.

19. We, therefore, have no hesitation in setting aside the