Krishan Murari vs State
2010 Latest Caselaw 811 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on : February 01, 2010
                               Judgment delivered on: February 11, 2010


+         CRIMINAL APPEAL NO.298/2000

          KRISHAN MURARI                         ..... APPELLANT
                     Through:         Ms. Ritu Gauba, Advocate/
                                      Amicus Curiae

                          Versus

          STATE                                 ..... RESPONDENT
                          Through:    Mr.Manoj Ohri, Advocate


          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?             Yes

2.        To be referred to the Reporter or not ?         Yes


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


AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment in

Sessions Case No.28/1997 emanating from FIR

No.343/1997 P.S. Gokalpuri convicting the appellant

Krishan Murari on the charge of Section 302 IPC for

having committed murder of Brij Lal and the consequent

order on sentence of even date sentencing the appellant

to imprisonment for life and also to pay a fine of

Rs.5,000/- and in default of payment of fine to undergo

simple imprisonment for a period of one month.

2. Briefly stated, case of the prosecution is that Brij Lal

(hereinafter referred to as `deceased‟) was a

`pheriwala'(street vendor) who used to sell sarees in the

area of Karawal Nagar, Sonia Vihar. On 9th May 1997 at

around 9.00 am, Brij Lal left the house of his brother-in-

law Amar Singh for work, carrying sarees worth

Rs.10,000/- to Rs.12,000/- He, however, did not return

back. His brother PW-6 Suraj searched for him and when

Suraj failed to locate the deceased, he made a missing

report to the Police Control Room, which information was

conveyed to the Police Station Gokalpuri and was

recorded as DD 36-B at 3.20 pm on 10th May 1997. On

11th May 1997 at 11.50 am, an information was received

from wireless operator PCR that a dead body was found

at a distance of 1 km from village Samapur in the farms

near the „baandh'. The information was recorded as DD

No.7-A, ExPW16/A at Police Station Gokal Puri and a copy

thereof was sent to S.I. Rajiv Sinha through Home Guard

Constable Subhash. The Additional SHO Inspector Safdar

Ali PW-20 also left for the spot in the official vehicle. On

reaching the spot, Inspector Safdar Ali PW-20 and Sub-

Inspector Vikramajit Singh PW-16 found a dead body

wrapped in a gunny bag (taat bori) lying on the 5 th

pushta. The dead body, found wrapped in a multi-

coloured khadi cloth, was taken out from the gunny bag.

The body was in a very bad shape and could not be

identified. Inspector Safdar Ali appended his

endorsement Ex. PW-3/A on the DD report Ex.PW-16/A

and sent it to the police station through Constable

Pradeep Kumar, on the basis of which formal FIR Ex.PW-

3/B was recorded.

3. The Investigating Officer got the dead body as well the

spot of occurrence photographed from various angles.

He also prepared a rough site plan Ex.PW-20/A. He took

into possession the gunny bag Ex.PX-1, multi coloured

cloth Ex.PX-5, a key ring Ex.PX-1 with two keys PX-2 and

PX-3 vide memo Ex.PW-3/C after converting those

articles into sealed parcels. On the same day, the dead

body of the deceased was identified by his brothers PW-5

Tota Ram and PW-6 Suraj. The Investigating Officer sent

the dead body for post mortem examination which was

conducted by PW-2 Dr.N.K.Aggarwal, who, on

examination of the body found two stab wounds on the

neck of the deceased and a lacerated wound on the front

right side of the head. The doctor opined the time of

death was three days from the time of commencement of

post mortem examination and that the cause of death

was shock due to haemorrhage. All the injuries were

found to be ante mortem and sufficient to cause death in

the ordinary course of nature. The doctor also observed

that the dead body was highly decomposed.

4. On 9th June 1997, the appellant was arrested by PW-20

Inspector Safdar Ali, who on interrogation made a

disclosure statement Ex.PW-7/D and pursuant to the

disclosure statement he pointed out the place where the

murder was committed. The pointing out memo is

Ex.PW-7/A. The Investigating Officer found traces of

blood at the spot pointed out by the appellant. He lifted

blood samples from the spot. Thereafter, the appellant

led the police party to a vacant plot from where he got

recovered a „thapki' (a wooden bat) which was taken into

possession vide memo Ex.PW-7/B. The appellant also led

the police to a room in village Gamri and from there he

got recovered a rexine bag Ex.P-5 which contained three

sarees Ex.P-2 to Ex.P-4 which were taken into possession

vide memo Ex.PW19/A. The co-accused of the appellant

Raju(since deceased) was arrested on 12th June 1997 who

on interrogation made a disclosure statement Ex.PW-

11/A, pursuant to which he got recovered a knife Ex.P-1

from the same vacant spot from where the 'thapki' was

recovered. The Investigating Officer prepared the sketch

of the knife and thereafter took it into possession after

converting it into a sealed packet. Later the knife Ex.P-1

as well as `thapki' Ex.PX were produced before the

autopsy surgeon for his opinion and PW-2 N.K. Aggarwal,

vide his written opinion Ex.PW-2/B opined that injuries

No.1 and 2 found on the person of the deceased were

possible with the kitchen knife Ex.P-1 and injury No.3 was

possible with the wooden bat (thapki) Ex.PX. The

Investigating Officer moved an application Ex.PW-4/A for

holding the Test Identification Parade to fix the identity of

the appellant but the appellant refused to take part in

the TIP proceedings. The incriminating articles seized

during investigation were sent for serological

examination. However, neither the knife Ex.P-1 nor the

wooden bat(thapki) Ex.PX were sent to CFSL for

ascertaining whether or not those purported weapons of

offence had traces of blood matching with the blood of

the deceased. On completion of the formalities of

investigation, the appellant and his co-accused were sent

for trial.

5. The appellant was charged for the offences punishable

under Section 302 IPC read with 34 IPC, Section 392 IPC

read with 397 IPC and Section 201 IPC read with Section

34 IPC. The appellant pleaded innocence and claimed to

be tried.

6. In order to bring home the guilt of the appellant,

prosecution examined 23 witnesses. We may note that

there is no eye witness to the occurrence or the disposal

of dead body and the prosecution case is based on the

circumstantial evidence.

7. The appellant Krishan Murari was examined under

Section 313 Cr.P.C. to afford him an opportunity to

explain the incriminating evidence appearing against

him. He denied the prosecution story and claimed to be

innocent. He explained that he had come to Delhi to

attend the marriage of his cousin Ram Sanwre at village

Gamri. There he had an altercation with a rikshaw puller

and both of them were taken to the police post on 3 rd

June 1997. The rikshaw puller was let off after some time

but he was detained at the police station till 10 th June

1997 and, thereafter, falsely implicated in this case. The

appellant also explained that there was a murder case

pending against him and perhaps because of that reason,

the police falsely implicated him in this case.

8. On perusal of record, it transpires that there is no eye

witness to the occurrence or the disposal of the dead body.

The prosecution case rests upon the circumstantial

evidence. The main circumstances which form foundation

of the conviction are the last seen evidence given by PW-8

Mohd. Rashid, recovery of plastic bag Ex.P-5 and sarees

Ex.P-2 to P-4 from a room at village Gamri at the instance of

the appellant, recovery of the alleged weapon of offence i.e.

„thapki' (wooden bat) Ex.PX at the instance of appellant and

the refusal of the appellant to participate in the Test

Identification Parade. The motive for the crime as per the

case of prosecution was to rob the deceased of the sarees

which he was carrying for sale as a street vendor.

9. Since the case of the prosecution is based upon

circumstantial evidence, before adverting to the rival

contentions, it would be useful 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."

10. The above enunciated principle of law was reiterated in the

matter of State of U.P. v. Ashok Kumar Srivastava,

(1992) 2 SCC 86, where the Supreme Court, inter alia,

observed thus:

"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."

11. Learned counsel for the appellant has submitted that the

impugned judgment of conviction is bad in law as well as

facts and it is self-contradictory. After referring to the

principles of law relating to circumstantial evidence

enunciated in Padala Veera Reddy v. State of

A.P.(supra), learned counsel submitted that though

learned trial Judge has convicted the appellant on the basis

of circumstantial evidence, he has ignored the fact that

none of the incriminating circumstances have been firmly

established by the prosecution and the so called

incriminating circumstances taken into consideration by the

learned trial Judge do not link the appellant with the death

of the deceased. She further submitted that even the

identity of the dead body has not been firmly established.

12. Expanding on the argument, learned counsel for the

appellant firstly submitted that perusal of Rukka Ex.PW-3/A,

the death report Ex.PW-20/C, the request for post mortem

Ex.PW-20/D, brief statement of facts prepared by the

Additional SHO Ex.PW-20/E and the post mortem report

Ex.PW-2/A reveals that the dead body found at Yamuna

Pushta was in highly decomposed condition. The face and

right hand of the body was eaten away by maggots and

there were blisters on almost entire body and the face was

therefore unidentifiable. Learned counsel has submitted

that under these circumstances, it is highly improbable that

the brothers of the deceased, namely, PW-5 Tota Ram and

PW-6 Suraj could have identified that unidentifiable body as

that of their brother Brij Lal (deceased).

13. We do not find merit in this contention because PW-5 Tota

Ram and PW-6 Suraj are categoric that the dead body

belonged to their brother Brij Lal and they have not been

cross examined by the appellant on the aforesaid aspect of

the case. Otherwise also, as per the testimony of PW-20

Inspector Safdar Ali, one key ring Ex.PX-1 with two keys

Ex.PX-2 and Ex.PX-3 was found in the pocket of pant of the

deceased. It is possible that PW-5 and PW-6 might have

identified the dead body on the basis of the clothes on the

dead body and the key ring as well two keys Ex.PX-1 to

Ex.PX-3 respectively. Had they been asked about the basis

of identification they perhaps would have explained the

basis. Thus, we find no reason to doubt the testimony of

PW-5 and PW-6 regarding the identity of the dead body.

14. The second contention of learned counsel for the appellant

is that from the impugned judgment, it transpires that the

main circumstance taken against the appellant by the

learned trial Judge is the recovery of the `thapki' (wooden

bat) Ex.PX and three sarees contained in a Rexine bag Ex.P-

2 to Ex.P-5 at the instance of the appellant. Learned

counsel submitted that though the recovery of the aforesaid

articles at the instance of the appellant is also doubtful, the

aforesaid incriminating articles are not even linked with the

crime. He submitted that the case of the prosecution is that

`thapki' Ex.PX is the weapon of offence but there is no

cogent evidence to establish this fact. Learned counsel

pointed out that such wooden bats are common house hold

implements used in washing of the clothes. Therefore,

recovery of wooden bat from a residential room in Gamri

village by itself cannot lead to an inference that it is the

weapon of offence. Regarding the sarees Ex.P-2 to Ex.P-4

and Rexine bag Ex.P-5, learned counsel has submitted that

those articles, as per the case of the prosecution, are part of

the goods robbed from the deceased but there is no

evidence whatsoever to establish that the Rexine bag Ex.P-

5 and the aforesaid sarees Ex.P-2 to Ex.P-4 actually

belonged to the deceased Brij Lal. Learned counsel further

submitted that once it is doubtful that aforesaid articles are

stolen property, the circumstance of recovery ought not to

have been taken as a link in the chain of circumstances

leading to the inference of guilt of the appellant. Learned

Prosecutor, on the other hand, has refuted this contention.

He has submitted that PW-6 Suraj has stated that the

deceased left the house in the morning of 9th May 1997

along with sarees worth Rs.10,000/- to Rs.12,000/- for

selling in the area. He has also deposed that Brij Lal had

kept those sarees in a Rexine bag of black and red check.

His aforesaid version, according to learned counsel for the

State, also finds corroboration from the testimony of PW-11

Kirpal, brother-in-law of the deceased. Besides, learned

counsel for the State has also referred to the statements of

PW-9 Ashok Jain, Salesman of M/s Shankar Sarees, Ucha

Natwa, Chandni Chowk and PW-13 Rajesh Kumar, partner of

M/s Rajesh Kumar, Chandni Chowk, who deposed that they

had sold some sarees to Brij Lal vide respective cash

memos Ex.P-6/CI to Ex.P-6/C4 and submitted that from the

aforesaid oral as well as documentary evidence, it is

established that Brij Lal was a pheriwala and he had

actually left his house with sarees for sale in the morning of

9th May 1997. Learned counsel also submitted that the

recovery of three new sarees in a Rexine bag does link the

appellant with the crime. We may note that the `thapki'

Ex.PX was not even sent for serological examination to

ascertain whether it had traces of blood or some hair of the

deceased which could have been the positive evidence to

link the `thapki' Ex.PX to the crime.

15. We have considered the rival contentions on the aspect of

the recovery. In our considered view, the prosecution has

failed to link the recovery of Rexine bag Ex.P-5 and three

sarees Ex.P-2 to Ex.P-4 with the crime. In order to succeed

in establishing this link in the chain, prosecution was

required to establish that the recovered Rexine bag and

sarees actually constituted a part of the goods belonging to

Brij Lal. There is no evidence on record to fix the identity of

the aforesaid recovered articles. As per the recovery memo

Ex.PW-19/A, the recovered plastic bag was of grey colour

whereas according to the testimony of PW-11 Kirpal Singh,

Brij Lal had left with the sarees keeping them in a Rexine

bag of black and red colour. So far as recovered sarees

Ex.P-2 to Ex.P-4 are concerned, those were not shown to

either PW-6 Suraj, PW-11 Kirpal Singh, PW-13 Rajesh, saree

shop owner or the salesman Ashok Jain PW-9 of the other

saree shop for identification to establish that those three

sarees were actually out of the lot of sarees sold by them to

the deceased. Thus, in our view, neither the Rexine bag

Ex.P-5 nor the sarees Ex.P-2 to Ex.P-4 have been linked with

the crime. Even the learned trial Court has not accepted

the theory of the prosecution that the recovered Rexine

bags and sarees were part of the goods belonging to the

deceased because he has acquitted the appellant of the

charge of robbery, which implies that he did not take the

above referred incriminating articles as stolen goods

belonging to Brij Lal.

16. Learned counsel for the appellant further submitted that

another important factor which weighed with the learned

trial Judge is the last seen account given by PW-8 Mohd.

Rashid. She took us through the testimony of PW-8 Mohd.

Rashid who deposed that on 9th July 1997, which he later on

corrected himself and stated that it was the month of May,

at around 2.00 pm, near 3rd Pushta Yamuna Khadar, he

noticed three persons, including the appellant, talking with

the deceased Brij Lal. They told the appellant that there

was a marriage function for which they wanted to purchase

sarees and requested him to accompany them to their

nearby house and Brij Lal deceased went along with them.

In the examination-in-Chief, PW-8 Mohd. Rashid stated that

he had given the description i.e. age, height etc. of those

persons to the police in a statement under Section 313

Cr.P.C. which implies that the appellant and his so-called

two associates were not earlier known to PW-8. Learned

counsel has submitted that it is not safe to rely upon the

uncorroborated testimony of Mohd. Rashid regarding the

identity of the appellant as one of those three persons.

Thus, learned counsel has urged us to reject the testimony

of last seen. Learned Prosecutor, on the other hand, has

submitted that the Investigating Officer had applied for

holding the Test Identification Parade to fix the identity of

the deceased and the appellant refused to participate in the

Test Identification Parade despite of the warning given by

the Metropolitan Magistrate that his refusal to participate in

the Test Identification Parade may be used as a

circumstance against him in the trial. Thus, learned counsel

for the State has submitted that appellant, having refused

to participate in the Test Identification Parade, now cannot

be permitted to raise a plea that the identification of the

appellant by PW-8 Mohd. Rashid in the Court ought not to

be relied upon.

17. On careful consideration of the testimony of PW-8 Mohd.

Rashid, it transpires that PW-8 Mohd. Rashid in his cross

examination stated that prior to his testimony recorded in

the Court, he had seen the accused outside the Court of

Mrs. Mamta Tayal, Metropolitan Magistrate. Ex.PW-4/A is

the application of the Investigating Officer dated 10 th June

1997 requesting for holding of the Test Identification Parade

of the appellant. Perusal of this application reveals that it

was moved in the Court of Mrs.Mamta Tayal. Therefore, a

possibility cannot be ruled out that the appellant was shown

to the witness Mohd. Rashid outside the Court of Mrs.Mamta

Tayal, Metropolitan Magistrate before the fixing of date for

Test Identification Parade. PW-4 Ms.Sarita Birbal,

Metropolitan Magistrate, Karkardooma Courts recorded the

proceedings pertaining to the request for Test Identification

Parade after the above referred application was marked to

her by the concerned Magistrate Mrs.Mamta Tayal. She has

categorically stated that the appellant refused to participate

in the Test Identification Parade on the ground that the

police of Police Station Gokalpuri had already taken his

photograph when he was in police custody and shown to the

witnesses. He also took the plea that local police detained

him in the police station on 3rd June 1997 but he was

produced in the Court of Magistrate on 10 th June 1997. In

view of the factual matrix discussed above, we find it

difficult to draw any adverse presumption on the basis of

refusal of the appellant to participate in the Test

Identification Parade, particularly when there is a doubt that

he might have been shown to the witness outside the Court

of Mrs.Mamta Tayal. There is one other aspect to the

matter. As per the testimony of PW-20 Inspector Safdar Ali,

the appellant was arrested on 9th June 1997 on the basis of

the secret information. If we go by the testimony of PW-8

Mohd. Rashid, he had not given the name and address of

the appellant to the police, he had only given some physical

description of those three persons whom he had seen

talking with the deceased. In absence of any concrete or

particular description, it is a mystery as to how the

Investigating Officer managed to fix the identity of the

appellant and arrest him. The explanation of the

Investigating Officer that he arrested the appellant on the

basis of secret information, in our view, is not reliable.

18. Lastly, learned counsel for the appellant has submitted that

in a case based upon circumstantial evidence, motive is a

very important factor, which is lacking in this case. She has

submitted that once the recovered Rexine bag and sarees

Ex.P-2 to Ex.P-5 are not identified as the stolen property

belonging to Brij Lal, theory of motive fades away and as

such the benefit of doubt ought to have been extended to

the appellant. On the other hand, learned counsel for the

State has submitted that motive in this case was to commit

robbery and the trial Court in Para 29 of its judgment has

given a finding that there was a sufficient motive on the

part of the appellant.

19. We find substantial force in the submissions made by

learned counsel for the appellant. The impugned judgment

is self-contradictory. Admittedly, the appellant was also

charged for robbery punishable under Section 392 IPC read

with 397 IPC and the learned trial Court, in the impugned

judgment in Para 29, has observed that robbery of the

sarees worth Rs.10,000/- was a sufficient motive on the part

of the appellant and his co-accused persons to kill the

deceased and in the same breath, in later part of the

judgment, he has acquitted the appellant of the offence

under Section 392 IPC read with 397 IPC. This circumstance

reflects upon the „couldn‟t care less‟ approach of the

learned trial Judge and shows that he has dealt with the

evidence in this case in a routine manner. The fact that the

prosecution has not been able to establish the identity of

the Rexine bag and sarees recovered at the instance of the

appellant is sufficient to conclude that those recovered

articles are not linked with the crime. In view of the

aforesaid circumstances, we conclude that the prosecution

has failed to establish even the motive beyond a shadow of

reasonable doubt.

20. In view of the above discussion, we find that the

prosecution has failed to establish incriminating

circumstances forming a chain so complete so as to lead to

irrefutable inference of the guilt of the appellant. He is,

therefore, entitled to the benefit of doubt. Thus, the

impugned conviction cannot be sustained.

21. We accordingly accept the appeal and acquit the appellant.

22. The appellant is in jail. He be released forthwith, if not

required in any other case.

AJIT BHARIHOKE, J.

February 11, 2010                                       A.K. SIKRI, J.
Ks