Delhi High Court
Ashish vs State on 16 February, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision :16th February, 2010
+ Crl. A. No. 15/2006
ASHISH ..... Appellant
Through: Ms.Sharadha Bhargava,
Advocate
versus
STATE ..... Respondent
Through: Mr.M.N.Dudeja, APP
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 Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
PRADEEP NANDRAJOG, J. (Oral)
1. The appellant, who is in jail had given in writing on
24.12.2009 that he does not desire the services of a legal aid
counsel and that he would ensure that his counsel Sh.Ravinder
Chadha and Sh.A.S.Rathore would appear when the appeal is
called out for hearing. In the said writing the appellant signed
that he was aware of the fact that his appeal was at serial
No.72 in the list of „Final Hearing Matters‟ and is likely to be
heard in the month of January,2010.
2. Notwithstanding the aforesaid writing by the
appellant, the Registry of this court sent notices to
Sh.Ravinder Chadha and Sh.A.S.Rathore, Advocates intimating
the learned counsel that the appeal is listed at serial No.72 in
the list of „Final Hearing Matters‟.
3. Both counsel have been served. Unfortunately,
when the appeal has been called for hearing today, neither
counsel has bothered to appear.
4. We note that the cause list was circulated to the
Members of the Bar on 02.01.2010, meaning thereby, the
Members of the Bar have adequate advance notice of the
appeals filed by them being listed at different serial number in
the cause list.
5. Accordingly, we have appointed Ms.Sharadha
Bhargava, Advocate, who is present in court as the Amicus
Curiae to argue the appeal on behalf of the appellant. We fix
her fee in sum of Rs.5500/- to be paid by the Delhi High Court
Legal Services Committee.
6. Vide impugned judgment dated 25.10.2005 the
appellant has been convicted for the murder of Sapna. It has
been held that the testimony of PW-3, the father of Sapna
establishes a motive for the crime. It has been held that the
recovery of a knife at the instance of the appellant which was
opined to be the possible weapon of offence, on which knife
human blood of the same group as that of the deceased was
detected as also the fact the human blood of same group was
detected on the two shirts got recovered by the juvenile co-
accused of the appellant after he was arrested, establish the
appellant being the architect of the crime.
7. We note that as per the prosecution a junior co-
accused named Sandeep was also involved in the commission
of the crime, whose trial was referred to the Juvenile Court.
8. In the instant appeal we are concerned with the
fate of the appellant Ashish.
9. Since what has been held as incriminating evidence
by the learned trial Judge has been briefly noted hereinabove,
we refrain from noting the evidence which pertains to Sapna
being fatedly assaulted on a public street and her neck being
cut. We need not note such evidence which proves the
commission of the crime. The reason is obvious. The issue at
hand is not whether the crime was committed, but who
committed the same.
10. Information about the crime was reported at the
police post Garhi, PS Lajpat Nagar at 9:17 P.M. as recorded in
DD No.27 that somebody has committed murder in front of
House No.D-83, East of Kailash and the assailant has run away.
ASI Jagar Pal PW-18 accompanied by Ct.Sri Ram and Ct.Tej
Ram left the police post under the leadership of SI Yudhvir.
They proceeded to D-83, East of Kailash where a young girl
aged about 21 years was lying dead in front of House No.D-83.
The trail of blood was leading to the back of House No.D-66,
East of Kailash. A rexine bag was found which contained a
telephone diary having written thereon the name: „Sapna
Sahani‟. The number was contacted and Shanker, father of
Sapna was informed. Shanker the father and Kamal the
brother of the deceased came to the spot and identified the
dead body as that of Sapna Sahani.
11. Shanker informed the police that his daughter used
to work as a sales girl in Rama Gallery, Lajpat Nagar and a
week back told him that two boys named Ashish and Sandeep
used to harass her asking her to marry them. (We presume
that Shanker intended to say that "Ashish had intended to
marry his daughter and Sandeep used to help Ashish in
troubling his daughter").
12. The statement Ex.PW-3/A of Shanker was recorded
and based thereon FIR was registered for the offence of
murder, with Ashish and Sandeep being suspects.
13. No eye witnesses could be located by the
prosecution.
14. After the appellant was arrested, as usual, (claim of
police) he made a confession and informed that he could get
recovered the weapon of offence. Even co-accused made a
confession and informed that while committing the crime his
i.e. Sandeep‟s shirt and even the shirt of his co-accused i.e.
appellant got stained with the blood of the deceased. He
volunteered to get the two shirts recovered.
15. As noted hereinabove pursuant to the disclosure
statement of Ashish a knife, stated to be the weapon of
offence was recovered. Two blood stained shirts were also got
recovered at the instance of juvenile co-accused Sandeep. As
noted above the knife and the two shirts were found to be
having human blood of the same group as that of the
deceased.
16. Shanker PW-3 has only proved the possible motive
of the appellant committing the crime. This would be on the
presumption that the deceased was repelling the overtures
cheers of Ashish. But, motive is always treated as a weak
evidence for the reason it is based on presumptive logic. By
its very nature presumptive logic is weak evidence.
17. As regards the recoveries, as held in the decisions
reported as JT 2008(1) SC 191 Mani vs. State of Tamil
Nadu; 1999 Crl.LJ 265 Deva Singh vs. State of Rajasthan;
AIR 1994 SC 110 Surjit Singh and Anr. vs. State of Punjab;
AIR 1977 SC 1753 Narsinhbhai Haribhai Prajapati etc. vs.
Chhatrasinh & Ors. and AIR 1963 SC 1113 Prabhu vs.
State of UP , the recoveries of ordinary articles such as
knife etc. are treated as weak pieces of evidence.
18. The reason is obvious. Unlike a fire arm which
creates distinctive marks on the bullet and the cartridge, a
knife can at best be opined to be a possible weapon of
offence and not the only weapon of offence.
19. As regards the two shirts got recovered by the
co-accused of the appellant, part of the disclosure
statement that one shirt was the one which he was
wearing and the other was the one which was worn by the
appellant is inadmissible in evidence through the route of
Section 27 of the Evidence Act. There has to be some
other evidence to prove that the appellant and his junior
co-accused were wearing one shirt each. That apart, as
held in the aforesaid decisions, such kinds of recoveries
are treated as weak evidence. Besides, recoveries by the
co-accused are not incriminating evidence against the
other.
20. In a nutshell, the mere fact that the appellant
was desiring the deceased to marry him and the deceased
was refusing the said marriage proposal and the fact that
a knife was got recovered by the appellant and two shirts
were got recovered by the co-accused, all three articles
were stained with human blood of the same group as that
of the deceased are insufficient evidence with reference
to which it can be said that the chain of circumstances is
complete wherefrom the guilt of the appellant can be
inferred and innocence ruled out. At best the evidence
has reached the level of suspicion. It has remained in the
realm of „could be‟ and has not reached the level of
„should be‟.
21. The appeal is allowed. The impugned judgment
and order dated 25.10.2005 is set-aside. The appellant is
acquitted of the charge of having murdered Sapna. The
sentence imposed upon the appellant is quashed. The
appellant is directed to be set free forthwith if not
required in any other case.
22. Since the appellant is in Jail, a copy of this order
be sent to the Superintendent, Central Jail, Tihar for
necessary action.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
FEBRUARY 16, 2010
'nks'
