Delhi High Court
State vs Shibbu on 16 February, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 16th February, 2010
+ Crl.L.P.No.266/2009 & Crl.M.A.No.14823/2009
STATE ..... Petitioner
Through: Ms.Richa Kapoor, APP
Versus
SHIBBU ..... Respondent
Through: None
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 prosecution sought to prove its case against
the respondent through the testimony of Amjad (PW-1), who
claimed to be an eye-witness as also through the fact that the
knife Ex.P-7 which was got recovered by the accused after he
was arrested and pursuant to his disclosure statement was the
weapon of offence.
2. With respect to the knife Ex.P-7 the evidence was
report of the serologist Ex.PW-11/F, as per which human blood
was detected on the knife but group thereof could not be
determined and opinion of the doctor who conducted the post-
mortem of the deceased that the injuries could possibly be
caused with the knife.
3. The learned trial Judge has acquitted the accused
holding that the testimony of PW-1, who claimed to be an eye-
witness, did not inspire confidence for three reasons. Firstly,
the conduct of PW-1 at the time when the crime was
committed, being found unnatural. Secondly, his not being
able to correctly state what colour and what type of clothes
were being worn by the deceased when he was murdered.
Lastly, that as per the report of doctor who conducted the
post-mortem i.e. Dr.K.K.Banerjee PW-3 two knife injuries could
be caused only when the victim moved and PW-1 has not
deposed that when assaulted, the victim moved.
4. In respect of knife Ex.P-7 the learned trial Judge has
held that the recovery which was 30 days after the crime
would rule out the presence of any blood on the knife. Noting
that the blood group of the deceased was 'A' and that no such
blood group could be found on the knife, learned trial Judge
has held that it raises a serious doubt on the investigation
conducted.
5. With respect to the finding of the learned trial Judge
qua the knife, we agree with the contentions urged by the
learned counsel for the State that the inferences drawn are
incorrect. That the knife was recovered after 30 days shows
that blood thereon would be disintegrate d and this appears to
be the reason why only human blood could be detected on the
knife and not the group thereof. It does mean that the knife
was planted.
6. On the third reasoning given by the learned trial
Judge to discredit PW-1, we agree with the contentions urged
by learned counsel for the State that a witness may not notice
the slight movements of a victim and would only state that he
saw the accused stabbed the victim.
7. But, the first two reasons given by the Judge to
disbelieve PW-1 are sound.
8. Indeed, a blood stained jeans was removed from
the dead body. Meaning thereby, that when the crime was
committed the deceased was wearing jeans. As against that,
PW-1 deposed that when he saw the crime being committed,
the deceased was wearing white/cream Kurta and Salwar.
9. That apart, the conduct of PW-1 is suspect. He
claims to be the cousin of the deceased. He claims to be an
eye-witness. Surprisingly, he reported to the police the day
after the crime was committed. His contemporaneous conduct
of not shouting for help or to take his cousin to the hospital,
coupled with the fact that he surfaced next day morning,
makes it highly improbable that he was present at the spot as
claimed by him. In this context it has to be noticed that the
crime took place in a jhuggi which was not an isolated jhuggi
but was within a slum cluster. If Amjad saw the crime, rescue
was nearby. He could have yelled and cried. Slum dwellers
would have come to his aid.
10. That apart, his claim that he went with the
deceased to the house of the accused at 12:45 in the night as
his cousin has lent money to the accused and wanted it
returned is highly improbable, for the reason he claims to have
travelled by public transport leaving the house of one Yasmin
at 10:30 PM. Nobody leaves his house at 10:30 PM at night to
reach a debtor post midnight to ask for return of money.
11. We concur with the reasoning of the learned trial
Judge that PW-1 being the cousin of the deceased, could
possibly be planted or he voluntarily planted himself. His
testimony does not inspire confidence.
12. If the eye-witness account fails, the recovery of an
ordinary article i.e. the knife as weapon of offence is
insufficient evidence wherefrom chain of circumstances can be
treated as conclusively proving the guilt of the respondent.
The decisions of Supreme Court JT 2008 (1) SC 191 Mani Vs.
State of TamilNadu, 1999 Crl.LJ 265 Deva Singh Vs. State of
Rajasthan, AIR 1994 SC 110 Surjeet Singh 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 may be referred to.
13. We see no reason to grant leave to appeal to the
State.
14. We notice that vide Crl.M.A.No. 14823/2009 delay
in seeking leave to appeal has been prayed to be condoned.
15. Since we are not granting leave to appeal to the
State on merits, we dismiss Crl.L.P.No.266/2009 as also
Crl.M.A.No.14823/2009.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
FEBRUARY 16, 2010
'mr'
