Rakesh Kumar vs State
2010 Latest Caselaw 2562 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 13th May, 2010

+                        CRL.APPEAL No.1028/2008

       RAKESH KUMAR                            ..... Appellant
                Through:        Mr.Rajesh Mahajan, Advocate

                                versus

       STATE                                   ..... Respondent

Through: Ms.Richa Kapoor, Advocate

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?

PRADEEP NANDRAJOG, J.(Oral)

1. Vide impugned judgment and order dated

17.11.2006, appellant Rakesh has been convicted for the

offences punishable under Section 302/201/34 IPC.

2. Trial of juvenile co-accused Sant Ram was referred

before the Juvenile Board and hence we shall be concerned

with the evidence against appellant Rakesh Kumar, which has

been held sufficient wherefrom his guilt can be inferred, as

held by the learned Trial Judge.

3. Vide order on sentence dated 20.11.2006, Rakesh

Kumar has been sentenced to undergo imprisonment for life

pertaining to the offence of murder and to undergo RI for a

period of 7 years pertaining to the offence punishable under

Section 201 IPC.

4. As per the charge framed on 22.11.2001, Rakesh

was charged that on 11.3.2001 at around noon time at

Building No.151, Jheel Khurenja, in furtherance of a common

intention with Sant Ram, they murdered Kishan Master and on

said date, around same time and at the same place, with the

intention to screen themselves from legal punishment,

dismembered the body of Kishan Master and stuffed the same

in two gunny bags and threw one bag near Raghunath Mandir,

Krishna Nagar.

5. As it would be evident from a perusal of the

impugned decision, finding returned is that the crime was

committed on 10.3.2001 and not on 11.3.2001.

6. The first and the foremost question which we need

to decide is, whether the error in the charge has caused

prejudice to the accused and has occasioned a failure of

justice for the reason, if we find that the accused has been

prejudiced at the trial on account of the mis-description of the

date in the charge, the corollary thereto, has to be a finding

that the trial has been vitiated to the disadvantage of the

accused.

7. The witnesses of the prosecution who have referred

to the presence of the appellant as also juvenile co-accused

Sant Ram and the deceased Kishan Master at Building No.151,

Jheel Khurenja, being Anwar Ali PW-2 and Sarvesh PW-4 have

consistently referred to the date being 10.3.2001 when the

festival of colours i.e. Holi was celebrated. The cross-

examination of the two witnesses evidences that the counsel

for the accused cross-examined the two witnesses clearly

understanding that the act attributed to the accused was of

having committed the offence on 10.3.2001. After evidence

was led, the incriminating circumstances were put to the

appellant and with respect to his being last seen in the

company of the deceased at the place of the crime, the date

referred to is 10.3.2001. Clearly understanding that the

indictment pertained to 10.3.2001 and not 11.3.2001, the

appellant has furnished his answers. Most important is the

fact that to the last question, being question No.61 where the

appellant was asked whether he had anything else to say, he

responded: „I am innocent and have not committed the alleged

incident. It was committed by Sant Ram (juvenile) who had

also threatened me. Sarvesh had falsely implicated me as

Rs.3,000/- were due upon him which he was not paying to me

and in order to avoid payment to me, he falsely named me in

this case‟.

8. Section 215 of the Code of Criminal Procedure

reads as under:-

"215. Effects of errors - No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."

9. It is apparent that an error in stating either the

offence or the particulars required to be stated in the charge,

unless it stands established that the accused was misled by

such error or omission which has occasioned a failure of

justice, have to be ignored. Illustration (d) to Section 215 of

the Code is apposite and needs to be noted. As per said

illustration it has been highlighted that where date of offence

of murder as per the charge was stated to be 21.1.1882 but

the crime actually took place on 20.1.1882, it can be inferred

that the accused was not misled and that the error in the

charge was immaterial.

10. A Division Bench of this Court, in the decision

reported as 2003 VII AD (Delhi) 1 State Vs. Afzal & Ors. had

noted the case law on the point. We may simply refer to the

said decision and leave it to the enterprising reader of our

decision to access the relevant journal and further enlighten

themselves on the law. Suffice would it be to state that the

unanimous view taken by all Courts on the point is, as

highlighted by Illustration (d) to Section 215 Cr.P.C. that errors

of the kind which do not mislead the accused cannot ever

occasion a failure of justice, and have to be ignored.

11. Holding that the error in the date recorded as the

date of the offence in the charge is an error of the kind which

has not prejudiced the accused, much less has occasioned a

failure of justice, we proceed to note the evidence which has

surfaced at the trial.

12. DD No.22A, Ex.PW-5/A, stands recorded at PS

Krishna Nagar by HC Beg Raj Singh PW-5, who, as deposed to

by him, was working as the duty officer from 4:00 PM to 12:00

midnight on 11.3.2001 and he received information of a dead

body lying at 151, Jheel Khurenja near Samudai Bhawan. As

deposed to by him and as reconfirmed in his deposition by

Inspector M.A.Khan PW-19, who by the time he deposed rose

to the rank of an inspector, left for inquiry accompanied by

Const.Jasbir and took along a copy of DD No.22A.

13. As deposed to by Insp.M.A.Khan PW-19 and

reconfirmed as deposed to by Insp.Ashok Kumar PW-20, who

was then posted as the SHO at PS Krishna Nagar, the two

police officers reached near simultaneously at 151, Jheel

Khurenja and they found, on the loft/mezzanine/parchatti of

the factory, a gunny bag containing dismembered parts of the

body of a human which were seized at the spot. Insp.M.A.Khan

PW-19, as written by him in the endorsement Ex.PW-19/A,

made beneath copy of DD Entry 22A could meet no eye

witnesses and hence the tehrir was dispatched from the spot

pen profiling the scene of the crime and recording that the

crime team be sent. As recorded on the endorsement Ex.PW-

19/A it was dispatched from the spot at 21:45 hours and the

FIR Ex.PW-25/B was registered at 22:00 hours as recorded vide

DD No.24A.

14. Though recorded on the endorsement Ex.PW-19/A

that no eye witness was present at the spot, but as stands

deposed to by Shardool Singh PW-7 as also Insp.M.A.Khan and

Insp.Ashok Kumar, Shardool Singh had reached the place of

the crime, being the owner of the building and the proprietor

of the factory operating from the building. The only light

which he could throw upon the issue was that two factory

workers namely Ram Swaroop and Sant Ram used to work in

the factory and that Sant Ram used to sleep in the factory

whereas Ram Swaroop used to reside somewhere at Kundli.

15. Leads had to be broken through only through Sant

Ram. Relevant would it be to note that the dead body could

not be identified on 11.3.2001 for the reason what was

recovered from the gunny bag in the factory was the headless

trunk cut into 3 parts.

16. The next day, as recorded vide DD No.7A, another

gunny bag containing the head and the remaining parts of the

body were reported as lying in a gunny bag near Raghunath

Mandir. It later on transpired that the parts of the dead body

which were recovered on 12.3.2001 pertained to the same

person whose dismembered body parts were recovered a day

prior.

17. The lead which the police had was of knowledge of

the village where Sant Ram resided. This led the police to

village Digia Dist.Sitapur in the State of Uttar Pradesh where a

rumour had already spread that Kishan Master had been

murdered. Sarvesh PW-4 met the police in the village on

12.3.2004 and stated that the appellant and Sant Ram had

murdered Kishan Master and that the dead body recovered by

the police was that of Kishan Master. He was brought to Delhi

and as recorded in the memo Ex.PW-4/A identified the dead

body of Kishan Master.

18. Needless to state, if what was stated to the

investigating officer by Sarvesh was correct, the offenders had

to be the appellant and juvenile co-accused Sant Ram. Both of

them happened to be residents of the same village in which

Sarvesh resided. Incidentally, Kishan Master also turned out to

be a resident of the same village. The appellant was

apprehended, and as is usual in every case of the kind brought

before us, the investigating officer claims that appellant made

two confessional-cum-disclosure statements, Ex.PW-19/E and

Ex.PW-19/G and got recovered a knife sketch whereof Ex.PW-

19/H was drawn. Certain other articles were also got

recovered in respect whereof we may note that nothing of

incriminating character has emerged and hence we do not

note the same. Even the knife did not assume any

incriminating character, for the reason it was never sent to the

doctor for opinion who conducted the post-mortem of the

deceased nor was any blood detected on the knife.

19. Statements of Shardool Singh PW-7, Dinesh PW-1,

Anwar Ali PW-2 and Amarjeet Singh PW-6 were recorded

during investigation.

20. Relevant would it be to note that on 15.3.2001

Sarvesh PW-4 was produced before the concerned

Metropolitan Magistrate, Sh.Manu Rai Sethi PW-15, who

recorded the statement Ex.PW-15/B made by Sarvesh under

Section 164 Cr.P.C.

21. In the statement Ex.PW-15/B Sarvesh stated that at

12:00 noon on 11.3.2001 he was at the lock factory in which

there was a wooden platform on which he was cooking food.

He i.e. Sarvesh as also Sant Ram and Rakesh (appellant) used

to reside in the factory and Sant Ram and Rakesh were good

friends and often used to threaten him that if he told about

their activities to anybody they would kill him. On 11.3.2001

in the afternoon Sant Ram, Rakesh and Kishan drank liquor in

the factory. He fried snacks and served them. A day prior,

Rakesh and Kishan had received wages from the glass factory.

In his presence on 11.3.2001, Rakesh asked Kishan to give him

money and Kishan refused. As he looked down from the

wooden platform he saw that neck of Kishan was cut. Sant

Ram and Rakesh took the body upstairs to the loft and he saw

that Kishan had died by then. He does not remember as to in

how many pieces they cut the body of Kishan but they did so.

Around 3:00 PM a person named Aman came to the factory.

Sant Ram and Rakesh threatened him by showing a knife

telling him to keep quiet otherwise they would cut his body

into pieces. He begged of them to allow him to go. They

threatened him to keep quiet. He got scared and kept on

sitting. Rakesh left for his village at 4:00 PM. In the night Sant

Ram got a cycle rickshaw on hire and gave Rs.200/- to the

person who was plying the rickshaw and put one gunny bag on

the rickshaw. He begged of Sant Ram to let him go to his

village. Next day being 12.3.2001, at around 2:30 PM Sant

Ram took him to Old Delhi Railway Station and when a train

arrived at 4:30 PM he purchased a ticket for Bareli and not

Sitapur, his village, and told him to go to Bareli. On 13.3.2001

in the afternoon at around 11:00-12:00 he reached his village

where Delhi Police personnel came to his house at 7:00 PM

and brought him to Delhi. They reached Delhi on 14.3.2001.

22. Dinesh Kumar Shukla PW-1 deposed that he knew

Kishan Master as he was a resident of his village Digia in

District U.P. On 11.3.2001 at around 2:00 PM he received

information from one Anwar Ali who also was a resident of the

same village and was a co-worker with Kishan Master that

Kishan Master was missing since 8:00 AM on 10.3.2001.

Around 4:30 PM on 11.3.2001 he received telephonic

information from his brother Vipin Kumar and Jangli that there

was a rumour in the village that Kishan had been murdered at

a lock factory at Jheel Khurenja and that he should verify this

fact. He went to a glass factory bearing No.435 where

Amarjeet the owner and one Anwar met him. He informed said

fact to them. All of them went to the lock factory where

Kishan was working and found the factory open and work was

in progress but the owner of the factory Shardool Singh

requested them to stay on as police had been informed that a

body was in the factory. He remained for about 1 hour. Police

came. A jute bag was recovered in which 3 pieces of human

trunk were found. They were pieces of the dead body below

the waist. Police took the body to the police station and he

was asked to identify the body. He identified the body as that

of Kishan Master and could do so with reference to a wound

mark on the right side of the thigh. That Sant Ram, Rakesh

Kumar and Sarvesh were villagers from his village and were

working in the lock factory where Kishan Master was working.

23. Anwar Ali PW-2 deposed that Holi was celebrated on

10.3.2001 and between 11:00 to 12:00 noon Kishan Master

along with Rakesh and Sant Ram came to the factory where

they were residing. Rakesh used to work in the same factory

but Sant Ram used to work in a factory manufacturing locks

situated at Jheel Khuranja where he used to reside. Even

Rakesh used to reside with Sant Ram. So did Sarvesh. Kishan

Master had given him Rs.50/- for cooking meat and left with

Rakesh and Sant Ram around 12:00 noon. Since Kishan

Master did not return till 12:30 PM he went to the lock factory

and found the door closed. He knocked. From inside Rakesh

told him that Kishan Master was not there. Thereafter Rakesh

left from another door and he saw him at the shop of a beetle

seller and accordingly he went up to him. He requested him to

take meals. Rakesh told him that they will after some time.

He left with his friends Gyani and Mukesh to see a movie and

returned to his house at 7:00 PM. Kishan Master had not

returned even till then. He went to the factory where locks

were manufactured where Sarvesh and Sant Ram met him and

he inquired about Kishan Master to which Sant Ram replied

that Kishan Master had not come. Next day on 11.3.2001 he

informed his owner that Kishan Master‟s whereabouts were not

known. He searched for Kishan Master and at 5:00 PM the

police called him at the lock factory where he identified the

body of Kishan Master.

24. Sarvesh PW-4 deposed facts as disclosed by him in

his statement Ex.PW-15/B recorded under Section 164 Cr.P.C.

save and except he referred to the date of the crime as

10.3.2001 and not 11.3.2001. Additionally he stated that

when he reached his village Rakesh was already there but

returned the next day and in the village the rumour had

already spread that Kishan Master had been murdered.

25. Amarjeet Singh PW-6 deposed that he had a mirror

factory at 435/2C Jheel Khuranja and Kishan Master was his

employee. Anwar was a co-worker in his factory.

26. Shardool Singh PW-7 deposed that Ram Swaroop

and Sant Ram were his employees at a factory at 151, Jheel

Khuranja where cycle locks were manufactured. Since Sant

Ram used to reside in the factory a key thereof used to be with

him. Even Sarvesh, who used to work elsewhere, used to

reside in the factory. On 11.3.2001 he received a message

that there was a dead body in his factory. Sant Ram had gone

to the railway station to see off Sarvesh. He informed Ram

Swaroop to reach the factory. They saw a heavy gunny bag in

the loft. He informed the police who came and recovered the

lower part of a dead body which he learnt was that of Master Ji.

27. This then is the evidence which we need to discuss

for the reason the various police officers have simply deposed

to such facts which establish the crime being committed in the

factory of PW-7 and the dead body of Kishan Master being

recovered in parts as afore-noted. The only thing relevant to

be noted, in the context of the submissions which have been

made, is that Insp.M.A.Khan PW-19 and Insp.Ashok Kumar PW-

20, in their deposition stated that at the factory of Shardool

Singh, he was present at the time they conducted the spot

proceedings.

28. It is apparent that the first and the foremost

incriminating evidence would be that the appellant and his

juvenile co-accused were in the company of Kishan Master and

were present at the factory of Shardool Singh in the afternoon

of 10.3.2001. The witnesses to prove the said fact are Sarvesh

PW-4 who has deposed that all three were present in the

factory. The other relevant witness would be Anwar Ali PW-2

as per whom the appellant, juvenile co-accused Sant Ram and

Kishan Master left the glass factory of PW-6 where he i.e.

Anwar Ali and Kishan Master resided, the time being around

12:00 noon on 10.3.2001. This was Kishan Master being last

seen alive.

29. It is firstly urged that Sarvesh is not a truthful

witness for the reason in his statement Ex.PW-15/B recorded

before the learned Metropolitan Magistrate on 15.3.2001 he

has referred to the date as 11.3.2001 and while deposing in

Court he has referred to the date as 10.3.2001. Submission

made is that 10.3.2001 was no ordinary date. It was the

festival of colours i.e. Holi. It was too proximate to the date

15.3.2001 for anyone to be committing a mistake. The tail end

of the submission was that if the crime was committed on

11.3.2001, the testimony of Anwar Ali PW-2 was in conflict with

the date and hence Anwar Ali can also not be believed.

30. It is apparent that the submission dovetails the

credibility of Sarvesh and Anwar Ali to the date 11.3.2001

referred to by Sarvesh in his statement Ex.PW-15/B.

31. It is true that 15.3.2001 is not too far removed from

10.3.2001 and 10.3.2001 was no ordinary day being Holi and

thus under normal circumstances a normal person would

presumably not commit a mistake of referring to an event

which took place on 10.3.2001 as being an event of 11.3.2001.

But, it cannot be lost sight of that Sarvesh was aged 14 years

on 15.3.2001 evidenced by the fact that when he deposed in

Court on 16.5.2002 he disclosed his age as 15 years which has

not been challenged. If what Sarvesh claims to have seen is

correct, it is apparent that he was under great awe and fear.

Further, people of humble background to which Sarvesh

belongs do get overawed in Court rooms and when produced

before Judges. In this scenario a mistake being committed by

Sarvesh with respect to the date is not something of a kind

which discredits Sarvesh. That apart, while deposing in Court

and as also in his statement Ex.PW-15/B Sarvesh has

consistently stated that only after the day of the murder was

he allowed to leave for his village at around 4:30 PM and that

he reached the village the next day on which day the police

met him at 7:00 PM and brought him to Delhi where he

identified the body of Kishan Master. Thus, the police would

be back at Delhi with Sarvesh the day next of Sarvesh being in

his village and this would mean that police and Sarvesh would

be back at Delhi on the second day after Sarvesh left Delhi. If

the date of the crime is 11.3.2001 then Sarvesh would have

left Delhi on 12.3.2001 and reached his village on 13.3.2001

and returned to Delhi with the police on 14.3.2001, indeed he

had so said in his statement Ex.PW-15/B. But then he could

not have been the witness to the identification of the dead

body of Kishan Master on 13.3.2001 as recorded in the memo

Ex.PW-4/A. The contemporaneous written record Ex.PW-4/A is

in conformity with the testimony of Insp.M.A.Khan and

Insp.Ashok Kumar. For the twin reasons afore-noted, we

conclude that the dates referred to by Sarvesh in his

statement Ex.PW-15/B are delayed by one day. Thus, Sarvesh,

subject to the correction of the date being a mistake, has

deposed in sync with his statement Ex.PW-15/B.

32. Thus, the challenge to the credibility of Anwar Ali as

projected and as noted above must also fail.

33. Anwar Ali PW-2 has claimed to be a witness present

when the police came and that with reference to a wound

mark on the right thigh of the dismembered legs he identified

the body as that of Kishan Master but Insp.M.A.Khan and

Insp.Ashok Kumar have deposed that no eye-witnesses were

present and the body was not identified till 13.3.2001 when

Sarvesh was brought to Delhi. Picking on the same, it is urged

that Anwar Ali is a liar.

34. It is not unknown for witnesses to mix up facts

which have subsequently come to their knowledge as a result

of they hearing the same with facts which they have seen.

Anwar Ali‟s claim of having identified the dead body on

11.3.2001 is obviously the result of his fantasy.

35. As per Dinesh PW-1 he and Anwar Ali were present

in the factory of Shardool Singh when the police came.

Shardool Singh has deposed that he had called Ram Swaroop

to his factory as he was perplexed. Neither Dinesh nor Anwar

Ali are witnesses to any memo.

36. Anything unnatural becomes an event in India and

people gather by the dozens to satisfy their curiosity. Have we

not seen people stop by to have deep look at may be nothing

if somebody happens to be inquisitively looking at nothing. It

is a pass time in India to hang around a scene of a crime and

also to spin stories of what may have happened. Not only

those, quite a few gullible digest the gossips and vomit them

out as self proclaimed truths. So cleverly do they intervene

the mass of their imagination with what they have actually

seen that it results in a lot of impure things intermingling with

pure things. Indeed, one of the biggest nightmare faced by a

trier of facts in India is when confronted with a nugget of truth

hidden in a web of myth and imagination, with the duty to

extract the nugget of truth.

37. It is apparent that Dinesh and Anwar Ali who were

bystanders in action, watching police investigation from a

distance have attempted to assume a larger than life role for

themselves and hence the blemish resulting from the over

exaggeration by the two. It is the duty of the Court to

separate the grain from the chaff and doing so we discount

their versions of participating in the investigation at the spot

and identifying the dead body as that of Kishan Master but

retaining the remaining testimony which stands the test of

credibility, untainted by the remainder which is clearly

severable.

38. Now, Anwar Ali has proved Kishan Master leaving

the glass factory where Kishan Master and Anwar Ali resided

being the factory of Amarjeet Singh PW-6. He left in the

company of the appellant and Sant Ram. The time was around

12:00 noon. The date was 10.3.2001. This was Kishan Master

last seen alive. Presence of Rakesh and Sant Ram in the

factory of Shardool Singh PW-7 at around 2:30 PM has been

deposed to by Anwar Ali. This is the factory where admittedly

the crime was committed, a fact conceded to by Shri Rajesh

Mahajan, learned Amicus Curiae for the appellant.

39. As a matter of fact, the afore-noted controversy,

really speaking, need not have been even decided by us in

view of the stand taken by the appellant when incriminating

circumstances were put to him, being the response to question

No.61, answer whereof has been noted by us in para 7 above.

As per appellant Sant Ram had committed the murder and

Sarvesh had falsely implicated him as well as Sarvesh owned

Rs.3,000/- to him.

40. To make it consistent with this defence, Shri Rajesh

Mahajan, learned counsel for the appellant concedes to the

point that there is tell tale evidence that Sarvesh, Kishan

Master, the appellant and Sant Ram were present in the

factory of Shardool Singh when Kishan Master was murdered

and indeed this has to be so conceded in view of the

explanation/defence of the appellant. But, learned counsel

urges that there is every possibility that Sarvesh himself

murdered the deceased and very cleverly shifted the burden

on the appellant and Sant Ram.

41. It may firstly be noted that no suggestion has been

given to Sarvesh that only Sant Ram murdered Kishan Master.

This shows that the defence is an afterthought. Secondly, it

would be difficult to believe and accept that Sant Ram, a

juvenile could have lifted a dead body and carted it up a

wooden monkey ladder from the ground floor of the factory to

the mezzanine loft where it was dismembered. It had to be

the work of more than one person.

42. It is then urged that the conduct of Sarvesh is most

unnatural inasmuch as he claims that Sant Ram who kept on

threatening him till the next day put him on a train at 4:30 PM

to go to his village. Why did Sarvesh not report to the police in

his village that he was witness to a crime and was threatened

urges the learned counsel?

43. Well, we put a reverse question. Consistent with

his defence, why did the appellant not do so? From this source

we find an answer to the question raised by the learned

counsel and as noted in para 42 above. Sarvesh was aged

only 14 years when unexpected events overtook him. The city

of Delhi hardly gives warmth to those who migrate to the city,

and why only the city of Delhi should be labelled as a cold city,

when every Metropolis evinces coldness to not only its natural

born resident but even the migrants. His tender age made

him a person who could be overawed and we find nothing

unexceptional in his being overawed, a claim which he has

made consistently, firstly on 15.3.2001 and then in May 2002

when he deposed in Court.

44. Save and except the blemish in the date of the

crime being 11.3.2001 stated by him in his statement Ex.PW-

15/B and the unnaturalness of his conduct, no other blemish

has been shown to us and hence, having dealt with the two

issues qua him, we need to note no further.

45. The place of the crime being the factory of Shardool

Singh is not in dispute. The date of the crime has to be

10.3.2001, not only as deposed to by the witnesses, but even

as per the post-mortem report Ex.PW-14/A. The appellant,

juvenile co-accused Sant Ram, deceased Kishan Master and

Sarvesh have been proved to be in the factory in the afternoon

of 10.3.2001 and in view of the testimony of Sarvesh we see

no escape from not returning a verdict of guilt against the

appellant.

46. But, we would be failing if we were not to note a

feeble attempt made to urge that there is no motive for the

crime for the appellant to commit such a brutal murder by

dismembering the body of his friend Kishan Master. To this

was sought to be added the alleged innocent conduct of the

appellant returning to Delhi from his village the very day

Sarvesh reached the village. Submission made was that why

would Rakesh i.e. the appellant come to Delhi, a place where

he was wanted if indeed he was the co-author of the crime.

47. We have been a privy to various decisions where

diabolical crimes have been committed for no apparent

reasons. In slum colonies in Delhi murders have been

committed on the most trivial and frivolous causes such as not

sharing a bidi (worth 10 paisa) or not lending a match stick

(worth less than 1 paisa) for burning a bidi. For not giving way

on a street, murders have been committed. So charged up are

people that it becomes most difficult to fathom a motive for

their action. Though Sarvesh has not so deposed in Court but

a motive has been disclosed by him in his statement Ex.PW-

15/B i.e. a money dispute between the appellant and the

deceased. But, we ignore the same in view of Sarvesh not

having so deposed in Court, with further holding that absence

of proof of motive, though desirable in a case of circumstantial

evidence, is not fatal in every case. Appellant returning from

his village is not consistent with his innocence and unnatural

with the guilt for the reason when Sarvesh reached the village,

the appellant may have thought that Sarvesh may spill the

beans and hence making sense for the appellant to leave the

village. The submission that why would be appellant come to

Delhi, a place where the police would be looking for him, is

answerable by stating that the appellant is no millionaire and

cannot hide himself. He needs to work and may have thought

that the city of Delhi teeming with hundreds of thousands

people may screen him from detection and at the same time

feed him. Be that as it may, these are trivial issues hovering

at the fringe of virtually every criminal offence and cannot be

looked at and considered so as to marginalize the real issues

which stand projected and answered against the accused.

48. Finding no merit in the appeal we dismiss the same.

49. Since the appellant is still in jail we direct that a

copy of this decision be sent to the Superintendent, Central Jail

Tihar to be supplied to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE MAY 13, 2010 mm / dk