Mahesh Chand vs State
2009 Latest Caselaw 3228 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision: 18th August, 2009

+                            CRL.APPEAL NO.160/2001

       MAHESH CHAND                                 ..... Appellant
               Through:             Mr.M.L.Yadav, Advocate

                                    versus

       STATE                                      ..... Respondent
                         Through:   Ms.Richa Kapoor, APP


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

       1.     Whether the Reporters of local papers may be
              allowed to see the judgment?

       2.     To be referred to the Reporter or not?                Yes

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

PRADEEP NANDRAJOG, J. (ORAL)

1. Summarizing the incriminating circumstances

against the appellant, the learned Trial Judge has held as

under:-

"15. So far as Mahesh is concerned I find over- whelming evidence to convict him for the offence of murder. In the first place his clothes were stained with the blood of the deceased of Group „B‟. He got recovered the knife which he had hidden under the table in factory at 16, Satnam Park in which he was working as Chowkidar. The blood stains on the knife matched with that of the deceased. He also got recovered the pair of shoes belonging to the deceased which was thrown on to the roof. He also identified the place where the dead body was thrown and the place where the murder was committed. The cot

which the accused Mahesh got recovered had stains of blood which he identified by the CFSL Laboratory as that of „B‟ group which is that of the deceased. In my opinion, this circumstantial evidence is entirely in- consistent with innocence. In my opinion, further, the evidence collected and proved is sufficient to convict accused Mahesh for murder. I, therefore, find him guilty of the offence punishable under Section 302 of the Indian Penal Code. There is no evidence of conspiracy. He is acquitted of the offence of 120-B of the Indian Penal Code."

2. Vide impugned judgment and order dated

20.1.2001, concluding in para 15 as afore-noted, the

appellant has been convicted for the offence of having

murdered the deceased Nand Lal. Co-accused Raj Rani and

Radhey Shyam have been acquitted.

3. It all commenced when on 5.12.1990 information

was received at the local police station that a gunny bag

was lying on a service lane near house No.26/1, Ram Nagar

Extension, Delhi. The information was noted vide DD No.26-

A.

4. SI Amar Singh PW-14 accompanied by two police

constables reached the spot and on opening the gunny bag

found the dead body of a male which was wrapped in a

sheet. He seized the sheet and the gunny bag as recorded

in the memo Ex.PW-1/A and immediately sent the

information at the local police station. This information was

conveyed by SI Amar Singh by making an endorsement

Ex.PW-14/A beneath copy of DD No.26-A. FIR Ex.PW-11/B

was registered and Inspector Mahender Singh PW-17, the

SHO at the police station proceeded to the spot.

5. Local people which included the co-accused Raj

Rani had gathered and Raj Rani identified the dead body as

that of her husband Nand Lal. Inspector Mahender Singh

went to the house of Raj Rani the same day i.e. on

5.12.1990. As deposed to by him, Inspector Mahender

Singh was told by the minor children of Nand Lal that blood

stained pant Ex.P-15 and shirt Ex.P-16 belonged to

appellant Mahesh. These clothes were kept for washing.

This aroused his suspicion. He interrogated Raj Rani who

broke down and confessed to have conspired along with the

appellant and co-accused Radhey Shyam to murder her

husband. She confessed of having illicit relations with the

appellant. She apparently told about the involvement of co-

accused Radhey Shyam. The appellant and co-accused

Radhey Shyam were apprehended and appellant made a

disclosure statement Ex.PW-7/B admitting his guilt and

stated that the deceased was killed when he was lying on a

cot in factory of Harbans Lal PW-5 which was at 16 Satnam

Park, Krishan Nagar. He disclosed that he had hidden the

knife with which the deceased was killed in the said factory

and volunteered to get recovered the knife used by him to

kill Nand Lal. He disclosed that the shoes of Nand Lal were

thrown by him at the roof of factory of Harbans Lal PW-5.

He led the investigating officer to the factory of PW-5 i.e. at

16 Satnam Park, Krishan Nagar and from under the table of

the press man, hidden beneath a blanket, got recovered a

spring operated knife Ex.P-19 in respect whereof the

pointing out-cum-seizure memo Ex.PW-5/A was drawn. He

pointed out the cot Ex.P-22 on which the deceased was

stated to have been killed which was found to be stained

with blood and was seized. The pointing out-cum-seizure

memo Ex.PW-5/C was drawn pertaining to the cot. The pair

of shoes Ex.P-2 were got recovered from the roof and seized

as per seizure memo Ex.PW-5/D.

6. The knife, cot, shoes got recovered by the

appellant as also the clothes which were seized from the

house of Raj Rani were opined to be stained with human

blood of group „B‟ i.e. the blood group of the deceased as

per report Ex.PW-17/B of the serologist.

7. This then is the complete evidence against the

appellant. We note that Raj Rani has been acquitted on the

ground that the prosecution has not proved any affair

between her and the appellant. The only incriminating

evidence against her being the recovery of the pant and the

shirt of the appellant from her house which were stained

with human blood of group „B‟ i.e. the blood group of the

deceased was held to be insufficient evidence to hold that

she was a conspirator.

8. Co-accused Radhey Shyam has been acquitted

because a watch got recovered by him and alleged to be

belonging to the deceased was opined to be a watch of

ordinary make and nobody proved at the trial that the said

watch belonged to Radhey Shyam.

9. The incriminating evidence against the appellant,

listed in para 15 of the impugned decision are five in

number, being:-

(i) The pant Ex.P-15 and the shirt Ex.P-16 belonging to

the appellant were stained with the blood of the

deceased.

(ii) The knife Ex.P-15 got recovered by the appellant was

stained with the blood of the deceased.

(iii) The pair of shoes Ex.P-2 belonging to the deceased

got recovered by the appellant were stained with the

blood of the deceased.

(iv) The appellant identified the place where the dead

body of the deceased was thrown.

(v) The appellant identified the place where the deceased

was killed and from said place the cot Ex.P-22 was

recovered and was stained with the blood of the

deceased.

10. The first incriminating circumstance found by the

learned Trial Judge is on the belief that the shirt Ex.P-16 and

the pant Ex.P-15 recovered by the investigating officer from

the house of Raj Rani belonged to the appellant. We have

repeatedly asked the learned counsel for the State as to

whether there is any evidence to prove that the shirt and

the pant belonged to the appellant for the reason the two

were not recovered pursuant to any disclosure statement

made by the appellant nor was the recovery at the instance

of the appellant. Learned counsel could point out to us the

testimony of the investigating officer who deposed that

children of Raj Rani told her that the shirt and the pant

belonged to the appellant. The children of Raj Rani have

not been examined as witnesses. Obviously, the

investigating officer has deposed a fact told to him by

somebody else and thus said evidence is hearsay. It is

inadmissible evidence. Thus, the first incriminating

evidence held established by the learned Trial Judge is on a

misappreciation of evidence.

11. The fourth incriminating circumstance held

established by the learned Trial Judge i.e. the appellant

identifying the place where the dead body of the deceased

was thrown, is based on the ignorance of the fact that the

dead body of the deceased was recovered much prior to the

arrest of the appellant and the place where it was thrown

was thus obviously known to the police. The police taking

the appellant to the same spot is neither admissible in

evidence under Section 27 of the Evidence Act as no new

fact got discovered. It is also not a relevant fact under

Section 8 of the Evidence Act for the reason the alleged

pointing out by the appellant cannot relate to conduct as

there is no guarantee that the police, which knew the spot

where the dead body was recovered, itself took the

appellant to the said spot.

12. That leaves two incriminating circumstances i.e.

recovery of the knife, the cot and the shoes of the deceased

at the instance of the appellant and all three being found to

be stained with human blood of group „B‟ i.e. the blood

group of the deceased.

13. Pertaining to the shoes, there is no evidence that

the same belonged to the deceased. The confessional

statement of the appellant made to the police pertaining to

the shoes as those of the deceased are not saved by

Section 27 of the Evidence Act.

14. Is the chain of circumstances complete with

reference to the recovery of the knife and the cot at the

instance of the appellant to sustain a finding of guilt?

15. It is settled law that in a case of circumstantial

evidence the chain of circumstances found incriminating

should be complete where from a rational mind would

unhesitatingly reach the conclusion that the accused is

guilty and the possibility of his being innocent is ruled out.

16. As held in the decision reported as JT 2008 (1) SC

191 Mani vs State of Tamil Nadu (para 21) discovery of

common objects is a weak kind of evidence and conviction

in a serious matter like murder cannot be based solely upon

the discovery of common objects. The common objects

referred to by the Supreme Court were blood-stained

clothes and blood-stained weapon of offence i.e. a koduval

recovered at the instance of the accused.

17. In the decision reported as Narsinbhai Haribhai

Prajapati v Chhatrasinh & Ors AIR 1977 SC 1753 the

Supreme Court had held that in the absence of any other

evidence the circumstances of seizure of blood stained shirt

and dhoti from the person of an accused and dharias from

the houses of the accused are wholly insufficient to sustain

the charge of murder against the accused.

18. In the decision reported as Surjit Singh v State of

Punjab AIR 1994 SC 110 a watch belonging to the deceased

and one dagger which was found to be stained with human

blood were recovered at the instance of the accused. It was

held by the Supreme Court that said recovery by itself, does

not connect the accused person with the murder of the

deceased. It was further held that said circumstance may

create some suspicion but the same cannot take the place

of proof.

19. In the decision reported as Deva Singh v State of

Rajasthan 1999 CriLJ 265 Supreme Court had held that

merely because a knife is alleged to have been recovered at

the instance of the accused would not lead to a conclusion

that the accused was the perpetrator of the crime of the

murder.

20. In the decision reported as Prabhoo v State of

U.P. AIR 1963 SC 1113 a kulhari, a shirt and a dhoti which

were found to be stained with human blood were recovered

from the house of the accused, at his instance. Holding that

it is well settled that circumstantial evidence must be such

as to lead to a conclusion which on any reasonable

hypothesis is consistent only with the guilt of the accused

and not with his innocence and that from the mere

production of the blood stained articles by the accused, one

cannot come to the conclusion that the accused committed

the murder inasmuch as the fact of production cannot be

said to be consistent only with guilt of the accused and

inconsistent with his innocence, for the reason it is quite

possible that someone else committed the murder and kept

the blood stained articles in the house of the accused and

that the accused might have produced the said articles

when interrogated by the police, the Supreme Court

acquitted the accused. We conclude by holding, taking

guidance from the afore-noted decisions of the Supreme

Court, that the chain of incriminating circumstances is not

complete wherefrom the guilt of the appellant can be

inferred.

21. The appeal is allowed. Impugned judgment and

order dated 20.1.2001 convicting the appellant is set aside.

The appellant is acquitted from the charge of having

murdered Nand Lal.

22. The appellant is on bail. The bail bond and the

surety bond furnished by the appellant are discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 18, 2009 dharmender