Delhi High Court
Rohit Dhingra & Anr vs State on 3 February, 2012
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 16.11.2011
Decided on : 03.02.2012
+ CRL.A. 926/2011 & Crl. M. (Bail) 1302/2011
ROHIT DHINGRA & ANR ..... Appellants
Through : Sh. Pradeep Chowdhary, Advocate.
versus
STATE ..... Respondent
Through : Sh. M.N. Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE PRATIBHA RANI
MR. JUSTICE S. RAVINDRA BHAT
%
1. The appellants impugn a judgment dated 1.06.2011 and order dated
3.06.2011 of the Additional Sessions Judge, in S.C. No. 32/2008. They were
convicted of the offence punishable under Section 302/34 and are sentenced to life
imprisonment and fine of ` 5,000. In default of payment of fine, the convict would
have to further undergo imprisonment for 6 months.
2. The prosecution alleged that on the night intervening 10th & 11th January,
2008, Rohit Dhingra and [email protected] Ashu (hereafter "Appellants") committed the
murder of Mahesh Nagar (hereafter "the deceased") by clobbering his head with a
stone; one Amit too was a conspirator. The crime is said to have been committed at
2nd Pushta near Dharma Kanta Pushta, Sonia Vihar, Delhi where the body of the
Crl.A.926/2011 Page 1
deceased was found on the morning of 11th January, 2008. The prosecution had
based its case against the Appellants principally on the "last seen" circumstance, to
allege that they were perpetrators of the crime. On the basis of recoveries made,
and statements recorded during the investigation, the Appellants were charged for
committing the murder of Mahesh Nagar. They pleaded not guilty, and claimed
trial. The prosecution relied on the evidence of 22 witnesses; principally, the
testimonies of PW-3 and PW-5. After considering all these, as well as the
submissions of the parties, the Trial Court convicted the Appellants, and sentenced
them to prison terms, in the manner described above.
3. The Appellant's counsel argued that the impugned judgment of conviction is
unsustainable, because it is based on shaky and tenuous evidence. Emphasizing
this aspect, it was argued that PW-3 and PW-5, the witnesses to the circumstance
of the accused being "last seen" in the company of the deceased, contradicted each
other. Counsel said that whereas PW-3 said that he saw Rohit at 8:30 in the
evening, (a fact admitted to in cross examination), PW-5 deposed to having seen
the deceased Mahesh at 8 PM 10-1-2008. There was thus, no positive evidence that
the Appellants Rohit and Ashish were seen together with Mahesh Nagar, when he
was last seen alive. It was urged that the entire "last seen" theory was built around
the alleged confessional statement said to have been recorded in the police station
by the accused, said to have been witnessed by PW-5. This statement was hit by
Section 25 of the Evidence Act, and no part of it could be admissible, even on an
application of Section 27.
4. It was next submitted that the impugned judgment is unsustainable because
far too much importance has been given to the mobile call details produced in
Court. It was submitted that the ownership of the mobile, allegedly seized from
Crl.A.926/2011 Page 2
Rohit Dhingra could not be established. Further, the calls said to be connected with
the other two accused, between the period 08.00 PM to 10.00 PM did not establish
anything. The Trial Court heavily surmised - without any factual basis- that all the
accused were in the vicinity of Sonia Vihar where the body was subsequently
found. Apart from the fact that the mobile call details could only establish that
conversation had taken place, the presence or otherwise of those possessing the
mobile phones, could never be fixed with accuracy as was done by the Trial Court.
The finding of the Court in this regard was, therefore, entirely conjectural.
5. Learned counsel next submitted that the other public witnesses relied upon
by the prosecution, i.e. PWs-6 and 7 completely resiled during their depositions
before the Trial Court. While PW-6 claims to have seen the deceased with the
accused, he completely turned hostile and denied having recorded his statement
during the investigation. Similarly, PW-7, the paan Shop owner, who the police
alleged, had seen the accused with the deceased after 10.00 PM disclaimed any
such knowledge or fact. Despite permission being given to the prosecution to
cross-examine and put leading questions to him, nothing could be gained.
Therefore, the testimony of these two witnesses who turned hostile and held on to
their view despite the prosecution's cross-examination and the shaky "last seen"
evidence given by PW-3, who stated that Rohit Dhingra had gone to the
shop/McDonald outlet at 08.30 PM alone, there was no question of any witness
actually having testified to the "last seen" circumstance. Learned counsel
emphasized that apart from this serious infirmity, the Post Mortem Report in this
case also threw serious doubt on the appellants' involvement. The Post-mortem
was started at 11.00 AM on 12.01.2008. The report, Ex. PW-13/A stated that the
time since death was about 1 ½ days prior to the commencement of the
Crl.A.926/2011 Page 3
postmortem. If that were the correct position, the death would have occurred
around 11.00 PM, which completely contradicted the testimony of the witnesses
and even the prosecution case.
6. It was argued that the recovery of the beer bottles and the Kurkure wrapper,
which greatly impressed the Trial Court, in recording conviction, is suspect. Here,
counsel submitted that PW-8 and PW-22 were the first to visit the spot, after the
body was discovered on 11.01.2008. They were silent in their deposition about
these articles. On the other hand, the witness, PW-21 allegedly claims to have
recovered the articles from the site. Counsel relied on the two crime scene reports,
PW-18/A and PW-21/A which mentioned that the police had visited the scene of
occurrence on 11.01.2008 and later on 13.01.2008. The so-called incriminating
articles were, however, seized on 13.01.2008. Here, learned counsel argued that the
recovery of these incriminating articles from an open area, two days after the body
was found, was improbable and highly suspicious. In view of these facts,
emphasized learned counsel, the finger print, report, Ex. 17/A is of no consequence
since the lifting of the alleged finger prints was highly suspect. It was urged that
under these circumstances, the report claims that the palm prints of the accused
matched with what was found on the beer bottles, yet the prosecution did not
establish when and who precisely took the specimen prints for matching purposes.
In the absence of such evidence, the Trial Court could not have concluded the
appellant's finger or palm prints found on the beer bottle, which was an
incriminating circumstance.
7. Learned counsel argued that in every circumstantial evidence-based
prosecution, the burden of proving all facts is heavy. The prosecution has to prove
all circumstances conclusively and that each link in the entire chain of
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circumstances is beyond reasonable doubt. Furthermore, the prosecution is under
an onus to prove that the accused alone and no one else was the offender and that
every hypothesis of his innocence is ruled-out. It is submitted that the discrepancy
in the time highlighted by the Post-mortem Report - which showed the time of
death to be 11.00 PM on 10.01.2008, was at variance with the ocular evidence
whereby the witnesses gave conflicting versions and also as to whether Rohit and
other accused were seen by them. Furthermore, there was no consistency about the
accused having been in fact last seen with the accused. On the basis of these shaky
and tenuous testimonies, the appellant's guilt could not have been concluded as
was done by the Trial Court in the impugned judgment.
8. Sh. M.N. Dudeja, learned APP argued that the impugned judgment is based
on sound reasoning and does not call for interference. He submitted that the
testimony of PW-3 is sufficient to prove "last seen circumstances". It is submitted
that what is important is the quality and not the quantity of the evidence; despite
PWs-6 and 7 having turned hostile, if the Court believed the testimony of the other
witnesses regarding the last seen evidence, that would be incriminating as in this
case. It is submitted that the Viscera Report dated 06.07.2008 in this case was
received much later; that in fact proved the confession of Rohit which was
recorded on 12.01.2008 after his arrest. In the said statement, Rohit, the appellant
confessed to the police that Mahesh, the deceased had been given beer. The
Viscera Report confirmed the presence of ethyl alcohol. This was a very strong
circumstantial piece of evidence and a "fact discovered" within the meaning of the
term under Section 27 of the Evidence Act. It clearly linked the knowledge of
consumption of ethyl alcohol by the deceased, which is before his death, for which
Rohit had no explanation.
Crl.A.926/2011 Page 5
9. Learned counsel submitted that the appellants cannot take advantage of the
minor discrepancies. It is submitted that soon after the body was discovered at
08.00 AM on 11.01.2008, the Crime Team had searched the place at 10.30 AM.
The report, Ex. PW-21/A mentions about this and about the beer bottles and the
Kurkure wrapper. That these articles were seized later, i.e. on 13.01.2008 could not
be fatal to the prosecution. Furthermore, these articles were not found in an
isolated place and there was a direct link with the crime. The finger and palm
prints of Rohit and Ashish were found - subsequently confirmed in the report of
the finger print expert, PW-17, in the document, Ex. PW-17/A.
10. Learned APP refuted the appellant's submission with regard to the
discrepancies in the time of death. Here it was submitted that the postmortem was
conducted almost two days after the incident. The time of death was approximately
1 ½ days prior to the time postmortem proceedings started. This time of death
could not be an invariable one and there was an element of flexibility, having
regard to its being conducted more than 24 hours after the crime. In these
circumstances, whether death occurred before 11.00 PM on 12.01.2008 or even
later was not of much importance.
11. As is evident from the above discussion, the prosecution had alleged that the
Appellants Rohit, Amit and Ashish were responsible for the murder of Mahesh
Nagar. It was alleged - in the charge sheet, that the motive for the crime was
increased proximity between Rohit's girlfriend, and Mahesh; it was Rohit who had
introduced the two. The prosecution had alleged that Rohit left the MacDonald's
outlet in Connaught Place (Regal) at about 8:30 or so, with the deceased and two
other accused, took him to the scene of crime, and killed him with a stone. The
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Trial Court acquitted Amit, holding that there was insufficient evidence to link him
to the crime.
12. PW3 deposed in his examination in chief that he had met Mahesh, Rohit and
another person outside the McDonalds. He mentioned having left the Macdonald's
outlet after finishing his shift, being joined by Rohit, Ashish, and first having seen
Mahesh. However he deposed in his cross examination that he only met Rohit
outside the office at 8:30 PM. He also deposed that PW-5 was his manager. The
witness was declared hostile, and cross examined on account of variation between
what he had allegedly stated during investigation, and what he deposed in court.
Now, PW-5's testimony is that he joined duties at 7 PM, and that after a while the
deceased Mahesh had gone to the outlet, and wished to keep his bag, since he
wanted to go to a party. He could not remember what time Mahesh went there. He
did not see Mahesh with Rohit; much later, around 12:30 AM (of 11-01-2008)
Rohit went to the outlet, and ordered some food. A careful reading of these two
witnesses' testimony would reveal that while PW-3 mentioned having seen Rohit
and Mahesh together, and even gone together with them for some time (after
finishing his shift) he does not mention he first went in there. PW-5 was also in the
outlet, from 07:00 PM; yet he does not mention that Rohit went there any time
before 12:30 AM. He also does not mention that Mahesh went with Rohit, and
PW-3. PW-3 also mentioned that both Rohit and Mahesh were friends, and used to
work together. The evidence also discloses that the police apparently suspected
many people, including PW-2 who was made to sit in the police station, the entire
day on 12-01-2008. If PW-5 had seen Mahesh after 7 PM alone, and later, Rohit
alone, again at 12:30 after midnight, he cannot be a witness to the "last seen"
theory. PW-3 was cross-examined by the prosecution with permission of Court.
He did not support the prosecution about the version recorded by him regarding
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having seen the other two co-accused, together with the deceased and the
appellant.
13. As far as the recovery of the four beer cans and the finger prints found on
them are concerned, though the finger print expert's report appears to be clinching,
a detailed analysis would reveal that PW-8 and PW-22, who were the first
policemen to reach the spot, on the morning of 11-01-2008, did not mention about
such articles, seized later. The prosecution case is that they were seized two days
later, on 13-01-2008. Now, two crime scene reports were prepared on 13-01-2008;
Ex. PW-18/A and Ex. PW-21/A - both mention the beer bottles and the wrapper.
One of these reports states that the scene was investigated on 11-01-2008 itself,
when these articles were observed. Yet, they were not seized, and the evidence of
the prosecution witnesses is that they were left at the scene, in the open. This
completely renders the prosecution version improbable, both as to seizure, as well
as the finger prints on the bottles. Besides, the appellants' argument about
credibility of the fingerprint expert's report, has substance because none of the
prosecution witness deposed about when and how, the specimen finger prints and
palm prints were secured from the accused. Therefore, it would be unsafe to rely
on Ex. PW-17/A, the finger print expert's report.
14. The trial court relied upon, among other materials, the disclosure statement
by the present appellant Rohit Dhingra which was produced as Ex. PW5/E and on
that basis, in the judgment (at para 24 (k)) held that the mobile phone bearing no.
9210000966 had been recovered and that its call details - produced as Ex. PW-
16/C and PW-16/D revealed that the instrument was used somewhere in Sonia
Vihar II. The court also reasoned that the calls were placed from that number to
another mobile phone no 9211168796 recovered from Ashu @ Ashish who was
Crl.A.926/2011 Page 8
also in the vicinity. The prosecution was unable to establish or connect the mobile
phones with the accused; consequently the court took upon itself the task of
summoning two individuals i.e. Harish Kumar and Ajay Abraham who were
examined as CW-1 and CW-2. Harish Kumar stated that he had handed over the
mobile phone 9211168796 to accused Ashish whereas Ajay Abraham deposed that
he had never purchased the phone No. 9210000966; but he admitted that it was
obtained on the basis of a photocopy of his driving license and that the application
contained his photograph. The Trial Court reasoned on the basis of this material
and the other documents i.e. Ex. PW16/C and Ex.PW-16/D -the call details-, that
the prosecution had proved that Ashu @ Ashish and Rohit Dhingra were in the
vicinity where the murder took place and had telephonically conversed with each
other between 8.30 and 10.00 PM on that day of the incident. The court further
stated that the failure to question the witnesses on this or lead any independent
evidence was a circumstance to be considered against the accused.
15. As noticed earlier the prosecution had relied upon the testimonies of PW-3,
PW-5, PW-6 and PW-7 to say that the deceased was seen last with the appellants.
PW-6 and PW-7 turned hostile entirely and did not support the prosecution
version. PW-5 the Manager of McDonald outlet deposed that the deceased
Mahesh Nagar visited the outlet sometime after 7.00 PM. He did not mention
having seen any of the accused. He went on to say that Rohit Dhingra came to the
outlet between 12.00 AM and 1.00 AM on the intervening night of the question
and ordered some food. PW-3, the prime witness for the prosecution deposed in
his examination-in-chief having gone out with Mahesh Nagar around 8/8.30 PM
on 10.01.2008 and that Rohit Dhingra had met them. He also specifically stated
that one other individual was with Rohit Dhingra and that he saw him for the first
time. According to him all the four went to Shivaji Stadium; at A Block, the
Crl.A.926/2011 Page 9
witness turned towards Metro Station and went home. In cross-examination PW-3
specifically denied having told the police that he had met Rohit Dhingra, Mahesh
Nagar and two others namely Ashish and Amit outside the store; he was consistent
on this aspect. Clearly therefore this witness did not support the prosecution
regarding the involvement of Ashish and Amit. Likewise, in the case of PW-5
only evidence of his having seen Rohit Dhingra and Ashish was later at around
12.00 midnight on 11.01.2008; they were not with the deceased. The time of death
according to the post mortem report, works out to be roughly 11.00 PM on
10.01.2008.
16. Several judgments of the Supreme Court (Hanumant Govind Nargundkar &
Anr. v. State of Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand Sarda v.
State of Maharashtra, (1984)4 SCC116; and Ashish Batham v. State of Madhya
Pradesh, 2002 (7) SCC 317) have held that the standard of evidence required in a
case which is solely based on circumstantial evidence. The law is well settled that
the circumstances from which the inference of guilt is to be drawn should be fully
established; the circumstances should be of conclusive nature; the facts established
should be consistent only with the hypothesis of the guilt of the accused; the
circumstances established should be incompatible with the innocence of the
accused and the chain of evidence should be complete so as to show that in all
probability the act must have been done by the accused. Cases where the
prosecution relies on evidence of the deceased having been last seen in the
company of the accused, too, are a species of circumstantial evidence cases. In
such prosecution, the court has to additionally be aware that apart from proof of all
the circumstances, and the equally rigorous rule for proof of link of the chain of
circumstances, the last seen theory comes into play only when the time gap
Crl.A.926/2011 Page 10
between the Appellant and the deceased being last seen together alive and the time
of death is so small that the possibility of anyone else being the author of the crime
is impossible. Reliance is placed on State of U.P. v. Satish, AIR 2005 SC 1000;
Malleshappa v. State of Karnataka, AIR 2008 SC 69.
17. In this case the solitary circumstance which the prosecution could be said to
have established is that Rohit Dhingra was seen by PW-3, along with Mahesh
Nagar around 8/8.30 PM when the two went out. Interestingly PW-3 did not
identify the other two accused; he did not support his previous statement on this
aspect. The other witness PW-5 mentions about a later event when Rohit Dhingra
and Ashish went to the outlet around 12 - 12.30 AM on 11.01.2008. At the
highest the prosecution can be said to have shown that Rohit Dhingra and Mahesh
Nagar left the outlet with PW-3 around 8/8.30 PM on 10.01.2008. It is however,
not as if the prosecution relied only on this solitary circumstance. It had also relied
on the recoveries such as the beer cans containing the finger prints of the accused.
This court has previously discussed that this evidence is untrustworthy, as the beer
cans were recovered from an open area two days after they were noticed and seen
by the crime team itself. There is a strong possibility of their introduction into the
investigation since concededly both the crime reports were prepared on the same
day i.e. 31.01.2008. There is also a material discrepancy between this
circumstance and the testimony of PW-8 and PW-22 who never mentioned having
seen these articles.
18. This court had noticed that the law relating to "last seen theory" must also
stand the test of credibility in the same manner as the other circumstantial evidence
based cases. When the entire prosecution story hinged on the testimonies of
witnesses, some of whom turned hostile (such as PW-6 and PW-7) and one of
Crl.A.926/2011 Page 11
whom, i.e. PW-5, could not even mention having seen the accused last with the
deceased, it would be unsafe to convict the accused, on the evidence of PW-3.
That witness is no doubt consistent as regards his account of having seen Rohit
Dhingra. At the same time the Court has to be mindful of the circumstance that he
did not support the prosecution in regard to having seen the other two accused i.e.
Ashish and Amit. He did not identify them or so stated to the police in the
statement under Section 161 Cr.P.C. While consistency is one indicator to the
credibility of a witness, the Court at the same time has to be mindful of the over all
probability of the prosecution case and the truthfulness of the witness.
19. This Court is of the opinion that the reliance placed upon the mobile call
details produced as Ex. PW-16/C and Ex. PW-16/D, an incriminating circumstance
as against Rohit Dhingra and Ashish was not appropriate. The recovery of mobile
phone from Rohit Dhingra was not witnessed by any member of the public.
Furthermore CW-2 the ostensible owner did not deny that his driving licence and
photograph was fixed on the application form, with the service provider. It is also
important to notice that said witness was a court witness summoned at the behest
of the court. The further inference drawn by the trial court was that neither of the
accused could disprove their presence. It was therefore, deduced that the
prosecution had proved the possibility of their being near the crime scene between
8.30 and 10.00 PM on the night of the incident i.e. 10.01.2008. The inference
drawn on the basis of mobile tower details in the documents (Ex. PW16/C and Ex.
PW-16/D) could not have been held against them. That someone could have been
present in the vicinity of scene of crime is a matter of probability. However, for
the Court to conclude that he was actually present, the prosecution had to establish
- by application of the only relevant rule of evidence in this case i.e. that only the
Crl.A.926/2011 Page 12
accused and none else was present at the scene of crime. In other words, in the
absence of positive material proving beyond reasonable doubt that the accused was
at the scene of occurrence, the Trial Court could not have concluded that the
appellants were so present in this case and then shifted the burden (not merely the
onus) of proving that they were not at that place at the time when offence was
committed.
20. For the above reasons, we are of the opinion that the appeal is entitled to
succeed; the impugned judgment and order is accordingly set aside. The appellants
are directed to be released forthwith. The Crl.A.No.926/2011 is accordingly
allowed. All pending applications also stand disposed of.
(S.RAVINDRA BHAT)
JUDGE
3rd February, 2012 (PRATIBHA RANI)
JUDGE
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