Ram Nandan vs State
2010 Latest Caselaw 3544 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Order pronounced on: 28.07.2010
                                       Judgment with reasons on : 30.07.2010

+             Crl.A. 225/2010

NAVEEN CHAUHAN @ CHUSSI                                       .....Appellant


                                       - versus -

STATE                                                         .....Respondent

Advocates who appeared in this case:
For the Appellant       : Mr D.B. Goswami
For the Respondent      : Mr Richa Kapoor, APP
                          Insp. Satvir Singh, PS Dabri

              Crl.A. 291/2010

RAM NANDAN                                                    .....Appellant


                                       - versus -

STATE                                                         .....Respondent

Advocates who appeared in this case:
For the Appellant       : Mr K.K. Manan with Mr. Nipun Bhardwaj & Mr. Mustafa Arif
For the Respondent      : Ms. Richa Kapoor, APP
                          Insp. Satvir Singh, PS Dabri




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

      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

V.K. JAIN, J.

1. The appellants were acquitted by us vide a separate

order dated 28.7.2010. While acquitting them, we stated that

the reasons for our decision would follow. We, accordingly,

are recording reasons for their acquittal.

2. These appeals are directed against the judgment

dated 19.1.2010, and Order on Sentence dated 27.1.2010,

whereby the appellants were convicted under Section 302 IPC

read with Section 34 thereof and were sentenced to undergo

imprisonment for life and to pay fine of Rs 2,000/- each or to

undergo SI for six months each in default.

3. On 30th April, 2006, at about 3.55 pm., Bhola

Chaudhary, brother of deceased Anita, informed Police Control

Room that someone had cut the throat of his sister (wrongly

recorded as aunt) in House No.304, Gali No.1, Durga Park,

Nasir Pur. On receipt of this information, SI Ved Prakash of

PS Dabri went to the spot and found the dead body of the

deceased Anita lying in the flat. He recorded the statement of

Bhola Chaudhary, who was present on the spot, and the FIR

was registered on his statement. Bhola Chaudhary stated that

the appellant Ram Nandan, husband of the deceased, had

developed illicit relations with a girl, which had become a

cause of quarrel between him and the deceased. He further

stated that on that day, his son Vivek had found the dead

body of Anita lying in her flat and had informed him. He

alleged that the appellant Naveen Chauhan @ Chussi also

used to come to their house after taking liquor and used to

bring vegetables etc. on the pretext that the husband of the

deceased had sent him. They, however, used to rebuke him

and send him back. He expressed suspicion that the

appellants Ram Nandan and Chussi were involved in the

murder of his sister. The case of the prosecution is that

murder of deceased Anita was committed by the appellants.

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

Anita. The trial court based their conviction on the following

circumstances:

"(i) brother of the deceased and mother of the deceased have clearly stated that there were quarrel between accused Ram Nandan and his wife Anita, the deceased, over accused Ram Nandan having illicit relations with another women. This point towards the possible motive which could have triggered the murder in this case.

(ii) Accused Naveen as the close friend of the accused Ram Nandan used to frequently visit the house of the deceased as well as the house of her parents.

(iii) on the date of occurrence, at the time of occurrence, the presence of accused persons at the spot is hinted by deposition of PW-13 as he has deposed that in the midst of the party, which was being held at his house, both the accused persons were coming and going. Accused Ram Nandan had a motorcycle. The place of occurrence, admittedly, was not far off from the place where the alleged party was going on.

(iv) At the instance of accused

Naveen, weapon of offence, which was the knife and was stained with human blood was recovered.

(v) The doctor, who had conducted postmortem on the body of the deceased was shown the knife recovered at the instance of accused Naveen. The said doctor had prepared its sketch also and opined that this weapon of offence could have been used to inflict injury to the deceased Anita. That the injuries inflicted were sufficient to cause death of the deceased.

(vi) At the instance of accused Naveen, his blood stained clothes were recovered in pursuance to his disclosure statement.

(vii) At the instance of accused Ram Nandan, his bloodstained clothes were recovered from polythene, which he allegedly abandoned near the nala.

(viii) The Forensic report ex. PW-23/D indicates that the weapon of offence, the shirt and Jeans pant, the shirt of the accused persons, ladies shirt, salwar, brazier of the deceased, all have had human blood of B-Group. Meaning thereby, that the same human of blood of B-Group, which was detected on the clothes of the deceased was found on the weapon of offence and the clothes, which were recovered at the instance of the accused persons. This is a very strong incriminating and corroborating evidence available on record, as against both the accused persons, to confirm their involvement in the present crime of murder.

(iv) The recovery, which was effected from both the accused persons, in this case, were at their instance, in pursuance

of their disclosure statement and is admissible under Section 27 of the Indian Evidence Act.

(x) The conduct of the accused Ram Nandan after having known and seen that his own wife has been murdered was abnormal. He was neither shocked nor he resorted to lodge any complain against the offence even though he had enough opportunity as he was arrested on 01.05.2006 only."

Circumstance No.1

5. According to PW-8 Mankeshwari Devi, mother of the

deceased, the appellant Ram Nandan had fallen in love with a

Punjabi girl and a quarrel had taken place between the

deceased and her husband. She, along with the deceased,

went to the house of that girl and told her that she was

destroying the family life of her daughter. That girl, however,

did not listen to them and rather threatened to call the police.

The witness was confronted with her statement recorded

under Section 161 of Cr.P.C., where she had not stated that

she had gone to the house of that girl, had told her that she

was destroying the life of her daughter and that girl did not

listen to them and rather threatened to call the police. This

part of her deposition, therefore, is an improvement. The case

of the prosecution is that the girl with whom the appellant

Ram Nandan had an affair was PW-6 Meena Sharma.

However, when she came in the witness box, Meena Sharma

did not support the prosecution and denied having told the

police that her marriage had earlier been settled with the

appellant Ram Nandan and that the appellant used to come

near her house to meet her. She also denied having told the

police that appellant Ram Nandan used to insist that she

marry him and that a dispute had arisen between her and her

husband, which had resulted in breakdown of her marriage.

Thus, the prosecution has failed to establish any extra marital

affair of the appellant Ram Nandan. The evidence produced

by the prosecution proves nothing more than that the

deceased used to suspect that her husband was having an

affair with a girl which, of course, might have resulted in some

quarrel between the husband and wife. However, the

deposition of the mother of the deceased does not indicate

when the alleged quarrel took place between the husband and

wife. In fact, according to PW-9 Shivam Chaudhary, father of

the deceased, it was one year prior to this incident that the

appellant had illicit relationship with a girl. As far as PW-3,

complainant Bhola Chaudhary is concerned, his testimony

regarding the alleged illicit relations of the appellant Ram

Nandan with a girl is hearsay being based upon what his

mother had told him. There is, in any case, no evidence that

the alleged illicit relationship of the appellant with a girl

continued till the time the deceased was murdered on 30th

April, 2006.

Circumstance No.2

6. The alleged visits of the appellant Naveen @ Chussi to

the house of appellant Ram Nandan cannot be said to be an

incriminating circumstance. There is no evidence of the

appellant Naveen @ Chussi having visited the house of the

deceased on the day she was murdered.

Circumstance No.3

7. According to PW-13 Mahesh Prasad, in the morning

of 30th April, 2006, there was a party in his house on the

occasion of the marriage of daughter of Shri Lalu Prasad

Yadav and many MLAs had come from Bihar to attend the

marriage. He further stated that the appellants were invited

by him on that day to work as waiters. He also stated that

before receipt of a telephone call at about 4.00 pm, sometimes

appellant Ram Nandan alone and sometimes both the

appellants used to go outside from the party, though he did

not know much since he was busy in the arrangement of the

party. This witness was unable to give the name of the

daughter of Shri Lalu Prasad Yadav, who was to be married.

He claimed to be a mason. Though he claimed that many

MLAs had come from Bihar to attend the marriage, he could

give the name of only one MLC Mr.Bhim Singh, who, according

to him, had come to attend the marriage. Mr.Bhim Singh has,

however, not been produced as a witness. No invitation card

of the party alleged to have been given by this witness on the

occasion of the marriage of daughter of Shri Lalu Prasad

Yadav, has been produced. Taking the deposition of the

witness in this regard to be true, it proves nothing more than

that the appellant had, during the course of the party,

sometimes gone out of the party venue. He does not say that

the appellants had left the party for say one or two hours at a

stretch. The case of the prosecution is that the appellant Ram

Nandan had a motorcycle with him and the place of murder is

not far of from the place where the party was organized by PW-

13 Mahesh Prasad. According to Mahesh Prasad, the party

was organised by him at the roof of his house which is RZ-

125, Gali No11, Kailash Puri Extension, New Delhi. We do not

know what was the distance between the place where the

party is alleged to have been organized by PW-13 and the

place where the deceased was murdered. According to PW-13,

they reached the place of occurrence within half an hour after

receiving information about the murder of the deceased. As

noted earlier, the appellant Ram Nandan had a motorcycle

with him on that day. If it took half an hour to reach the place

of occurrence from the place of PW-13, the appellants required

one hour just to go to the place of occurrence from the place

where the party was organized by PW-13 on that day and to

return to the venue of the party. The case of the prosecution is

that an attempt to have sexual intercourse with the deceased

was made before she was murdered. It is also the case of the

prosecution that after committing murder the appellant

Naveen Chauhan @ Chussi had concealed his bloodstained

clothes as well as the weapon of offence in a cardboard box in

his house, whereas the appellant Ram Nandan had thrown his

bloodstained clothes near a drain in Dashrath Puri. It would

take substantial time to go to the place of crime from the

house of PW-13, to make an attempt to have sexual

intercourse with the deceased, commit her murder, change the

clothes which the appellants were wearing at the time of

committing murder and conceal the bloodstained clothes and

bloodstained weapon of offence at two different places and

then to go back to the venue of the party. There is no evidence

that the appellants had left the venue of the party for so much

duration that they could have done all this within that much

time. Therefore, in our view, in the facts and circumstances of

this case, the alleged intermittent disappearance of the

appellants from the venue of the party alleged to have been

organized by PW-13 Mahesh Prasad, cannot be said to be an

incriminating circumstance against them.

8. As noted earlier, while lodging FIR, PW-3 Bhola

Chaudhary alleged that he had very strong suspicion (Mujhe

Poora Poora Shak Hai) that the appellant Ram Nandan and

Naveen Chauhan @ Chussi were involved in the murder of his

sister. According to PW-26 Insp.Dharamvir Singh, he had

interrogated the appellants on reaching the spot on 30th April,

2006. The case of the prosecution is that no disclosure

statement was made by either of the appellants when they

were interrogated on 30th April, 2006. According to PW-13,

who cannot be said to be favourably inclined towards the

appellants, he having supported the prosecution, on 1st May,

2006, at about 9.00 am, the appellants came to his residence

of their own and when he enquired from the appellant Ram

Nandan as to how it had happened, he stated that he did not

know anything and in fact started weeping. It is difficult for

us to accept that the appellants who did not make any

disclosure statement on 30th April, 2006 despite they being the

prime suspects and having been interrogated on that day and

despite their having claimed innocence to PW-13 in the

morning of 1st May,2006, would make a disclosure statement

on 1st May, 2006 claiming concealment of weapon of

offence/their bloodstained clothes, at the places by them. If

they were to make such a disclosure statement, they would

have done it on 30th April, 2006 itself and there would have

been no reason for them to claim innocence, firstly, on 30th

April, 2006 at the time of interrogation by the police and then

to PW-13 Mahesh Prasad in the morning of 1st May, 2006.

9. As regards the alleged recovery of weapon of offence

and bloodstained clothes, considering the fact that both the

appellants were prime suspects, they having been named in

the FIR lodged on 30th April, 2006 and they having been

interrogated on that very day, there could have been no reason

for the police not to search the house of the appellant Naveen

Chauhan @ Chussi on 30th April, 2006 itself. This is the

minimum which any police officer would do in order to collect

any incriminating evidence which he might get against the

prime suspects in the case. Therefore, we find it very difficult

to accept the alleged recovery of weapon of offence and

bloodstained clothes from the house of the appellant Naveen

Chauhan @ Chussi on 1st May, 2006.

10. The case of the prosecution is that the bloodstained

clothes of the Ram Nandan were kept in a polythene bag

which was lying at a place near a drain. It has come in the

evidence that water was flowing in the drain at that time. We

find it difficult to accept that the appellant Ram Nandan

despite having an opportunity to either wash the bloodstained

clothes or to just throw them in the water flowing in the drain

would have kept then near the drain in a polythene bag. This

is not the way the human mind functions. In case the

appellant Ram Nandan was involved in the murder of his wife

and bloodstains of the deceased had come on his clothes at

the time of committing her murder and, therefore, he intended

to get rid of those bloodstained clothes so as to destroy the

evidence against them in for the form of bloodstained clothes,

he, instead of keeping the clothes in a polythene bag would

have just thrown them in the flowing water, even if he did not

want to waste time in washing those clothes. He knew that if

the clothes were found at a later date, he was bound to be in

difficulty with the police. Hence, instead of preserving the

clothes, he would have utilized the opportunity, which he

would have, if he went up to the drain, by throwing them in

the flowing water or by washing them in the drain.

11. The case of the prosecution is that the weapon of

offence and clothes of the appellant Naveen Chauhan @

Chussi which were stained with the blood of the deceased were

found concealed by him in a box of garbage. If the appellant

Naveen @ Chussi had gone to his house for the purpose of

changing his clothes, he would have washed or destroyed

those clothes instead of preserving them and that too in his

own house. It is difficult for us to accept that an accused who

had adequate opportunity to change the clothes worn by him

at the time of commission of the murder and also had

opportunity to wash or destroy them would prefer the course

of preserving the evidence against him and that too in his own

house from where it could easily be recovered by the police. It

is difficult to believe that he would not have washed or

destroyed/discarded the bloodstained weapon and clothes

either on 30th April, before returning to the party of PW-13 or

after he was interrogated by the police in the evening of that

day. He had the whole night of 30th April as well as a lot of

time available to him on 1st May, if he wanted to remove the

evidence alleged to have been kept by him in his house.

12. PW-13 Mahesh Prasad, who claims that the appellant

had intermittently left the venue of the party organized by him

on 30th April, 2006, does not say that the clothes of the

appellants were found changed when they returned to the

venue of the party after remaining absent from there for a

while. Had the clothes of the appellants been found changed

during the course of the party, that could not have escaped

the attention of the PW-13 Mahesh Prasad who claims to have

noticed their intermittent absence from the party. This is yet

another circumstances which belies the alleged recovery of

bloodstained clothes on 1st May, 2006.

13. Since we have disbelieved the alleged recovery of

knife and bloodstained clothes from the appellants, these

circumstances cannot be said to be incriminating to the

appellants.

Circumstance No.10

14. We fail to appreciate how the learned Trial Judge

concluded that the behaviour of the appellant Ram Nandan

after the murder of his wife was abnormal. According to the

learned Trial Judge his behaviour was abnormal since neither

he was shocked nor he lodged any complaint even though he

had enough opportunity to do so. It has come in the

deposition of none other than the brother of the deceased that

when the appellant Ram Nandan came to the spot on receiving

information about the murder of his wife, he started weeping

and „pretended‟ to become unconscious. According to PW-13

Mahesh Prashad also when they reached the spot, the

appellant Ram Nandan started weeping loudly. As noted

earlier, when the appellants met him again in the morning of

1st May, 2006, the appellant Ram Nandan again expressed

ignorance about the murder of his wife and started weeping.

Hence, there was no justification for the learned Trial Judge to

say that the appellant Ram Nandan was not shocked on

hearing about the murder of his wife. The case of the

prosecutin is that PW-3 Bhola Chaudhary had already

informed the Police Control Room at about 3.35 pm about the

murder of his sister and the police had already reached the

spot at 4.03 pm, as recorded in the PCR record Ex.4/A,

whereas the appellant was informed about the death of his

wife only at about 4.00 pm. There was no occasion or reason

for the appellant Ram Narain to report the murder of his wife

to the police. The FIR having already been lodged and the

appellant Ram Nandan himself being a suspect having been

interrogated by the police on that very day, there could be no

question of his lodging another FIR in respect of the very same

incident. Therefore, we find nothing abnormal in the conduct

of the appellant Ram Nandan after he came to know about the

murder of his wife.

15. We would like, at this stage, to deal with the

contention of the learned counsel for the respondent that

when the complainant called the appellant Ram Nandan on

his mobile to inform him about the murder of his wife, he did

not take the call, which, according to the learned counsel,

exhibited guilty mind on his part. We are unable to agree with

the learned counsel. We find that according to PW-3 Bhola

Chaudhary when he contacted the appellant Ram Nandan on

his mobile he did not attend the phone. He (the witness)

thereupon made telephone call at the telephone installed at

the shop of appellant Ram Nandan. On the other hand,

according to PW-8 Mankeshwari Devi, mother of the deceased,

she made telephone call to the appellant Ram Nand, who did

not attend the call and she thereafter called the colleague of

Ram Nandan who used to have lunch at the house and that

colleague attended the call and told her that he was called by

the appellant Ram Nandan to attend a party. PW-13 Mahesh

Prasad has given an altogether a different version in this

regard. According to him, when the appellant Ram Nandan

received telephone call from his brother-in-law on his mobile,

he gave the mobile to him to hear and then the brother-in-law

of Ram Nandan informed him that his wife had been

murdered. Thus, PW-13 Mahesh Prasad contradicts the

depositions of PW-3 and PW-8. We cannot infer any guilty

mind in the appellant Ram Nandan handing over the mobile to

PW-13 Mahesh Prasad instead of taking the call himself.

Nothing really turns on it since it is the case of the

prosecution that the appellant along with PW-13 Mahesh

Prasad rushed to the spot immediately on receipt of

information of the murder.

16. It is a settled proposition of law that in a case based

purely on circumstantial evidence the prosecution needs to

establish all the circumstances cogently and firmly to the full

satisfaction of the court, before they can be acted upon. The

circumstances proved by the prosecution ought to be wholly

incompatible with the innocence of the accused and must

necessarily and unerringly point towards him as perpetrator of

the crime. The courts need to be satisfied that in all

probability it was the accused and no one else who had

committed the crime for which he was charged.

17. In the present case, the prosecution has failed to

establish the disclosure statement alleged to have been made

by the appellants and the alleged recovery of weapon of offence

and bloodstained clothes from them. Thus, the main

circumstances relied upon by the prosecution against the

appellants do not stand established beyond reasonable doubt.

The circumstances which the prosecution has been able to

prove, viz., quarrel between the appellant Ram Nandan and

his wife on account of the wife suspecting an illicit relations

between her husband with another woman, and the appellants

having intermittently left the venue of the party alleged to have

been organized by PW-13 on 30th April, 2006, are not sufficient

to prove the guilt attributed to the appellants. Both of them,

therefore, are liable to be acquitted.

18. Both the appeals are allowed.

V.K. JAIN, J

BADAR DURREZ AHMED, J JULY 30, 2010 RS/bg