Rajeev Kumar vs The State (Nct Of Delhi)
2013 Latest Caselaw 2280 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRIMINAL APPEAL No. 1143/2012

                                   Reserved on:      29th January, 2013
%                                Date of Decision:      16th May, 2013

RAJEEV KUMAR                                            ....Appellant
                       Through Mr. Sanjay Kumar, Ms. Parul Sharma &
                       Mr. Krishan Kumar, Advocates.


                        Versus


THE STATE (NCT OF DELHI)                        ...Respondent

Through Ms. Richa Kapoor, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J.:

The appellant Rajeev Kumar impugns judgment dated 21st July,

2012, arising out of FIR No. 235/2010, wherein he has been convicted

under Section 302 IPC for murder of Arun Kumar. By order of

sentence dated 25th July, 2012, he has been sentenced to life

imprisonment and fine of Rs 2,000/-, in default of which, he shall

undergo simple imprisonment for two months.

2. Prosecution case is based upon circumstantial evidence. On 9th

September, 2010, at about 9.55 P.M. DD entry No. 28 was lodged in

Police Station Krishna Nagar that an unidentified man was lying at

Kanti Nagar Park. ASI Yash Pal (PW-27) was sent to the crime spot

with Constable Pramod (PW-22). Before they could reach, the injured

was taken by a PCR van to Guru Tej Bahadur Hospital where, on

examination he was declared as brought dead. PW-27 thereafter

recorded the rukka (Exhibit PW-27/A), which mentions that many stab

injuries were found on the deceased‟s body. One mobile phone,

Rs.1,400/-, a bike key and some documents were taken into possession.

The unknown deceased was identified, on the basis of contact stored in

the mobile phone, as Arun Kumar. One Ravinder reached the spot and

identified the deceased as his relative. Ravinder later on appeared as

PW-1 before the Trial Court. The Rukka (Exhibit PW-27/A) records

that Ravinder had claimed that on 9th September, 2010 at about 8.30 to

9 P.M. he had seen deceased in the company of the appellant Rajeev,

driving towards Gali No. 2 Shanti Mohalla on his motorcycle. The

rukka was dispatched on 10th September, 2010 at 1.10 A.M. and

thereafter FIR (Exhibit PW-2/A) was registered at about 1.20 A.M.

3. Homicidal death of Arun Kumar and his identity is not disputed

or denied. MLC (Exhibit PW-15/A) was proved by Dr. Banarasi (PW-

15), who had examined the deceased on 9th September, 2010 at 10.40

P.M., when he was brought by Constable Rahul of the PCR van. Upon

examination, he was declared brought dead. PW-15 has deposed about

the articles found on the body of the deceased, i.e., mobile phone,

Rs.1,400/-, key of the bike and documents. The said articles are clearly

mentioned in the MLC itself. MLC also records that the deceased was

purported to have been found in a park with history of stabbing. Post-

mortem report (Exhibit PW-16/A) has been proved by Dr. Ashok (PW-

16). The post-mortem was conducted by Dr. Juthika Debbaram, who

had left the hospital but her signatures and hand writing were

identified.

4. The post-mortem report (Exhibit PW-16/A) records as many as

24 incised wounds, many of which are incised stab wounds. Cause of

death was opined as haemmorhagic shock, produced as a result of ante

mortem stab wounds to the lungs, heart, liver and neck vessels caused

by sharp edged weapon. Injury Nos. 1, 3, 5, 9, 10, 11, 12, 14 and 15

were independently and collectively sufficient to cause death in the

ordinary course of nature. The said injuries are as under:

"1. Incised cut throat wound measuring 18 cm × 0.3 cm present on the anterior aspect of the neck, extending from 2 cm below right angle of mandible to 6cm below the tip of left mastoid process, obliquely present. In the midline, the depth is 3.8 cm. The underlying muscles of the neck, subcutaneous tissues are cut, the trachea, esophagus and cricoid cartilage and left carotid artery, jugular vein and vagus are cut completely

with extravasation of blood into the surrounding tissue.

3. Incised stab wound measuring 4.1cm ×0.1 cm present horizontally on the front of right side of chest, 10.5cm from midline and 12 cm below the right clavicle. The inner angle of the wound is more ante than the outer angle. The wound goes inwards medially and upwards cuts the subcutaneous tissue and fourth intercostal space and enters the right chest cavity and ends in the parenchyma of the anterior aspect of upper lobe of right lung making a total depth of 10 cm.

5. Incised stab wound measuring 4.1 cm×0.1cm present obliquely on the right side of chest, midpoint of the wound is 3.5 cm from midline and 16.5 cm below right clavicle. The upper inner angle of the wound is more dente than the lower outer angle. The wound goes downwards, backwards and to the left, cuts the subcutaneous tissue, nicks the seventh costal cartilage and ends in the parenchyma of the left lobe of liver making a total depth of 13 cm.

9. Incised stab wound measuring 3.5 cm×0.1cm present horizontally on the front chest on left side .5 cm from midline and 14cm below clavicle. The inner angle is more acute than the outer angle. The wound goes upwards, backwards and medially, cutting the subcutaneous tissue, third intercostals space enters the chest cavity (left) and ends in the cavity of left ventricle on the upper part, making a total depth of 10.5 cm. The left chest cavity is full of blood.

10. Incised stab wound measuring 7.5 cm×0.1cm present on the front of upper part of abdomen on left side, horizontally present 5 cm from midline and 2 cm below the left subcostal margin. The inner angle is more acute than the outer angle. The wound goes backwards and medially cutting the subcutaneous tissue, enters

the abdominal cavity cuts the cover border of left lobe of the liver, through and through and ends on the anterior wall of the stomach making a total depth of 10 cm, with extravasation of blood into the surrounding tissue.

11. Incised stab wound measuring 10.5 cm×0.1cm present horizontally on the front of left side of abdomen, 3.4 cm below injury number 10 and 1 cm from midline. The inner angle is more acute than the ounter angle. The wound goes backwards and medially, cutting the soft tissue and muscles of abdomen, enters the abdominal cavity and ends in the parenchyma of pancreas making a total depty of 10.5cm.

12. Incised stab wound measuring 8 cm×0.1cm present obliquely on the front of left side of abdomen, inner end is just on midline and 4.2 cm below injury number 11. The inner angle is more acute than the outer angle. The wound goes inwards, cutting the soft tissue and muscles of abdomen, enters the abdominal cavity and ends in the loops of small intestines are cutting it, making a total depth of 10 cm. The loops of intestines are coming out through the wound. The inner angle is lower than the outer angle.

14. Incised stab wound measuring 5.4 cm×0.1cm present obliquely on the right side of abdomen, midpoint of the wound is 14.5 cm from midline and 12.5 cm above the iliac crest. The inner upper angle is more acute than the lower outer angle. The wound goes upwards, backwards and medially, cutting the soft tissue and muscles of the abdomen, enters the abdominal cavity and ends in the parenchyma of the anterior aspect of liver (right lobe) in making a total depth of 12.5 cm."

5. Tentative time since death was stated to be half a day. The post-

mortem was conducted on 10th September, 2010 between 11.05 A.M.

to 12.45 P.M. There were multiple cut marks on the shirt, vest and

pant worn by the deceased, which correspond to the injuries on the

body.

6. On behalf of the appellant, it was contended that he is not the

perpetrator of the said crime and the prosecution case had not been

proved beyond reasonable doubt.

7. We have noted above that in the rukka (Exhibit PW-27/A)

recorded at about 1.10 A.M. by PW-27 ASI Yash Pal it is recorded that

one Ravinder had disclosed and stated that at about 8.30 to 9 P.M. he

had seen the deceased on his motor cycle in the company of appellant

going towards Gali No. 2 Shanti Mohalla. It is also on record that

Ravinder went to the hospital after coming to know that Arun had

sustained injuries. The said Ravinder appeared as PW-1 and has

deposed that at about 8.15 to 8.30 P.M. he had seen the appellant and

the deceased together on the motorcycle. He has elaborated upon the

said fact by giving the make of the motorcycle which, to our mind, is

irrelevant and inconsequential. The said elaboration does not defeat or

contradict the main statement. PW-1 has further deposed that at 9.30

P.M. he had received a phone call from his friend Balram that he had

seen the deceased with the appellant on foot going towards Maharana

Pratap Park. Arun appeared to be inebriated.

At about 10.30 P.M. he received a call that the deceased had met with

an accident. PW-1 made a call on the mobile number of Arun and it

was picked up by a head constable, who apprised him that Arun was

admitted in the emergency unit of GTB Hospital. PW-1 was asked to

reach immediately. Thereafter, he went to police post Old Seelampur

where Mahesh brother of the appellant was present. Purportedly

Mahesh had then apprised that the appellant had called him on the

mobile phone and informed him that he had a fight with someone and

would return at about 12 midnight or 1.00 A.M. In the cross-

examination, PW-1 has affirmed that it was not recorded in Exhibit

PW-1/DA, (his purported statement u/s 161 Cr.P.C.) that he had

received a call from Balram at about 9.30 P.M. Counsel for the

appellant confronted PW-1 with some other assertions made by PW-1,

which do not find mention or recorded in Exhibit PW-1/DA. Suffice it

is to notice that ASI Yash Pal Tomar PW27 has deposed that cousin of

the deceased namely Ravinder (PW1) met them in the hospital and he

had made an endorsement on DD No. 28 marked Ex. PW27/A. In

PW27/A it is recorded that the deceased was identified by one

Ravinder, son of deceased‟s uncle, who had disclosed that at about

8.30-9 P.M. he had seen the deceased on his motorcycle in the

company of the appellant. We would observe two facts cannot be

controverted and stand established. Firstly, PW1 had seen the deceased

with the appellant on a motorcycle at about 8.15/8.30 P.M. on 9 th Sept.,

2010. Secondly, PW1 was informed and he had reached GTB hospital

at about mid-night on 9/10th Sept.,2010. ExPW27/A was dispatched

from the hospital on 10th Sept.,2010 at 1.10a.m. for recording of the

FIR. We discard and do not rely upon the other averments/allegations

made by PW1. For reasons elaborated upon below we are also

substantially disbelieving the deposition of PW5 Balram.

8. Learned counsel for the appellant has drawn our attention to the

cross-examination of PW-1 wherein he had stated that he had not

informed the police, when he was at the hospital, that he had seen

deceased on motorcycle with the accused at 8.30 to 9 P.M. We feel

that said statement is being read out of context. In the examination-in-

chief, PW-1 has averred that on 9th September, 2010 at 8.15 to 8.30

P.M. he had seen the deceased with the appellant on a motorcycle.

Therefore, in response to the question in the cross-examination, when

reference was made to 8.30 and 9 P.M., PW-1 rebutted and denied the

suggestion regarding a different time. In the rukka (Exhibit PW-1/DA)

it is recorded that PW-1 had disclosed that it was at 8.30 to 9 P.M. that

he had seen the deceased on his motorcycle in the company of Rajeev

but this minor difference of fifteen minutes does not, to our mind, cast

doubt on whether PW-1 had or had not seen the deceased in company

of the appellant on a motorcycle between 8.15 to 8.30 P.M..

9. Balram appeared as PW-5 and has deposed that on 9th

September, 2010 at about 8 P.M. he had met the deceased along with

Rajeev. They were apparently drunk and he had offered to drop the

deceased to his house but Rajeev intervened and said that he would

drop him. At 9.30 P.M. he tried to contact the deceased on his mobile

phone but it was not reachable. Thereafter at 10.30/10.45 P.M. he

received a call on his mobile phone from the deceased‟s mobile phone

and he was informed that deceased was admitted in GTB Hospital as

he had met with an accident. He informed the caller that he could not

reach the hospital and asked the caller to inform Ravinder (PW-1)

whose mobile number he provided.

10. PW5 deposition in chief is debatable. He has contradicted

substantive portions of his statements, in chief, in the cross

examination. In the cross examination, PW-5 has stated that he came to

know about the murder of Arun on the next day in the evening. He has

stated that he had seen the deceased and the appellant on foot and not

on a motorcycle. Further, PW-5 had not offered to speak to the police

and inform others till 30th November, 2010 that he had seen the

deceased and the appellant together. His deep concern for the deceased

Arun on 9th September, 2010 had for no apparent reason dissipated and

evaporated the next day. Silence for over two months is unexplained

and casts grave doubts about PW5‟s testimony in chief. In these

circumstances, we are inclined to discard the testimony of PW-5

Balram that he had seen the deceased and the appellant together on 9 th

September, 2010 at 9 P.M. We are further inclined to discard

testimony of PW-1 to the effect that on 9th September, 2010 at 9.30

P.M., PW-5 had informed him on telephone that he had seen deceased

Rajeev on foot. The delay in recording the statement of PW-5 under

Section 161 Cr.P.C. has not been explained and does lead us to believe

that he is unreliable. In case Balram, (PW-5) had come to know about

the murder of Arun on the next day, the statement of PW-5 that he

received phone call from the mobile phone of the deceased by a police

officer calling from GTB Hospital is incorrect. The police in their

investigation have not collected call records of telephones PW-1, PW-5

or the deceased on whom a mobile phone was found. Call data records

and subscriber application form of Ravinder (PW1) mobile number

9210366193 ExPw19/A and ExPW19/B have been placed on record

and proved by M.N.Vijayan but as per PW5, Ravinder (PW1) at that

time was using mobile number 9210051455. Indeed before us it was

stated by the Addl. Public Prosecutor that the deceased was using

mobile number 9210366193 registered in the name of Ravinder (PW1)

and PW5 was possibly using mobile number 9213988513. This may be

true but there is no such evidence. No one has deposed on the

telephone number of the deceased. PW5 has not deposed about his own

telephone number. Subscriber forms of telephone number 9210051455

and 9213988513 and call details have not been placed on record. In a

case of this nature, a cautious and meticulous approach was required

and necessary.

11. Therefore, all that is proved by PW-1 is the fact that between

8.15 to 8.30 P.M. he had seen the deceased and the appellant on a

motorcycle going through gali No. 2. PW-1 had gone to the hospital at

about mid night, after he came to know that Arun had suffered an

accident. At that time he had told the police that at about 8.30 P.M. he

had seen the deceased on his motorcycle in the company of Rajeev,

i.e., the appellant.

12. Ravinder Kumar Sharma, who appeared as PW-9, has deposed

that on 9th September, 2010 at about 9.30 p.m. when he was returning

home on foot, he noticed that one person was lying on the pavement in

the park in an injured condition. Blood was oozing out. He had asked

public persons to help, but no one came forward. Then he made a call

to 100 number from his mobile. Thereafter, PCR Van came and

removed the injured to the hospital. Injured was alive at that time. At

about 9.55 p.m. a wireless message was conveyed by HC Satpal of

PCR and DD entry No.28 (Ex.PW11/A) was recorded at police post

Old Seelampur by Constable Kalicharan (PW-11). This DD entry was

marked to ASI Yash Pal (PW-27), who along with Constable Pramod,

left the police station for investigation. Constable Pramod (PW-22)

has deposed that on 9th September, 2010 he was on emergency duty

with ASI Yash Pal and had reached Maharan Pratap Marg near PS

Krishna Nagar where he found blood at two places on the walking

strip/path. ASI Yash Pal left him there to guard the spot and went to

GTB Hospital. Material/evidence was lifted from the spot.

13. There is some time gap between 8.15/8.30 P.M., when PW-1

saw the deceased, and when the injured Arun was found on the street at

about 9.30 P.M. At about 8.15 to 8.30 P.M., as per PW-1, the deceased

was in the company of the appellant. It would be difficult to

substantially rely upon this and treat it as the last seen evidence and

convict the appellant. Principle of last seen applies when there is a

close proximity between the time when the accused and the deceased

were seen together and the time when the crime took place. We have

to be cautious and careful to ensure that any third party involvement is

ruled out. Indeed the statement made by PW-1 became the starting

point of investigation and enquires against the appellant. His

conviction can be sustained only if there is substantive evidence which

when read together with the fact that appellant and deceased Arun were

together at 8.15 p.m. on 9th Sept.,2010, would complete the chain of

circumstances.

14. The appellant was arrested on 10th September, 2010 at about

5.30 P.M., as per arrest memo Exhibit PW-24/A. At the time of arrest,

as per personal search memo (Exhibit PW-24/B), mobile phone with

SIM No. 9540013160 was recovered and seized. The appellant in his

statement under Section 313 Cr.P.C. has stated that he was lifted from

his house and he had not made any disclosure statement. However, the

appellant has not given the date and time when he was arrested.

Before we go into the question of disclosure statement, we would like

to first refer to statement of two public witnesses Mohan Singh Rawat

and Jitender Rathi PW-13 and PW-14, respectively.

15. PW-13 is the owner of the three storeyed house at Mandoli,

which was given on rent to PW-14 and one Sudan. This fact deposed

by PW-13 is accepted by PW-14. PW-13 has stated that on 10th

September, 2010 at about 6.30 P.M. three police men came with a boy

whom he recognized and identified as the appellant Rajeev. The boy

was taken to the first floor and from there one pair of shoes, one pair of

khakhee colour socks, one T shirt having blood marks, one blue colour

jeans and one handkerchief having blood marks were recovered and

were seized vide seizure memo Exhibit PW-13/A. The said seizure

memo was signed by PW-13 at point „A‟. In the court, these articles

were identified by the appellant as Exhibit P-1 to P-5. PW-14‟s

statement is significant and important. He has stated that he was

working as a helper in a blue line line bus and had become friendly

with the appellant who used to travel in the said bus. On 9 th

September, 2010 at about 11.00 to 11.30 P.M. the appellant came to

the said room where they were residing in Mandoli Extension. At that

time, the appellant was wearing blood stained T shirt and jeans. On

being questioned, the appellant had stated that he had a quarrel with

pick pocketeers and during the scuffle he had sustained injuries on his

hands and his clothes got stained with blood. The appellant slept with

him at night and left in the morning while PW-14 was still sleeping.

On the next date, i.e., 10th September, 2010 at 6/6.30 P.M. Inspector

Subhash Kumar, PW-28 along with two other police officers had come

to the room with the appellant. They took into their possession jeans,

T shirt, handkerchief, socks and shoes, which were left behind in the

room. He identified the seizure memo (Exhibit PW-13/A) and

accepted that his statement was recorded by the investigating officer.

He identified the appellant and the clothes/belongings as Exhibit P-1 to

P-5.

16. PW-13 and 14‟s deposition are important. As per PW-14, the

appellant came to his residence/room at about 11 to 11.30 P.M. on 9th

September, 2010 and his clothes had blood stains. He had injury on his

hands. He removed his blood stained clothes, which he later left

behind. He slept there and left in the morning. The very next day on

10th September, 2010 the said clothes were seized in the presence of

PW-13 and 14. The seizure memo Exhibit PW-13/A by signed by PW-

13 and not by PW-14, but this does not cast doubt about the presence

of PW-14. Once PW-13 had signed the seizure memo, it was not

necessary that PW-14 should have signed the same.

17. This brings us to the disclosure statement which was recorded by

Inspector Subhash Kumar and marked as Exhibit PW-24/C. Head

Constable Satyapal, PW-24 had deposed that after the arrest the

appellant had made a disclosure statement and thereafter led the police

team to Mandoli Extension at the house of PW-14 from where

recoveries were made in the presence of PW-13 and PW-14. The

appellant was then taken to SDN Hospital for medical examination.

PW-24 identified the clothes Exhibit P-1 to P-4. The fact that PW-24

could not state who had ascribed the disclosure statement (Exhibit PW-

24/C) is immaterial. Similar, statement has been made by Constable

Jitender (PW-25) and Inspector Subhash Kumar (PW-28). PW-28 has

deposed that after the accused was arrested, the appellant made a

disclosure statement Exhibit PW-24/C that he went to reside at B-193,

Mandoli Extension, house of the friend of the appellant, namely,

Jitender Rathi (PW-14). From there they recovered blood stained pant,

T-shirt and handkerchief etc. He identified the properties so recovered

as Exhibit P-1 to P-4, i.e., shoes, socks, handerchief, T shirt and jeans,

which were collectively marked Exhibit P-4. In the cross-examination

of PW-28, he accepted that PW-14 was not a signatory to the memo

but denied the suggestion that PW-14 was not present. PW-28

accepted that he could not tell who had ascribed the disclosure

statement Exhibit PW-24/C.

18. Similar statement has been made by Constable Jitender, PW-25,

viz. the disclosure statement and recoveries. He identified the articles

so recovered. Inspector Subhash (PW-28) took over the investigation

after Arun Kumar was brought to the hospital and was declared

brought dead. He arrested the appellant Rajeev vide arrest memo

Exhibit PW-24/A which was signed by him at point „B‟. The personal

search was conducted on the accused vide memo Exhibit PW-24/B

which was signed by him at point „B‟. He recorded the disclosure

statement Exhibit PW-24/C and prepared the pointing out memo

Exhibit PW-24/D. He had gone to House No. B-193, Mandoli

Extension, New Delhi and met PW-13 and PW-14 there. From the

house they recovered blood stained shoes, handkerchief, socks, T shirt

and blue jeans which were seized vide seizure memo (Exhibit PW-

13/A).

19. The FSL Report (Exhibit PW-28/D) opines that blood was

detected on handkerchief, T shirt, pants, socks and shoes of the

deceased which were seized at the instance of the appellant. As per the

biological report (Exhibit PW-28/E), the blood was human and in the

case of handkerchief and T shirt it was opined that it belonged to group

„B‟. On other articles, there was no reaction. Blood was found on

earth material, cotton wool swab and the clothes of the deceased but

the blood group could not be ascertained. The blood sample of the

deceased had putrefied and, therefore, no opinion could be given. As

per the FSL report (Exhibit PW-28/C) ethyl alcohol 631.3 mg was

found in 100 ml of blood. The deceased was, therefore, heavily drunk

when the crime was committed.

20. In Sunil Clifford Daniel Vs. State of Punjab, 2012 (8) SCALE

670, the Supreme Court dealt with a situation where the FSL and

Serological reports opined that the articles recovered had human blood,

but the blood group could not be ascertained. The Supreme Court

observed that in such cases, benefit need not necessarily go to the

accused because the blood had disintegrated; the stain was too

insufficient; there were hematological changes or plasmatic

coagulation. It was elucidated:-

"28. Most of the articles recovered and sent for preparation of FSL and serological reports contained human blood. However, on the rubber mat recovered from the car of Dr. Pauli (CW.2) and one other item, there can be no positive report in relation to the same as the blood on such articles has dis-integrated. All other material objects, including the shirt of the accused, two T-shirts, two towels, a track suit, one pant, the brassier of the deceased, bangles of the deceased, the under-garments of the deceased, two tops, dumb bell, gunny bag, tie etc. were found to have dis-integrated.

29. A similar issue arose for consideration by this Court in Gura Singh v. State of Rajasthan AIR 2001 SC 330, wherein the Court, relying upon earlier judgments of this Court, particularly in Prabhu Babaji Navie v. State of Bombay:, AIR 1956 SC 51; Raghav Prapanna Tripathi v. State of U.P., AIR 1963 SC 74; and Teja Ram (supra) observed that a failure by the serologist to detect the origin of the blood due to dis-integration of the serum, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it is possible, either because the stain is too insufficient, or due to haematological changes and plasmatic

coagulation, that a serologist may fail to detect the origin of the blood. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain, with some objectivity, no benefit can be claimed by the accused, in this regard."

21. Prosecution further relies upon statement of Firoz (PW-12) who

has stated that on 2nd September, 2010 the appellant had come to his

shop and stated that he was running a meat shop. He wanted to

purchase churri (knife) and had given him Rs.100/-, in advance, for

PW-12 to procure it as he did not keep knives for sale. PW-12 used to

sharpen knives and scissors. PW-12 gave his mobile No. 9971516567

to the appellant and on the next day, i.e., 3rd September, 2010 the

appellant called him. He asked the appellant to come on the next day

as he had not been able to arrange for the knife, the day being Friday.

On 4th September, 2010 the appellant came and PW-12 gave him the

knife after sharpening the same. On 12th September, 2010 police came

to his shop along with the appellant and PW-12 identified him. He

informed the police that the appellant had purchased a knife from him.

Prosecution claims that the churri or the knife, in the present case,

could not be recovered though an attempt was made to recover the

same, as per the testimony of Ram Pal (PW-8) Safai karamchari in

MCD. As per the disclosure statement (Exhibit PW-24/C), the accused

had thrown the knife in a drain near swarn Cinema, East Delhi. They

tried to search for the dagger with the help of two magnets tied to a

rope, but it could not be located.

22. Telephone conversation between PW-12 Firoz and the appellant,

as per the prosecution, stands proved from the testimony of Pawan

Singh (PW-26), who had produced call records of mobile No.

9540013160 for the period 1st September, 2010 to 29th September,

2010. He had produced certificate under Section 65B of the Evidence

Act marked Exhibit PW-26/D. The said telephone connection was

issued in the name of one Keshav son of Durga Prasad, resident of

house No. 3374, Gali No. 1, Raghubar Pura No. 2, Gandhi Nagar,

Delhi on the basis of photocopy of election I card (Exhibit PW-26/A).

The said mobile with the aforesaid SIM number was seized from the

appellant vide personal search memo Exhibit PW24/D. The call

records (Exhibit PW-26/C) placed on record show that there was a

telephonic conversation between the said number and PW-12 on 3rd

September, 2010 at 12.29 hours. More importantly the call details on

9th September, 2010 show that the appellant was in constant

conversation or sending or receiving SMSs on 9th September, 2010

from 19.04 hours till 19.55 hours. Thereafter, there was a gap till

21.23 hours and from then onwards the appellant was constantly on

phone till 1241 on 10th September, 2010 either by receiving or making

calls or SMSs.

23. Rajiv (PW-6), uncle of the deceased had stated that he was the

owner of the motorcycle number DL 13SF 1132. He has stated that the

deceased had taken the motorcycle from his house on 9 th September,

2010. This corroborates the statement of PW-1 that he had seen

deceased Arun on the motorcycle with the appellant. PW-6 has

deposed that at about 10.00/11.00 p.m. somebody informed him that

Arun had been murdered. The motorcycle was released on Superdari

to him on 11th October, 2010. In the cross-examination he has deposed

that motorcycle was taken by Arun at about 5 p.m. and thereafter he

had seen the motorcycle for the first time in the police station. What is

highlighted by the counsel for the appellant is the assertion by PW-6 in

the cross-examination that in the night hours of 9th September, 2010 "I

came to know that my motorcycle was lying parked in the premises of

police post Old Seelampur". We record that this statement by PW-6 is

rather vague as he has not specifically deposed that he himself had

seen the motorcycle parked at police post Old Seelampur.

24. Public witness Harpal Singh (PW-17) has deposed that on 11th

September, 2010 at about 5.30/6.00 p.m., he had participated as a

public witness in recovery of the motorcycle. He has further deposed

that he had earlier seen the deceased riding the same motorcycle in the

area.

25. The Investigating Officer, Inspector Subhash Kumar (PW-28)

has stated that on 11th September, 2010, the appellant was produced

before the Court and one day police custody remand was obtained.

Thereafter, the appellant led the police team to Parwana Road, Khajuri

Khas, and identified the place from where he had purchased the knife

i.e. the weapon of offence, but the shop was found to be closed on the

said date. Thereafter, the appellant took them to the place where the

motorcycle was parked by him. The motorcycle was seized vide

memo Ex.PW17/A and PW-28 had signed the seizure memo at point

„C‟. PW-28 has denied that the motorcycle was parked in the premises

of police post Old Seelampur in the intervening night of 9th September,

2010. Ct. Jitender (PW-25) had deposed that the motorcycle was

parked outside the entry gate of the park.

26. Nevertheless, we would assume that recovery of the motorcycle

pursuant to the disclosure statement by the appellant PW24/C is

debateable and should not be accepted. It is possible that the police

may have recovered the motorcycle independently and by their own

efforts. However, the prosecution is entitled to rely on Section 8 of the

Evidence Act and statement of PW12 which is corroborated by the call

details records Ex. PW-26/C that the appellant had purchased a knife.

The conduct of the appellant is relevant, though the knife could not be

recovered and therefore Section 27 of the Evidence Act cannot be

invoked.

27. We will now refer to the decisions relied upon by the appellant.

In Prem Thakur Vs. State of Punjab, (1982) 3 SCC 462, the Supreme

Court has laid down general principles when the prosecution version

relies upon circumstantial evidence. Unquestionably every effort must

be made to find out, who had committed the murder, but care and

caution should be taken that a priori suspicion should not transform

itself into a facile belief that the person accused has committed the

offence. Human mind can implicate a person as the author of the

crime, as it may not resist the frustrating feeling that no other person

has been identified as the perpetrator. Such hazards should be avoided

and the Court must ensure that the circumstances established should of

such a nature as to be capable of supporting the exclusive hypothesis

that the accused is guilty of the crime charged.

28. Dandu Jaggaraju Vs. State of A.P., JT 2011 (13) SC 618 was a

case wherein „disco jewellery‟ which is commonly available to all and

sundry, was purportedly recovered and treated as incriminating

material under Section 27 of the Evidence Act. Supreme Court

rejected the said recovery observing that it did not support the

prosecution story as motive propounded was family honour and the

jewellery allegedly recovered was little more than trinkets.

29. In Prasann Kumar Vs. State of U.P., 2009 (2) ACR 2341

Allahabad High Court elucidated upon the nature and character of

circumstances to secure conviction in cases of circumstantial evidence.

The recoveries under Section 27 of the Evidence Act were disbelieved

and on the question of extra judicial confession there was doubt.

30. In Sohan Singh Vs. State of Uttranchal, AIR 2006 SC 520, the

Supreme Court examined the question of delay in examination of

prosecution witnesses and it was observed:-

"7. It is well settled that delay in examination of prosecution witnesses by the police during the course of investigation, ipso facto, may not be a ground to create doubt regarding veracity of the prosecution case. But in the facts and circumstances of the present case, veracity of the prosecution case becomes highly doubtful as in view of the evidence of prosecution witnesses, namely, PWs 1, 2 and 6, the possibility of dacoity in the house of Ram Singh and receiving injuries by the members of the prosecution party during the course of dacoity cannot be ruled out more so when there is no evidence whatsoever to show that any of the accused persons much less the appellant assaulted the three deceased persons in view of the fact that none of the injured witnesses, namely, PWs 4, 5 and 6 stated that the accused persons assaulted any of the three deceased persons. For the foregoing reasons, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in reversing the order of acquittal recorded by the trial court as the same was not perverse in any manner. As we have doubted veracity of the prosecution case in relation to all

the accused persons, it would be just and expedient to extend same benefit to accused Paramjeet Singh as well in spite of the fact that his conviction recorded by the High Court has attained finality as he did not move this Court."

31. We have already disbelieved and not relied upon the statement

of PW-5 on the ground of delay and other reasons quoted above.

32. This Court in Criminal Appeal No.819/2012, Vijay Singh Vs.

State and Another decided on 3rd September, 2012 by one of us

(Sanjiv Khanna, J.) has reproduced the five principles expounded in

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC

116 for basing conviction on circumstantial evidence. In the facts of

the said case it has been held that the chain of evidence was not

complete.

33. Supreme Court in Niranjan Panja Vs. State of West Bengal, JT

2010 (5) SC 204 dealt with the question of motive and its importance

in cases of circumstantial evidence. In the said case it has been held

that the motive as propounded was not strong so as to hold that the

accused was driven to commit the offence in question. In the present

case, prosecution to prove motive has suggested that the appellant had

taken loan from the deceased and was under financial stress and

obligation to pay. Prosecution has relied upon one of the papers,

which was found with the deceased at the time of death as per Ex.PW-

18/A, the seizure memo. The said paper is a photocopy and records

entries which relate to money, i.e. the name and the amount. The said

paper should be treated as the original document in the present case but

the said document by itself would not prove that the deceased was

lending money and had lent money to the appellant or others. There is

evidence to suggest as deposed by PW-5 that the deceased used to lend

money. Similar statement is made by PW-1. However, the said

transactions, it is apparent were not through banking channels but in

cash. To adduce satisfactory documentary evidence in such cases is

difficult. We, therefore, agree that the prosecution has not been able to

fully substantiate the motive, though the factum that the deceased was

engaged in money lending business has been deposed to and stated. It

is, however, not necessary in all cases of circumstantial evidence to

prove motive to sustain conviction. Chain of circumstances can be

complete even if motive is not fully established. What impels and

pushes a person to do a crime remains confined and known to the

accused. Because of overt acts in some cases, it may be possible to

decipher and know the reason or the cause which impelled the accused,

but in other cases it may not be possible to pin-point the so called

motive or reason. Crime/offence can be proved or established without

establishing/proving motive.

34. In view of the aforesaid discussion, we have reached the

following conclusions:-

(i) The appellant and the deceased were seen together on a

motorcycle at about 8.15 p.m. on 9th September, 2010.

(ii) Deceased was found in an injured condition in a nearby area at

9.30 p.m. and was taken to GTB hospital where he was declared

brought dead.

(iii) Ravinder (PW-1) had reached the hospital at about midnight

and informed the police officers that he had seen the deceased and

appellant together at 8.15 p.m. This became the starting point of

investigation.

(iv) The appellant made a disclosure statement Ex.PW24/C.

Pursuant to which, blood stained clothes worn by the appellant at the

time of occurrence were seized on 10th September, 2010 from the

rented room in occupation of PW-14 in the presence of the house

owner PW-13.

(v) The appellant had spent the night intervening between 8 and 9th

September, 2010 at the said rented room with PW-14, who has deposed

that the appellant came with blood stained clothes and injured hand at

about 11-11.30 p.m. and on being questioned had stated that he had

quarreled with pick pocketeers and had suffered injuries.

(vi) The appellant in his Section 313 Cr.P.C. statement has denied

having suffered injuries and has not given any explanation.

(vii) Ex.PW28/D, the FSL report in respect of handkerchief, T shirt,

pants, socks and shoes indicates that human blood was found on them.

FSL report also states that the deceased had substantial amount of

alcohol. Corroborating the similar assertion made by PW-1. FSL

report also corroborates testimonies of PWs13 and 14.

(viii) PW-12 has deposed that the appellant had purchased a meat

knife from him on 4th September, 2010.

(ix) Call records (Ex.PW26/C) of the mobile phone with number

95400131360 seized from the appellant, show that the appellant had

conversation with PW-12 on 3rd September, 2010 at 12.29 hours as

deposed by PW-12. Further, the appellant was in constant

conversation or sending or receiving SMSs on 9 th September, 2010

from 19.04 hours till 19.55 hours. Thereafter, there was a gap till

21.23 hours and from then onwards the appellant was constantly on

phone till 12.41 on 10th September, 2010 either by receiving or making

calls or SMSs.

35. In view of the aforesaid proved and established facts, we feel

that the chain of circumstances is complete. The prosecution has

proved that the appellant is the perpetrator of the crime in question.

There is no ambiguity, doubt or possibility of a third person

committing the said crime. We do not find any merit in the present

appeal and the same is dismissed. Conviction and sentence are

maintained.

(SANJIV KHANNA) JUDGE

(SIDDHARTH MRIDUL) JUDGE MAY 16th, 2013 VKR/NA