Bhikhari Mehto vs State
2009 Latest Caselaw 4727 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                            Date of decision: 19.11.2009



+                        CRL. A. No.141 of 1996



BHIKHARI MEHTO                                      ...APPELLANT

                         Through:    Mr.K.B.Andley, Sr. Adv.           with
                                     Mr.M.L.Yadav, Advocate


                                 Versus

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?               No

2.      To be referred to Reporter or not?                No

3.      Whether the judgment should be
        reported in the Digest?                           No


SANJAY KISHAN KAUL, J. (Oral)

1. The appellant out of the three accused has been convicted

under Sections 302 and 452 of IPC in terms of the impugned

judgment dated 27.07.1996 and sentenced u/Section 302 of

IPC to life imprisonment and to pay a fine of Rs.2,000/- in

default of payment of fine to further undergo RI for six

months & u/Section 452 to RI for one year and to pay a fine

of Rs.1,000/- in default of payment of fine to further

undergo RI for six months in terms of the order on sentence

of the even date on the presumption of a motive of the

appellant to kill the deceased/Andesh Kumar without there

being any evidence on record to connect the appellant with

the incident.

2. The case of the prosecution is that one Mr.Andesh Kumar

(deceased) was working as a chowkidar at M/s.Bharat

Chaudhary Chemicals at Village Rani Khera, Delhi and was

found dead near the gate of the godown of the Company on

25.07.1992. The investigation revealed that the appellant

nursed a grudge against the deceased as the deceased had

told the employer of the appellant Upkar Singh/PW7 that he

was informed by Arjun Gupta, an employee of PW7, that the

appellant along with Shyam Lal and Raju was involved in

theft of chemicals from the factory of Upkar Singh/PW7

which resulted in termination of their service. It is this

episode which was stated to be the motive for murder of the

deceased on the night intervening 24/25.07.1992 in which

Rajinder Prashad Shah and Rajinder Saini, the other two

accused were found to be accomplices of the appellant.

3. The information about the crime was received through the

wireless at 6.15 A.M. vide DD No.5A on 25.07.1992 at PS

Sultan Puri. The said DD was handed over to the IO for

investigation. The rukka was sent at 7.50 A.M. and the FIR

No.334/1992 was registered at 8.25 A.M. The spot

investigation was carried out by ACP Ram Gopal

Sharma/PW-13 who lifted the blood stains from the spot and

took into possession a handkerchief, one banyan and one

pair of chappals apart from preparing the site plan. The

said officer conducted the inquest proceedings of the dead

body and sent the body for post mortem. Photographs of

the site and the dead body were taken. The post mortem

was conducted by PW12 Dr.L.K.Barwa who opined that all

the injuries were ante mortem in nature caused by sharp

edged weapon and two of the injuries were sufficient in the

ordinary course of nature to cause death. The appellant

was apprehended on 08.08.1992 which according to the

learned counsel for the respondent/State was on the basis

of a secret information. The disclosure statement of the

accused led to the arrest of the other two co-accused and

the weapon of offence stated to be a knife was recovered

from the room of the appellant. The weapon of offence was

never produced before the Trial Court.

4. The three accused were thus charged under Section 452 r/w

Section 34 and Section 302 r/w Section 34 of IPC. They

pleaded innocence and claimed trial.

5. The prosecution relied upon the testimony Bharat

Chaudhary/PW-3 who was the owner of the godown and

affirmed to the factum of the deceased working with his

company as a watchman and having complained against

the appellant and two other persons which resulted in the

termination of their service. The prosecution also relied

upon the testimony of Upkar Singh/PW7, previous employer

of the appellant, who testified to the effect that the

appellant, Shyam Lal and Raju were his ex-employees. He

stated that deceased/Andesh Kumar, who was working as

chowkidar in Bharat Chaudhary Chemicals at Village Rani

Khera, Delhi, used to come to him and informed him that

the aforesaid three employees were indulging in pilferage of

chemicals from his factory. Therefore, he terminated their

service. The said witness, however, turned hostile so far as

substantiating the case of prosecution about recovery of

weapon at the instance of appellant in the presence of the

said witness was concerned. Thus, PW7 only established

the possible motive of the crime.

6. There is no eye witness of the commission of crime nor any

other material evidence to establish the circumstances

purportedly taken into account by the learned Trial Court in

para 34 of the impugned judgment to record conviction of

the appellant. A perusal of para 34 of the impugned

judgment reveals that the learned Trial Court has concluded

that following circumstances have been established by the

prosecution to connect the appellant with the commission of

crime, which are as under:

"(i) That the accused committed murder of Andesh Kumar on the night intervening 24/25.7.92 at the godown of Bharat Chaudhary Chemical, village Rani Khera, Delhi. The murder was committed by stabbing the deceased with knife; a sharp object.

(ii) A handkerchief Ex.P-1, banian Ex.P-2 and pair of chappal Ex.P-3 were found alongwith the dead body by the police.

(iii) The police reached the spot after DD No.5A was recorded at P.S. Sultanpuri. This information was given on wireless. Police took into possession the earth sample, control earth,

handkerchief, banian and pair of chappals after memos were prepared.

(iv) The articles taken into possession were sent to CFSL, humane blood was detected of AB group, thus the blood group of deceased Andesh Kumar was AB group.

(v) The injuries on the person of deceased Andesh Kumar were caused by sharp object.

(vi) Accused Bhikari Mehto was arrested on 8.8.92 who made a disclosure statement to the police and got arrested the other co-accused.

(vii) Accused Bhikhari Mehto got recovered a knife from his jhuggi at Naraina, however, this knife was never produced in the court by the prosecution or got identified from the witnesses."

7. Learned counsel for the respondent/State has fairly

conceded that there is no evidence whatsoever on the

record to prove the above circumstances except the

possible motive on the part of the appellant to commit

murder of the deceased. Mere motive itself would not

suffice to link the appellant to the commission of crime.

Even the recovery of weapon of offence has not been

established nor the weapon produced before the Trial Court.

Learned Trial Court has fallen into error in presuming that

once the motive is established, there is no requirement of

linking the appellant to commission of crime. On a perusal

of the impugned judgment, we find nothing to connect the

appellant to the commission of crime and this position

cannot be seriously disputed by learned counsel for the

respondent/State.

8. We thus acquit the appellant and allow the appeal.

9. Bail-cum-surety bonds of the appellant are cancelled and

discharged.

SANJAY KISHAN KAUL, J.

NOVEMBER 19, 2009                          AJIT BHARIHOKE, J.
dm