Prem Pal vs State
2010 Latest Caselaw 1713 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on : 18th March, 2010
                     Judgment Pronounced on: 26th March, 2010

+                    CRL.APPEAL NO.193/2008

       PREM PAL                                      ..... Appellant
                     Through:       Mr.Vikas Padora, Advocate.

                     versus

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

                     CRL.APPEAL NO.669/2008

       MAHI LAL S/O LATE HARINANDAN               ..... Appellant
                  Through:  Mr.Vikas Padora, Advocate with
                            Ms.Rita Hingmang, 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 the Reporter or not?

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

PRADEEP NANDRAJOG, J.

1. The learned Trial Judge has held that the evidence

led by the prosecution has proved that the deceased Shri

Dharampal was last seen in the company of the appellants on

the day when Dharampal died. It has further been held that

the prosecution has established that the muffler used as the

ligature material to strangulate Dharampal to death which was

found tied around the neck of Dharampal when his dead body

was detected was proved to be belonging to appellant Prem

Pal. The learned Trial Judge has further held that the

prosecution has successfully proved that the pair of shoes

Ex.P-17 recovered from the bushes near the place where the

dead body of Dharampal was recovered were got recovered by

appellant Mahi Lal. Lastly, the learned Trial Judge has held

that from the testimony of Anita PW-1, the wife of the

deceased a motive has been proved i.e. a fight between the

appellants and the deceased over money. From the trinity of

circumstances against the appellants i.e. both appellants being

last seen in the company of the deceased, the appellants

having a motive and qua one the pair of shoes of the deceased

were recovered and qua the other the ligature material was

proved to be belonging, verdict of guilt i.e. having caused the

murder of Dharampal has been returned.

2. The law of last seen evidence being incriminating

requires that it has been successfully proved by the

prosecution that the accused and the deceased were last seen

together in such circumstances that with reference to the

proximity of the time when the deceased was seen alive in the

company of the accused and the time of death as also the

proximity of the place where they were last seen together and

the place where from the dead body was recovered, requires

an explanation from the accused as to how and when they

parted company and in the absence of any credible

explanation the presumption of guilt against the accused may

be drawn.

3. Let us see the last seen evidence in the instant

case. Four witnesses of the prosecution have spoken about it.

Smt.Anita PW-1, the wife of the deceased, deposed that she

and her husband were residing at Gandhi Vihar, Timarpur on

18.2.2003. While deposing in examination-in-chief she stated

that in the morning of 18.2.2003 the appellants came to her

house and her husband left in their company but never

returned, but in cross-examination stated that Asha PW-2, the

sister of her husband, had told her that she i.e. Asha had seen

her husband in the company of the accused. Asha Rani PW-2

deposed that in the afternoon of 18.2.2003 she saw her

brother Dharampal in the company of the appellants in his

house, but on cross-examination stated that she saw all three

on the way. Karambir PW-3 who claims to be a tea vendor

having his workplace near Batra Cinema, Mukherjee Nagar

simply deposed that he had been seeing the accused and the

deceased in the company of each other but does not

remember any particular date. Bansi Lal PW-4, the brother of

the deceased, deposed that around 12:30 PM on 18.2.2003

when he was coming from the side of Mukherjee Nagar after

delivering tiffins he saw his brother in the company of the

appellants and that they were proceeding towards a 'theka'-

liquor shop.

4. It is apparent that the testimony of PW-1 on the

issue of her husband being in the company of the appellants is

hearsay evidence. It is further apparent that as per the sister

of the deceased she saw the deceased who was then alive in

the company of the appellants at around noon time. The place

where she saw them together is either at the house of the

deceased or somewhere on the way. It is further apparent

that PW-3 has simply blogged certain facts by throwing no

light on any particular day on which he saw the deceased,

when alive, in the company of the appellants. As per PW-4 he

saw all three together at around noon time.

5. The place where the dead body of the deceased

was noted as deposed to by Kanwar Singh PW-7, Section

Officer in the Horticulture Department of DDA, is near Pontoon

Pul at Majnu Ka Tila which is a place on the banks of river

Yamuna across the outer Ring Road near Timarpur. Mukherjee

Nagar is at least 4 to 5 km away. As deposed to by Kanwar

Singh he saw the dead body in the bushes and he informed the

police. The exact spot has been shown in the site plan to scale

Ex.PW-11/A. It is just next to a drain. Kanwar Singh PW-7 has

thrown no light as to when he detected the dead body and

informed the police, but light is thrown on the said fact by HC

Kishan Chandra PW-8 who has deposed that he received a call

at the PCR at 10:32 AM on 19.2.2003 about a dead body lying

near a nallah at Majnu Ka Tila which he recorded in the PCR

form Ex.PW-8/A.

6. It is apparent that the dead body was seized after

10:32 AM on 19.2.2003 and as deposed to by SI Mukesh Kumar

PW-13 pursuant to the police control room informing the local

police station and DD Entry No.24B being recorded he left for

the spot. DD Entry No.24B, Ex.PW-20/A, proved through the

testimony of its scribe HC Vedvati shows that the same has

been recorded at 10:35 AM on 19.2.2003. After it was seized

the dead body was sent to Subzi Mandi Mortuary where

Dr.Ashok Jaiswal PW-15 conducted the post-mortem at 1:00 PM

on 20.2.2003 and prepared the post-mortem report Ex.PW-

15/A, recording therein that alcohol was present in the

stomach of the dead body and that the likely time of death

could be 1¾ days prior. He noted ligature injuries on the neck

and opined that the cause of death was asphyxia. Relevant

would it be to record that, with reference to the post-mortem

report, the likely time of death of the deceased would be

around 7:00 PM of 18.2.2003 and since there is always a

margin of two hours plus or minus on either side of the likely

time of death, with reference to the post-mortem report, it can

safely be said that the deceased died anywhere between 5:00

PM to 9:00 PM on 18.2.2003.

7. But the fact that the dead body was detected in an

open area the more probable time of death would be when it

became dark for the reason it would be difficult for somebody

to kill the deceased in daylight as there was always a

possibility of fear of being seen. In this connection it assumes

significance to note that as deposed by Kanwar Singh PW-7 he

detected the body in the morning of 19.2.2003 when he was

taking round to inspect the work being done by the labour

near the Pontoon Pul. It is apparent that labour was working at

site and to commit the crime and not be detected would

require darkness to set in. On 18.2.2003 darkness sets in by

around 6:30 PM and areas start getting abandoned by around

9:00 PM.

8. Under the circumstances, in all fairness to the

appellants, it must be held that the last seen evidence is not of

the quality required by law when it would be required from the

appellants to speak. The proximity of time and place of the

death and last seen respectively has lost nexus in the instant

case. The evidence shows that if at all, the appellants were

seen with the deceased at around noon time. The probable

time of death of the deceased would be somewhere around

8:00 or 9:00 PM. Assuming it to be a little prior, it certainly

cannot be around 5:00 PM for the reason working hours in

Delhi are 9:00 AM to 5:00 PM and we have evidence on record

that labour employed by DDA was working at the site on

18.2.2003.

9. With reference to the ligature material used to

strangulate the deceased i.e. a muffler found on the neck of

the deceased, Asha Rani PW-2 has deposed that the muffler

which was tied around the neck of her brother was seen by her

with appellant Prem Pal. When and how and under what

circumstances she saw the muffler with Prem Pal has not been

deposed to by her. Bansi Lal PW-4 has deposed that a boy

called Pittu was present at the spot where the body of his

brother was found when the police arrived and he i.e. Pittu told

the police that the muffler belongs to his i.e. Bansi Lal's

brother.

10. We find that the learned Trial Judge has gullibly

accepted the deposition of Asha Rani PW-2 and has discounted

the testimony of Bansi Lal PW-4 by holding that Pittu has not

been examined as a witness. That apart, the muffler in

question can be seen in the photographs of the dead body of

the deceased which were taken by Rakesh Bhardwaj PW-22, a

photographer by profession.

11. The muffler is an ordinary muffler and has no

particular or peculiar design on it. Such a muffler, in our

opinion, could belong to anyone.

12. In a case of circumstantial evidence it would be

unsafe to sustain the conviction of an accused solely through

the linkage of the muffler in question and that too when the

offence relates to murder.

13. On the issue of the recovery of the pair of shoes

Ex.P-17 attributed to appellant Mahi Lal, we note that Anita

PW-1, the wife of the deceased identified the pair of shoes as

belonging to her husband. So did Asha Rani PW-2 and Bansi

Lal PW-4. But, the question is, whether the recovery stands

established with credibility and secondly whether the

circumstance of the recovery, if recovery is held established,

sufficient in a case of circumstantial evidence to sustain a

conviction as the sole incriminating evidence.

14. We note that the recovery memo Ex.PW-13/A is also

the pointing out memo and records the pointing out-cum-

recovery of the pair of shoes. The same records the pointing

out-cum-recovery to be joint at the instance of both the

appellants, but the Judge has used the same only against Mahi

Lal on the reasoning: 'As per the prosecution the said shoes

Ex.P-17 were got recovered by accused person. PW-4 Bansi

Lal says that the shoes Ex.P-17 were recovered by police from

accused Mahi Lal as he was wearing it. However, PW-13 SI

Mukesh Kumar says that accused Mahi Lal got recovered the

shoes of the deceased from near the place of incident and

they were seized vide memo Ex.PW-13/A. As per PW-14

Inspector R.K.Rathi, the shoes Ex.P-17 were got recovered by

both the accused persons from the bushes near the place of

recovery of dead body. Lastly, as per PW-21 SI Suman it was

accused Mahi Lal who had got recovered the pair of shoes

Ex.P-17. I have also gone through the seizure memo Ex.PW-

13/A and it says that accused Mahi Lal and accused Prem Pal

both got recovered the shoes Ex.P-17. The Ld.defence counsel

here says that there cannot be a joint recovery of shoes. A

bare reading of seizure memo Ex.PW-13/A show that it was

accused Mahi Lal who first got recovered the shoes Ex.P-17

belonging to the deceased. The argument of joint recovery of

shoes can be sustainable only qua accused Prem Pal, as once

the shoes were got recovered by accused Mahi Lal, it cannot

be said that the said shoes were re-discovered by co-accused

Prem Pal.'

15. It is apparent that the learned Trial Judge has

somewhat contrived his reasoning to give logic to the same.

16. But, we have more fundamental grounds to hold

that the recovery of the pair of shoes does not inspire

incriminating character of the highest order.

17. The place of recovery of the shoes is the same as

where from the dead body was recovered. The dead body was

seized in the morning of 19.2.2003 and the pair of shoes has

been recovered the same day but after the appellants were

arrested at around 5:30 PM. It is obvious that the police had

accessed the place in the morning at around 11:00 AM on

19.2.2003. It assumes importance to note that as recorded in

the memo Ex.PW-2/A when the dead body was seized, blood

stained soil, control earth and two bricks stained with blood

were lifted from the place of the crime. We find it strange that

the pair of shoes lying nearby was not picked up. The

possibility of the police officers having noticed the pair of

shoes lying nearby but deliberately not picking them up to

show that they were lifted later on at the instance of the

accused or the possibility of the recovery being planted cannot

be ruled out. Add on to the same the contradictory testimony

of the witnesses to the recovery and the fact that the recovery

is from an open area, renders the same most unsatisfactory.

18. The Rule of Law is clear. The proof of fact

pertaining to a circumstance wherefrom an adverse inference

is to be drawn has to be of the highest order i.e. the fact

wherefrom inference is to be drawn has to be proved with

purity and like any other fact.

19. We are compelled to hold that the incriminating

evidence relating to the recovery of the pair of shoes Ex.P-17

is seriously tainted, in any case, lacks credibility of the degree

required by law in a case of circumstantial evidence.

20. The learned Trial Judge has held that a motive has

been proved through the testimony of Anita PW-1 as per whom

her husband and the accused were working as whitewashers

and for some work done together, a few days prior they

quarreled with each other.

21. Suffice would it be to state that motive is a weak

piece of evidence for the reason inference of guilt from motive

is based on presumptive logic i.e. that the accused had a

motive is the presumption that he did the act. Indeed, every

piece of presumptive logic is always treated as weak evidence.

22. To bring the curtains down, the appeals are

allowed. The appellants are acquitted of the charge framed

against them of having murdered Dharampal.

23. Since the appellants are in jail we direct a copy of

the instant order be sent to the Superintendent, Central Jail,

Tihar in each Appeal. The appellants are directed to be set

free unless required in custody in any other case.

PRADEEP NANDRAJOG, J.

March 26, 2010                         SURESH KAIT, J.
dk