Parmeshwari vs State
2010 Latest Caselaw 1459 Del

R-17
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision :16th March, 2010

+                     CRL.APPEAL NO.244/2008

        PARMESHWARI                           ..... Appellant
                              Through:   Mr.Sumeet Verma, Advocate.

                      versus

        STATE                                      ..... Respondent
                              Through:   Ms.Richa Kapoor, A.P.P.

+                     CRL.APPEAL NO.245/2008

        LOKESH KUMAR                              ..... Appellant
                              Through:   Mr.Sumeet Verma, Advocate.

                      versus

        STATE                                      ..... Respondent
                              Through:   Ms.Richa Kapoor, A.P.P.

         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. Four accused, namely, Bimla wife of the deceased

Satish, Parmeshwari, Arvind Kumar Akela and Lokesh Kumar

were charged for the offence of having entered into a

conspiracy and in pursuance thereof having murdered Satish.

Accused Parmeshwari and Lokesh Kumar were additionally

charged for the offence punishable under Section 452/34 IPC.

2. At the end of the trial, vide judgment and order

dated 25.2.2008, Bimla, Parmeshwari and Lokesh Kumar have

been convicted for the offences they were charged of. Arvind

Kumar Akela has been acquitted.

3. For unexplainable reasons, Bimla has not preferred

any appeal against her conviction. Appellants Parmeshwari

and Lokesh Kumar have challenged the impugned decision.

4. Before dealing with the issues involved we would

wish to bring on record a fairly disturbing thing which we had

noticed in the instant case.

5. With impunity the learned Trial Judge has permitted

evidence of confessions to be brought on record and has

referred to the same not only in the decision but even while

questioning the accused. For example, while examining Bimla

under Section 313 Cr.P.C., question No.25 put to her is that it

has come in evidence that after co-accused Parmeshwari was

arrested and interrogated he made a statement confessing his

guilt and the connivance of Bimla and the other co-accused.

6. This is most unfortunate. Every accused is entitled

to a fair trial. A fair trial means that a Judge decides the issues

brought before him as per law applicable and evidence

properly brought before the Judge. Inadmissible evidence

cannot be brought on record, much less relied upon in a

judicial proceeding and that too for the offence relatable to

murder.

7. We shall be issuing further directions at the end of

the decision to bring the instant decision to the notice of the

learned Trial Judge who has penned the instant decision.

8. Reverting to the evidence, we do not intend to pen-

profile what has been spoken by various witnesses. It would

be sufficient for us to note that in convicting appellant

Parmeshwari the incriminating evidence held established

against Parmeshwari, as per the impugned decision, is that

after he was arrested and he made a disclosure statement, he

led the police to a spot and got recovered a blue jeans as per

memo Ex.PW-6/C followed by a recovery of a pair of shoes and

a shirt as recorded in the memo Ex.PW-7/A. As per the report

Ex.PW-25/H and Ex.PW-25/H-1 of the serologist, human blood

of the same group as that of the deceased was detected on

the shoes, the shirt and the jeans. Further incriminating

evidence held established against Parmeshwari is the report

Ex.PW-22/C as per which a foot-print lifted from the scene of

the crime was opined to be as possibly that of Parmeshwari.

We may note that the expression used by the expert is: "That

the foot-print lifted from the scene of the crime could be that

of Parmeshwari".

9. Against Lokesh Kumar, incriminating evidence held

established is that another foot-print was opined to be as

possibly that of Lokesh Kumar as per report Ex.PW-22/C.

Further incriminating evidence against Lokesh Kumar is that

after he was arrested and made a disclosure statement he got

recovered a khukri as shown entered in the memo Ex.PW-6/D

as also a white sandoz vest and a shirt as entered in the memo

Ex.PW-6/E, all of which except the khukri were detected with

human blood of the same group as that of the deceased vide

report Ex.PW-25/H and Ex.PW-25/H-1 of the serologist. On the

khukri, blood was detected but neither its species nor the

group could be detected.

10. Apart there-from the further incriminating evidence

held established by the learned Trial Judge is that Parmeshwari

was having illicit relations with Bimla and that the motive for

the crime was to do away with Satish so that Parmeshwari and

Bimla could have a merry time.

11. We note that Bimla has been convicted by the

learned Trial Judge on account of her having illicit relations

with Parmeshwari.

12. Since Bimla has not filed an appeal we may only

note that the place of the crime was her matrimonial house

and the deceased was murdered in the middle of the night.

She feigned semi-consciousness and refused to volunteer any

information to the investigating officer.

13. Since Bimla has not filed any appeal we note no

further qua Bimla.

14. The first and the foremost question which needs to

be answered is whether it stands satisfactorily proved that

Bimla and Parmeshwari were having illicit relationship.

15. The witnesses who have thrown light on the

relations between Bimla and Parmeshwari are Vijay Singh PW-

6, Babita Sharma PW-7 and Surinder Kumari PW-20.

16. We note that Vijay Singh has deposed that he saw

Bimla talking with Parmeshwari two to four times and once

having seeing Parmeshwari putting his hands on the breast

etc. of Bimla. We note that on being cross-examined he

admitted that it was for the first time he had stated in Court

that he had seen Parmeshwari putting his hands on the breast

of Bimla and that he had not ever so stated before the police.

17. Babita Sharma PW-7 deposed that Bimla used to

meet Parmeshwari and had told her that she was

Parmeshwari's bhabhi. That at the instance of their distant

relative Shashi Prabha, a room was given on rent to

Parmeshwari.

18. Surinder Kumari PW-20, the mother of Babita

Sharma has likewise deposed that at the asking of their

relative Shashi Prabha she had let out a room in her house to

Parmeshwari and that Bimla used to visit Parmeshwari. She

additionally deposed that Shashi Prabha was close to Bimla

and that when room was given on rent to Parmeshwari, Bimla

and Shashi Prabha had come with Parmeshwari.

19. It may be noted that the learned Trial Judge has

held that the keen interest shown by Bimla to get on rent a

tenanted premises to Parmeshwari and her visiting

Parmeshwari is sufficient evidence wherefrom it can be

gathered that the two were having illicit relationship.

20. We have our doubts whether such a finding could

be returned on so thin a piece of evidence. Merely because a

man and a woman meet would not mean that the two are

having illicit relationship.

21. As regards the recoveries of shoes, a shirt and a

pant at the instance of Parmeshwari as also the recovery of a

white sandoz vest and a shirt at the instance of Lokesh Kumar

which were found to be stained with human blood of the same

group as that of the deceased, suffice would it be to note that

the disclosure statements of Parmeshwari and Lokesh Kumar

that they were wearing the respective clothes when the crime

was committed would be inadmissible in evidence. The

prosecution had to lead independent evidence to establish that

the pant, shirt and shoes got recovered by Parmeshwari and

the shirt and the white sandoz vest got recovered by Lokesh

Kumar were worn by the two when the crime was committed.

22. Thus, the evidence relatable to the recoveries

would be that Parmeshwari and Lokesh Kumar got recovered

ordinary objects such as shoes, shirt, pant and a vest which

were blood stained and the group of the blood was same as

that of the deceased. As held in the decisions reported as JT

2008 (1) SC 191 Mani v State of Tamil Nadu, 1999 Cri.L.J. 265

Deva Singh vs. State of Rajasthan, 1993 Cri.L.J. 3901 Surjit

Singh v. State of Punjab, AIR 1977 SC 1753 Narsinbhai

Haribhai Prajapati v. Chhatrasinh and Ors. and AIR 1963 SC

1113 Prabhu v State of UP, such recoveries are very weak

evidence.

23. On the issue of the foot-prints of the appellants

being detected at the scene of the crime with reference to the

sample foot-prints of appellant Parmeshwari and Lokesh

Kumar, we note that the sample foot-prints of the two were not

taken by a proper identification as required by the

Identification of Prisoner's Act 1920. Even necessary orders

were not obtained from the Competent Court before taken

their sample foot-prints.

24. Thus, in view of decisions reported as 1962(3) SCR

10 State of Bombay vs. Kathi Kalu Oghad & Ors., AIR 1980 SC

791 State of U.P. vs. Rambabu Mishra and 1994 (5) SCC 152

Sukhwinder Singh & Ors. vs State of Punjab, the evidence

relatable to the report Ex.PW-22/C has to be excluded while

considering the incriminating evidence against Parmeshwari

and Lokesh Kumar.

25. That apart, as held in the decision reported as 1997

(10) SCC 44 Mohd.Aman & Anr. vs. State of Rajasthan, the

science of foot-print is not well developed. Unlike fingerprints

where distinct characteristics get developed on the prints of

the fingers, no such distinctive characteristic marks develop on

the foot of a human being. Thus, expert opinion pertaining to

foot-prints has always been treated as a very weak evidence.

26. That is why, in the instant case, the expert has not

given a definite finding by writing in the report that foot-prints

lifted from the scene of the crime were those of Parmeshwari

and Lokesh Kumar. The report has merely opined that the

foot-prints lifted from the scene of the crime could be that of

Parmeshwari and Lokesh Kumar.

27. Thus, the only incriminating evidence against

Parmeshwari and Lokesh would be the exhibits got recovered

by them, being ordinary articles which were found to be

stained with human blood as that of the same group of the

deceased and no more.

28. Assuming that evidence pertaining to foot-prints

has also to be put in the scales against the two appellants, we

still feel that with respect to the said two pieces of evidence

which quality of evidence has been held by the Supreme Court

to be very weak evidence, in a case of circumstantial

evidence, it cannot be said that it would be sufficient to infer

the guilt of the appellants.

29. The appeals are allowed.

30. The appellants are acquitted of the charge framed

against them.

31. Since the appellants are in jail, we direct that a

copy of this decision be sent to the Superintendent, Central

Jail, Tihar with further direction that if not required in custody

in any other case, the appellants be set free forthwith.

32. The last direction.

33. The Registry is directed to send a copy of the

instant decision to the learned District and Sessions Judge,

Delhi who would ensure that the decision is sent to the learned

Trial Judge who has penned the impugned decision so that in

future the learned Trial Judge does not commit the kind of

blunders as he has committed in the instant case while not

only recording evidence but even while examining the accused

and lastly while penning the impugned decision.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

March 16, 2010 dk bainsla