Delhi High Court
Ravinder Singh vs State (Nct) Of Delhi on 28 March, 2012
Author: Gita Mittal
R-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.No.394/2010
% Date of decision: 28th March, 2012
RAVINDER SINGH ..... Appellant
Through : Mr. Siddharth Aggarwal and
Mr. Simon Benjamin, Advs.
versus
STATE (NCT) OF DELHI ..... Respondent
Through : Ms. Ritu Gauba, APP.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has assailed the judgment dated 16th of
April, 2009 finding him guilty for commission of offences under
Sections 302/201 of the Indian Penal Code. The appellant was
heard on sentence and by an order dated 20 th April, 2009, the
learned Trial Judge sentenced the appellant to imprisonment
for life and payment of Rs.10,000/- as fine and in default of
payment of fine, the appellant was sentenced to undergo
further simple imprisonment for a period of three months for
commission of offence under Section 302. So far as the
sentence for commission of the offence under Section 201 IPC
is concerned, the learned Trial Judge sentenced the appellant
to undergo rigorous imprisonment for three years and to pay
Rs.3,000/- as fine in default thereof to undergo simple
imprisonment for a further period of three months. It was also
directed that the sentences shall run concurrently and the
appellant was directed to be entitled to the set off in terms of
Section 428 of the Cr.P.C, in respect of the period already
undergone by him during judicial custody.
2. The prosecution commenced on receipt of telephonic
information received at 06:40 A.M. on the 17th of April, 2002 by
the PCR which was passed on by Lady Constable Hemlata of
the PCR net of the South West District of Delhi to the police
station Dabri scribed as DD No.9 (Ex.PW3/B) to the effect that
a dead body was lying at the Shivani Senior Secondary School,
Mahavir Enclave, Palam. The report was handed over to PW18
- Sub-Inspector Tara Chand who, accompanied by PW7 - Ct.
Jaipal Singh, proceeded to the spot.
3. The two police officials found a naked headless male
body lying on its stomach in the lane behind the Shivani Senior
Secondary School. There was some blood near the body while
spots of blood were found on the nearby wall. The thumb of
the right foot had been split open while the left shoulder bore
an injury inflicted with a sharp weapon. As per the police
officials, the circumstances and the small quantity of blood
lying there suggested that the person had not been killed at
the spot but was thrown at the spot after being killed
elsewhere. Despite search, the head of the body could not be
traced. No eye-witness was also available.
4. An endorsement in the above terms was effected on DD
No.9 (Ex.PW18/A) which was returned to the Police Station
Dabri. On receipt of this information, FIR No.286/2002 dated
17th April, 2002 under Sections 302/201 of Indian Penal Code
(Ex.PW3/A) was registered. The same was handed over to the
PW20 - Inspector Lakhwinder Singh for investigation.
5. After completion of investigation, a charge sheet was
filed against the appellant. The following charges were framed
against him by an order dated 23rd May, 2003:-
" CHARGE
I, R. Kiran Nath, Addl. Sessions Judge, New Delhi, do
hereby charge you accused Ravinder Kumar S/o Baro
Mehto as under :-
That on the night intervening 16/17.4.02 at Shiv
Vani Sr. Sec. School, Mahavir Enclave, Part-I, within the
jurisidiction of PS Dabri you committed murder of Sanjay
@ Dashrat and you thereby committed an offence
punishable under Section 302 IPC and within the
cognizance of this court.
Secondly, on the abovesaid date, time and place
you hide the skull of Sanjay @ Dashrat in the aforesaid
school in order to causing disappearance of evidence of
the offence in order to scream yourself from the legal
punishment and you thereby committed an offence
punishable under Section 201 IPC and within the
cognizance of this court.
And I hereby direct that you be tried by this court
for the aforesaid charge.
ASJ, New Delhi"
6. There was no eye-witness to the crime. The case of the
prosecution rested on circumstantial evidence.
7. In support of its case, the prosecution examined 20
witnesses. The statement of the appellant under Section 313
of the Cr.P.C. was recorded. We find that the prosecution
attempted to lead evidence with regard to;
(i) Time of occurrence.
(ii) Place of occurrence.
(iii) The deceased having been last seen alive in the company
of the appellant.
(iv) Recoveries made pursuant to a disclosure statement
allegedly made by the accused.
(v) The blood of the deceased being found on the articles
which had been recovered/seized.
(vi) Identification of clothes which were recovered/seized
from the spot as belonging to the deceased.
(vii) Motive.
8. After a detailed consideration, the learned Trial Judge
pronounced the judgment dated 16th April, 2009 finding the
appellant guilty of commission of offences under Sections
302/201 IPC.
9. Aggrieved thereby, a challenge has been laid to the
conviction as well as the sentence imposed upon the appellant
by way of present appeal.
10. Mr. Siddharth Aggarwal, learned counsel, who has
assisted this court on behalf of the appellant, has strongly
challenged the conviction on the ground that the prosecution
has been unable to prove any of the allegations laid upon
against the appellant.
11. Mr. Siddharth Aggarwal, learned counsel for the appellant
has challenged every aspect of the prosecution case including
the evidence led with regard to the place of occurrence as well
as the evidence on the deceased having been last seen alive in
the presence of the appellant. Mr. Aggarwal, learned counsel
for the appellant has assailed the claim of the prosecution that
the appellant made any disclosure statement or that
recoveries were effected pursuant thereto. It is urged that in
fact as per the evidence brought on record, the police effected
the recoveries first; the appellant was arrested thereafter and
the disclosures scribed in the police station only in order to
support the false prosecution against the appellant.
12. Learned counsel has also urged that the prosecution has
failed to connect the recoveries to the deceased person and
that there is no evidence which supports the claim of the
prosecution that the blood of the deceased was found on any
of the recovered clothing/articles. It is also contended that the
clothes which have been allegedly recovered or seized by the
police have not been connected to the deceased person and
there is no credible evidence that the clothes which were
recovered belonged to the appellant let alone that they had
been actually worn by the deceased on the fateful night.
13. It is the submission of Mr. Siddharth Aggarwal, learned
counsel for the appellant that in a case of circumstantial
evidence, the prosecution has to establish an unbroken chain
of circumstances which leads to only one conclusion which is of
the guilt and culpability of the accused person and does not in
any manner suggest or support the hypothesis of innocence of
such person. It is also submitted that the proof of existence of
a motive for the offence is a material circumstance in order to
support the case of the prosecution and to pass a judgment of
conviction. In the instant case, the prosecution has miserably
failed to even suggest a motive, let alone lead any evidence
thereof. It is submitted that the evidence which has been
brought on record is to the contrary.
14. A challenge has also been laid to the impugned judgment
and order of sentence on the ground that there is no forensic
or scientific evidence to support the case of the prosecution;
that the prosecution has failed to conduct any scientific
examination in the nature of finger printing or identifying the
blood grouping of the accused or the deceased so as to
connect the seizure of alleged weapons of offence or the other
recovered articles with the accused to the deceased.
15. It is contended that in the instant case, the prosecution
has miserably failed to prove such an unbroken chain. It is
urged that there are glaring loopholes in the evidence which
has been led by the prosecution in all material respects and
that there was no evidence which could have supported the
conviction of the appellant.
16. A vehement challenge has been laid to the manner in
which the trial was conducted. It is urged by learned counsel
for the appellant that the trial suffered from processual
unfairness to the appellant inasmuch as he has been denied an
adequate and fair representation by a counsel of his choice. It
is urged that mid-trial, the case was transferred from the
District Court at Patiala House to the Dwarka District Court
whereafter the counsel he had engaged for his representation
had stopped appearing. It is urged that it was the duty of the
learned trial judge to ensure that the appellant, who was
accused of a serious crime for which the capital sentence could
have been imposed upon him, was duly represented by a
counsel of his choice at every stage of trial. The contention is
that the learned trial judge has grossly erred in failing to
consider the fact that the appellant was illiterate and
economically deprived and was certainly not conversant with
the impact of refusing to cross-examine a witness or the
import thereof. In these circumstances, it is urged that the
statement attributed to the appellant by the learned Trial
Judge in the order dated 22nd January, 2009 to the effect that
he did not wish to wait for his counsel for cross-examination of
the investigating officer PW 20 - Lakhwinder Singh certainly
cannot be held to be an informed option exercised by the
appellant. It is urged that the closure of the opportunity to
cross-examine the investigating officer, who was one of the
main witnesses in the case, has caused grave prejudice to the
appellant. Learned counsel has also contended that the
learned Trial Judge has proceeded in the matter with
unwarranted haste in recording the statement of the appellant
under Section 313 of the Cr.P.C. on the 10th of February, 2009
again when the appellant did not have the benefit of any
guidance or assistance of a counsel as evidenced by the fact
that on the 6th of March, 2009, the learned Trial Judge
adjourned the case for the reason that there was no counsel
appearing on behalf of the appellant. It is pointed out only on
23rd March, 2009 an amicus was appointed on behalf of the
appellant. It is urged that it was because the appellant was
not represented by a counsel that the question at serial nos.
26 to 31 as well as questions at serial nos. 31 to 39 could not
have been put to the appellant inasmuch as there is no
evidence at all on these aspects.
17. Learned counsel has urged at great length that the
prosecution of the appellant ought to have failed for the reason
that a material witness had not been examined by the
prosecution. It is urged that Surinder Mehto, brother of the
appellant was allegedly residing with him in the school
premises and that it was the case of the prosecution that
Surinder Mehto was also available in the school premises at
the time of the alleged murder. Non-production and
examination of Surinder Mehto, the brother of the appellant,
necessitated that an adverse inference be drawn against the
prosecution that if he had been examined, evidence of the
innocence of the appellant would have come on record.
In support of these submissions, Mr. Siddharth Agarwal,
learned counsel has placed reliance on 1976 (2) SCC 819
(Para 25) titled S. Harnam Singh v. State (Delhi Admn.).
18. Ms. Ritu Gauba, learned APP for the State has repudiated
the challenge laid by the appellant. It has been urged that the
prosecution has established the commission of the offences by
the appellant beyond reasonable doubt and that the judgment
of conviction as well as the order of sentence imposed upon
him deserve to be maintained. The prosecution has led
evidence of PW-17, a chowkidar in the school to establish that
the deceased was last seen alive in the company of the
appellant entering the school on the fateful night. The learned
APP for the State has contended that the prosecution has
conducted the investigation strictly as per law and there is no
reason for doubting either the disclosure statement or the
recoveries and seizures effected by the police. It is urged that
there is no absolute proposition that non-existence of motive
for commission of an offence of murder has to be fatal to the
prosecution. The submission is that the prosecution has
adequately proved that the deceased was last seen alive in the
company of the appellant and that the prosecution has also
connected the recovered/seized articles to the deceased
person. It is urged that recovery of the head of the deceased,
weapons of offence, clothing of the deceased and appellant as
well as the blood stained mop (pocha) was effected upon
disclosure and pointing out by the appellant which have been
rightly relied upon by the trial court for pronouncing the
appellant guilty.
19. Learned APP draws our attention to Ex.PW18/C which is a
recovery memo dated 17th April, 2002 to show that the police
seized blood stained plaster from the stairs where the head of
the deceased was recovered as well as the gallery; the plaster
from the wall of room no.21 and floor tiling and other articles.
20. Learned APP for the State submits that PW9 - Dr. L.K.
Baruah had taken a sample of blood of the deceased on a
piece of gauze which was sealed with the seal of "CMO LKB,
Civil Hospital, Delhi". This piece of cloth was sent for forensic
examination as parcel no.18 with other exhibits on the 17 th of
June, 2002. It is urged that the Forensic Science Laboratory in
its report dated 25th October, 2002 (Ex.PW-20/A) has reported
that human blood of the AB group was found on the said gauze
which was Exh-18 which is therefore the blood group of the
deceased.
21. Learned APP for the State has contended that the blood
of this very grouping was seized from the greyish powder
material (Exh.-3); wall plaster; (Exh.-5); the floor piece (Exh.-
7); marble tile (Exh.-9) as well as the mop (pocha - Exh. 15). It
is contended that these articles were seized on the 17 th of
April, 2002 by the police from the school premises.
22. It is also contended by Ms. Gauba, learned APP that the
appellant made a conscious and considered statement on the
22nd of January, 2009 to the effect that he did not want to wait
for his counsel and did not wish to cross-examine PW20 -
Inspector Lakhwinder Singh. The submission is that no fault
can be found in the order which was recorded on 22 nd January,
2009 in closing the cross-examination of PW20. She further
points out that even the learned Trial Judge in the order dated
22nd of January, 2009 gave liberty to the accused person to
move an application for permission to cross examine the
witness. Having failed to do so, the appellant must be deemed
to have waived his right to cross-examine PW20 in terms of
Section 465(2) of the Cr.P.C. Learned counsel has contended
that an amicus was appointed on 23rd March, 2009 to
represent the appellant and that the appellant had adequate
opportunity to request for another opportunity to cross-
examine the prosecution witness.
23. Learned APP for the State has contended that Section
313 of the Cr.P.C. mandates that it is the accused person who
has to personally give an explanation for the material in
evidence which has been recorded against him; and has in fact
an opportunity to do so. Ms. Gauba has urged that no
prejudice has therefore been caused to the appellant on
account of absence of the counsel.
24. It is urged by learned APP that the prosecution has
adequately established an unbroken chain of incriminating
circumstances against the appellant meriting the dismissal of
the challenge laid in the present appeal. Given the nature of
the crime and the above circumstances it is contended that the
conviction of the appellant and the sentence deserve to be
sustained.
Time of occurrence
25. We may now examine the evidence led with regard to the
time of the occurrence and the challenge thereto at the
instance of the appellant. The prosecution has primarily relied
on the evidence of PW 9 - Dr. L.K. Baruah in order to pinpoint
the time on which the murder took place. PW 9 conducted the
postmortem on the body of the deceased on the 22 nd of April,
2002 and gave a report which has been proved on record as
Ex.PW9/A. In the written document Exh. PW-9/A, the doctor
has not given any opinion with regard to the time of the death
anywhere. In his cross-examination in court on 4th November,
2004, PW9 - Dr. L.K. Baruah has stated that the time since
death was approximately one week prior to his conducting the
postmortem. Unfortunately, Ex.PW9/A does not contain the
time at which the postmortem was conducted and not even an
opinion with regard to the date of the death.
26. Learned counsel for the appellant has contended that the
period of one week, taken back from 22 nd of April, 2002 would
take the occurrence to 15th April, 2002. Ms. Ritu Gauba,
learned APP for the State has on the other hand contended
that if calculated correctly, the opinion of the doctor would
relate back the time of the murder to the night intervening the
16th/17th of April, 2002. In her submission, the entire day of
22nd April, 2002 has to be considered while computing the time
of death.
27. The question of pinpointing the time of occurrence
assumes importance in the context of the prosecution‟s case
that the deceased was last seen alive in the company of the
appellant. If this circumstance was accepted, then its
proximity to the time of the murder is necessary to support a
finding of culpability of the appellant to rule out the possibility
of a third party intervention as the offender.
28. PW-9 in his cross examination has stated that he is
regularly conducting post mortems since 1986 and had
conducted thousands of post-mortems since then. He
confirmed that the police had informed him that a "dau" was
the weapon of offence. He also stated that rigor mortis started
about 3 to 4 hours of the death and completes within 6 to 8
hours and that it passes away from the dead body after 24
hours in normal condition. The doctor could not recollect the
colour of the skin of the dead body at the time of his evidence.
Exh. PW-9/A mentions that "rigor mortis was absent in upper
limb but lower limbs are stiff (cold stiffening) present".
29. Learned counsel for the appellant has placed reliance on
the provisions of Section 45 of the Indian Evidence Act in
support of his submission that the testimony of PW-9 Dr. A.K.
Baruah cannot be ipso facto relied upon by this court to accept
his statement with regard to the time of the death. Learned
counsel has pointed out that the doctor was required to give
the scientific basis for his oral testimony which is completely
unsupported by either the post-mortem report or any
statement in the witness box to this effect.
30. PW-9 does not support his statement in court regarding
estimation of the time of the death with any factual narration
or the body condition. Given the period of almost two and a
half years between the post mortem on 22nd of April, 2002 and
4th November, 2004 when his evidence was recorded, it is
improbable that the doctor could possibly remember the
condition of the body to opine about the possible time of death
of a person who he had seen in 2002. Given the nature of the
deposition of PW9 and the endorsement contained on Ex.PW
9/A, undoubtedly, it is therefore difficult to accept the oral
statement of PW-9 to pinpoint the exact time at which the
incident took place. No other evidence has been led by the
prosecution on this aspect of the matter.
Place of occurrence
31. We may now consider the arguments led by both sides
with regard to the place of occurrence as well as the effort of
the prosecution to draw a linkage or proximity of the place to
the residence of the appellant.
32. In this regard, it has been urged by learned counsel for
the appellant that the evidence led by the prosecution renders
it impossible to identify the place of the murder. It is also
urged that vague depositions with regard to the co-habitation
and residence of the appellant and his brother Surinder Mehto
have been placed before the court.
33. The prosecution has examined PW1 - Prashant Narula,
the owner of the Shivani Senior Secondary School as a witness
who has stated that he was the then Vice Principal of the said
school in 2002. In his entire deposition, only a vague
statement with regard to the residence of the appellant in a
"school room at Shiva Block, Second Floor" has been made. It
is urged that apart from this statement, there is no evidence at
all with regard to the residence of the appellant in any
particular identifiable portion of the school premises.
34. PW17 - Dharam Raj Yadav, a security guard at the school
is another witness who has stated that the appellant used to
reside inside the school without again specifically adverting to
any particular room in the school.
35. The police has claimed to have effected recoveries from a
room adjoining room no.21. It is important to note that there
would be a room on either side of Room no.21 which would be
adjunct to it. The site plans on record do not show such room.
Therefore, the prosecution has been unable to connect the
appellant to a particular room adjoining room no. 21 (class VII)
in the school. The prosecution has also not been able to
establish that the appellant was in exclusive possession or
control over the room "adjoining room no.21".
Last Seen Together
36. Apart from the reliance on the disclosure attributed to the
appellant, the case of the prosecution primarily rests on the
evidence of the deceased allegedly being last seen alive in the
company of the appellant. In this regard, the prosecution has
relied completely on the sole testimony of PW17 - Dharam Raj
Yadav who was employed as a Chowkidar on the school
premises. PW17 has deposed that on the night of 16th April,
2002 from 9:00 pm to 8:00 am, he was assigned the duty of
guarding the main gate of Shivani Senior Secondary School.
He further deposed that at about 9:15 pm on that night he had
seen the appellant and the deceased Sanjay entering the
school from the main gate. In the examination-in-chief, the
witness has categorically stated that he did not know anything
thereafter. PW17 has also stated that he had left on a school
bus at about 7:30 am and that he had not seen Surinder
coming out or going inside the school. This bald assertion has
to be examined in the light of other evidence which has come
on record as well as the applicable legal principles.
37. The evidence of the prosecution on the issue of a
deceased person being last seen alive in the company of an
accused person has also been the subject matter of judicial
consideration and pronouncement in a catena of precedents
prior hitherto. The principles laid down in these judgments
would guide adjudication by this court. Our attention has been
drawn by Mr. Aggarwal to the pronouncement of the Supreme
Court in (2007) 3 SCC 755 titled State of Goa v. Sanjay
Thakran & Anr., it was held by the Supreme Court as follows:-
"31. ....... It is a settled rule of criminal jurisprudence
that suspicion, however grave, cannot be substituted
for a proof and the courts shall take utmost precaution
in finding an accused guilty only on the basis of
circumstantial evidence. This Court has applied the
above-mentioned general principle with reference to
the principle of last seen together in Bodh Raj alias
Bodha and Ors. v. State of Jammu and Kashmir :
2002 CriLJ 4664 as under:
"31. 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....
[See also: State of U.P. v. Satish : 2005 CriLJ 1428
(para 22) and Ramreddy Rajeshkhanna Reddy and
Anr. v. State of Andhra Pradesh : AIR 2006 SC 1656
.
32. In Ramreddy Rajeshkhanna Reddy (supra), 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.
33. In Jaswant Gir v. State of Punjab : (2005) 12 SCC
438, it was observed that:
"5. ...In the absence of any other links in the chain
of circumstantial evidence, it is not possible to
convict the appellant solely on the basis of the 'last-
seen' evidence, even if the version of PW 14 in this
regard is believed."
34. From the principle laid down by this Court, the
circumstance of last-seen together would normally be
taken into consideration for finding the accused guilty
of the offence charged with when it is established by
the prosecution that the time gap between the point of
time when the accused and the deceased were found
together alive and when the deceased was found dead
is so small that possibility of any other person being
with the deceased could completely be ruled out. The
time gap between the accused persons seen in the
company of the deceased and the detection of the
crime would be a material consideration for
appreciation of the evidence and placing reliance on it
as a circumstance against the accused. But, in all
cases, it cannot be said that the evidence of last seen
together is to be rejected merely because the time gap
between the accused persons and the deceased last
seen together and the crime coming to light is after a
considerable long duration. There can be no fixed or
straight jacket formula for the duration of time gap in
this regard and it would depend upon the evidence led
by the prosecution to remove the possibility of any
other person meeting the deceased in the intervening
period, that is to say, if the prosecution is able to lead
such an evidence that likelihood of any person other
than the accused, being the author the crime, becomes
impossible, then the evidence of circumstance of last
seen together, although there is long duration of time,
can be considered as one of the circumstances in the
chain of circumstances to prove the guilt against such
accused persons. 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."
38. On the same issue, learned counsel for the appellant has
placed reliance on the pronouncement of the Supreme Court
reported at 1983 Cri.L.J. 155 : AIR 1983 SC 61, Prem
Thakur v. State of Punjab in support of his submission that
there was nothing unnatural about the deceased and the
appellant being seen together in the company of each other on
the evening before the murder was committed for the reason
that the appellant was working with the deceased. It is urged
that therefore, no inference that the appellant was guilty of the
murder would arise in the instant case from even the
circumstances that PW-17 may have seen the deceased in the
company of the appellant.
39. Ms. Ritu Gauba, learned APP for the state has placed
reliance on the pronouncement of the Supreme Court reported
at (2005) SCC 642, State of U.P. v. Satish. We find that
even in this case, the Supreme Court has held that the last
seen theory comes into play when 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. The Supreme Court
in para 22 held that "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."
40. Learned APP has further placed reliance on the
pronouncement of the Supreme Court reported at AIR 2009
SC 712, Ramachami v. State Rep. by State Prosecutor.
In this case, the prosecution had established on record that on
the night of the occurrence, the accused and the appellant
were alone in the hotel where they used to sleep. There was
evidence of their having been last seen together on the night
before the murder of the deceased and the accused had been
absconding and was arrested more than nine month
thereafter. In this background, the court had held that the
circumstances established by the prosecution were sufficient
to hold the accused guilty of the offence.
41. We may firstly examine the issue of the various gates
which provided ingress and egress to the school premises.
PW17 - Dharam Raj Yadav has stated that in the year 2002
there were three gates to the school premises including the
main gate providing entry to the school. He has also stated
that a register was maintained for entering attendance at the
gate and that he had not made any entry regarding the entry
of the appellant and Sanjay into the school premises for the
reason that the appellant was an employee of the school. The
witness admitted that the deceased Sanjay was not an
employee of the school.
42. It is also in the evidence of PW20 - Inspector Lakhwinder
Singh that there were three entrances to the school.
43. PW1 - Prashant Narula who was the owner of the school
and the then Vice Principal has stated that the school had two
gates and that both the gates were manned by security guards
who remained on duty.
44. The prosecution has also examined PW11 - Rohtas
Saroha who has deposed that he was performing guard duty at
the school gate from 1:00 pm to 9:00 pm in the year, 2002.
This witness has stated that in the year, 2002 he had not seen
the appellant and Sanjay in the school. It is also in his
deposition that Sanjay was a relative of the appellant and that
he used to visit the school with the appellant with whom the
deceased had good relations.
45. Ms. Ritu Gauba, learned APP for the State has pointed out
that in view of the deposition of PW20 - Inspector Lakhwinder
Singh, it would appear that Surinder Mehto, brother of the
appellant was also performing the duties of Chowkidar on the
fateful night.
46. The only conclusion from the above evidence on record
with regard to the gates is that there were multiple gates, at
least two, providing entrance into the school premises and that
these gates were duly manned by chowkidars (guards).
47. The prosecution, therefore, relies on the sole testimony
of PW17 in support of its case that the deceased had been last
seen alive with the appellant on the fateful night. However,
the prosecution has failed to lead any evidence with regard to
ingress and egress from the other gates.
48. As per PW17, the deceased was seen entering the school
in the company of the appellant at about 9:15 pm. The above
discussion shows that the prosecution has, however, not been
able to also pinpoint the time of death of the appellant. There
is no evidence at all that no other person was available in the
school building and complex.
49. The above principles when applied to the instant case,
would show that before this court it has been discussed
hereinabove, that the prosecution has not been able to pin
point the time of death of the deceased. The prosecution has
led evidence only of the fact that the deceased was seen
entering the gate of the school premises at about 9.15 p.m. in
the company of the appellant by PW-17. In this background, if
the evidence of the prosecution, that the deceased was last
seen alive in the company of the appellant is accepted, there is
no evidence to establish that the same was proximate to the
time that he was murdered or there was no intervention by any
other person. There is also no evidence that the appellant or
the deceased were both in the school premises at the time of
the murder. No evidence to the effect that there was no other
person in the school building or premises has been led. The
prosecution has also not led in evidence as to whether any
other person entered or exited from the other gates. On the
contrary, evidence of PW-15, brother of the deceased has been
considered to examine that the deceased had left his house to
actually visit Surinder Mehto and not the appellant.
50. The requirement of proximity between evidence of last
being seen alive with the time of death has also escaped
discussion before the learned trial court. There can be no
conclusion with regard to the time of death that the deceased
was last seen alive in the company of the appellant close to
the time when he was murdered in order to lead to the
inevitable and only hypothesis that the accused is responsible
for the murder and no other person.
51. In this background, it is not possible to conclusively opine
with regard to the length of time between the time when PW-
17 saw the appellant with the deceased and the time of the
offence as well as the recovery of the body. Learned counsel
for the appellant has vehemently contended that in this
background the evidence of PW-17, even if accepted, is
completely irrelevant and of no consequence so far as the case
in hand is concerned.
Non-examination of a material witness
52. At this stage, we may also examine the emphatic
submissions made by learned counsel for the appellant to the
effect that the prosecution has led evidence with regard to the
presence of Surinder Mehto who was the brother of the
appellant within the school premises at all material times. It is
urged that Surinder Mehto was considered a material witness
on behalf of the prosecution and also cited in the list of
witnesses filed by the prosecution along with the chargesheet.
Yet, he was not examined and consciously dropped as a
witness for the prosecution on the 4th of November, 2004 when
the learned APP for the State made a statement that he was
dropping Surinder "being a brother of the accused".
53. Our attention has been drawn to the deposition of PW18 -
S.I. Tarachand, who was the first Investigating officer in the
case. In his deposition, PW18, after referring to the traces of
blood found in room no.21 on the second floor of the school;
gallery of the primary block to the second floor near bathroom
up to Shiva block, stated that the room adjoining room no.21
was locked and that Surinder who was residing in that room,
met the investigating team. A statement has been attributed
by PW-18 to Surinder to the effect that the key of the room
was with the appellant who had gone on the bus as he was
working as the helper.
54. PW20 - Inspector Lakhwinder Singh has also made a
similar deposition in this regard and has attributed a similar
statement to Surinder Mehto, chowkidar of the school, who had
expressed his inability to open the room for the reason that the
key was with the appellant.
55. Mr. Aggarwal, learned counsel for the appellant has urged
that the statement attributed to Surinder Mehto is inadmissible
in evidence being hearsay in the mouths of PW18 and PW20.
There is certainly substance in the objection. Be that as it
may, the context of the statement attributed to Surinder Mehto
assumes importance in the light of the failure of the
prosecution to examine him as a witness. This is more so as
the case of the prosecution rests on the allegation that the
appellant was residing with his brother Surinder in the room
adjacent to room no.21.
56. It is also the case of the prosecution that the room
adjoining room no.21 was locked by the appellant and that he
had locked the room and taken the key when he went on duty
on the school bus in the morning of the 17 th of August, 2002.
The respondents have identified this room as the place where
the clothes of the deceased and the knife, one of the weapons
of offence were recovered. It is the case of the prosecution
that the room could not be searched for the reason that it was
locked till such time the key was made available by the
appellant. Therefore, the recovery of the key is the material
factor for establishing possession and control of the appellant
over the room and ought to have been documented in the
recovered articles in the documents which include personal
search of the appellant.
57. In this regard, our attention has been drawn to the
personal search memo of the appellant - Ex.PW1/C. It has
been urged that the police effected a personal search of the
appellant and in Ex.PW1/C has noted the items recovered from
his person.
58. We find that Ex.PW1/C does not record the recovery of
any key from the person of the appellant when he was
searched by the police.
59. Our attention has also been drawn to the prosecutor‟s
suggestion to PW-2 Vijay Singh after he was declared hostile.
The prosecution suggested to him that first the room was
opened and then Surinder helper was called.
60. The submission is that the above circumstances would
show that the prosecution has been unable to prove the fact
that the room adjoining room no.21 was either locked by the
appellant or that its key was in his possession.
61. It is noteworthy that PW-1 Shri Prashant Narula has
clearly stated that when the investigation team entered the
room, the room was already open.
62. The prosecution has, therefore, not been able to establish
that any room adjoining room no.21 was under the appellant‟s
exclusive occupation or control or, for that matter, under his
occupation or control.
63. Learned counsel for the appellant has submitted that the
perusal of Ex.PW1/C would show that it mentions the
particulars of the case as FIR No.286/2002 which would show
that FIR stood registered before the arrest of the appellant and
he was also searched only after the registration of the case. It
is in evidence that FIR No.286/2002 was registered at 11:00
am on 17th April, 2002.
64. Even if Ex.PW1/C is held to be having been recorded after
the opening of the said room or recovery of the articles which
have been recovered from this room, the recovery of the key
and opening of the room was certainly a material factor which
would have been documented in the documents scribed by the
police.
65. Ms. Ritu Gauba, learned APP for the state has placed
reliance on the pronouncement reported at 2004 SCC (Cri.)
294, Banti @ Guddu vs State of M.P. in support of a
contention that it is for the prosecution to decide which person
is to be examined as a witness and who is not to be examined.
We find that this judicial pronouncement does not support any
such absolute proposition. The Supreme Court has referred to
Section 226 of the Code of Criminal Procedure as well as
Section 231 of the Code and thereafter has set down the
applicable principles thus :-
"14. The situation in a case where the prosecution
cited two categories of witnesses to the
occurrence, one consisting of persons closely
related to the victim and the other consisting of
witnesses who have no such relation, the Public
Prosecutor's duty to the Court may require him to
produce, witnesses from the latter category, also
subject to his discretion to limit to one or two
among them. But if the Public Prosecutor got
reliable information that any one among that
category would not support the prosecution
version he is free to state in court about that fact
and skip the witness from being examined as a
prosecution witness. It is open to the defence to
cite him and examine him as a defence witness.
The decision in this regard has to be taken by the
Public Prosecutor in a fair manner. He can
interview the witness beforehand to enable him to
know well in advance the stand which that
particular person would be adopting when
examined as a witness in court."
66. It is clear from a reading of the above that the prosecutor
can withhold examination of a witness only if there was reliable
information that such person would not support the
prosecution version and he is required to inform the court
about this.
67. In the instant case, the only statement made by the
prosecutor before the court on 4th November, 2004 is to the
effect that Surinder, a person named in the list of witnesses on
behalf of the prosecution was related to the appellant.
Relationship to a person accused of an offence would not lead
to an absolute presumption that he would not speak the truth
in the witness box. There is no material before the trial court
to the effect that the witness would not have supported the
prosecution case in case he had been examined as a witness.
This is more so when the prosecution had recorded a
statement under Section 161 of the CrPC. The prosecutor did
not say that the witness had been won over, or was unwilling
to depose or to state the truth.
68. In the light of the above discussion, there is strength in
the submission on behalf of the appellant that Surinder was a
material witness who would have shed valuable light on what
had transpired in the school; in Room no.21 and in the room
adjacent to it, on the night intervening 16th/17th April, 2002.
69. We do not agree with the prosecution stand that Surinder
was the appellant‟s brother and so he was not examined.
There is no presumption that merely because a person is
related to person standing trial, he will not speak the truth.
70. We may also notice the deposition of PW15 Shambhu
Kumar, brother of the deceased at this stage. Shambhu Kumar
has categorically stated that on the 15 th or 16th of April, 2002
his brother Sanjay (deceased) had gone to the Shivani Senior
Secondary School to meet Surinder (brother of the appellant)
herein and that he had been carrying a sum of Rs.30,000/- or
Rs.35,000/- with him. The deceased had not gone to meet the
appellant. This is the last time that PW15 - Shambhu Kumar
saw his brother alive. Shambhu Kumar has stated that he
presumed that after meeting Surinder, his brother had left for
his native village. He reiterates in his cross-examination that
the deceased, Sanjay used to visit Palam to meet Surinder, the
brother of the appellant, where the two brothers were living
together. The witness has also confirmed that there was no
quarrel between the family of the appellant and the deceased.
71. Strangely, so far as the knowledge of the murder of his
brother Sanjay is concerned, PW15 Shambhu has stated that
he learnt about the same on receiving a telephone call about
2-4 days thereafter from his employer that his brother Sanjay
had been murdered and he was asked to go to the police
station, Dabri, whereupon he had identified the body of his
brother on the 21st of April, 2002 in terms of Ex.PW15/A.
72. The prosecution has in fact brought evidence of PW-15
Shambhu on record to the effect that the deceased was having
good relations with the appellant and his brother. PW-11
Rohtas has also deposed in the same manner. There is,
therefore, substance in the submission of learned counsel for
the appellant that even if the accused and the deceased had
actually been seen together, there would be nothing unnatural
or suspicious in the same for the reason that they were not
only cousin brothers but were on good social terms.
73. Learned counsel has called upon the court to doubt the
testimony of PW-17 for the reason that he has failed to make
an entry in the register which was being made at the gate
even though he has stated that the deceased Sanjay was not
an employee of the school and the register ought to have
reflected his entry. Ms. Ritu Gauba, learned APP for the state
on the other hand has pointed out that it is in the deposition of
PW-1 that the register was being maintained only till 4 p.m.
74. We find that the deposition of PW15 - Shambhu Kumar to
the effect that the deceased had gone to visit Surinder and not
Ravinder, the appellant before us, was a material circumstance
which has completely escaped the notice of the learned Trial
Judge. We also find no discussion on the impact of the non-
examination of Surinder in the impugned judgment.
75. We also find that the learned trial Judge has heavily relied
on the statement of PW-17 that on that night, no other person
had come inside the school except the appellant and his cousin
Sanjay, the deceased. Unfortunately, this finding has
completely ignored the material factor that the school had
more than one entrances and PW-17 was deposing about the
position at only one of the three (or two) gates.
76. No evidence is forthcoming as to when or how Surinder
entered the school or reached room no.21 or the room
adjoining to it. There is also no explanation as to why, if
Surinder Mehto had actually given the statement attributed to
him by PW20 - Inspector Lakhwinder Singh, he was not joined
in any aspect of the investigation. It is an admitted position
that Surinder Mehto does not feature on any of the documents
including the recovery memos etc. effected by the police even
though his statement under Section 161 of the Cr.P.C. was
recorded and he was cited as a witness.
77. The prosecution has failed to prove that Surinder was not
in the school premises. On the contrary, it has been urged on
behalf of the prosecution before us that he was posted and
deputed as one of the guards at the school entry gates.
78. Mr. Aggarwal, learned counsel for the appellant has urged
that if the case as set up by the prosecution was accepted in
its totality, then the prosecution had attempted to prove the
fact that both Ravinder as well as Surinder were in the school
premises on the fateful night especially at the time of the
alleged crime. Learned counsel contended that if this was
accepted, the case of the prosecution itself suggests four
hypotheses : the first being the culpability of the present
appellant; the second being the possibility of Surinder being
the person guilty of the offence; the third being that Ravinder
and Surinder were together guilty of the crime or fourthly, that
there was another unidentified person who has not been
identified as being responsible for the occurrence. It has been
contended by learned counsel that given these four
possibilities, no conclusion can be reached that the appellant
was guilty of the commission of the offence beyond reasonable
doubt.
79. In support of this submission, learned counsel has placed
reliance on the pronouncement of the Supreme Court in AIR
1984 SC 1622 Sharad Birdhichand Sarda v. State of
Maharashtra which is the landmark pronouncement on the
manner in which a case of circumstantial evidence has to be
examined and the circumstances which a prosecution is
required to prove. The oft quoted principles laid down by the
Supreme Court deserve consideration and read as follows :-
"151. Before discussing the cases relied upon
by the High Court we would like to cite a few
decisions on the nature, character and
essential proof required in a criminal case
which rests on circumstantial evidence alone.
The most fundamental and basic decision of
this Court is Hanumant v. State of Madhya
Pradesh : 1953CriLJ129 . This case has been
Uniformly followed and applied by this Court
in a large number of later decisions up-to-
date, for instance, the cases of Tufail v. State
of Uttar Pradesh : (1969)3SCC198 and
Ramgopal v State of Maharashtra :
1972CriLJ473 . It may be useful to extract
what Mahajan, J. has laid down in Hanumant's
case (at pp. 345-46 of AIR) (supra):
It is well to remember that in cases where
tile evidence is of a circumstantial nature,
the circumstances from which the
conclusion of guilt is to be drawn should in
the first instance be fully established and
all the facts so established should be
consistent only with the hypothesis of the
guilt of the accused. Again, the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but
the one proposed to be proved. In other
words, there must be a chain of evidence
so far complete as not to leave any
reasonable ground for a conclusion
consistent with the innocence of the
accused and it must be such as to show
that within all human probability the act
must have been done by the accused."
80. So far as the submission of learned counsel for the
appellant pointing out the possibilities aforenoticed is
concerned, we find that in Sharad Birdhichand Sarda v.
State of Maharashtra (supra), the Supreme Court had laid
down the legal position thus:-
"162. We then pass on to another important point
which seems to have been completely missed by the
High Court. It is well settled that where on the evidence
two possibilities are available or open, one which goes
in favour of the prosecution and the other which
benefits an accused, the accused is undoubtedly
entitled to the benefit of doubt. In Kali Ram v. State of
Himachal Pradesh .: 1974CriLJ1, this Court made the
following observations:
Another golden thread which runs through the web
of the administration of justice in criminal cases is
that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view
which is favourable to the accused should be
adopted. This principle has a special relevance in
cases wherein the guilt of the accused is sought to
be established by circumstantial evidence."
81. In this background, even if the evidence brought on
record by the prosecution was accepted in totality, it is not
possible to hold that it permits more than one view, including
one suggesting that the appellant was innocent.
82. Undoubtedly, the manner in which a serious crime has
been executed can influence the court and impact the
outcome of the case. On this reality, in (2011) 3 SCC 109
State v. Mahender Singh Dahiya, the Supreme Court had
observed as follows :-
"24. We have examined the submissions made by the
learned Counsel for the parties, particularly keeping in
view the gruesome nature of the crime and the
complexities presented in the investigation, as also at
the trial of this particular case. Undoubtedly, this case
demonstrates the actions of a depraved soul. The
manner in which the crime has been committed in this
case, demonstrates the depths to which the human
spirit/soul can sink. But no matter how diabolical the
crime, the burden remains on the prosecution to prove
the guilt of the accused. Given the tendency of human
beings to become emotional and subjective when faced
with crimes of depravity, the Courts have to be extra
cautious not to be swayed by strong sentiments of
repulsion and disgust. It is in such cases that the Court
has to be on its guard and to ensure that the conclusion
reached by it are not influenced by emotion, but are
based on the evidence produced in the Court. Suspicion
no matter how strong can not, and should not be
permitted to, take the place of proof. therefore, in such
cases, the Courts are to ensure a cautious and balanced
appraisal of the intrinsic value of the evidence produced
in Court."
83. On the duty of the appellate court in AIR 2003 SC 4664,
Raj Kishore Jha v. State of Bihar & Ors., the court
observed as follows:-
"10. A bare perusal of the judgment of the High Court
shows that it has disposed of the appeal in a rather
casual manner. Most of the conclusions arrived at the by
the High Court are per se not on sound footing. The
appellate Court will not abjure its duty to prevent
miscarriage of justice by interfering where interference is
imperative. Where doubt is based on irrelevant grounds
or where the Court allows itself to be deflected by red
herrings drawn across the track, or where the evidence
accepted by the Trial Court is rejected by the High Court
after a perfunctory consideration or where the baneful
approach of the Court has resulted in vital and crucial
evidence being ignored or for any such adequate reason,
the Court should feel obliged to secure the ends of
justice, to appease the judicial conscience, as it were.
The High Court has noted that the names of witnesses do
not appear in the first information report. That by itself
cannot be a ground to doubt their evidence as noted by
this Court in Bhagwan Singh and Ors. v. State of M.P.:
2002CriLJ2024 , Chittar Lal v. State of Rajasthan :
2003CriLJ3548 and State of Madhya Pradesh v. Man Singh
and Ors. : 1993CriLJ3669 . There is no requirement of
mentioning the names of all witnesses in the first
information report. No reason has also been indicated by
the High Court as to why the evidence of PWs. 3, 8, 11,
12, and 15 was to be obliterated merely because they
were accused in the counter case. In a case of this
nature, when counter case has been registered, the Court
hearing the same has to scrutinize the evidence with
greater detail and even in such a situation the evidence
which is cogent, credible and trustworthy cannot be
totally wiped out because of the only circumstance that
they were accused in the counter case. Additionally, we
find that PWs. 3, 6 and 9 have not been merely described
in the first information to have taken the deceased to the
hospital, as observed by the High Court. A bare reading
of the first information report clearly shows that they
were described as eyewitnesses also. Here again, the
High Court has committed an error."
84. The fallibilities of the human mind and its temptation to
supply the gaps and omissions to solve crime were noticed and
in 2000 (55) DRJ 13 State vs. Shaqila & Ors., it has been
held as follows :-
"11. It is the cardinal principle of criminal justice that
fouler the crime, higher the proof required. A golden
thread which runs through the web of administration of
criminal justice is to the effect that if two views are
possible on the evidence adduced, one pointing to the
guilt of the accused and the other to his innocence, the
latter is to be adopted. This principle has a special
relevance in cases where the guilt of the accused is
sought to be established by circumstantial evidence.
Baron Alderson stated the following to the jury in Reg. v.
Hedge, (1838) 2 Law 227:
"The mind was apt to take a pleasure in adapting
circumstances to one another and even the
straining them a little, if need be, to force them to
form parts of one connected whole, and the more
ingenious the mind of the individual the more likely
was it, considering such matters, to overreach and
mislead itself, to supply some little link that is
wanting, to take for granted some fact consistent
with its previous theories and necessary to render
them complete." These observations were referred
to in Shankarlal v. State of Maharashtra'AIR 1981 SC
785: and inJaharlal Das v. State of Orissa, . Unlike
direct evidence, indirect circumstances which throw
light may vary from suspicion to certitude and care
must be taken to avoid subjective pitfalls of
exaggerating a conjecture into a conviction."
85. The evidence placed before the court in the present case
has to be examined keeping these cardinal principles at the
forefront.
86. It is trite that the gruesome manner in which the murder
was executed would not dilute the burden of proof or permit
this court to pronounce a judgment based on suspicion.
Challenge to disclosure and recoveries
87. Learned counsel for the appellant has challenged the
disclosure statements attributed to the appellant. It is urged
that Sections 25 and 26 of the Indian Evidence Act prohibit
proof and admissibility of any confessional statement made by
an accused while in custody of the police. It bars admissibility
of any statement attributed to an accused person and other
than such statement which leads to the discovery of a material
fact. It is urged that by virtue of Section 27 of the Indian
Evidence Act that only such part of the information received
from the accused is admissible in evidence provided that such
statement relates distinctly to the fact thereby discovered.
Learned counsel would contend that given the circumstances
alleged by the prosecution, it is apparent from the face of the
record that the police had first effected recoveries; then
arrested the appellant and only thereafter proceeded to
attribute a disclosure statement to him. It is urged that no fact
has been discovered pursuant to the statements attributed to
the appellant and that as such the statement attributed to the
appellant was completely inadmissible in evidence and could
not have been proved by the prosecution before the trial court.
88. Learned APP for the State on the other hand contended
that it was only pursuant to the disclosure statement made by
the appellant that the head of the deceased was recovered. It
is also urged that upon the disclosure statement made by the
appellant, the police recovered the weapons of offence; blood
stained clothes of the deceased as well as the blood stained
clothes of the appellant have been recovered. It is urged that
in these circumstances the disclosure statement was
admissible in evidence and that the same establishes beyond
doubt the culpability and guilt of the appellant.
89. For the purposes of examining this challenge laid down
by the appellant, it becomes necessary to examine the
sequence of these events as alleged by the prosecution.
90. The prosecution has sought to attribute a statement to
the appellant (Exh.PW1/A) as having been made on the 17th of
April, 2002. Learned counsel for the appellant has contended,
and rightfully so, that the entire statement could not have
been exhibitted by the learned Trial Court and that only the
portion which led to the recovery of a relevant fact could have
been exhibited. In view of the prohibition under Sections 24
and 25 of the Indian Evidence Act, the rest of the ExPW1/A has
to be discarded and cannot be looked at for any purpose in
order to support the conviction.
91. So far as the disclosure statement is concerned, the
prosecution has relied on the testimony of PW1 Prashant
Narula; PW18 SI Tara Chand; and PW20 Insp. Lakhwinder Singh
to support the same.
92. On the other hand, Mr. Aggarwal, learned counsel for the
appellant has disputed that the appellant made any
disclosures. It is urged that the evidence brought on record
clearly militates against any disclosures having been made by
the appellant or recoveries having been effected pursuant
thereto. In the alternative, it is urged that, even if the
disclosures were accepted, the same at best attribute
knowledge of the location of some of the articles recovered by
the police. It is urged that these articles in any case do not
suggest culpability of the appellant in the commission of the
offence.
93. So far as the recoveries are concerned, the prosecution
has claimed to have recovered the head of the deceased;
blood stained earth from the place where the body was lying;
blood stained flooring; blood stained floor tile; two vests with
dark brown stains; one underwear; a rough cloth piece
described as "pochha"; one metallic dau; and one knife. In
addition, the prosecution has led evidence of a cotton wool
swab having dark brown stains having been handed over by
PW-9 Dr. L.K.Baruah to the investigation team. Learned APP
has relied on certain statements attributed to the appellant as
disclosure statement made by him leading to the recovery of
above articles. To support the contention of the disclosure
statement coupled with these recoveries and the forensic
examination thereto, learned APP has placed reliance on the
forensic science report dated 25th October, 2002 (Exhibit PW-
20/A) to contend that human blood was identified on all these
articles.
94. It has been submitted that so far as the grouping of the
blood on the gauze cloth (Exh.18); powder material floor piece,
tile piece (marble) and the pochha is concerned, the laboratory
has identified AB blood group, whereas on the two vests, the
laboratory has identified B group blood. Learned APP submits
that the prosecution has therefore established that the blood
of the deceased belonged to the AB group which was found on
all the material recoveries effected at the instance of the
appellant.
95. We may first refer briefly to the deposition of the
witnesses who have been examined by the prosecution in
support of these recoveries. PW-1 Sh. Prashant Narula was the
first in time to reach the spot. It has come in his deposition
that the appellant was one amongst several staff members
who were interrogated by the police in the morning of 17 th
April, 2002. During the interrogation of the appellant, he was
removed by the police somewhere on a two wheeler scooter.
The investigating officer returned to the school with the
appellant after twenty minutes and informed the Additional
Commissioner of Police that the appellant had made a
confession. The witness has deposed that the appellant led
the police thereafter to a place on the second floor wherefrom
he had got the head of the deceased recovered from waste
paper which was removed by the police. We find that this
witness was declared hostile and cross examined by the
learned APP for the state. It was suggested to him that he
could not depose about facts on which he was cross examined
for the reason that he had forgotten the same. However, the
witness has reiterated his statement in the examination in
chief wherein he had also stated that the appellant had not
disclosed the identity of the deceased person. This witness
had also testified that the police had got recovered the weapon
of offence at the visits of the appellant from the terrace of the
Shiva Block of the School as well as a knife (Exh. P-2). So far
as the disclosure statement is concerned, the same was
exhibited as Exh.PW-1/9 and bore the signatures of this
witness.
96. When cross examined, the witness has stated that the
knife was not recovered either from the class room where
blood stains were found nor from the residence of the accused.
The witness had stated that the knife was not recovered in his
presence. The witness has further stated that the statement of
the appellant was not recorded by the police in his presence
nor the seizure memos of the various articles recorded in his
presence. The witness has also stated that the appellant had
not disclosed to the police in his presence that he could get
either the head recovered or the iron dau recovered in his
presence. The witness has stated that he did not read the
contents of the document which had been prepared by the
police on which his signatures appeared. So far as the
chronology of the events is concerned, the police has first
recovered the articles and then arrested the accused and
taken him to the police station and his disclosure statement
Exhibit PW-1/A recorded.
97. As per the prosecution, PW-2 Vijay Singh was also a
witness to the disclosure and the recoveries. This witness was
also declared hostile and cross examined by the prosecutor. In
his examination in chief, he had corroborated the discovery of
the headless body in the lane behind the school and blood
stains in the verandah on the second floor from the school.
Despite an incisive cross examination based on a previous
statement of the witness, he had maintained his stand that he
has been struck outside by the police and was not allowed to
enter the school building and that the proceedings were not
conducted in his presence. So far as the signatures of this
witness on Exhibit PW-1/A is concerned, PW-2 had admitted his
signatures but stated that his signatures on the disclosure
statement and recovery memos were obtained by the police
one or two days after the head was found. The witness has
also stated in his cross examination that his signatures had
been obtained on papers on which something was written but
he had not been permitted to go through the contents. Mr.
Aggarwal, learned counsel for the appellant has taken us
carefully through the testimony of the other persons who
according to the prosecution were present at the spot. In this
regard, our attention has been drawn to the testimony of PW-4
Ct. Ravinder Singh who has been examined as the police
photographer who has taken photographs of the headless
body. This witness has stated that he remained at the spot
from 10 a.m. to 2 p.m. The witness has stated that the
appellant has not given any statement pursuant whereto any
recoveries were effected in his presence and that he had also
not taken any photographs of any of the articles which
included the knife or the dau.
98. In this context, learned counsel for the appellant has
drawn attention to the statements of PW-13 SI Balram and PW-
14 Ct. Virender who, it is pointed out, have stated that they
were also present at the spot at all material time. PW-13 SI
Balram was the incharge of the mobile crime team. The
signatures of PW-13 and 14 are not to be found on any of the
recovery or seizure memos. PW-13 SI Balram has given a
report (Exh.PW-13/A) wherein also he makes no mention of
either any of disclosure statement or of any recoveries. We
also find that PW-20 Inspector Lakhwinder Singh has stated
that the dead body was lying at about three meters from the
wall of the school and some blood was visible on the school
wall. He has also deposed that on the gallery of the second
floor of the school, there was a trail of the blood which was
visible from a point marked in the site plan and went up to the
room no. 21 of the school. The police official had followed the
blood trail which led to the room no.21.
99. It is urged on behalf of the appellant that it was the case
of the prosecution that the blood trail led them to the scene of
the crime which spoke for itself and that no fact was
discovered pursuant to a disclosure.
100. At this stage, we may consider the judicial
pronouncements relied upon by Mr. Siddharth Aggarwal,
learned counsel for the appellant in support of his contention
that the information of the facts were already known to the
police and that nothing new was discovered pursuant to the
disclosure statement which was, therefore, completely
inadmissible. In support of these contentions, reliance has
been placed on the pronouncement of the Privy Council
reported at AIR 1947 PC 67 Pulukuri Kottaya & Ors. v.
Emperor and (1976) 1 SCC 828 Mohmed Inayatullah v.
State of Maharashtra.
101. In Pulukuri Kottaya (supra), the court authoritatively
laid down the judicial principles where the prosecution placed
reliance on Section 27 of the Indian Evidence Act to urge that
the statement attributed to an accused person was admissible
in evidence. The courts had authoritatively interpreted the
proviso to Section 27 which states that when any fact is
deposed to as discovered in consequence to information
received from a person accused of any offence in the custody
of a police officer so much of such information, whether it
amounts to confession or not, as relates distinctly to the fact
thereby discovered may be proved. Such portion of a
statement given by accused person which would be rendered
admissible in evidence. As far as proviso to Section 27 is
concerned, the court laid down the law thus :-
"10. ......On normal principles of construction their
Lordships think that the proviso to S.26, added by S.27,
should not be held to nullify the substance of the section.
In their Lordships‟ view it is fallacious to treat the "fact
discovered" within the section as equivalent to the object
produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the
accused as to this, and the information given must relate
distinctly to this fact. Information as to past user, or the
past history, of the object produced is not related to its
discovery in the setting in which it is discovered.
Information supplied by a person in custody that "I will
produce a knife concealed in the roof of my house" does
not lead to the discovery of a knife; knives were
discovered many years ago. It leads to the discovery of
the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to
have been used in the commission of the offence, the
fact discovered is very relevant. But if to the statement
the words be added "with which I stabbed A" these words
are inadmissible since they do not relate to the discovery
of the knife in the house of the informant."
102. The Privy Council had overturned the view taken by the
Madras High Court in the judgment reported at ILR (1937)
Madras 695 wherein the Madras High Court had held that any
information which served to connect the object recovered with
the offence charged was admissible under Section 27. On this
aspect in Pulukuri Kottaya (supra), it was held that:-
"11. Their Lordships are unable to accept this reasoning.
The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a
relevant fact can afford no justification for reading into
Section 27 soething whichis not there, and aditting in
evidence a confession barred by Section 26. Except in
cases in which the possession, or concealment, of an
object constitutes the gist of the offence charged, it can
seldom happen that information relating to the discovery
of a fact forms the foundation of the prosecution case. It
is only one link in the chain of proof, and the other links
must be forged in manner allowed by law."
103. We may usefully refer to the facts which were before the
Madras High Court in the judgment reported at ILR (1937)
Madras 695 (which have been noticed in para 11 of Pulukuri
Kottaya(supra). "In that case, the court had to deal with the
confession of murder made by a person in police custody and
the court admitted the confession because in the last sentence
(readily separable from the rest) there was an offer to produce
two bottles, a rope, and a cloth gag, which, according to the
confession had been used in, or were connected with, the
commission of the murder, and the objects were in fact
produced. The court was impressed with the consideration
that as the objects produced were not in themselves of an
incriminating nature their production would be irrelevant
unless they were shown to be connected with the murder, and
there was no evidence so to connect them apart from the
confession."
104. Before us as well in the present case, the prosecution has
thereon placed reliance on Exh.PW-1/A and the aforenoticed
testimony of PW-17 on the last seen together aspect, there is
no other evidence was led by the prosecution. Given the
principles of law laid down by the Privy Council which hold
good even today, clearly the contents of Exh.PW-1/A other
than the last sentence wherein the appellant has merely stated
that he could get articles recovered, was inadmissible even by
application of the proviso to Section 27 and cannot be looked
at for any purpose. This court is, therefore, duty bound to
discard the contents of Exh.PW-1/A except to the limited
extent that they attribute the statement to the appellant to the
effect that he could get the articles recovered.
105. We may also advert to the pronouncement of the
Supreme Court in (1976) 1 SCC 828 Mohmed Inayatullah
v. State of Maharashtra. In para 12, 13 and 16 of the
pronouncement, the court had laid down the following
essentials which would render a statement attributed to the
appellant as read inadmissible in evidence:-
"12. .......It will be seen that the first condition
necessary for bringing this section in to operation is the
discovery of a fact, albeit a relevant fact, in
consequence of the information received from a person
accused of an offence. The second is that the discovery
of such fact must be deposed to. The third is that at the
time of the receipt of the information the accused must
be in police custody. The last but the most important
condition is that only "so much of the information" as
relates distinctly to the fact thereby discovered is
admissible. The rest of the information has to be
excluded. The word "distinctly" means "directly",
indubitably" "strictly", "unmistakably". The word has
been advisedly used to limit and define the scope of the
proveable information. The phrase "distinctly" relates
"to the fact thereby discovered" (sic) (and?) is the
linchpin of the provision. This phrase refers to that part
of the information supplied by the accused which is the
direct and immediate cause of the discovery. The
reason behind this partial lifting of the ban against
confessions and statements made to the police, is that
if a fact is actually discovered in consequence of
information given by the accused, it affords some
guarantee of truth of that part, and that part only, of
the information which was the clear, immediate and
proximate cause of the discovery. No such guarantee or
assurance attaches to the rest of the statement which
may be indirectly or remotely related to the fact
discovered.
13. At one time it was held that the expression "fact
discovered" in the section is restricted to a physical or
material fact which can be perceived by the senses,
and that it does not include a mental fact see Sukhan v.
Crown AIR 1929 Lah 344; Gangu Chandra v. Emperor :
AIR 1932 Bom 286. Now it is fairly settled that the
expression "fact discovered" includes not only the
physical object produced, but also the place from which
it is produced and the knowledge of the accused as to
this see Palukuri Kotayya v. Emperor 74 Ind App 65
: AIR 1947 PC 67 : Udai Bhan v. State of Uttar
Pradesh AIR 1962 SC 1118.
xxx
I6. After culling out and rejecting the inadmissible
portion, it was to be considered further whether the
admissible portion of the information taken in
conjunction with the facts discovered was sufficient to
draw the presumption that the accused was the thief or
receiver of stolen property knowing it to be stolen. The
answer to this question, in the circumstances of the
case, had to be in the negative. The drums in question
were found in the compound or yard of a Musafirkhana
which was a place of rest and waiting for Musafirs
(travellers). It was not alleged by the prosecution -
much less proved - that the drums were lying
concealed, or that the compound was under the lock
and key of the accused. There is not even an oblique
hint that the place of the deposit of the drums was in
any way under the control or occupation of the
accused. The place being a Musafirkhana, was from its
very nature accessible to all and sundry."
The recoveries made in the instant case have to be
examined in the light of these well settled principles and may
be considered in seriatum.
106. We may firstly examine the recovery of the head of the
deceased person. In this regard, we have been carefully taken
through the record of the case. There is no contemporaneous
seizure memo of this recovery. The recovery has been
effected from some garbage (waste paper) lying in the open in
the school premises near some stairs. As noticed above PW-1
Prashant Narula has deposed that the accused has not stated
in his presence that he could get the head recovered. Even if,
this recovery was held to be a piece of evidence against the
accused person, then at best, it is evidence only of the fact
that the appellant had knowledge of the place where the head
was lying. The prosecution would still have to place other
evidence to attach culpability of the appellant with the offence
of the murder.
107. We may next examine the dau and the knife which have
been allegedly recovered at the instance of the appellant and
have been put forth by the prosecution as the weapons of the
offence. The dau was recovered underneath the beam affixed
on the roof which was again in an open place.
108. The Forensic Science Laboratory report (Exh.PW-20/A)
has opined that there was no blood on the dau. There is no
evidence available that the dau had been cleaned or washed.
This dau (Exh.16) was not even sent to the doctor who has
conducted the post mortem for an opinion as to whether it was
the weapon of the offence. In his cross examination, PW-9 has
said that the injuries were possible with the dau. The
prosecution has failed to carry out any scientific investigation
on the dau and has not examined the same for any fingerprints
etc. In view of this evidence, it cannot be at all be conclusively
held that this particular dau was the weapon of offence in the
instant case.
109. So far as the knife (Exh.17) which has been claimed to
have been recovered from a vegetable basket in the room
adjacent to room no.21 is concerned, again the forensic
examination thereof has found no blood on the same. Again
there is no evidence at all to connect the knife to the murder of
the deceased. Interestingly, the prosecution case that the dau
and knife had blood stains on it has not been supported by the
forensic examination. It is not possible to connect the dau or
the knife to the offence.
110. The prosecution has strongly relied on the recovery of
two vests (Exh. 12 & 13) and one underwear (Exh. 14) being
blood stained from the room adjacent to room no.21.
As noticed above, the two vests had blood of B group
thereon whereas no blood was found on the underwear.
111. We have noticed above that the blood of the deceased
was of AB grouping. There is no evidence to explain the B
group blood on the two vests which were allegedly recovered.
112. The prosecution has also claimed to have recovered a
pant, shirt and a half-pant belonging to the deceased vide
Exh.PW-14/F. A perusal thereof would show that so far as the
pant and shirt are concerned, Exh.PW-18/F records that they
have been recovered from inside a suitcase in the residential
room of the appellant. The half-pant was allegedly found
hanging from a peepal tree. It is important to note that these
articles were not having any blood stains. We also find that
there is nothing to connect these clothes with the deceased.
His brother PW-15 Shambu Mehto has not identified these
clothes as belonging to the deceased. These recoveries are
therefore, completely irrelevant and of no assistance to the
case of the prosecution against the appellant.
In this background, learned APP has conceded that there
was no evidence to connect these items of clothing to the
deceased.
113. We may also notice the alternate arguments advanced by
learned counsel for the appellant that it was the prosecution‟s
case that the appellant and the deceased were close relatives
and that the deceased was often visiting the appellant and his
brother. It is urged that for this reason as well, there was
nothing unusual or suspicious even if these clothes were held
to be those of the deceased.
114. We may now examine the recovery of the pochha (mop)
by the memo Exh.PW-18/E from a tin roof on the terrace. This
recovery has been challenged by learned counsel for the
appellant on the ground that the same has been effected from
a place open to everybody. It is urged that the recovery of
these articles have been planted on the appellant inasmuch as
the same is not even reflected on the site plan without scale
(Exh. PW18/E) and the scaled site plan (Exh. PW-5/A). It has
been vehemently urged that the police had available the trail
of blood and other blood stains. It has been argued that if the
appellant was guilty of commission of the offence, he had
adequate opportunity when he went on the school bus in the
morning of 17th April, 2002 to dispose off the evidence. It has
been urged that the mop (pochha) is used for cleaning and is
an article which would be normally found in the school
premises. The argument is therefore that recovery thereof
would not lead to any inference of the culpability of the
appellant for the commission of the offence under Section 302
of the IPC and that in case it was held that this recovery was
actually effected, the appellant could at best be alleged to
have committed an offence under Section 201 of the IPC.
115. The prosecution has proved on record the site plan
without scale (Ex.PW18/B) as well as scale site plan (Ex.PW5/A)
on record. Even though the same is hopelessly incomplete so
far as the situs of the offences as well as the locations of the
room or the places wherefrom the claimed recoveries have
been effected, however we find that the site plan clearly
reflects the place from which the headless body of the
deceased was recovered. Both exhibits Ex.PW5/A as well as
Ex.PW18/B shows that the body was found lying in the open
lane near the boundary wall. Two gates of the school, one in
the immediate vicinity of the body are also shown. The site
plan also shows the positioning of the electricity poll. Both
these gates were manned by Chowkidars of the school at the
time when the body is stated to have been thrown from the
second floor.
116. It has been vehemently urged by learned APP for the
State that the incident took place in the dead of the night in
the empty school.
117. The incident has occurred in the summer months on 16th
April, 2002 when the guards would not be expected to be
under a cover and there is greater possibility of their being in
the open. It needs no elaboration that even a small object if
thrown from the second floor of a building would make an
audible sound when it hit the ground. The extensive
movement attributed to the appellant moving the body in the
building as per the case of the prosecution certainly would
have attracted attention. Even if it did not, certainly the noise
which would be generated upon the impact of human body
upon being thrown from the second floor would be loud and
audible especially in the dead of the night in the empty
building. The electricity pole would have lit up the area and the
guards would have noticed the dead body. The public lane
where the body was found between the two school gates which
are placed in the walls at right angles, is clear and
unobstructed. Yet, there is no evidence of the body falling on
the ground from the second floor, other than the suggestions
by the police witnesses.
118. In these circumstances, the case of the prosecution is
that the body was discovered only on the next morning of 17th
April, 2002. The incident went completely unnoticed by PW-11
Rohtas Saroha who was on duty or PW 17 Dharm Raj Yadav is
strange and suspicious.
119. So far as the situs of the recoveries and the trail of blood
is concerned, we find that the prosecution has proved Exhibit
PW-18/B on record purporting to be a rough sketch plan
prepared contemporaneously with the recoveries and seizures
effected on 17th April, 2002. Exhibit PW-18/B does not reflect
any trail of blood, blood stains or the location any of the
recoveries.
120. The prosecution has placed reliance on a scaled sketch
plan (Exhibit PW-5/A) prepared by PW-8 SI Madan Pal, four
months thereafter on 21st June, 2002 on the pointing out of
Insp. Lakhwinder Singh.
121. Learned counsel has strongly contested the blood
grouping of the appellant as well. It has been urged that the
malkhana register does not contain any entry of a blood
sample of the deceased. Our attention is drawn to the
testimony of PW-6 Ct. Surinder to this effect and further that
the blood samples were not sent to the laboratory.
122. Ms. Ritu Gauba, learned APP has submitted that the
statement of PW-1 and 2 and the challenge to the disclosures
and the recovery memos has to be rejected. Placing reliance
on the pronouncement in (2011) 10 SCC 675 Gajraj v. State
(NCT of Delhi), it has been urged by Ms. Ritu Gauba that a
formal arrest of an accused person is not necessary for
applicability of the proviso to Section 27 of the Indian Evidence
Act. Our attention is also drawn to the pronouncement of the
Supreme Court reported at (2010) 3 SCC 56 Vikram Singh
& Ors. v. State of Punjab in support of this aforenoticed
contention.
123. In Gajraj v. State of NCT of Delhi (supra), the
witnesses had denied signing the recovery memo and had
asserted that their signatures were taken on blank papers
which were used in preparing the recovery memo. This is not
so in the present case. Before us the witnesses have stated
that they had signed papers with writing on them but they
have disputed knowledge of the contents thereof.
124. Our attention has been drawn to para 16 of the impugned
judgment wherein the trial court has dealt with this aspect and
has accepted the prosecution case holding that PW-1 was the
principal of a school and could not have been forced to sign
any document. An examination of the deposition of PW-1
would show that he has not stated that he was forced to sign
any document. The witnesses have said that they have affixed
signatures at a subsequent day on papers prepared by the
police. This testimony is reinforced by the testimony of the
several other police personnel who were present at the spot at
all relevant time who do not refer to the preparation of any
documents by the police while at the school on the eventful
day which includes PW-13 SI Balwant who was the incharge of
the mobile crime team. The failure to lodge a complaint would
show lack of interest or involvement with the investigation by
the police on the part of the public witnesses.
125. It is trite that disclosure statements and recoveries made
prior to formal arrest, would be admissible in evidence
provided they satisfied the well settled principles which would
render the proviso to Section 27 of the Evidence Act
applicable.
126. The learned trial court has erred in discussing that PW-1
was a principal of a school and could not have been forced to
sign any document. Such position has not been stated by the
witness. He has only stated that he signed on documents
which had already been prepared by the police. The above
discussion would show that even if the recoveries of the head
of the deceased or the other articles were believed to be based
on disclosures made by the appellant, however, the same
would only indicate that the appellant had knowledge of the
place where they were to be found which by itself would not be
sufficient to find him guilty of the offence of murder. The
learned trial court has placed strong reliance on the statement
attributed to the appellant under Section 313 of the CrPC. We
have strong doubts that it is legally permissible or, appropriate
in the present case to draw a presumption that the recovery of
the aforenoticed exhibits at the instance of the appellant led to
the inevitable and only presumption that the appellant was
responsible for the murder. We also find that the learned trial
judge has erred in noting that there is no evidence to show
that the articles had been concealed by the appellant, on the
previous night or otherwise as has been found by the learned
trial judge.
127. In the same discussion, we find that the learned trial
judge has erred in holding that the dau and the knife were the
weapons of offence. The above discussion would show that
there is no evidence at all to connect either of the two to the
incident. Even though, there is no evidence on record that the
accused person had washed the recovered weapons, the
learned trial judge has concluded that the appellant had
washed the weapon of offence thoroughly with water before
hiding them. The reliance placed on the statement of PW-9 Dr.
Baruah and the observation that the injuries on the deceased
could have been caused by the dau is not the same thing as
saying that the dau was the weapon of offence. We, therefore,
find that the findings and conclusions drawn by the learned
trial judge are contrary to record.
Lack of motive
128. Learned counsel for the appellant has submitted that
motive is an important circumstance in a case resting on
circumstantial evidence.
129. Our attention has been drawn to the testimony of PW-15
Shambu wherein he has deposed that his brother (the
deceased) used to visit Palam to meet Surinder, brother of the
appellant where they were both living together. In this regard,
PW-11 Rohtas Saroha also stated that Sanjay, the deceased
was a relative of the appellant who used to come with him to
the school. He has specifically stated that the relations of the
appellant and the deceased were good. In this background,
there is no evidence of any motive on the part of the appellant
to have caused the murder of the deceased.
130. Learned counsel for the appellant has placed reliance on
the pronouncement of the Supreme Court reported at (2011)
3 SCC 109 State vs. Mahenmder Singh Dahiya in support
of this submission.
131. Learned APP for the state on the other hand has
submitted that failure to prove motive is not fatal to the
prosecution at all and has heavily relied on the pronouncement
of the Supreme Court reported at (2012) 1 SCC (Cri) 624
Amitava Banerjee Alias Amit Alias Bappa Banerjee vs.
State of West Bengal.
132. It is trite that absence of a motive may not necessarily be
fatal to the prosecution. On this aspect, in para 29 of State
vs. Mahender Singh Dahiya (supra), the Supreme Court
has observed as follows :-
"29. In assessing the evidence, the High Court was
aware of the legal principles that absence of motive
may not necessarily be fatal to the prosecution. Where
the case of the prosecution has been proved beyond
reasonable doubt on the basis of the material produced
before the Court, the motive loses its significance. But
in cases based on circumstantial evidence, motive for
committing the crime assumes great importance. In
such circumstances, absence of motive would put the
Court on its guard to scrutinize the evidence very
closely to ensure that suspicion, emotion or conjecture
do not take the place of proof (See Surinder Pal
Jain v. Delhi Administration : 1993 Supp (3) SCC 681
and Tarseem Kumar v. Delhi Administration : 1994
Supp (3) SCC 367).
30. We may also notice here the observations
in Subedar Tewari v. State of U.P. : 1989 Supp (1)
SCC 91 wherein it has been observed that -
"20. ......The evidence regarding existence of
motive which operates in the mind of an assassin is
very often than (sic) not within the reach of others.
The motive may not even be known to the victim of
the crime. The motive may be known to the
assassin and no one else may know what gave birth
to the evil thought in the mind of the assassin."
31. Again reiterating the role played by motive in
deciding as to whether the prosecution has proved the
case beyond reasonable doubt against an accused, this
Court in the case of Suresh Chandra Bahari v. State of
Bihar : 1995 Supp (1) SCC 80 held as under:
"21. ........Sometimes motive plays an important
role and become a compelling force to commit a
crime and therefore motive behind the crime is a
relevant factor for which evidence may be adduced.
A motive is something which prompts a person to
form an opinion or intention to do certain illegal act
or even a legal act with illegal means with a view to
achieve that intention. In a case where there is
motive, it affords added support to the finding of
the Court that the accused was guilty for the
offence charged with. But the evidence bearing on
the guilt of the accused nonetheless becomes
untrustworthy or unreliable because most often it is
only the perpetrator of the crime alone who knows
as to what circumstances prompted him to adopt a
certain course of action leading to the commission
of the crime."
133. So far as the pronouncement of the Supreme Court
reported at (2011) 12 SCC 554 : (2012) 1 SCC (Cri.) 624
Amitava Banerjee Alias Amit Alias Bappa Banerjee v.
State of West Bengal is concerned, the court had reiterated
the above well settled principles and held that absence of
motive in a case depending entirely on circumstantial evidence
is a factor that shall no doubt weigh in favour of the accused,
but what courts need to remember is that motive is a matter
which is primarily known to accused and which prosecution
may at times find difficult to explain or establish by
substantive evidence. In para 42, the court held as follows :-
"42. Absence of motive in a case depending entirely on
circumstantial evidence is a factor that shall no doubt
weigh in favour of the accused, but what the Courts need
to remember is that motive is a matter which is primarily
known to the accused and which the prosecution may at
times find difficult to explain or establish by substantive
evidence."
134. In para 41, the court had observed that "absence of a
motive for commission of an offence results in that the court
shall have to be more careful and circumstance in scrutinizing
the evidence to ensure that suspicion does not take the steps
of proving while finding the accused guilty". Before us, it is
not disputed that motive has not been established by any
legally admissible evidence. The evidence led by the
prosecution has to be examined in the light of the above well
settled principles.
Opportunity to cross examine
135. We may now examine the objections urged by Mr.
Siddharth Aggarwal, learned counsel for the appellant which as
per counsel go to the root of the fairness of the trial. It has
been urged that the case was pending before the New Delhi
District Courts at the Patiala House courts where the appellant
was represented by Sh. Gautam, Advocate who had his
chambers in Chamber no.35, Supreme Court as per the
vakalatnama filed on the trial court record. It is pointed out
that on 23rd September, 2008, the case was transferred to the
district courts at Dwarka at a stage when the examination in
chief of PW-20 Inspector Lakhwinder Singh was being
recorded.
136. The case was received before the learned Addl. Sessions
Judge at the Dwarka courts on 17th November, 2008 and was
adjourned to 27th November, 2008 for recording of evidence.
There was no representation by a counsel on behalf of the
appellant on 27th November, 2008; 3rd December, 2008 as well
as 12th January, 2009. The witness had also not appeared on
any of these dates. The record of the trial court shows that on
22nd January, 2009, the trial court recorded the remaining
examination in chief of PW-20 Insp. Lakhwinder Singh in the
presence of the appellant. The court called upon the accused
to cross examine the witness. The order dated 22 nd January,
2009 reflects that the appellant had stated that the
"opportunity of the cross examination may be closed as his
counsel is not appearing and he does not want to wait for his
counsel". As per the order sheet at the request of the
accused, opportunity to cross examine is closed. The court
gave liberty to the appellant to move an application for cross
examination of this witness before the next date of hearing
which was fixed for 10th February, 2009.
137. On 10th January, 2009, the appellant was again not
represented by a counsel. The court, however, proceeded to
record the statement of the appellant under Section 313 of the
CrPC as well as his statement that he did not wish to lead any
defence evidence. The case was directed to be listed on 6th
March, 2009 for final arguments.
138. On 6th March, 2009, the court adjourned the matter on
the ground that counsel for the appellant was not available.
Only thereafter on 23rd March, 2009 Mr. Surat Singh was
appointed as an amicus curiae to represent the accused. The
case was adjourned by only a day to 25th March, 2009 when
even Mr. Surat Singh, amicus curiae did not put in appearance.
The case was adjourned to 28th March, 2009 for final
arguments. Arguments were heard on 28th March, 2009 and
the matter was posted for 10th April, 2009 for pronouncement.
139. Learned counsel for the appellant has contended that the
investigating officer was a material witness on behalf of the
prosecution so far as all aspects of investigation which
included the recording of the disclosure statement; recoveries;
forensic examination are concerned. It is submitted that after
transfer of the case, the court ought to have ensured that the
appellant was represented by a counsel of his choice especially
in any regard to the seriousness of the offence with which he
was charged, which could have resulted in even the imposition
of capital punishment. It is contended that the denial of
opportunity to cross examine PW-20 has caused extreme
prejudice to the appellant.
140. Mr. Aggarwal has urged at length that the appellant is a
poor illiterate person who as per the prosecution was working
as a bus helper in school bus. The appellant could not be
expected to know the impact of the failure to cross examine a
witness. As a result, the unchallenged testimony of PW-20
Inspector Lakhwinder Singh relied upon by the court against
the appellant in a murder trial. It is urged that given the
transfer of the case from the Patiala House courts to Dwarka,
the court ought to have examined the record and ensured
legal assistance to the appellant so that he could have cross
examined the material witness on behalf of the prosecution in
this case of which completely rests on the alleged disclosures
and recoveries.
141. In this regard, learned counsel has contended that the
closure of the opportunity to cross examine on record by the
court on 22nd January, 2009 was not in exercise of an informed
option of a person who was conversant either with the impact
thereof or with his rights and therefore deserves to be
disregarded. It is urged that in a criminal trial where the
accused is in judicial custody, a solemn responsibility rests on
the court to ensure that the rights of the defence are
adequately protected.
142. Ms. Ritu Gauba, learned APP for the state has contended
at great length that the procedure followed by the learned trial
judge cannot be faulted and that the court had adequately
secured the rights of the appellant when opportunity was given
to the appellant to move an application for cross examination
of the witness. Placing reliance on the pronouncement of the
Supreme Court reported at (2010) 2 SCC (Cri) 500 Jayendra
Vishnu Thakur v. State of Maharashtra & Ors., it is urged
that the right to cross examination is a statutory right and as in
the instant case, it can be waived. It is urged that the
appellant had made a statement that he did not wish to wait
for his counsel and that therefore, the cross examination of the
witness may be closed. In this regard, it is urged that the
closure of the cross examination on the refusal of the appellant
to conduct the same was fair and justified. Reliance has been
placed by Ms. Gauba on the pronouncement of the Supreme
Court reported at AIR 2002 SC 3552 Sarwan Singh v. State
of Punjab in this regard.
143. Learned APP has vehemently contended that given the
failure of the appellant to cross examine the witness in the
light of the principles laid down in AIR 1961 Calcutta 359,
A.E.G. Carapiet v. A.Y. Derderian, the unchallenged
testimony of the witness has to be accepted.
144. Before dealing with the contentions of learned counsel for
the appellant, reference may usefully be made to the
pronouncement in Jayendra Vishnu Thakur (supra). We
find that in para 24 of the pronouncement, the court has
observed on the right of an accused person to cross examine a
witness as follows: -
"24. A right to cross-examine a witness, apart from
being a natural right is a statutory right. Section
137 of the Evidence Act provides for examination-
in-chief, cross-examination and re-examination.
Section 138 of the Evidence Act confers a right on
the adverse party to cross-examine a witness who
had been examined in chief, subject of course to
expression of his desire to the said effect. But
indisputably such an opportunity is to be granted.
An accused has not only a valuable right to
represent himself he has also the right to be
informed thereabout. If an exception is to be carved
out, the statute must say so expressly or the same
must be capable of being inferred by necessary
implication. There are statutes like the Extradition
Act, 1962 which excludes taking of evidence vis-à-
vis opinion. (See Sarabjit Rick Singh v. Union of
India, (2008) 2 SCC 417)."
The importance of the right of a meaningful opportunity
to cross examine a witness as well as grant of an opportunity
to do so cannot be sufficiently emphasized.
145. The observations of the Supreme Court in paras 55 to 58
of Jayendra Vishnu Thakur (supra) also shed valuable light
on the importance of the cross examination and the prejudice
which a party may suffer on account of breach of the said right
and deserve to be considered in extenso. It was observed
thus: -
"55. This Court in Kartar Singh v. State of Punjab,
(1994) 3 SCC 569 : 1994 SCC (Cri) 899 has held:
(SCC p. 686, para 278):
"278. ...It is the jurisprudence of law that cross-
examination is an acid-test of the truthfulness of
the statement made by a witness on oath in
examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary
value of the witness of his adversary;
(2) to elicit facts in favour of the cross-
examining lawyer's client from the mouth of
the witness of the adversary party;
(3) to show that the witness is unworthy of
belief by impeaching the credit of the said
witness;
and the questions to be addressed in the
course of cross-examination are to test his
veracity; to discover who he is and what is
his position in life; and to shake his credit by
injuring his character.
[See also Cholan Roadways Ltd. v. G.
Thirugnanasambandam, (2005) 3 SCC 241 : 2005
SCC (L&S) 395.
56. In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai
Patel, (2008) 4 SCC 649, this Court observed: (SCC p.
663, para 32)
"32. The provisions contained in Section 82 of the
Code of Criminal Procedure were put on the statute
book for certain purpose. It was enacted to secure
the presence of the accused. Once the said purpose
is achieved, the attachment shall be withdrawn.
Even the property which was attached, should be
restored. The provisions of the Code of Criminal
Procedure do not warrant sale of the property
despite the fact that the absconding accused had
surrendered and obtained bail. Once he surrenders
before the court and the standing warrants are
cancelled, he is no longer an absconder. The
purpose of attaching the property comes to an end.
It is to be released subject to the provisions of the
Code. Securing the attendance of an absconding
accused, is a matter between the State and the
accused. The complainant should not ordinarily
derive any benefit therefrom. If the property is to be
sold, it vests with the State subject to any order
passed under Section 85of the Code. It cannot be a
subject-matter of execution of a decree, far less for
executing the decree of a third party, who had no
right, title or interest thereon."
57. Mr. Nafade would submit that the appellant did
not suffer any prejudice. We do not agree. Infringement
of such a valuable right itself causes prejudice. In S.L.
Kapoor v. Jagmohan : [1981]1SCR746 , this Court
clearly held:
"24. ........In our view the principles of natural
justice know of no exclusionary rule dependent on
whether it would have made any difference if
natural justice had been observed. The non-
observance of natural justice is itself prejudice to
any man and proof of prejudice independently of
proof of denial of natural justice is unnecessary. It ill
comes from a person who has denied justice that
the person who has been denied justice is not
prejudiced."
58. In A.R.Antulay v. R.S.Nayak and Anr.
1988CriLJ1661 a seven Judge Bench of this Court has
also held that when an order has been passed in
violation of a fundamental right or in breach of the
principles of natural justice, the same would be nullity.
{See also State of Haryana v. State of Punjab :
(2004)12SCC673 and Rajasthan State Road Transport
Corporation and Ors. v. Zakir Hussain, (200) 7 SCC 447:
200 SCC (L&S) 945."
146. We may also refer to the impact of failure to cross
examine a witness at this stage. On this issue, the judgment
of the Division Bench of the Calcutta High Court in para 10 of
A.E.G. Carapiet v. A.Y. Derderian (supra) stated the
principles as follows :-
"10. The law is clear on the subject. Wherever the
opponent has declined to avail himself of the opportunity
to put his essential and material case in cross-
examination, it must follow that he believed that the
testimony given could not be disputed at all. It is wrong
to think that this is merely a technical rule of evidence. It
is a rule of essential justice. It serves to prevent surprise
at trial and miscarriage of justice, because it gives notice
to the other side of the actual case that is going to be
made when the turn of the party on whose behalf the
cross-examination is being made comes to give and lead
evidence by producing witnesses. It has been stated on
high authority of the House of Lords that this much a
counsel is bound to do when cross-examining that he
must put to each of his opponent's witnesses in turn, so
much of his own case as concerns that particular witness
or in which that witness had any share. If he asks no
question with regard to this, then he must be taken to
accept the plaintiff's account in its entirety. Such failure
leads to miscarriage of justice, first by springing surprise
upon the party when he has finished the evidence of his
witnesses and when he has no further chance to meet
the new case made which was never put and secondly,
because such subsequent testimony has no chance of
being tested and corroborated."
147. The above judicial pronouncements relied upon by the
prosecution before us amply establish the importance of an
opportunity to effectively cross examine a witness.
148. Learned APP has vehemently urged that given the
opportunity to the appellant to cross examine the witness on
22nd January, 2009 and his refusal to do so, he cannot object to
the failure to grant this opportunity in view of the principles
laid down by the Supreme Court in AIR 2002 SC 3652,
Sarwan Singh v. State of Punjab. In this case, the court
had reiterated the well settled rule of essentialities that
whenever the opponent had declined to avail himself of the
opportunity to put his case in cross-examination, it must follow
that the evidence tendered on that issue ought to be accepted.
149. Before opining on the objection urged by learned counsel
for the appellant, it is essential to deal with the scope of the
constitutional protection and the reasons for as well as the
entitlement of an accused person to legal assistance. The
same does not emanate from any statutory provision but the
protection given to an accused is of the higher order and has
to be found in the right of the appellant under Article 21 of the
Constitution of India. The principles on which the lack of
adequate legal assistance has to be decided were settled by
the Supreme Court in the landmark pronouncement reported
at (1978) 3 SCC 544 Madhav Hayawadanrao Hoskot v.
State of Maharashtra. The court had considered the
expression „procedure established by law‟ as appears in article
21 of the Constitution of India and observed as follows :-
"11. One component of fair procedure is natural justice.
Generally speaking and subject to just exceptions, at
least a single right of appeal on facts, where criminal
conviction is fraught with long loss of liberty is basic to
civilised jurisprudence. It is integral to fair procedure,
natural justice and normative universality save in
special cases like the original tribunal being a high
bench sitting on a collegiate basis. In short, a first
appeal from the Sessions Court to the High Court, as
provided in the Criminal Procedure Code, manifests this
value upheld in Article 21.
12. What follows from the appellate imperative ? Every
step that makes the right of appeal fruitful is obligatory
and every action or inaction which stultifies it is unfair
and, ergo, unconstitutional (In a sense, even
Article 19 may join hands with Article 21, as the Maneka
Gandhi reasoning discloses). Pertinent to the point
before us are two requirements : (1) service of a copy
of the judgment to the prisoner in time to file an appeal
and (ii) provision of free legal services to a prisoner who
is indigent or otherwise disabled from securing legal
assistance where the ends of justice call for such
service. Both these are State responsibilities under
Article 21. Where the procedural law provides for
further appeals what we have said regarding first
appeals will similarly apply.
xxx
14. The other ingredient of fair procedure to a prisoner,
who has to seek his liberation through the court process
is lawyer's services. Judicial justice, with procedural
intricacies, legal submissions and critical examination of
evidence, leans upon professional expertise; and a
failure of equal justice under the law is on the cards
where such supportive skill is absent for one side. Our
judicature, moulded by Anglo-American models and our
judicial process, engineered by kindred legal
technology, compel the collaboration of lawyer-power
for steering the wheels of equal justice under the law.
Free legal services to the needy is part of the English
criminal justice system. And the American jurist, Prof.
Vance of Yale, sounded sense for India too when he
said:
What does it profit a poor and ignorant man that he
is equal to his strong antagonist before the law if
there is no one to inform him what the law is ? Or
that the courts are open to him on the same terms
as to all other persons when he has not the
wherewithal to pay the admission fee ?
15. Gideon's trumpet has been heard across the
Atlantic. Black, J. there observed Processual Justice to
the People (May, 1973) p. 69 :
Not only those precedents but also reason and
reflection require us to recognise that in our
adversary system of criminal justice, any person
haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious
truth. Governments, both State and Federal, quite
properly spend vast sums of money to establish
machinery to try defendants accused of crime.
Lawyers to prosecute are everywhere deemed
essential to protect the public's interest in an
orderly society. Similarly, there are few defendants
charged with crime who fail to hire the best lawyers
they can get to prepare and present their defences.
That government hires lawyers to prosecute and
defendants who have the money hire lawyers to
defend are the strongest indications of the
widespread belief that lawyers in criminal courts are
necessities, not luxuries. The right of one charged
with crime to counsel may not be deemed
fundamental and essential to fair trials in some
countries, but is in ours. From the very beginning,
our state and national constitutions and laws have
laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands
equal before the law. This noble idea cannot be
realised if the poor man charged with crime has to
face his accusers without a lawyer to assist him."
In paras 15 and 16, the court has emphasized that
lawyers in criminal courts are necessities and not luxuries and
that any person who has been hailed into court has to hire a
lawyer and cannot be assured a fair trial unless is provided
with the same. The same is necessary for making the
machinery of justice effective so that every citizen shall
believe in a benefit of its impartiality and fairness.
150. In para 17, the Supreme Court has quoted from the
pronouncement of Douglas, J in Jon Richard Argersinger v.
Raymond Hamtin, 407 US 25: 32 L Ed 2d 530 at 535-36
and 554 observing as follows :-
"17. More recently, the U.S. Supreme Court, in
Raymond Hamlin has extended this processual facet of
Poverty Jurisprudence. Douglas, J. there explicated :
The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and
educated layman has small and sometimes no
skill in the science of law. If charged with
crime, he is incapable, generally, of
determining for himself whether the
indictment is good or bad. He is unfamiliar
with the rules of evidence. Left without the
aid of counsel he may be put on trial without
a proper charge, and convicted upon
incompetent evidence, or evidence
irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and
knowledge adequately to prepare his
defense, even though he have a perfect one.
He requires the guiding hand of counsel at
every step in the proceedings against him.
Without it, though he be not guilty, he faces
the danger of conviction because he does
not know how to establish his innocence. If
that be true of men of intelligence, how
much more true is it of the ignorant and
illiterate or those of feeble intellect.
The right of one charged with crime to
counsel may not be deemed fundamental
and essential to fair trials in some countries,
but it is in ours. From the very beginning,
our state and national constitutions and
laws have laid great emphasis on procedural
and substantive safeguards designed to
assure fair trials before impartial tribunals
in which every defendant stands equal
before the law. This noble ideal cannot be
realized if the poor man charged with crime has to
face his accusers without a lawyer to assist
him. 372 US 344: 9 L Ed 2d 805: 93 ALR 2d 733.
Both Powell and Gideon involved felonies. But
their rationale has relevance to any criminal trial,
where an accused is deprived of his liberty.
The court should consider the probable sentence
that will follow if a conviction is obtained. The
more serious the likely consequences, the
greater is the probability that a lawyer should be
appointed.... The court should consider the
individual factors peculiar to each case. These, of
course, would be the most difficult to anticipate.
One relevant factor would be the competency of
the individual defendant to present his own case.
(Jon Richard Argersinger v. Raymond Hamlin (407 US
25 :32L Ed 2d 530)
(Emphasis supplied)"
151. After this detailed discussion, in para 18 and 25, so far as
the Indian context is concerned, the court ruled as follows: -
"18. ..............The Indian socio-legal milieu makes free
legal service, at trial and higher levels, an imperative
processual piece of criminal justice where deprivation of
life or personal liberty hangs in the judicial balance.
xxx
25. If a prisoner sentenced to imprisonment, is
virtually unable to exercise his constitutional and
statutory right of appeal, inclusive of special leave to
appeal, for want of legal assistance, there is implicit in
the Court under Article 142, read with Articles 21,
and 39A of the Constitution, power to assign counsel for
such imprisoned individual for doing complete justice.
This is a necessary incident of the right of appeal
conferred by the Code and allowed by Article 136 of the
Constitution. The inference is inevitable that this is a
State's duty and not government's charity. Equally
affirmative is the implication that while legal services
must be free to the beneficiary, the lawyer himself has
to be reasonably remunerated for his services. Surely,
the profession has a public commitment to the people
but mere philanthropy of its members yields short
mileage in the long run. Their services, especially when
they are on behalf of the State, must be paid for.
Naturally, the State concerned must pay a reasonable
sum that the court may fix when assigning counsel to
the prisoner. Of course, the court may judge the
situation and consider from all angles whether it is
necessary for the ends of justice to make available legal
aid in the particular case. In every country where free
legal services are given it is not done in all cases but
only where public justice suffers otherwise. That
discretion resides in the court."
152. The legal position was summed up by the court in para
27 and the observations of the court at serial no.4 of para 27
which have bearing on the objections raised by learned
counsel for the appellant read as follows :-
"27. .........4. Where the prisoner is disabled from
engaging a lawyer, on reasonable grounds such
as indigence or incommunicado situation, the
Court shall, if the circumstances of the case, the
gravity of the sentence, and the ends of justice
so require, assign competent counsel for the
prisoner's defence, provided the party does not
object to that lawyer;
(Emphasis supplied)"
153. It is now necessary to consider the impact of the denial of
a fair opportunity to the appellant to cross examine PW-20
Inspector Lakhwinder Singh.
154. Let us now examine the impact of the non-availability of
legal assistance to the appellant. PW-20 Inspector Lakhwinder
Singh has deposed at length with regard to the investigation
conducted by him on 17th April, 2002 which included recording
of the disclosure statements as well as the recoveries and the
forensic examination. It is noteworthy that the sole evidence
to connecting the recoveries to the crime by the prosecution is
the report of the forensic science laboratory (Exhibit PW-20/A).
The specialist who has given the report was not examined but
the same has been tendered in evidence in the testimony of
PW-20 Insp. Lakhwinder Singh who has not been cross
examined in the aforenoticed circumstances.
155. It is trite that the right to cross examine a witness is not
only a statutory right but in view of the pronouncement of the
Supreme Court is a natural right which would inhere in every
party to the litigation. An accused must be granted an
opportunity to cross examine every witness, unless statutorily
excepted. Such opportunity cannot be notionally granted but
must be ensured meaningfully. Given the judicial precedents
placed before us by learned counsel for the appellant as well
as learned APP for the state, we have no manner of doubt that
the right to cross examine the investigating officer who was a
material witness was a valuable right of the appellant. The
right to legal assistance on every stage of the trial was
imperative.
156. There is nothing at all before us to suggest that the
appellant was remotely aware of either the importance of cross
examination or the consequences of the failure to cross
examine the investigating officer or that he understood the
impact of the statement attributed to him. In the light of the
well settled principles which we have noticed hereinabove, the
denial of this right has caused grave prejudice to the defence
of the appellant. We are unable to apply the equitable
doctrine of waiver in the instant case. It is, therefore, not
possible to hold that the appellant was granted a fair or
meaningful opportunity to cross examine PW-20 Inspector
Lakhwinder Singh.
Duty of the Court
157. Learned counsel for the appellant has urged that even if
the investigating officer had not been examined as a witness it
would not have effected the credibility of the prosecution
witness. Placing reliance on para 11 of the Supreme Court
pronouncement in Raj Kishore Jha (supra), it is urged that
the Supreme Court has ruled that at best it would be desirable
for the prosecution to produce the investigating officer for his
cross examination.
158. To explore this possibility we put a query to the APP
about the availability of PW-20. In response, the respondents
have filed a status report to the effect that PW-20 Insp.
Lakhwinder Singh has expired on 10th November, 2011. The
office order issued by the Additional Deputy Commissioner,
South-West, Delhi, dated 16th November, 2011 in this regard
has been placed on record. It, therefore, would not be
possible to remand the matter for a re-trial of the case to give
the appellant a fresh opportunity to cross examine PW-20
Inspector Lakhwinder Singh at this stage.
159. The same would not be appropriate in the instant case for
another reason.
160. PW-20 Inspector Lakhwinder Singh had completed his
examination in chief on 22nd January, 2009 when the appellant
was not assisted by a counsel. It needs no elaboration that
human memory fades with passage of time. It would unfair to
the witness as well to subject him to a cross examination
almost ten years after the occurrence and more than three
years after his examination in chief.
161. In view of the above, it has to be held that the appellant
has been denied a fair and reasonable opportunity to cross
examine PW-20 in violation of his rights under Article 21 of the
Constitution of India. The testimony of PW-20 Inspector
Lakhwinder Singh, therefore, cannot be looked at for any
purpose.
Non-compliance of provisions of Section 313 of CrPC
162. The last ground of challenge pressed before us by Mr.
Siddharth Aggarwal, learned counsel for the appellant is
premised on non-compliance of the necessary safeguards
while recording the statement of an accused person under
Section 313 of the Code of Criminal Procedure.
163. In support of this submission, the learned counsel has
emphasized the principle laid down by the Supreme Court in
Madhav Hayawadanrao Hoskot v. State of Maharashtra
(supra) noticed by us hereinabefore as well as the
amendments which the legislature has effected to the Section
313 of the Code of Criminal Procedure.
164. It is noteworthy that by virtue of Section 22 of Act 5 of
2009, an amendment was effected in Section 313 of the Code
of Criminal Procedure with effect from 31st December, 2009 to
include sub-Section 5 therein which reads as follows:-
"(5). The court may take help of prosecutor and defence
counsel in preparing relevant questions which are to be
put to the accused and the court may permit filing of
written statement by the accused as sufficient
compliance of this section."
165. Undoubtedly, the instant case relates to the incident of
2002 and the recording of statement on 10 th February, 2009
which was prior to the amendment. Learned counsel for the
appellant has painstakingly drawn our attention to the
amendment which has been effected by the legislature to
underscore the importance of availability of counsel to accused
person at the stage when his statement under Section 313 of
the Code of Criminal Procedure being recorded.
166. So far as the contention of Ms. Ritu Gauba, learned APP
for the state based on the statements attributed to the
appellant under Section 313 is concerned, the position in law in
this regard has been settled by the Supreme Court of India and
is best stated in the pronouncement in Sharad Birdichand
Sarda v. State of Maharashtra (supra) in the following
terms: -
"150. It is well settled that the prosecution, must stand
or fall on its own legs and it cannot derive any strength
from the weakness of the defence. This is trite law and
no decision has taken a contrary view. What some
cases have held is only this: where various links in a
chain are in themselves complete, then a false plea or a
false defence may be called into aid only to lend
assurance to the Court. In other words, before using the
additional link it must be proved that all the links in the
chain are complete and do not suffer from any infirmity.
It is not the law that where there is any infirmity on
lacuna in the prosecution case, the same could be
cured or supplied by a false defence or a plea which is
not accepted by a Court."
(Underlining by us)
167. It is, therefore, trite that the prosecution cannot rest its
case on the statements attributed to an accused person under
Section 313 of the CrPC and is bound to prove an un-broken
chain of circumstances pointing only to the guilt of accused
before it can draw additional strength for the same from any
answer which an accused may have given in such statement.
168. Ms. Ritu Gauba, learned APP for the State has very fairly
drawn our attention to a pronouncement of the Supreme Court
reported at AIR 2012 SC 750 Mohd. Hussain alias Julfikar
Ali v. State (Government of NCT) Delhi on the issue of
non-representation of an accused person by any counsel when
witnesses were examined and discharged without cross-
examination in the absence of defence counsel.
169. An argument was laid by learned APP for the State that
no prejudice was caused to the accused in not providing him a
defence counsel and that Supreme Court did not take
exception to the trial in this case conducted by the Sessions
Judge and the conviction and sentence passed against the
accused. In this regard, the authoritative principles which
would guide consideration of a plea of prejudice or non
prejudice were laid down by the Supreme Court in the
following terms:-
"19. The Learned Counsel for the Respondent-State,
Sri Atri contends that since no prejudice is caused to
accused in not providing a defence Counsel, this Court
need not take exception to the trial concluded by the
learned Sessions Judge and the conviction and
sentence passed against the accused. I find it difficult
to accept the argument of the learned senior Counsel.
The Code of Criminal Procedure ensures that an
accused gets a fair trial. It is essential that the
accused is given a reasonable opportunity to defend
himself in the trial. He is also permitted to confront the
witnesses and other evidence that the prosecution is
relying upon. He is also allowed the assistance of a
lawyer of his choice, and if he is unable to afford one,
he is given a lawyer for his defence. The right to be
defended by a Learned Counsel is a principal part of
the right to fair trial. If these minimum safeguards are
not provided to an accused; that itself is 'prejudice' to
an accused. It is worth to notice the observations
made by this Court in the case of Rafiq Ahmad alias
Rafi v. State of U.P. : (2011) 8 SCC 300, wherein it is
observed:
35. When we speak of prejudice to an
accused, it has to be shown that the
accused has suffered some disability or
detriment in the protections available to
him under the Indian criminal
jurisprudence. It is also a settled canon of
criminal law that this has occasioned the
accused with failure of justice. One of the
other cardinal principles of criminal justice
administration is that the courts should
make a close examination to ascertain
whether there was really a failure of justice
or whether it is only a camouflage, as this
expression is perhaps too pliable. With the
development of law, Indian courts have
accepted the following protections to and
rights of the accused during investigation
and trial:
(a) The accused has the freedom to
maintain silence during investigation as
well as before the court. The accused may
choose to maintain silence or make
complete denial even when his statement
under Section 313 of the Code of Criminal
Procedure is being recorded, of course, the
court would be entitled to draw an
inference, including adverse inference, as
may be permissible to it in accordance with
law;
(b) Right to fair trial;
(c) Presumption of innocence (not guilty);
(d) Prosecution must prove its case beyond
reasonable doubt.
36. Prejudice to an accused or failure of
justice, thus, has to be examined with
reference to these aspects. That alone,
probably, is the method to determine with
some element of certainty and discernment
whether there has been actual failure of
justice. 'Prejudice' is incapable of being
interpreted in its generic sense and applied
to criminal jurisprudence. The plea of
prejudice has to be in relation to
investigation or trial and not matters falling
beyond their scope. Once the accused is
able to show that there is serious prejudice
to either of these aspects and that the
same has defeated the rights available to
him under the criminal jurisprudence, then
the accused can seek benefit under the
orders of the court.
37. Right to fair trial, presumption of
innocence until pronouncement of guilt and
the standards of proof i.e. the prosecution
must prove its case beyond reasonable
doubt are the basic and crucial tenets of
our criminal jurisprudence. The courts are
required to examine both the contents of
the allegation of prejudice as well as its
extent in relation to these aspects of the
case of the accused. It will neither be
possible nor appropriate to state such
principle with exactitude as it will always
depend on the facts and circumstances of a
given case. Therefore, the court has to
ensure that the ends of justice are met as
that alone is the goal of criminal
adjudication."
170. The impugned judgments were reversed and the matter
was remanded to the trial court with the directions to complete
trial in a time bound manner.
171. In the judgment, Justice C.K. Prasad, while concurring
with the setting aside of the conviction and sentence, has
however differed with the directions for retrial. Certain
observations made in the judgment of Justice C.K. Prasad on
the importance of right to cross-examine deserve to be
considered in extenso and read as follows:-
"29. While holding the Appellant guilty the trial court
has not only relied upon the evidence of the witnesses
who have been cross-examined but also relied upon
the evidence of witnesses who were not cross-
examined. The fate of the criminal trial depends upon
the truthfulness or otherwise of the witnesses and,
therefore, it is of paramount importance. To arrive at
the truth, its veracity should be judged and for that
purpose cross- examination is an acid test. It tests the
truthfulness of the statement made by a witness on
oath in examination-in-chief. Its purpose is to elicit
facts and materials to establish that the evidence of
witness is fit to be rejected. The Appellant in the
present case was denied this right only because he
himself was not trained in law and not given the
assistance of a lawyer to defend him. Poverty also
came in his way to engage a Counsel of his choice.
30. Having said so, it needs consideration as to
whether assistance of the Counsel would be necessary
for fair trial. It needs no emphasis that conviction and
sentence can be inflicted only on culmination of the
trial which is fair and just. I have no manner of doubt
that in our adversary system of criminal justice, any
person facing trial can be assured a fair trial only when
the Counsel is provided to him. Its roots are many and
find places in manifold ways. It is internationally
recognized by covenants and Universal Declaration of
Human Rights, constitutionally guaranteed and
statutorily protected."
172. The court has thereafter extensively referred to the
Article 14 of the International Covenant on Civil and Political
Rights as well as the universal declaration of the human rights;
article 21, 22(1), 39(A) of the Constitution of India; Sections
303 and 304 of the Code of Criminal Procedure and finally
observed as follows:-
"35. In my opinion, the right of a person charged with
crime to have the services of a lawyer is fundamental
and essential to fair trial. The right to be defended by
a legal practitioner, flowing from Article 22(1) of the
Constitution has further been fortified by the
introduction of the Directive Principles of State Policy
embodied in Article 39A of the Constitution by the
42nd Amendment Act of 1976 and enactment of Sub-
Section 1 of Section304 of the Code of Criminal
Procedure. Legal assistance to a poor person facing
trial whose life and personal liberty is in jeopardy is
mandated not only by the Constitution and the Code
of Criminal Procedure but also by International
Covenants and Human Rights Declarations. If an
accused too poor to afford a lawyer is to go thorough
the trial without legal assistance, such a trial cannot
be regarded as reasonable, fair and just. The right to
be heard in criminal trial would be inconsequential and
of no avail if within itself it does not include right to be
heard through Counsel. One cannot lose sight of the
fact that even intelligent and educated men, not
trained in law, have more than often no skill in the
science of law if charged with crime. Such an accused
not only lacks both the skill and knowledge adequately
to prepare his defence but many a time looses his
equilibrium in face of the charge. A guiding hand of
Counsel at every step in the proceeding is
needed for fair trial. If it is true of men of
intelligence, how much true is it of the ignorant
and the illiterate or those of lower intellect An
accused without the lawyer faces the danger of
conviction because he does not know how to
establish his innocence."
(Emphasis supplied)
173. The Supreme Court held the appellant was held guilty
and sentenced to death in a trial which was not reasonably fair
or just.
174. In the instant case, Ms. Ritu Gauba, learned APP for the
State has urged at length that no prejudice has resulted to the
appellant on account of non-availability of the counsel at this
stage when his statement under Section 313 of the Code of
Criminal Procedure was recorded. It has been urged that the
stage of recording of statement under Section 313 of the Code
of Criminal Procedure is between the court and the accused
person and that no intervention by lawyer is legally envisaged.
She also submits that the reliance on the amendment to
Section 313 of the Code of Criminal Procedure for the purpose
of consideration of the present case is totally misconceived as
the amendment would effect only on 31st December, 2009.
Learned APP has relied on the pronouncement of the Supreme
Court reported at AIR 2000 SC 3214 Basavaraj R. Patil v.
State of Karnataka.
175. The challenge by learned counsel for the appellant is to
the manner in which the statement of the appellant under
Section 313 of the Code of Criminal Procedure was recorded on
the 10th of February, 2009. Mr. Aggarwal, Advocate has
painstakingly drawn our attention to the fact that the appellant
was not represented by a counsel when his statement under
Section 313 of the Code of Criminal Procedure was recorded on
the 10th of July, 2009 and has painstakingly taken us through
the same. His submission is that this non-representation has
resulted in miscarriage of justice in as much as there is strong
possibility that the appellant may not have understood either
the questions which were put to him or the impact of the
answers which he has given to the questions which has been
put to him.
176. Ms. Ritu Gauba, learned APP has urged at some length
that the appellant has given answers of some questions in his
statement under Section 313 of the Code of Criminal Procedure
which tantamount to admission of the case. In the alternative,
it is urged that if this court were to accept the contentions of
the appellant, then at best the matter would require to be
remanded for recording of the appellants‟ statement afresh.
177. Before examining the rival contentions, reference may be
made to the principles laid down by the Supreme Court in Para
150 of Sharad Birdhichand Sarda v. State of
Maharashtra, AIR 1984 SC 1622 wherein the court held as
follows:-
"150. It is well settled that the prosecution, must
stand or fall on its own legs and it cannot derive any
strength from the weakness of the defence. This is
trite law and no decision has taken a contrary view.
What some cases have held is only this: where various
links in a chain are in themselves complete, then a
false plea or a false defence may be called into aid
only to lend assurance to the Court. In other words,
before using the additional link it must be proved that
all the links in the chain are complete and do not
suffer from any infirmity. It is not the law that where
there is any infirmity on lacuna in the prosecution
case, the same could be cured or supplied by a false
defence or a plea which is not accepted by a Court."
178. We have considered the submissions made by counsel on
the objection raised by learned counsel for the appellant. It
cannot be denied that Section 313 of the Code of Criminal
Procedure is an extremely important and salutory provision
and is the first opportunity given to the accused person to
explain such circumstances which stand established in the
evidence against him. Even though, the law mandates that the
statement under Section 313 of the Code of Criminal Procedure
shall not be on oath, however the courts were empowered to
take into consideration the answers given by the accused.
179. By virtue of Section 313 of the Code, law mandates that
an opportunity be given to the accused to personally explain
any circumstance appearing in the evidence against him by
the court. He is called upon to lead his defence in terms of
statutory provision. Law mandates that no oath shall be
administered to the accused when he is examined under sub
Section (1). In terms of Sub-Section (4) of Section 313, the
answers given by the accused person may be taken into
consideration any such answer or trial and put in evidence for
or against him in any other inquiry into or trial for any other
evidence which such answer may tend to say that he has
committed the offence.
180. So far as the requirement of a counsel being available to
the accused person is concerned, the several pronouncements
noted by us hereinabove have repeatedly mandated that
accused is entitled to an adequate and appropriate legal
assistance at every stage of the trial. In Mohd. Hussain @
Julfikar Ali v. State (supra) and Madhav Hayawadanrao
Hoskot v. State of Maharashtra (supra), the Supreme
Court at length devolved on the limitations and disadvantages
faced by an accused person who is incarcerated and would
also be facing the disadvantages of illiteracy and poverty. It
has been authoritatively held that he is entitled to legal
assistance at every stage.
181. In the instant case, the appellant was standing trial for
alleged commission of an offence under Section 302 of the
Indian Penal Code and culpability thereunder could have
resulted even in imposition of capital punishment on him as
envisaged in law. His counsel had stopped appearing in the
matter after the case was transferred from Patiala House
Courts to the Dwarka District Court which would be more than
25 kms. away for no fault attributable to the appellant. Given
the principle noticed above, inability of the accused person to
understand the import of the statement which the court was
recording by itself per se would have resulted in prejudice to
him and would tantamount to unfairness of procedure and the
trial which the appellant had undergone.
182. In Basavaraj R. Patil v. State of Karnataka (supra)
the court was concerned with the issue as to whether it is
indispensible or mandatory that the accused himself should be
questioned under Section 313 of the Code of Criminal
Procedure and whether the court is empowered to allow an
advocate to answer such questions on behalf of the accused in
some exigent condition.
The Supreme Court has made contextual reference to the
earlier pronouncement reported at (1973) 2 SCC 793: AIR
1973 SC 2622, Shivaji Sahabrao Bobade v. State of
Maharashtra wherein the Supreme Court had considered the
fall out of the ommission to put to the accused a question of
vital circumstance appearing in the prosecution evidence. In
Basavaraj R. Patil (supra) case, the court has held as
follows:-
"16. Contextually we cannot bypass the decision of a
three Judge Bench of this Court in Shivaji Sahabrao
Bobade and Anr. v. State of Maharashtra and Anr. :
1973CriLJ1783 as the Bench has widened the sweep of
the provision concerning examination of the accused
after closing prosecution evidence. Learned Judges in
that case were considering the fallout of omission to
put to the accused a question on a vital circumstance
appearing against him in the prosecution evidence.
The three Judge Bench made the following
observations therein:
It is trite law, nevertheless fundamental,
that the prisoner's attention should be
drawn to every inculpatory material so as
to enable him to explain it. This is the basic
fairness of a criminal trial and failures in
this area may gravely imperil the validity of
the trial itself, if consequential miscarriage
of justice has flowed. However, where such
an omission had occurred it does not ipso
facto vitiate the proceedings and prejudice
occasioned by such defect must be
established by the accused. In the event of
evidentiary material not being put to the
accused, the Court must ordinarily eschew
such material from consideration. It is also
open to the appellate court to call upon the
counsel for the accused to show what
explanation the accused has as regards the
circumstances established against him but
not put to him and if the accused is
[1963]3SCR489 unable to offer the
appellate court any plausible or reasonable
explanation of such circumstances, the
court may assume that no acceptable
answer exists and that even if the accused
had been questioned at the proper time in
the trial court he would not have been able
to furnish any good ground to get out of the
circumstances on which the trial court had
relied for its conviction."
183. So far as the object of examination of an accused under
Section 313 of the Code of Criminal Procedure is concerned,
the same has been considered in para 18 and 19 of the
Basavaraj R. Patil in the following terms :-
"18. What is the object of examination of an accused
under Section 313 of the Code? The section itself
declares the object in explicit language that it is "for
the purpose of enabling the accused personally to
explain any circumstances appearing in the evidence
against him." In Jai Dev v. State of Punjab
[1963]3SCR489 Gajendragadkar, J. (as he then was)
speaking for a three Judge Bench has focussed on the
ultimate test in determining whether the provision has
been fairly complied with. He observed thus: "The
ultimate test in determining whether or not the
accused has been fairly examined under
Section 342 would be to enquire whether, having
regard to all the questions put to him, he did get an
opportunity to say what he wanted to say in respect of
prosecution case against him, If it appears that the
examination of the accused person was defective and
thereby a prejudice has been caused to him, that
would no doubt be a serious infirmity."
19. Thus it is well settled that the provision is mainly
intended to benefit the accused and as its corollary to
benefit the court in reaching the final conclusion."
184. Learned counsel has taken us to the questions which
were put to the appellant. We find that a large number of
questions which were put to the accused were based on legal
evidence on record and are really such material which was
completely inadmissible in evidence. Counsel has also drawn
our attention to several questions which were not based on
any evidence on record. In this regard, our attention has been
drawn to the questions at serial nos. 26 to 31 as well as
questions at serial nos. 33 to 39. Learned APP has urged that
answers to these questions attributed to appellant be read
against him.
185. Certainly, if the appellant had the assistance of counsel,
when the evidence was being put to the appellant, he would
have pointed out the impressibility of the questions and the
statutory prohibitions to the court. Counsel would have guided
the appellant on the importance of the statement.
186. We find substance in the submission that counsel would
have explained the questions to him. The presence of the
counsel would have ensured that only circumstances which
were in evidence against the appellant would have been put to
the appellant and not inadmissible evidence especially those
which were barred by operation of Section 24 to 27 of the
Evidence Act or the questions which were not based on any
legal evidence. Learned counsel has also pointed that the
reliance placed by the learned trial judge on answers
attributed to the appellant to such questions has also gravely
prejudiced the adjudication and the result of the consideration
by the trial judge resulting in grave injustice to the appellant.
It is obvious that in this background, grave prejudice has
resulted to the appellant on account of non-availability of any
counsel to him at the time of recording his statement under
Section 313 of the Code of Criminal Procedure, who would
have explained the statutory provisions; the consequence of
failure to answer or explain the circumstances put to him.
187. Learned counsel for the appellant has also placed
reliance on Section 3 of the Indian Evidence Act to urge that
the statement without oath of the accused under Section 313
of the Code of Criminal Procedure cannot be a substitute for
the evidence which the prosecution must lead to prove the
unbroken chain of circumstance beyond the reasonable doubts
in order to support a conviction in a case based on
circumstantial evidence.
188. The learned trial court has put to the appellant, as part of
question no.5 a completely inadmissible hearsay statement
attributed to Surinder Mehto. Learned counsel for the
appellant has contended that this question itself could not
have been put to the appellant.
189. It has also been urged that the prosecution has failed to
establish that the room „adjoining room no. 21‟ was locked or
that the key was with the appellant. He had clearly stated
that he was picked up by the police when he was returning to
the school after dropping children at the St. Mary School,
Sector 9, Dwarka and has disputed alleged disclosures and
recoveries claimed to have been established at his instance.
190. Learned counsel has pointed out that there was no
evidence on record that clothes of the deceased were
identified by Shambhu Mehto and that the answer attributed to
the appellant is contrary to the case of the prosecution that the
deceased had come to the school on the fateful night. It is
contended that identical answers have been attributed to
questions no.12 and 13 which questions make different
querries and are not logical. It is urged that even in the
questions which have been put to the appellant, there is no
identification of the actual room which was allegedly under the
occupation of the appellant.
191. In the instant case, so far as the legally admissible
evidence discussion herein before is concerned, at best, the
prosecution has led evidence on the circumstance of the
appellant being last seen alive in the company of the deceased
at about 9:15 p.m. on the night of 16th April, 2002 and
recoveries of some articles on the next date purportedly based
on disclosure made by the appellant.
192. We have discussed hereinabove as to why it is not
possible to hold the presence of the deceased in the company
of the appellant may not necessarily be proximate to the time
of his murder.
193. The prosecution has also failed to connect recoveries to
the appellant or the offences. In any case, the recoveries of
the articles would at best attribute to the knowledge of the
place where the recovered articles where from they were
traced and by itself would not establish anything more. The
material witness who could have shed some light has not been
brought into the witness box. The prosecution has also not
been able to connect the weapons which they claimed to have
recovered at the instance of the accused to the commission of
the offence. In this background, there are several gaps in the
chain of circumstances which the prosecution was required to
establish in order to bring home the finding of guilt of the
appellant. It would thus be inappropriate to fall back on the
statement without oath which was recorded of the appellant
under Section 313 of the Code of Criminal Procedure,
especially in the circumstances noticed above.
194. Ms. Ritu Gauba, learned APP for the State has contended
that even if this court was to hold and conclude that there had
been procedural unfairness to the appellant, the course to be
adopted by this court was to remand the matter for retrial from
the stage at which there was procedural unfairness to the
appellant.
195. Mr. Siddharth Aggarwal, learned counsel for the appellant
has urged at great length that the retrial cannot be ordered
only to enable the prosecution to adduce additional evidence
for filling up the lacunae. In this regard, reliance has been
placed on the pronouncement of the Supreme Court reported
at AIR 1963 Supreme Court 1531, Ukha Kolhe v. The
State of Maharashtra wherein the court has ruled as
follows:-
"11. An order for retrial of a criminal case is made in
exceptional cases, and not unless the appellate Court
is satisfied that the Court trying the proceeding had no
jurisdiction to try it or that the trial was vitiated by
serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and on
that account in substance there had been no real trial
or that the Prosecutor or an accused was, for reasons
over which he had no control, prevented from leading
or tendering evidence material to the charge, and in
the interests of justice the appellate Court deems it
appropriate, having regard to the circumstances of the
case, that the accused should be put on his trial again.
An order of re-trial wipes out from the record the
earlier proceeding, and exposes the person accused to
another trial which affords the prosecutor an
opportunity to rectify the infirmities disclosed in the
earlier trial, and will not ordinarily be countenanced
when it is made merely to enable the prosecutor to
lead evidence which he could but has not cared to
lead either on account of insufficient appreciation of
the nature of the case or for other reasons. Harries,
C.J., in Ramanlal Rathi v. The State AIR1951Cal305 ,
observed :
"If at the end of a criminal prosecution the
evidence leaves the Court in doubt as to
the guilt of the accused the latter is entitled
to a verdict of not guilty. A retrial may be
ordered when the original trial has not been
satisfactory for particular reasons, for
example, if evidence had been wrongly
rejected which should have been admitted,
or admitted when it should have been
rejected, or the Court had refused to hear
certain witness who should have been
heard. But retrial cannot be ordered on the
ground that the prosecution did not
produce the proper evidence and did not
know how to prove their case."
196. Before the prosecution has placed the intimation with
regard to the demise of PW 20 on record, submissions were
made by learned counsel for both the sides with regard to the
procedure which this court ought to adopt. Our attention was
drawn to the provisions of Section 368 and Section 391 of the
Cr.P.C. Learned counsel for the appellant has placed reliance
on the pronouncement of the Supreme Court reported at 1990
CRI.L.J. 1800, Lakshmanan Sundaram v. State of Kerala
wherein the principles with regard to the exercise of this
question under this statutory provisions have been laid down.
Learned counsel has also relied on the pronouncement of the
Supreme Court reported at 1976 (2) SCC 819 (Para 24 and
25) S. Harnam Singh v. The State (Delhi
Administration). In view of the position noticed by us
hereinabove, it is not necessary to deal with this submission.
197. Upon a scrutiny of a testimony of PW 20 - Inspector
Lakhwinder Singh, we find that he is a material witness who
has proved Ex.PW20/A which is the postmortem report and is
only evidence on record which has been proved by the
prosecution to establish that it was the blood of the deceased
which was found in the different parts of the school premises
as well as on the Pocha (mop) in the school. If the testimony of
PW 20 is not to be considered, CFSL report dated 25 th October,
2002 would not have been proved on record. There would then
be no evidence of an important circumstance in the chain of
evidence.
198. As discussed hereinbefore; so far as the cross-
examination of PW 20 - Inspector Lakhwinder Singh is
concerned, he had unfortunately expired on 10 th November,
2011 as reported by the State. Even if the same could be held
to be legally permissible almost 10 years after the incident and
more than three years after recording of his examination-in-
chief, he is not available for being subjected to cross-
examination at this stage. That being so, in view of our finding
that the appellant has been wrongly denied a fair opportunity
of cross-examination of this witness, his testimony cannot be
looked at for any purpose.
199. As per the nominal roll received from the jail, the
appellant had been in custody for a period of 9 years, 11
months and 7 days. The reality that memory fades with
passage of time would not change merely because an accused
person was to be examined. On the issue of remanding trial in
a criminal case after passage of time, in para 37 of the
judgment in Md. Hussain alias Julfikar Ali v. State (Govt.
of NCT), Delhi (supra), it was observed as follows :-
"37. Having found that the Appellant has been held guilty
and sentenced to death in a trial which was not
reasonable, fair and just, the next question is as to
whether it is a fit case in which direction be given for the
de novo trial of the Appellant after giving him the
assistance of a Counsel. I have given my most anxious
consideration to this aspect of the matter and have no
courage to direct for his de novo trial at such a distance
of time. For an occurrence of 1997, the Appellant was
arrested in 1998 and since then he is in judicial custody.
The charge against him was framed on 18.02.1999 and it
took more than five years for the prosecution to produce
its witnesses. True it is that in the incident four persons
have lost their lives and several innocent persons have
sustained severe injuries. Further, the crime was
allegedly committed by a Pakistani but these factors do
not cloud my reason. After all, we are proud to be a
democratic country and governed by rule of law. The
Appellant must be seeing the hangman's noose in his
dreams and dying every moment while awake from the
day he was awarded sentence of death, more than seven
years ago. The right of speedy trial is a fundamental right
and though a rigid time limit is not countenanced but in
the facts of the present case I am of the opinion that
after such a distance of time it shall be travesty of justice
to direct for the Appellant's de novo trial. By passage of
time, it is expected that many of the witnesses may not
be found due to change of address and various other
reasons and few of them may not be in this world. Hence,
any time limit to conclude the trial would not be
pragmatic."
200. Given the failure of the prosecution to prove all relevant
and necessary circumstances in the chain of circumstances
necessary to hold that the appellant was guilty of the offence
of which he was charged, we are unable to persuade ourselves
to remand the matter only for the purpose of re-examination of
the appellant under Section 313 of the Code of Criminal
Procedure.
201. For the aforesaid reasons, the appeal is allowed. The
impugned judgment dated 16th April, 2009 for the offence
under Sections 302 and 201 IPC passed by the Additional
Sessions Judge and the order of sentence dated 20th April,
2009 are hereby set aside and quashed. It is directed the
appellant shall forthwith be released.
GITA MITTAL, J
J.R. MIDHA, J
March 28, 2012
mk/kr
