Arun @ Khadak Singh vs State
2010 Latest Caselaw 3616 Del

              THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment Reserved on: 02.08.2010
                                       Judgment Pronounced on: 05.08.2010
+            CRL.A. 1052/2009

ARUN @ KHADAK SINGH                                              ... Appellant

                                      - versus -
STATE                                                          ... Respondent

Advocates who appeared in this case:
For the Appellant       : Mr Akhilesh Kr Pandey, Mr D.Pattnaik and Mr Surinder Singh
For the Respondent      : Ms Richa Kapoor, APP

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

      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

V.K. JAIN, J.

1. This appeal is directed against the judgment dated

10th September 2009 and Order on Sentence dated 15th

September 2009, whereby the appellant was convicted under

Section 302 of IPC and was sentenced to imprisonment for life

and to pay fine of Rs 20,000/- or to undergo S.I. for two

months in default.

2. On 13th February 2008, an information was received

at Police Control Room that a male dead body was lying near

E-14, Railway Line in Wazirpur Industrial Area. The

information was conveyed to Police Station Ashok Vihar. On

reaching the spot, police officers found the half naked dead

body of a young man lying there. They also found a brick and

a concrete stone stained with blood, lying near the dead body.

On search of the pant of the deceased, it was found to contain

a paper slip bearing the address of Updater Services Pvt. Ltd,

C-154, Ground Floor, Lajpat Nagar, New Delhi. One mobile

number was also found written on the paper slip. On

contacting the person, whose mobile number was found

written on the slip, he reached the spot and identified the dead

body to be of his employee Sonu. The family members of the

deceased were informed and they reached the mortuary where

statements of the brother and mother of the deceased were

recorded. They claimed that the deceased had left with the

appellant at about 5.00 PM on 12th February 2008 and had

not returned thereafter. The case of the prosecution is that

the murder of the deceased Sonu was committed by the

appellant Arun @ Khadag Singh.

3. The prosecution examined 15 witnesses in support of

its case. No witness was examined in defence. MHC(M) of

Police Station Ashok Vihar was examined as a Court witness.

The learned Trial Court based the conviction of the appellant

on the following circumstances:-

"A) Recovery of dead body of deceased Sonu @ Deepak at about 8.15 AM on 13.2.2008 near Railway under bridge, Ashok Vihar, Phase-II, Wazirpur

Industrial Area, Delhi near C-14 Railway Line with its head and mouth smashed and blood was found scattered and the recovery of weapon of offence i.e. one brick Ex. P1 and concrete stone Ex.P-2.

B) Going of deceased Sonu @ Deepak on 12/2/2008 at about 5.00PM with the accused from his jhuggi no.A/35, S.S. Nagar, Wazirpur Industrial Area, Delhi.

C) Presence of PW4 Dayawati at her jhuggi alongwith deceased when accused came to their jhuggi and asked the deceased to accompany him for brining bicycle from his working place.

D) In the presence of PW5 Vijay Kumar, visit of deceased Sonu alongwith accused Arun @ Khadag Singh and one Phool Chand to his working place at Reliance Shop at Rana Pratap Bagh on 12/2/2008 at about 7.00 PM for taking his bicycle left there on previous day and the absence of the deceased on the said date of duty because of ill-health.

E) Leaving of the accused and the deceased from the said Reliance shop at Rana Pratap Bagh alongwith bicycle at about 7.30 PM in haste and insistence of accused for an earlier departure from there.

F) Previous enmity between accused and deceased because of a quarrel about 8 months before this incident and infliction of blade injury by the accused to PW3 Mahipal Singh, brother of deceased who had intervened in the quarrel between them and registration of a criminal case in that regard.

G) Arrest of accused on 13/2/2008 at about 5.00 PM and his making of

disclosure statement Ex.PW4/F stating that on the spot of occurrence he alongwith deceased consumed liquor and while deceased was urinating, he hit upon head with the weapon of offence Ex.P1 and Ex.P2.

                H)     While causing injury to the
                deceased    with   Ex.P1    and    Ex.P2,

spreading of blood on the clothes and the shoes of the accused.

I) In pursuance to the disclosure statement Ex.PW4/F recovery of blood stained of shoes Ex.P4 (Ex. 8 as per PSL report Ex.PW15/B) from the roof of the jhuggi of the accused i.e. A/339, S.S.

Wazirpur Industrial Area, Delhi.

J) In pursuance to the disclosure statement Ex.PW4/F, recovery of one jacket, trouser, baniyan (T-Shirt) Ex.7C, Ex.7A and Ex.7B (as per FSL-report Ex.PW15/B), worn by him at the time of commission of offence, from the roof of the jhuggi no.A/339, S.S. Nagar, Wazirpur Industrial Area, Delhi

K) Detection of human blood of group-B as of deceased on Ex.8 as per FSL-report.

L) Detection of ethyl alcohol in the blood of the deceased as per FSL-report dated 26/6/2008 of Chemistry Division of FSL, Rohini with regard to Ex.5 as mentioned in FSL-report Ex.PW15/B.

M) Recovery of Hero Jet bicycle standing on the other side of the railway line, near railway line under bridge Ashok Vihar Phase-II Delhi which belonged to deceased and his brother.

N) Possibility of use of Ex.P1 and [email protected] (weapon of offence) in causing

injury due to which death occurred as per postmortem report Ex.PW7/A and opinion regarding weapon of offence Ex.PW7/E.

O) Time of death as per postmortem report Ex.PW7/A almost corresponding to the time of possible presence of deceased on the spot of occurrence and the commission of the offence after 7.30 PM on 12/2/2008.

                P)     The time gap when the deceased
                was last seen alive in the company of the
                accused and his death to be very small
                and not very large.

                Q)     Motive of the crime due to
                previous enmity and pendency of a
                criminal case vide FIR no.240/07 u/s
                324IPC Ex.PW10/A."


Circumstance No. (A)

4. Arrest of the appellant near Mother Dairy, recovery of

dead body, brick Ex.P-1 and concrete stone Ex.P-2, which are

alleged to be the weapons of offence, are only facts of the case

and do not in any manner incriminate the appellant or

connect him with the murder of the deceased.

Circumstance No. (G)

5. The alleged disclosure statement of the appellant Ex.

PW4/F, stating therein that he consumed liquor with the

deceased and hit upon his head with the weapons Ex.P-1 and

P-2, at the time the deceased was urinating, is a confessional

statement made before a police officer while in his custody

and, therefore, hit by Section 26 of the Evidence Act. The

brick and concrete stone Ex. P-1 and P-2, respectively, had

already been seized by the police even before the appellant was

arrested. No fact was discovered by the police pursuant to

this part of the disclosure statement and, therefore, it is not

admissible under Section 27 of Evidence Act.

Circumstance No. (L)

6. Presence of methyl alcohol in the blood of the

deceased cannot be said to be a circumstance incriminating

the appellant, since there is no evidence of the deceased

having taken liquor with the appellant. In fact, PW-5 Vijay,

brother of the deceased stated that on the date this incident

took place, the deceased had not taken any drink due to ill

health and he was taking medicine.

Circumstance No. (J)

7. No blood stain was found on the clothes Ex. 7A, 7B

and 7C, when they were examined by FSL vide its report Ex.

PW15/B. Presuming them to be the clothes of the appellant,

they do not connect him with the murder of the deceased in

any manner.

Circumstance No. (M)

8. The case of the prosecution is that one bicycle

belonging to the brother of the deceased, which also was being

used by the deceased was found near railway line on 13th

February 2008. According to PW-14 SI Amar Singh, the

bicycle was lying at a distance of about 20-25 yards from the

dead body. We fail to appreciate how recovery of this bicycle

can be said to be a circumstance incriminating the appellant,

when the bicycle had been recovered by the police even before

he was arrested. Therefore, recovery of the bicycle does not in

any manner connect the appellant with the murder of the

deceased.

Circumstance No. (N)

9. The case of the prosecution is that the brick Ex. P-1

and concrete stone Ex. P-2 could have been used for

committing murder of the deceased. According to PW-7 Dr

Kulbhushan Goel the possibility of use of these two objects in

causing injuries mentioned in postmortem report Ex. PW7/A

cannot be ruled out. Since these objects had been recovered

before arrest of the appellant and were not recovered pursuant

to any information supplied by him to the police, they do not

in any manner connect him with the murder of the deceased.

Circumstances No. (B) and (C)

10. PW-3 Mahipal Singh, brother of the deceased and

PW-4 Dayawati, mother of the deceased are the two witnesses

produced by the prosecution to prove these circumstances

alleged against the appellant. According to Mahipal Singh, he

knew the appellant, he being their neighbour. On 12th

February 2008 at about 5.00 PM the appellant came to their

jhuggi and took his younger brother Sonu with him on the

pretext of having a round and bringing the bicycle, which the

deceased had left at his duty place. His mother and other

family members were also present at the jhuggi at that time.

The deceased left with the appellant saying that he will come

in the evening, along with the bicycle. He, however, did not

return till night and they searched for him at 3-4 places, but,

he was not traceable. In cross-examination, he stated that the

deceased used to leave for his work at 8.00 AM and return at

4.00 PM. He further stated that on that day deceased Sonu

did not go to work, due to his ill health. About himself, the

witness stated that he used to leave for work at about 9.30 AM

and return at 6.00 PM, but on that day he returned early due

to absence of work. Probably what he meant to say was that

he had returned early because he had no work to do at his

work place. PW-4 Dayawati stated that on 12th February 2008

at about 5.00 PM the appellant Khadag Singh came to their

house and took her deceased son Sonu with him for a round.

Sonu, however, did not return till late night. At that time her

son Mahipal was also present in the jhuggi. In cross-

examination, she stated that Sonu had gone to work on that

day, but had returned by 4.30 PM.

11. PW-3 and PW-4 have contradicted each other on as

to whether deceased Sonu had gone for his work on 12th

February 2008 or not. The contradiction cannot be said to be

insignificant or on a peripheral issue, unconnected with the

core part of the testimony of the witnesses. Whether Sonu

had actually gone to work on that day or not was a very

material fact, particularly because according to Dayawati at

the time of this incident Sonu used to return from work by

10.00 PM. No attempt was made by the Investigating Officer

to ascertain, from the employer of the deceased, as to whether

he had attended is duty on 12th February 2008 or not and in

case he had attended the duty, at what time he had returned

on that day. Therefore, we cannot say whether the deceased

had gone for duty on that day or not and if he had gone there,

at what time he had returned from duty on that day.

12. According to PW-3 Mahipal Singh, during the night

they did not lodge any complaint with the police regarding non

return of Sonu. According to PW-4 Dayawati they waited till

11.00 PM, but did not make any complaint in the night about

Sonu in returning home. She also stated that deceased never

remained absent from the house on any night on any earlier

occasion. It has come in the deposition of PW-3 Mahipal

Singh that the appellant was their neighbour. Had the

deceased gone with the appellant, as claimed by PW-3 and

PW-4, the first thing they would have done, when he did not

return till late in the night, was to go to the jhuggi of the

appellant and ask him as to where the deceased was. Neither

PW-3 nor PW-5 claim that they had gone to the jhuggi of the

appellant to enquire about the deceased. There is absolutely

no explanation for the family members of the deceased

conducting themselves contrary to the normal course of

human conduct in this regard. The family members of the

deceased not going to the jhuggi of the appellant to enquire

about the deceased becomes all important, considering the

fact that the appellant admittedly was already facing a

criminal trial for causing injury to PW-3 Mahipal, brother of

the deceased. According to Mahipal, the deceased had

opposed the pressure put by the appellant on him to

compromise the matter. If the deceased was opposing

compromise in that matter, his relations with the appellant

could not have been cordial and consequently the chances of

the family members allowing him to accompany the appellant

were rather remote. If a person leaves his house with a

person, who is not on good terms with him and does not

return home till late in the night, his family members would

either go to the house of the person whom the missing family

member had accompanied, apprehensive as they would be

about his safety and well being or they would straightaway go

to the police and lodge a report, naming the person whom the

deceased accompanied, as a suspect. In the present case,

neither course was adopted by the family members of the

deceased. In fact they did not lodge any report with the police

even in the morning of 13th February 2008 and till the police

discovered the dead body of the deceased near railway line. In

these circumstances, we find it difficult to accept that the

deceased had accompanied the appellant in the evening of 12th

February, 2008.

13. We would like to add here that though the case of the

prosecution is that the deceased was not well on that day and

according to PW-3, Mahipal Singh, he had gone nearby to

Dr.Vijay on that day for consultation, the doctor has not been

examined to verify this part of the statement of PW-3. Had

that been done, we could at least have confirmed that the

deceased was not well and had come to his house at about

5.00 pm on that day. This becomes more relevant, considering

that even the employer of the deceased was not examined in

this regard.

14. PW-3, Mahipal Singh, has stated that he used to

leave for work at about 9.30 am and return by 6.00 pm, but,

on that day, he returned early. The employer of the witness

was examined to verify this part of his deposition. Had that

been done, it could have been confirmed that this witness

could be present in his jhuggi at about 05.00 pm on that day.

For the reasons stated hereinabove, these

circumstances do not stand established beyond reasonable

doubt.

Circumstances No. (D) and (E)

15. According to PW-5 Vijay, brother of the deceased, he

had seen the deceased at the place where he was working at

about 07.00 pm on 12th February, 2008 and at that time, the

appellant Khadag Singh was accompanying him, alongwith

another boy named Phool Chand. According to him, Sonu was

not keeping well on that day and had come for taking his

balance salary and bicycle. All the three, according to the

witness, left at about 07.30 pm. Admittedly, the statement of

this witness was recorded by the police after three months.

There is absolutely no explanation for not recording the

statement of this witness for as much as three months.

According to the witness, on 13th February, 2008 itself, he had

received a telephonic call at his residence asking him about

whereabouts of the deceased and thereafter, he alongwith

police, had reached the place of his mother, where he was told

that Sonu had been murdered. He further stated that the

police took him, his mother and his brother to identify the

dead body of Sonu. Thus, not only did the witness come to

know about the murder of his brother in the morning of 13th

February, 2008, he also met the police officials and

accompanied them to hospital to identify the dead body of the

deceased. Had he actually seen the deceased leaving with the

appellant at about 07.30 pm the previous day, the first thing

he would have done was to disclose this fact to the police as

well as to his mother and brother. The conduct of this witness

in remaining silent for three months, without an iota of

explanation, creates very serious doubts on his truthfulness

and destroys his credibility as a witness. No one, who saw his

deceased brother, accompanying another person only about

14-15 hours before coming to know of his murder would keep

such a material fact to himself. This is more so when the

person, whom the deceased accompanied, cannot be said to be

on good terms with him and was facing trial for causing

injuries to the brother of the deceased and the deceased being

opposed to any compromise with him. Another reason as to

why we are not inclined to believe this witness is that he has

introduced another person, namely, Phool Chand when he

deposed in the Court. He did not name Phool Chand when he

was examined by the investigating Officer. Phool Chand

probably is the co-accused of the appellant in the trial which

he is facing for causing injury to PW-3 Mahipal Singh, brother

of the deceased. We would also like to note that no evidence

has been collected by the Investigating Officer to prove that

the deceased actually collected any money on 12th February,

2008.

16. It has come in the deposition of the witnesses that

the deceased had gone to his work place in the evening of 12 th

February, 2008 to collect the bicycle he had earlier left there.

The prosecution has not told the Court as to why in the first

place the bicycle was left by the deceased at his work place

and why the deceased decided to bring his bicycle back on 12th

February, 2008, despite his being sick on that date. No one

from the place where the deceased was employed was

examined to verify whether the deceased had left his bicycle at

his work place on that day and that he had come there in the

evening of 12th February, 2008, to collect his bicycle.

For the reasons stated hereinabove, we hold that

these circumstances are also not proved against the appellant.

Circumstances No. (H), (I), (K) and (P)

17. The case of the prosecution is that the appellant was

arrested on 13th February, 2008 when he was standing near

Mother Dairy and during interrogation, he made disclosure

statement Ex.PW-14/F stating therein that he could get the

clothes and shoes recovered from the roof of his jhuggi. It is

also the case of the prosecution that the appellant took the

police to his jhuggi and his clothes as well as his shoes were

found lying on the roof. The shoes were found stained with

blood. When the shoes were examined by FSL, they were

found to contain human blood of group „B‟ which was also the

blood group of the deceased. No bloodstain was found on the

clothes, alleged to have been recovered from the roof of the

jhuggi of the appellant.

18. The Seizure Memo Ex.PW-14/G does not indicate

that the clothes were found washed when they were seized.

The report of FSL, Ex.PW-15/B, however, refers to the Ex.PW-

7/A as one dirty pant. This indicates that at least the pant had

not been washed before it was seized by the appellant. The

report of FSL does not indicate that any of the three clothes of

the appellant viz. Ex.PW-7/A, 7/B and 7/C was found to be

washed or had some faint trace of blood on them. Even

otherwise, the alleged recovery of clothes and shoes, to our

mind, is highly doubtful. We must note here that the learned

Trial Judge summoned these shoes from the Malkhana and

made the appellant wear them. The appellant maintained that

the shoes did not belong to him. He, however, was made to

wear them and it was observed by the learned Trial Judge that

he could easily wear those shoes. The appellant was also made

to wear the pant and T-shirt, which the police claimed to have

seized from the roof of jhuggi, though he maintained that those

clothes did not belong to him. The T-shirt and pant were

found to be almost of the size of the appellant. The trouser

was, however, found tight on his waist and the learned Trial

Judge was of the view that this could be on account of change

in the waist line with the passage of time. It was also found

that the length of the arm of the jacket, seized by the police,

was more than the size of the arm length of the appellant.

19. The bloodstained shoes are alleged to have been

recovered in the evening of 13th February, 2008. The appellant

was arrested at about 05.00 pm on that day, as is evident

from the arrest memo Ex.PW-14/D. The case of the

prosecution is that the murder took place at about 09-10 pm

on 12th February, 2008. It has also come in the deposition of

Investigating Officer that the appellant had washed his clothes

before they were seized by the police though it is not so noted

in the Seizure Memo. We fail to appreciate why the appellant

would not wash his bloodstained shoes if he chose to wash his

clothes. The only reason for washing the clothes could be the

presence of bloodstains on them. If the appellant noticed

bloodstains on his clothes, he would also have noticed them

on his shoes when the police officers were able to notice them

at the time of their seizure and, therefore, he would have

washed not only the clothes, but the shoes as well.

20. The appellant had ample time as well as the

opportunity with him to either wash his bloodstained shoes or

to just damage or throw them away at a place where they

could not be easily found. He could not have been so foolish so

as to keep the bloodstained shoes at the roof of his own jhuggi.

It is not as if the appellant was absconding after murder of the

deceased and, therefore, had no opportunity to wash his

shoes, throw them away or otherwise damage them beyond

recognition and retrieval. No report had been lodged against

him at least till 10.00 am on 13th February, 2008. No one had

come to his jhuggi to enquire about the deceased. Therefore,

had there been bloodstains on his shoes, he would have either

washed or thrown them away. In any case, he would not have

been kept them at the roof of jhuggi, in case he had brought

the deceased with him as the case of the prosecution is. In

case, the appellant had brought the deceased with him, he

knew that he would be the prime suspect when the dead body

of the deceased would be found. Therefore, the roof of his own

jhuggi could not have been chosen by him as the place to

conceal the clothes and shoes which he was wearing at the

time of committing the murder. If the purpose was to get rid of

the bloodstained shoes or conceal them, the appellant would

not have kept them at the roof of his jhuggi.

21. Therefore, we are constrained to hold that the

prosecution has failed to establish these circumstances alleged

against the appellant.

Circumstances No. (O) and (P)

22. Since, we have not believed the evidence that the

deceased was last seen in the company of the appellant, either

at about 05.00 pm or at about 07.30 pm, the time of his death

as well as the gap between the time the appellant is alleged to

have taken the deceased with him and the time the death of

the deceased becomes immaterial and loses its significance.

Circumstances No. (F) and (Q)

23. It has come in the evidence that there was a quarrel

between the appellant and PW-3 Mahipal Singh and the

appellant was facing trial for causing injuries to Mahipal

Singh. The case of the prosecution is that since the deceased

was opposed to his brother Mahipal Singh compromising with

the appellant in that matter, there was a previous enmity

between the appellant and the deceased motive which was the

motive for the appellant to commit his murder. The contention

of the learned counsel for the appellant in this regard was that

a person facing trial for causing injury to a person was not

likely to commit a murder since by doing so, he would be

committing a heinous crime, punishment for which is much

more than the punishment for causing injury to a person. We,

however, need not go into that aspect since even if it is

believed that the appellant had a motive to commit murder of

the deceased, that by itself, cannot be a sufficient ground for

his conviction, in a case based purely on circumstantial

evidence.

Conclusion

24. It is a settled proposition of law that in a case based

on circumstantial evidence, the circumstances from which a

conclusion of guilt is sought to be drawn should be fully and

firmly established and should be conclusive in nature and

tendency. The circumstances, taken together, must form a

chain which is complete, leaving no material gap in between

and should be incompatible with any hypothesis other than

that of the guilty of the accused. The circumstances

established against the accused must show that in all

probability, no one, other than him, had committed the crime

for which he was indicted.

25. In the present case, the prosecution has failed to

prove that the deceased had left his jhuggi with the appellant

at about 05.00 pm on 12th February, 2008. The prosecution

has also failed to prove that the deceased was seen by his

brother PW-5 Vijay at about 07.30 pm on 12th February, 2008.

The alleged recovery of bloodstained shoes from the roof of

jhuggi of the appellant also does not stand established beyond

reasonable doubt.

26. Another reason we doubt the evidence of „last seen‟ is

that admittedly the appellant was very well known to the

family of the deceased. If the appellant was to commit his

murder, he was not likely to have come to his house to take

him along with him, because he knew that if the deceased is

murdered, he would be the prime suspect and would be asked

to tell where the deceased was left by him, at what time and

under what circumstances. In case he takes that risk, he is

most likely to abscond so that he is not made to explain the

whereabouts of the deceased. This is not a case where the

deceased was seen in the company of the appellant by an

outsider, unknown to either of them. It is, therefore, quite

unlikely that the appellant would have taken the deceased

with him, committed his murder and also remained present in

the locality in which he was residing. This is more so when he

also knew that he was bound to be suspected of the murder of

the deceased on account of his facing trial for causing injuries

to his brother. It is, therefore, difficult to accept the evidence

of „last seen‟ produced in this regard.

27. EX.PW-7/D are the brief facts prepared by the

Investigating Officer on 14th February, 2008. The case of the

prosecution is that the statement of PW-3 Mahipal Singh and

PW-4 Maya Devi were recorded on 13th February, 2008. In

their statements under Section 161 of Cr.P.C, both of them

claimed that the appellant had taken the deceased with him

from their house at about 5.00 pm on 12th February, 2008.

Thus, the Investigating Officer knew, on 13th February, 2008

itself that the appellant was prime suspect in this case. The

case of the prosecution is that the appellant had also

confessed to his crime and made a disclosure statement on

13th February, 2008 pursuant to which the blood stained

shoes were also recovered from the roof of the jhuggi on 13th

February, 2008. However, in the brief facts prepared on 14th

February, 2008, there is not a word against the appellant.

These brief facts not only refer to the recovery of the dead body

they also give the name and complete address of the deceased.

There is no explanation for not recording, in the brief facts,

that the deceased had accompanied the appellant Khadag

Singh @ Arun on 12th February, 2008 and he was arrested on

13th February, 2008 for committing his mother. There is no

reference to recovery of any clothes or shoes in this document.

There may not be any statutory obligation to give these facts in

the Brief Notes. But, when the Investigating Officer, despite

having an occasion to do, omits to state these material facts,

this, when viewed in the other facts and circumstances of the

case, creates some doubt on the truthfulness of the story of

„last seen‟ set up by the prosecution.

For the reasons given in the preceding paragraph, the

appellant is given benefit of doubt and is hereby acquitted.

The impugned judgment and order on sentence are set aside.

The appeal stands allowed.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE AUGUST 05, 2010 Ag/bg