Ramu vs The State (Delhi Admn.)
2010 Latest Caselaw 3448 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 23.07.2010

+             Crl.A. 293/1997

RAMU                                                      .....Appellant

                                     - versus -
THE STATE (DELHI ADMN.)                                   .....Respondent

Advocates who appeared in this case:
For the Appellant       : Ms Nandita Rao, Amicus Curiae
For the Respondent      : Ms Richa Kapur

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

      1.    Whether Reporters of local papers may                   Yes
            be allowed to see the judgment ?

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

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

V.K. JAIN, J.

1. This appeal is directed against the judgment and

Order on Sentence, both dated 19th March 1997, whereby the

appellant was convicted under Section 302 of IPC and was

sentenced to imprisonment for life and to pay a fine of Rs

1000/- or to undergo R.I. for six months in default.

2. In the morning of 20th September 1994 the dead body

of Bhola, wife of the appellant was found lying between railway

track near his Jhuggi. The postmortem conducted on the dead

body revealed that cause of death was asphyxia. The case of

the prosecution is that since there used to be quarrels

between the appellant and the deceased, one such quarrel

between them having taken place in the night of 19th

September 1994, the deceased was strangulated by the

appellant during that night.

3. The prosecution examined 24 witnesses in support of

its case. No witness was examined in defence.

4. There is no eye-witness of the murder of the deceased

and the case of the prosecution against the appellant rests

solely on circumstantial evidence. The following

circumstances were sought to be proved by the prosecution

against the appellant:-

(i) The relations between the appellant and the deceased

were far from cordial and there used to be frequent quarrels

between them.

(ii) A quarrel had taken place between the appellant and

the deceased at about 9 PM on 19th September 1992.

(iii) The appellant went to PW-4 Ram Ujagar in the

morning of 24th September 1994 and represented to him that

his wife had died in a train accident, whereas in fact she was

murdered.

(iv) The appellant told ASI Mahender Singh, who went to

the railway track in the morning of 24th September 1994, on

receipt of information about the dead body of the deceased

lying there, that she had died in a train accident.

(v) Scratches were found on the right cheek of the

appellant, when he was examined after his arrest.

(vi) Broken bangles were found lying on the railway track

near the dead body and similar broken bangles were found in

the jhuggi of the appellant.

(vii) The nails of the appellant and the deceased tested

positive for human blood.

Circumstance No.(i)

5. There is no ocular evidence to prove that the

appellant and the deceased used to have frequent quarrels.

However, letter Ex.P-1 was seized by the police during

investigation of this case. According to PW-10 Ghar Bharan,

cousin of the deceased, this letter was written by him at the

instance of her brother Hari Ram, in reply to a letter which the

appellant had written to Hari Ram. Hari Ram came in the

witness box as PW-1 and stated that the deceased used to

quarrel with the appellant, as he was not employed. He

received a letter from the deceased in this regard and then got

the letter Ex.P-1 written to her. He, however, did not claim

having witnessed any quarrel between the appellant and the

deceased. In cross-examination, he stated that the letter,

which he had received from the deceased, was handed over by

him to the police. However, that letter has not been produced

by the prosecution.

6. No explanation has been given by the prosecution for

not producing the letter written by the deceased to her brother

Hari Ram. The learned Trial Judge was of the view that had

the letter written by the deceased to her brother been

produced, the contents of that letter have gone a long way to

show the state of relations between the appellant and his wife

and suppression of that letter substantially detracts from the

credibility of prosecution version, regarding motive behind the

murder. Even otherwise, he found the letter to be innocuous

which did not indicate that the appellant entertained any

intention to kill his wife. He also noted that the letter was

addressed to both of them and did not in any manner imply

that the deceased had made a complaint of harassment or

torture in her letter. He, therefore, felt that the evidence of

motive was quite fragile.

7. We have perused the letter Ex.P-1. It is addressed to

both, the appellant as well as the deceased. Vide this letter,

both of them were advised not to quarrel and to live peacefully.

Even if we believe this letter, in spite of the letter written by

the deceased to her brother having not been produced, this

shows nothing more than that there was some quarrel

between the deceased and the appellant and that is why both

of them were advised to refrain from quarrelling each other.

We do not know the date on which the quarrel(s) referred in

this letter had taken place or on which date this letter was

sent. It does not indicate frequent or incessant quarrels

between them.

Circumstance No. (ii), (v) & (vii)

8. There is no direct evidence of the appellant having

quarreled with the deceased in the night of 19th September

1994. PW-2 Ashok Kumar, who is the neighbour of the

appellant and the deceased did not support the prosecution

and stated that he never saw any quarrel between them. PW-6

Indresh, who is another neighbour of the appellant and the

deceased, also did not support the prosecution and expressed

ignorance about their relations with each other. He claimed

that he had never seen them quarrelling. There is no other

witness of the alleged quarrel.

9.

10. The appellant was examined by PW-24

Dr.R.P.Sarswat in Civil Hospital vide MLC Ex.PW-24/A. On

his examination, the following injuries were found in his

person:

"(i) Two abrasions present over front of Right Zygoma placed parallel=Both were one inch long and were covered by black scab.

(ii) Abrasion 1 ½" below outer end of right eye placed horizontally ½" long also covered by

black scab.

(iii) Abrasion fist below right nostril slightly semilunar in shape, 1" long and covered by black scab."

He opined that all the above injuries were possible by

human nails and their duration was about two days.

However, during cross-examination, he admitted that it takes

two to three days for redish - black scab to be formed and,

after three days, the scab becomes black. Since the scabs

found on the person of the appellant were black, the necessary

implication is that they were caused three days before the

accused was examined. According to this witness, the

appellant was examined at 7.30 pm on 21st September, 1994,

meaning thereby, that the injuries in question were caused on

18th September, 1994 and not on 19th September, 1994.

Though human blood was found by CFSL in the nails of the

deceased, when they were examined in CFSL, the origin and

group of that blood could not be ascertained. The blood in the

nails of the deceased, therefore, would necessarily not be of

the appellant and could be of some other person. Therefore, it

is not necessary though it is quite possible, that the injuries to

the appellant were caused by the deceased, using her nails for

this purpose.

In his statement under Section 313 of Cr.P.C., it was

claimed by the appellant that these injuries were caused to

him during police custody. This part of his statement cannot

be believed for the simple reason that he having been arrested

on 20th September, 1994, the injuries which were three days

old on 21st September, 1994, could not have been caused to

him, while in police custody. Since the appellant has not

given any other explanation for the injuries found on his

person, it is possible to infer that these injuries were caused to

him by the deceased. What we can say is that the injuries

found on the person of the appellant were caused on 18 th

September, 1994, and possibly they were caused by the

deceased from her nails. But, since these injuries, in view of

the medical opinion, were caused on 18th September, 1994

and not on 19th September, 1994, the presence of these

injuries on the person of the appellant does not, by itself,

prove that a quarrel had taken place between him and the

deceased in the night of 19th April, 1994.

As regards blood found in the nails of the appellant,

the report of CFSL does not show either the origin or the group

of the blood found in the nails. PW-24 Dr.Saraswat admitted

in his cross-examination that he did not notice any blood on

the nails of the appellant, on examination by naked eye. In

fact, during the course of trial the nails were not produced in

the court and the phial alleged to be containing nails was

found to be empty. The learned trial Judge was of the view

that mere existence of blood on the nails cannot be recorded

as an incriminating evidence against the appellant. There is

no medical opinion that the injuries found on the person of the

deceased could have been caused by nails.

Circumstance No.(vi)

11. While examining the evidence of the prosecution as

regards the alleged recovery of pieces of bangles, the learned

trial Judge noted that as admitted by PW-21 SI Sukhbir Singh

and PW-22 Insp. Rajender Gautam, the Crime Team had

arrived at and checked the Jhuggi of the appellant. On

perusing the Report of Crime Team, Ex.CTR, he noted that as

per column 12 of the Report, three broken pieces of sky blue

bangles were "found lying on the railway track". But, there

was no whisper of recovery of pieces of bangles in the Jhuggi.

The learned Trial Judge also noted contradictions in the

testimony of the police officials as to whether the Jhuggi was

locked, as stated by PW-3 ASI Mohinder Singh, or was lying

open, as claimed by PW-21 SI Sukhbir Singh.

12. The deposition of PW-21 SI Subhbir Singh and PW-22

Insp. Rajender Gautam shows that the Crime Team came to

the spot in their presence. As rightly noted by the learned trial

Judge, had broken pieces of bangles been lying in the Jhuggi

of the appellant, that could not have escaped the attention of

the Crime Team. In case the Crime Team had carried out

inspection either before arrival of PW-21 and PW-22 to the

Jhuggi of the appellant or in their presence, they would

definitely have noted the pieces of bangles lying in the Jhuggi.

Since recovery of pieces of bangles from the railway track,

which was effected before arrival of Crime Team to the Jhuggi

of the appellant, was noted in the Ex.CTR, there could have

been no reason for the Team omitting to mention the recovery

of similar pieces of bangles from the Jhuggi of the appellant.

The learned Trial Judge has disbelieved the alleged recovery of

pieces of bangles from the Jhuggi of the appellant. We see no

reason to take a different view and, therefore, agree that this

circumstance alleged against the appellant does not stand

proved. In fact, we find it quite strange that though PW-3

visited the rail track in the morning of 20th September, 1994,

the broken pieces of bangles were seized only on the next day.

There is no explanation as to why these pieces of bangles were

not seized on the very same day on which the dead body was

found on the rail track. We say nothing more, since the

prosecution has failed to prove that pieces of bangles were also

found in the Jhuggi of the appellant.

Circumstance No.(iii) & (iv)

13. PW-4 Ram Ujagar, when he came in the witness box,

stated that the appellant was living at a distance of about 1

km. from his shop and that about 1-1/2 years before his

deposition in the court, the appellant came to his shop and

told him that his wife had been run over by a train. He took

the appellant to a neighbouring shop, from where telephonic

information in this regard was given to the police. During

cross-examination, this witness stated that the appellant was

not his customer and never purchased goods on credit from

him. He also admitted that no telephone was installed in his

shop. It was contended by the learned counsel for the

appellant that since the shop of this witness was situated at a

distance about 1 km. from the Jhyggi of the appellant and no

telephone was installed in his shop, there could be no

occasion for the appellant to go to his shop and tell him that

his wife had been killed in train accident.

14. It has come in the deposition of PW-3 ASI Mohinder

Singh that when he reached the railway track on receipt of

information from Police Control Room that the dead body of a

woman was lying on the railway track at Loha Mandi, Naraina,

the appellant Ramu, who was present there, identified the

dead body and told him that the deceased had come to railway

track to answer the call of nature and he recorded his

statement Ex.PW-3/A. As per the statement Ex.PW-3/A, the

appellant had told ASI Mohinder Singh that his wife had gone

towards railway lines to answer the call of the nature and had

collided with a train near Naraina Bridge.

It was contended by the learned counsel for the

appellant that in view of the provisions contained in Section

162 of the Cr.P.C., the statement made by the appellant to ASI

Mohinder Singh, who is a police officer, is not admissible in

evidence, except for the purpose of contradicting the maker of

the statement. On the other hand, it was contended by the

learned counsel for the respondent that since neither any FIR

had been registered nor the police had any information of

commission of offence in respect of the deceased, by the time

the statement Ex.PW-3/A was recorded, the investigation had

not commenced at that time and, therefore, the statement is

not hit by Section 162 of the Code.

15. Sub-Section (1) of 162 of the Code of Criminal

Procedure reads as under:

"(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any

inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination."

16. The expression „investigation‟ has been defined in

Section 2(h) of the Code, which reads as under:

"Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person(other than a Magistrate) who is authorized by a Magistrate in this behalf."

17. Sub-Section (1) of Section 174 of the Code of

Criminal Procedure reads as under:

"(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or

special order of the District or Sub-divisional Magistrate, shall proceed to the place, where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted."

18. Section 174 of the Code is a part of Chapter XII of the

Code. Since the police officer who receives the information

about death of a person, irrespective of whether the death is

by committing suicide or by killing or by accident or under a

suspicious circumstance, is required to proceed to the place

where dead body of the deceased is lying and to make an

investigation and draw up a report of the apparent cause of

death, it cannot be disputed that even while ascertaining the

cause of death in a case of accident, the police officer is

carrying out an investigation under Section 174 of the Code.

The prohibition against the use of the statement made to

police officer during the course of an investigation except for

the purpose of contradicting the maker, applies not only to

investigation into an offence but to every investigation under

Chapter XII which would include investigation for the purpose

of Section 174 of the Code.

19. In Razik Ram Vs. Jaswant Singh Chohan & Others

: (1975) 4 SCC 769, a judgment relied upon by the learned

counsel for the appellant, the Police Inspector, carrying out

investigation during the inquest proceedings under Section

174 of the Code, got signed the statement of person recorded

by him. It was held by Supreme Court that even a statement

of a witness recorded by the investigator during the inquest

under Section 174 of the Code would be within the inhibition

of Section162. It was observed that the rule of public policy

behind this provision was that the witness, at the trial, should

be free to tell the truth, unhampered by anything that might

have been made to say to the police. If Section 162 of the

Code applies to the statement recorded during investigation

under Section 174 of the Code, it applies not only in respect of

the prohibition against obtaining signature of the maker of the

statement but also in respect of use of that statement for any

purpose other than contradicting its maker.

In Narpal Singh Vs. State of Haryana : 1977 Crl.L.J.

642, Supreme Court held that statement of witnesses

examined during inquest proceedings were clearly hit by

Section 162 of the Code and, therefore, not admissible in

evidence.

In Periasami & Another Vs. State of Tamil Nadu :

1997 Crl.L.J. 219, Supreme Court held that recital in the

inquest report being a reproduction of what the witnesses

would have told the investigating officer, falls within the sweep

of the interdict contained in Section 162 of the Code and

hence could not be used for any purpose except to contradict

its author.

In Babu Ram Vs. State of Punjab : 1996 Cri. L.J.

2503, Supreme Court held that any statement made to the

Investigating Officer while he is conducting inquest, would be

hit by Section 162 of the Code, as this would be a statement in

the course of investigation.

20. The learned counsel for the respondent has referred

to the decision of Supreme Court in Faddi Vs. State of

Madhya Pradesh : AIR 1964 SC 1850, in support of her

contention that statement made by the appellant to ASI

Mohinder Singh is not hit by Section 162 of the Code. In the

case referred to by the learned counsel, the appellant, who

was prosecuted for murder of his son Gulab, went to the police

and lodged a report accusing three other persons of killing his

son Gulab by throwing him into the well. It was held by

Supreme Court that the report was not a confessional

statement since it stated nothing which would show that he

was the murderer of Gulab. This judgment, in our view, does

not apply to the facts of the present case for the simple reason

that no investigation under Chapter XII had commenced in the

case under reference when the appellant went to the police

station to lodge the report, whereas in the case before us, an

investigation under Section 174 commenced as soon as the

police received information that the dead body of a woman

who had met with a train accident was lying near Naraina

Bridge and ASI Mohinder Singh proceeded to the spot.

21. Therefore, we are of the view that the statement made

by the appellant to PW-3 ASI Mohinder Singh is not admissible

in evidence except for contradicting its maker.

22. Even if we take the statement made by the appellant

to ASI Mohinder Singh into consideration and also believe the

deposition of PW-4, that, by itself, does not show that the

appellant had tried to mislead the police by giving a false

cause of death of his wife. The case of the appellant is that he

was on duty in the night of 19th September, 1994 and had

returned from duty in the morning of 20th September, 1994

when he came to know that dead body of his wife was lying on

railway track. In case the appellant did not commit murder of

his wife, as claims, there was no reason for him to say

anything other than that his wife had met with a train

accident on the rail track. Since the dead body of the deceased

was lying on rail track and there was no visible cause

indicating her murder, anyone in place of the appellant would

have taken it as a case of accident with a moving train. The

appellant is a layman working in a printing press. Even the

police officer who went to the spot took it as a case of accident

by colliding with a train. If a police officer on inspection of the

dead body lying on the rail track forms an opinion that it was

a case of train accident, nothing suspicious or misleading can

be attributed to a layman if a similar opinion is formed by him.

In fact, the case of the prosecution is that not only the

appellant but also the other persons who were present on the

rail track at that time found it to be a case of train accident

and made similar statement to PW-3 ASI Mohinder Singh.

Other statement recorded by ASI Mohinder Singh at that time

are of Sant Ram Tewari and Gian Chand Chaudhary Ex.PW-

3/B and PW-3/C respectively. In the brief facts Ex.PW-3/D to

PW-3/G prepared by him on 20th September, 1994, ASI

Mohinder Singh recorded during investigation under Section

174 of the Code of Criminal Procedure, he had come to know

that the deceased had gone to railway lines in the morning to

answer the call of the nature and had died by colliding with a

train. It has come in the deposition of PW-6 Indresh that

inhabitants of the locality had to go to jungle to cross the

railway lines to answer the call of the nature. In case the toilet

facilities were not available in or around the Jhuggi of the

appellant, his wife had no option but to go towards the rail

track to answer the call of the nature. Therefore, in our view,

no conclusion of misleading the police can be drawn from the

statement made by the appellant to ASI Mohinder Singh and

to PW-4 Ram Ujagar.

CONCLUSION

23. As regards injuries found on the person of the

deceased, as noted earlier, group of the blood alleged to have

been found in the nails of the appellant has not been proved.

There is no medical or other evidence that these injuries could

have been caused by nails. The nails were not produced

during trial. It was contended by the learned counsel for the

appellant that the blood in the nails of the appellant could

have come, when he touched or scratched his own injuries,

and therefore could be his own blood as well and since the

blood was not visible on the nails, even the appellant may not

be conscious of this fact. The prosecution, therefore, has

failed to establish that the injuries found on the body of the

deceased were caused by the appellant. In any case, since the

injuries found the person of the appellant were caused on 18 th

September, 1994, as is evident from the age of the injuries, the

injuries to the deceased, if at the hands of the appellant also

would have been caused on 18th September, 1994 and not in

the night of 19th September, 1994 when she was murdered.

24. Thus, the only incriminating circumstances

appearing in evidence against the appellant are that he

sometimes used to have quarrel with the deceased and had

sustained some injuries on 18th September, 1994 which could

possibly have been caused to him by the deceased during the

course of one such quarrel.

25. We also take note of the fact that the prosecution

has failed to prove that the murder took place in the Jhuggi of

the appellant. We also note that the dead body was found

lying in the middle of rail track, and not across the track. If

the purpose of keeping dead body on the rail track was to

destroy evidence of strangulation and smash the face of the

deceased so as to conceal her identity, the dead body would

have been kept across the track, in such a manner that the

head was severed from the rest of the body and the face of the

deceased was smashed by a moving train, so that it was

rendered incapable of identification.

26. When a case rests purely on circumstantial evidence,

such evidence must satisfy three tests. Firstly, the

circumstances from which an inference of guilt is sought to be

proved, must be cogently and firmly established. Secondly,

the circumstances should be of a definite tendency unerringly

pointing towards the guilt of the accused. Thirdly, the

circumstances taken cumulatively, must 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. That is to say, the circumstances

should be incapable of explanation on any reasonable

hypothesis save that of the guilt of the accused.

27. For determining whether circumstances established

on the evidence raise but one inference consistent with the

guilt of the accused, regard must be had to the totality of the

circumstances. Individual circumstances considered in

isolation and divorced from the context of the overall picture

emerging from a consideration of the diverse circumstances

and their conjoint effect may be themselves appear innocuous.

It is only when various circumstances are considered together

that it becomes possible to understand and appreciate their

true effect.

28. The circumstances proved against the appellant

though they do create suspicion that the murder of the

deceased could possibly have been committed by the

appellant, do not conclusively and unerringly point towards

him as the only person, who in all probability, must have

committed her murder. It cannot be said that these

circumstances are totally incompatible with the innocence of

the appellant and no one other than him was responsible for

the murder of the deceased. The appellant is, therefore, given

benefit of doubt and is hereby acquitted. His Bail Bond stands

discharged. The appeal stands disposed of.

V.K. JAIN, J

BADAR DURREZ AHMED, J July 23, 2010 Ag/RS