Mubin vs State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 1130 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                             Judgment reserved on: February 16, 2010
                             Judgment delivered on: February 26,2010


+     CRIMINAL APPEAL NO.49/1997



      MUBIN                                    ..... APPELLANT
                         Through:   Mr. Sumit Verma, Advocate/
                                    Amicus Curiae

                    Versus


      STATE (GOVT. OF NCT OF DELHI)    ..... RESPONDENT
                    Through: Mr. Pawan Sharma, Standing Counsel



      CORAM:
      HON'BLE MR. JUSTICE A.K. SIKRI
      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. Appellant Mubin, having been convicted for murder of Mehboob

and concealing his dead body in a "gutter" (manhole) under Section

302/34 IPC and Section 201/34 IPC in terms of the impugned judgment

dated 17.09.1996 in Sessions Case No.74/96, FIR No.495/93 P.S. Gokul

Puri and sentenced in terms of order on sentence of the even date to

undergo rigorous imprisonment for life as also to pay fine of Rs.500/-,

in default of payment of fine to undergo RI for further period of one

month for offence punishable under Section 302 IPC and also RI for

three years and fine of Rs.250/- and in default to undergo RI for 15

days for the offence under Section 201/34 IPC, has preferred the

instant appeal.

2. Ms. Abida Begum, wife of Mubin, was also convicted and

sentenced vide the impugned judgment and order on sentence. She

filed a separate appeal which stood abated vide order dated

06.12.2003 on account of her death.

3. Briefly stated, case of the prosecution is that on 06.12.93 at

around 11:40am, Head Constable Ombir Singh of PCR informed Police

Station Gokul Puri on wireless that one person was lying dead near the

bus stand B-Block, Yamuna Vihar, Marutiwali Gali. The information was

recorded at the Police Station as DD No.8A and copy of the DD report

was entrusted to ASI Suresh Chand, who left immediately for the spot

along with Constable Surender (PW11). PW9 Inspector Rajinder

Parshad, who was posted as SHO, Police Station Gokul Puri, was on

patrol duty in the area and said information was conveyed to him on

wireless. He reached at the scene of occurrence, i.e., House No.627,

Gali No.21, Chand Bagh, Delhi where ASI Suresh Chand and Constable

Surender were already present along with the complainant PW1 Burkey

Muneer, her mother PW3 Tafseer, the sweepress PW6 Urmila and

others. The main door of the above referred house was found locked.

The lock was broken open and the police party entered said house.

There was a manhole within the premises of House No.627, Gali No.21,

Chand Bagh, Delhi. Its cover was found open and the dead body of

Mehboob @ Sharief (hereinafter called the "deceased") was found

floating in the water within the "gutter". The dead body was taken out

from the manhole and it was identified to be the body of the deceased

by his wife PW1 Burkey Muneer and his mother-in-law, PW3 Smt.

Tafseer. Inspector Rajinder Parshad recorded the statement of Ms.

Burkey Muneer Ex.PW1/A wherein she stated that she was the owner of

House No.627, Gali No.21, Chand Bagh, which was given on rent to the

appellant Mubin 4-5 months back and he was living in the said house

along with his wife and child. After some time, he stopped paying rent

for the premises. On 30.11.93, her husband left the house at 6:00 pm

to have a talk with the tenant Mubin regarding vacation of the

tenanted premises. He, however, did not return back. Next day, she

contacted Ms. Saira at Jyoti Colony to inquire about her husband, who

told her that her husband had visited her house a day earlier at 1:30

pm and thereafter he left. PW1 Burkey Muneer further stated in her

statement Ex.PW1/A that she continued to search for her husband but

in vain. On Friday, i.e., 03.12.93, she along with her mother went to

her house at Chand Bagh, but its entrance was found locked.

Thereafter, she entered said house from the roof of a neighbour via

staircase and found the door of the inner room open, but nothing could

be found in the said room. In the morning of 06.12.93 at around 10:00

am, sweepress PW6 Urmila came to the house of her mother and

informed that some foul smell was emanating from the above referred

house in Chand Bagh. On this, she alongwith her mother and

sweepress again went to said house but its main gate was found

locked. Thereafter, she entered the said house from the roof of a

neighbour‟s house and lifted the cover of the manhole located within

the said house and found the dead body of her husband in the

manhole in face downwards position. She identified the dead body of

the deceased from the clothes on the person of the body and the

Hawai Chappel in the left foot of the dead body. In the meanwhile,

someone informed the police. Police came and broke open the lock of

the main gate of the house in their presence and thereafter the dead

body was taken out from the gutter. In the said statement, she

expressed her suspicion against the appellant Mubin.

4. Inspector Rajinder Prashad, after obtaining signatures of PW1

Burkey Muneer on the said statement Ex.PW1/A sent it to the police

station alongwith his endorsement Ex.PW9/A on 6.12.1993 at 1:15 pm

for the registration of the case. On the basis of the said rukka, formal

FIR No. 495/93 was registered at police station Gokulpuri.

5. The Investigating Officer recovered two empty half bottles and

one empty quarter bottle of Whiskey from the tenanted room of the

appellant Mubin in the Chand Bagh house, which were seized. He also

seized one Hawai Chappel from the manhole and another Hawai

Chappel lying near the wall, besides a pair of lady‟s sandals. The

Investigating Officer conducted the inquest proceedings.

6. Further investigation of the case was entrusted to PW14 SI

Krishan Kumar on 08.12.1993. On 18.12.1993, SI Krishan Kumar, got

prepared the scaled site plan Ex.PW14/A. On inquiry, SI Krishan Kumar

came to know that Mubin was in judicial custody in Mathura Jail and

the appellant‟s wife Ms. Abida Begum, co-convict was living with her

mother in J.J. Colony, Welcome. He visited the house of mother of

Abida Begum on 01.01.1994 alongwith PW3 Tafseer, PW4 Deshwatan

and PW5 Ashok Pandit where he found the co-convict Abida Begum

talking with her mother. On interrogation, Abida made a disclosure

statement narrating the details as to what had happened on the night

of 30.11.1993 at 8:30 am at the aforesaid Chand Bagh house and

stated that she could get recovered one iron pincer and iron crowbar

and pieces of bangles which were broken during the scuffle with the

deceased and pursuant to the said disclosure statement Ex.PW3/A, she

got recovered aforesaid iron pincers, iron crowbar and pieces of broken

bangles, which were taken into possession vide pointing out-cum-

recovery memo Ex.PW5/A. SI Krishan Kumar, PW14 obtained

production warrants of the appellant Mubin from the court of MM,

Shahadra and pursuant to that, he formally arrested the appellant

Mubin in this case and took him in custody with the permission of CJM,

Mathura. He obtained one day police remand of the appellant Mubin

and interrogated him. During interrogation, Mubin made a disclosure

statement Ex.PW13/B and also pointed the place of occurrence vide

memo Ex.PW3/B.

7. On conclusion of investigation, appellant and his co-convict were

charge sheeted and sent for trial. Both of them were charged for the

offence punishable under Section 302 read with Section 34 IPC as also

Section 201 read with Section 34 IPC. The appellant and his co-convict

pleaded innocence and claimed to be tried.

8. In order to bring home the guilt of the appellant and his co-

convict, prosecution has examined 14 witnesses, out of which PW1

Burkey Muneer, PW2 Ms. Saddan, PW3 Smt. Tafseer, PW4 Deshwatan,

PW5 Ashok Pandit, PW6 Urmila, PW12 Dr. K.K. Banerjee and PW9

Inspector Rajinder Parshad, who purportedly recovered the dead body,

are relevant for the just decision of the appeal.

9. PW1 Burkey Muneer is the complainant as also the wife of the

deceased. In her testimony in court, she has almost reproduced the

version in her complaint but for one contradiction. In her complaint to

the Investigating Officer, she stated that on 06.12.93 when informed

by PW6 Urmila that a foul smell was emanating from her tenanted

house in Chand Bagh, she entered said house from the roof of the

house of a neighbour and lifted the cover of the gutter located within

said house and saw the dead body of the deceased in the gutter in

face downwards position, whereas in her testimony in the court she

has not deposed to that effect and stated that the lock of the house

was broken and on entering, the cover of the "gutter" was found lying

aside. In the cross-examination, she admitted that the adjoining house

from roof of which she had access to the house in question on 03.12.93

belonged to her mother and was on rent with some tenant whose

name she was not aware of. She also stated in the cross-examination

that she did not enter said house on 06.12.93 before the breaking

open of the lock of the said house and she did not even go to the roof

of the adjoining house on 06.12.93.

10. PW2 Smt. Saddan is a hostile witness and she has not supported

the case of prosecution.

11. PW3 Smt. Tafseer is the mother of the complainant. She testified

that on 03.12.93, her daughter visited her and told that her husband

had left the house saying that he was going to the house of the

appellant Mubin and thereafter did not return. She, therefore, along

with PW1 Burkey Muneer went to the house of Mubin bearing number

627, Gali No.21 Chand Bagh and found that it was locked from outside.

They also made enquiries and the neighbours told that a quarrel had

taken place but they were not aware where they had gone. She

further deposed that on 06.12.93 PW6 Urmila, sweepress visited her

house and told that some foul smell was emanating from the house of

Mubin and clothes were lying in the gutter. On this, she along with

PW1 Burkey Muneer, PW6 Urmila, Sweepress and some mohalla people

reached at the spot and found police officials already present there.

The police broke open the lock and thereafter recovered the dead body

of the deceased from the gutter. She stated that from the spot of

occurrence, police took into possession two half bottles and one

quarter bottle of liquor, one hawai chappel recovered from the gutter,

one hawai chappel big sized lying near the gutter, a third hawai

chappel lying near the gutter and pair of lady‟s sandals, which were

seized vide memo Ex.PW1/B and the memo was signed by her. She

also stated that on 01.01.94, co-convict Abida Begum made a

disclosure statement Ex.PW3/A in her presence and pursuant to the

said disclosure statement, she got recovered one sabbal, a chimta and

broken pieces of her bangles, which were taken into possession vide

memo Ex.PW5/A. She deposed that she witnessed both the disclosure

statement as well as recovery of the articles. In the cross examination,

she admitted that her daughter had entered the aforesaid tenanted

house of the appellant on 03.12.93 from the neighbouring house

belonging to her, which was rented out to her tenants. She denied that

she and her daughter had entered the house of Mubin from the roof of

adjoining house occupied by her tenants on 06.12.93.

12. PW4 Deshwatan is a hostile witness. He stated that on 30.12.93

(it appears to be a typographical error and date should be 30.11.93),

PW5 Ashok Pandit informed him that some "jhagra" (quarrel) was

going on near the house of Mubin, but he denied having knowledge as

to who was quarrelling and stated that he did not reach the house of

Mubin and nothing was visible in the Gali. In the cross-examination by

learned Amicus, he admitted the suggestion that PW5 Ashok Pandit did

not tell him that the deceased went to the house of Mubin and that he

had not seen the deceased going to the house of Mubin.

13. PW5 Ashok Pandit is also a hostile witness. He deposed that on

30.11.93 at around 7:00 or 8:00pm one Sharief who was drunk was

abusing and when he asked Sharief as to why he is abusing, he

retorted. Then he went to the shop of PW4 Deshwatan and told him

that Sharief had abused him. Thereafter, he along with PW4

Deshwatan went to the house of Mubin which was closed from inside.

He knocked on the door, and on his enquiry Mubin informed that

Sharief was not there. He stated that no quarrel had taken place

between Mehboob @ Sharief and Mubin in his presence.

14. PW6 Urmila is the sweepress. She deposed that about 5 or 6

years back, while she was cleaning the drain near the house of the

appellant, she noticed a foul smell emanating from the said house from

the septic tank. She informed about it to the residents of the lane.

Somebody informed the police and police reached at the spot and

broke open the door. She stated that she did not see anything being

taken out from the septic tank. The witness was declared hostile and

cross-examined by learned APP but she denied the prosecution case

suggested to her.

15. PW12 Dr. K.K.Banerjee is the autopsy surgeon who conducted the

post mortem examination on the dead body. In his opinion, the cause

of death of the deceased was asphyxia as a result of compression of

neck, likely to be produced by hand. He proved his report as

Ex.PW12/A and fixed the time of death about a week prior to the date

of post mortem. In the cross-examination, he admitted a possibility

that the deceased might have died between 01/02.12.93. He also

stated that since the body was in a highly decomposed state, it was

difficult to ascertain the exact time of death.

16. PW9 Inspector Rajinder Parshad has stated that on 06.12.1993,

on receipt of information regarding dead body in H. No. 627, Gali No.

21, Chand Bagh, he reached at the spot and found public persons

including the complainant PW1 Burkey Muneer, PW3 Tafseer and PW6

Urmila. The main door of the scene of occurrence was locked, which

was broken in presence of the said witnesses and on entering the

premises he found the mouth of the gutter open and dead body of

Mehboob @ Sharief was found floating therein. The dead body was

taken out and was identified by the complainant Burkey Muneer and

PW3 Tafseer as that of Mehboob @ Sharief. He also stated that he

recorded the statement of PW1 Burkey Muneer Ex.PW1/A and sent it to

the police station for the registration of the case. He has also proved

the rough site plan Ex.PW9/C prepared by him at the spot, besides the

seizure memo pertaining to the articles Exhibits P-1 to P-7 found at the

spot. He also proved the broken lock as Ex.P-8.

17. The defence taken by the appellant in his statement under

Section 313 Cr.P.C. is that he has been falsely implicated in this case.

18. The learned trial Judge, on conclusion of trial, convicted the

appellant as well as his wife Abida Begum (since deceased) for the

offences punishable under Section 302 read with Section 34 IPC and

Section 201 read with Section 34 IPC.

19. There is no eye-witness in this case. The case of the prosecution

is based upon the circumstantial evidence. On perusal of the impugned

judgment, it transpires that the learned trial Judge has found the

appellant and his co-convict guilty in view of the following

circumstances:-

(i) That the appellant was the tenant in H.No. 627, Gali No. 21, Chand Bagh, belonging to the deceased;

(ii) That the deceased, as per the testimony of PW1 Burkey Muneer, had left his house on 30.11.93 at 6.00 pm saying that he was going to the house of the appellant to talk with him regarding vacating of the tenancy;

(iii) That thereafter, the appellant did not return home and was not seen by anyone till the recovery of his dead body on 06.12.93;

(iv) That the appellant left the tenanted premises along with his wife Abida Begum and the child after locking the same from outside in the morning of 01.12.93;

(v) That the dead body of the deceased was recovered from the gutter within the said tenanted premises after breaking open the lock on its front door.

20. Before adverting to the rival contentions, we deem it appropriate

to have a look on the law relating to circumstantial evidence. In the

matter of Padala Veera Reddy v. State of A.P. 1989 Supp (2) SCC

706, it was laid down by the Supreme Court that when a case rests

upon circumstantial evidence, such evidence must satisfy the following

tests:

"10. (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) the circumstances, taken cumulatively, should form a chain so 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."

21. In the matter of Sharad Birdhichand Sarda v. State of

Maharashtra 12 (1984) 4 SCC 116, while dealing with the

circumstantial evidence, it has been held that the onus is on the

prosecution to prove that the chain is complete and the infirmity or

lacuna in the prosecution cannot be cured by a false defence or plea.

The conditions precedent in the words of this Court, before conviction

could be based on circumstantial evidence, must be fully established.

They are:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(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."

22. Learned Amicus Curiae for the appellant has submitted that the

learned Trial Court has erred in appreciating the evidence. He has

submitted that the main incriminating circumstance which forms the

foundation of the conviction is the recovery of the dead body of the

deceased from the gutter within House No.627, Gali No.21, Chand

Bagh, which was admittedly in the tenancy of the appellant and which,

as per evidence, was found locked from outside. Learned Amicus

submitted that the learned trial Judge has convicted the appellant and

his co-convict on the premise that once the house in question was

locked from outside, no one else could have had an opportunity to kill

the deceased and dump his body in the gutter, ignoring the fact that

from the testimony of PW1 complainant Burkey Muneer and PW3

Tafseer, mother of the complainant, it is established on record that the

aforesaid gutter within said house was accessible from the roof of the

adjoining house through the staircase and anyone after killing the

deceased could have dumped his dead body in the gutter despite of

the fact that the house was locked from outside. Learned Amicus

further submitted that as per the testimony of PW1 Burkey Muneer

when on 03.12.93 she accessed the house in question from the roof of

the adjoining house, she found that the mouth of the gutter was closed

with a cover, whereas as per the case of prosecution when the police

entered the house on 06.12.93 after breaking open the lock, they

found that mouth of the gutter was open and its cover was lying by the

side of the wall. This circumstance also indicates that someone had

accessed the house in question between 03.12.93 and 06.12.93 and

removed the lid from the mouth of the gutter and a possibility cannot

be ruled out that aforesaid person is the real culprit, who dumped the

dead body in the gutter. Learned Amicus submitted that from the

above, it is apparent that the learned Trial Court has ignored the fact

that the circumstantial evidence placed on record by the prosecution

does not rule out the possibility that someone else could have

committed the murder of the deceased. Thus, he has urged us to

accept the appeal and acquit the appellant giving him benefit of

doubt.

23. Learned Standing Counsel for the State, on the other hand, has

submitted that the learned Trial Court has rightly convicted the

appellant and his co-convict. He has submitted that there is no

mystery about the identity of the person who removed the cover from

the mouth of the gutter after 03.12.93. In this regard, he has drawn

our attention to the complaint statement of PW1 Burkey Muneer

Ex.PW1/A, wherein she stated to the Investigating Officer that on

03.12.93 after being told about the foul smell emanating from the

house in question, she went to the house in question from the roof of

the adjoining house and removed the cover of the gutter and found the

dead body of her husband face down in the gutter. Learned Standing

Counsel for the State further submitted that as per the post mortem

report, death of the deceased occurred about a week prior to the date

on which the post mortem examination was conducted and this fixes

the date of death of the deceased somewhere around 30.11.93, as

such, there is no possibility of anyone else being responsible for

murder of the deceased and dumping of his dead body in the gutter

after 03.12.93. Thus, he has urged us to dismiss the appeal.

24. We have carefully considered the rival contentions and perused

the record.

25 PW1 Burkey Muneer has categorically stated in her testimony

that on 03.12.93, she visited the house in question along with her

mother and found the door locked from outside. Thereafter, she went

to the roof of the house adjoining house No.627, Gali No.21, Chand

Bagh and from there she could see the door of internal room of the

house open and that the cover was there on the mouth of the gutter.

In her cross-examination, she stated that on 06.12.93, she went inside

House No.627 from the roof of the adjoining house through the stair

case. She, however, added that she did not go up to the ground floor

of the house and had gone down only two or three stairs. From the

aforesaid testimony, it is established that despite of there being a lock

on the front door of House No.627, Gali No.21, Chand Bagh, its internal

portion could be accessed from the roof of the adjoining house via the

staircase. This circumstance opens a possibility that someone else

could have dumped the dead body of the deceased in the gutter after

killing him.

26. As regards the submission of learned Amicus for the appellant

that the prosecution has failed to explain as to who removed the cover

of the gutter between 03.12.93 and 06.12.93 when the dead body was

recovered, the learned Trial Court, while rejecting said argument, has

inter alia, observed thus:

".....I do not find any contradiction in the statement of Smt. Barke Muneer because her version is supported by Inspector Rajinder Parshad who had stated that when they entered the house they found the gutter opened and inside of the gutter one dead body of Mehboob was found in the gutter. I

also do not agree with the contention of the Ld. Counsel for the accused that there is any mystery in the prosecution story with regard to the cover of the gutter not found on the gutter on 6.12.93. The most important thing is that both PW1 Smt. Barke Muneer and PW3 Smt. Tafseer were present at the time of recovery of dead body from the gutter. It is quite possible that since the dead body was lying in the gutter for 5/6 days and after the water entered the dead body, the dead body started floating in the water and on that account the cover of the gutter might have been opened. It has also been stated by Const. Karanvir Singh PW13 that the water of the gutter was flowing out of the gutter. So it is also possible that on account of the pressure of flow of water and that of the dead body the cover of the gutter might have opened. So there is no mystery in the gutter found uncovered on 6.12.93 by the PWs. The arguments of the Ld. Counsel for the accused has, therefore, got no force and the same is rejected."

27. We are unable to comprehend the logic given by the learned trial

Judge to explain the aforesaid discrepancy. The learned trial Judge has

observed that it is quite possible that after remaining in the gutter for

five or six days, the dead body got bloated with water and started

floating and because of the pressure of the dead body, the cover of the

gutter might have been pushed open. Had the learned trial Judge

taken some pains to peruse the rough site plan Ex.PW9/C prepared by

the Investigating Officer, he would have realised the absurdity of the

logic. On perusal of the rough site plan Ex.PW9/C, it transpires that the

cover of the gutter was found lying at some distance from its mouth

near the wall. If the cover had been pushed because of floating body,

there may be a slight possibility that the cover might have been

dislocated slightly from its position, but it is impossible that the

pressure of the body would have thrown the cover to some distance by

the side of the wall. In absence of any explanation as to who removed

the cover of the gutter after 03.12.93, a possibility cannot be ruled out

that someone else after committing murder of the deceased had

dumped the dead body in the gutter by accessing the gutter and from

the roof of the adjoining house, particularly when there is no evidence

on the record that anyone saw the appellant or his wife near the house

in question after the morning of 01.12.93. Learned Standing Counsel

for the State submitted that it is highly improbable that someone could

have accessed the gutter in the house in question to dump the dead

body without being noticed by the residents of the adjoining house.

We are not inclined to accept this contention. PW1 Burkey Muneer in

her examination-in-chief as well as in her complaint statement

concealed the fact that the adjoining house from which she had

accessed the house in question belonged to her mother PW3 Tafseer.

Only when she was cornered in the cross-examination, she admitted

that the aforesaid house belonged to her mother and added that it was

in occupation of a tenant whose identity she was not aware of. Even

PW3 Tafseer has not mentioned the name of said tenant of the

adjoining house. This circumstance clearly shows that identity of the

tenant has been deliberately withheld by the witnesses and a

possibility cannot be ruled out that the aforesaid concealment was

done with a purpose. The defence suggested by the appellant to PW1

and PW3 is that they had killed the deceased because of the dispute

regarding the payment of Mehar of Rs.1 lakh agreed at the time of

marriage of PW1 and a possibility cannot be ruled out that because of

the said dispute the relatives of PW1 might have killed the deceased

and disposed of his body in the gutter.

28. Another factor which goes against the case of the prosecution is

that though as per the complaint statement Ex.PW1/A, as also the

testimony of PW1 Burkey Muneer, the deceased went missing since the

evening of 30.11.93 and the efforts for his search yielded no result, yet

no complaint was filed by the complainant with the police till the

recovery of dead body from the „gutter‟ on 06.12.93. Non-filing of any

report about missing of the deceased by the complainant also raises a

strong doubt against the credibility of the witnesses namely, PW1

Burkey Muneer and PW3 Tafseer.

29. Lastly it may be added that investigating agency was put into

motion by an information conveyed by PCR Head Constable Ombir

Singh to the Police Station stating that a person is lying dead near bus

stand B-Block, Yamuna Vihar, near Marutiwali Gali and some officers

may be sent there. This information, if true, implies that the dead

body of the deceased was found lying near the bus stand, which

circumstance belies the basic story of the prosecution. Head

Constable Ombir of PCR who could have thrown some light on this

inconsistency has neither been examined nor cited as a witness by the

prosecution. This circumstance also casts a strong doubt against the

correctness of the prosecution story.

30. Learned Standing Counsel for the State submitted that much

significance cannot be attached to the fact that there is confusion as to

who removed the cover of the gutter between 03.12.93 and 06.12.93

because of the fact that as per the post-mortem report, time of the

death is fixed somewhere near the night of 30.11.93. Therefore, there

is no possibility whatsoever of anyone having killed and dumped the

dead body in the gutter after 03.12.93. We do not find any merit in

this argument because in the cross-examination, PW12 Dr. K.K.

Banerjee admitted that it was possible that the deceased might have

died between 1st and 2nd December, 1993 and he also stated that since

the dead body was highly decomposed, it was difficult to ascertain the

exact time of death. Once there is no definite evidence of the exact

time of death, the aforesaid discrepancy in the prosecution evidence

cannot be ignored. Otherwise also, a possibility cannot be ruled out

that the deceased was killed on 30.11.93 and his dead body was

subsequently dumped in the gutter after 03.12.93 or even before that

because nobody had tried to look into the gutter till the recovery of the

dead body on 06.12.1993.

31. The result of aforesaid discussion is that prosecution has not

been able to firmly establish the incriminating circumstances leading

to irrefutable inference of guilt of the appellant and his co-convict. In

our considered view, a possibility of someone else having committed

the murder and dumping the dead body in gutter cannot be ruled out.

Since a possibility of innocence of the appellant cannot be ruled out,

we find ourselves unable to sustain the judgment of conviction and

order on sentence. We accordingly accept the appeal and acquit the

appellant, giving him benefit of doubt.

32. The appellant is in Jail. He be released forthwith, if not wanted in

any other case.

AJIT BHARIHOKE, J.

FEBRUARY 26, 2010                                    A.K. SIKRI, J.
pst