Delhi High Court

Ashok Singh vs State on 12 July, 2012

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 3rd July, 2012
                                   DECIDED ON : 12th July, 2012

+                            Crl.A.259/1998

       ASHOK SINGH                                 ....Appellant
                Through :          Mr.Banamali Shukla, Amicus Curiae.

                                   versus

       STATE                                        ....Respondent
                       Through :   Ms.Richa Kapoor, APP.


        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant Ashok Singh impugns the judgment dated

27.04.1998 and order on sentence dated 29.04.1998 of learned Additional

Sessions Judge in SC No.37/1996 by which he was convicted for

committing the offence punishable under Section 302 IPC and sentenced

to undergo imprisonment for life with a fine of `2,000/-.

2. The criminal law was set into motion on 22.03.1995 when

Daily Diary entry (DD) No.4A (Ex.PW-14/A) was recorded at PS

Kalyanpuri at 08.02 A.M. on getting information from Police Control

Room (PCR) about a dead body lying inside a gunny bag in the fields at

village Kondli. The investigation was assigned to Insp.N.S. Chauhan who

along with SI Chottu Ram, HC Kanwar Pal and Const.Ashok Kumar

reached the spot. The body of a male having ligature marks on its neck

was found in the bag. Insp.Narender Singh made endorsement on DD

No.4A and sent the rukka through HC Kanwar Pal for lodging First

Information Report (FIR). At the spot, he seized various articles including

hair found stuck in the deceased's finger; letter (Ex.PW-8/DX1) found in

the pocket of the shirt, gunny bag and the plastic 'niwar patti‟ with which

the gunny bag was tied. He also conducted inquest proceedings and

prepared inquest papers. He recorded the statements of the witnesses

conversant with the facts and sent the body for post-mortem.

Dr.L.T.Ramani conducted post-mortem of the body on 24.03.1995. The

witnesses examined by the Investigating Officer indicted the accused for

the crime and the police set out to apprehend him.

3. On 29.06.1995, on getting secret information about the

presence of the accused outside a Bulb Factory, New Seelampur, he was

arrested and interrogated. Pursuant to his disclosure statement, he led the

police to the rented room in Kondli and got recovered the folding-bed

from where the „niwar patti‟ was cut to tie the gunny bag. During the

course of investigation, the Investigating Officer collected specimen hair

of the accused and sent to the CFSL for comparison. After completing the

investigation, a charge-sheet was submitted against the accused for

committing the offence under Section 302/201 IPC. He was duly charged

and brought to trial.

4. In order to substantiate its case, the prosecution examined

fifteen witnesses at the trial. The statement of the accused was recorded

under Section 313 Cr.P.C. to afford him an opportunity to explain the

incriminating circumstance. The accused denied his participation and

pleaded false implication.

5. After appreciating the evidence and considering the rival

contentions of the parties, the Trial Court convicted the accused for

committing the murder of Ram Parvesh. Aggrieved by the said judgment,

the appellant has preferred the present appeal.

6. We have heard the counsel for the parties and have

scrutinised the Trial Court record. The homicidal death of the deceased

Ram Parvesh is not under challenge. PW-13 (Dr.L.T.Ramani) proved the

post-mortem report examination (Ex.PW-13/A) in which injury No.1

(ligature mark) was opined to have been caused by some narrow ligature

material like wire. PW-13 (Dr.L.T.Ramani) was of the opinion that the

death was due to asphysia resulting from strangulation.

7. At the outset, it may be mentioned that the whole case of the

prosecution hinges upon circumstantial evidence. The Trial Court heavily

relied upon the circumstance of last seen, motive, recovery of the articles

pursuant to accused's disclosure statement and FSL reports to base its

conviction. These circumstances are discussed as :

(A) Last Seen

8. The investigating agency was unaware at what time Ram

Parvesh was killed. The police came into motion only on 22.03.1995 at

08.02 A.M. when it got information of the dead body lying in a gunny

bag. No eye witness was found at the spot and the body could not be

identified. PW-1 (Satya Narain) and PW-2 (Om Prakash Tiwari), the

deceased's relatives identified it only on 28.03.1995. PW-13

(Dr.L.T.Ramani) who conducted autopsy on 24.03.1995 was of the

opinion that the death occurred about three days prior to the

commencement of the procedure on 24.03.1995 at about 11.00 A.M. The

time frame thus fixed the death at 11.00 A.M. on 21.03.1995. In the cross-

examination, he clarified that there was possibility of variation of few

hours up to six hours on either side. He indicated that the death in any

case occurred prior to 05.00 P.M. on 21.03.1995.

9. PW-7 (Raghunandan), Shopkeeper, who used to run a kirana

shop at villagae Kondli claimed that he saw Ram Parvesh in the company

of the accused and 2 or 3 other persons on 21.03.1995 in the evening

when he was passing in front of his shop. He however, did not disclose the

exact time when the deceased was seen in the company of the accused. He

also did not name the other 2 or 3 persons who were with him at that time.

He did not support the prosecution in toto and was declared hostile by the

State and cross-examined. In the cross-examination by the Ld.APP, he

denied that in the statement to the police recorded under Section 161

Cr.P.C. (Ex.PW-7/A), he had disclosed that those two or three associates

of the accused were known to him and he had given their names as Dalbir

and Gajender of the village Kondli. He further denied the suggestion that

he had altercation with Ram Parvesh for non-payment of `500/- at that

time. Apparently, the time of death estimated in the post-mortem report is

not in consonance with the time when PW-7 allegedly saw the accused

and the deceased together in the evening. Moreover, the accused alone

was not with the deceased at that time.

10. Regarding law on the circumstance of last seen, the

observations of Supreme Court in 'Muhibur Rahman v.Sate of Assam‟

(2002) 6 SCC 715 are relevant :

"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place."

11. In the case of 'State of Goa v.Sanjay Thakran‟ (2007) 3 SCC

755 the Supreme Court noted general principles with reference to the

principles of last seen together in 'Bodhraj v.State of J&K‟ (2002) 8 SCC

45 as under:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

32. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was

found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

34. ..... Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

12. The body of deceased Ram Parvesh was found in the early

morning of 22.03.1995 and it remained unidentified. It is highly

improbable that PW-7 who had allegedly witnessed the deceased in the

company of the accused and his associates on the previous day would not

come to know about his murder for so many days and would not lodge

report to the police. Even his statement under Section 161 Cr.P.C. was

recorded by the IO after a considerable delay of more than three months

i.e. on 29.06.1995. Neither the IO nor the witness explained the inordinate

delay in making the statement (Ex.PW-7/A). His silence for not reporting

the incident to the police or close family members of the deceased makes

his testimony highly suspicious. He exhibited unnatural conduct.

(B) Motive

13. In cases based upon circumstantial evidence, motive assumes

greater importance. In the instant case, the prosecution failed to prove

strong motive of the accused to hatch conspiracy with his associates to

eliminate the deceased on his inability to return `1,000/- borrowed from

the accused about six months before as alleged. The prosecution did not

collect any clinching evidence to find out if the accused had lent loan of

`1,000/- to the deceased and if so, when and for what purpose. Again

there is no material to infer if any, threat to kill was ever extended to the

deceased for the non-payment of the said amount. No complaint was ever

lodged by the deceased or his family members for the alleged threat. PW-

7 (Raghunandan) did not reveal if the accused was in hostile mood when

he allegedly saw him in the company of the deceased. The prosecution did

not investigate how, when and under what circumstances, the deceased

happened to meet the accused on 21.03.1995. If the deceased had a real

apprehension due to the alleged threat, he must not have gone to see the

accused and his associates alone. PW-8 (Sangeeta Mishra) deceased's

wife admitted that both the accused and the deceased were friends and

used to visit each other. For a paltry amount of `1,000/-, the accused is

not imagined to hatch conspiracy with three associates (since Proclaimed

Offenders) to murder him. No role whatsoever was attributed to the

accused who remained absconded.

14. In the „State of UP vs. Kishan Pal‟ (2008) 16 SCC 73, the

Supreme Court examined the issue of motive in a case of circumstantial

evidence and observed that motive is a thing which is primarily known to

the accused themselves and it is not possible for the prosecution to explain

what actually prompted or excited them to commit the particular crime

and thus, motive may be considered as a circumstance which is relevant

for assessing the evidence and becomes an issue of importance in a case

of circumstantial evidence. Thus, absence of motive in a case depending

on circumstantial evidence is a factor that weighs in favour of the accused.

15. PW-3 (Gian Chand) deposed that accused Ashok Singh was

his tenant in the year 1995. At the same time, he also disclosed that the

accused used to stay in that house with two other boys. He did not support

the prosecution on the circumstance of recovery of the folding bed etc. in

his presence from the rented room. The prosecution did not collect cogent

evidence to establish since when the accused used to reside in the said

rented room or whether he alone used to stay or his associates also stayed

there. The accused was arrested on 29.06.1995 from outside a Bulb

Factory, New Seelampur, after about more than three months of the

occurrence. It is uncertain if he used to visit the rented premises during

this intervening period. No investigation was carried out if the room at

village Kondli remained locked till the arrest of the accused. PW-3 (Gian

Chand) was not expected to allow the room locked without getting any

rent for so many months. On 28.03.1995 itself, Sangeeta Mishra and her

relatives had identified the deceased's body and the police was intimated

the alleged motive of the accused. The Investigating Officer remained

silent why the tenanted room of the accused was not raided that day to

find out any incriminating material. The circumstances in which the arrest

of the accused has been shown on 29.06.1995 are also suspicious as no

public witness was joined at the time of his arrest. In the personal search

of the accused, nothing was recovered. No evidence was collected if the

accused used to work in the bulb factory and if so, since when. There is no

investigation where the deceased used to reside and at which particular

place, he used to carry on his business. The contents of the letter (Ex.PW-

8/DX1) reveal that he was going to collect substantial amount of

`50,000/- from his in-laws and had suffered losses in the business. The

Investigating Officer did not attempt to verify the contents of the letter.

(D) CFSL Reports (Hair Matching)

16. The Trial Court heavily relied upon the CFSL report

(Ex.PW-14/J) whereby from morphological and microscopical

characterstics, hairs in Ex.No.1 (A few strands of black coloured hairs

'described as some hairs' vide exhibit No.4) and Ex.No.2 (A few strands

of black coloured hair described as some hairs vide exhibit No.5) were

found to be 'human' in nature. Hair in Ex.1 were also found to be

'similar' with the hair in Ex.2 in most of the morphological and

microscopical characterstics.

17. On scanning the evidence, we find that recovery of hair is

shrouded in mystery. The witnesses have given inconsistent version about

the exact number of hair and the exact place/ body part, from where it

were recovered. PW-14 (Insp.Narender Singh) testified that three or four

hair pieces were found stuck in deceased's finger (right hand). Contrary to

that, PW-11 (SI Rajvir Singh) deposed that 4 hair pieces were found in

right hand fist (of the deceased). He was confronted with the statement

(Ex.PW-11/DA) recorded under Section 161 Cr.P.C. where there was no

such mention. In the CFSL report (Ex.PW-14/J), it is not certain as to how

many hair strands were sent for examination. The CFSL report merely

records that it received a sealed cloth parcel containing, 'a few strands' of

black colour hair.

18. The Investigating Officer, PW-14 (Insp.Narender Singh)

seized the specimen hair strands from the head of the accused after his

arrest on 29.06.1995 vide seizure memo (Ex.PW-14/H). This seizure

memo does not reveal the number of hair strands taken and seized. The

Investigating Officer did not seek permission from the concerned

Magistrate to collect the hair strands of the accused. These were also not

taken in the presence of the Magistrate. No independent public witness

was associated at the time of taking the specimen hair. PW-15 (HC Sahid

Khan) a witness to the seizure memo (Ex.PW-14/H) did not corroborate

the version given by the Investigating Officer and failed to testify if any

hair strands of the accused were taken in his presence.

19. In the case of 'Himagshu Pahari vs. The State‟ 1986

CRI.L.J.622, the Double Bench of Calcutta High Court observed :

"Though the learned trial Judge accepted the report of the Senior Scientific Officer, on scrutiny of his evidence, we consider it unsafe to act upon the report. It has been elicited in his cross-examination that he did not measure the diameters of the shafts of the hairs or their length, did not take impression of the cuticles of the hairs, did not note the shapes, appearance and the colours of the hairs or the directions of the pointing out of the hairs. The science of comparison of hairs has not yet reached perfection like the

science of comparison of finger prints. Where, therefore, all the tests were not meticulously carried out, it would be unsafe to rely upon the report. We, therefore, leave out of our consideration the report of the Senior Scientific Officer (Ext.15). In our opinion, circumstance No.14 has not been proved beyond reasonable doubt."

20. In the case of „Shahbuddin vs. The State (NCT of Delhi)‟

Crl.A.No.288/1997 decided on 21.12.2001, the Double Bench of this

Court held :

"18. Now turning to the opinion expressed by the CFSL regarding matching of alleged sample hair with that of the hairs recovered from the right hand fist of the deceased, he said report does not conclusively proves that those hairs were of the same origin. The CFSL report is Ex.PW-13/M reads as under :-

"The hair in exhibit 1 and 4 were found to be human in origin. Hair of exhibit 1 were found to be similar with the hair of exhibit 4 in most of their morphological and microscopical characterstics."

19. This report of the CFSL, to our mind, is not conclusive. According to this report hair exhibit 1 was similar with that of exhibit 4. It does not say the hair of Ex.1 and Ex.4 were identical. The morphological and microscopical characteristic test is not a sure test for arriving at a conclusion that two hairs belong to one and the same person. To support our view, we are placing reliance on the decision of Kerala High Court in the case of George Chariyan and ors. v. State of Kerala 1989 (3) Crimes 238. In that case the court observed that the hair analysis has not yet developed into a perfect science. This fact is accepted by all major authors of Medical Jurisprudence. Similar view was expressed in the case of Neeraj v. State of M.P. MANU/MP/0283/1991 where in similar circumstances CFSL reported that hair were similar. The court observed that there is a distinction between "similarity" and "identity". There can be similarity but the

identity can still be different. In the present case result of analysis is that the sample hair and the hair recovered from the hand of the deceased were similar. Experts have not opined that the identity of the hair was the same or that the origin was from the same source. Identity of the hair being not established, it cannot be said that sample hair and hair recovered from the "Muthi" of the deceased were of the same person. Similarity of hair does not conclusively prove that the hair came from the same origin or of the same person. This has been so held in the case of Mantu alias Sunil Kumar Bhuyan v. State 1984 (2) Crimes 815. On the same line is the judgment of Calcutta High Court in the case of Himangshu Pahari v. State 1986 Cri.L.J.622."

21. Sampling and analysis of hair samples suffer from many

limitations; most notably, standard procedures have not been published for

collecting, washing and analysing hair samples. Many questions regarding

appropriate sampling and analytical procedures remain unanswered. CFSL

report (Ex.PW-14/J) does not elaborate how the expert came to the

conclusion that there was 'similarity' between the questioned hair strands

and the specimen hair of the accused. The characterstics like scale-count

(number of scales per cm), shaft diameter and its variation from root to

tip, medullary index (the ratio of the medulla diameter and the shaft

diameter), pigment and shape of the cross-section have not been dealt in

the report. It is not certain if the hair strands examined by the expert were

full hair with root and tip intact and were representative of the body

part/parts concerned. It is also uncertain if adequate number of hair were

obtained as questioned hair.

22. It has been commented in the text book of Medical

Jurisprudence and Toxicology, 24th Edition 2011 by Modi that :

"......Extensive work is yet necessary for universal acceptance of these approaches to the examination of even small pieces of hair. Till then, it can only be said that by laboratory examination, dissimilarity of hair can be more reliably shown than their similarity. The age and sex of the hair cannot be opined with high degree of reliability in all cases. Any opinion given should thereforem be worded with due caution indicating the limitations of examination carried out."

(E) Other Accused (Proclaimed Offenders)

23. The prosecution also suspected involvement of Dalbir S/o

Ram Singh, Satpal S/o Babu Ram and Sish Pal S/o Rameshwar Dayal and

attributed common intention to them for the commission of the crime.

However, during the investigation, no role whatsoever was attributed to

them in the incident. The prosecution did not collect any credible evidence

to prove that these proclaimed offenders were ever seen in the company of

the accused.

(F) Conclusion

24. It is well settled that when a case rests purely on

circumstantial evidence, such evidence must satisfy three tests. Firstly, the

circumstances from which an inference of guilt is sought to be proved,

must be cogently and firmly established. Secondly, the circumstances

should be of a definite tendency unerringly pointing towards the guilt of

the accused. Thirdly, the circumstances taken cummulatively, must form a

chain so complete that there is no escape from the conclusion that within