Delhi High Court

Dharmender Kumar vs State (Nct Of Delhi) on 15 April, 2009

Author: G. S. Sistani

              IN THE HIGH COURT OF DELHI AT NEW DELHI
+                               CrL. A. 742/2002

                                  Judgment delivered on 15th April, 2009.
#      Dharmender Kumar                      ....   Appellant
               Through      : Mr. Sudarshan Rajan, Adv.

                       Versus

       STATE (NCT OF DELHI)              .... Respondent
            Through   : Ms. Fizani Hussain, Adv. for the State.


CORAM:
       HON'BLE MR. JUSTICE B.N. CHATURVEDI
       HON'BLE MR. JUSTICE G.S.SISTANI

       1. Whether reporters of local papers may be allowed to see the
          Judgment ?                                YES
       2. To be referred to the Reporter or not?    YES
       3. Whether the Judgment should be reported in the Digest? YES

G.S. SISTANI, J.

1. This appeal has been filed against the Judgment dated 19.03.2002

and the Order on Sentence dated 26.03.2002, passed by the

learned Additional Sessions Judge, Delhi in the Session's case No.

62/99, FIR No. 715/98 of Police Station RK Puram. The Trial Court

had held the appellant, Dharmender Kumar, s/o Sh. Ram Manorath

Yadav, r/o village RZ- 385/315, Gali no. 6, Geetanjali Park,

Sagarpur, New Delhi, guilty of the offence under section 397 and

section 302 of the Indian Penal Code, 1860 (hereinafter, IPC). The

appellant was sentenced to Rigorous Imprisonment (hereinafter,

RI) for 10 years and a fine of Rs. 10,000/- and in default whereof

to a further RI for one (1) year under section 397 of the IPC. The

appellant was also sentenced to Imprisonment for Life with a fine

of Rs. 20,000/- under section 302 of the IPC and in default of the

payment of fine he was directed to undergo RI for a further period

of two years. The sentences were to run concurrently and the

appellant was also given the benefit of section 428 of the Code of

Criminal Procedure, 1973 (hereinafter, CrPC).

2. The facts of the case as noticed by the learned Trial Court, briefly

stated are. The appellant was working as an employee in the

capacity of a Petrol Pump Operator for filling petrol into the

vehicles at one of the petrol pumps, „Saran Motors Private Limited‟

at Bhikaji Cama Place. On the morning of 21.09.1998 at about

6:50 AM, Ashok Saran, PW 11 (Managing Director of the said

Petrol Pump) received a phone call from his employee Ram

Achebar, who was the morning shift-in charge, that the cash kept

inside the safe and drawer was missing and that the same had

been removed during the preceding night. PW 11 immediately

rushed to the spot and found that the safe and the drawer had

been opened by their keys and had not been broken open. PW 11

telephoned the police and the police reached the spot. It was

found that the rear window pane of the bathroom attached to the

office was broken. A report of theft was lodged with the police by

PW 1, Mrs. Madhulika Saran, w/o of PW 11. On the basis of this

report and the endorsement made by SI JP Singh, FIR was

registered about the theft. It was reported in the complaint that

an amount of Rs. 3,09,600/- had been missing. Since Phuman Ram

was the night duty cashier, persons were sent at Phuman Ram‟s

house and it was reported that he had not reached home and that

his relatives had also been searching for him. The relatives of

Phuman Ram lodged a report with the police about his missing on

21.09.2008. Since Phuman Ram had not returned home, the theft

at the said petrol pump and the missing of Phuman Ram appeared

to be interconnected.

3. On 22.09.1998 the body of Phuman Ram was found lying among

the dense bushes and grass growing behind the petrol pump. The

police was informed and a case regarding the murder of Phuman

Ram was registered. After the recovery of the body of Phuman

Ram, all the employees at the petrol pump were interrogated and

it is stated that during the interrogation one of the employees at

the said petrol pump i.e. appellant Dharmender confessed to have

committed the murder of Phuman Ram and the theft at the said

petrol pump. It is further stated that at the instance of the said

appellant, Dharmender cash was recovered from two polythene

bags dug out from the ground behind the petrol pump and a part

of the cash was also recovered from the house of the appellant.

The spanner used for opening drums and a torch were also

recovered at the instance of appellant, Dharmender from the

drum filled with water. The crime team had also lifted chance

prints from the bathroom glasses i.e. the place wherefrom the

entry was allegedly gained inside the premises and which

matched with the thumb impression of the appellant,

Dharmender. Furthermore, the post mortem report of Phuman

Ram revealed that he had died due to violent traumatic asphyxia

associated with suffocation from strangulation and a handkerchief

was found stuffed inside his mouth. Post trial, appellant,

Dharmender was held guilty of the offence under section 302 and

397 of the IPC.

4. The prosecution has examined a total of nineteen (19) witnesses.

However, no witness has been examined from the side of the

appellant. This Court considers it necessary to analyse the

evidence of material witnesses.

5. PW 1, Madhulika Saran, w/o Sh. Ashok Saran (PW 11 and Director

of the Petrol Pump) stated that on the morning of 21.09.1998, she

received information that robbery had been committed at the

petrol pump, M/s Saran Motors Private Limited and accordingly

she lodged a written complaint with the police.

6. PW 3, Jag Mohan Ram, an employee at the said Petrol Pump

deposed that on 20.09.1998, he was on duty at the petrol Pump

from 6 PM to 8 AM of the next morning. At about 11 PM he went to

sleep after locking the room of the petrol pump and kept the sale

proceeds of the day amounting to Rs. 29,100/- in the drawer of

the table of that room. PW 3 stated that he slept outside the room

along with one Rajender Prasad and when in the morning he went

to the store situated at the back side of the petrol pump to keep

his bedding, he found that denture of Phuman Ram was lying over

there. He picked up the denture and kept it on the table of the

drawer. Thereafter he found that the windowpane of the toilet,

which was adjoining the room, was broken. Then PW 3 deposed

that he and other employees went inside the room and found that

the cash which had been kept inside the drawer of the table was

missing. PW 3 thereafter deposed that since he did not have the

keys of the almirah so it could not be verified whether the amount

from the almirah had been missing or not. PW 3 further deposed

that he opened the almirah without the keys and found that the

cash was missing from the almirah/cash box. At that time Ram

Achebar, another employee at the petrol pump informed the

owner of the petrol pump about the robbery committed at the

petrol pump. PW 3 deposed to have informed the local police

about the said robbery. On 23.09.1998, PW 3 produced the

denture before the police and the same was seized vide memo EX.

PW 3/A. SI JP Singh also seized a bag from the back side of the

petrol pump and the same was seized vide memo Ex. PW 3/B,

however PW 3 after seeing the bag stated that he could not say if

the said bag is the same as which was seized by the police or not.

7. PW 3 in his cross-examination stated that his statement before

the police was recorded on 21.09.1998 and 23.09.1998. On the

night of 20.09.1998, besides him Rajender Prasad was on duty at

the petrol pump. PW-3 further deposed in his cross-examination

that he had told the police that the key of the almirah/cash box

was not with him and that he had opened the cash box without

the keys and found that the cash was missing from there. PW 3

was confronted with statement Ex.PW 3/DA where it is not so

recorded that the keys of the almirah were not available with him

or that thereafter PW 3 opened the almirah without the keys. PW

3 deposed that he did not know what cash was lying in the

almirah and that he was also not aware if any cash had been kept

inside the almirah on that day or the bundles of money had been

kept in the drawer or not. PW-3 further stated to have told the

police about the denture on 21.09.1998 but which was not seized

by the police.

8. PW 4, Hira Lal, s/o Sh. Madho Ram Yadav deposed that he had

been working at the said petrol pump and used to fill petrol in the

vehicles, collect money from the customers and hand over the

same to Phuman, who was the cashier at the said petrol pump.

The other persons also used to handover the cash to Phuman. PW

4 stated that after all the cash was collected, he used to prepare

the bundles of the cash, keep them inside the cash box and

handover the keys to Phuman. And further that he used to paste

the slips of Viijaya Bank and also used to sign the slips. PW 4

deposed that on 20.09.1998 he prepared the bundles of cash,

kept them inside the cash box, handed over the keys to Phuman

and went to his home. PW 4 further deposed that on 22.09.1998

he found the dead body of Phuman lying in the bushes at the back

side of the petrol pump. PW 4 after seeing Ex. PW 4/A1 to A 2B,

stated to have identified the slips pasted by him on the bundles of

currency notes and his signatures thereon.

9. PW 4 in his cross-examination by counsel for the appellant

deposed that he had given a statement before the police on

21.09.1998. And that he had not given any statement to the

police after the said date. PW 4 could not apprise about the sale

proceeds of 20.09.1998. He stated that he had prepared 8 to 10

bundles of currency notes on 20.09.1998 and the said bundles

were of the denomination of Rs.500/-, Rs.100/- and Rs.50/-, and

that he had also pasted the slips on the bundle of currency notes

of Rs.500/-. PW-4 thereafter deposed that it was correct that

there was no slip on the currency notes of Rs.500/- and that there

were no bundles of Rs.500/-. He further said that it was incorrect

to say that he had signed the slips Ex. PW4/A.21 to A.28, later on

at the instance of the police after the said bundles had been

brought back from Bank. PW 4 also said that it was correct to say

that the bank slip of Vijaya Bank is put by the Bank itself. And

thereafter voluntarily stated that he had brought the said slips

from the Bank for pasting them on the bundles but stated to not

remember as to when the said slips were brought by him from the

bank. He deposed that he along with Thakur Ram Lal had

identified the dead body of Phuman. And that he had jumped the

wall and seen the dead body of Phuman lying in the bushes near

the wall of the petrol pump.

10. PW 5, Thakur Ram Lal s/o Sh. Mahajan Ram stated that he was the

Manager at the said petrol pump and on receiving information

about the alleged theft at the petrol pump, he reached the petrol

pump and where the police had already arrived. PW 5 deposed

that Jagmohan and Ram Chebbar were the cashiers at the petrol

pump and that cash used to be kept inside a box which had two

keys. One of the keys was with Phuman Ram and the other key

was with him. PW 5 also stated to have brought before the police,

the attendance register and copy of the cash register. PW 5

thereafter deposed that on 22.09.1998 at about 1:30 PM, the dead

body of Phuman Ram was found lying at the back side of the

petrol pump. PW 5 deposed that the appellant, Dharmender was

also working as a helper at the petrol pump and he also saw the

dead body of Phuman Ram. Again said that the appellant,

Dharmender came there on 23.09.1998 and not on 22.09.1998

and the appellant, Dharmender pointed out the place where the

dead body was lying. Thereafter, the appellant took out two bags

from the earth and got recovered a sum of Rs. 2,41,100/-. PW 5

deposed that some of the currency notes which were recovered

vide memo Ex.PW-5/A, also bear his signature. There were slips of

Vijaya Bank on the said currency notes and which had been

signed by Jagmohan and Hira Lal. PW 5 also stated that one torch

and a bunch of keys were also recovered from the water drum at

the instance of appellant, Dharmender.

11. PW 5 in his cross-examination deposed that 20.09.1998, which

was a Sunday, he had not gone to his duty. PW-5 deposed that he

maintained the attendance and the cash register and that he does

not remember as to when did he hand over the two registers and

to which of the police officer. PW 5 further deposed that entries in

the cash register used to be made at one time after the time of

one shift was over. And that he had prepared the entries dated

19th, 20th, and 21st in the register and that he handed over them to

the police. The register was prepared by him after 23.09.1998. PW

5 stated that he had made the entries in the register on the basis

of meter readings produced before him but this witness could not

tell as to what was the meter reading. The Attendance Register by

this witness was also completed after 23.09.1998. He deposed

that the cash of sale proceeds used to be maintained by him and

he also used to count them. And he also used to deposit them in

the Bank. PW 5 deposed that Ram Achebar informed him on

telephone at his house on the night intervening 20/21.09.1998

that theft had been committed at the petrol pump. He received

telephone at about 7.00 AM in the morning of 21.09.1998. It is

further stated by him that the duty hours of Ram Achebar were

from 6.00 AM to 2.00 PM and that he (PW-5) reached at the petrol

pump at about 9.30 AM. This witness deposed that the son of a

Kabadi told him at about 1.00 pm that a dead body was lying in

the bushes. Hira Lal and Gopal Singh were also present at that

time. However, he did not go to inspect the dead body. On

22.9.1998 at 1:30 pm the police came, however, he did not inform

the police about the dead body.

12. PW-5 further deposed in his cross that the police came there when

the dead body was lying. From the bushes where the dead body

was lying, the police came at the petrol pump. One SI was

J.P.Singh but he did not remember the name and designation of

other police officials. PW-5 stated that he, Hira Lal and some

other employees of the petrol pump had gone with the police to

the place where the dead body was lying. It is stated that Gopal

Singh, Hira Lal and PW-5 identified the dead body. On

23.09.1998, the police came at the petrol pump at about 4.00 PM

and the appellant Dharmender was brought by the police. The

other employees of the petrol pump were called by the police in

the Police Station on 22.09.1998 and 23.09.1998 except S.K.

Sehgal and Satish. PW 5 also deposed that he did not remember

whether he had gone to the police station on 22.09.1998 and

23.09.1998 and that he and Heera Lal had joined the investigation

with the police on 23.09.1998 and from the petrol pump that they

went to the bushes from the back side of the petrol pump.

13. PW 5 stated that the distance between the petrol pump and the

bushes was about 140 yards. The appellant Dharmender was

ahead of the police officials and it was correct to say that mud

was sticking to the polythene bags. The polythene bags were

taken by the appellant from the left side of the place where the

dead body was lying. The said place was visible from a distance

of 6/7 yds, and there is a thoroughfare at about a distance of 8/10

yds. from the bushes. The appellant had dig the earth with his

hands. It is further stated that this witness, PW 5 "after seeing

the bundles of currency notes said that none of the bundle

bearing the signature of Jagmohan and on 3 bundles of Rs. 50/-

there was no signature of any one." PW 5 further deposed that it

was correct that when they take money to the bank, they fix the

slip of Saran Motors on the bundles of notes. PW 5 however could

not tell as to from which particular person were the slips collected.

14. PW 9, ASI Subash Chand deposed that on 21.09.1998, at the call

of Si J.P. Singh, he reached Saran Motors Ltd., and he was

accompanied by other members of the crime team. PW-9

deposed that from the scene of the crime, he was able to lift two

chance finger prints from the broken glass stand of the back side

of the window. HE prepared report and got sent the same to

finger print bureau.

15. PW 11, Ashok Saran, s/o Sh. Raghunandan Saran, r/o Flats No.

9/40-42, Janpath, New Delhi, is the managing director of the petrol

pump, Saran Motors Private Limited. PW 11 testified about the

information given to him on the morning of 21.09.1998 regarding

the theft at the petrol pump. He deposed that the appellant,

Dharmender was employed by him at the said petrol pump, and

further that Phuman Ram was the senior shift cashier at the petrol

pump. PW 11 stated that there were two sets of keys of the safe

and the drawer where cash used to be kept, one set of which was

with manager Thakur Ram Lal and the other was with the Shift

Cashier Phuman Ram. PW 11 deposed that on 23.09.1998, he was

told by the police personnel that Dharmender has been arrested

for theft and murder. The police brought Dharmender to the petrol

pump at 5 PM on 23.09.1998. The appellant Dharmender took

police persons to the spot where dead body was found and told

that he had thrown the dead body of Phuman Ram at that place

after murdering him and taken out the keys of the safe and

drawer. The appellant also told to the police that he had hid the

stolen amount under the earth nearby. The appellant thereafter

took the police to the place where he had buried the amount and

he removed the earth from a place and took out two plastic bags

containing bundles of notes and gave then to the police. PW-11

further deposed that "In one plastic bag there were 15 bundle of

100 rupee currency note each bundle of 100 notes. Each bundle

was having a stamp marked on it bearing our account number and

the name of the bank in which PW 11 had his account, i.e. the

Vijaya bank. The bank slip was found stapled on each bundle. The

date and signature of the preparation of bundle were also there

on each bundle. This was the practice which was adopted by our

company for preparing the cash for depositing with our bank and

the bundles so prepared were kept in the safe as they were to be

deposited in the bank on the next date..... After getting the

money recovered the appellant took the police to the rear side of

our store room and told that he had thrown torch and the metal

key used for opening the caps of oil drums into a barrel of water

which was kept there. The police emptied the barrel and took pout

the metal cap and torch. The torch was GEEP SHAKTI which was

being used by the petrol pump....Police sealed the key and the

torch in separate parcels and made seizure memo, which is

Ex.11/B, which bears my signature."

16. PW 11 further deposed that thereafter the appellant told the

police that he had hid part of the money in his house in Sagar Pur.

PW-11 went along with the police to the house of the appellant,

where the appellant went to the first floor room and took a set of

keys from the slab and opened an iron trunk lying in the corner of

the room. The appellant took out two bundles of notes from the

iron box/trunk and handed them over to the police. All the bundles

recovered at the instance of the appellant had bank slips and the

seal of the account number with the date of 28.09.1998. The keys

which the appellant had taken from Phuman Ram were also found

in the trunk and the appellant handed over these keys to the

police. These were 5 in number, two were of the safe, one was of

the drawer and the other keys were of two rooms of the petrol

pump. Police sealed the keys in a parcel and also sealed the

money recovered in a separate parcel. Seized Memo of the keys

and notes were also prepared as Ex.PW-11/C. A false denture of

14 teeth was also found by the employee Jagmohan Singh from

the staff dressing room and the same was handed over to the

police. This false denture was of Phuman Ram and the entire staff

new this fact. At this juncture of the examination-in-chief of PW

11, the lower Court has observed that the bundle of 100 currency

notes of either Rs.100/- or Rs.50/- denomination has the stamp of

Saran Motors Pvt. Ltd. and the date of 29.09.1998 and the

signature on the Bank slip is of Vijaya Bank.

17. PW 11 deposed in his cross-examination by learned counsel for

the appellant that he learnt about the dead body of Phuman Ram

being found behind the petrol pump in bushes around 2.00 PM

when he reached the petrol pump at the time of change of shift.

PW 11 thereafter voluntarily stated that the Bank slips of Vijaya

Bank on the bundle of notes used to be pasted not by the officials

of the bank but by him and his employees. He stated that they

always had a supply of slips from the Bank for this purpose and

the same was a common trade practice. The Bank slips used to

be picked up by the staff from the stack lying in the Bank and this

procedure had also been explained to the police.

18. PW 11 further deposed that the body was found around 10 to 12

feet behind the rear boundary wall of the petrol pump. There is

no thorough fare near the place of recovery of the dead body and

there is a dense growth of shrubs and grass there, such that the

place where the dead body was lying was not visible from the

main road. PW 11 however, could not tell as to what proceedings

were conducted by the police personnel standing there at the time

of recovery of the dead body. He deposed that the polythene

bags had soil which was removed and no soil was sticking to the

bag nor the police persons had taken any sample of the soil from

the polythene bag or the place from where polythene bags had

been recovered. PW 11 stated to have not told the police in his

statement that appellant Dharmender had stated that he had kept

a part of the money at his home. After the proceedings were over

at the petrol pump PW 11 accompanied the police to the house of

Ram Achebar where the appellant used to stay. However, PW 11

stated to not remember the date on which the appellant had

joined the service at the petrol pump. Thereafter PW 11 deposed

that he followed the gypsy of the police in his car and it took

about 20-25 minutes to reach the house of Ram Achebar in

Geetanjali Park, Sagarpur Area. PW 11 further deposed that the

police had not joined any person from the adjoining house in the

investigation at that time. He stated to not remember the number

of stories of the house but stated that the place where he went

was at first floor in that house. PW 11 could not tell the total

number of rooms on the first floor and stated to remember a

terrace and one room. There were some people inside the house

of Ram Achebar but PW 11 could not tell whether they were the

family members or not. However, Ram Achebar was not there.

The box in which the money was kept was around 2 x 3 feet and it

was kept on the left hand side, rear corner of the room and the

box was locked. The appellant took the key and opened the box.

PW 11 deposed that the keys which the appellant had taken from

Phuman Ram were also found in the trunk and the appellant

handed over these keys to the police. These were five in number,

two were of the safe, one was of the drawer and the two keys of

the rooms of the petrol pump.

19. PW 12, Dr. Chandra Kant had conducted post-mortem

examination on the body of Phuman Ram. According to him the

cause of death was "violent, traumatic ex axphysia associated

with suffocation from strangulation and handkerchief." He stated

that the approximate time since death was about 40 hours with a

variation of 4-6 hours on either side of the approximate time

determined.

20. PW 13, Constable Narender deposed that on 22.09.1998, he was

posted at PS RK Puram and was on his beat duty in the area of

Bhicaji Cama Place, when at around 1:20 PM he was informed by a

rag picker that a dead body was lying behind the petrol pump. PW

13 deposed that he went with the rag picker and saw that a dead

body had been lying. Thereafter PW 13 came to Saran Motors

petrol pump, made a telephonic call to the police station,

informed the duty officer about the discovery of a dead body and

after some time Sub Inspector JP Singh and Constable Mukesh

Kumar came to the spot.

21. PW 16, SI JP Singh, deposed that on 20.09.1998 he was posted at

PS RK Puram and was on night duty from 8 PM to 8 AM of the next

day. On receiving a complaint about an alleged theft at the petrol

pump, Saran Motors Private Limited, he immediately rushed to the

spot and where he was informed that the entire cash kept inside

the safe and the almirah had been missing. PW 16 deposed that

he found out that the glass pane of the window to the room had

been broken open, safe had been unlocked and drawer of the

table was also unlocked. PW 16 also stated that chance prints

were lifted from the broken window glass pane. Further PW 16

deposed that he seized one hand bag lying on the back side of the

gallery of the drum barrels, and which was given to him by

Jagmohan Bishst stating that this bag was lying inside the room

during the night and the bag was used to carry cash to the bank.

The said bag was seized vide seizure memo Ex.PW-3/B. PW 16

also deposed that the appellant, Dharmender took the police

personnel to the first floor of a house; there was no lock in the

room and there was a slab made on the wall, the appellant took

the key from the slab, opened the box which was lying on the floor

and got recovered the money which was seized by the police

personnel.

22. PW 18, Inspector Harish Kumar deposed that on 20.09.1998 he

was working as the SHO at PS RK Puram and that on 22.09.1998,

at about 1:30 PM he received information from constable,

Narender that a dead body had been lying near a petrol pump in

Bhicaji Cama Place. PW 18 deposed that he inspected the dead

body and found it to be of a man around the age of 50 years.

Thereafter PW 18 enquired from the surrounding area and found

that the body was of Phuman Ram, an employee at the abovesaid

petrol pump. PW 18 deposed that on his interrogation of the

employees (which continued till the next day) at the petrol pump,

he felt suspicious about the answers of Dharmender as to his

whereabouts and activities on the date of 19th and 20th September

and thus he deputed his staff to verify whether the appellant was

telling the truth or not. Thereafter PW 18 stated that he went for

the post mortem of the body and where he received a telephone

in the hospital that Dharmender has confessed about the

commission of the crime. PW 18 returned to the police station and

where the appellant disclosed to PW 18 that he could get the

money recovered which he had robbed and also the spanner used

by him in the commission of the crime. The appellant thereafter

led to a place behind the petrol pump and pointed out the place

where the money had been concealed by him and which place

was near the place from where the dead body was found. The

appellant then took out two polythene bags containing money

from under the earth after removing loose soil from above them.

The money was counted and it was found that one bag contained

Rs.1.5 lakh and the other bag contained Rs. 93,100/- and "the

packs of the currency notes containing 100 notes of either 100 or

Rs. 50/- were having slips of Vijaya Bank with stamp of Saran

Motors with signature and date." All the notes which the appellant

had got recovered by digging out the soil were seized by PW 18.

Thereafter the appellant led the police party to the store room

behind the petrol pump and pointed towards the drum filled with

water, stating that the torch and the drum opening spanner had

been thrown inside the drum. The water inside the drum was

thrown out and the torch and spanner were recovered from there.

The employee of the petrol pump, Mr. Jagmohan Ram handed over

one denture set of Phuman Ram which he told that he had found

in the changing room on 21.09.1998 and which was seized vide

memo Ex.PW-3/A. The appellant then disclosed that the rest of the

money was in the house at Getanjali Park, Sagar Pur in Gali No.6.

The appellant took them to his house at the first floor and in his

room he pointed out towards a trunk which was locked. The

appellant took keys from the shelf and opened the trunk. It had

clothes in the upper layers and the appellant took out one pack of

Rs. 500 denomination note and one pack of Rs. 100 denomination

and one bunch of key containing five keys. The notes were having

slips of Vijaya Bank and the stamp of Saran Motors. The notes and

the bunch of keys were seized. These keys were of the safe of the

petrol pump.

23. PW 18 deposed in his cross-examination by learned counsel for

the appellant that when he was in the mortuary he received

information on the telephone that the appellant Dharmender had

confessed. PW 18 deposed that this fact is even mentioned in the

Case Diary and further that the confessional statement of the

appellant was recorded by him. Thereafter PW 18 deposed that

he did not call any public witness at the time of the recording of

the disclosure statement. Ex. PW 3/A was written by J.P. Singh

under his instructions. PW 18 also stated that Bhikaji Cama Place

is a shopping complex and there are several shops there and that

no person was made a witness from any of the shops.

24. PW 18 further deposed that it was wrong to say that it was

raining on 23.09.1998. PW-18 deposed that the money which was

recovered from the appellant was taken out by him from "under

the just adjoining rear wall of the petrol pump. There was no mud

[that] had stuck to the polythene bag. The loose earth left the

polythene bag, the moment they were shaken. I did not seize the

loose earth removed by the appellant or the loose earth fallen

from the polythene bag. The size of the polythene bag may be

around 12 inches to 10 inches." PW 18 stated that the distance

between Bhikaji Cama Place and Sagar Pur may be around 25

kms, and that he along with J.P. Singh and one Constable and a

driver had gone with the appellant to Sagar Pur. He deposed that

he did not remember whether there were any other rooms on the

first floor of the house. He did not associate any one from that

area or that house in the seizure. The iron trunk may be around 2

x 3 feet. The shelf from where the keys of the trunk were taken

was easily visible. PW 18, however, did not send the keys

recovered from the house of the appellant to the forensic expert.

PW 18 also stated that the appellant had during interrogation told

them that the appellant had slept in his brother-in-laws house on

the night of 20.09.1998 and when PW 18 asked his Sub-Inspector

to take the appellant to the said house of the brother-in-law then

while on the way towards the brother-in-laws house, the appellant

confessed to have committed the crime and requested that he

should not be taken to his brother-in-laws house.

25. PW 19, ASI Avdhesh Kumar, Finger Print Expert deposed that he

received two chance prints mark lifted from the scene of the crime

and also specimen finger print slip of the appellant, Dharmender.

On comparison, it was found that the chance prints were identical

with the right thumb impression of the appellant, Dharmender.

26. The appellant, Dharmender was arrested by the police on

23.09.1998 for theft at the petrol pump and the murder of

Phuman Ram.

27. Learned counsel for the appellant submits that the case of the

prosecution is baseless and is nothing short of a fictional story and

that the entire case of the prosecution is based on surmises and

conjectures. There are several discrepancies in the case of the

prosecution and the appellant has been unnecessarily dragged

into the picture and further that he has been falsely implicated.

28. It is next contended by counsel for the appellant that as per the

case of the prosecution the appellant committed murder of

Phuman Ram in the evening of 20.09.1998. However as per the

evidence of PW 12, doctor, the time of his death was about 40

hours from the time of post mortem with a maximum variation of

4-6 hours. According to the material placed on record, the post

mortem commenced at about 2:30 PM on 23.09.1998 and thus

this would mean that the time of death was around 10:30 PM on

21.09.1998 whereas in fact the prosecution claims that the death

took place on 20.09.1998. Thus there is a discrepancy of more

than 26 hours and which anomaly has not been explained by the

prosecution and is fatal to the case of the prosecution. In support

of his argument the learned defence counsel has relied upon the

case of Thangavelu v. State of Tamil Nadu1; Moti v. State of

UP2 and the case of Bharat v. State of MP3.

29. Learned counsel for the appellant further submits that the alleged

recovery of money from the spot where the dead body was lying,

is doubtful, firstly because the same defies human conduct, as no

person of ordinary prudence would ever bury the money in the

vicinity of the dead body. Secondly, there is a discrepancy

between the actual number of bundles prepared on 20.09.1998 by

the employees of the petrol pump station and the actual number

of bundles allegedly recovered. According to PW 4 Hira Lal the

number of bundles prepared on 20.09.1998 were 8-10, however,

the number of bundles alleged to have been recovered from the

spot were as many as twenty eight (28). Thirdly, the bundles had

the slips of Vijaya Bank and which is a strong indication that they

were withdrawn from the bank and planted. Furthermore nobody

was examined from the Vijaya Bank to prove that the slips were

actually of Vijaya Bank or that it was a practice at Vijaya Bank

where they allowed their clients to paste their slips on their own.

Fourthly, tampering of the case property cannot be ruled out in

view of the fact that in as much as a bundle of Rs. 500/- was

missing from the case property when PW 4, Hira Lal was examined

and that PW 5 has admitted that there were no signatures on

some bundles and which proves that there was tampering. Fifthly,

JT 2002 (5) SC 429.

2003 CrLJ 1694.

(2003) 3 SCC 106.

there is a discrepancy in ocular evidence. PW 5 has stated that

both Jagmohan Singh and Hira Lal had signed the bank slips but

the slips did not have the sign of Jagmohan Singh. Even the

bundles had not been put to Jagmohan Singh to prove that the

bundles were the same which were signed by both of them.

Sixthly, since it had been raining on the day of recovery of money,

mud ought to have stuck to the polythene bag allegedly recovered

from the earth as contrary to the evidence of PW 11 that no mud

was sticking to the polythene bag. Thus all the above factors show

that the prosecution had planted the money.

30. The learned counsel for the appellnat further argues that mere

recovery of money or articles is not sufficient to connect the

appellant to the murder. In support of this argument the counsel

has relied upon the case of Gautam Maroit Umale v. State of

Maharashtra4; U.T. of Goa v. Bea Ventura D'souza5; and

Surjit Singh and another v. State of Punjab6.

31. The learned counsel also argues that there is no medical

evidence which connects the appellant with the injury to the

deceased. Also that there is no medical or expert evidence to

connect the injury on the person of the deceased and the weapon

of offence. In support the counsel relies on the case of Mohinder

Singh v. State7 and Dwarkadas Gehanmal v. State of

(1994) Supp 3 SCC 326.

1993 (Supp) 3 SCC 305.

AIR 1994 SC 110.

1950 SCR 821.

Gujarat8.

32. The learned counsel for the appellant also submits that the

alleged recovery of money from the house of the appellant cannot

be relied upon in the light of the fact that the house from where

the recovery was effected was not locked. Further as per the

prosecution, the box in which the money had been kept, though

locked, yet the keys were placed next to the door, and which

implies that the same was accessible to all. The counsel submits

that the IO had stated that the shelf from where the keys of the

trunk were taken, was easily visible. The counsel for the appellant

argues that the above conduct of the appellant as described by

the prosecution defies human logic. The counsel further argues

that there were two sets of keys and one set of key was

admittedly with PW 5, Thakur Ram Lal and the other set of key

was with Jagmohan Singh (with reference to deposition of PW 4

and 11.) This implies that Phuman Ram never had the keys of the

safe on the relevant date and thus, the appellant could not have

taken the keys from Phuman Ram as alleged by the prosecution.

Also no independent witness was attached to the recovery. And

that Ram Achebar was not examined although as per the

prosecution case he was the first person to inform the petrol

pump owners about the theft and was also the person in whose

house recoveries were made. Thus, the prosecution has failed to

examine a material witness who could also have been an accused.

(1999) 1 SCC 57.

33. The learned counsel for the appellant further submits that there

is no reason for the fact that chance prints were not taken of the

safe and the drawer and which were the most important places.

Further since the appellant was an employee of the petrol pump,

there was every possibility that the prints of the appellant were

available on the glass window. The counsel has in support relied

upon the case of Kuldeep Singh v. State9. The learned counsel

argues that there are no details as to how and when the specimen

prints of the appellant were taken and has in this regard relied

upon the case of Sanjay Thakur v. State of NCT of Delhi10.

The counsel also argues that not using scientific methods in lifting

the chance prints goes to discredit the case of the prosecution

and in support where of reliance has been placed by him on the

case of Ayyappan v. State of Kerala11. Thus learned counsel

contends that no legal significance can be attached to the alleged

recovery of the chance prints.

34. The learned counsel for the appellant has also argued that there

are material alterations in the Employment and Remuneration

changed from 22 hours to 20 hours so as to suit the prosecution‟s

story. And further that Phuman Ram was never the cashier at the

petrol pump whereas the PW‟s have stated him to be a cashier. As

per PW 5, Jagmohan and Ram Achebar were the cashiers as the

(2003) 12 SCC 528.

2007 (4) JCC 2709.

2005 CrLJ 57.

seizure memo also says that Jagmohan was the Cashier.

35. The learned counsel argues that a suspicion is cast on the case of

the prosecution as the denture of Phuman Ram was not seized on

the date of the incident but on 23.09.1998 which is after the

recovery of the dead body. And also that the recovery of torch is

unbelievable as it is inconceivable that instead of using the torch

in the night to locate the route, the appellant threw it away in the

petrol pump itself.

36. The learned counsel has submitted that the case of the

prosecution is based on circumstantial evidence and the

circumstances of „last seen‟ are conspicuously missing in the

present case and that the prosecution has failed to link the chain

of events and further failed to show any link between the alleged

theft and the murder on one side and the appellant, Dharmender

on the other side. The learned counsel has argued that no case is

proved against the appellant, Dharmender and that his appeal is

liable to succeed.

37. Per contra, the learned counsel for the State has supported the

judgment of the Trial Court indicting the appellant, and has

argued that the prosecution has been able to prove its case

beyond any shadow of doubt. The learned counsel for the State

has submitted before this Court that the reason for not showing

the spanner (used for strangulation) to the doctor was that the

spanner had been sent for forensic examination.

38. We have heard learned counsel for the parties; scrutinized the

evidence on record as well as the impugned judgment.

39. In this case, it is not in dispute that a theft took place at the

petrol pump, Saran Motors Private Limited at Bhikaji Cama Place

and that a body was found behind the said petrol pump and was

identified to be that of Phuman Ram (an employee at the said

petrol pump). The learned Additional Sessions Judge has come to

the conclusion that the appellant (Dharmender, who is also an

employee at the said petrol pump) committed theft and murder of

Phuman Ram at the petrol pump, and the learned Judge has based

his conclusion on the entire chain of events; the disclosure

statement made by the appellant which led to the alleged

recovery of stolen amount buried in the soil; recovery of keys from

the house of the appellant which he is alleged to have removed

from the pocket of Phuman Ram, recovery of part of money from

his house; and also recovery of a spanner and a torch which

according to the prosecution was used as a weapon of offence.

40. In a case, based on circumstantial evidence, in order to sustain

the conviction, the evidence must be complete and form a

complete chain incapable of any explanation. The Court must

satisfy itself that the chain of circumstances are complete and the

surrounding circumstances fully establish the guilt of the

accused/appellant. The law with regard to conviction on the basis

of circumstantial evidence has been discussed in detail by the

Supreme Court of India in the case of Harishchandra Ladaku

Thange Vs. State of Maharashtra, reported at AIR 2007 SC

2957. It would be useful to reproduce the relevant paras:

"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh V. State of Rajasthan (AIR 1977 SC 1063), Eradu V. State of Hyderabad (AIR 1956 SC 31), Earaohadrappa V. State of Karnataka (AIR 1983 SC 446), State of U.P. V. Sukhbasi & Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir Singh V. State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chaterjee V. State of M.P. (AIR 1989 SC 1890)). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram V. State of Punjab (AIR 1954 SC 621) it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

11. We may also make a reference to a decision of this Court in C. Chenga Reddy & Ors. V. State of A.P. (1996 (10) SCC 193), wherein it has been observed thus:

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

(emphasis supplied)

12. In Padala Veera Reddy V. State of A.P. (AIR 1990 SC

79) it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

13. In State of U.P. v. Ashok Kumar Srivastava (1992 Crl. LJ 1104) it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

14. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

16. In Hanuman Govind Nargundkar and another V. State of M.P., (AIR 1952 SC 343) it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the fact so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. the circumstances should be of a conclusive nature and tendency;

4. they should exclude every possible hypothesis except the one to be proved; and

5. there must be a chain of evidence so complete as not to leave any reasonable ground for the

conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

41. In the case before us, learned counsel for the appellant has

submitted that there is a serious discrepancy with respect to the

time of death of Phuman Ram. A careful analysis of the material

on record would show that as per the version of PW-12, Dr.

Chandra Kant, Forensic Evidence, Safdarjung Hospital, Delhi, the

death of Phuman Ram took place approx. 40 (forty) hours before

conducting the post mortem examination. He deposed, "On

23.9.98 I conducted the post-mortem examination on the body of

Sh. Phuman Ram....... I gave approximate time since death about

40 hours..... My report is Ex. PW12/A which is in my handwriting

and bears my signature. ..... There is always a variation of 4-6

hours on both sides in the approximate time determined. ..... The

variation error cannot be more then 4 to 6 hours on both sides." It

is pertinent to note that the application (Ex. PW 10/A) by Sh.

Harish Kumar, Inspector, for post mortem examination of Phuman

Ram was received by one Sh. Padam Singh on 23.09.1998 at 2:30

pm. Taking this time of 2:30 pm as the base period when post

mortem was conducted, it is observed that if the opinion of PW-12,

Doctor is taken into account, it would emerge that the death of

Phuman Ram occurred at around 10:30 pm on 21.09.1998. And if

the error variant of 6 hrs. is added, then it would mean that the

death took place at around 4:30 pm on 21.09.1998. Where as, per

the prosecution, the death of Phuman Ram took place in the

evening of 20.09.1998. Clearly, the version of PW-12 totally

negatives the stand taken by the prosecution. And thus points a

gaping hole in the case of the prosecution. Reliance be placed

herein upon the case of Thangavelu v. State of T.N. reported

at (2002) 6 SCC 498, wherein it was held:

"5. ....... From the evidence of PW 5, the doctor, we find that there is a possibility that the incident in question might have occurred about 39 hours prior to the post-mortem. Though in the examination-in-chief, PW 5 has stated that the time between the death and post-mortem could be 16 to 24 hours, which fits in with the prosecution case, in the cross- examination he has very clearly stated that in this case death would have been caused about 39 hours before the post-mortem, which would be sometime after 5.30 p.m. on 15-12-1990. This the doctor has stated by taking into consideration the time and month of the incident as also the time required for the setting of rigor mortis and passing off of the same. According to the doctor, in the month of December in a place like Erode the rigor mortis may set in after about 2 to 3 hours after the death. He has stated that for the rigor mortis to reach from the leg to the head, it would take 12 hours and the same would remain in existence for about another 12 hours. Thereafter, it would gradually diminish in the reverse direction i.e. from head to leg taking about another 12 hours and on this basis when he examined the body of the deceased, he found the rigor mortis had reversed almost to the end of the legs. By this process he came to the conclusion that the death in question must have occurred about 39 hours before post- mortem. Though the prosecution has re-examined this witness on other points, not a single question is put to this witness in regard to this part of his evidence. Since there is no cross-examination on this point and there being no other material to hold that the evidence of the doctor is either not scientific or contrary to known medical information, we have to conclude that there is a strong possibility that the death of D-1 and D-2 could have occurred much prior to 1.30 p.m. on 16-12-1990. If this doubt of ours is reasonable then the prosecution case should fall to the ground straight away. ............."

42. Since the Medical evidence completely belies the case set by the

prosecution, in order to satisfy ourselves further, we deem it

appropriate to analyse other material aspects of the case as well

and verify whether they point out against the appellant or confirm

his innocence.

43. PW-3 in his examination-in-chief deposed that at about 11 pm, he

went to sleep after locking the room of the petrol pump and kept

the sale proceeds of the day amounting to Rs. 29,100/- in the

drawer of the table of that room. However, in his cross-

examination PW-3 deposed that he did not know and was not

aware if the bundles of money had been kept in the drawer or not.

No explanation has been given by the prosecution for this sudden

u-turn by PW-3. Further as per the evidence of PW-5, Thakur Ram

Lal, cashiers at the said petrol pump were Jagmohan and Ram

Achebar. However if the version of PW-11, Ashok Saran is to be

believed then Phuman Ram was the shift cashier. Thus there are

several contradictions in the evidence of prosecution witnesses.

44. Further, as per the evidence of PW-5, Thakur Ram Lal, on

22.09.98 at about 1:30 pm, the dead body of Phuman was found

lying on the back side of the petrol pump. He further deposed that

the appellant, Dharmender also came there and saw the dead

body of Phuman. After saying this, PW-5 corrected and improved

his version and stated that the appellant came there on 23.09.98

and not on 22.09.98, and the appellant pointed out the place

where the dead body was lying. Thereafter, the appellant took out

two polythene bags after digging out earth and the said polythene

bags were found to contain Rs.2,41,100/-.

45. As per the evidence of PW-11, Ashok Saran, the appellant took

the police persons to the spot and stated that he had thrown the

dead body of Phuman Ram at the pointed place after murdering

him and also that he had stolen the amount and buried it nearby.

He took the police to the place where he had buried the amount,

removed the earth from the place and took out two plastic bags

containing bundles of notes and gave them to the police. PW-11

has also deposed that the appellant had led the police to the rear

side of the store room where he had thrown the spanner and torch

into the barrel of water kept there, which were seized in his

presence. PW-11 also accompanied the police to the house of the

appellant at First Floor, Sagar Pur and took the set of keys from

the mantelpiece/slab and opened the iron trunk lying at the corner

of the room and took out bundles of notes and handed them over

to the police. PW-11 further deposed that the keys which the

appellant had taken from Phuman Ram were also found in the

trunk.

46. According to PW-16, SI J.P. Singh, he had received information

about theft at the petrol pump at about 7.40 am on 21.09.1998.

On the next day i.e. 22.09.1998, he was handed over DD Entry 18-

A about the recovery of a dead body from behind the petrol pump.

According to PW-16, the appellant led the police behind the petrol

pump near the place where the dead body was found and

informed about the place where the money was hidden under the

earth and by removing the soil, got recovered two polythene bags

containing currency notes. According to this witness, the appellant

then led the police party to his house at first floor in Sagarpur, and

took the keys from the slab on the wall, opened the box lying on

the floor and took out the currency notes. The currency notes and

bunch of keys were seized by the police. Similar evidence has

been given by PW-18, Inspector Harish Kumar.

47. In the facts and circumstances of this case, we find the

recoveries, sought to have been made at the instance of the

appellant, are highly improbable and doubtful. In case, the money

was buried by the appellant under the earth behind the petrol

pump, it completely defies the logic as to why would he throw the

dead body in the vicinity where the money was buried. Sooner or

later, the dead body would have been recovered and upon such

recovery, the money would also have been recovered.

Furthermore, the room on the first floor in Sagarpur, from where

the part of the money was recovered, was admittedly open. If the

version of the prosecutions is to be believed, not only was the

room open but the keys of the trunk in which the money had been

allegedly kept, were also placed on a mantelpiece/slab in full

visibility of one and all. There would absolutely be no reason for

the appellant to leave his room open and then to keep the keys of

his trunk on the slab, in his absence. And also, there was no

reason for him to store the keys of the safe of the petrol pump,

alleged to have been taken from Phuman Ram, after murdering

him, in the same very trunk where the stolen money had been

kept. In any case, the bunch of keys was of no use once the

offence had been committed. Thus in our considered opinion the

recovery of money is highly doubtful. Other facts which also

create a doubt about the veracity of the recoveries is that, PW-5

deposed in his examination-in-chief that slips of Vijaya bank had

been pasted on the currency notes that were recovered from near

the body of Phuman Ram and they had been signed by Jagmohan

and Hira Lal. However, during his cross-examination by learned

counsel for the appellant, the said bundles of currency were

brought in Court and PW-5 was proven wrong as the stated

bundles did not bear the signatures of Jagmohan and on three

bundles of Rs. 50/- there was no signature of anyone.

Furthermore, as per the evidence of PW-11, all the bundles

recovered at the instance of the appellant from the house at

Sagarpur, had been prepared with bank slips and seal of the

account number, and were having the date of 28.09.1998. We

cannot comprehend as to how do the currency notes recovered

from the house at Sagarpur, bear the date of 28.09.1998, when

allegedly they were stolen on the night of 20/21.09.1998. In our

considered opinion, this fact goes to the root of the matter and

creates a serious doubt in our mind as to the trustworthiness of

the recoveries.

48. According to PW-4, Hira Lal, the number of bundles prepared on

20.09.1998 were 8 to 10, however, the number of bundles alleged

to have been recovered from the spot were 28. It has been

strongly urged before us by counsel for the appellant that the

bundles which had the slips of Vijaya Bank on them, were

withdrawn from the bank. We do not wish to comment on the

same, however, the prosecution has not examined any witness

from the Vijaya Bank to prove that the slips on these bundles were

actually of Vijaya Bank and that there was a practice that the

Bank could hand over the official bank slips to their clients, who

would paste them on their own before depositing them in the

Bank. Even otherwise the currency notes are signed by the

officials of the Bank, in support of the fact that the currency has

been counted and the official slip and seal of the bank and

signatures are appended in token of a certificate with respect to

the correctness of the amount. On the contrary, to say that the

slips were signed by the persons working in the petrol pump,

seems to be only a device adopted to enable the witnesses to

identify the money. In view of several material discrepancies in

the alleged recovery of money effected at the behest of the

appellant, we do not find the same to connect the appellant to the

murder. Thus, to convict the appellant solely on the basis of the

alleged recoveries made upon his disclosure statement, would not

be possible in the circumstances of this case.

49. Further it has also been alleged that a spanner and a torch had

been recovered at the instance of the appellant. It would be of

considerable effect to note that a spanner is a tool that is normally

used for tightening of nuts and bolts. Where as, in this case, as

per the medical reports, the death of Phuman Ram occurred

because of "ex-physia associated with suffocation from

strangulation and handkerchief." In the case of Dwarkadas

Gehanmal Vs. State of Gujarat reported at (1999) 1 SCC 57,

it was held:

"As regards the axe and the hoe which were recovered at the instance of the appellant, those could not be connected with the crime in question. In these circumstances, we are unable to hold that the prosecution has conclusively established any nexus of these recovered articles with the present crime."

50. Thus, herein also the prosecution having failed to prove and there

is no medical evidence which connects the appellant with the

injury on the person of the deceased (Phuman Ram). Neither is

there any medical or expert evidence to connect the injury on the

deceased with the alleged weapon of offence.

51. It may further be noticed that PW-5 in his cross-examination by

learned counsel for the appellant, deposed that he used to

maintain the attendance and the cash register. The entries in the

said registers were taken down after the timing of one shift was

over. PW-5 deposed, "[t]he entries in the cash register used to

make at one time after the timing of one shift was over. I have

prepared the entries of register dt. 19.20 and 21.09.98 which I

handed over to the police." It was further stated by PW-5 that

"[t]he register was prepared by me after 23.09.98. ..... The

attendance register was also completed by me after 23.09.98." In

our considered opinion, there is a serious anomaly in this,

inasmuch as PW-5 is contradicting his own statements. On the one

hand he states that the register used to be updated as soon as

the shifts were over, on the other hand he has deposed that the

entries dated 19/20/21.09.98 were prepared by him after

23.09.1998. Even otherwise also, there is no justification for the

fact that admittedly, the registers were prepared post 23.09.1998.

52. It is also of significance to note that amendments have been

found to be made in the „Register of Employment and

Remuneration‟ for the month of September, 1998 with respect to

Phuman Ram. As per the said register, the normal working hours

for Phuman Ram were 2 pm to 10 pm. However, for the date of

20.09.1998, it seems that a deliberate attempt has been made to

show his working hours from 2 pm to 8 pm only, in asmuch as, the

timings originally written have been over run by pen once again.

The prosecution has been unable to show that there was no

deliberate attempt to change the timings so as to suit their case.

53. The prosecution has also failed to bring forth any explanation for

not arraying Ram Achebar as a prosecution witness in view of the

fact that it was Ram Achebar who had informed both PW-5

(Thakur Ram Lal, the Manager of the petrol pump) and PW-11

(Ashok Saran, the MD of the petrol pump), about the alleged theft

having taken place. Non-arraying of Ram Achebar who was a

material witness, certainly defies logic more so in view of the fact

that the alleged recovery of money, at the instance of the

appellant, was made from a house in Sagarpur which as per PW

11, Ashok Saran, was the house of Ram Achebar.

54. Furthermore, it is not mandatory but only a rule of prudence that

a public witness should be associated at the time of recovery.

However, in the facts and circumstances of this case wherein a

complaint regarding robbery and murder of the employee of a

petrol pump had been lodged with the police, it should have been

expedient on the part of the investigating authorities to associate

independent public witnesses at the time of alleged recoveries

made upon the disclosure statement of the appellant. However,

we find that in this case, no public witness was associated at any

point of time. In the case of Mohan Singh v. State of

Haryana, (1995) 3 SCC 192 it was observed by the Apex

Court that:

"From the evidence of PW 6 and PW 7 it does not appear that they made any effort whatsoever to call any public witness or railway officials working in the booking office while taking the search of the appellant and recovery of pistol in that process. No explanation is forthcoming for not joining any independent witness. Baljit Singh, PW 7, however, preferred to pick up Hira Lal, PW 5 who is nobody but a mobile sweet vendor. According to the prosecution Hira Lal happened to be there when the appellant was apprehended at that particular time when search of his person was made and the country-made pistol is said to have been recovered. In these facts and circumstances when the police officials deliberately avoided to join any public witness or railway officials though available at the time when the appellant was apprehended the evidence of Hira Lal who is nobody but a chance witness and the evidence of police officials PW 6 and PW 7 has to be closely scrutinised with certain amount of care and caution."

55. In this case, PW-11 has deposed in his cross-examination that the

police had not joined any person form the adjoining house in the

investigation at that time. He further stated to not remember the

number of stories of the house or the total number of rooms on

the first floor. PW-11 further deposed that there were some people

inside the house of Ram Achebar but PW 11 could not tell whether

they were the family members or not. Inspite of the fact that

admittedly, a large number of people were present at the time of

alleged recovery of money from the house, no effort was made by

the investigating authorities to join any person as a public

witness. Similarly, Bhicaji Cama Place being a highly populated

area, still no effort was made nor any public witness asked to join

at the time of recovery of money found buried near the dead body

of Phuman Ram nor at the time of recovery of spanner and torch.

56. It would also be useful to take into consideration the observations

made by the Hon'ble Supreme Court of India as far back as in the

year 1957 in the case of Swarn Singh Ratan Singh Vs. State

of Punjab, AIR 1957 SC 637 that in criminal cases mere

suspicion, however, strong, cannot take place of proof. The court

must also take into consideration that an accused is presumed to

be innocent till charges against him are proved beyond

reasonable doubt. Mere suspicion, however, strong it may be,

cannot take the place of legal proof.

57. Further, as a final court of facts, the High Court is entitled to re-

appraise the evidence and arrive at its own independent

conclusion as to the guilt or innocence of the accused. This Court

must thus be satisfied that the case of the prosecution is

substantially true and that the guilt of the appellant has been

established beyond reasonable doubt. It is only when the

prosecution has proved its case beyond reasonable doubt that

conviction cannot be disturbed in appeal. It will be useful to

reproduce the observations of the Hon'ble Supreme Court in the

case of Kali Ram Vs. State of Himachal Pradesh reported at

AIR 1973 SC 2773 which are as follows :

"Another Golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.

Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public

interest and that of the individual accused. The conflict in this respect, however is more apparent than real.

It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether.

58. In the facts and circumstance of this case, wherein the Medical

evidence negatives the case set up by the prosecution in so far as

the time of death of Phuman Ram is concerned; the recovery of

money at the behest of the appellant is doubtful; no independent

public witness was joined at the time of the recovery of money; no

official from Vijaya Bank has been examined so as to prove that it

was a routine practice wherein the Bank used to give away their

official slips to their clients so that they could paste them

themselves; material contradictions in the evidence of prosecution

witnesses; amendments in the Employment Register has not been

explained to this Court; the alleged weapon of offence (spanner)

has not been linked to the cause of injury of the deceased

(Phuman Ram); Ram Achebar, a material witness has not been

arrayed as a witness, thus, we find the case not being proved

beyond doubt against the appellant, Dharmender. Consequently,

the Judgment dated 19.03.2002 and the Order on Sentence dated

26.03.2002, passed by the learned Additional Sessions Judge,

Delhi in the Session's case No. 62/99, FIR No. 715/98 of Police

Station RK Puram, are liable to be set aside.