Sukh Chain vs The State
2009 Latest Caselaw 5224 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                     Date of decision: 15.12.2009


+                                   CRL. A. No.257 of 1996


SUKH CHAIN                                                     ...APPELLANT

                                    Through:       Mr.    Tarique  Siddiqui   and
                                                   Mr.Vishnu Sharma, Advocates


                                             Versus


THE STATE                                                     ...RESPONDENT

                                    Through:       Mr. Sunil Sharma, Advocate.


                                             AND



+                                   CRL. A. No.97 of 1997


HARGOVIND @ PAPPU                                             ...APPELLANT

                                    Through:       Mr. Naveen Chawla, Advocate
                                                   with     Mr.Prakash  Kumar,
                                                   Advocate.

                                             Versus


THE STATE                                                     ...RESPONDENT

                                    Through:       Mr. Sunil Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.       To be referred to Reporter or not?

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


CRL. A. No.257/1996 and CRL. A. No.97/1997                                Page 1 of 10
 AJIT BHARIHOKE, J. (ORAL)

1. The appellants having been convicted for the offence of

murder of Subhash Sharma punishable under Section 302 of IPC

r/w Section 34 of IPC in terms of the impugned judgment dated

13.09.1996 and on being sentenced in terms of Order on

Sentence of even date to undergo imprisonment for life and also

to pay fine of Rs.1,000/- each and in the event of default of

payment of fine to undergo RI for a further period of three

months, have preferred the instant appeals.

2. Briefly stated the case of the prosecution is that the

deceased Subhash Sharma was a government employee and with

a view to augment his income, he was running a side business of

giving rickshaws on hire. One such rickshaw was given on hire by

him to the appellant Hargovind on a daily hire charge of Rs.10/-.

The appellant Hargovind is stated to have defaulted in payment

of hire charges for 15-20 days. The deceased in the evening of

06.04.1991 at around 5 P.M. left his house telling his wife

Ms.Kamla PW-10 that he was going in search of the appellant

Hargovind to seek payment of the hire charges. He, however,

returned back after a futile search and again left the house in

search of Hargovind at around 9 P.M. and thereafter he did not

return. Therefore, on 07.04.91, a missing report ExPW16/A was

lodged at Police Station Civil Lines. On 09.04.1991 at around 9.45

P.M., a dead body was found near gutter no.3, in the bushes of

Ring Road, Yamuna Bank, Chandrawal. This information was

conveyed to the police station and it was recorded as DD No.10.

A copy of the DD report was entrusted to PW21 SI Rajender Singh

for verification, who left for the spot where he found a highly

decomposed dead body of a male person. PW21 SI Rajinder

Singh suspected the dead body to be that of the missing person

Subhash Sharma. He accordingly sent Constable Jai Bhagwan to

deceased's house who brought father of the deceased Mr.Satya

Prakash and his brother Sarvottam Sharma, who identified the

dead body of the deceased Subhash Sharma. During

investigation, statement of witnesses were recorded and on the

basis of statement of Ms.Kamla PW-10, wife of the deceased

Subhash Sharma, the needle of suspicion pointed towards the

appellant Hargovind and as such, police party searched for him.

Appellants were arrested on 11.04.1991. On questioning, the

appellants stated that at the time of occurrence also they were

wearing the same clothes, but on cursory examination some old

washed blood stains were noticed on the clothes, as such the

clothes of the appellants were seized vide seizure memo

Ex.PW2/G. Appellant Hargovind on interrogation made a

disclosure statement and pursuant to that he led the police party

to a heap of bricks near a latrine near Magazine Road, Hathi Wala

Park, Chandrawal and from there, he took out a closed knife Ex.P-

1 after removing the bricks. Sketch of the knife was prepared and

it was taken into possession vide memo Ex.PW2/F. The

incriminating exhibits were sent to CFSL for serological

examination along with the blood-stained clothes of the deceased

as also blood-stained vegetation seized from the spot and the

cloth gauze and blood sample of the deceased. As per the CFSL

report, the clothes of the appellants were found to contain the

blood stains of human blood group 'B'. So far as the clothes of

the deceased and his blood sample taken on a cloth gauze as well

as blood stained vegetation seized from the spot is concerned,

those samples tested positive for human blood but the blood

group could not be ascertained. The dead body was sent for post

mortem and as per the post mortem report, the cause of death

was hemorrhage and shock consequent to a cut-throat injury.

PW-13 Dr.L.T.Ramani opined that the said injury could have been

caused by knife ExP-1 or any other similar knife. On completion

of investigation, the appellants were charge sheeted and sent for

trial for the offence punishable under Section 302/34 of IPC. Both

the appellants pleaded innocence and claimed trial.

3. In order to bring home the guilt of the appellants, the

prosecution has examined 21 witnesses in all. However, the main

witnesses examined by the prosecution are PW-1 Satya Parkash

Sharma, PW-2 Sarvotam Sharma, PW-10 Smt.Kamla and PW-18

Kishan Lal besides PW-13 Dr.L.T.Ramani who conducted the post

mortem and the investigating officers. The appellants, in their

statements recorded under Section 313 Cr.P.C., denied having

played any role whatsoever in the murder of the deceased.

4. The Trial Court, relying upon the testimony of the

prosecution witnesses, came to the conclusion that the

prosecution has been able to bring home the guilt of the

appellants by establishing the motive, recovery of incriminating

articles i.e. knife and blood stained clothes of the appellants

which were found to have stains of human blood group B and the

teeth bite injury on the finger of the appellant Sukh Chain which

was taken as the discovery of fact pursuant to the disclosure

made by the appellant Hargovind.

5. Learned counsel for the appellants has referred to the

matter of Padala Veera Reddy v. State of A.P., 1989 Supp (2)

SCC 706 wherein it was laid down by the Supreme Court that

when a case rests upon circumstantial evidence, such evidence

must establish the following tests:

"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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."

6. In light of the law enunciated in the aforesaid judgment,

learned counsel for the appellants has submitted that the

prosecution has miserably failed to prove the circumstances so as

to form a chain so complete that there is no escape from the

conclusion that within all probabilities the crime was committed

by the appellants alone and none else. He has submitted that the

prosecution case is based mainly upon the recovery of knife Ex.P-

1 at the instance of appellant Hargovind and the recovery of the

blood-stained clothes from the person of the appellants at the

time of their arrest, which on serological examination gave

positive tests for presence of the stains of human blood group 'B'.

Learned counsel has submitted that even if, for the sake of

argument, it is assumed that aforesaid recovery was actually

effected during investigation, that evidence by itself is of no avail

to the prosecution because the blood group found on the clothes

recovered from the person of the appellants has not been

connected with the blood group of the deceased, which could not

be established in serological examination as is apparent from the

report Ex.PW20/F. Learned counsel has also further pointed out

that even the medical evidence, i.e., the post mortem report

Ex.PW13/A and the MLC of the appellant Sukh Chain Ex.PW17/A

also belies the prosecution version. In this context, he has argued

that as per the case of the prosecution, the deceased had left in

search of appellant Hargovind at around 9:00 pm on 06.04.91.

Therefore, his death obviously must have occurred some time

after 9:00 pm on the fateful night. As per the post mortem

report, it is pointed out that the post mortem was conducted by

PW13 Dr. L.T. Ramani on 09.04.91 at around 1:05 pm and the

time of death has been fixed three days earlier to the post

mortem. This implies that the death of the deceased ought to

have occurred on 06.04.91, somewhere around 1:05 pm, which

belies the prosecution story. Learned counsel for the appellants

has further contended that the case of prosecution as per the

disclosure statement made by Hargovind is that the appellant

Sukh Chain had suffered teeth bite injury in the process of

committing the murder of the deceased. Aforesaid version of the

prosecution is also belied by the MLC of Sukh Chain Ex.PW17/A

which was prepared on 12.04.91. The duration of injury

mentioned in the MLCV is seven days prior to the preparation of

the MLC, which means that the injury on the finger of the

appellant Sukh Chain was caused perhaps on 05.04.91. Thus,

said injury also does not get linked with the alleged murder of

deceased Subhash Sharma. Thus, learned counsel or the

appellant has urged us to at least extend the benefit of doubt to

the appellants.

7. Learned counsel for the State, on the other hand, has

argued in support of the impugned judgment and he has

submitted that the learned Trial court has rightly convicted the

appellants for the offence under Section 302/34 IPC as the

prosecution has been able to establish the motive of guilt on the

part of the appellant Hargovind. It has also been established that

the deceased had left his house on the night of 06.04.91 at about

9:00 pm in search of the appellant. Therefore, it is obvious that

no one else other than the appellant Hargovind could have

murdered the deceased. Learned counsel for the State has

further submitted that the serological examination also

established the existence of blood stains on the clothes of the

appellants and those blood stains pertained to the blood group

'B', whereas during the pendency of appeal the blood samples of

the appellants were sent for serological examination and as per

the serological report, the blood group of Hargovind was AB+

while that of Sukh Chain was O+. Thus, it is argued that human

blood group 'B' found on the clothes must have been of the

deceased Subhash Sharma.

8. We have considered the rival submissions and perused the

material on record.

9. As per the case of the prosecution, the deceased left his

house in search of appellant Hargovind at about 9 P.M. on

06.04.1991. Therefore, his death obviously must have occurred

sometime in the night after 9 P.M. The post mortem report

Ex.PW13/A tells a different story. The post mortem, as per the

report, was conducted on 09.04.1991 at 1.05 P.M. and the

duration of death is given as 3 days prior to the post mortem

being conducted. This fixes the time of death of the deceased

Subhash Sharma somewhere around 1.05 P.M. on 06.04.1991,

which is not the case of the prosecution. Similarly, the

prosecution case is that the appellant Sukh Chain suffered teeth

bite injury in the process of committing murder of the deceased.

He was sent for medical examination. As per his MLC, which was

prepared on 12.04.1991, the duration of injury found on his finger

was 7 days, which fixes the time of injury on the finger of the

appellant Sukh Chain some time on 05.04.1991. Therefore, the

appellant Sukh Chain could not possibly have suffered said injury

while committing murder of the deceased. Further, the doctor

concerned, who prepared the MLC, has not appeared in the

witness box and the MLC has been proved by the record clerk. As

per the MLC Ex.PW17/A, the concerned doctor has opined that the

injury found on the finger of the appellant Sukh Chain could have

been caused by a teeth bite. This opinion does not rule out the

injury being caused in any other manner. Therefore, non-

production of the doctor, in our view, has caused prejudice to the

appellants as they have been deprived of getting the facts

clarified by the Doctor in his cross-examination.

10. We may also note that as per the prosecution case, when

the appellants were arrested on 11.04.91, they were wearing

stained clothes on which washed blood stains were noticed. If

this is to be taken as true, then obviously the appellants had

washed their clothes after the occurrence, if at all they were

involved in the incident. In that eventuality, it is highly

improbable that the clothes of the appellants on serological

examination could have tested positive for the human blood

group 'B'. This circumstance also casts a shadow of doubt

against the correctness of the prosecution version.

11. There is no evidence on record to suggest that the

appellants were either seen with the deceased on the fateful

night or they were seen near the spot of occurrence from where

the dead body of the deceased was subsequently recovered on

09.04.91. The only evidence worth name on the record is the

testimony of PW10 Kamla to the effect that her husband Subhash

Sharma had given a rickshaw on hire to the appellant Hargovind

who had defaulted in paying the hire charges for the last 15-20

days and that the appellant on the fateful night had left his house

for tracing Hargovind in order to recover his hire charges. This

circumstance, at best, raises a suspicion that perhaps the

appellant Hargovind may be involved in the murder of the

deceased but there is quite a difference between may be and

must be. May be means suspicion, but the suspicion howsoever

grave, cannot be a substitute for proof. Thus, we are of the

considered view that the appellants in this case are entitled to the

benefit of doubt.

12. In view of the above, we accept the appeal and set aside

the impugned judgment dated 13.09.1996 and the order on

sentence of the even date and acquit both the appellants, giving

them benefit of doubt.

13. Bail-cum-surety bonds of the appellants stand discharged.

SANJAY KISHAN KAUL, J.

December 15, 2009                            AJIT BHARIHOKE, J.
dm