Delhi High Court
Munna Singh vs State on 10 February, 2012
Author: Pradeep Nandrajog
$~R-6
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION : FEBRUARY 10, 2012
+ CRL.A. 228/1999
MUNNA SINGH ..... Appellant
Through: Ms.Saahila Lamba, Adv.
versus
STATE ..... Respondent
Through: Mr.Harsh Prabhakar and Ms.Afsha Pracha, Advocates for Mr.Pawan Sharma, Standing Counsel (Crl.) for the State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
%
1. Deepak aged 5 years was last seen alive, as deposed to by his parents; Smt.Lakho Devi PW-6 and Bhagwan Singh PW-8 at around 8:30 - 9:00 AM on 16.11.1995 when he was on the way to a public toilet. As deposed to by them, they could not locate their child thereafter; and for the child being missing lodged a missing person report Ex.PW-6/A, in which nobody was named as a suspect.
2. A highly decomposed dead body of a male child was reported lying near Express Building in Seemapuri on 06.12.1995. The body happened to be that of Deepak.
3. The case set up for trial against the accused was that he was 'last seen' in the company of the deceased around morning time when the child left the house. The two persons who had last seen the deceased in the company of the accused were Saraswati Devi PW -1 and Leela Dhar PW - 9. Motive for the crime, as per the prosecution was from the mouth of the parents of the deceased child and Jagdev PW -2. The motive was a verbal altercation between the accused and the mother of the deceased child 2 or 3 days prior to 16.11.1995 with respect to the accused partaking meals at the residence of the parents of the deceased and for which the accused would not contribute a single penny. He was chided of being a parasite by the mother of the deceased and hence the motive to avenge the insult.
4. After the accused was arrested, as claimed by the prosecution, pursuant to a disclosure statement made by him, a knife Ex.P2 was recovered, which as per the doctor when sent to him for opinion, who conducted the postmortem of the deceased, was opined to be the possible weapon of offence.
5. It is apparent that at the trial, three incriminating circumstances were sought to be established. Firstly, the motive. Secondly, the deceased and the accused being 'last seen' together soon before the deceased went missing; and thirdly the recovery of the possible weapon of offence.
6. As regards the motive, Jagdev and Leela Dhar proved the same by deposing that a few days prior to 16.11.1995 the accused felt insulted when Lakho Devi accused him being of a parasite and he threatened revenge for the insult.
7. That the deceased was seen going towards the public toilet at around 8:30 or 9 AM on 16.11.1995 was proved through the testimony of Lakho Devi PW 6 and Bhagwan Singh PW 8, the parents of the deceased child. Relevant would it be to highlight that as per the two witnesses, they had seen their child going towards the public toilet. It is not their testimony that they saw the accused in the company of their child or lurking nearby.
8. The witnesses to the 'last seen', Saraswati Devi PW-1 as also Leela Dhar PW-9, in their examination-in-chief deposed, respectively, as under:-
"PW 1.
We have a grocery shop running at our residence. Exact date I do not remember however it was about one and a half year or so accused present in the court came with a child and took a toffee on payment from me, and went away. I cannot give the exact age of the child. However, he would be more than two and three years."
**********
"PW 9
On 6.12.95 I was present at my said shop where the police came alongwith the accused present in court and enquired from me. Accused confessed in my presence that he had taken 'samosa' from my shop about 20 days before and gave the same to a child who was with him and he also ate it. I had recollected my memory and stated to the police that accused had come and bought samosa from my shop and gave the same to a boy and he also ate it. Thereafter the accused and the child went towards Express Bldg. i.e. 'Kori Colony'. It was in the morning time. My statement was recorded by the police".
9. Suffice would it be to state that neither Saraswati Devi nor Leela Dhar stated the time or the date when they saw the accused with the child. Suffice would it be to further state that these witnesses neither stated that the child was the deceased.
10. The child whom Saraswati Devi and Leela Dhar saw with the accused could be anybody.
11. A circumstance of 'last seen' assumes incriminating character when there is proximity of time when the deceased is 'last seen' with the accused and the time of death. In case if the victim is a child, and the body is recovered after an interval, as in the instant case of over 20 days, and thus the exact time of death being incapable of ascertainment with certain measure of definite exactitude, the prosecution may at best then urge that the accused must speak of the time and the place where the accused and the deceased parted company.
12. Unfortunately, for the prosecution, the 'last seen' evidence is extremely deficient on three counts. Firstly, it is not the evidence of the accused being 'last seen' in the company of the deceased. The evidence is that the accused was in the company of a child. Secondly, the day on which Saraswati Devi and Leela Dhar saw the deceased and the accused has not surfaced. Lastly, the time of the day when they last saw the child and the accused has not surfaced, thus, the so called evidence 'last seen' is worthless.
13. We are then left with the evidence of motive and recovery of the knife.
14. On the issue of motive, it assumes importance that as per Jagdev and Lakho Devi, the accused had a verbal altercation with Lakho Devi 2 or 3 days prior to 16.11.1995 and he had extended a threat to avenge his insult. It assumes importance to note that when missing person report was lodged, no suspicion was cast upon the accused; which normally should have surfaced, if parents of a child are threatened by an accused that the accused would seek revenge. That apart, motive as an incriminating evidence, by its very nature is a weak evidence for the reason presumption of guilt on motive is based upon presumptive logic and by its very character presumptive logic is weak logic as compared to deductive or analytical logic.
15. As regards the recovery of the knife, suffice would it be to state that the knife in question was at best a possible weapon of offence. That apart, as opined in the decisions reported as JT 2008 (1) SC 191 Mani vs. State of Tamil Nadu, 1999 Crl.L.J 265 Deva Singh vs. State of Rajasthan, AIR 1994 SC 110 Surjit Singh vs. State of Punjab, recovery of a possible weapon of offence, in a case of circumstantial evidence, would in the absence of other determinative evidence be of no value. In the instant case, the 'last seen' evidence having failed, the two other circumstantial evidences; being motive and recovery of the possible weapon of offence do not unerringly point the finger of guilt at the accused and rule out the innocence.
16. We accordingly extend the benefit of doubt to the accused and dispose of the appeal setting aside the impugned judgment dated 14.09.1998. The accused is exonerated of the charge of having committed the offence of murder. Order on sentence dated 16.09.1998 is set aside.
17. Since the accused is on bail, bail bond and surety bond are discharged.
18. A copy of this order be sent to the Superintendent, Central Jail, Tihar for making entry in the jail records.
PRADEEP NANDRAJOG, J
PRATIBHA RANI, J
FEBRUARY 10, 2012
'dc'
