Nawal vs State
2009 Latest Caselaw 3530 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on: August 19,    2009
                               Judgment delivered on : September 03, 2009

+      CRIMINAL APPEAL NO.85/1995

       NAWAL                                           ..... Appellant
                                 Through:   Ms. Ritu Gauba, Advocate
                      Versus

       STATE                                           ..... Respondent
                                 Through:   Mr. M.N. Dudeja, Advocate

                                     AND

       CRIMINAL APPEAL NO.121/1995

       RAJINDER                                        ..... Appellant
                                 Through:   Ms. Ritu Gauba, Advocate
                      Versus

       STATE                                           ..... Respondent
                                 Through:   Mr. M.N. Dudeja, Advocate

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

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Above appeals are directed against the judgment of conviction

and the order on sentence in Sessions case No.53/1993 flowing out of

FIR No.292/89, P.S. Najafgarh vide which both the appellants have

been convicted under Section 302 IPC read with Section 34 IPC and

Section 201 IPC read with Section 34 IPC and sentenced accordingly.

2. Briefly stated, the case of the prosecution is that on 03.10.1989

at about 12.48 PM, an information about a dead body packed in a

gunny bag found in a vacant house No.85, RZ-B1, Nehru Garden, New

Roshan Pura, was received at Police Station Najafgarh. It was recorded

as DD No.7A(Ex.PW8/A). Copy of the DD report was entrusted to SI

Bhim Singh for verification. He immediately left the police station and

reached at the spot along with Head Constable Jai Narain and

Constable Umed Singh. The information was also conveyed to the

SHO, Inspector M.S. Yadav, who also reached at the spot and took over

the investigation. The gunny bag was opened and the dead body was

extracted. Multiple stab wounds were found on the dead body. SHO,

prima facie, found it to be the case of murder. He prepared Rukka

(Ex.PW2/A) and sent it to the Duty Officer for the registration of formal

FIR under Sections 302/201 IPC. On the basis of the Rukka, formal FIR

was recorded.

3. Inspector M.S. Yadav seized the gunny bag (Ex.P1) and string

(Ex.P2) with which the gunny bag was tied. He also took into

possession the blood stained earth as well as sample earth from the

place of occurrence and prepared the rough site plan. No eye-witness

could be found and the body could not be identified.

4. On 05.10.1989, PW5 Ram Chander, the father of the deceased,

visited the police station and informed that his son Dharmender, who

had left the house on 02.10.1989 at 8.00 PM along with the appellants

Rajinder and Nawal, was missing since then. He was shown the

aforementioned dead body and he identified the body as that of his

missing son Dharmender.

5. On 06.10.1989, appellant Rajinder was arrested from Ram Lila

Ground near Primary Health Centre on the pointing of PW5 Ram

Chander. On interrogation, appellant Rajinder made a disclosure

statement disclosing about his and the appellant Nawal's involvement

in the murder and he led the police party to the house of Nawal and

got him arrested.

6. On 07.10.1989, appellant Nawal led the police party to his

residential house in Village Roshan Pura and from there, he got

recovered blood stained dagger and his blood stained pant and shirt

which were taken into possession vide memo Ex.PW9/A. On the same

day, appellant Nawal led the police party to the shop of Subash Chand

at Gandhi Chowk, Bahadurgarh and got recovered deceased's gold

chain. Subash Chand stated that the gold chain was pawned with him

by the appellants Nawal and Rajinder for Rs.1100/- on 03.10.1989.

The chain was seized vide memo Ex.PW9/D.

7. On the same day, appellant Rajinder led the police party to his

room in House No. RZN-1, New Roshan Pura and disclosed that he in

collusion with appellant Nawal had murdered the deceased in that very

room. Thereafter he got recovered a Pyjama and a shirt, both stained

with blood, and disclosed that he was wearing those clothes at the time

of murder. Those clothes were also taken into possession vide memo

Ex.PW9/C.

8. The Investigating Officer prepared the inquest papers, sent the

body for post mortem, obtained post mortem report, sent exhibits to

CFSL for serological examination, obtained the report of CFSL and on

completion of investigation, filed the charge sheet against both the

appellants.

9. The appellants were charged for having committed offence

punishable under Sections 302 IPC read with Section 34 IPC and 201

IPC read with Section 34 IPC. Both the appellants pleaded not guilty

and claimed to be tried.

10. On conclusion of trial, the learned Additional Sessions Judge

found both the appellants guilty of offences punishable under Section

302 IPC read with Section 34 IPC and Section 201 IPC read with Section

34 IPC. He returned the finding of conviction on the basis of following

circumstances found to be established on record:

(i) Deceased was last seen with the appellants on 02.10.1989 at 8.00 PM;

(ii) His dead body was found in a vacant house in the area of Roshan Pura packed in a gunny bag on 03.10.1989 at 12.48 PM;

(iii) Gold chain of the deceased, which he was wearing when he left his house with the appellants, was got recovered at the instance of appellant Nawal from the shop of one Subhash Chand;

(iv) The recovery of the weapon of offence i.e. dagger and blood stained clothes of the appellant Nawal at his instance;

(v) The recovery of blood stained clothes of appellant Rajinder from his house, at his instance;

(vi) The recovery of blood stained niwar, gadda, bed sheet etc. at the instance of the appellant Rajinder;

(vii) The serological report that all the seized articles on analysis were found to have human blood and the blood stains on the dagger, niwar, gadda, bed sheet, pant and shirt of Nawal and shirt of Rajinder were that of human blood group "B" linking the weapon of offence and the clothes of the appellants with the murder of deceased.

11. The learned counsel for the appellants has submitted that law on

circumstantial evidence is well-settled. Though the conviction can be

based upon circumstantial evidence but the quality of the evidence in

such a case is required to be of high degree and the circumstances

proved should be such so as to form a complete chain pointing towards

the guilt of the accused. If on the basis of circumstances proved on

record there could be an alternative hypothesis pointing towards the

innocence of the accused, then he would be entitled to the benefit of

doubt.

12. The learned counsel for the appellants has submitted that the

learned Trial Court has erred in appreciation of evidence, inasmuch as

it has failed to take notice of the fact that the prosecution has

miserably failed either to prove the factum of last seen or the recovery

of incriminating articles at the instance of the appellants. She has

submitted that the gold chain of the deceased, which has been

projected as a motive for the crime, has not been produced in the court

for identification by PW5 Ram Chander father or PW1 Devender Kumar,

brother of the deceased. She has also pointed out that the learned

Trial Court has failed to take notice of the fact that though PW5 Ram

Chander, the father of the deceased, the alleged witness to recovery of

gold chain from the Shop of Subhash Chand at the instance of Nawal,

has denied the recovery of gold chain in his presence. Thus, she has

submitted that the Trial Court ought to have extended benefit of doubt

to the appellants.

13. Learned counsel for the State, on the other hand, has submitted

that the learned Trial Court has rightly held that above referred

circumstances have been proved on record and those circumstances

lead to only one conclusion that the appellants have committed murder

of the deceased with a view to grab his gold chain which he was

wearing at the time of murder.

14. We have considered the submissions made on behalf of the

appellants as well as the State and perused the material on record.

15. The case of the prosecution rests heavily on the last seen

evidence. As per prosecution, on 02.10.1989 at about 8.00 PM

appellants Rajinder and Nawal had visited the house of the deceased to

take him along for watching Ram Lila and the deceased left with them,

thereafter he never returned. To prove this, prosecution has examined

PW1 Devender Kumar, brother of the deceased and PW5 Ram Chander,

father of the deceased. Testimony of these witnesses is contradictory

on the aspect whether or not Nawal had visited the house of the

Dharmender on the night of 02.10.1989. PW1 Devender Kumar has

stated that on the said night his deceased brother had left the house

along with both the appellants, whereas PW5 Ram Chander, father of

the deceased, has given a contradictory version stating that only

appellant Rajinder had visited their house on the said night and took

his son along with him. In his cross-examination, he denied the

suggestion put to him that appellant Nawal had also accompanied

Rajinder to call his son Dharmender. The aforesaid contradiction casts

doubt against the correctness of prosecution story.

16. It is the admitted case of the prosecution that the dead body was

recovered in a vacant house at Roshan Pura on 03.10.1989 but, on the

said day it could not be identified. PW11, Inspector M.S. Yadav, the

Investigating Officer in his cross-examination has stated that the

identity of the deceased Dharmender could be fixed only on

05.10.1989 when his father PW5 Ram Chander visited the Police

Station to report about his missing son and identified the dead body of

his son when shown to him. PW11, Inspector M.S. Yadav has stated in

his cross-examination that he met PW1 Devender Kumar and PW5 Ram

Chander for the first time on 05.10.1989. Statement Ex.PW5/A of PW5

Ram Chander recorded under Section 161 Cr.P.C. is purported to have

been recorded on 05.10.1989. Aforesaid stand of the Investigating

Officer is belied by inquest papers Exhibits PW2/E, PW11/E and PW11/D

which are dated 03.10.1989. The Investigating Officer in his cross-

examination is categoric that he prepared those inquest documents on

03.10.1989. A perusal of the inquest report Ex.PW11/D reveals that as

per this document, deceased Dharmender was identified by the

witnesses PW5 Ram Chander S/o Rewa Prasad and PW1 Devender

Kumar on 03.10.1989, meaning thereby, the witnesses Ram Chander

and Devender Kumar had met the Investigating Officer on 03.10.1989.

No explanation has come on record as to why the statement under

Section 161 Cr.P.C. of said two witnesses regarding the last seen

evidence i.e. the deceased having left with the appellants on

02.10.1989 at about 8.00 PM was not recorded by the Investigating

Officer on 03.10.1989. Instead, the Investigating Officer has tried to

conceal this fact and is insistent that he met the witnesses Ram

Chander and Devender Kumar for the first time on 05.10.1989. The

aforesaid distortion of facts on the part of the Investigating Officer

points towards an unfair investigation and raises a strong doubt

against the correctness of the prosecution case, and a possibility

cannot be ruled out that the evidence of last seen evidence was

introduced as an after thought by the Investigating Officer with a view

to solve the blind case by recording the statements of PW1 and PW5 to

that effect on 05.10.1989.

17. The other main circumstance forming basis of conviction of

appellants is the recovery of incriminating articles at their instance.

Case of the prosecution is that appellant Nawal got recovered the

weapon of offence (dagger) Ex.P-1 as also blood stained pant Ex.P-2

and blood stained shirt Ex.P-3 which he was wearing at the time of the

alleged murder vide pointing-cum-seizure memos Ex.PW-9/A and

Ex.PW-9/B. It is also the case of the prosecution that appellant

Rajinder got recovered his blood stained shirt Ex.P-4, and Pyjama Ex.P-

5 which he was wearing at the time of the alleged murder, vide

pointing-cum-seizure memo Ex.P-9/D. On perusal of the above referred

pointing out-cum-seizure memos, it transpires that these memos are

purported to have been witnessed by SI Bhim Singh, SI Geeta Ram,

PW-5 Ram Chander, father of the deceased. Only non-official witness

to the aforesaid seizure memos, PW-5 Ram Chander, has not

supported the case of the prosecution regarding the recovery of

incriminating articles i.e. dagger Ex.P-1, blood stained clothes of the

appellant Nawal Ex.P-2 and Ex.P-3 and blood stained clothes of the

appellant Rajinder Ex.P-4 and Ex.P-5 at the instance of respective

appellants. Though he was cross examined by learned APP, strangely

he was not confronted with his signatures on either of the above

referred pointing out-cum-seizure memos Ex.PW-9/A, Ex.PW-9/B and

Ex.PW-9/D. He was not even asked about the recovery of the blood

stained clothes Ex.P-2 to Ex.P-5 at the instance of respective appellants

Nawal and Rajinder. In the cross examination, he denied the

suggestion that the dagger Ex.P-1 was recovered in his presence.

Since only non-official witness PW5 Ram Chander, who happens to be

the father of the deceased, has failed to support the prosecution case

regarding recovery of the incriminating articles at the instance of

respective appellants, we do not consider it safe to rely upon the

version of police officers PW-9, SI G. R. Kanshwal, PW-13, Bhim Singh

and the Investigating Officer PW-11, Inspector M.S. Yadav regarding

recovery of dagger Ex.P1 and blood stained clothes Ex.P2 to P5 at the

instance of respective appellants.

18. The third main circumstance forming basis of conviction of the

appellants is the alleged recovery of the gold chain belonging to the

deceased at the instance of appellant Nawal from the shop of one

Subhash Chand situated at Gandhi Chowk, Bahadurgarh. Ex.PW9/D is

the recovery memo pertaining to the said recovery. It is purported to

have been signed by PW5 Ram Chander as one of the witnesses. PW5

Ram Chander, who is the only non-official witness to the recovery of

the gold chain, has categorically stated that the gold chain was not

recovered in his presence. He was declared hostile and during cross-

examined, the learned APP did not opt to suggest to him that the

appellant Nawal led the Police party to the shop of Subhash Chand and

got the gold chain recovered. Further, the case of the prosecution is

that while producing the gold chain, Subhash Chand disclosed that it

was pawned with him by the appellants Nawal and Rajinder. Neither

the said gold smith Subhash Chand has been produced as a witness

nor has any document regarding the pawning of the gold chain by the

appellants been proved on record. In this view of the matter, we do

not find it safe to rely upon the testimony, regarding recovery of gold

chain, of the official witnesses, namely, SI G. R. Kanshwal and the

Investigating Officer, Inspector M.S. Yadav who obviously are

interested in the success of the case.

19. From the above discussion, it emerges that the prosecution has

failed to establish following circumstance i.e. the deceased was last

seen leaving with the appellants on 02.10.1989, recovery of the

weapon of offence Ex.P1 and blood stained clothes of the appellants

Ex.P2 to P5 and the recovery of gold chain of the deceased at the

instance of the appellant Nawal, beyond reasonable doubt. The

remaining circumstance i.e. recovery of the dead body packed in a

gunny bag and the serological report, in our view, are not sufficient to

establish the guilt of either of the appellants. They are, therefore,

entitled to benefit of doubt.

20. Both the appeals are, accordingly, allowed. Impugned judgment

and order on sentence are herby set aside and the appellants are

acquitted of charges under Section 302 IPC read with Section 34 IPC

and Section 201 IPC read with Section 34 IPC.

21. The appellants are on bail. Their bail bonds and surety bonds are

cancelled and discharged.

AJIT BHARIHOKE, J.

SEPTEMBER 03, 2009                            SANJAY KISHAN KAUL, J.
gm/pst