Abdul Qasim vs The State
2009 Latest Caselaw 4175 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Reserved On : 05.10.2009

%                                             Date of decision : 15.10.2009


+                             CRL. A. No. 115 of 1995


ABDUL QASIM               ...     ...    ...    ...      ...    ...     ... APPELLANT

                                     Through : Ms. Purnima Sethi,
                                               Amicus Curiae.


                                    -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?               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.

1. The appellant has been convicted under Section 302 of

the Indian Penal Code, 1860 (for short, „IPC‟) for murder

of deceased Kishan Bahadur only on the basis of

circumstantial evidence in terms of the impugned

judgment dated 29.04.1995 and sentenced to undergo

imprisonment for life and to pay a fine of Rs.1,000/-, in

default of which, to undergo further R.I. for a period of

four months as per the order of sentence of the even

date.

2. The appellant and the deceased were both working at

Gulshan Ka Dhaba behind Batra Cinema. The case of the

prosecution is that on 24.07.1993, at around 5.30 a.m.,

the appellant gave blows on the face of sleeping Kishan

Bahadur by handle of a hand-pump and caused his

death. There was no eye-witness to the incident. The

story begins with a PCR Van nabbing the appellant at

6.15 a.m. on 24.07.1993 when the appellant is stated to

have volunteered to H.C. Virender Singh, PW - 4, that he

had killed the deceased with the handle of a hand-pump

at around 5.30 a.m. H.C. Virender Singh is stated to

have sent the information to a PCR stationed near the

spot and, thus, H.C. Virender Kumar, PW - 9, reached the

spot for verification of this information and found the

dead body of the deceased. This information is stated to

have been relayed at about 7.00 a.m.

3. H.C. Virender Singh, PW - 4, brought the appellant to P.S.

Mukherji Nagar and on the basis of the statement of the

appellant, F.I.R. No. 146/1993 was registered under

Section 302 of the IPC. The F.I.R., Exhibit PW - 5/E, was

recorded by Lady H.C. Kamini, PW - 7, on receipt of

Rukka, Exhibit PW - 5/D. The investigation was entrusted

to Inspector R.C. Garg, PW - 5. The dead body of the

deceased was found lying inside the dhaba on a dari with

blood scattered around. Injury marks were stated to

have been found on the face of the deceased and the

handle of the hand-pump was lying next to the body of

the deceased. Samples of blood of the deceased were

lifted and dari and pillow cover with bloodstains were

taken into possession.

4. The circumstantial evidence, which has been brought on

record and which has found the basis of the conviction of

the appellant is the testimony of Shri Gulshan Kumar, PW

- 2, the owner of the dhaba; H.C. Virender Singh, PW - 4;

and Inspector R.C. Garg, PW - 5. Shri Gulshan Kumar has

deposed that the appellant and the deceased used to

often quarrel mostly in his absence as he was informed

by his employees and this fact was verified from the

appellant and the deceased. He stated that on

19.07.1993 or 20.07.1993, he had left both the appellant

and the deceased at the dhaba and when he came back,

he saw them hurling and abusing each other and he

pacified them. On 23.07.1993, Shri Gulshan Kumar had

left the dhaba around 9.00 or 9.30 p.m. to go to his

house, which was located close to the dhaba leaving

behind the appellant, the deceased and two or three

other people, who worked at the dhaba as all of them

used to sleep in the dhaba itself. He visited the dhaba

around 11.15 p.m. and found that both the appellant and

the deceased were sleeping in the dhaba, while the other

employees were sleeping on the roof of the dhaba and he

left for home within five minutes. He claimed that one of

the employees came to him at about 7.00 a.m. and

asked him to accompany the said employee to the dhaba

and on reaching the dhaba, he came to know about the

death of the deceased. He stated that none of the boys

sleeping on the roof of the dhaba told him anything

about the occurrence and neither they nor he had seen

anything. The testimony of H.C. Virender Singh, PW - 4,

shows that at 6.15 a.m., he was patrolling the area of

Maju Ka Tila when he noticed the appellant coming from

the opposite direction and trying to flee away on seeing

the police. H.C. Virender Singh claimed that he followed

the appellant and apprehended him on chase. It is at this

stage he came to know about the involvement of the

appellant in the murder of the deceased and he flashed

the message to PCR and took the appellant to P.S.

Mukherji Nagar. Inspector R.C. Garg, who was I.O. in the

case, received the information vide D.D. No. 2A that the

deceased had been murdered and along with S.I.

Narinder Singh and two other officers reached the spot.

5. The post-mortem of the deceased was conducted by Dr.

Ashok Jaiswal on 25.07.1993, who found that there were

five major injuries on the face of the deceased. All these

injuries were ante-mortem in nature and were caused by

the application of heavy blunt object. The injury to the

head was sufficient to cause death in the ordinary course

of nature and all the injuries could have been possibly

caused with the handle of the hand-pump. His opinion is

that the injuries on the deceased could not have been

caused by a fall on hard surface or even by striking

against some hard object.

6. Learned Amicus Curiae has assailed the impugned

judgment and contended that there were too many

doubts in the story of the prosecution to have convicted

the appellant on the basis of circumstantial evidence.

The appellant and the deceased were sleeping in the

dhaba and other employees were sleeping on the roof,

yet neither any other employee nor any public witness

was examined by the prosecution. Learned Amicus

contended that the testimony of such witnesses would be

material as it is difficult to perceive that no shriek or

noise emanated when the injury as alleged to have been

caused by the appellant to the deceased. In such a

situation, the other employees sleeping on the roof would

have awakened and would have attended to the dispute.

Another material aspect pleaded is that no bloodstains

were found on the handle of the hand-pump, which is the

alleged weapon used for murder and this is despite the

fact that blood was found scattered in the area. A further

aspect is that as per the CFSL report, blood group on the

samples could not be identified. The plea, thus, is that

the extra-judicial confession of the appellant cannot be

utilized to convict him.

7. Learned counsel emphasized that if the entire case rests

upon circumstantial evidence alone, the case of the

prosecution has to be subjected to the tests as laid down

in Padala Veera Reddy v. State of A.P. & Ors., AIR 1990

SC 79 wherein the Apex Court held that such evidence

must satisfy the following tests :-

"(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) those circumstances, taken cumulatively, should form a chain to 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."

(emphasis supplied)

8. Learned counsel, thus, contended that the chain is not

complete in the present case and by no stretch of

imagination, can it be concluded that no other hypothesis

is possible than the guilt of the appellant.

9. Learned APP for the State, on the other hand, has

defended the impugned judgment by contending that the

appellant was found moving in suspicious circumstances

and confessed to the murder himself. It is in furtherance

to the said confession that the dead body was found lying

in Gulshan Ka Dhaba. The weapon of offence being the

handle of the hand-pump was recovered near the dead

body. The appellant ran away from the spot and was

apprehended at Majnu Ka Tila. The appellant had no

explanation of roaming around at Majnu Ka Tila early in

the morning. Learned APP also referred to the post-

mortem report to plead that the injuries caused with the

handle of the hand-pump were sufficient to cause death.

The chain was pleaded to have been completed as the

motive was the prior quarrel between the appellant and

the deceased, both working in the same place. The

tehmat and lungi of the appellant were also recovered

from the bushes. Learned APP submitted that the

appellant was last seen by Gulshan Kumar, PW - 2, when

he and the deceased were both sleeping inside the

dhaba.

10. We have examined the submissions of learned counsel

for the parties.

11. We find that merely because the appellant was roaming

around and apprehend at Majnu Ka Tila cannot be the

ground to conclude that he caused the murder of the

deceased. It is relevant to note that the appellant was

not alone with the deceased in the dhaba as other

employees were sleeping on the roof. Despite this fact,

none of the said employees were examined. The owner

of the dhaba, PW - 2, Shri Gulshan Kumar claimed that

one of the employees came to him at 7.00 a.m. and

asked him to accompany the employee to the dhaba

where he found that the deceased had been done to

death. There were some skirmishes between the

appellant and the deceased, but that itself cannot be the

sole basis of conviction of the appellant. The mere fact

that there can be a motive does not necessarily lead to

the conclusion that the appellant caused the death of the

deceased.

12. The case of the prosecution is based on circumstantial

evidence requiring the chain to be complete. The fact

that the deceased is dead is not in dispute. The cause of

the death was by injuries caused to him on his face and

head. Blood was found scattered near the place. As per

seizure memo (Exhibit PW - 2/A) blood stained steel

handle of the hand-pump was seized from near the dead

body of Kishan Bahadur. Despite this fact, the alleged

weapon being the handle of the hand-pump was found

not to contain any blood as is apparent from CFSL Report

(Exhibit PW - 5/5). A lungi is stated to have been

recovered from the bushes, which belongs to the

appellant, but the lungi again does not have any blood on

it. Only the blood stains on the pillow cover could be

tested positive for human blood group AB. However, as

regards the other samples, which were lifted, blood

group could not be identified as per CFSL Report (Exhibit

PW - 5/5).

13. It is difficult to perceive that the appellant having been

found roaming at Majnu Ka Tila on being apprehended by

chance blurts out a story of having caused the death of

the deceased. It is as if the appellant was roaming

around only to make a confession. The conviction of the

appellant by the learned Additional Sessions Judge is

based on the premise that once there was some prior

dispute and both the appellant and the deceased were

last seen sleeping in the room and the appellant was

subsequently found roaming around early in the morning

at Majnu Ka Tila are the factors, which are sufficient to

convict him. We are unable to agree with this approach.

The prosecution kept away the material witnesses being

the other people, who were sleeping on the roof. The link

was not established as no blood has been found on the

alleged weapon nor any blood has been found on the

clothes of the appellant. Even the lungi alleged to have

been recovered from the bushes at the behest of the

appellant had no bloodstains.

14. We are, thus, of the view that the prosecution has been

unable to prove the case beyond all reasonable doubt

and the appellant is entitled to the benefit of doubt as

the case of the prosecution based on circumstantial

evidence alone does not fulfill the tests as laid down by

the Apex Court in Padala Veera Reddy‟s case (supra).

The appellant is accordingly acquitted giving him the

benefit of doubt.

15. The appeal stands allowed and the bail bond and the

sureties stand discharged.

SANJAY KISHAN KAUL, J.

October 15, 2009                                    AJIT BHARIHOKE, J.
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