Delhi High Court
State vs Alam Ramesh on 27 March, 2012
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27.03.2012
+ CRL.L.P. 433/2011
STATE ..... Petitioner
Through: Ms.Richa Kapoor, APP for State
With Inspector Suresh Kaushik.
versus
ALAM RAMESH ..... Respondent
Through: Mr.Ranjeet Kumar Jha, Advocate
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P.GARG
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The State seeks leave to appeal against the judgment and order of
learned Additional Sessions Judge dated 29th April, 2011 in SC No.27/2007;
the respondent was acquitted for the charge of having committed offences
under Section 302/380/411 IPC.
2. The prosecution's case in brief was that the concerned police, i.e., PS
Mandir Marg, received information about the death of an STD Booth owner
at 9:55AM on 1.2.2007 near the OPD of Lady Harding Hospital. The body
was that of a handicapped individual; he appeared to have been strangulated.
CRL.L.P.433/2011 Page 1
His body was preserved and sent for post mortem examination. The police
case is that on 4th February, 2007, PW30, the Investigating Officer along
with staff went to the concerned PCO booth and seized one passbook, some
cheques, ration card etc; statements of the deceased's relatives were
recorded; the prosecution claimed that it then discovered that deceased used
to own a mobile phone the number of which 9891788582 and that he used to
keep his cash in a steel box which was missing from the scene. The police
claimed a break through when upon receipt of information the respondent
was arrested. The prosecution also alleged that the mobile phone details had
been collected and the instrument itself was seized from the possession of
Om Prakash,i.e., PW4; the latter claimed that it had been sold by accused to
him. The respondent/accused was charged with the commission of the crime
described previously. He denied his guilt and claimed trial. During the
proceedings, the prosecution relied upon the testimonies of 30 witnesses and
also placed on the record several material exhibits.
3. On an overall consideration of the pleas, the Trial Court held that the
prosecution was unable to establish respondent's guilt beyond reasonable
doubt; he, therefore, was acquitted.
4. It is contended by the APP for State that the impugned judgment is in
error and requires to be interfered with. Learned counsel highlighted the
important circumstance that PW4 in the statement recorded during the
investigation claimed that the mobile phone had been sold by the accused to
him on 1st February, 2007. His statement remained unshaken. The next
circumstance, according to the counsel, was the recovery of two rings and
certain golden ornaments, which connected the respondent with the crime.
The third and the most important circumstance against respondent which
CRL.L.P.433/2011 Page 2
according to learned counsel was not taken into consideration was "last seen
evidence" as deposed by PW9. PW9 had claimed to have seen the accused
with the deceased at 10 PM, the previous evening. The post mortem report
in this case, established that the death had taken place approximately an hour
or so later. The counsel submitted that the testimony of PW9 was
erroneously rejected on the ground that the witness was not reliable and that
his statement was recorded more than 15 days after the incident. The APP
here emphasized that the police had no clue regarding whereabouts of the
witnesses and stumbled upon the last seen circumstance much later; and that
this was the cause for the delay.
5. We have considered the Trial Court records and the State's
submissions.
6. The most important circumstance directed against the accused was
the "last seen evidence" of PW9. The Trial Court had this to say in the
impugned judgment about the trustworthiness of the witness.
"XXXXXX XXXXXX XXXXXX
The testimony of PW9 does not also appear to be credit
worthy. According to him, he had seen the accused with the
deceased at about 10:00-10-15 p.m.. On the next day, he went
to the hospital and came to know that Tulsidas was murdered.
His statement was recorded on 15/2/2007. He has stated that
he knew Alam since he was working in the mess of Lady
Harding hospital where he used to go. PW30 is totally silent
about making inquiry or recording of his statement during the
investigation. Even if it is presumed that PW30 had recorded
the statement of PW9 on 15/2/2007, what had stopped him from
making inquiry from the staff of the mess of Lady Harding
hospital about the accused as to whether he used to work in the
mess and after the incident or whether he had come thereafter.
It could not be known, what effort the IO made, to trace the
CRL.L.P.433/2011 Page 3
accused after getting this clue. In the present case, as stated by
PW30 he got the clue only on 16/3/2007 i.e. after about 1 ½
month of the murder.
PW2 has stated that he had lifted four chance prints from
the booth. Surprisingly the finger prints of the accused were not
got matched with the chance print lifted from the booth. No
explanation has been given by the prosecution in this regard.
This could be the vital piece of evidence in order to rule that it
was only the accused who was lastly in the company of the
deceased before his murder.
XXXXXX XXXXXX XXXXXX"
7. As far as the recovery of the mobile phone is concerned, the relevant
discussion in the impugned judgment is as follows:
"XXXXXX XXXXXX XXXXXX
As per the case of the prosecution, on 1/2/2007 PW1 had
informed the IO that the mobile set of the deceased was missing
since then. The best course with the IO was to put the mobile
set on active mode with the service provider so as to know who
was using it after its theft. As per the call details ExPW13/A
which the IO had requested the service provider on 1/5/2007,
the number 9891788582 was active on the mobile set having
IMEI no. 357583005355973 (before 31/1/2007) on which IMEI
no.the mobile no.9910526460 became active after 1/3/2007. So
on 1/3/2007, the IO could have known who was using the stolen
mobile set though according to the prosecution, the clue about
this case was first got on 16/3/2007 when the accused was
arrested in the case FIR No.100/07 PS Tilak Marg. The mobile
set was recovered from the possession of PW4 Om Prakash.
According to him, he had purchased the mobile phone from the
accused around Holi in the presence of staff. Surprisingly no-
one from the staff was examined by the prosecution to
corroborate this fact. PW4 has stated that the police had taken
the address of the accused from Kalawati Hospital, had it been
so, the police could get the whereabouts/address of the accused
CRL.L.P.433/2011 Page 4
on 15/2/2007 when the statement of PW9 was recorded.
XXXXXX XXXXXX XXXXXX"
8. Similarly, the Trial Court rejected the recovery of two rings from the
accused's trouser's pocket at his instance. This, apparently, took place
considerably later, i.e., 1 ½ months after the incident and more than a month
after the arrest of the accused. We also noticed that no Test Identification
Parade of such an article-apparently of a common nature, was conducted.
The Trial Court's finding is, therefore, sound and reasonable.
9. The testimony of PW9, in our opinion, was correctly discarded as
noticed previously. The deceased's STD Booth was in a public area
accessible to all. If statement of PW9 was that he saw the deceased in the
company of accused at around 10:00 or 10:15 PM, though he became aware
about the murder on the very next day, he did not mention anything to the
management or staff of the hospital. PW30, the Investigating Officer, too
was silent on this aspect about whether he made any inquiry from members
of the staff. It is undisputed that PW9 used to regularly visit the area being
a cable operator in the premises. The Trial Court correctly wondered that
PW30 failed to record the statement of PW9 about this material
circumstance, and did so much later.
10. We are alive to the fact that the last seen circumstance can in many
cases, be determinative of an accused' guilt. It has to be, therefore, proved
beyond reasonable doubt. The Court has to be acutely cautious that this
crucial piece of evidence should be proved to eliminate the possibility of
anyone else's involvement in the crime. That the accused was last seen with
the deceased in a public area, by itself, in our opinion, is an inconsequential
CRL.L.P.433/2011 Page 5
fact, if seen together with the delay in recording of statement of the witness.
The said circumstance cannot be said to have been proved at all.
11. So far as the second important circumstance put against the accused,
i.e., recovery of the mobile phone is concerned, the Trial Court's
conclusions are reasonable and sound. The absence of any call details for
31st January, 2001 in our opinion puts a question mark about the alleged
transaction which PW4 claims to have been taken place between him and the
deceased. Moreover, apart from the statement of PW4, (which was recorded
much later), there is nothing to substantiate that, in fact, the accused had
taken the mobile phone and sold it to this witness. PW4 himself is a
member of the staff in the hospital and the possibility of the mobile phone
having been acquired by him in some other manner cannot be ruled out.
12. Having regard to the overall circumstances of the case we are of the
opinion that the reasoning of the Trial Court is sound and unexceptionable.
In line with the settled rule that High Courts would interfere with the
findings and acquittal only if substantial and compelling reasons are
disclosed in the petitions for leave to appeal, we are satisfied that no such
element has been shown in facts of the present case. The Petition, being
unmerited, is consequently dismissed.
S. RAVINDRA BHAT
(JUDGE)
S.P.GARG
(JUDGE)
MARCH 27, 2012
'sv'
CRL.L.P.433/2011 Page 6
