Subhash Chand @ Bhasi vs State
2010 Latest Caselaw 503 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI


                               Judgment reserved on: October 07, 2009
                               Judgment delivered on : January 29, 2010


+      CRIMINAL APPEAL NO.226/1995


       SUBHASH CHAND @ BHASI                          ..... APPELLANT
                       Through:                 Mr. Sumit Kumar Khatri,
                                                Advocate with Ms. Rekha,
                                                Advocate
                      Versus


       STATE                                          ..... RESPONDENT
                                    Through:    Mr. Sunil Sharma, Advocate



       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       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. The present appeal is directed against the impugned

judgment dated 12.10.1995, in Sessions case No.77/91 arising out

of FIR No.464/90, Police Station Nabi Karim convicting the appellant

for the offence punishable under Sections 302/34 IPC and also the

order on sentence of the even date in terms of which the appellant

has been convicted to undergo RI for life.

2. Briefly stated, the case of the prosecution is that on

29.12.1990 at about 7.00 a.m. in the morning, ASI Ombir

telephonically informed the duty officer P.S. Nabi Karim that some

unknown persons have informed him through a public call that a

person was lying dead in a gunny bag in the garbage dump located

at Gali Kumhar Wali, Ram Nagar. This information was recorded as

DD No.6A (Ex.PW18/A) and copy thereof was entrusted to SI Jai

Kishan, PW20, who proceeded for the garbage dump, Ram Nagar

along with Constable Sehdev, where he found a dead body wrapped

in a plastic bag in the garbage dump. The dead body was identified

by PW9 Ramesh Chander as that of his cousin Sudesh @ Meenu.

On 29.12.1990 itself, accused Govind Ram (expired during the

pendency of the appeal) was apprehended near Sheela Cinema at

3.00 p.m. He led the police party to his house number L-84,

Laxman Puri. There blood was found lying on three places on the

landing of the staircase on the first floor. Blood was also noticed on

the second and sixth step of the staircase leading from the first

floor to the second floor. There were some stains of blood on the

western wall by the side of the sixth step of the staircase leading

from the first floor to the second floor. The staircase terminated at

a triangular step where a blood stained brick, a blood stained

leather chappal and a blood stained piece of wood were found. The

police lifted the sample of blood from the staircase and also seized

the blood stained brick, blood stained chappal and the blood

stained piece of wood. The accused Govind Ram led to the police

to the ground floor and produced a blood stained kurta, pyjama and

a pair of chappals from the store of his house, which were taken

into possession. Govind Ram also pointed to a three wheeler

scooter No.DLR 8050 which was parked in the gali outside the

house. On inspection, some blood was found on the seat of the said

three wheeler scooter. Sample of the blood was lifted from there

also.

3. On 30.12.1990, appellant Subhash was arrested. On

interrogation, he made a disclosure statement and led the police

party to his house No. BC-91, Chinot Basti, Gali No.10, Multani

Dhanda, Delhi. There he produced from beneath a bed in the living

room, his blood stained pant and a blood stained shirt. Lastly

accused Bal Kishan was arrested. He took the police party to his

house No. WB-108A, Ganesh Nagar and from there, he produced his

blood stained pyjama and shirt.

4. We may note that the clothes which the deceased was

wearing, the bag in which his dead body was found wrapped, the

samples of blood lifted from house No. L-84, Laxman Puri as also

the three wheeler scooter and the blood stained clothes recovered

at the instance of the three accused were sent to CFSL for

serological examination and it was found that the blood on all those

articles was found to be the human blood group „AB‟.

5. During investigation, the police examined Umesh Chand

Sharma, PW12 who was residing as a tenant in a room on second

floor of house No. L-84, Laxman Puri, Nabi Karim, Delhi belonging to

Govind Ram @ Bundu and who claimed to have seen the appellant

Subhash Chand @ Bhasi, Govind Ram @ Bundu and Bal Kishan @

Pandit beating their friend Sudesh @ Meenu (deceased) when he

came out of his room at 12.15 a.m. on hearing the words "Bachao

Bachao". This witness, however, turned hostile in the Court and did

not support the case of the prosecution. The Investigating Officer

also recorded the statement of PW4, Trilok Chand and other

witnesses. On conclusion of the investigation, a charge sheet

against the appellant, Govind Ram (since deceased) and Bal Kishan

(Proclaimed Offender) was filed. All the three accused were

charged for the offences punishable under Section 302 IPC read

with Section 34 IPC and Section 201 IPC read with Section 34 IPC.

6. The appellant and his co-accused persons pleaded innocence

and claimed to be tried.

7. We may note that the appellant‟s co-accused Govind Ram @

Bundu expired during the pendency of the appeal and the other co-

accused Bal Kishan absconded and he was declared proclaimed

offender.

8. In order to prove the guilt of the appellant, prosecution

examined as many as 21 witnesses. However, the witnesses

material for determination of this appeal are PW12 Umesh Chand

Sharma, PW4 Trilok Chand, PW19 S.I. M.S. Sanga, PW20, S.I. Jai

Kishan and PW21 R.S. Dahiya, the then SHO Nabi Karim as also

Dr.L.T. Ramani, PW14, who conducted post mortem examination on

the dead body of the deceased.

9. PW12, Umesh Chand Sharma is the only purported eye-

witness of the occurrence. He has not supported the case of the

prosecution and denied having seen the occurrence. According to

him, on the relevant night, he went to sleep after taking his meals

and at about 11.30/12.00 midnight, he heard a noise of "Bachao

Bachao" but he ignored the noise, thinking it may be some child

creating nuisance. The prosecution case was suggested to him

during cross-examination by learned APP but he denied the

suggestions. He even denied having made his purported statement

Ex.PW12/A to the police during investigation.

10. PW4, Trilok Chand deposed in Court that on the night

intervening 28th and 29th December 1990, when he was coming

from Qutab Road at around 12.30 a.m. he saw both the accused

persons loading a gunny bag in a three wheeler scooter with the

help of a third companion. We may note here that when PW4 was

examined as a witness, only Govind Ram and Subhash were on trial

because Bal Kishan had absconded and was declared proclaimed

offender. PW4 Trilok Chand also stated that on 29th December,

1990, around 7.30/8.00 a.m. while he was going to the house of his

in-laws, he noticed a crowd near the garbage dump, Peela Katra.

He went there and saw that a plastic bag was lying in the dump

with its mouth closed. Police also reached there and opened the

plastic bag, which was found to contain the dead body of Sudesh @

Meenu, who was a resident of the locality. Thereafter, he went to

the house of PW9, Ramesh Chander, who was the cousin of the

deceased and called him. Ramesh Chander identified the dead

body of Sudesh. We may also note here that initially the witness

stated that on seeing the dead body, he went to the house of the

cousin of the deceased namely the appellant Bhasi and told him

that dead body of Meenu was lying in the garbage dump, who came

at the spot and identified the dead body. PW4, Trilok Chand,

however, did not support the case of the prosecution regarding the

recovery of blood stained clothes of the appellant at his instance

from his house. He was cross-examined by learned APP on the

aspect of recovery of blood stained clothes at the instance of the

appellant but he denied having witnessed the disclosure statement

made by the appellant or the recovery of blood stained clothes at

his instance. He however, admitted his signatures on the disclosure

statement of the appellant Ex.PW4/J as also on the pointing out cum

recovery memo pertaining to the blood stained clothes Ex.PW4/N.

11. PW19, S.I. M.S. Sanga, PW20, S.I. Jai Kishan and PW21, R.S.

Dahiya, SHO are the police witnesses examined to prove the

disclosure statement made by the appellant and recovery of the

blood stained pant and shirt of the appellant at his instance vide

memo Ex.PW4/N.

12. PW14, Dr.L.T. Ramani conducted the post mortem

examination of the body and he found following external injuries on

the deceased:

"1. Three lacerations 1 ½ " to 2 ½ long into scalp dead irregular stellete shaped over left frontal and parietal region.

2. CLW 2" x 3/4" x scalp deed placed antero posteriorly on the left parietal region in the mid line.

3. CLW 1 ½" x 3/4" into muscle deep on the forehead near hair margin.

4. CLW 1 ½" x 1" x scalp deep on the left parietal eminence.

5. CLW 2" x 3/4 " into scalp deed on the right parietal region.

6. An abrasion 2" x 2" on the upper part of right external ear - pinna with tiny punctured laceration.

7. An abrasion 1" x 1" on the right cheek bone area

8. Abrasion ½" x ¼" on the outer end of right eyebrow .

9. CLW ¼" x 2/10" x skin deep on the left upper eye lid.

10. Multiple abrasion on the left cheek and angle of jaw scattered over an area of 4" x 3".

11. Laceration ¼" x ¼" muscle deep with bruising and abrasion around on the lower lip left side.

12. Upper central incisors and lateral incisors were freshly broken with bruising of gums and bleeding from the sockets.

13. Fracture of mandible (overjaw) in the mid line.

14. Superficial grazed abrasions present horizontally on the front and right side of neck 4 ½" x 1" area.

15. Abrasion 1" x 1" on the left mastoid region.

16. Abrasion ½" x ½" on the left elbow."

13. Dr.Ramani opined that the injuries were ante mortem in

nature and caused by a blunt weapon. According to him, the injury

on the skull of the deceased was sufficient to cause death in the

ordinary course of nature and the cause of death was cranio-

cerebral injury. Dr.Ramani stated that the clothes of the deceased,

scalp hair and samples of his blood were preserved and handed

over to the police. He proved the post mortem report Ex.PW14/A.

14. The learned Trial Court, on appreciation of the evidence,

found the appellant guilty of murder of the deceased on the basis of

circumstantial evidence and convicted him along with his co-

accused Govind Ram (since deceased) under Section 302 IPC read

with Section 34 IPC. The appellant was acquitted on the charge

under Section 201 IPC.

15. Before adverting to the detailed submission of learned

counsel for the parties, we deem it 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."

16. The Supreme Court reiterated the above principles of law in

the matter of Brijlala Pd. Sinha v. State of Bihar, (1998) 5 SCC

699, where it inter alia observed thus:

"9. .....In a case of circumstantial evidence, the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; and lastly, the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by a catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. ....".

17. The circumstances which formed basis for the conviction of

the appellant by the learned Trial Court are detailed thus:

(i) PW12, Umesh Chand, who was a tenant on the first floor of the house of accused Govind Ram heard the cry for help coming from the direction of the staircase of the house on the relevant night of December 1990.

(ii) On the same night at around 12.30 a.m, PW4, Trilok Chand saw the appellant and his co-accused persons loading a bag on a three wheeler scooter No.DLR 8050.

(iii) A plastic bag containing dead body of the deceased Sudesh @ Meenu was found lying in a garbage dump near said house in the morning of 29th December 1990 somewhere around 8.00 a.m.

(iv) On 29th December, 1990, the Investigating Officer, on inspection of the house of Govind Ram found traces of blood on the western wall as well as the staircase, which blood samples were lifted and later on sent for serological examination.

(v) Blood was also found on the three wheeler scooter No. DLR 8050 parked outside the house of Govind Ram.

(vi) Right foot chappal of the deceased was also found in the staircase.

(vii) The accused got recovered a blood stained pant and shirt pursuant to his disclosure statement.

(viii) The blood samples lifted from the staircase, at the wall, three wheeler scooter as also the blood stained clothes of the appellant were sent for serological examination along with the blood stained clothes of the deceased and his blood sample and on examination, all the incriminating articles tested positive for human blood group AB, which was also the blood group of the deceased.

18. On perusal of the impugned judgment, it appears that the

learned trial Court, on the basis of circumstances (i), (iii), (iv), (v),

(vi) and (viii) has concluded that it was the deceased Sudesh @

Meenu who was killed in the staircase in the house of the accused

Govind Ram on the night intervening 28th and 29th December, 1990.

On the basis of circumstances no. (ii), (vii) and (viii), the Trial Court

has arrived at a conclusion that the appellant Subhash @ Bhasi was

also a party to the commission of crime.

19. At the outset, we may note that learned counsel for the

appellant has confined his arguments to circumstances no.(ii), (vii)

and (viii) detailed above and has not challenged the conclusion of

the learned Trial Court regarding the proof of incriminating

circumstances no.(i), (iii), (iv), (v) and (vi). He also submitted that

the purported recovery of the pant and shirt of the appellant at his

instance has not been linked with the serological report, as the

description of the allegedly recovered pant and shirt vide memo

Ex.PW4/N does not tally with the description of any of the clothes

sent to the CFSL for serological examination.

20. Learned counsel for the appellant submitted that in order to

prove circumstance no.(ii) referred to above, which is the

foundation of the case of the prosecution against the appellant, the

prosecution has relied upon the testimony of PW4, Trilok Chand,

who is not a reliable witness. Expanding on this argument, it is

submitted that PW4, Trilok Chand is a chance witness who claimed

to have seen the appellant and his co-accused loading a gunny bag

in three wheeler scooter No.DLR 8050 on the night intervening 28th

and 29th December, 1990 at around 12.30 a.m. Learned counsel

submitted that learned Trial Court, while appreciating the evidence

on record has erred in ignoring the fact that it was a night of

extreme winter season in Delhi and there was a real possibility of

fog at that time and if that was so, it is highly improbable that the

witness could have seen the appellant and his co-accused loading a

gunny bag in the three wheeler scooter. He further submitted that

even if, for the sake of argument, it is accepted that the witness

saw the appellant helping his co-accused in loading the gunny bag

in the three wheeler scooter. It is improbable that he could have

noticed the number of the three wheeler scooter as given by him in

his testimony. This circumstance, according to learned counsel for

the appellant, raises a strong possibility that PW4 Trilok Chand is

not a truthful witness. It is further submitted by the learned

counsel that the conduct of PW4 on the next morning, when the

dead body of the deceased was allegedly recovered from the

garbage dump from a plastic bag by the police in his presence, also

makes this witness unreliable. Learned counsel argued that had

the witness actually seen the appellant and his co-accused persons

loading a gunny bag in the three wheeler scooter in the dead of

night at 12.30 a.m., then at the time of recovery of the dead body

on the next morning from a plastic bag, it was expected of him,

under the natural course of circumstances, to immediately tell the

police about the loading of gunny bag by appellant and others

witnessed by him at night instead of going to call PW9 Ramesh

Chander, cousin of the deceased. Thus, it is argued that even the

conduct of the witness referred to above makes his testimony

unreliable. Learned counsel has further submitted that reliance

cannot be placed upon the testimony of PW4, Trilok Chand because

perusal of the record would show that this witness was

omnipresent. He not only claims to have seen the appellant

participating in loading of gunny bag in the TSR, but he also

witnessed the recovery of dead body, arrest of the appellant, his

disclosure statement as well as the recovery of the blood stained

clothes of the appellant at his instance. Not only this, he is also the

witness to the arrest of co-accused Govind Ram, his disclosure

statement as well as the seizure of incriminating articles including

the TSR at the instance of the co-accused Govind Ram. Learned

counsel has submitted that the fact that PW4, Trilok Chand is the

witness to each and every aspect of the investigation of the case

suggests that he is not a truthful witness and he has been

introduced as a witness by the Investigating Officer to solve a blind

case. Learned counsel for the appellant has also pointed out that

the blood stained clothes purportedly recovered from the house of

the appellant at his instance have also not been linked with the

crime. In support of this contention, learned counsel has pointed

out that as per the pointing out cum seizure memo Ex.PW4/N, the

appellant had produced one almond coloured pant and a light blue

shirt, which were seized at the spot of recovery. The case of the

prosecution is that the clothes of the appellant were also sent to

CFSL for serological examination. On perusal of the serological

examination report Ex.PW21/A, it transpires that as many as 30

exhibits were sent to the CFSL for serological examination. The

details and description of those articles is mentioned in Ex.PW21/A.

On careful perusal of the details of those exhibits, it would be seen

that none of the exhibits is described as a blue coloured shirt or

almond coloured pant. Thus it is argued that the prosecution has

failed to establish that blood stains were found on the clothes of the

appellant, as such, even circumstance no. (viii) is not firmly

established. From this learned counsel for the appellant has urged

us to infer that the prosecution has failed to firmly establish that

the incriminating circumstances forming a complete chain

consistent with the guilt of the appellant and ruling out any

possibility of the innocence of the appellant.

21. Learned counsel for the State, on the other hand, has

submitted that the Trial Court has rightly concluded that the

prosecution has been able to establish above referred eight

incriminating circumstances against the appellant, which leads to

an irrefutable inference of guilt of the appellant.

22. On consideration of rival contentions, we find merit in the

above referred submissions made on behalf of the appellant. Taking

into account that the incident took place on the night intervening

28th /29th December, 1990 at around mid night, a possibility of fog

cannot be ruled out and therefore, there is a remote possibility of

PW4, Trilok Chand having seen and identified the appellant and his

co-accused persons loading a gunny bag in the TSR. Even if, for the

sake of argument, it is assumed that he identified the appellant,

then also it is highly improbable that in the dark of the night, he

would have noticed the number of the TSR i.e. DLR 8050. Even the

conduct of the witness on the next morning when the dead body

was recovered from the garbage dump in his presence is highly

unnatural. If PW4, Trilok Chand had actually witnessed the

appellant and his co-accused persons loading a gunny bag in the

TSR on the previous night at 12.30 a.m, under the natural course of

circumstances, he was expected to immediately tell that fact to the

Investigating Officer when the dead body was recovered from the

plastic bag, instead of going away from the spot of recovery to call

PW Ramesh Chand. Further, on perusal of record, it transpires that

PW4, Trilok Chand is a convenient witness for the police as he was

an omnipresent witness to almost each and every aspect of the

investigation including the arrest of the accused persons, their

disclosure statements or recoveries at their instance, besides the

recovery of the dead body as also the loading of the gunny bag in

the TSR by the appellant and his co-accused. The aforesaid fact is

itself sufficient to doubt the credibility of PW4, Trilok Chand because

we find it difficult to believe that an independent witness will

continue to remain with the investigation team for hours together

till the entire case is solved. Thus, we are of the considered view

that the prosecution has failed to firmly establish that PW4, Trilok

Chand actually saw the appellant and his co-accused persons

loading a gunny bag in the three wheeler scooter No. DLR 8050 on

the fateful night. Once there is a doubt against the existence of

above referred circumstance, the entire foundation of the

prosecution case against the appellant is knocked out as

circumstance no.(ii) referred to above is the main link to connect

the appellant with the crime. Thus the result is that the appellant is

entitled to the benefit of doubt.

23. There is another aspect of this case. Even if, for the sake of

argument, the testimony of PW4 is believed, then also, only thing

which is established on record on the basis of circumstantial

evidence is that the appellant and his co-accused persons loaded

the dead body packed in a gunny bag in the three wheeler scooter.

The question arises whether this circumstance by itself is sufficient

to infer that the appellant had committed murder of the deceased

or that he shared a common intention with any of his co-accused

persons to commit the murder. There is always a possibility that

the appellant might have reached at the spot after the murder and

he helped the real culprit in disposing off the dead body and in that

eventuality, by no stretch of imagination, he could be held guilty for

the offence of murder with the aid of Section 34 IPC. Therefore

also, we feel that the appellant is entitled to benefit of doubt so far

as the charge under Section 302 read with Section 34 IPC is

concerned.

24. The result of above discussion is that the prosecution has

failed to firmly establish the incriminating circumstances against

the appellant so as to form a chain so complete to lead to the

inference of the guilt of the appellant, ruling out any possibility of

his innocence. Thus, we find it difficult to sustain the impugned

order of conviction and feel that the appellant is entitled to the

benefit of doubt.

25. We accordingly accept the appeal and set aside the impugned

judgment of conviction as also the consequent order on sentence

and acquit the appellant, giving him benefit of doubt.

26. The appellant Subhash is on bail. His bail and surety bond

stand discharged.

AJIT BHARIHOKE, J.

JANUARY 29, 2010                  SANJAY KISHAN KAUL, J.
gm