Delhi High Court
Ram Babu @ Raja vs State on 21 August, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: July 2, 2009
Judgment Pronounced on: August 21, 2009
+ CRL. APPEAL NO.890/2008
RAM BABU @RAJA ...Appellant.
Through : Mr.Mukesh Jain, Advocate.
VERSUS
STATE ...Respondent
Through : Mr.Pawan Sharma, APP.
CRL. APPEAL NO.923/2008
ULHAS ...Appellant.
Through : Mr.Mukesh Jain, Advocate.
VERSUS
STATE ...RESPONDENT
Through : Mr.Pawan Sharma, 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.
1. Case set up by the prosecution against four
accused, Ram Babu, Ulhas, Shakuntala and Sanjay is that
Shakuntala was the widowed sister-in-law of the deceased (the
person murdered) and was residing in a separate portion of
the same house in which the deceased was residing; namely,
House No.RZA-95, Gali No.3, Sita Pur- II, Delhi. Accused Ram
Babu was a tenant under Shakuntala and had developed illicit
relations with her. This was not to the liking of Radhey Gupta
who used to object to the same. Besides, Shakuntala and
Radhey Gupta had a dispute pertaining to the property in
which they were residing. This motivated Shakuntala to
murder Radhey Gupta and to give effect to her intention she
and Ram Babu sought the help of accused Sanjay and Ulhas to
murder Radhey Gupta. In furtherance of their conspiracy, Ram
Babu enticed the deceased to a room taken on rent by Ram
Babu in Dabri Extension, where with the help of Sanjay and
Ulhas, the deceased was strangulated to death with a nylon
rope. The body was put inside a gunny bag which was tied
with a nylon rope and was thrown at an abandoned spot in a
DDA park Todar Pur Road.
2. The process of law was set into motion when at
around 7:00 AM on 15.6.2004, Const.Vinod PW-10, was
informed by somebody that a gunny bag containing something
was lying at a kachcha raasta leading to village Dasghada.
Const.Vinod informed said fact to the duty officer PS Inderpuri
who noted the same vide DD No.7A, Ex.PW-12/A. ASI
Raghuvar Dyal PW-12 was entrusted with the job of
investigating and copy of DD No.7A was handed over to him.
Accompanied by Const.Ram Phool PW-9, he reached the place,
which happened to be a DDA park on Todar Pur Road and saw
a gunny bag with mouth tied with a red colour nylon rope. He
untied the bag and found a dead body of a man wearing black
pants and a white vest. ASI Raghuvar Dyal made an
endorsement Ex.PW-12/B under copy of the DD entry and sent
Const.Ram Phool PW-9 to the police station for registration of
an FIR. At the police station SI Asha PW-19 registered the FIR
Ex.PW-19/A for the offence of murder.
3. Since ASI Raghuvar Dyal had called a photographer
to be deputed at the site, Karan Singh PW-15, a photographer
by profession reached and took 13 photographs Ex.PW-12/1 to
Ex.PW-12/13 of the place where the gunny bag containing the
body was found. It may be noted that the photographs Ex.PW-
12/7 and Ex.PW-12/12 show a nylon rope next to the gunny
bag and the body.
4. Since it was a prima facie case of murder, Inspector
M.C.Katoch PW-22, the SHO of PS Inderpuri was informed
about the dead body being found. Even he reached the spot.
He prepared the rough site plan Ex.PW-22/A of the place where
the dead body was found. The red coloured nylon rope Ex.P-7
with which the mouth of the gunny bag was tied, a red shirt
Ex.P-8 recovered from the gunny bag along with the gunny
bag Ex.P-9 were seized as recorded in the memo Ex.PW-7/A.
5. The body was seized and was sent to the mortuary
of Safdarjung Hospital for post-mortem. Information about the
dead body being found was sent to the 'Missing Person PCR'.
The body was preserved in the mortuary of Safdarjung
Hospital since it was not identified.
6. Radhey Gupta had left his house at around 2:30 PM
on 14.6.2004 and did not return home. His son Satish Gupta
PW-3, lodged a 'missing person report' on 16.6.2004 at around
9:30 PM at PS Dabri, the police station within jurisdiction
whereof the house in which Radhey Gupta resided was
situated. The report was registered vide DD No.60-B, Ex.PW-
3/B. Relevant would it be to note that in the report Satish
Gupta stated that when his father left the house he was
wearing a black pant and a white vest.
7. Pertaining to the dead body of a man which was
found as afore-noted in the morning of 15.6.2004, no progress
could be made pertaining to the identity of the body or the
manner in which as also as to who committed the crime, till
19.6.2004. During this period, Inspector M.C.Katoch PW-22
scrutinized the missing persons' information and with
reference to the description of Radhey Gupta as disclosed in
the missing persons' report found that the description therein
matched that of the dead body which was found in the
morning of 15.6.2004. Satish Gupta PW-3, the person who had
lodged the report Ex.PW-3/B, pertaining to his father being
missing, was contacted. He identified the dead body of his
father. His statement Ex.PW-3/DA under Section 161 Cr.P.C.
was recorded wherein he stated that his father Radhey Gupta
left the house on 14.6.2004 around 2:30 PM in the company of
Ram Babu who was a tenant of his aunt Shakuntala, and had
not returned since then. He further stated that Shakuntala
used to quarrel with his father in respect of the house in which
the two families resided.
8. Obviously, in view the afore-noted statement, the
needle of suspicion pointed towards Ram Babu and efforts
were made to trace him.
9. Since the body was identified by Satish Gupta PW-3
as that of Radhey Gupta, the same was sent for post-mortem.
On 20.6.2004, at 11:15 AM, Dr.Chander Kant PW-11 conducted
the post-mortem and prepared the post-mortem report Ex.PW-
11/A in which he noted that on external examination of the
body he found ligature marks and abrasion injuries on the
body. Ligature marks were caused by material like rope. He
opined that the cause of death was strangulation by ligatures
associated with manual strangulation. He further opined that
the time since death was about 5½ days prior to the date on
which the post-mortem was conducted i.e. the intervening
night of 14/15.6.2004 or morning of 15.6.2004. After the post-
mortem, Dr.Chander Kant handed over the clothes of the
deceased, the sample of blood of the deceased and the
sample of scalp hair of the deceased to Inspector M.C.Katoch,
who seized the same as recorded in memo Ex.PW-9/A.
10. On 27.6.2004 at 1:40 PM, Inspector M.C.Katoch
arrested accused Ram Babu from red light, Shastri Park,
Seelam Pur in the presence of SI Anil Kumar PW-21. Ram Babu
had a bag with him which was searched and yielded a
photograph Ex.PW-21/D of his and co-accused Shakuntala and
her daughter. The bag and the photograph were seized as
recorded in the memo Ex.PW-21/E. Inspector M.C.Katoch
interrogated Ram Babu and recorded his statement Ex.PW-
21/A.
11. Eschewing reference to the confessional part of the
statement Ex.PW-21/A and relevant for purposes of the case, it
may be noted that after admitting to the commission of the
crime with Sanjay as co-accused, Ram Babu stated that he
could point the shop from which he purchased the gunny bag
in which the body of Radhey Gupta was thrown and that the
rope and a wood piece with which the deceased was
strangulated were hidden by him and he could get the same
recovered. Thereafter, Ram Babu led the police party to
House No.RZ-82 Dabri Extension and got recovered a red
nylon rope Ex.P-4, an empty bottle of whiskey Ex.P-6 and a
wooden plank Ex.P-5 from inside the house. Inspector
M.C.Katoch seized the said articles as recorded in memo
Ex.PW-5/A, which was witnessed by Mahender PW-5 and SI
Amar Pal PW-7.
12. Ulhas was arrested the same day from house No.D-
131 Vrindapuri because Ram Babu disclosed his whereabouts.
Inspector M.C.Katoch interrogated Ulhas and recorded his
statement Ex.PW-21/B. Eschewing reference to the
confessional content of the statement of Ulhas, it may be
noted that he disclosed that a purse Ex.P-2 belonging to the
deceased was with him and that the same had a photograph of
the deceased and a telephone bill in the name of the
deceased. He told that he had hidden the purse inside the
taand (loft) in his house. He climbed up to the taand and
produced the purse Ex.P-2 which contained a photograph of
the deceased and a telephone bill in the name of the
deceased, which were seized as recorded in the memo Ex.PW-
22/G. Thereafter, Ulhas led Inspector M.C.Katoch to the place
where the dead body of Radhey Gupta was recovered and as
recorded in the pointing out memo Ex.PW-21/G pointed out the
same. He thereafter led Inspector M.C.Katoch to House No.RZ-
82, Khasra No.27/15 Dabri Main Extension i.e. the house from
where Ram Babu had already got recovered a piece of nylon
rope, a piece of stick and a bottle of whisky and pointed out
the same to be the place where the deceased was
strangulated.
13. Both Ram Babu and Ulhas, then led the police team
to H.No.RZA-95, Sita Puri, where accused Shakuntala was
arrested. Inspector M.C.Katoch interrogated her and recorded
her disclosure statement Ex.PW-21/C. However, nothing
incriminating was recovered at her behest.
14. On 29.6.2004, accused Ram Babu pointed out a
shop at RZA-119, Sitapuri Part II, wherefrom he claimed to
have purchased the gunny bag in which the body of Radhey
Gupta was thrown. The pointing out memo Ex.PW-2/A was
prepared by Inspector M.C.Katoch and bears the signatures of
SI Anil Kumar and Arjun PW-2, the owner of the shop. On the
same day, Ulhas pointed out a shop at RZ-34 Mohan Block,
West Sagarpur, wherefrom he claimed to have purchased the
red nylon rope used in the crime. Inspector M.C.Katoch
prepared the pointing out memo Ex.PW-6/A which was
witnessed by SI Anil Kumar and Shri R.K.Tiwari PW-6, the
owner of the shop.
15. A Test Identification of the purse Ex.P-2 was
conducted before a Magistrate and as recorded in the
proceedings Ex.PW-22/H, Satish PW-3, the son of the deceased
identified the same correctly.
16. Accused Sanjay remained untraceable till 26.9.2004
when SI Girdhari Lal arrested him from his native village Raj
Mandir, District Maharaj Ganj. A wrist watch Ex.P-1 from his
person was seized as recorded in the memo Ex.PW-23/B. Test
Identification Proceedings pertaining to the watch conducted
before a Metropolitan Magistrate were conducted and as
recorded in the TIP proceedings Ex.PW-22/I, Satish PW-3,
correctly identified the watch as that of his father.
17. The nylon rope with which the mouth of the gunny
bag in which the body of the deceased was recovered as also
the nylon rope recovered at the instance of accused Ram Babu
were sent for expert opinion and as per report Ex.PW-22/J the
analyst opined that the two pieces of rope were made of nylon
and were similar in respect of colour, texture, design,
thickness, number of strands, twist, number of fibres in each
strands and in their microscopic appearance.
18. The appellants as also Sanjay and Shakuntala were
sent to trial for offences punishable under Section 302/120-
B/201 IPC.
19. At the trial, the prosecution examined twenty four
witnesses. For the sake of brevity, we eschew reference to the
formal and procedural witnesses. Reference is being made
only to the testimonies of those witnesses who are relevant for
the purposes of proving or disproving the guilt of the accused.
20. Jagdish PW-13 deposed that on a particular date
which he fails to remember, at about 2:30 PM deceased
Radhey Gupta, Ram Babu and brother-in-law of Ram Babu
visited him at his grocery shop at 99, Gali No.2, Dabri. From
the shop, Radhey Gupta went to his house and returned with a
water bottle and thereafter left with Ram Babu and his
brother-in-law. He identified Ram Babu and Sanjay as those
accompanying Radhey Gupta on that day. Being declared
hostile and on cross-examination by the learned APP he
confirmed that the date was 14.6.2004.
21. It is apparent that through the testimony of Jagdish
PW-13, the prosecution attempted to prove that the deceased
was last seen alive in the company of the appellants on
14.6.2004, the day the deceased went missing.
22. Satish Gupta PW-3, deposed that the deceased was
his father and that he used to reside with his father and his
sister in the first floor of H.No.RZA-95, Sita Puri Part II, Gali No.
3. The ground floor of the said premises was in possession of
his aunt Shakuntala (Chachi). Accused Ram Babu was a
tenant under Shakuntala. On 14.6.2004, at about 2:30 PM,
when his father was leaving for somewhere, Ram Babu took a
lift from him, i.e. Radhey Gupta, to be dropped to the railway
station. His father did not return home for two days thereafter,
and subsequently he lodged a missing persons' report.
Accused Shakuntala used to quarrel with his father and
threaten him to leave the house or else she would get him
killed. In cross-examination, he stated that the house was
jointly owned by his late Uncle Amar Singh (husband of
Shakuntala) and his father and that after the death of this
uncle, Shakuntala used to fight over the property.
23. Indra Wati PW-4, deposed that deceased Radhey
Gupta was her husband and she used to reside with her family
at Sita Puri on the first floor of the premises in which accused
Shakuntala used to reside on the ground floor. Shakuntala is
her sister-in-law and after the death of the husband of
Shakuntala, she was keen to sell the property in which they
resided. Ram Babu was a tenant under Shakuntala. He was
having illicit relations with Shakuntala and had married her.
Deceased Radhey Gupta used to admonish Shakuntala for this
reason and this often led to quarrels between Shakuntala and
Radhey Gupta. Shakuntala used to threaten that she would
get Radhey Gupta killed.
24. Arjun PW-2, deposed that Ulhas and Ram Babu had
purchased oil, soap and a gunny bag from him and told him
that they were purchasing the gunny bag to take utensils to
their village. 14 - 15 days later, police brought Ulhas and Ram
Babu to his shop and that the pointing out memo Ex.PW-2/A
was witnessed by him. On being cross-examined, Arjun stated
that he could not tell the exact date when Ulhas and Ram
Babu purchased the gunny bag from him.
25. We may note at this stage that the gunny bag Ex.P-
9 was not shown to Arjun and hence he did not speak a word
about the same.
26. Inspector M.C.Katoch PW-22 deposed that on
15.6.2004 he took over the investigation of the case pertaining
to DD No.7A regarding a gunny bag lying on a street. He
reached the spot and saw a dead body in a gunny bag. He
summoned a photographer who took photographs Ex.PW-12/1
to Ex.PW-12/13. He removed the dead body from the gunny
bag and recovered a maroon coloured shirt from the bag. He
prepared the site plan Ex.PW-22/A of the spot. He seized the
nylon rope (which was used to tie the mouth of the gunny
bag); the gunny bag and the maroon shirt recovered from the
said gunny bag as noted in the memo Ex.PW-7/A. He enquired
from the people present at the spot regarding the identity of
the body but no one could identify it. On 19.6.2004, while
scrutinizing the missing persons' information he learnt that
one Radhey Gupta was missing since 14.6.2004 and therefore
contacted his son Satish Gupta. Satish Gupta identified the
body as that of his father. The body was then sent for post-
mortem. He recorded the statement of Satish Gupta. On
27.6.2004 accused Ram Babu was arrested from the red light,
Shastri Park, Seelampur at 1:40 PM. He interrogated the
accused and recorded his disclosure statement. The accused
led the police team to RZ-82, Dabri Extension which was
locked. After the arrival of crime team the lock of the room
was broken and a piece of nylon rope Ex.P-4, a bottle of whisky
Ex.P-6 and a wooden plank Ex.P-5 were recovered and seized.
Thereafter, at the instance of accused Ram Babu, accused
Ulhas was arrested and his room was searched. A purse Ex.P-
2 belonging to the deceased was recovered from his
possession. The two accused Ram Babu and Ulhas then led to
the arrest of Shakuntala from her house.
27. On being cross examined by the counsel for the
accused, Inspector M.C.Katoch PW-22, stated that when Ram
Babu led the police team to RZ-82, Dabri Extension, a public
witness Mahender accompanied them. The owner of said plot
i.e. RZ-82 Dabri Extension could not be traced. An old lady
present there informed him that the land was a disputed
property. He stated that he does not remember as to what
efforts he made to trace the owner of said plot. The crime
team had reached at 5:30 PM and consisted of three persons
whose names he does not know. The photographs taken by
the crime team could not be developed as the reel got
washed. The lock was broken with the help of a stone. The
place was a lonely place, it was a plot situated in a residential
area. There was no cot in the room. He does not remember
whether the room had any windows or not. The finger print
expert of the crime team informed him that no chance prints
were found on the articles which were seized.
28. SI Amar Pal Singh PW-7 deposed that on 15.6.2004,
he joined the investigation of the case with Inspector
M.C.Katoch. On reaching the spot, they saw a gunny bag from
which a dead body was recovered. The spot was got
photographed. The gunny bag along with a nylon rope with
which the gunny bag was tied and a brown shirt recovered
from the gunny bag were seized vide Memo Ex.PW-7/A. SHO
prepared a site plan.
29. SI Anil Kumar PW-21 deposed that he joined the
investigation of this case on 20.6.2004 when the dead body
was sent for post-mortem. On 27.6.2004, SHO M.C.Katoch, SI
Amar Pal Singh, Const. Manju and he i.e. SI Anil Kumar met a
secret informer who informed about the whereabouts of
accused Ram Babu. Accused Ram Babu was arrested and on
interrogation disclosed about the conspiracy between
Shakuntala, Ulhas, Sanjay and him to kill Radhey Gupta. From
his personal search a bag containing a photograph of accused
Ram Babu with co-accused Shakuntala and her daughter was
recovered. Then the accused led them to a dairy at Mangal
Bazaar, near Dabri where a public witness Mahender joined
them. From there they went to RZ-82, Khasra No. 27, Dabri
main. There was a room which was locked. They summoned
the crime team and in presence of crime team the lock was
broken and from the room Ram Babu got a nylon rope and a
wooden plank recovered. The spot and the articles were
photographed. Thereafter at the instance of Ram Babu
accused Ulhas was also arrested from D-131 Bindapur, and his
disclosure statement was also recorded. In pursuance of his
disclosure statement Ulhas got recovered a wallet belonging to
the deceased. Subsequently, accused Shakuntala was also
arrested. He i.e. SI Anil Kumar witnessed the pointing out of
the place of occurrence by the accused and the pointing out of
the shops from where the gunny bag and nylon rope
respectively were purchased by them. In his cross-examination
he stated that he did not remember the number of persons in
the crime team. He did not remember as to who broke open
the lock of the room in Dabri Extension. He could not tell as to
how many houses were there in front of the house of Ram
Babu. He stated that no public persons were present when the
lock was broken. He could not tell as to how many windows
and gates were there in the room. He could not tell the
dimensions of the room but stated that there was no cot in the
room. He denied that the recoveries were planted.
30. R.K.Tiwari PW-6 deposed that he sells paint and
sanitary ware but denied having sold any nylon rope to the
appellants. It is obvious that R.K.Tiwari is a hostile witness.
31. Mahender PW-5 the witness to the recoveries as
recorded in the memo Ex.PW-5/A i.e. the recovery of the rope
Ex.P-4, the piece of wood Ex.P-5 and the whisky bottle Ex.P-6
from House No.RZ-82, Khasra No.27/15, Dabri Main Extension
also turned hostile and denied any recovery in his presence
but admitted his thumb impression on the memo Ex.PW-5/A.
He claimed that he was apprehended and taken to the police
station where his thumb impression was obtained.
32. Vide impugned judgment and order dated
23.8.2008, the learned Trial Judge has held that qua accused
Shakuntala only incriminating evidence was of a motive and
that save and except the inadmissible evidence pertaining to
confessions made before the police, there was no evidence of
her being involved in the crime. Thus, Shakuntala has been
acquitted. Acquitting accused Sanjay against whom the
incriminating evidence led pertained to the recovery of the
wrist watch Ex.P-1 and it being identified by Satish PW-3, as
minuted in the TIP proceedings Ex.PW-22/I, as the watch of the
deceased and the evidence of being last seen in the company
of the deceased along with co-accused Ram Babu as also the
inadmissible confessional evidence. Giving benefit of doubt,
the learned Trial Judge has held that the watch Ex.P-1 was of
an ordinary make and there was no distinctness in the same,
meaning thereby anyone could possess the same. Pertaining
to the testimony of Jagdish PW-13 who was the witness of last
seen, the learned Trial Judge noted that in his statement
recorded under Section 161 Cr.P.C. Jagdish had not given the
name of Sanjay. Thus, the learned Trial Judge has held that it
would not be prudent to accept that part of the testimony of
Jagdish wherein he inculpated Sanjay.
33. The appellants have been convicted. Ram Babu
has been convicted on the ground that he was last seen in the
company of the deceased by Jagdish PW-13 on 14.6.2004 at
about 2:30 PM and that this was the time of the day when the
deceased was last seen alive. It has further been held that the
rope Ex.P-4 recovered from House No.RZ-82, Dabri Extension
being similar to the rope Ex.P-7 as per the expert opinion
Ex.PW-22/J showed that the two pieces of rope pertain to the
same long piece of rope and hence proved the involvement of
Ram Babu in the crime. The learned Trial Judge has further
held that the testimony of Arjun PW-2 evidence that a gunny
bag was sold by him to Ram Babu. With reference to the
deceased being last seen in the company of Ram Babu, the
learned Trial Judge has also referred and relied upon the post-
mortem report Ex.PW-11/A as per which the probable time of
death of deceased was the intervening night of 14th and 15th
June 2004 or the morning of 15.6.2004. The proximity of the
time of the deceased being last seen alive in the company of
Babu Ram and the probable time of death of the deceased has
been noted by the learned Trial Judge. Holding Ulhas guilty,
the learned Trial Judge has held that the purse Ex.P-2
containing the photograph of the deceased and the telephone
bill in the name of the deceased was proof that Ulhas had the
purse of the deceased and since said possession was
unexplained, the learned Trial Judge has held that from said
fact an inference of Ulhas being associated in the crime could
be inferred. The learned Trial Judge has also held that the
evidence pertaining to the conduct of Ulhas of pointing out the
place where the dead body of the deceased was recovered
also was incriminating evidence against Ulhas.
34. Pertaining to Ulhas, the second piece of
incriminating evidence i.e. of Ulhas pointing out the spot
where the dead body of the deceased was recovered and the
place where the crime ostensibly took place (as disclosed by
Ram Babu), which have been held to be incriminating evidence
i.e. conduct of Ulhas, suffice would it be to state that the place
where the dead body was recovered was already in the
knowledge of the police and the police could well take Ulhas to
the said spot and get it re-identified. Thus, the said alleged
act of Ulhas does not inspire any confidence. Qua the place
where the deceased was allegedly killed, there is no
incriminating evidence to show that the deceased was killed in
House No.RZ-82, Khasra No.27/15, Dabri Extension. This was
the house from where Ram Babu had got recovered a nylon
rope, a bottle of whisky and a wooden plank and this was the
place disclosed in his confessional statement as the place of
the crime. His confessional statement as to the same being
the place of crime is inadmissible evidence. Thus, there is no
evidence that the crime was committed in said house. Even
otherwise, the existence of the house, its location and a nylon
rope, a bottle of whisky and a wooden plank were already
recovered from the said house prior to Ulhas being arrested.
Thus, nothing fresh came in the knowledge of the police
thereafter. We hold that the second piece of incriminating
evidence used against Ulhas is a wrong finding returned by the
learned Trial Judge.
35. We are thus left with only one incriminating
evidence against Ulhas being the recovery of the purse Ex.P-2
containing a photograph of the deceased and a telephone bill
in the name of the deceased.
36. Recoveries of ordinary and useless articles have
been always held to be very week evidence. Decades ago, in
the decision reported as Rex Vs. Jora Hasji 11 Bom HCR 242,
West, J. observed that Courts must not, under cover of this
provision (Section 27 of the Evidence Act) allow the discovery
of ordinary articles to be introduced so as to admit what are
practically confessions to the police. In the decision reported
as AIR 2003 SC 1088 Bhagwan Singh Vs. State of M.P. it was
observed that a bottle, which is an article too ordinary to be
stolen and a religious book, again too ordinary an article to be
stolen belonging to the deceased would be too weak a piece of
evidence to sustain a conviction.
37. Against accused Ram Babu two incriminating
evidences definitely stand proved. The first is Ram Babu seen
in the company of the deceased at around 2:30 PM on
14.6.2004 and the deceased going missing on said day
coupled with the evidence of the post-mortem as per the
report Ex.PW-11/A which shows that the deceased died in the
night of 14/15.6.2004 or the morning of 15.6.2004. Though
not very proximate, but the two times are not very distant
apart either. The second incriminating evidence is the
authorship of possession of the rope Ex.P-4 which was
recovered by him pursuant to his disclosure statement and the
fact that the said rope matched the rope Ex.P-7 with which the
mouth of the gunny bag was tied in which the dead body of
the deceased was dumped. The report Ex.PW-22/J of the
expert opines that the same i.e. Ex.P-4 and Ex.P-7 are pieces
of rope made of nylon and are similar in respect of colour,
texture, design, thickness, number of strands, twist and
number of fibres in each strands. It is obvious that a long rope
has been cut and two pieces recovered from two different
places. One directly linking to the dead body recovered and
the other not. The connectivity of the second with reference
to its features with the first and the authorship of possession of
the second linked to Ram Babu connects Ram Babu with the
former. Thus, we have evidence of Ram Babu's involvement in
the crime, speaking through the interconnection of the pieces
of rope Ex.P-4 and Ex.P-7. The dead body of the deceased was
noted for the first time on 15.6.2004. The red coloured nylon
rope Ex.P-7 with which the mouth of the gunny was tied was
seized on 15.6.2004 and deposited in the Malkhana. Ram
Babu was apprehended on 27.6.2004 i.e. after 12 days. The
red nylon rope Ex.P-4 was got recovered by him on 27.6.2004.
The same was deposited in the Malkhana on the same day. It
is difficult to believe that the investigating officer so
remembered the features of Ex.P-7 that he planted a rope of
identical features and showed the recovery thereof at the
instance of Ram Babu. It is important to note that the report
Ex.PW-22/J of the expert analyst shows that two pieces of rope
made of nylon were similar in colour, texture, design,
thickness, number of strands, twists and number of fibers in
each strands. Thus, nine similar features going into the
minutest details of even the number of fibers in each strands
matched. The law of probability guides us that remembering
nine features of a rope and procuring a rope of same nine
features is virtually next to impossible.
38. Though not of a very conclusive nature, through
the testimony of the wife and the son of the deceased some
evidence of motive against Ram Babu has emerged. The
motive is the objection raised by the deceased against Ram
Babu having illicit relationship with Shakuntala who is the
sister-in-law of the deceased.
39. We hold that there is sufficient evidence against
Ram Babu where from the guilt of Ram Babu can safely be
inferred.
40. Crl.Appeal No.923/2008 filed by Ulhas is allowed.
He is acquitted of the charge framed against him. His
conviction vide impugned judgment and order dated
23.8.2008 is set aside.
41. Ulhas is directed to be set free forthwith unless
required in custody in some other case.
42. Crl.Appeal No.890/2008 filed by accused Ram Babu
is dismissed.
43. Copy of this judgment and order be sent to the
Superintendent, Central Jail, Tihar for compliance.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
August 21, 2009
Dharmender
