Delhi High Court
State vs Jitender on 27 May, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing & Decision: 27th May 2011
+ CRL.L.P.No.42/2011
STATE ... PETITIONER.
Through : Mr. Lovkesh Sawhney, APP for the
State.
Versus
JITENDER ... RESPONDENT
Through : None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? No
2. To be referred to the Reporter or not? No
3. Whether the Order should be reported
in the Digest? No
JUDGMENT
G.P. MITTAL, J. (OPEN COURT)
1. This is a petition under section 378 (3) of the Code of Criminal Procedure
(Cr.P.C.) filed by the State seeking leave to file an Appeal against the
judgment and order dated 26.08.2010 passed by the learned Additional
Sessions Judge whereby the Respondent-Jitender Anand @ Jatin was
acquitted of the offence punishable under Section 302/34 IPC for
committing the murder of deceased Deepak @ Deepu.
2. In brief, the prosecution case is that on 22.03.2008 at about 1:30/2:00 p.m.
deceased Deepak s/o PW-1 Rajbala was having his meal at his house.
Respondent-Jitender and one Suraj (juvenile) called upon the deceased
(Deepak). Thereafter deceased (Deepak @ Deepu) left his house along
with Suraj and the Respondent-Jitender Anand @ Jatin informing his
mother that he would return in about five minutes.
3. PW-1, Rajbala being a mother got worried when Deepak (deceased) did
not return even by 7:00 p.m./8:00 p.m. She along with her husband
Randhir Singh left the house in search of her son. They met Suraj and
asked him about her son's whereabouts. It is alleged that Suraj boasted in
front of them (PW-1 Rajbala and her husband Randhir Singh) that he
along with Jitender Anand (Respondent) had killed Deepak.
4. PW-1 Rajbala and her husband reached Police Station Burari and lodged
a report on the basis of which DD Entry No.35A (Ex.PW-10A) was
recorded in the Police Station.
5. PW-12 ASI Mohd.Saleem and PW-9 Constable Sanjeev accompanied
Rajbala (PW-1) and Randhir Singh to find out the whereabouts of Deepak
(deceased). They sighted Suraj in Sant Nagar Market where he was
apprehended. On interrogation Suraj disclosed that the dead body of
Deepak was lying in the bushes in an open plot behind Sedu Baba's
Temple in Burari, Delhi. PW-12 ASI Mohd.Saleem sent information to
the police station. The SHO, Addl.SHO Inspector J.S.Mishra reached the
spot and the Crime Team was requisitioned. Inspector J.S.Mishra (IO)
sent rukka to the police station on the basis of which the FIR was
recorded. Blood soaked soil and other articles were lifted from the spot.
Disclosure statement (Ex.PW-12/B) of Suraj (juvenile) was recorded and
he (Suraj) got recovered his blood stained clothes containing razor blades
and thereafter led the police to the house of Respondent-Jitender. Jitender
was apprehended and on interrogation he got recovered his blood stained
clothes which were taken into possession from his house by memo
Ex.PW-12/C.
6. It is alleged that Respondent-Jitender also led the police party to the spot
and got recovered two broken pieces of wooden baseball bat. On
Serological examination of the bloodstained clothes (alleged to be
recovered at the behest of the Respondent), the shirt was found to be
stained with "B" group blood while there was no reaction on the pant
which belonged to the deceased.
7. On completion of investigation, a report under section 173 Cr.P.C. was
filed against the Respondent-Jitender.
8. In order to bring home the guilt of the Respondent the prosecution
examined 20 witnesses.
9. The Respondent-Jitender was examined under Section 313 Cr.P.C. He
denied the prosecution version and pleaded his false implication in a blind
murder case. He took up the plea that the day of occurrence happened to
be a Sunday, therefore, instead of going to his place of work at Methapur,
Badarpur where he was working as a mechanic, he went to see his relative
at Shahdara. He produced DW-1 Nand Kishore, DW-2 Dinesh Kumar,
DW-3 Vijay Kumar in addition to his parents as DW-4 Sunita and DW-5
Sunil Kumar in support of his plea of alibi.
10. The case of the prosecution rests solely on circumstantial evidence. The
prosecution relied upon three circumstances to connect the Respondent-
Jitender with the offence with which he was charged. These are as
follows:-
(a) Last seen evidence in the shape of testimony of PW-1 Smt.Rajbala
(mother of the deceased)
(b) Recovery of bloodstained clothes in pursuance of disclosure statement
by the Respondent i.e. shirt Ex.P-7 found to be containing "B" Group
blood of the deceased.
(c) Recovery of broken pieces of wooden baseball bat at a distance of 15
paces from the dead body.
11. On the last seen evidence the prosecution examined PW-1 Rajbala who
deposed that the deceased left in the company of the Respondent-Jitender
and Suraj at about 1:30/2:00 p.m. saying that he would be back in five
minutes. The deceased, however, did not return. As a result of which
PW-1 (mother of the deceased) got restless and went in search of the
deceased at 7:00/8:00 P.M. According to the prosecution the dead body of
the deceased was recovered from an open plot at the instance of co-
accused Suraj (juvenile). The post mortem examination of the dead body
was performed on the next date at about 2:40 p.m. The doctor opined the
time since death to be about 18-24 hours. Thus according to post mortem
examination, the death of the deceased would have taken place between
2:40 p.m. to 8:40 p.m. The prosecution has not produced any evidence
other than that of PW-1 to prove this piece of evidence. No evidence has
been led as to the exact time when the deceased was found dead. In
Bodhraj and Ors. v.State of Jammu and Kashmir, (2002) 8 SCC 45 it was
held as under:
"......that the last seen theory comes into play when the
time gap between the point of time when the accused and
deceased were last seen alive and when the deceased is
found dead is so small that the possibility of any person
other than the accused being the author of the crime
becomes impossible. Further, it would be hazardous to
come to a conclusion of guilt in cases where there is no
positive evidence to conclude that the accused and the
deceased were last seen together."
The finding of the Trial Court on this piece of evidence, therefore, cannot
be faulted with.
12. The Trial Court disbelieved the recovery of the bloodstained clothes and
the broken pieces of wooden baseball bat in pursuance to the disclosure
statement alleged to have been made by the Respondent. The reasoning of
the Trial Court as contained in paras 15-17 of the impugned order is
extracted hereunder:
"15. At the cost of repetition, the prosecution evidence
led on record goes to suggest that recovery of blood stained
shirt and pant Ex.-6 and P-7 besides blade Ex.P-8 were
made at the instance of accused Suraj Singh (Juvenile) vide
memo Ex. PW 11/D and thereafter the police party went to
the house of present accused Jitender Anand @ Jatin. PW-
12 ASI Mohd.Saleem besides PW-18 Inspector Hari Kishan
and PW-19 Inspector J.S.Mishra deposed that accused
Jitender Anand @ Jatin was interrogated and at his
instance blood stained jeans and shirt Ex.P-9 and P-10 was
seized vide memo Ex.PW 12/C. I am afraid the recovery is
doubtful on more than one count. First, while PW-12
Mohd. Saleem deposed that the house of accused Jitender
Anand @ Jatin was located just after 2-3 gali nearby the
house of co-accused Suraj Singh (Juvenile), PW-18
Inspector Hari Kishan deposed that the distance between
house of the co-accused and accused Jitender Anand @
Jatin was about one k.m. whereas PW-19 Inspector
J.S.Mishra deposed that the distance was hardly 400
meters. Secondly, while PW-18 Inspector Hari Kishan
deposed that the jeans Ex.P-9 and shirt Ex.PW-10 were
recovered from an almirah in front of room of the house of
the accused Jitender Anand @ Jatin, PW-19 Inspector
J.S.Mishra deposed that it was recovered from a cavity
behind almirah from a room falling in the rear portion of
the house.
16. Be that as it may, the blood stained shirt and pant
Ex.P-9 & P-10 were sent for FSL examination and as per
report Ex.PW-19/1-3 blood was detected on the same and a
Serological Report indicates that blood on the shirt was
"B" Group but "no reaction" on the pant was found. This
report is inconclusive and it does not help the prosecution
case since assuming that the deceased was having blood
group "B", there is no document evidence on the record
which would show as to what was the blood group of the
present accused Jitender Anand @ Jatin and whether blood
group of accused was different from the deceased.
17. The prosecution case as per the postmortem report
further is that deceased was badly smashed with the base
ball bat with severe head injuries and was also attacked
with a sharp object and in this connection the recovery of
baseball Ex.PW-5 and the blade Ex.P8 becomes significant.
The other evidence that the prosecution has brought
against the present accused is that he was taken to the
vacant plot where at his instance pieces of broken baseball
bat Ex.P-5 were recovered and seized vide memo Ex.PW
12/D. If the evidence of PW-18 Inspector Hari Kishan and
PW-19 Inspector J.S. Mishra is believed it appears that
accused Jitender Anand @ Jatin was taken to the vacant
plot at about 12 mid night. The Mobile Crime Team as per
evidence of police witnesses had come to the spot at 10:30
p.m. and it had taken as many as 28 photographs of the
place of occurrence. The baseball bat as per PW-12 ASI
Mohd. Saleem was found lying at a little distance from the
dead body. It may be indicated that the vacant plot of land
shown in scaled site plan Ex.PW 14/A was a big one nearly
about 2500 to 3000 sq.yards as per evidence of PW-18.
PW-18 Inspector Hari Kishan also deposed that the dead
body was lying on the western side near boundary wall and
PW-15 HC Naresh deposed that the dead body was lying
hardly 2-3 ft. from the boundary wall. The position of the
dead body is clearly depicted in the photograph near
boundary wall which is Ex.PW 15/A-9 to A-12. As per PW-
12 the baseball bat was recovered about 15 steps ahead
from the direction of head of the dead body. Similar is the
evidence of PW-18 and PW-19 that the baseball bat was
recovered at a little distance from the dead body. Well, it is
not fathomable that the Members of the Mobile Crime
Team were not able to find the broken pieces of baseball
bat when they were scanning the whole scene of crime and
it could only be recovered later at the instance of accused
Jitender Anand @ Jatin. It is in evidence that the police
party had brought search light in order to scan the entire
area. The result is that there is grave doubt if the recovery
of baseball bat Ex.P-5 was effected at the instance of
accused Jitender Anand @ Jatin.
13. We are in complete agreement with the reasoning given by the Trial Court
that there were discrepancies in the testimony of the two witnesses as to
the recovery of the bloodstained clothes. The Trial Court reasoning that
the blood group of the Respondent did not match with the blood group
noticed on the clothes also cannot be faulted. Otherwise also recovery of
blood stained shirt by itself is a very weak type of evidence.
14. As observed by the Trial Court in para 17 of the impugned order the
recovery of the two pieces of wooden baseball bat from near the dead
body is doubtful. Admittedly the dead body was already recovered at the
instance of co-accused Suraj (juvenile). The area was thoroughly scanned
with search lights by the local police as well as the crime team. It was,
therefore, not possible that the two pieces of wooden baseball bat would
escape the discerning eyes of a large number of police officials including
some from the crime team.
15. The law does not allow the State to file an Appeal against an order of
acquittal. Under Section 378 (3) Cr.P.C., the State has to seek leave to file an
Appeal. The powers of an Appellate Court are not limited, while hearing an
Appeal against the acquittal and it has the same powers as it has while hearing
an Appeal against an order of conviction. Yet, the fact remains that the
presumption of innocence which is attached to every accused, unless proven
guilty, is strengthened and reinforced by an order of acquittal. Thus, the
Courts interfere in an order of acquittal where the finding of the Trial Court is
perverse or there is gross mis-application of law. The Appellate Court can
interfere with the order of acquittal where there are compelling and substantial
reasons.
16. The Supreme Court in Syed Peda Aowlia v. The Public Prosecutor, High
Court of A.P., Hyderabad, (2008) 11 SCC 394, summed up the law after
referring to various earlier decisions as under:-
"5. There is no embargo on the appellate Court reviewing
the evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered
with because the presumption of innocence of the accused
is further strengthened by acquittal. The golden thread
which runs through the web of administration of justice in
criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view which
is favourable to the accused should be adopted. The
paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is cast upon
the appellate Court to re-appreciate the evidence where the
accused has been acquitted, for the purpose of ascertaining
as to whether any of the accused really committed any
offence or not. See Bhagwan Singh and Ors. v. State of
Madhya Pradesh, (2002) 4 SCC 85. The principle to be
followed by appellate Court considering the appeal against
the judgment of acquittal is to interfere only when there are
compelling and substantial reasons for doing so. If the
impugned judgment is clearly unreasonable and relevant
and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for
interference."
17. In view of the foregoing discussion we are not inclined to interfere with
the order of acquittal passed by the Trial Court. The Appeal, therefore,
fails and it is accordingly dismissed.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
MAY 27th, 2011
sa
