Chander Bhan vs State Nct Of Delhi
2011 Latest Caselaw 471 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                       Date of Decision : 27th January, 2011



+                       CRL.APPEAL No.6/1999

        CHANDER BHAN                         ..... Appellant
                Through:     Mr.Rajesh Mahajan, Advocate.


                             versus


        STATE NCT OF DELHI                 ..... Respondent

Through: Mr.Pawan Sharma, Standing Counsel, GNCT of Delhi

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?

PRADEEP NANDRAJOG, J.(Oral)

1. Our task is simple. The appellant admitted being at the scene of the crime when police arrived, but claims to be falsely implicated. This is apparent from the answers given by the appellant when he was examined under Section 313 Cr.P.C. The 5th question put to him reads as under:

"It is evidence against you that at about 12:30 or 12:45 mid night you were noticed jumping over the building of fire bridge with a brief case Ex.PW-10 in your hand by PW-24 Om Prakash Sharma. What have you to say?"

2. The answer reads as under:-

"It is incorrect. The fact is of 11:00 PM. I came out after taking ice from inside the quarters of Fire bridge. Ice is received after 11:00 PM. The ice which was used to be received 11:00 PM was used in filing the sides of the rehri of ice-cream. I took ice on that night. I filed the ice in the rehri and completed my job and noticed Om Prakash PW coming from inside of fire brigade quarters. My rehri was parked near gate of the fire brigade. When Om Prakash came out of the gate I enquired of him as to how he was coming from inside the fire brigade quarters. He narrated to me that he had a quarrel with Dinesh. He told me that he received knife injury and that he was coming from him. He told me that he was going to Azad Singh security officer. I also went along with him to Azad Singh. Azad Singh was living on the second floor of Gopal Dass Bhawan. Om Prakash went there and told him that he had quarrel with Dinesh, who had received knife injuries. Azad Singh told that Om Prakash and myself would go and see the condition of Dinesh. Then I and Om Prakash went there. I saw there that blood had oozed out and had coagulated. I touched Dinesh. He was unconscious. Then we returned. While in the passage we were outside the gate of fire brigade, we noticed Azad Singh coming from the side of Gopal Das Bhawan. Om Prakash told him that Dinesh had died. Then Azad Singh took both of us in his room at second floor of Gopal Das Bhawan. Azad Singh made me to sit there in his room. He told me that he was telling the police that Om Prakash had done murder in this manner. After crime, he came along with police. Shri Malhotra, SHO told me that inquiry was to be made from me.

Then he took me near the dead body of Dinesh. He looked for quite some time there here and there. There was a small gutter (gadha). He asked me to see what was inside the gutter. It was cutting pieces of brick (rorhas). I removed the rorahas then a knife was noticed there. Shri Malhotra asked me to bring out the knife. I brought out the knife and handed over the same to Shri Malhotra. Thereafter I was taken to the police station. I was told there that I must sign some papers as a witness. He took my finger prints of hands and legs (foot) and my signatures were obtained on the said papers. Some blank papers were also got signed. Next day I was taken to the hospital. I was made to sit in a room at the hospital. A cotton of blood was brought. That cotton was rubbed on my hand. The blood which was rubbed on my hand was removed with the aid of blade. Then I was told that I would be taken to the court where judge would send back me to home. Then I was sent to jail. Since thereafter there is none to listen to me."

3. To the last question as to why the prosecution witnesses deposed against him, he replied:

"The witnesses are of police. They deposed at the instance of the police. Since the case has been falsely made at the instance of Om Prakash and Azad Singh they falsely deposed against me. When I was on duty at Gopal Das Bhawan and Azad Singh was requested for duty of choice, he used to demand his karcha pani. Om Prakash used to make collection on behalf of Azad Singh. Azad Singh used to mark absent if he was not paid his share. On this there was quarrel between me and Om Prakash many times while I was in service. In order to take revenge of the same, they have brought falsely implicated me in this case. It is they who are the criminal."

4. Case set up by the prosecution against the appellant was

that at 11.00 PM on 11.6.1992, Lakhan Singh PW-6, a security guard and Ct.Jagdish PW-7 had last seen the appellant and the deceased returning from Central Park, Connaught Place and proceeding towards Barakhamba Road and both were in a drunken condition. The two were earlier working at Gopal Dass Bhawan. Around 12:30 in the midnight, Om Prakash PW- 24, on duty as a Security In-charge of the building under construction called Gopal Das Bhawan situated on Barakhamba Road saw appellant with a briefcase in his hand jump over the wall of the Delhi Fire Station, Connaught Place (a complex near Barakhamba Road) and on being stopped and questioned as to what was he doing, appellant informed PW-24 that he had murdered the deceased Dinesh and requested to be allowed to flee. PW-24 took appellant, along with the briefcase, to Azad Singh PW-1, who was living on the second floor of Gopal Dass Bhawan (a building adjoining the Delhi Fire Station) which was under construction and informed everything to PW-1 who informed the police. Insp.V.K.Malhotra PW-23 reached the scene of the offence i.e. a room within the precincts of the fire station, where the dead body of Dinesh was lying in a pool of blood with the neck slit, and recorded the statement Ex.PW-23/A of PW-24 and sent the same for FIR to be registered at 2:45 AM, the time noted on the endorsement Ex.PW-23/B beneath the statement Ex.PW-23/A. As per the prosecution, the appellant made a disclosure statement to PW- 23 and pursuant thereto got recovered a knife on which human blood of the same group as that of the deceased was recovered and which knife was opined to be the possible

weapon of offence. Insp.V.K.Malhotra saw blood on the hands of the appellant and thus sent him for medical examination and at the hospital, the doctor took nail clippings of his fingers, on which human blood of the same group as that of the deceased was detected.

5. The post-mortem report of the deceased completely rules out the deceased having consumed alcohol. As per the post- mortem report, and the testimony of Dr.L.K.Barua PW-2, no alcohol whatsoever was found in the stomach of the deceased, and we note that neither PW-1 nor PW-23 nor PW-24 have uttered a word that the appellant was in a drunken condition when he was with them from 12:30 midnight to around 02:45 hours on 12.6.1992.

6. However, the two witnesses of the prosecution i.e. Lakhan Singh PW-6 and Ct.Jagdish PW-7 deposed that the appellant and the deceased were last seen together at around 11:30 PM in Connaught Place and were proceeding towards Barakhamba Road and both were in a drunken condition.

7. In view of the post-mortem report of the deceased and the testimony of Dr.L.K.Barua, the learned Trial Judge has disbelieved the two witnesses i.e. Lakhan Singh PW-6 and Ct.Jagdish PW-7. The learned Trial Judge has thus held that the prosecution has not been able to prove that the appellant and the deceased were last seen together in the company of each other as alleged by the prosecution.

8. However, the learned Trial Judge, we find, has not proceeded to consider the effect of the investigating officer attempting to plant witnesses to strengthen the case of the

prosecution, with reference to the defence of the appellant that it was Om Prakash who had murdered the deceased Dinesh and had falsely implicated him for the offence, for which false implication the investigating officer Insp.V.K.Malhotra had actively connived.

9. We shall deal with this issue a little later.

10. Ex.P-1, the knife stated to be the weapon of offence and on which the appellant as also the prosecution are not in variance, human blood of the same group as that of the deceased was detected and which knife was opined to be the possible weapon of offence, was, as per the case of the prosecution recovered from a drain after the appellant made the disclosure statement Ex.PW-1/B followed by the appellant recovering the knife from the drain as recorded in the seizure memo Ex.PW-1/L.

11. Believing the testimony of the witnesses to the recovery i.e. PW-1 Azad Singh, PW-24 Om Prakash Sharma and PW-23 Insp.V.K.Malhotra, the learned Trial Judge has held that pertaining to the recovery of the knife, the disclosure statement of the appellant was admissible under Section 27 of the Evidence Act.

12. Now, the rukka Ex.PW-23/B, containing the statement Ex.PW-23/A of Om Prakash PW-24 was prepared first and the stated disclosure statement was recorded afterwards. This is not disputed by learned counsel for the State.

13. A perusal of the statement Ex.PW-23/A reveals that before appellant's stated disclosure statement was recorded, Om Prakash had told Insp.V.K.Malhotra that the appellant had

informed him that after murdering Dinesh with a knife he had hid the knife in a drain nearby the place of the crime. Thus, the place where the knife was hidden was already known to the police before appellant made the stated disclosure statement and thus under no circumstances could Section 27 of the Evidence Act have a role to play regarding proof of the appellant having knowledge of the place where the knife Ex.P- 1 was hidden and thus we hold that to this extent the learned Trial Judge has erred in law.

14. The only remaining evidence against the appellant would be his stated extra-judicial confession made to Om Prakash PW-24 which would include not only the part of the confession that he i.e. appellant had murdered Dinesh but also the fact that the briefcase in the hand of the appellant containing lottery tickets, a sum of `1,020/- and a few other articles belonged to Dinesh, as also blood of the same group as that of the deceased being detected in the nail clipping of the fingers of the appellant.

15. The defence of the appellant is of being implicated by Om Prakash to whom Azad Singh extended a helping hand and for which Insp.V.K.Malhotra has connived.

16. Where the defence is of false implication and the presence near the spot is admitted, it assumes importance to see the promptness with which the FIR is registered, for the reason any excessive time gap between the time of the incident and registration of the FIR would obviously raise the eyebrows of the Court. The reason is obvious, likelihood of the time being consumed to fabricate a version cannot be ruled

out.

17. As per PW-24 Om Prakash, he had seen the appellant jump the wall of the Fire Station, within the precincts whereof Dinesh's dead body was recovered from a takht, at around 01:30 in the midnight. Information of the crime was available at the police station by around 1 O'clock in the midnight. The rukka is statedly dispatched from the spot at 2:45 AM and the FIR has been ostensibly registered at 2:50 AM.

18. Record shows, a fact admitted by SI Pritam Singh PW-22, that the Area Magistrate had received a copy of the FIR at 4:00 PM on 12.6.1992 and in respect whereof SI Pritam Singh PW-22 gave the justification that there is a possibility of the Area Magistrate committing a mistake. Though the witness did not clarify as to what the mistake was, but it is apparent that the possible mistake would be to write 'PM' in place of 'AM'.

19. It is settled law that wherever a doubt arises, at a criminal trial and especially where the offence attracts capital punishment, benefit of the doubt has to be given to the accused.

20. It was for the prosecution to have proved the exact time when the learned Area Magistrate received the FIR and for which the prosecution, apart from examining the Court officials of the Area Magistrate, with reference to the record of the Area Magistrate, could have alternatively led evidence by producing the daily diary i.e. the Roznamcha Register which notes the time of departure and return to the police station of all the police officers during the currency of their duty hours.

21. But what do we find in this case! Additional Deputy

Commissioner Alok Kumar PW-21, admitted that the Roznamcha of the relevant period i.e. the month of June 1992 had been destroyed, notwithstanding clear instructions that it should be ensured, before weeding out the record, that no FIR is pending trial. In spite thereof, the witness admitted the Roznamcha being destroyed and the only explanation he could furnish was that it was an unintentional mistake.

22. Now, very vital evidence relevant for the defence has been destroyed. Stated to be an unintentional destruction by the prosecution, but keeping in view the defence of false implication and the fact that there is evidence that the FIR was received by the Area Magistrate at 4:00 PM on 12.6.1992, the accused would certainly be entitled to the benefit of a doubt creeping into the judicial mind that there is a possibility of the investigating officer deliberately ensuring the destruction of the record.

23. At this stage we need to revert back to our commitment noted in para 8 and 9 above i.e. to deal further with the possible effect of PW-6 and PW-7 being planted witnesses.

24. We have already held, and indeed the learned Trial Judge has so held, that the post-mortem report of the deceased completely debunks the ocular version of PW-6 and PW-7. It is obvious that the two witnesses have told gross lies. PW-7 is a Constable in Delhi Police. PW-6 is a petty watchman. Both of them were susceptible to be influenced by the investigating officer, who we note was the SHO of the concerned police station.

25. There are traces of the investigating officer being

overzealous to the extent of planting two witnesses. There is every possibility of the Roznamcha being deliberately destroyed. The record shows that the FIR was received by the Area Magistrate at 4:00 PM and we cannot go by the explanation that 'PM' could be a mistake and the time was 'AM'. The prosecution had ample opportunity to make amends during trial by moving an appropriate application to bring on record relevant evidence when SI Pritam Singh PW-22 admitted that the endorsement made by the learned Area Magistrate shows that he received a copy of the FIR at 4:00 PM on 12.6.1992, but rendered an explanation of the learned Area Magistrate committing a mistake. The prosecution could have moved an application to amend the list of witnesses by citing the record keeper of the Court of concerned Magistrate, who, with reference to the record could have been made to depose on the issue. The prosecution has not done so.

26. It is settled law that overzealousness by the police casts a cloud on the case of the prosecution and the possibility of the evidence being manipulated.

27. What was the motive of the crime?

28. As per the prosecution, and as laid in the challan, the appellant and Dinesh quarreled and during the quarrel the appellant slit his throat. If this be so, it is unexplainable as to why would the appellant run away with the briefcase of Dinesh.

29. The appellant explained his presence at the site and in respect whereof we have the testimony of PW-1 and PW-24, both of whom have stated that after appellant left employment

as a security guard at Gopal Dass Bhawan he used to sell ice- cream on a rehri. Both of them have deposed that even the deceased was employed at Gopal Dass Bhawan, when the building was under construction.

30. As per the appellant he used to park his rehri next to the Fire Station in the night and that ice used to be brought in the night and he used to purchase ice to pack the rehri, obviously to keep frozen the unsold ice-cream.

31. We find that consistent with the explanation rendered by him that it was Om Prakash who falsely implicated him, appellant cross-examined the witnesses of the prosecution on said lines. It is not a case of a defence projected when examined under Section 313 Cr.P.C.

32. We deal with human blood, of the same group as that of the deceased being detected in the clipping of the nails taken from the hands of the appellant. As noted hereinabove, the appellant claims that when he and Om Prakash came face to face, Om Prakash told him that it was he who had injured Dinesh, and took him i.e. the appellant to the room where Dinesh was injured and on seeing Dinesh smeared in blood, he touched Dinesh to check whether he was alive. When cross- examined, Insp.V.K.Malhotra admitted having noticed blood only on the index finger towards the nail of the appellant. It also assumes importance that he admitted not having noted any blood on the handle of the briefcase. It is thus apparent that consistent with his version, the appellant poked the body of Dinesh with his fingers to check whether Dinesh was reacting i.e. was he conscious, blood of the deceased stuck on

the finger tips.

33. The post-mortem report shows that Dinesh's neck was cut cartilage deep. If appellant had done so, surely, his hands would have smeared in blood. It is relevant to note that Insp.V.K.Malhotra admitted that he did not observe any blood on the clothes of the appellant. If the neck of a person is cut thyroid deep, the blood spurts out like a fountain and was bound to spill on to the clothes of the appellant. We find that there is no evidence that clothes of the appellant were seized by Insp.V.K.Malhotra, in any case, we find that the report of the serologist Ex.P-Y and Ex.P-Z does not evidence the clothes of the appellant being sent for serological examination.

34. It would be relevant to note that to explain absence of blood smeared on the hands of the appellant, it stands recorded in his confessional/disclosure statement that after murdering Dinesh, since the hands of the appellant got smeared with the blood of Dinesh, he wiped his hands on the shirt of Dinesh. The shirt when exhibited in Court and shown to Insp.V.K.Malhotra, he admitted, and as recorded by the Judge while recording evidence, that the shirt of the deceased had no evidence of blood stained hands being wiped on the shirt. Thus, evidence suggests a tailor-made disclosure statement of the appellant being recorded and even this is an indication of the active role played by the investigation officer to conduct an unfair investigation.

35. The absence of any blood on the handle of the briefcase, stated to be the stolen property; the absence of any blood on the clothes worn by the appellant; the absence of blood soiled

hands being wiped on the shirt of the deceased; the presence of blood only on the index finger towards the nail of the appellant, highly probablizes the version of the appellant that he had only touched Dinesh to check whether Dinesh was alive as also that it was somebody else who murdered Dinesh. Consistent with the line of cross-examination adopted and the explanation given by the appellant when examined under Section 313 Cr.P.C. is the possible alternative; that Om Prakash was the culprit.

36. Before concluding we may note that the reasoning of the learned Trial Judge, of the appellant not stepping into the witness box and subjecting himself to a cross-examination and thus an adverse inference to be drawn as also the opinion of the Judge that ice is not sold in the night but is sold only in the morning is unacceptable in criminal Jurisprudence. The learned Trial Judge ignored the basic Jurisprudence of criminal law that if circumstances surface which are consistent with the defence version, the same have to be duly noted and not trivialized on the ground that the accused has chosen to lead no defence evidence.

37. It is settled law that at a criminal trial evidence of unimpeachable quality consistent with the guilt of the accused and ruling out the possibility of innocence has to surface.

38. For the features noted hereinabove the appellant is certainly entitled to be given the benefit of doubt and hence an acquittal.

39. The appeal is allowed. Impugned judgment and order dated 19.9.1998 convicting the appellant for the offence of

murder and robbery is set aside as also the order dated 22.9.1998 imposing the sentence to undergo imprisonment for life. The appellant is acquitted of the charges framed against him. Since the appellant is on bail, the bail bond and the surety bonds are discharged.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

JANUARY 27, 2011 dk/mm