Madhavan vs State
2011 Latest Caselaw 5107 Del

$~7&8
*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                 Pronounced On: 17.10.2011

+                      CRIMINAL APPEAL Nos.23/1998 & 134/1998

        CRL.A. 23/1998

        MADHAVAN

        CRL.A. 134/1998

        P SHEKHAR                                                ..... Appellants
                              Through: Ms. Inderjeet Sidhu, Amicus Curie.

                                      versus


        STATE                                                          ..... Respondent in both cases

Through: Mr. Sanjay Lao, APP.

CORAM:

        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE MS. JUSTICE PRATIBHA RANI

1.      Whether the Reporters of local papers       YES
        may be allowed to see the judgment?

2.      To be referred to Reporter or not?          YES

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

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

%

1. These appeals challenge the judgment and order of the learned Additional & Sessions Judge dated 23.07.1997 in Sessions Case No.69/1990. By that judgment, the Appellants were convicted for having committed the offences punishable under Section-302 read with Section-34, IPC as well as under Section-380 IPC and sentenced to undergo life imprisonment besides fine and three years rigorous imprisonment as well as fine for ` 1,000/-.

CRL. APPEAL Nos.23 & 134/1998 Page 1

2. The brief case is that Kamakshi Krishnamurty (hereafter referred to as "the deceased") used to live with her son K. Ramesh and husband T.V. Krishnamurty in Flat no.6285 (Second Floor), Sector-B, Pocket-9, Vasant Kunj, New Delhi. It was alleged that the Appellant P. Shekhar used to clean cars in Pocket-B, Sector-9. On 27.10.1994, P. Shekhar and the second Appellant Madhavan went to the house of S. Yashudas and his sister Mrs. Margret in Harijan Basti, Masoodpur, New Delhi. It was alleged that the Appellants stayed with S. Yashudas and Ms. Margret till 29.10.1994 when they left stating that they were in search of jobs and that in case they did not find employment, they would return to their native village. The Appellants did not return. The prosecution further alleged that PW-9 Mange Lal used to press the cloths in Sector-9; PW-2 Noor Mohammed was a tea vendor in the vicinity of the deceased's premises. Both of them allegedly saw the appellants going into the colony around 9-9:30 AM and one of them had a bag. Around 01:30 PM, the deceased's husband T.V. Krishnamurthy returned and found the doors of his house locked and he, therefore, waited in the house of a neighbour. His son returned home around 04:45 PM. He too found the house locked and no-one opened it despite several knocks. It was alleged that K. Ramesh, the son, broke open the door and found that the articles had been ransacked. He also found his mother Kamakshi Krishnamurty lying dead in the toilet.

3. K. Ramesh's information of the incident was recorded as D.D. No.28A (Ex.PW-10/A); the police reached the spot and recorded his statement (Ex.PW-1/A) and registered the FIR. Further investigation took place, during which, the IO seized lengths of rope, used to tie the deceased's legs, a piece of cloth, Ex.P-3, two hawai chappals (Ex.P-5&6) and a letter in Tamil (Ex.P-12). It was also stated photographs of the crime scene were taken. The body was sent for postmortem examination, on 31.10.1994. K. Ramesh (PW-1) gave the list of articles missing from his house to the I.O. on 30.10.1994. The police allegedly recorded the statement of the witnesses PW-9 Mange Lal on 30.10.1994 as well as the statement of Noor Mohammed (PW-2). The prosecution alleged that PW-7 Venkateshwaran and PW-14 S. Yashudas were joined in investigation; the police party left for Tamil Nadu on 2.11.1994; the appellant Madhavan was arrested from village Pochampalli, District Dharampori on 6.11.1994. His disclosure statement led to the recovery of a gold mangal sutra dana (Ex.P-20), wrist watch (Ex.P-21), gold chain (Ex.P-23), and gold pendant (Ex.P-24). The prosecution further alleged that subsequently P. Shekhar was arrested from a temple; his disclosure statement led to recovery of four gold

CRL. APPEAL Nos.23 & 134/1998 Page 2 bangles (Ex.P-13/1-4), four silver bangles (Ex.P-14/1-4), gold necklace (Ex.P-15), silver paijeb (Ex.P-16/1-2), two child karas (Ex.P-19), small sindoor box (Ex.P-17), silver chain (Ex.P-18), wrist watch (Ex.P-22), gold chain (Ex.P-23), key (Ex.P-27), gold ring (Ex.P-26), currency notes, aggregation to ` 7,000/- (Ex.P-29), pair of jhumkas (Ex.P-30/1-2), a piece of gold (Ex.P-31), another gold ring (Ex.P-32) and a tape recorder (Ex.P-33). The appellants were later brought to Delhi and Test Identification Parade (TIP) were sought to be conducted. It was alleged that the accused Madhavan refused to participate in the TIP. However, the exhibits, which included articles, exhibits P-5&6 (chappals) and the jewelry recovered from both the accused were identified by Mrs. Usha Tejo, the deceased's daughter during TIP.

4. After closure of investigation and filing of chargesheet, the Appellants were charged with having committed the offences. They denied the guilt and claimed trial. The prosecution relied upon the testimony of 19 witnesses besides several exhibits. After considering all the materials on record, the Trial Court convicted the appellants in the manner described in the preceding part of this judgment.

5. The appellants were enlarged on bail during the pendency of the appeals. When the appeals were taken up, they were absent. Several unsuccessful attempts to secure the appellants' presence were made by the Court. Ultimately, the proceedings under Section-82/83 Cr.P.C. were taken up by the Trial Court which declared the appellants as proclaimed offenders. This Court appointed Ms. Inderjeet Sidhu, Advocate as Amicus Curie to assist in these proceedings.

6. Learned Amicus argued that the testimonies of PW-2 & 9 relied upon to base the findings of the last seen and could not have been taken into consideration. It was submitted that both these witnesses belonged to the lower strata of the society and were susceptible to police pressure. It was argued that the testimonies of these two witnesses cannot be the basis of the conviction having regard to the overall conspectus of facts and circumstances.

7. It was argued that the prosecution had concededly lifted the chance prints from the crime scene in the present case. The I.O. had also deposed that these prints along with the specimen signatures of the appellants were sent to the Forensic Laboratory for analysis and its report. However, the report itself has not placed on record. Counsel relied upon the decision reported as Lala ram v. State 2008 (100) DRJ 129 to the following effect: -

"In our view, there is a vital infirmity in the prosecution case since the finger prints that were lifted from the spot were not matched with the finger prints of the accused. This throws grave doubt about the veracity of the prosecution evidence.

CRL. APPEAL Nos.23 & 134/1998 Page 3 The use of scientific methods have not been resorted to without any Explanation whatsoever quite contrary to the position of law laid down by the learned Single Judge of this Court in Abdul Subhan v. State (NCT of Delhi) 133 (2006) DLT 562 which we reiterate and endorse as follows: -

13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge sheet is filed, he court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.

The fact that finger prints were not even brought on record by the prosecution leaves us no option but to draw an adverse inference against the prosecution for not producing objective scientific evidence which could have clearly established the guilt or exonerated and demonstrated the innocence of the accused. Thus the plea of the learned Counsel for the appellant that the substratum of the prosecution's case is destroyed in the absence of such scientific evidence stands justified. The innocence or guilt of the accused would have been established conclusively if the fingerprints of the appellant had been brought on record and matched."

8. It was submitted that in the present case too, the inability of the prosecution to connect the finger prints found at the crime scene with the finger prints of the appellants is fatal to its case and the appellants are entitled to the benefit of doubt.

9. It was argued that similarly there are certain other glaring facts and omissions which the Trial Court ought to have considered. In this case, learned Amicus submitted that the photographs which according to the prosecution were taken by the crime team were not placed on the record. Also, daughter of the deceased, who crucially identified the articles as those belonging to the deceased and her family, was not examined. In the absence of her testimony in Court, the Trial Court ought not to have believed that the recoveries were the result of the robbery or that the Appellants were in any manner connected with the murder of Kamakshi Krishnamurthy.

10. It was submitted that the Trial Court committed a grave error in convicting the Appellants because it did not take into consideration the fact that they were not conversant with any

CRL. APPEAL Nos.23 & 134/1998 Page 4 language other than Tamil. In fact, even the questions put to the appellants during the TIP could not have been understood by them. Similarly, their alleged arrest at the pointing out of PW-7 and the alleged disclosure statements made by them was on the basis of the translations said to have been made by PW-7. Having regard to these facts, the Court ought not to have deduced that the appellants were responsible for the crime.

11. Learned counsel argued that the last seen in the present case is a part of the overall case of circumstantial evidence sought to be built and proved by the prosecution. Learned Amicus urged that "last seen" is an inherently weak kind of circumstance and unless there is other corroborative material to prove the complicity of an accused, the Court should not readily believe it. Learned counsel also urged that the fundamental postulate of criminal jurisprudence is proof beyond reasonable doubt especially in circumstantial evidence cases, where each circumstance has to be conclusively proved so also each link to every circumstance. In the present case, the prosecution was unable to discharge the burden.

12. Learned APP argued that the combined effect of the testimonies of PWs-2, 9, 7, 14 & 17 was to establish beyond reasonable doubt that the appellants and none else were responsible for the crime. It was argued that PWs-2 & 9 were natural witnesses as they were involved with the colony on a day to day basis. PW-2 being a tea vendor carried out his livelihood in the vicinity of the deceased's premises. PW-9 used to press clothes of the residents of that locality. Both of them were in unique position to observe the goings on in the locality. Having regard to these, there was nothing unnatural for them to depose about having observed both the appellants reaching the deceased's premises around 09:30 AM and leaving it 30-45 minutes later. These, coupled with the circumstance that PW-7 & 14 accompanied the police and were able to identify both accused which led to their arrest. The disclosure statement made by them, which in turn, resulted in the recovery of the stolen articles prove their complicity in the crime beyond any reasonable doubt.

13. Elaborating the submissions, learned APP further argued that the articles in the present case were mostly gold and other valuables, some of them were distinct and specific. They were even mentioned in the list provided by PW-1 who gave a supplementary statement on 30.10.1994 i.e. at least a week before the date of arrest of the appellants. The peculiar nature of the stolen articles was such that it was impossible for the police to have planted them in Chennai and falsely implicate the appellants. Besides, urged the learned APP, that no such suggestion of false

CRL. APPEAL Nos.23 & 134/1998 Page 5 implication was made to the relevant witnesses who had no connection with the police and no discernable motive to give false testimonies.

14. It was argued that the omission to examine the deceased's daughter cannot be considered fatal in this case. In this connection, it was submitted that PW-15, the Magistrate who conducted the TIP proceedings has clearly deposed that the seized articles were mixed with other articles of artificial jewellary before the proceedings began. The deceased's daughter who identified jewelry during the investigation without any difficulty could pick out and identify the stolen articles. This was a very important circumstance that established the appellants' link with the crime and corroborated the testimonies of PWs-2 & 9. Besides, submitted the learned APP, the testimonies of PWs-14 & 17 also reveal that both the appellants had stayed with them for two days and left on 29.10.1994, soon after committing the crime. They had apparently fled and left for Tamil Nadu with a view to escape the law. The police party was able to record the statements of PWs-7 & 17 on 31.10.1994 and also communicate with PW-14 after which they left for Tamil Nadu and were able to successfully nab the Appellants. Counsel urges that there was no motive on the part of these three witnesses, i.e., PWs-7, 14 & 17 to falsely implicate them. They were perfectly natural witnesses and independent of the prosecution. Having regard to all these circumstances, submitted learned APP, this Court should confirm the conviction and sentence given by the Trial Court in the present case.

15. It can be gleaned from the above discussion that the prosecution, in this case, entirely relied on circumstantial evidence. This included the fact of two witnesses having last seen the Appellants, going into and returning from the deceased's premises. It is very well settled that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-

a) The circumstances, from which an inference of guilty is sought to be drawn, must be cogently and firmly established;

b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

c) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

d) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence

CRL. APPEAL Nos.23 & 134/1998 Page 6 should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Mahmood vs. State of U.P., (1976) 1 SCC 542; Gambhir vs. State of Maharastra, (1982) 2 SCC 351; Henry Westroller Roberts vs. State of Assam, (1985) 3 SCC 291; Ashok Kumar Chatterjee vs. State of M.P., 1989 Supp (1) SCC 560; Kishore Chand vs. State of H.P., (1991) 1 SCC 286; Trimukh Maroti Kirkam vs. State of Maharastra, (2006) 10 SCC 681; Satni Bai vs. State of M.P., (2010) 2 SCC 646).

16. PW-2 the tea vendor and PW-9 uniformly deposed having seen the Appellants entering the house of the deceased, in the morning of the date of the incident around 9:30 AM. The evidence also points to their awareness about the identity of the Appellant Shekhar, since he used to frequently clean cars in the area. These witnesses also deposed to the Appellants leaving the deceseased's flat around 30-45 minutes, after entering it; they testified that one of the Appellants had a bag. PW-1 Shekhar is the first informant/complainant. He deposed to having reached his house, and attempting to open the door; his father had reached the place earlier, and tried to go in but could not, since the flat was locked. PW-1 broke open the lock, saw his dead mother, and also saw that the house had been ransacked. He informed the police, who reached the spot, and recorded his statement. The police started investigations during which statements of PW-2 and PW-9 were recorded. Though the amicus argued that PW-1's testimony is unreliable because he tried to improve his version, and introduced the list of missing articles later, we are of the opinion that the argument is meritless. Being the deceased's son, he would have been traumatized seeing his mother's body, after the killing. Moreover, he could not be expected to give details of the jewelry which was stolen during the attack. The list of stolen articles was furnished the next day; it elaborates, rather minutely and in detail, about the missing jewelry, watches etc. In the court's opinion, there is nothing unnatural or incredible about the subsequent description of jewelry. So far as the evidence of PW-2 and PW-9 goes, the court does not find any reason to suspect them. Being located in the colony (where the deceased resided) it was easy for them to notice the Appellants, or for that matter, anyone going inside the colony. Besides, Shekhar was a known face, since he used to clean cars of residents in the area. Minor variations about who had a bag with him, are inconsequential, once the basic fact that both the Appellants had entered the deceased's premises, and went out of there, are seen to have been established.

17. The testimony of PW-7 shows that the police went to his house with PW-14, since he apparently knew the native place of the Appellants. He and PW-14 went along with the police, to

CRL. APPEAL Nos.23 & 134/1998 Page 7 Dindigul district, in Tamil Nadu. They reached Pochampalli on 4-11-1994; they could not locate the Appellants. He corroborated the deposition of PW-14 about his pointing out Appellant Madhavan, who was arrested. The subsequent arrest of Shekhar, and recoveries from both of them, was spoken to by him, as well PW-14. The latter witness, as well as his sister, PW-17, supported the prosecution version that the Appellants had stayed with them for two or three days, and left on 29th October, 1994, in search of employment. PW-17, in addition, mentioned having lent a pair of rubber chappals (slippers) to the Appellant Madhavan. She could identify it during the trial (Ex. P-5 & 6). It is undoubtedly a fact that such slippers are easily available in the market, and no distinctive mark was shown during the trial. Yet, even if this aspect were to be ignored, what remains is that this witness corroborated PW-14 that the Appellants stayed with them for two days, and hastily left on 29-11-1994.

18. As far as recovery of objects and their identification is concerned, the court is conscious that the mere recovery of articles without any other connection with the accused, cannot be the sole basis of a conviction. Yet, in this case, the articles were not ordinary, nor capable of being falsely introduced. A list of objects missing in the aftermath of the attack and robbery had been given by PW-1 to the police on 30-10-1994; after recovery of the jewelry and other articles, the deceased's daughter was able to identify all of them, despite their having been kept along with other items of jewelry. The court is unpersuaded by the Appellants submission that the non examination of the deceased's daughter constituted a serious infirmity. PW-15, the magistrate, who conducted the TIP proceedings, testified to the facts; he was not cross examined, to the effect that no identification took place. Besides, the list of articles, on comparison with the list or recovered articles, discloses a near identity in all particulars. In the light of these facts, the court holds that the recovery of stolen articles was a strong incriminating circumstance, which the accused were bound to explain, but did not, despite being questioned about it, after conclusion of prosecution evidence. The onus of answering, or giving a plausible explanation (to the incriminating circumstances proved by the prosecution) lay upon the Appellants, who did not discharge it.

19. As regards to the finger print report, this court is of the opinion that its non production during the trial can only lead to the inference that the chance prints, lifted from the crime scene did not match the finger prints of the accused. No further inference can be drawn, and the

CRL. APPEAL Nos.23 & 134/1998 Page 8 Appellants cannot take further advantage of it. This would necessarily mean that all other evidence has to be examined and weighed, to consider whether they are guilty as charged.

20. Having regard to the overall conspectus of circumstances, in the light of the above discussion, and keeping in mind the settled law that the High Court interferes with the Trial Court's findings, when substantial or compelling reasons are disclosed, the court in the present case, is satisfied that the appeal is bereft of merit; it is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

PRATIBHA RANI (JUDGE)

OCTOBER 17, 2011 /vks/

CRL. APPEAL Nos.23 & 134/1998 Page 9