Delhi High Court

Mahesh Gupta vs State on 1 April, 2009

Author: Mool Chand Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Bail Appn. No. 2585/2008

%                                    Date of reserve: 20.03.2009
                                     Date of decision: 01.04.2009

       MAHESH GUPTA                                    ...PETITIONER
                                Through:     Mr. Prem Kumar, Mr. Nitesh
                                             Sawhney, Ms. Priya Bhatia, Adv.

                                          Versus

       STATE                                            ...RESPONDENT
                               Through:      Mr. Navin Sharma, APP

       CORAM:
       HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers may be allowed
       to see the judgment?                                               Yes
2.     To be referred to Reporter or not?                                 Yes

3.     Whether the judgment should be reported in the Digest?             Yes

MOOL CHAND GARG, J.

1. This order shall dispose of a bail application filed by the

petitioner under Section 439 Cr.P.C. who is facing trial in FIR

No.100/2008 under Section 365/302/201 IPC, P.S. Punjabi Bagh, West

District, Delhi. The petitioner is in judicial custody since 19.03.2008,

i.e., from the date of his arrest.

2. The case of the prosecution started with an FIR lodged by the

wife of the deceased on 13.03.2008 alleging that the whereabouts of

the deceased was not available since 09.03.2008 when the deceased

called his wife at about 4:30 pm.

3. On the basis of the statement made by the wife of the deceased

an FIR was registered under Section 365 IPC wherein the police added

the offences under Section 302/201/34 IPC despite the fact that the

dead body of the deceased has not yet been recovered, the petitioner

was arrested on 19.03.2008 without there being any direct evidence

about his involvement in the aforesaid case. It is his case of the

appellant that there is not even an iota of evidence collected by the

Investigating Officer which might show that either the accused

kidnapped or abducted Dr. Tipa Rapu Bhikshapati with intent to cause

him to be secretly and wrongfully confined or to kill him nor there is

anything to show that the deceased has actually died. It is submitted

that a bail application was filed before the learned ASJ who dismissed

the same without application of mind and made observations that the

guilt of the petitioner may be established by the circumstantial

evidence which have been narrated by him in in the following manner:

i) Recovery of three diaries of the deceased and the recording of statement of Sh. Sunil Kumar, driver of official car of the deceased to prove illicit relationship of deceased with Babita.

ii) Recovery of Scooty from Janak Puri Metro Station parking at the instance of accused Mahesh Gupta.

iii) Recovery of pant and shirt of the deceased from Hiran Kudna Road Nala at the instance of the petitioner and their identification by the wife of the deceased.

iv) Recovery of mobile phone and rings at the instance of co-

accused Neeraj Bindal, also identified by the wife of the deceased.

v) Call details made from mobile phone of accused and the victim showing that on 09.03.2008, three calls were exchanged on the mobile phones of accused and Dr. T.R. Bhikshapati. Two calls were made to the deceased from his mobile phone. Last call was made from the mobile phone of the deceased to accused Mahesh Gupta and deceased T.R. Bhiksha Pati was of Nangloi, where shop of accused is situated.

4. It is submitted that the recovery of three diaries of the deceased

and the statement of Sh. Sunil Kumar, driver of official car of the

deceased at the most goes to prove that the deceased had illicit

relationship with one Babita. It is also stated that recovery of scooty

from Janak Puri Metro Station which is a normal parking site neither

suggests nor prove the guilt of the petitioner for which he has been

charged.

5. As regards the recovery of pant and shirt of the deceased, it is

submitted that the pant and shirt so recovered does not contain any

blood stain and the same has only been identified by the wife of the

deceased without any judicial TIP or anyother evidence to corroborate

that the pant and shirt of the deceased was in fact left at the place

from where it has been recovered after committing anything wrong

with the deceased. More over such pant and shirt can always be

purchased from the market and could have been supplied by the wife

of the deceased at the time of their recovery. It is also submitted that

none of the recoveries affected by the prosecution have been

witnessed by independent witnesses.

6. It is also stated that in the absence of any charge of conspiracy

between the petitioner and his co-accused mere recovery of mobile

and two finger rings at the instance of the co-accused does not

connect the petitioner with the crime and therefore the petitioner is

entitled to bail.

7. The petitioner has also relied upon a judgment delivered by the

Supreme Court in Sattatiya @ Satish Rajanna Kartalia Vs. State of

Maharashtra 2008 (1) CC Cases (SC) 226 wherein on the basis of

similar circumstantial evidence, the Supreme Court held that no case

was made out against the accused who was also prosecuted on the

basis of the circumstantial evidence. Relevant observations made in

the said judgment are reproduced hereunder:

2. On 1.10.1994, PW1 Dr. Rasiklal Dwarkadas Dani, a resident of Pratap Building 173, Dadiseth Agyari Lane, Mumbai, telephonically informed Assistant Police Inspector (API), PW14 R.R. Gaekwad of Police Station Tilak Nagar that a man, who was later on, identified as Satish, was lying on the right side of the stairs of the building in a pool of blood. API Gaekwad reached the spot and removed that person to G.T. Hospital, where he was declared brought dead. PW14 recorded the information given by Dr. Dani as Ex.P6 and treated the same as FIR. He then handed over the investigation to PW13 Shamsherkhan Wazirkhan Pathan, who was acting as night Police Inspector at L.T. Marg Police Station. The latter prepared Panchnama of the dead body. From the papers found in the pocket of the clothes of the deceased, the police contacted his brother, PW3 Rajaiyya Pochyya Bandapalli on 1-10-1994 itself and recorded his statement. After two days, the appellant and one Devabhuma Badapatti were arrested. On the day of his arrest i.e. 3-10-1994, the appellant is said to have made a statement and then took the police to Room No.45 of the third floor of the building known as Ganesh Bhuvan Dadiseth Agyari Lane, Mumbai and got recovered his pant and shirt which were said to be having stains of blood. On 4-10-1994, the appellant was medically examined by PW10 Shiv Narain Daund, who found that the thumb and index finger of the appellants right hand had been injured sometime back. On the next day i.e., 5-10-1994, the appellant took the police to PW7 Mohd. Farid Abdul Gani, who claims to have sold the handkerchief, which was found near the body of the deceased. On 6-10-1994, the appellant is said to have given some more information to the police and got recovered half blade (marked as Article 7) which was lying under the wooden platform in front of Ganesh Bhuvan. The clothes of the deceased, the pant and shirt belonging to the appellant and blade were sent for chemical examination. As per the Chemical Examiners Report, the clothes of the deceased were having human blood of O group. The pant and shirt, allegedly recovered at the instance of the appellant also had blood stains, but it could not be established whether the same was human blood of O group. The stain on the blade was also said to be of human blood but its identity could not be established by the chemical examiner.

5. The motive of the crime, as projected by the prosecutions was that the appellant was having illicit relation with Lakshmi wife of the deceased and Devabhuma Badpatti was having animosity with the latter because of the alleged murder of his father. The prosecution relied on the circumstantial evidence of last scene, recovery of blood stained pant and shirt from Room No.45, Ganesh Bhuvan Building, blood stained half blade and handkerchief found near the body of the deceased to prove the appellants involvement in the crime.

27. On the basis of above discussion we held that the

prosecution failed to establish the chain of circumstances which could link the appellant with the crime. The learned Trial Court and the High Court committed a serious error by relying on the circumstantial evidence of last seen, the recovery of pant and shirt from Room No.45 of Ganesh Bhuvan building, half blade from under the wooden board and the sale of the handkerchief by PW7 to the appellant.

28. In the result the appeal is allowed. The judgment under appeal and the one of the Trial Court are set aside and the appellant is acquitted. He shall be released forthwith if not required in connection with any other offence.

8. The petition has been very strongly opposed by the learned APP.

According to him there are enough circumstances which connect the

petitioner with the crime. He also relied upon a judgment of the Apex

Court in Ramjee Rai & Ors. Vs. State of Bihar 2006 VII AD (SC) 481

where despite non-recovery of body, the conviction of the appellant

based upon circumstantial evidence was upheld. Some observations

made in that case are reproduced for the sake of reference:

31. In Lakshmi and Others v. State of U.P. [(2002) 7 SCC 198], this Court opined:

"Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death."

9. The aforesaid observations are referral in nature applicability

may defer upon the facts of each case. More so because it is not the

case of the prosecution that the murder of the deceased had taken

place on the basis of a conspiracy hatched between the petitioner and

Neeraj Bindal.

10. The recovery effected at the instance of the petitioner, namely,

two wheeler scooter from a parking space which is the normal parking

space in the area where the deceased was living is not a circumstance

sufficient enough to hold that the petitioner was guilty of committing

murder of the deceased.

11. No doubt while framing the charge, the learned trial Court has

taken a prima facie view of the matter and has not gone into the

sufficiency of the evidence of the prosecution but he has certainly

observed:

7. Admittedly, there is no direct evidence in this case. The case is based on circumstantial evidence. The prosecution is bound to establish the circumstances from which the conclusion is drawn, the circumstance should be conclusive in nature and the circumstances so established should be consistent only with the hypotheses of guilt and inconsistent with the innocence. In this case, the body of doctor has not been recovered. It is not at all necessary for a conviction for murder that the carpus delicit be found. Undoubtedly, in the absence of carpus delecti, there must be direct or circumstantial evidence leading to the inescapable conclusion that person had died and that the accused are the persons who committed the murder. In coming to this conclusion in the absence of direct evidence, the court can rely on inferential evidence.

12. As regards the recovery of clothes of the deceased allegedly

identified by his wife T. Sremati Devi, the ASJ also made an observation

that "No judicial TIP of colthes was conducted but as stated above, at

this stage the court cannot go into the probative value of the evidence

collected by the prosecution". While dealing with the recovery of

Scooty at the instance of the petitioner, the Court further observed

that "Mahesh Gupta had also got recovered the Scooty of the doctor

from the parking of Metro Station Janak Puri. The key of the Scooty

has not been recovered but the same cannot be regarded as

circumstances to disbelieve the recovery of Scooty at the instance of

accused Mahesh Gupta." Moreover there is also a contradiction about

the place of murder inasmuch as while as per the conventional