Alizan vs State
2010 Latest Caselaw 2507 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment Reserved on : 29th April, 2010
%                       Judgment Pronounced on :11th May, 2010

+                      Crl. A. No. 924/2008


        ALIZAN                          ..... Appellant
                        Through:   Mr.S.B.Dandapani, Advocate

                   versus

        STATE                               ..... Respondent
                        Through:   Mr.M.N.Dudeja, APP

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

SURESH KAIT, J.

1. Instant appeal has been preferred against the

judgment and order dated 06.03.2007 convicting the appellant

for the offence punishable under Section 302 IPC for which

offence he has been sentenced to undergo imprisonment for

life and pay a fine in sum of Rs.2000/-.

2. On 11.10.2003 Police Control Room received

information at about 22:54 Hrs. that at House No.3381, Chowk

Singhara, Qutab Road, Delhi, one person has been murdered.

This information was received by ASI Moti Lal PW-11. ASI Moti

Lal further flashed the message Ex.PW-11/A to the concerned

police station i.e. Sadar Bazar. PW-6 ASI Khem Singh Duty

Officer at PS Sadar Bazar recorded the DD No.36A, Ex.PW-

14/B, and the same was handed over to SI Naresh Kumar PW-

14 for investigation.

3. Taking along with him DD No.36-A, PW-14 reached

House No.3731, Singhara Chowk along with HC Yashpal (not

cited as witness), HC Ravinder PW-5, Ct.Suresh Chand PW-9

and Ct.Ram Naresh PW-10 from where he came to know that

the incident of murder has occurred at House No.3379.

Accordingly, he reached the premises where a dead body of a

male aged about 45-46 years having injury marks on the neck

while blood oozing from his mouth and tongue between upper

and lower jaw was found. Blood was lying on the stair cases

also. The name of the deceased was revealed as Darshan

Singh who was residing at House No.3379, IInd Floor Chowk

Singhara, and the deceased was wearing baniyan and blue

coloured under-wear and the dead body was smelling and it

appeared that the murder was committed one or two days

prior. He inspected the spot, room of the deceased and

prepared rukka Ex.PW-14/A upon which FIR Ex.PW-6/A was

recorded under Section 302/201 IPC.

4. Thereafter, investigation of the case was taken over

by Insp.Randhir Singh PW-15 who also reached at the spot and

lifted earth control blood sample from the spot and blood

sample from the room of the deceased and converted the

same into pulandas. Insp. Randhir Singh also completed the

inquest proceedings of dead body of deceased Darshan Singh

and sent the dead body to Subzi Mandi for post-mortem

through Ct.Suresh Chand PW-9 and Ct.Ram Naresh PW-10.

5. On 13.10.2003, the accused was arrested by Insp.

Randhir Singh from Basti Julahan from the jhuggi of Achhan,

brother of the appellant (Achhan not cited as witness) at the

instance of Ashok Kumar vide arrest memo Ex.PW-4/B and his

personal search was conducted vide memo Ex.PW-4/A and his

disclosure statement Ex.PW-4/C was recorded. Pursuant to his

disclosure, blood stained trouser and vest, both were of white

colour which the appellant was wearing were taken into

possession vide memo Ex.PW-14/E. A hammer used in the

crime was also recovered vide memo Ex.PW-14/D from the

room of the deceased.

6. Most material witness who broke-out the blind

murder is Amrish PW-3 who deposed that he was living in

House No.3379 in Nabi Karim on the top Floor i.e. IIIrd Floor

and on the IInd Floor deceased Darshan Singh was living along

with the appellant. On 10th day of the month at about 9:00

AM, he got washed the hands of deceased Darshan Singh near

the toilets of the house of the Darshan Singh. He went to

place of work in a cream company named Durga Cream. He

returned at about 8:00 PM. At that time he saw the room of

Darshan Singh was locked from outside. During night time

appellant came at his jhuggi and slept with him in his Jhuggi.

He asked about Darshan Singh from the appellant but he

replied in negative. On next day morning on 11.10.2003 he

went to his work. He returned at about 8:00 PM. He took his

meal and went inside his jhuggi for sleeping. He noticed that

the appellant was wandering hither and thither. He asked

about Darshan Singh but he replied that he does not know.

Thereafter, he went for sleeping but he did not sleep and was

walking. After about 10 minutes he heard a voice of opening

of the gate of the room of Darshan Singh. He came down and

saw that the gate of the room of Darshan Singh was opened.

He came down on the pretext to bring cigarette. One person

named Nathni (not cited as witness) was also living with him in

the same jhuggi. He saw the accused carrying the dead body

on his back in the stair-cases. The dead body was not covered

with any cloth. The dead body of Darshan Singh was wearing

Kacha and baniyan. He raised alarm and the appellant started

running. He chased him but he could not apprehended him as

he ran away. The appellant threw away the dead body on the

stair-cases. He immediately went to Pan Mandi near Kutub

Chowk and Singhara Chowk. He informed Shobha PW-2 about

this. He and Shobha came to the place of occurrence where he

saw the police persons were already present. The appellant

was not present at that time.

7. In his cross-examination he deposed that the

distance between his house and the house of Shobha PW-2 is

half a kilometer. He did not inform the police. He did not call

any neighbour. He informed Shobha because she had intimate

relationship with deceased Darshan Singh. On the night of

incident appellant came at his jhuggi at about 9:00 PM. On

11.10.2003, he returned from his place of work at about 9:00

to 9:30 PM. He saw that the appellant was carrying the dead

body on his back and his face was facing the stairs when he

was getting down by the stair-cases. He admitted that when

he raised the alarm many people gathered but he only chased

the appellant. He first of all went to the house of Shobha at

about 11:30 PM. He did not go to the house of Ashok. When

he reached at the spot along with Shobha by that time the

police had also came there.

8. Another material witness is Shobha Kukreja PW-2

who deposed in court that she knows the appellant who was

working as a mason. The deceased Darshan Singh was living

in House No.3379, Singhara Chowk, Qutab Road, Sadar Bazar,

Delhi. From the last 10-12 years the appellant was living in

the same house with the deceased. The deceased was

unmarried and was alone. She knew Darshan Singh for the last

15-17 years and that he had constructed her house. The

deceased was the resident of Punjab by origin. He never went

to Punjab nor did his parents and relatives come to see him.

The deceased used to come at her residence to see her family

members.

9. Shobha Kukreja PW-2 further deposed that on

10.10.2003 at about 9:00 or 9:15 PM the appellant came at her

house and demanded Chadar. She asked him about the

deceased. He replied that the deceased has gone somewhere

since early in the morning and had not returned. One separate

key of house of the deceased Darshan Singh always remained

with her. She asked the appellant to accompany her at the

house of the deceased and she will provide Chadar from the

room of the deceased. Thereafter they both went to the room,

she opened the room of the deceased and found artificial teeth

and tooth brush of the deceased Darshan Singh lying on the

table while his wearing chappals and boots were lying in the

room. She asked the appellant as to why the necessary

belongings of deceased Darshan Singh were lying in the room

and where the deceased had gone to which the appellant

replied in negative. On the second day she again searched the

deceased Darshan Singh at the shop of doctor but the shop of

the doctor was closed. Thereafter, she searched in Jullahan

Basti. She asked many persons but could not know the

whereabouts of the deceased. She further deposed that on

the next day when the appellant came to her at about 7:00 or

7:30 AM she again asked him of the whereabouts of the

deceased Darshan Singh to which the appellant replied that he

did not know. Thereafter, he left her house. At about 11:45

AM or 12:00 Noon the appellant again came to her house.

She again asked about the whereabouts of the deceased.

Thereafter, she asked the appellant to hire a rickshaw so that

that they both would search the deceased in the hospital and

other places. They both went to lady Hardinge Hospital.

Hospital authorities checked their register and replied that no

Darshan Singh had come to their hospital for treatment.

Thereafter, they came to the house of the deceased and

opened the lock of the house. Shobha felt a foul smell and

asked the appellant if cooking gas was leaking to which

appellant replied that no smell is coming out and that she is

wrongly feeling the foul smell. She again locked the room of

deceased Darshan Singh and came at her residence. The

appellant also left that place saying her that he will leave for

Moradabad in the evening. Shobha PW-2 further deposed that

on the same day on 11.10.2003, at about 12:00 night or 12:15

AM the door/shutter of her house was knocked at high

volume. She saw outside from the gallery. One Amrish, who

was living on the upper portion i.e. IIIrd Floor of the room of

Darshan Singh, was shouting to come down and told her that

person with whom (the appellant Alizan) she was roaming is

the killer of Darshan Singh and had been caught. Immediately,

she came down and reached house of the deceased where the

appellant was apprehended by the public persons. She again

said that first of all public persons had apprehended the

appellant but when she went there the appellant was in the

custody of the police officers. Amrish told her that the

accused was going to throw out dead body of Darshan Singh

while wrapping in a cloth but since Amrish had seen the

appellant in stair-cases, he threw the dead body and was

trying to run away. He apprehended the appellant. Shobha

saw the dead body of Darshan Singh near the stair cases. A

Chadar was also lying there. The same was of Shawl type.

Police told her that they had recovered the key of the house of

Darshan Singh from the possession of the appellant. She

identified the dead body of the Darshan Singh.

10. In her cross-examination, she admits that she knew

the deceased since 1990. The deceased used to visit her

house. She is unmarried. No other lady used to visit at the

house of the deceased. She never visited the house of the

deceased without any work. She admits that she used to help

deceased Darshan Singh financially in the days of his ailment.

She was having a public carrier Vikram three-wheeler. She

stated that the stair-cases leading to the room of Darshan

Singh on the IInd Floor first lead to Ist Floor then while crossing

the roof of the Ist floor the stairs lead to IInd Floor. The room

of the deceased was measuring 14 ft. x 11 ft. In the said room

one divan, almirah, cooler, table, cooking utencils, gas, water

container and bucket were used to be kept. The said room

was having two windows and one ventilator. She visited the

room of the deceased during the period of his missing and

opened the room with her key. She handed over the key of

the room of Darshan Singh to the police on 11.10.2003. She

did not feel anything while visiting the room twice or thrice

prior to 11.10.2003. She admits that on 10.10.2003 while

visiting the room of Darshan Singh she did not found any foul

smell and did not notice any blood in the said room. She

stated that Amrish had come to her to call on 11.10.2003 at

about 11:00 PM and she reached at the spot after about an

hour. The police was present there. The appellant was not

present there. Again said she had seen the appellant running

away and the public persons were chasing him. She stated

that when she reached at the spot on 11.10.2003, she found

the appellant in the custody of the police and he fled away

from their hands. Again said that the appellant was in the

custody of the public and he ran away from the custody of the

public. To this statement she was confronted with the

statement so recorded by the police. She entered in the room

of the deceased along with the police. She noticed blood lying

on the floor near the Diwan. Her statement was also recorded.

The entire work of inspection and writing started at about

12:00 midnight and continued for about 1½ to 2 hours.

Thereafter, she was sent back. She further deposed that her

younger sister Pushpa (not cited as witness) had also

accompanied on that day. Pushpa kept on standing on the

ground floor while the police was conducting their work. She

admitted that she knows one Ashok Kumar who was the

landlord of the building in which the deceased was residing.

He lives at Singhara Chowk but she do not know his complete

address. She denied her having visiting terms with Ashok

Kumar. She also denied whether Ashok Kumar wanted to evict

Darshan Singh from the said room. She further deposed that

the deceased was in a bad state of health for almost one and

half year prior to his death because he was suffering from T.B.

She denied that the appellant left for Moradabad on

09.10.2003 after leaving his baggage. She further denied the

suggestion that the accused was not present in Delhi on

10.10.2003 to 12.10.2003. She further denied the suggestion

that the appellant was neither apprehended by the police nor

by public on 11.10.2003 and that the accused was

apprehended by the police on 12.10.2003 from Moradabad.

She had not seen the accused on 12.10.2003 and 13.10.2003

with the police and the police did not met her after it met her

at the spot on the night intervening 11-12.10.2003. She

denied the fact whether any key of the room of Darshan Singh

was recovered from the possession of the appellant.

11. After her cross-examination, Shobha PW-2 was re-

examined by the APP at request, which was allowed by the

court. The questions put forth to her and their answers are

reproduced as under:-

"Q: You had stated in your examination-in-chief that the police had told you that a key of the house of Darshan Singh was recovered from the

possession of the accused. But today in your cross- examination you had deposed that they police had not told you this fact. Which out of these two statements is correct?

A: My previous statement is correct which I deposed in my examination-in-chief. Q: Then why you had stated in you cross- examination today that the police had not told you that they key of the house of deceased Darshan Singh was recovered from accused Alizan? A: I could not properly understand the question of the ld.defence counsel.

XXXXXXX by Ms.Kirandeep Kaur, amicus curiae for the accused.

It is correct that all the questions were being asked to me in Hindi language. I am well conversant with Hindi Language. I had not pointed out to the Court that I am unable to understand the question put to me by the ld. DC."

She admits that she was shown no other document

except Ex.PW-2/A i.e. her statement recorded by Addl.SHO

Randhir Singh PW-15 on 12.10.2003.

12. Ashok Kumar PW-4 is the landlord of the rooms of

the deceased, appellant and Amrish PW-3. As per his version

he deposed that on 11.10.2003 at about 10:30 PM a boy

named Amrish who was living in the top floor of the house

where deceased Darshan Singh was staying at the IInd floor of

the same house, came and told him that he saw appellant was

carrying the dead body of Darshan Singh through stair-cases.

He raised alarm on which the appellant Alizan left the dead

body and ran away from the spot. He along with Amrish

reached at the place where the dead body was lying. In the

meanwhile, police also came there as someone had informed

the police at number 100. In his presence police inspected the

room of Darshan Singh. A foul smell was coming from his

room. He further deposed that in the morning of 13.10.2003

the appellant met him on the road besides his house. He

asked about Darshan Singh on which he replied that during the

night time on 10.10.2003 a quarrel had taken place between

him and Darshan Singh and he killed Darshan Singh after

strangulating him. The appellant further disclosed that he had

also hit the hammer on the person of Darshan Singh and he

had concealed the dead body of Darshan Singh in Diwan (bed).

He advised the accused to produce himself before the police.

The police had arrested the appellant from Basti Jullahan at his

instance as he had informed the police about his whereabouts.

The police had taken the personal search of the appellant vide

memo Ex.PW-4/A which bears his signatures at point 'A'. The

appellant was arrested vide memo Ex.PW-4/B which bears his

signatures at point 'A'. The appellant had confessed his guilt

before the police. His disclosure statement was recorded as

Ex.PW-4/C which bears his signatures at point 'A'. The

appellant was wearing blood stained banyan and pajama. The

appellant had removed the same and handed over the same to

the police. The police had taken the same into possession vide

memo Ex.PW-4/E.

13. In his cross-examination he deposed that he had

given a room in the building on the IInd floor free of cost

without rent to the deceased. The deceased was not his

relative but used to do the repair work in his house as and

when it was required. The deceased was very poor person and

that is the reason why he and his partner had given a room to

the deceased free of cost. Previously, he stated that the

deceased Darshan Singh was living on rent at House No.3379,

Chowk Singhara, Kutub Road since 1989. He stated that he

cannot assign any reason as to why he had stated earlier that

Darshan Singh was living on rent in the aforesaid house. He

did not use to take rent from the appellant Alizan as he was

living with the deceased Darshan Singh. On 11.10.2003 at

about 10:30 PM Amrish PW-3 came at his house on foot. He

was sleeping at that time. Amrish rang the door-bell of his

house. He woke up and opened the door. His family members

were sleeping at that time and they did not hear conversation

between him and Amrish. The distance between the room of

Amrish and his house is about 25 yards. No rent receipt was

issued to Amrish by him. The distance between his house and

the house of Shobha PW-2 is about 60-70 yards. Amrish first

of all went at the house of Shobha and thereafter he informed

him about the occurrence. He admitted that the locality in

which he was living is a crowded place. Amrish did not enter

his house. He was informed about the occurrence while

standing on the ground of stair-cases of his house. He went

alone at the place of occurrence. It took him about 5 minutes

in reaching there. He found 5-7 public persons and police

personnel were standing there on the floor and in front of the

house in which deceased Darshan Singh was living. PW-2

Shobha was also standing there. No other woman was

standing there. 8-10 police officers were present there. He

went to police station two or three times. He went on

13.10.2003 at about 1:30 PM. He also went on 13.10.2003 at

about 2:00 PM. His statement was recorded only once and

thereafter the police had called him for making enquiry. When

he reached in front of the building in which the deceased

Darshan Singh was living, the appellant was not present there.

Voluntarily he stated that the appellant had run away earlier.

He further deposed that he had not stated in his earlier

statement that in the morning of 13.10.2003 the appellant met

him on the road besides my house and he was frightened and

that he asked the appellant about Darshan Singh and on which

the appellant replied that during the night time of 10.10.2003

a quarrel had taken place between the appellant and Darshan

Singh and the appellant killed Darshan Singh after

strangulating him and also hit hammer on his person.

Voluntarily he stated the above-said facts on the date of

11.10.2003 at about 7:30 PM and not on 13.10.2003. When

the appellant had confessed his guilt before him on

11.10.2003 he did not inform the police. He further voluntarily

stated that he has asked the appellant to surrender himself

before the police. He denied the suggestion that he had not

informed the police about the confession of the accused as no

such confessional statement was made by the appellant before

him. He did not pay any heed towards the wearing clothes of

the appellant when he was arrested. He further denied the

suggestion that the appellant was picked up by the police from

Moradabad at his instance and that he along with Amrish and

Shobha have concocted a false story to falsely implicate the

appellant.

14. Ct.Sonu PW-12 being the draftsman proved the

scaled site plan of the spot i.e. House No.3379, Singhara

Chowk as Ex.PW-12/A and depose that he had prepared the

site plan on 27.11.2003 at the request of Insp.Randhir Singh.

15. Dr.Kulbhushan Goel PW-7 conducted the post-

mortem on the dead body of the deceased Darshan Singh at

Mortuary, Subzi Mandi, Delhi which was sent by Insp. Randhir

Singh PW-15 and it was identified by Ct.Suresh Chand. He

observed the injuries on the body of the deceased vide his

post-mortem report Ex.PW-7/A as under:-

" External injuries:-

1. Lacerated wound about one inch long just below the chin.

2. Anterior part of tongue was extensively lacerated with two holes or upper teeth in the tongue.

3. There was diffuse pinkish area scattered over front of neck and front of sides of neck in upper and middle part of the neck, coalesced. Rest of the neck area was dark greenish to blackish. Any other external injury was inconspicuous due to decomposition.

1. Head: There was subscalpe brusing right frontal temporal regions. Skull bones were intact. Meninges were intact. Brain matter was intact and softened.

2. Neck: On relection of skin of nect, diffused subcutaneous and platysmal brusing seen over front and sides of neck. Deeper neck muscles also showed brusing with early changes of decomposition. Liquid blood was seen in nech layers. Both greater horns of hyoid bone were showing inward fracture with massive brusing around the fracture sides. Right superior horn of thyroid cardilage fractured with brushing around. Tracheal mucosa show signs of decomposition. Epiglottis and laryns were showing brusing. Litting segosanguionous discharge present in trachea.

3. Chest: Subcutaneous brushing with hematoma seen at places over right chest and sterna regions. Fracture right ribs second to 7th at mid clavicular line and anterior axillary line, fracture left ribs second to 7th

at mid clavicular line. Brushing and clots present at fractured sides. Contusions seen over both lungs. Early decomposition changes seen in lungs and heart. Heart was intact. Stomach contained about 3-4 ounces food material in semi churned condition. All abdominal viscera were intact and slightly congested."

16. He opined the cause of death to be asphyxia

consequent upon pressure over neck structures. Postmortem

findings were consistent with manual strangulation by other

party. Mode of death was homicidal. All injuries were ante

mortem in nature. Injury No.1 is caused by blunt force

impact. Injury No.2 was consistent with injury in the tongue by

teeth. Chest injuries were caused by repeated blows over

chest. Manual pressure over neck was sufficient to cause

death in ordinary course of nature. Time since death was

about three days.

17. It may be pertinent to mention here that

consequent upon the arrest of appellant Alizan and pursuant to

his personal search, one black purse containing Rs.450/-; one

key of pital, Jainson on one side and 359 on the other side is

written and Five bus tickets (denominations of 20x3, 10x1 and

4x1) were got recovered vide memo Ex.PW-4/A.

18. When examined under Section 313 Cr.P.C., the

appellant denied each and every incriminating circumstance

put forth to him. In the last, he only stated that he was picked

up by the police from his house in Moradabad on 13.10.2003

and that he was innocent and he had been falsely implicated

in this case at the instance of PW Shobha and Ashok Kumar.

He further told that deceased Darshan Singh was infact got

murdered by Shobha PW-2 in conspiracy with Ashok PW-4 and

that he was got falsely implicated in this case by them.

19. Perusal of FSL report Ex.PW-15/H proves that

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

detected on the baniyan and pyazama of the appellant.

Further, the learned trial Judge has held that it stands

confirmed by the CFSL report that the blood stains found on

the hammer Ex.P-10 were matched with the blood group as

that of the deceased which was got recovered at the instance

of the appellant.

20. We note that the instant case is based on

circumstantial evidence. There are three material witnesses

i.e. PW-2, PW-3 and PW-4. A careful perusal of the testimony

of the three witnesses show irreconcilable inconsistencies

thereby totally destroying proof that the appellant threw the

dead body on the street or was present as claimed differently

by the three witnesses.

21. PW-3 Amrish in his examination-in-chief stated that

he washed the hands of the deceased on 10.10.2003 at 9:00

AM and thereafter he had not seen the deceased. He further

stated that on the night of 11.10.2003, he saw the appellant

with the dead body. Whereas, in his cross-examination he

stated that on 11.10.2003 at 8:00 AM he washed the hands of

the deceased Darshan Singh. He specifically stated that he

had not gone to house of Ashok though Ashok PW-4 claimed

that Amrish PW-3 came to his residence and informed about

the incident. In his examination-in-chief he disclosed that one

Nathani (his room-mate) was also sleeping with him but

neither the investigation team has made him the witness nor

any other witness confirms the presence of Nathani. He has

deposed in his statement that he went to Shobha PW-2 at

11:30 PM and returned with her at 12:30 AM (approximately

after about an hour). Whereas, he stated that the house of

Shobha is just half a kilometer from the house of the incident.

Though Ashok PW-4 stated in his examination-in-chief that the

house of Shobha is at a distance of 60-70 yards and the place

of incident is 5 minutes walking distance from the house of

Ashok. Therefore, it is unbelievable for us that it took one

hour to bring Shobha to the place of incident whose house is

just 10-15 minutes walking distance away from the place of

occurrence.

22. While Shobha PW-2 deposed in her examination-in-

chief that she visited the house of the deceased three times,

opened the door of the deceased's room but she did not notice

the blood under the Diwan and on the floor. As per the post-

mortem report Ex.PW-7/A which was conducted on 13.10.2003

it was opined that the dead body was three days' old. Post-

mortem report further shows that the murder has been

committed on 10.10.2003. Further, she stated in her

examination-in-chief that when she reached at the spot with

Amrish PW-3, she saw the appellant was apprehended by

public persons but in her cross-examination she stated that on

11.10.2003 at the place of occurrence police was there but

appellant was not present there. She further deposed that she

had seen the appellant running and public persons were

chasing him. Further she said contrary to the above statement

that on reaching the spot on 11.10.2003, she found the

appellant in the custody of the police but he fled away from

their hands. Further, she stated that the appellant was in the

hands of the public and fled away. She even stated which is

contrary to all her versions that on 12.10.2003 when she

visited the room of the deceased, she felt foul smell. Whereas,

the body of the deceased was removed on the night of

11.10.2003. She further deposed that she came at the spot

along with her sister Pushpa but neither Pushpa is cited as

witness nor her presence has been confirmed by any of the

witness throughout.

23. If we just go through the statement of Shobha PW-

2, we find that it is full of contradictions. Nothing of any sort

can be established from the above-said discussion with respect

to deposition of Shobha PW-2. Further, Nathni (room-mate of

Amrish PW-3) and Pushpa (sister of Shobha PW-2), who were

not cited as a public witness, could have proved the presence

of the appellant if both of them were present at the place of

occurrence. Moreso, as deposed to by Shobha PW-2 that the

appellant accompanied her in searching the deceased at

various places, if it is believed, indicates the appellant being

unaware of the murder of Darshan Singh. The presence of

blood on the floor near the base of diwan and besides the

Diwan shown vide photograph Ex.PW-5/9 further shows that

Shobha failed to notice the blood on the floor of the room of

the deceased despite her 2-3 visits along with appellant.

24. One more witness i.e. Ashok Kumar PW-4 deposed

that in the night of 11.10.2003 at about 10:30 PM Amrish came

to him and told Ashok about the occurrence. Whereas, Amrish

PW-3 did not admit going at the residence of Ashok. He in his

examination-in-chief deposed that in the morning of

13.10.2003, the appellant met him on the road besides his

house and confessed the guilt. But in the cross-examination

he denied the same. In his examination-in-chief he stated that

the appellant was wearing Bainyan and Pyzama with blood

spots but in his cross-examination he said that he did not paid

any heed towards the clothes which the appellant was wearing

at the time when he was arrested. As per his deposition, the

appellant was wearing blood stained clothes which fact was

proved by the post-mortem report also. But, we cannot believe

that a person will continue to wear blood stained clothes for

three days continuously and as per Shobha PW-2 the appellant

was moving throughout with her to trace the deceased.

25. As per the above discussion, it is revealed that each

of the witnesses has given different versions on the

apprehension of the appellant and there is no consistency

between the three who informed whom first.

26. We may mention here that on 27.04.2010, during

the course of hearing of this appeal learned counsel for the

appellant has brought our attention to the recovery of tickets

which are stated to have been recovered at the instance of

appellant pursuant to his personal search. The said tickets

were directed to be produced in court from Malkhana. On the

next date of hearing i.e. 29.04.2010 learned counsel for the

state submitted that the five tickets stated to have been

recovered on the personal search of the appellant being not

exhibited as an exhibit by the learned trial Judge and only

recovery memo thereof being proved, said five tickets have

been destroyed by the District Nazir after the impugned

decision was pronounced.

27. As the defence taken by the appellant in the

statement recorded under Section 313 Cr.P.C., the learned

counsel pointed out that the appellant was in Delhi on 10th,

11th and 12th October, 2003, whereas he was arrested from the

Moradabad on 13.10.2003. Since the said tickets have been

destroyed, we are unable to give any opinion on this issue

raised by the learned counsel for the appellant. Let it remain

as mystery, we cannot help.

28. Suffice would it be to state that, if we inter-relate

these three material witnesses (PW-2, PW-3 and PW-4) with

each other, we find taint in their testimony with respect to the

presence of the accused at the spot; Amrish PW-3 informing

Ashok PW-4 of the incident. Statements of these three

witnesses carry no consistency with regard to the appellant

committing the guilt of murder.

29. We are left with the recovery of blood stained

clothes and the alleged weapon of offence. Such kinds of

recoveries have always been treated as weak recoveries as

held in the decisions reported as AIR 1963 SC 1113 Prabhu

vs.State of UP; AIR 1977 SC 1753 Narsinhbhai Haribhai

Prajapati etc. vs. Chhatrasinh & Ors.; AIR 1994 SC 110 Surjit

Singh and Anr. vs. State of Punjab; 1999 Crl.LJ 265 Deva Singh

vs. State of Rajasthan and JT 2008(1) SC 191 Mani vs. State of

Tamil Nadu.

30. Under the circumstances, we hold that Alizan would

certainly be entitled to, if not more, a benefit of doubt.

31. The appeal is allowed. Alizan is acquitted of the

charge framed against him.

32. Since Alizan is in Jail, we direct that a copy of this

decision be sent to the Superintendent, Central Jail Tihar with a

direction that unless required in custody in some other case,

Alizan be set free forthwith.

(SURESH KAIT) JUDGE

(PRADEEP NANDRAJOG) JUDGE MAY 11, 2010 'nks'