Delhi High Court

Shyam Bir vs State on 19 May, 2009

Author: Badar Durrez Ahmed

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 19.05.2009
+       CRL. A. 246/1994

SHYAM BIR                                               ..... Appellant

                                    versus

STATE                                                  ..... Respondent

AND

+ CRL. A. 3/1995

SMT. SHAKUNTALA ..... Appellant

versus

STATE ..... Respondent

Advocates who appeared in this case:

For the Appellants : Mr Sumeet Verma (Amicus Curiae) For the Respondent : Mr Sunil Sharma

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE AJIT BHARIHOKE

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 Digest ? Yes

BADAR DURREZ AHMED, J (ORAL)

1. These two appeals are directed against the judgment of the

learned Additional Sessions Judge dated 29.09.1994 in Sessions Case

No.63/1989 arising out of the FIR No.239/1989 registered at Police

Station Sultanpuri. The accused had been charged under Section

302/120-B of the Indian Penal Code (hereinafter referred to as „IPC‟).

The learned Additional Sessions Judge has found that the prosecution

has been able to prove the charge against the appellants and

consequently convicted them under Sections 302/120-B IPC. By virtue

of the order on sentence dated 30.09.1994, the learned Additional

Sessions Judge sentenced the appellants herein to undergo

imprisonment for life. The appellants are aggrieved by the said

impugned judgment and order on sentence.

2. As indicated in the impugned judgment, the case for the

prosecution is that on 23.08.1989, one Varinder Kumar Verma (PW-

12) resident of 128, Gaurav Nagar, Prem Nagar, Kirari, Delhi gave

information, which was recorded in D.D. No.4-A at Police Station

Sultanpuri at about 2.15 a.m., that at about 12.15 a.m. in the night

intervening 22.08.1989 and 23.08.1989, the appellant Shakuntala, who

was the wife of Kishan Lal (deceased) and resident of House No.130,

Gaurav Nagar, Kirari, came to his house and informed him that her

husband was lying in a pool of blood on the cot and had an injuries on

his face. It is further the prosecution case that on this information, the

said Varinder Kumar Verma collected the persons of the colony and

accompanied Shakuntala and found that Kishan Lal was lying on a cot

in a pool of blood. Though Kishan Lal was breathing, he was not in a

position to speak. The said D.D. was handed over to S.I. Raghunandan

Singh for inquiry, who alongwith the staff, reached the spot and found

that in the courtyard of House No.130, Gaurav Nagar, Kishan Lal aged

about 30-35 years was lying dead on a cot and had injuries on the left

side of his head and face which appeared to have been caused by some

sharp edged weapon. The wife of the deceased, Ms Shakuntala was, at

that point of time, not in a position to give a statement being in a state

of shock and, accordingly, a case under Section 302 IPC was registered

and thereafter the dog squad and crime team were summoned and

further investigation was taken up. Apparently, during the course of

the investigation, Shakuntala informed that her husband had been

murdered by her previous husband (Raja Ram) alongwith his

companion Master Chatri, Hira Lal and other persons and that

thereafter those persons left the spot and she raised cries. It appears

that the investigating agency went to the village of Raja Ram to verify

this fact and on further investigation they were of the view that Raja

Ram and his companions were not involved in the crime. On the other

hand, Raja Ram had indicated that Shakuntala did not have a good

character. According to the prosecution, the appellant Shyam Bir, who

used to refer to the deceased Kishan Lal as his Mama (maternal uncle),

used to visit his house secretly and had some connection with

Shakuntala. On completion of the investigation, the case for the

prosecution was that Shakuntala and Shyam Bir developed illicit

relations and they hatched a plan to get rid of Kishan Lal. For

executing the plan, Shakuntala is said to have procured an axe from

PW-10 (Ram Kishan) on 22.08.1989 itself. When Kishan Lal was

asleep, at the instance of Shakuntala, Shyam Bir entered the house and

murdered Kishan Lal with the said axe which had allegedly been taken

from PW-10 (Ram Kishan). Thereafter, Shyam Bir is said to have fled

the place alongwith the said axe. According to the prosecution, the said

axe was recovered at the instance of Shyam Bir from a room in Sanjay

Model School, Niti Vihar, Kirari, Delhi. Nothing was, however,

recovered at the instance of Shakuntala. It may be pointed out at the

outset that though a post mortem was conducted in respect of Kishan

Lal‟s dead body and a report was also prepared, the doctor who

conducted the post mortem, has not been produced as a witness.

3. In this background, the learned counsel appearing on behalf of

the appellants submits that this was a case of circumstantial evidence,

there being no eye witness to the incident. He submits that the

circumstances which have been relied upon by the prosecution and

which have been accepted by the trial court are as under:-

1) Recovery of the blood stained axe at the instance of Shyam

Bir on 26.08.1989;

2) The testimony of PW-10 (Ram Kishan) that the axe

belonged to him and that Shakuntala had taken that axe on

22.08.1989, but had not returned the same to him;

3) The testimony of PW-1 (Puran), who is alleged to be a

neighbour, wherein he stated that Shyam Bir used to visit

Shakuntala in the absence of Kishan Lal;

4) PW-14 (Raja Ram), who was the first husband of

Shakuntala, has also stated that Shakuntala was loose

charactered and that she had eloped with the deceased

Kishan Lal without his (Raja Ram‟s) consent;

5) The post mortem report has also been considered by the

trial court to establish the cause of the death.

4. Mr Sumeet Verma, who appeared on behalf of the appellants,

contended that the circumstances which have been relied upon by the

trial court have, first of all, not been established and, secondly, they do

not form a complete chain so as to lead to the conclusion that it is only

the appellants who are guilty for the murder of Kishan Lal. He

submitted that the most important factor in this case is the question of

recovery of the axe. As per the disclosure statement (Exhibit PW-

15/D) said to have been made by the appellant Shyam Bir, it appears

that he stated that the axe was concealed in his room and that he can get

the axe recovered after pointing out the room. It is noteworthy that the

address given in Exhibit PW-15/D, which contains the alleged

disclosure statement of Shyam Bir, is Sanjay Model School, Gaurav

Nagar, Prem Nagar, Kirari, Delhi. However, the address given in the

recovery memo (Exhibit PW-10/A) indicates the address of Shyam Bir

as 128, Gaurav Nagar, Kirari with a permanent address at Village

Chhonk, P.S. Hathras, District-Aligarh (U.P.). The said recovery

memo also indicates that Shyam Bir pointed out the residential room in

Sanjay Model School, Niti Vihar, Kirari and further pointed out an axe

wrapped in a gunny bag after untying a string tied on the door of the

room. There are two witnesses to this recovery memo and they are

PW-10 (Ram Kishan) and PW-15 (Mahipal). Insofar as PW-10 (Ram

Kishan) is concerned, he stated that on 26.08.1989, he alongwith the

police and Shyam Bir went to the house of Shyam Bir. It was at about

7.00 p.m. and Shyam Bir produced the axe from his house wrapped in a

gunny bag. The axe was identified by PW-10 (Ram Kishan) as the

same axe which was given by him to Shakuntala. Furthermore, in his

cross-examination, the said witness, namely, PW-10 (Ram Kishan)

clearly stated that the house of Shyam Bir was in Gaurav Nagar and

that Prem Nagar and Gaurav Nagar are different areas but are adjacent

to each other. He also indicated that he did not tell the police that the

accused led the police party to his house No. 128, Gaurav Nagar.

However, he was confronted with the statement in Exhibit D/A, which

is his statement under Section 161 of CrPC, wherein it was so recorded.

He has also stated that he did not know how far Niti Vihar Mohalla was

from Gaurav Nagar. On the basis of these statements, the learned

counsel for the appellants submitted that Gaurav Nagar and Niti Vihar

are two separate areas and while the disclosure statement of Shyam Bir

reveals that the axe was concealed in Shyam Bir‟s room, the same was

actually recovered not from his house at Gaurav Nagar, but from a

residential room in Sanjay Model School, Niti Vihar, which is different

from the place where Shyam Bir resided.

5. The learned counsel further pointed out that the other recovery

witness, namely, PW-15 (Mahipal) also stated in his examination-in-

chief that on 26.08.1989, on the pointing out of accused Shyam Bir,

one iron axe was recovered from the residential house of Shyam Bir at

Niti Vihar. However, in his cross-examination, he stated that he never

visited House No.128 and does not know the Municipal Number of the

School. He also stated that he had not told the police that he went to

House No.128, Gaurav Nagar. However, he was confronted with

Exhibit PW-15/D, which is his statement under Section 161, CrPC,

wherein it was so recorded.

6. The learned counsel also drew our attention to the testimony of

PW-18 (Inspector Rajinder Prasad) who is the scribe of the said

recovery memo. He stated that on the pointing out of the accused

Shyam Bir, near Sanjay Model School, Niti Vihar, Kirari, an axe was

recovered from a room. On the basis of the aforesaid evidence, the

learned counsel for the appellants submitted that the place of recovery

of the alleged murder weapon, namely, the said axe, is not certain.

While the appellant Shyam Bir is said to have indicated that the axe

was concealed in his room, PW-18 has stated that the said axe was

recovered from a room near Sanjay Model School. PW-10, however,

has stated that the same was recovered from Shyam Bir‟s house at

Gaurav Nagar, while PW-15 (Mahipal) has stated that the axe was

recovered from Shyam Bir‟s house at Niti Vihar. The learned counsel

submitted that these are very material contradictions because unless and

until the recovery of the axe at the instance of Shyam Bir is firmly

established, there are missing links as to form a complete chain of

circumstantial evidence leading to the guilt of the appellants.

7. The learned counsel also submitted that the only portion of

disclosure statement of Shyam Bir, which is admissible, is the

knowledge of the place of recovery from where the axe could be

recovered and not the factum of recovery of the axe. Since the place

itself has not been established, there is nothing available with the

prosecution which could connect the appellant Shyam Bir with the

murder of Kishan Lal. Since Shyam Bir cannot be connected with the

said offence, there is no question of any connection with the appellant

Shakuntala either. The learned counsel submitted that the prosecution

has failed to produce tangible evidence to enable the court to arrive at a

conclusion that Shakuntala and Shyam Bir had any illicit relations. The

only testimony is that of PW-1 (Puran) who is said to be a neighbour of

the deceased Kishan Lal, who stated that Shyam Bir used to visit

Shakuntala in the absence of Kishan Lal. However, the learned counsel

pointed out that in the cross-examination of PW-1, the said witness has

been found to be an untruthful one. He has stated that he was living at

Anand Parbat but used to visit Gaurav Nagar. He further stated that his

servant used to live at Gaurav Nagar. According to the learned

counsel, this clearly indicates that he was not even a neighbour residing

in the neighbourhood. He owned a house next to the house of Kishan

Lal, but he was not present there at all times and only used to visit the

said house and that too twice a week. Therefore, his testimony that

Shyam Bir used to visit Shakuntala in the absence of Kishan Lal cannot

be taken as a truthful statement.

8. The learned counsel for the appellants further submits that no

motive has been established. In fact, even the question of conspiracy

and the ingredients of Section 120-B IPC have not been established by

the prosecution. He submitted that the circumstances pointed out by

the prosecution are, firstly, not established and, secondly, they do not

lead to the guilt of the appellants. He submitted that the impugned

judgment and order on sentence be set aside.

9. Mr Sunil Sharma, who appears on behalf of the State, supported

the judgment of the trial court. He referred to the said judgment and

pointed out that the trial court has returned a finding that there was a

connection between Shyam Bir and Shakuntala. According to him, as

stated in the impugned judgment in paragraph 24, the fact that Shyam

Bir used to visit the house of Shakuntala in the absence of her husband

stands proved by the statement of PW-1 (Puran) who was a neighbour

in the adjoining house No.128, Gaurav Nagar, Kirari. Mr Sharma also

pointed out that the trial court found that because of the statement of

PW-2 (Sanjay Kumar), it has been proved that the appellant Shyam Bir

was residing in Village Kirari in a rented house. The further

circumstance which has been proved was that the axe was borrowed by

Shakuntala from PW-10 (Ram Kishan). The trial court also found that

on the basis of the testimonies of PW-10 (Ram Kishan), PW-15

(Mahipal) and PW-18 (Rajinder Prasad), the recovery of the axe stands

established and proved.

10. Mr Sunil Sharma then referred to paragraph 26 of the impugned

judgment to show that the trial court did consider the argument of

contradictions about the place from where the axe was recovered and

after considering the same, the trial court came to the conclusion that

these were not material contradictions.

11. Mr Sunil Sharma also pointed out that the axe, which had been

recovered, had also been sent to the Central Forensic Science

Laboratory, which confirmed that there were blood stains on the edge

of the axe and that it was human blood of group „O‟. The blood sample

of the deceased was also taken and the serological report indicates that

his blood group was also „O‟. He also submitted that blood stains were

also found in the bathroom of the house of Kishan Lal and no

explanation was forthcoming from the accused with regard to that.

12. Mr Sharma thereafter submitted that the motive also stood

established inasmuch as there were illicit relations between Shakuntala

and Shyam Bir. He also submitted that Shakuntala borrowed the axe

from PW-10 (Ram Kishan) and that at about 12.15 a.m, Kishan Lal was

killed by Shyam Bir in execution of the conspiracy hatched by both

Shakuntala and Shyam Bir. Kishan Lal was killed by Shyam Bir using

the same axe which had been recovered at the instance of Shyam Bir.

Consequently, he submitted, the trial court had rightly convicted the

appellants for having committed the offences under Sections 302/120-B

IPC.

13. We have examined the evidence in detail and considered the

arguments advanced before us. Several circumstances, as already

pointed out above, have been outlined on the part of the prosecution in

an attempt to establish the guilt of the appellants Shakuntala and Shyam

Bir. Insofar as the question of motive is concerned, which, though not

of vital importance in cases of ocular evidence, has a certain degree of

importance in cases of circumstantial evidence. In this case, we find

that the only statement forthcoming with regard to the illicit relations

between Shakuntala and Shyam Bir is that on the part of PW-14 (Raja

Ram) and PW-1 (Puran). The only thing that PW-14 (Raja Ram) has

stated is that Shakuntala had a loose character and that she had eloped /

run away with Kishan Lal, when she was married to him (Raja Ram).

He does not say anything about appellant Shyam Bir. Therefore, his

testimony, even if it is to be believed, does not indicate any connection

between Shakuntala and Shyam Bir, what to speak of illicit relations

between the two. Insofar as PW-1 (Puran) is concerned, we find that,

although he has stated that Shyam Bir used to visit Shakuntala in the

absence of Kishan Lal, such a statement is shrouded in a great deal of

doubt. This is so because in his cross-examination itself, he has stated

that he used to reside elsewhere and used to visit Gaurav Nagar only

twice a week. Therefore, it is difficult to understand as to how he could

have observed Shyam Bir visiting Shakuntala in the absence of Kishan

Lal during his momentary bi-weekly visits to 128, Gaurav Nagar,

which is adjacent to Kishan Lal‟s house, i.e., 130, Gaurav Nagar.

Incidentally, even Shyam Bir was residing in the adjacent house, i.e.,

128, Gaurav Nagar. Therefore, we do not agree with the conclusion of

the trial court that the illicit relations or any connection between Shyam

Bir and Shakuntala has been established. Clearly, the question of any

motive having been established or proved does not at all arise.

14. Be that as it may, there are other circumstances which have been

relied upon by the prosecution. One of them being the borrowing of

the axe by Shakuntala from PW-10 (Ram Kishan). It has come in

evidence led by the prosecution that PW-10 (Ram Kishan) used to lend

his axe to Shakuntala. On 22.08.1989 also, Shakuntala borrowed the

axe from PW-10 (Ram Kishan). But this circumstance by itself is not

sufficient for the court to conclude that the axe was borrowed with the

intention or the motive of committing the murder of Kishan Lal. It is

also not sufficient in itself to enable us to reach the conclusion that the

said axe was, in fact, used in the commission of the offence. It must be

remembered that the borrowing of the axe by Shakuntala from PW-10

(Ram Kishan) does not amount to clinching evidence inasmuch as PW-

10 (Ram Kishan) himself had stated that Shakuntala borrowed the axe

on earlier occasions also.

15. To our minds, the most important circumstance is the alleged

recovery of the said axe. We agree with the learned counsel for the

appellants that the place of recovery of the said axe has not been

established. While Shyam Bir in his alleged disclosure statement

indicated that the axe was concealed in his room, the axe was, in point

of fact, as per the recovery memo (Exhibit PW-10/A), recovered from

the residential room in Sanjay Model School, Niti Vihar, Kirari and not

from the room in which Shyam Bir resided. Furthermore, there are

serious contradictions between the testimonies of PW-10 and PW-18.

PW-18 (Rajinder Prasad), who is the scribe of the said recovery memo,

indicated that the said axe was recovered from a room near Sanjay

Model School, whereas PW-10 (Ram Kishan) stated that the axe was

recovered from the house of Shyam Bir at 128, Gaurav Nagar, Delhi.

On the other hand, Mahipal (PW-15) made a complete different

statement wherein he stated that the said axe was recovered from the

house of Shyam Bir, but from Niti Vihar. There is no evidence

indicating that Shyam Bir had any house at Niti Vihar. The only

evidence, which has been brought forward by the prosecution, indicates

that Shyam Bir had taken a room on rent and that he was residing at

128, Gaurav Nagar, Delhi. It has not been established and / or proved

by the prosecution that Shyam Bir was residing either in a residential

room in Sanjay Model School or near Sanjay Model School from where

the axe is said to have been recovered. The evidence led by the

prosecution, therefore, itself is extremely hazy with regard to the place

of actual recovery of the said axe. This in itself casts serious doubts on

the factum of recovery also. That being the position, the only link

between the appellant Shyam Bir and the offence, being the recovery of

the axe, is also not established.

16. There is another aspect of the case on which we have given our

anxious consideration and that is the alleged recovery of blood from the

bathroom of the house of the deceased. It has come in evidence that

Kishan Lal was put to death while he was sleeping on his cot in the

courtyard of his house. It is obvious that there would be blood stains

on and around the cot. However, since the blood stains are said to have

been recovered from the bathroom, the prosecution version is that after

Shyam Bir committed the murder of Kishan Lal using the said axe, the

said axe was washed by Shakuntala and Shyam Bir in the bathroom and

it is then that Shyam Bir took the axe and fled from the scene. If this is

to be believed, then it becomes irreconcilable with the testimony of

PW-12. PW-12 (Varinder Kumar Verma), who was also residing in

House No.128, Gaurav Nagar, Kirari, Delhi, the very house in which

Shyam Bir also resided, stated that on 22.08.1989, it was the birthday

of his son. After he had gone to sleep at about midnight, he had heard

some noise. Thereafter, he came outside and met Shakuntala there,

who told him that someone had killed her husband. He further stated

that many other persons were also present there. He saw Kishan Lal

lying on the cot and he was bleeding from his face and head. His body

was covered with a bed sheet upto the chest. From the above

statements given by PW-12 (Varinder Kumar Verma), it is apparent

that there was some noise or commotion, as a result of which he was

awakened from his sleep and when he went out of his house, he saw

Shakuntala, who told him that somebody had killed her husband. It is

quite probable that the noise or commotion which awakened him was

the very incident of the murder of Kishan Lal and the assailants fleeing

from the scene of crime. If that be so, then the time available to the

appellants Shakuntala and Shyam Bir to have immediately washed the

axe and also despatched Shyam Bir alongwith the axe was not

sufficient. This is so because immediately upon hearing the noise, PW-

12 (Varinder Kumar Verma) came out of his house and met

Shakuntala. There were other people also who had assembled there.

The time interval, therefore, that was available for such a sequence of

events, as alleged by the prosecution, was not sufficient, in our view, to

support what the prosecution is alleging.

17. We also note that since the doctor, who conducted the post

mortem examination, has not been examined, his report and opinion

with regard to the cause of death cannot be looked into. With regard to

the attempt of the prosecution to prove the post mortem report through

a record clerk and not by the concerned doctor, this court had occasion

to make certain observations on such an approach in the case of

Ikramuddin v. The State: CRL.A. 189/1994 decided on 29.04.2009.

The same are reproduced hereunder:-

"15. We may also note that the prosecution has undertaken the unsatisfactory approach of proving the MLC and the post mortem report through record clerks and not by the concerned doctors. Such a practice had been deprecated by courts time and again. The fact that doctors

are not examined to prove the MLC and the post mortem report certainly affects the probative value of these documents. The following passage appearing in a decision of a Division Bench of this Court in the case of Chander Dev Rai v. The State: 2009 (1) JCC 67 would be instructive:-

„24. The FSL reports also completely exonerate the appellant. Even their probative value is not sufficient as they have not been proved to the satisfaction of the Court as they have been proved by a record clerk. In Sher Singh (Supra) it was held that before the documents like post mortem report and other reports are proved by a person other than the person who had prepared them, a thorough enquiry is to be done by the investigating officer by going personally to the concerned hospital and making efforts to trace the addresses of the doctor. Even if the persons who had prepared the documents are not traceable, it was held, that it is not proper to examine a clerk or a record keeper. In such cases another doctor working in the hospital who is acquainted with the handwriting and signatures of the doctor who prepared the same should have been examined. In the present case only a record keeper was examined and the said person was again examined for proving the back of the medical report. He has simply stated that he can identify the signatures and handwriting of the concerned doctors. No semblance of effort seem to have gone into tracing the doctors who had recorded the MLC and conducted the gynecological examination of the prosecutrix. Prosecution witness simply making the statement that the said doctor is not available or has left the service is not sufficient.

Invariably before a doctor or for that matter any other person is employed he is enjoined to give permanent address to the employer. Same must have been the case here but the prosecution as usual has chosen a short cut of

adducing the record keeper to prove the documents like MLC, medical examinations by simply stating that doctors are not available. This affects the probative value of these documents.‟

The defence had suggested the alternative theory of suicide. Therefore, the examination of the doctor who conducted the post mortem examination was all the more crucial for the purposes of establishing whether the death of Ashraf Jahan was homicidal or suicidal. The non-examination of the doctor who conducted the post mortem examination is also a circumstance which certainly goes against the prosecution and weakens their case."

18. In any event, since the doctor, who conducted the post mortem

report has not been produced as a witness, his opinion cannot be relied

upon by the prosecution to the detriment of the appellants. There is,

therefore, no evidence before us which would suggest that the said axe

was indeed the weapon which was used for the commission of the

crime. The only piece of evidence which has been relied upon by Mr

Sunil Sharma was the factum that the CFSL report showed traces of

human blood of group „O‟ which was also the blood group of the

deceased. It is common knowledge that blood group „O‟ is not a rare

group and, even if it were so, it cannot be ruled out that there are other

persons having the same blood group. It can only be regarded as a

circumstance and by itself cannot be considered to lead to the