Abdul Rahim vs The State (Delhi Admn.)
2009 Latest Caselaw 4250 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on: 13.10.2009
%                                                     Date of decision: 22.10.2009


+                               CRL. A. No.126 of 1995


ABDUL RAHIM                                                 ...APPELLANT
                                Through:        Mr. Rajesh Mahajan, Advocate.


                                          Versus


THE STATE (DELHI ADMN.)                                     ...RESPONDENT
                    Through:                    Mr. Sunil Sharma, APP.


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?                   Yes

2.        To be referred to Reporter or not?                    Yes

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

SANJAY KISHAN KAUL, J.

1. The appellant, Abdul Rahim, has been held guilty of

offences under Sections 302/397/34 of the IPC for

committing robbery, causing grievous injuries and the

death of the deceased, Satish, and sentenced to undergo

life imprisonment and to pay fine of Rs.5,000.00 and in

default to pay fine was directed to undergo further six (6)

months imprisonment in terms of the impugned judgement

and order of sentence dated 18.2.1995. It may be noticed

that the offence is stated to have been committed along

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with co-accused, Matloob, who, however, absconded during

trial. The conviction is based on circumstantial evidence.

2. The case of the prosecution is that the deceased, Satish

Narula, used to run the business of hiring of TVs and VCRs.

On 5.11.1986 at about 9:45 p.m., Matloob and the appellant

came to the house of the deceased where he stayed along

with his mother, Shrimati Sheela Devi, PW-3, his elder

brother, Jagdish Narula, PW-8, Suresh Kumar Narula, PW-4

another brother and his father Shri Prakash Lal Narula, PW-

9. The said two persons wanted a TV and VCR installed in

their house by the deceased. The deceased arrived at the

house and went with the said two persons in a rickshaw

with a TV and a VCR and did not return thereafter. Mr.

Jagdish Narula, PW-8, on return from the office on the next

day went to search for the deceased and at about 5:00 p.m.

saw a crowd near the DDA flats in proximity to their

residence where police was also present. The dead body of

the deceased was found lying in a room of an under

construction flat.

3. The prosecution claims that the police was present at site

as on 6.11.1986 and they received a report about a dead

body lying in the DDA flats and the information was entered

in the DD entry No.12/A at 5:10 p.m. (exhibit PW-1/A) and

S.I. Vinod Kumar along with Constable Surender Kumar

were asked to investigate into the matter. S.I. Vinod Kumar

handed over the ruqqa to H.C. Suresh Kumar, who took it to

the police station and the DD entry No.13/A (exhibit PW-

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1/B) was recorded and a formal FIR No.412/86 (exhibit PW-

1/C) was thereafter recorded at 7:20 p.m. in pursuance to

the same.

4. Darshan Singh, PW-14, has deposed that on 6.11.1986 at

about 5:00 p.m. he saw the dead body of a male in the

room of the under construction DDA flats and he went to

P.S. Shakarpur to inform regarding the dead body. Suresh

Kumar Narula, PW-4, joined the investigation of the case

when he identified the dead body of the deceased which

had only an underwear and a banian (vest).

5. S.I. Jaibir Singh, PW-15, has deposed that he along with S.I.

Vinod Kumar and Joginder Kumar proceeded with the

investigation and to search out the accused. In the night of

6/7.11.1986 at about 1:45 a.m., they received a secret

information that the appellant was standing at Shakarpur

bus stop. The appellant was arrested at 2:00 a.m. and a

personal search was conducted by S.I. Vinod Kumar. The

disclosure statement was recorded both of the appellant

(exhibit PW-15/C) and of the other accused, Matloob

(exhibit PW-15/D). The prosecution claims that the place of

occurrence was pointed out by the accused and one colour

TV and a VCR along with two cassettes were recovered as

per memo of articles (exhibit PW-15/G) from the house of

Matloob. The appellant is stated to have got recovered the

clothes of the deceased which were lying in a sealed

pulanda vide seizure memo (exhibit PW-15/H).

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6. Apart from the testimony of S.I. Jaibir Singh, PW-15,

material witnesses in support of the case of the prosecution

are Shrimati Sheela Devi, PW-3, mother of the deceased

and Jagdish Narula, PW-8, brother of the deceased, who is

also the complainant. PW-3 has deposed that Matloob and

the appellant came to their house at about 9:30 p.m. and

that they used to come to their house usually so. They

wanted a TV and a VCR to be installed and the deceased

left with them along with TV and VCR. The testimony of

PW-8 is also to the same effect apart from his endeavour to

search the deceased and thereafter the discovery of the

dead body which has been referred to aforesaid. The father

of the deceased, PW-9, also joined the investigation on

1.12.1986 and produced relevant documents regarding

ownership of the TV and VCR. The TV was sold to one

Prakash Narula, PW-9, by Shanti Swarup, PW-10. The

postmortem of the body was conducted by Dr. L.T. Ramani,

PW-7, on 7.11.1986 and he found that the injury on the

neck was sufficient to cause the death of the deceased

which death was caused so asphyxia resulting from

strangulation.

7. Since there is no ocular witness the conviction is based on

circumstantial evidence. The circumstantial evidence taken

note of by the learned trial judge (as he then was) is set out

in para 20 of the impugned judgement as under:

i. The accused Abdul Rahim along with the co-

accused has gone to the house of deceased to call

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him to install TV and VCR etc. in presence of

mother and brother of deceased;

ii. Deceased along with TV and VCR went in a

rickshaw along with accused persons and he was

seen by his mother and brother going along with

the accused persons with TV and VCR. This was

the last time when the deceased was seen alive;

iii. The dead body of the deceased was found in

underwear and banian on the way, which leads to

the house of accused Matloob (P.O.);

iv. The TV and VCR were got recovered by accused

Matloob from his house;

v. The pant, shirt, jacket and writ watch of the

deceased were got recovered by the accused

Abdul Rahim from his working place;

vi. The accused Matloob was not at home, when the

brother of deceased went in search of him;

vii. The accused persons were arrested after midnight

when they were at the bus stop;

viii. The CFSL report shows that the blood stains found

on the clothes of the deceased, recovered at the

instance of accused Abdul Rahim, were of the

same blood group as that of found on the

underwear and nail-clipping of the deceased,

meaning thereby that the blood stains on the pant,

shirt and jacket were that of the deceased;

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ix. The accused persons had refused to participate in

the Test Identification Parade;

x. The medical evidence showing that deceased was

killed by strangulating with the help of a thin cord

from back, approximately at the time, when he

had left the home.

8. In order to appreciate as to how a case of circumstantial

evidence has to be dealt with, the observations of the

Supreme Court in Sharad Birdhichand Sarda Vs. State of

Maharashtra (1984) 4 SCC 116 are relevant, which are

extracted hereinbelow:

"151. It is well settled that the prosecution, must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity on lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh 1953CriLJ129 . This case has been Uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh (1969)3SCC198 and Ramgopal v State of Maharashtra 1972CriLJ473 . It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at pp. 345-46 of AIR) (supra):

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It is well to remember that in cases where tile evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra 1973CriLJ1783 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and _____________________________________________________________________________________________

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry (1952) NZLR 111, thus:

Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

156. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'.

157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay 1960CriLJ682. Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases --Tufail's case (1969)3SCC198 (supra). Ramgopal's case 1972CriLJ473 (supra). Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19-2-1958), Dharambir Singh v. State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4- 11-1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration 1974CriLJ617 , Mohan Lal _____________________________________________________________________________________________

Pangasa v. State of U. P. 1974CriLJ800 , Shankarlal Gyarasilal Dixit v. State of Maharashtra 1981CriLJ325 and M. G. Agarwal v. State of Maharashtra [1963]2SCR405 a five-Judge Bench decision.

158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar 1955CriLJ1647, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:

But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation...such absence of explanation or false explanation would itself be an additional link which completes the chain.

159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

160. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case 1981CriLJ325 (supra) where this Court observed thus:

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Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."

9. We have, thus, to examine whether the circumstances from

which the conclusion of the guilt has to be drawn have been

fully establish and the same are consistent only with the

hypothesis of the guilt of the accused. The chain of

evidence should also be complete and must show that in all

human probability the act has been done by the accused.

10. On appreciation of the submissions of the learned counsels

for the parties and on examination of the evidence on

record as well as the impugned judgement, in our

considered view, the answer to the same has to be in the

negative. We now proceed to discuss the reasons for the

same.

11. The most important fact to complete the chain is as to

whether the recovery has been made at the behest of the

appellant. The recovery is of clothes of the deceased as

also his wrist watch of HMT make. The disclosure

statement and the recovery memo were both witnessed by

an independent witness Joginder Kumar. Joginder Kumar is

actually the brother-in-law of the brother of the deceased.

This material witness has not even been examined by the

prosecution.

12. Learned counsel for the appellant did contend that there is

significant inconsistency between the disclosure statement

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and the recovery memo inasmuch as the disclosure

statement records that the clothes of the deceased had

been concealed in a room where the appellant resided but

the recovery memo showed that the same were recovered

from the handloom of one Irfan situated at Plot No.30-B,

West Laxmi Nagar Market, Delhi. The contention, thus,

raised was that the recovery cannot be termed under

Section 27 of the Indian Evidence Act, 1872. Learned

counsel for the appellant contended that it could not be

explained as to how the premises of Irfan was connected

with that of the appellant. This aspect, however, has been

explained by learned counsel for the State by referring to

the recovery memo (exhibit PW-15/H). The same records

the residence of the appellant as Village Sahaspur, P.S.

Shivara, District Bijnaur, but presently residing at 30-B,

West Laxmi Nagar Market, Delhi. The handloom of Irfan is

situated in the same plot No.30-B, West Laxmi Nagar

Market, Delhi.

13. The material aspect is that there is hardly any likelihood or

probability for the appellant to have removed the clothes of

the deceased and taken them with him. Learned counsel

for the State submitted that the reason for such removal

could be that it leads to identification of the body on the

basis of the tailor, who may have stitched the clothes. We,

however, find from the photographs that the condition of

the body and the face was such that there could be no

problem in the identification especially when the body was

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dumped in an under construction site nearby. In this

behalf, learned counsel for the appellant has rightly

referred to the observations of the Supreme Court in

Shambhu Dayal Vs. Subhash Chandra 1998 Cri. L.J. 2271

that a person committing a dacoity would hardly be

expected to take away the clothes and thus the evidence

regarding discovery had been rightly rejected.

14. Another aspect of the recovery is that one of the items

alleged to have been recovered is an HMT make wrist

watch. Needless to say that the same ought to have been

proved. The watch of the deceased was not produced or

exhibited in court nor was this aspect put to any of the

investigating officers or the mother or brother of the

deceased. Learned counsel for the respondent contended

that the father of the deceased, PW-9, had moved an

application for release of goods on Superdari and had taken

the watch, which was exhibit P-8. We, however, find that

this can hardly help the prosecution as the release of the

watch on Superdari to the father of the deceased will not

imply that it has been proved that the watch was of the

deceased and that it was the watch, which had been

recovered. The factum of recovery of the watch could,

thus, not even taken into account.

15. We may also note another aspect regarding recovery of the

watch inasmuch as the same had not even been put to the

appellant in the statement recorded under Section 313 of

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the Cr.P.C. The relevant question put in this behalf is as

under:

"It is further in evidence against you that you led the police and got recovered the clothes of deceased from plot No.30-B, West Laxmi Nagar Market, Delhi, which were sealed in a pulanda and seized vide memo Ex.PW-15/H, signed by PW Jaibir Singh, Joginder Kumar and S.I. Vinod Kumar, what have you to say?"

16. Another infirmity which we find in the case of the

prosecution is that S.I. Vinod Kumar, who had carried out

the investigation was not examined. This, in our view, has

caused prejudice to the defence of the appellant for the

reason that the appellant is deprived of his right to cross-

examine S.I. Vinod Kumar to question the steps taken in

investigation. Similar view was taken by the learned single

Judge (as he then was) of this Court in Bhim Sain Vs. State

(N.C.T. of Delhi) 2001 (60) DRJ 489. It was held that the

prosecution has failed to examine the Investigating Officer

before the trial court and consequently, the site plan has

not been proved on record. The prosecution was given

several opportunities to produce the Investigating Officer,

but still he was not examined. He was certainly a material

witness in the case and his non-production has caused

serious prejudice to the defence of the accused for the

reason that the accused petitioner was not in a position to

question the steps taken by the Investigating Officer in the

course of investigation nor he could show to the Court with

the help of the site plan that the allegations against him

were false.

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17. The case of the prosecution is really based on „recoveries‟

and „last seen‟. If the recoveries itself become doubtful on

the basis of „last seen‟, the case cannot be said to be

proved beyond all reasonable doubts against the appellant.

Even if this aspect of „last seen‟ is taken into account the

testimony of PW-8, brother of the deceased, shows he did

not know the accused from beforehand. In the cross-

examination all that he has stated is that the deceased told

the names of the accused before he went with them. The

said witness and his mother were in the courtyard when the

accused came and called for the deceased near the gate of

the house. The witness had no discussion with the accused

except they asked about the deceased. This is admitted in

the cross-examination. Having deposed so, the same is

sought to be covered up by stating that the deceased told

the names of both the accused before he left. This

explanation is sought to be given only because not having

known the names of the accused, the names could not have

figured in the FIR. This throws a doubt on the prosecution

story. Even PW-3, mother of the deceased, only states that

the accused had visited their house earlier and she knew

them. She refers to the accused as Matloob and the

„accused person‟. At least insofar as the appellant is

concerned it appears that even the mother did not know

the name and there is no question of the names ought to

have been appeared in the FIR. The possibility, thus, does

remain that even if Matloob was the person who may have

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committed the offence, the appellant was sought to be

roped in to somehow conclude the investigation.

Interestingly, Matloob has been absconding from the time

of trial and has still not been apprehended.

18. We, thus, find that the prosecution has failed to establish

the case beyond all reasonable doubts against the

appellant. A greater care has to be exercised as the

complete case is based on circumstantial evidence and we

find that the tests laid down in Sharad Birdhichand Sarda

Vs. State of Maharashtra case (supra) are not fully satisfied

in the facts of the present case.

19. The appellant is, thus, acquitted giving him the benefit of

doubt and the appeal allowed. The bail bond and the

surety stand discharged.

20. The aforesaid order concludes the appeal but we find one

disturbing aspect of this case, which is also present in other

appeals coming up before us. There are co-accused, who

are either not apprehended or abscond during trial or

thereafter. It appears to us that there is lack of serious

effort in locating such persons once the trial starts. On

being questioned, learned APP submitted that there is a

process in place for follow up action of such absconding

accused but is unable to give the details of the same nor

the number of such accused who have been apprehended.

He, however, states that the percentage is not very large.

We would like to examine this aspect further as a proper

system must be put in place to ensure that there is a follow

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up action to locate such absconding accused and there is

periodic review of the same. We would like to examine this

aspect as the success rate in locating such absconding

accused would definitely be a material factor.

21. We, thus, direct the Delhi Police to file a report on the mode

and manner of follow up action to locate such absconding

accused and its periodic review. It should also be indicated

as to what has been the success rate in the past, at least

for the immediate past three years. Such a report be filed

at least three (3) days before the next date of hearing.

22. The appeal be listed for directions only in respect of the

aforesaid directions on 20.11.2009.

SANJAY KISHAN KAUL, J.

OCTOBER 22, 2009                                             AJIT BHARIHOKE, J.
b'nesh

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