Sita Ram vs State
2010 Latest Caselaw 1106 Del

R-88
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 25th February, 2010

+                    CRL.APPEAL NO.810/2006

       SITA RAM                                  ..... Appellant
                     Through:   Mr.Mukesh Jain, Advocate

                                versus

       STATE                                    ..... Respondent
                     Through:   Ms.Richa Kapoor, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the 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 the
        Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. With reference to the testimony of Smt.Sita Devi

PW-2, the learned Trial Judge has held that the same

establishes that appellant Sita Ram was seen by her in the

company of Master Deepak aged 7 years at around 5:30 PM on

9.9.2003. Since the post-mortem report of Master Deepak

opined that the likely time of death of the young unfortunate

boy was 8:30 PM on 9.9.2003, the child being sodomized and

battered to death with stones, the appellant not giving any

explanation as to when could he part company with Master

Deepak, the verdict of guilt has been returned.

2. We may clarify that the likely time of death of the

deceased has been referred to in the post-mortem report by

recording that the likely time of death was 42 hours prior to

when the post-mortem was conducted and this leads to the

inference of the likely time being 8:30 PM on 9.9.2003.

3. Master Deepak being missing from his house and

his absence being noticed in the late evening of 9.9.2003 finds

first mention in Ex.PW-16/A; the missing person's complaint

lodged by Jagdish Chand PW-1 at the local police station on

10.9.2003 at around 11:30 AM.

4. Relevant would it be to note that in the said missing

person's complaint lodged at 11:30 AM on 10.9.2003, Jagdish

Chand has not named anybody as a suspect. He has simply

informed that his child was missing since the evening of

9.9.2003 and could not be found. The age of the boy, his

features, his height and the clothes which he was wearing

stand disclosed therein.

5. As deposed to by SI Anil Kumar, he was directed to

investigate and recover the child. On 10.9.2003 when he and

the father of the child were moving around in the area

enquiring from various persons whether they had seen the

child they received information that a crowd had gathered

towards theka sharab Kirti Nagar. Before that they had met a

lady named Sita Devi who had told them that Sita Ram was

seen by her in the company of Deepak. As they reached the

place where the crowd had gathered they saw the dead body

of Deepak about 50 yards away from the railway track. There

were injuries on the forehead and the face.

6. Eschewing reference to the spot proceedings

conducted and noting that as per the post-mortem report

Ex.PW-17/A proved by Dr.Chanderkant PW-17, the post-

mortem on the dead body was conducted on 11.9.2003 at 2:30

PM the child had died approximately 42 hours prior. The child

was battered with a blunt object. He had also been

strangulated. Injury No.13 showed tearing of the anal region

clearly suggestive of the child being sodomized.

7. The FIR was registered on the basis of the rukka

consisting of the statement Ex.PW-1/A made by Jagdish to SI

Anil Kumar PW-21 at the spot where the dead body of the child

was recovered.

8. Deposing in Court Jagdish Chand PW-1 stated that

his son was missing since 9.9.2003 and he lodged the missing

person's report on 10.9.2003. He was told by the children in

the neighbourhood that accused was seen taking away his son

and therefore he knocked the door of the house of accused

Sita Ram at 8:30 PM on 9.9.2003 and at that time he saw Sita

Ram's mother washing blood stained clothes. Sita Ram did not

get up as he was under intoxication of liquor. He returned to

Sita Ram's house after an hour. Sita Ram told him that he had

left his son on the way as he went to consume liquor. At his

asking Sita Ram accompanied him to search for his son who

could not be traced till 11:00 PM. When, due to darkness they

came back. He lodged the report of his son being missing and

raised suspicion on Sita Ram. The police assured him that the

FIR would be registered and needful would be done. The next

day he searched his son and finally when the dead body of his

son discovered he made the statement Ex.PW-1/A.

9. Since Jagdish Chand PW-1 did not utter any word of

Sita Ram having told anything to him, he was declared hostile

and cross-examined by the learned APP. This is what he had

to say when he was cross-examined by the learned APP: 'It is

wrong to suggest that I was told by one Sita Devi that he

(should read as she) saw accused Sita Ram at about 5:30/6:00

PM taking away my son Deepak. However, Sita Devi only told

that one person bought bhutta from her for my son. She did

not name the person who bought bhutta for my son.'

10. Sita Devi PW-2 deposed that she used to sell corns

and on 9.9.2003 Sita Ram i.e. the accused came to her at 5:30

PM along with a boy aged 6-7 years and bought bhutta. The

accused took the child towards loha mandi. The accused told

her that the boy was his nephew. Next day she saw a crowd

near the opposite wine shop in the jungle. She reached there

and found the dead body. It was of the same child who had

accompanied the accused.

11. On being cross-examined she stated that she saw

the accused for the first time when he bought bhutta. That

she did not know his name. That she never knew that the boy

was the son of Jagdish.

12. SI Anil Kumar PW-21 has deposed that when he and

the father of the child Deepak was searching for Deepak Sita

Devi have told them when they reached on the bridge at

Naraina Vihar Railway Station that she had seen Deepak in the

company of Sita Ram and that in the course of their search

they saw a crowd at some distance from the railway line and

after reaching there they discovered the dead body of the

child.

13. It is obvious that all the witnesses of the

prosecution have contradicted each other.

14. According to SI Arun Kumar, Sita Devi had told

them, much prior to when the dead body was discovered, that

she had seen Deepak in the company of Sita Ram. Meaning

thereby, Sita Devi knew Deepak as well as Sita Ram.

15. But, while deposing in Court Sita Devi clearly stated

that for the first time in her life she saw Sita Ram in the

company of Deepak when he bought bhutta from her in the

evening of 9.9.2003.

16. If this be so, how could she tell SI Anil Kumar that

she had seen Deepak in the company of Sita Ram?

17. That apart, Jagdish Chand has deposed that some

boys in the neighbourhood told him that they had seen his son

with Sita Ram and that he went to the house of Sita Ram at

8:30 PM on 9.9.2003. Sita Ram was drunk. He claims that he

saw Sita Ram's mother washing the blood stained clothes of

Sita Ram. He claims to have returned after an hour and then

Sita Ram having accompanied him to search for his son till

11:00 PM. He clearly denied the suggestions by the learned

APP that Sita Devi had told that she had seen the accused with

her son at around 5:30 PM. He clarified that Sita Devi had only

said that one person had bought a bhutta for her son and that

she did not name the person who bought the bhutta for his

son.

18. Sita Ram's testimony is quite close to that of Sita

Devi but he contradicts Sita Devi with reference to what

possibly Sita Devi told.

19. Thus the testimony of the witnesses is so mutually

contradictory that we see no scope to even try and reconcile

the same to identify the nugget of truth which has to be

determined at a criminal trial when somewhat inchoate and

mutually contradictory evidence surfaces through the mouth

of the witnesses of the prosecution.

20. Last seen evidence requires complete clarity and

probity of the highest order for the reason it is a circumstantial

evidence wherefrom, in the absence of any explanation by the

accused, with reference to the proximity of the time and place

of the last seen alive, a presumption of guilt can be inferred.

21. Any taint in the purity of last seen evidence would

render it unsafe to conclude that the deceased and the

accused were last seen as claimed by a witness of the

prosecution.

22. There is no other incriminating evidence against the

appellant linking him to the crime for the reason the so-called

clothes stated to have been worn by the appellant at the time

of the crime were not detected with any blood, much less,

human blood. Obviously, the question of the blood group

being ascertained thereon and linked with the blood group of

the deceased does not arise.

23. We note that as per the prosecution the appellant

was absconding from the date of the crime till he was

apprehended on 12.3.2004.

24. Well, inasmuch as an accused absconds due to

avoiding the process of law, even an innocent person may

abscond out of fear.

25. If there is some evidence to show the involvement

of the accused in the commission of the crime, the absconding

would be attributable to the guilty mind. If there is not, the

absconding would be attributable to his making himself scare

out of fear.

26. That apart, absconding is a weak piece of evidence.

27. The evidence of last seen being shaky we give the

benefit of doubt to the appellant.

28. The appeal is allowed.

29. Impugned judgment and order dated 1.7.2006

convicting the appellant for the offence punishable under

Section 363/377/302 IPC is set aside. The order on sentence

dated 1.7.2006 is quashed.

30. Noting that the appellant is in jail we direct that

copy of the present order be sent to the Superintendent

Central Jail Tihar for necessary action. Needless to state the

appellant shall be set free if not required in custody in any

other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 25, 2010 mm