Dinesh Kumar vs State Of Nct Of Delhi
2013 Latest Caselaw 2365 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 1234/2010

        DINESH KUMAR                                ..... Appellant
                           Through:      Mr. Anurag Jain, Advocate

                           versus

        STATE OF NCT OF DELHI                      ..... Respondent
                      Through:          Ms. Ritu Gauba, APP


%                          Date of Decision: May 21, 2013

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE SUNITA GUPTA

                           JUDGMENT

: SUNITA GUPTA, J.

1. The appellant seeks to challenge his conviction order dated 17 th

August, 2010 passed by learned Additional Sessions Judge, New

Delhi vide which he was held guilty of the offence punishable under

Section 302 IPC and the order of sentence dated 25th August, 2010

vide which he was sentenced to undergo rigorous imprisonment for

life and to pay fine of Rs. 20,000/- in default thereof to undergo SI for

a period of six months.

2. Before going to the grounds of appeal, it will be in fitness to

narrate the prosecution case as it emerges from the record.

3. On 9th August, 2002, on receipt of call of murder of a lady at

House No. 1566/A, Wazir Nagar, Kotla, SI Dinesh along with Ct.

Ashok went to the spot where they came to know that a lady was

stabbed with a knife and a man had jumped from the roof. By that

time, both of them had been removed to AIIMS hospital. He went to

the hospital where the doctor declared the lady viz. Smt. Amarjeet

Kaur brought dead. Dinesh Kumar was found admitted in injured

condition. SI Dinesh recorded the statement of Satnam Singh,

husband of the deceased who, inter alia, stated that he had been living

with his wife in House No.1566/A, Wazir Nagar, Kotla for the last

three years. As per the family settlement, shop No. 1&2 came in his

possession. Shop No. 3&4 went to his deceased brother Surjeet Singh

and Arjun Singh. He was running a STD/PCO booth at Shop No. 1.

Shop No. 2 was given on rent to Ganga Prashad Verma for the last

6½ to 7 years. Ganga Prashad purchased the shop No. 3 from his

sister-in-law about 2 ½ years ago. Since then, he has been asking

Ganga Prashad to vacate his shop where he has been doing the work

of repair of sofa and curtains with his sons, Dinesh, Ramesh and

Umesh. Ganga Prashad did not listen to him and stopped paying rent.

On this, on many occasions, they had heated arguments resulting in

strained relations. However, he kept on reminding him from time to

time to vacate the shop. Dinesh used to speak in a loud voice and used

to pick up quarrels but he avoided. On becoming fed up at the

conduct of the accused and his father, about two months ago he got

electricity of shop No. 2 disconnected. Thereafter, they became

inimical to him. On 3rd August, 2002, at about 2:30 pm Dinesh came

at his STD booth and at that time one Balvinder Singh was also

present. Dinesh threatened him that he would teach him a lesson for

disconnecting the electricity in the scorching summer and he would

remember it for his whole life, but he did not take it seriously. On

9th August, 2002 at about 5:30 pm, Dinesh came at his booth and

started talking to him with respect to the shop. He did not discuss the

matter with him by saying that he would talk to Ganga Prashad.

Dinesh purchased a Pepsi bottle from his shop. After about 10

minutes, he left the shop. He, in routine, gave call bell to his wife

who lifted a parallel phone. He told her about the visit of Dinesh. On

this, his wife told him that Dinesh was sitting with her and talking

about the shop. Ten minutes later, he again gave call bell to his wife

but his wife did not pick up the phone. After 5-7 minutes, he heard a

noise that someone had fallen from the roof. He went there and saw

Dinesh in unconscious condition in front of shop No. 2 on the road.

He called his brother Ramesh. It occurred to his mind that Dinesh

had been sitting with his wife, he looked at the window and found it

open. He went upstairs and found his wife on the stair case. The

blood was oozing out from her chest, abdomen and shoulder. He also

noticed blood on the stairs and lobby. He also noticed a broken knife

with its blade and handle lying separately. He came down and raised

alarm that his wife had been injured by causing stab wounds. On

hearing the noise, some people went with him to the first floor,

brought his wife down and made her sit on the rear seat of the car

brought by Ramesh. Dinesh was already on the front seat of the car.

He did not object to taking of his wife in the same car since she was

pregnant for five months after 12 years of marriage and he wanted

immediate treatment. He sat with his wife on the rear seat and they

all went to the Casualty, AIIMS where doctor declared her dead and

admitted Dinesh. He alleged that Dinesh had killed his wife with pre-

planning.

4. On the statement of Satnam and the MLC, a case under Section

302 IPC was registered. Further investigation was conducted by

Inspector Ashok Kumar who prepared the inquest papers, inspected

the spot, called the crime team, got the spot photographed, collected

the blood from the staircase/lobby, Hawai chappal, a green colour

chunni, a blood stained towel, handle of the knife and the blade

stained with blood. Dinesh was referred from AIIMS to Safdarjung

Hospital but he fled away from there. Later on, he was arrested from

Safdarjung Terminal on the identification of Satnam Singh. He got

recovered his blood stained shoes from the place near Sewa Nagar

railway crossing. Post Mortem of the deceased was conducted and

the doctor opined injuries caused by sharp edged weapon, which were

sufficient in ordinary circumstances to cause death. The exhibits

were sent to FSL from where report was collected. After completing

investigation, charge sheet was submitted.

5. After hearing learned counsel for the parties, vide order dated

17.03.2003 charge for offence under Section 302 IPC was framed

against the accused to which he pleaded not guilty and claimed trial.

6. In order to substantiate its case prosecution examined 15

witnesses. The accused in his statement recorded under Section 313,

Cr.P.C. denied the case of the prosecution and pleaded his innocence.

He examined his brother-Ramesh Kumar as DW1 and Dr.Virat as

DW2. Vide order dated 29.04.2004, the appellant was held guilty of

the offence punishable under Section 302 IPC and was sentenced

separately. An appeal was preferred by him in this court. Vide order

dated 19.03.2010, the impugned order was set aside and trial court

was directed to re-examine the accused and record his defence

witnesses. Thereafter, his statement under Section 313 Cr.P.C. was

recorded afresh. The same witnesses were examined by him in

defence. Vide impugned order dated 17.08.2010, he was held guilty

of offence under Section 302 IPC and sentenced separately. The

impugned order has been assailed by filing the present appeal.

7. We have heard Mr. Anurag Jain, learned counsel for the

appellant and Ms. Ritu Gauba, learned APP for the State. It was

submitted by the learned counsel for the appellant that there is no

direct evidence and the case is based on circumstantial evidence. In a

case based on circumstantial evidence motive plays a vital role, which

is required to be proved by cogent evidence. In the instant case as per

prosecution case, the complainant had let out shop No.2 to the father

of the appellant, however, factum of creating tenancy is not proved, in

as much as neither there is any rent agreement nor any rent receipt to

prove this fact. The appellant has disputed that he or his father was a

tenant in respect of shop No.2. No litigation is pending between the

parties. Under the circumstances, prosecution has failed to prove the

motive to commit the crime. No credence can be given to the

testimony of PW2-Balwinder Singh in as much as he has tried to

improve the case of prosecution regarding facts which were not even

deposed by PW1-Satnam Singh. It was further submitted that as per

testimony of PW1, when he made a call to his wife on intercom, she

informed him that accused was sitting with her and talking about the

shop. What is the evidentiary value of this information given by the

deceased to the complainant? It was submitted that there is no last

seen evidence because nobody saw the accused in the company of the

deceased. The appellant fell down from the platform, which was at a

height of 5 feet and received injuries. He was also taken to the

hospital and statement of complainant was recorded by the

investigating officer of the case, wherein he had implicated the

accused but despite availability he was neither arrested nor was put

under surveillance. Thereafter, he was shifted to Safdarjung hospital

and then left the hospital. Thus there was no occasion for prosecution

to allege that he was absconding. Prosecution has tried to connect him

with the recovery of shoes, however, no reliance can be placed on the

same, as it was shown to be lying in open near railway track.

Moreover, when the accused was taken to hospital, he was wearing

shoes, if there was any blood why they were not seized then and

there, more particularly, when his clothes were also seized. Knife is

alleged to have been recovered from the spot, however, no finger

prints were lifted nor there is any evidence to show that injuries could

have been caused by this knife. Prosecution is relying upon the shoe

impression alleging that the same came on the sofa when the

appellant tried to jump from the window, however, sofa seat was sent

to FSL but no shoe impression could be found. Hence, these do not

connect the appellant with the crime. Even as regards the seizure of

bloodstained clothes of accused, the FSL report only gave „positive

for blood test‟, but there is no serological report. Hence, it is not

proved whether it was `human blood‟ or matched with the „blood of

the deceased‟. The blood might have come on the clothes of the

deceased when he was taken in the same car and was sitting next to

the deceased. As such, the same does not connect him with the crime.

It was further submitted that appellant was not mentally fit. Two days

prior to the incident, he cut his wrist as such even otherwise it was not

possible for him to hold knife. Moreover, handle and blade of the

knife were found separately. Had injuries been inflicted by the blade,

without its handle, accused must have sustained injuries on his hand

which are missing. The impugned order was also challenged on the

ground that the judgment is beyond evidence and the judgment of the

trial court is based on inferences against irrelevant facts. As such, it

was submitted that the impugned order be set aside.

8. Rebutting the submission of learned counsel for the appellant,

it was submitted by learned APP for the State that at the very first

available opportunity, name of the accused was given to the police as

the person who inflicted injuries on the person of the deceased with a

sharp edged weapon, as reflected from PCR call. The complainant

had informed the brother of the deceased about his jumping from the

roof; thereupon his brother had reached the spot and in his car the

accused, complainant and his wife went to AIIMS. Although, the

brother of the accused has deposed that he was given intimation that

accused has fallen from the platform, however, the MLC speaks

otherwise, which reflects that the accused was brought to hospital by

his brother and „history of fall from height/jump one hour ago‟ was

given.

9. As regards the relationship of landlord and tenant between the

parties, it was submitted that his brother appearing as DW1 admitted

in his cross-examination that they are tenant under the complainant in

respect of shop No.1. PW2 Balwinder Singh is an independent

witness and in his presence threat was given earlier by the accused to

PW1 Satnam Singh. It has further been proved that on the fateful day,

the accused firstly went to the shop of the complainant and started

talking about the shop, but when the complainant refused to talk to

him about the shop, then he took a Pepsi from his shop and then went

to his house. When the complainant talked to his wife on intercom,

she informed him that accused was present there and was talking to

her about the shop. This part of his testimony also goes unchallenged

as he was not cross-examined in this regard. As such, motive to

commit the crime is duly proved.

10. It was further submitted that the incriminating articles were

recovered from the spot and later on shoes were also recovered. As

per the seizure memo, there was imprint of shoes on sofa set,

however, when the sofa seat was sent to FSL, no reaction was given

in as much as sofa was spongy. The knife was recovered from the

spot. As regards the submission that handle and blade of knife were

lying separately and therefore had the accused stabbed the deceased

from that knife, he must have sustained injuries, it was submitted that

injuries were inflicted indiscriminately causing as many as fourteen

injuries and the accused did not leave the knife till its handle was

separated from the blade. The doctor has clearly opined that injuries

were possible by a sharp edged weapon and knife is a sharp edged

weapon. Even if no subsequent opinion was obtained from the doctor

that is of no consequence as it would have been only an opinion of the

doctor. As such, it was submitted that prosecution has been able to

establish its case beyond reasonable doubt. The trial court has already

taken a lenient view by not framing the charge under Section 316

IPC. The impugned order does not suffer from any infirmity which

calls for interference. As such, the appeal deserves to be dismissed.

11. There can be no doubt that the present case is one of

circumstantial evidence. There is no witness to the commission of

crime. Thus, there is a definite requirement of law that a heavy onus

lies upon the prosecution to prove the complete chain of events and

circumstances which will establish the offence and would

undoubtedly only point towards the guilt of the accused. A case of

circumstantial evidence is primarily dependent upon the prosecution

story being established by cogent, reliable and admissible evidence.

Each circumstance must be proved like any other fact which will,

upon their composite reading, completely demonstrate how and by

whom the offence had been committed. Hon‟ble Supreme Court and

this Court have clearly stated the principles and the factors that would

govern judicial determination of such cases.

12. Reference can be made to the case of Sanatan Naskar and

Anr. v. State of West Bengal, (2010) 8 SCC 249, where the Court

held as follows:-

"27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard."

28. A three-Judge Bench of Hon‟ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116 held as under:-

„152. 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 Govind Nargundkar v. State of M.P. AIR 1952 SC 343. 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 U.P 1969 (3) SCC 198 and Ram Gopal v. State of Maharashtra 1972 (4) SCC

625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case(supra)

"10.... It is well to remember that in cases where the 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."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, where the observations were made:-

"19.... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions.(emphasis in original)

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

13. In the light of these principles, we have to analyse the evidence

coming on record.

14. Police machinery swung into action on receipt of an

information by PCR at 18:47 on 09.08.2002 that a person had fallen

from roof of house No.1566/A, Wazir Nagar, Kotla Mubarakpur,

New Mother Dairy. Immediately after one minute i.e. 18:48 another

information was received that a boy has stabbed a lady and himself

has jumped from the roof. Both the injured were being taken to

AIIMS Hospital. Lady Amarjeet, wife of Satnam Singh aged 40

years, resident of 1566/A, Wazir Nagar, Kotla Mubarakpur has been

stabbed by Dinesh, son of Ganga Prasad, resident of C-281, Kotla

Mubarakpur by a sharp edged weapon. Both are in unconscious

condition. Reason is unknown. The incident has taken place at the

house. Both have been admitted in AIIMS. As such, at the very first

available opportunity the name of accused was given to the police as

the assailant of the crime when there was no chance of manipulation

or fabrication.

15. On receipt of DD No.16, SI Dinesh Kumar went to the spot,

where he came to know that the injured lady and the person, who had

fallen from the roof, had been taken to hospital by their relatives.

After leaving constable Ashok at the spot to safeguard the site, he

went to AIIMS hospital, met complainant Satnam Singh and recorded

his statement, Exhibit PW1/A. This statement was duly signed by the

complainant. The FIR was registered on the basis of this statement

and duly forms part of the record of the police station which was

maintained in normal course of its proceedings. In this statement the

complainant has given a detailed version under what circumstances

the incident had taken place. Besides the details given by the

complainant in his statement made to the police, which formed the

basis of the FIR, complainant substantiated his version while

deposing before the Court.

16. It has come in his testimony that on the fateful day his wife was

present at the house and he was present at the shop. Accused came to

his shop and on his asking he gave him cold drink. This fact stands

admitted by the accused in his statement under Section 313 Cr.P.C.

As such his presence at the shop of the complainant stands proved.

The complainant has further deposed that after the accused left, he

talked to his wife on intercom, who informed him that Dinesh was

present at the house and was talking to her regarding the shop. This

part of his testimony goes unchallenged, unrebutted and unshattered

as the same has not been assailed by way of cross-examination.

Further there is no evidence that someone else had entered the house

or was seen anywhere near the body of the deceased. The statement

made by the deceased to PW1 immediately before she was killed that

the accused was sitting with her and was discussing the issue of shop

with her is a very strong incriminating piece of evidence against the

accused to establish that he was present with the deceased

immediately before the incident.

17. Moreover, after about 10-15 minutes of leaving the spot PW1 -

Satnam Singh heard the noise of falling of somebody from the house.

He came out of the shop and found the accused lying in the gali. He

informed his brother on telephone, himself went to his house and saw

his wife lying in a pool of blood. He bolted the door of the house and

came down crying "loot gaya loot gaya", which finds corroboration

from DW1 - Rajesh. Thereafter, he removed his wife in the car of

Ramesh in which accused was also removed to AIIMS Hospital. The

fact that accused was brought to the hospital by his brother Ramesh

finds corroboration from his MLC, Ex.PW8/A, where in the column

"brought by brother Rajesh Kumar" is mentioned, whereas on the

MLC Ex.PW14/A of Amarjeet Kaur she was shown has "brought by

her husband". Though, the MLC of the accused does not record any

time of examination, but it can safely be presumed that it was

simultaneous to that of the deceased as they travelled to the hospital

together in the same car. The probable time of injuries to the accused

is, thus, the same as that of injuries caused on the deceased. This is

another clinching piece of evidence against the accused.

18. The clothes of the accused were taken into possession which

were blood-stained. According to the accused, the blood might have

come on his clothes when he was sitting on the rear seat of the car

along with the deceased. This plea is belied by the record inasmuch

as it has come in evidence that accused was made to sit in the car on

the front seat whereas deceased along with her husband was sitting on

the back seat while being removed to hospital. Therefore, there was

no occasion for blood stains to have come on the clothes of the

accused at that time. This also reflects that the blood came on the

clothes of the accused when he was stabbing the deceased.

19. Motive to commit the crime stands established in as much as

according to the prosecution the father of the accused failed to vacate

the tenanted shop, thereupon the complainant had disconnected the

electricity of the shop. On 03.08.2002, the appellant had threatened

him with dire consequences and on the fateful day the threat was

executed by committing murder of his wife.

20. Learned counsel for the appellant, however, submitted that

there is no material on record to prove that there existed relationship

of landlord and tenant between the complainant and father of the

appellant, inasmuch as, there is neither any rent agreement nor any

rent receipt. Moreover, no such threat as alleged was given. Both the

submissions are belied by the record, inasmuch as, it has come in the

testimony of the complainant that father of accused was tenant in

respect of shop No. 2 for the last about six years. To the same effect

is the testimony of PW-2 Balwinder Singh. PW-1 denied the

suggestion that there was no relationship of landlord and tenant

between the parties whereas testimony of PW-2 Balwinder Singh in

this regard, went un-rebutted in the absence of even giving any

suggestion to this effect. The mere fact that there was no written

agreement or rent receipt does not ipso facto prove that there does not

exist any relationship between the parties inasmuch as there is no

statutory requirement that for creation of tenancy, any written

agreement is pre-requisite. Even oral tenancy can be created.

Furthermore, record reveals that after the remand of the case,

statement of accused was again recorded under Section 313 Cr. P.C.

and various incriminating questions were put to him. The relevant

question in this regard is Question No. 1 which is to the following

effect:-

"Q1. It is evidence against you that your father was tenant of PW1 Satnam Singh in respect of shop No.2 in the house of PW1 at 1566/A, Wazir Nagar, Kotla Mubarakpur for about six years from 2003. PW1 had asked him to vacate the shop. A dispute was going on over the non-payment of rent and electricity and it resulted into a tussle between you and PW1 with dire consequences when you visited his shop. What you have to say?

The answer given by the appellant is to the following effect:-

A. I being the youngest child of my parents and due to my head injury and the regular fits I was not allowed to participate in day to day activities and it was due to this reason that I could not complete my studies. As far as I can remember my elder brother Sh. Ramesh Kumar had purchased a shop from Smt. Balwinder Kaur who was sister-in-law (bhabhi) of the complainant PW1 Satnam Singh. As such there was no dispute between me and PW1in regard to non-payment of rent and electricity. It is wrong to suggest that I ever threatened PW1."

21. Thus, despite the fact that a question was specifically put to the

accused that his father was tenant under Satnam Singh in respect of

shop No.2 at 1566/A, Wazir Nagar, Kotla Mubarakpur, the accused

has not chosen to deny this fact. The object of recording the statement

of accused under Section 313 of the Code is to put all incriminating

evidence to the accused so as to provide him an opportunity to

explain such incriminating circumstances appearing against him in

the evidence of prosecution. As held in Pudhuraja & Ors. Vs. State,

(2013) 1 SCC (Cri.) 430, it is obligatory on the part of accused while

being examined under Section 313 Cr. P.C. to furnish some

explanation with respect to incriminating circumstances, associated

with him and the court must take note of such explanation even in a

case of circumstantial evidence, in order to decide as to whether or

not, the chain of circumstance is complete. When the attention of

accused is drawn to circumstances that inculpate him in relation to

commission of crime and he fails to offer an appropriate explanation

or gives a false answer with respect to same, same act may be counted

as provided a missing link to complete the chain of circumstances.

Similar view was taken in Sunil Clifford Daniel Vs. State of Punjab,

(2013) 1 SCC (Cri.) 438.

22. In the instant case, the question referred above goes to show

that besides other incriminating circumstances, a specific question

was put to the accused that his father was a tenant in respect of shop

No. 2 under the complainant. Although, a detailed answer was given

by the accused but he omitted to give specific answer in regard to this

question which tantamounts to an admission on his part that his father

was a tenant in respect of Shop No. 2 under the complainant.

Furthermore, he examined his brother Ramesh Kumar as DW-1 Sh.

Ramesh. In cross-examination, the witness has admitted that shop

No.2 was taken on rent by him at the rate of Rs.3,000/- per month

from Satnam Singh. That being so, it was established beyond

reasonable doubt that there existed relationship of landlord and tenant

between the complainant and family members of accused and that

shop No. 2 was let out by the complainant to them.

23. It has further come on record that shop No. 3 was purchased by

father of the appellant from the sister-in-law of the complainant and

since then, the complainant had been asking him to vacate the

premises. However, the father of the appellant did not accede to his

request and in fact stopped paying rent. Thereupon the complainant

disconnected the electricity of shop No. 2. On 3 rd August, 2002,

accused visited the shop of Satnam Singh and threatened him with

dire consequences. At that time, PW-2 Balwinder Singh was also

present and in his presence, a complaint was made by accused and his

brother that Satnam Singh had not done something right in

disconnecting electricity in hot season and the accused at that time

threatened that consequences of that act would not be good. It is

pertinent to note the testimony of PW-1 and PW-2 in regard to this

deposition goes un-rebutted inasmuch as same has not been assailed

in cross-examination. There is no reason either to dis-believe the

testimony of the complainant or PW-2 Balwinder Singh in this regard

as no animosity or ill will has been alleged against him for which

reason, he would falsely depose against the accused. Thus the motive

to commit the crime stands proved.

24. After registration of FIR, SI Dinesh Kumar along with

Inspector Ashok Kumar came back to the spot. From the spot, blood

sample, chunni, blood stained towel, chappal and broken knife were

seized and sealed in separate pullandas. During the course of

investigation, all these exhibits were sent to CFSL, Calcutta from

where report Ex. PW-15/G was received. All these articles gave

"positive for blood test". After the MLC of accused was prepared, his

clothes comprising of shirt, baniyan, pant, underwear were also seized

which were also sent to CFSL, Calcutta and the same also gave

"positive for blood test". The clothes of the deceased were also taken

into possession, which were also sent to CFSL and gave "positive for

blood test". As per the report Ex.-PW-15/G regarding the origin and

grouping of blood, a separate report from the serological unit was to

follow. However, it seems that the same was not collected by the IO

which at the most can be said to be a defect in the investigation and at

the most it may be taken that serologist failed to detect the origin of

blood. But that itself is not fatal. In Sunil Clifford Daniel vs. State of

Punjab, (2013) 1 SCC (Cri) 438, by relying upon Gura Singh vs.

State of Rajasthan, (2001) 2 SCC 205, Prabhu Babaji Navle vs.

State of Bombay, AIR 1956 SC 51, Raghav Prapanna Tripathi vs.

State of U.P., AIR 1963 SC 74, it was observed that a failure by the

serologist to detect the origin of blood due to disintegration 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

blood. However, in such a case, unless the doubt is of a reasonable

dimension, no benefit can be claimed by the accused, in this regard.

25. It is further the case of prosecution that when the accused was

trying to jump from the window, the shoe prints came over the sofa

seat, which was sent to CFSL. However, as per the report Ex. PW-

15/H no shoe impression could be observed, and therefore, it was not

possible to opine whether any shoe impression was present on the

sofa seat. That may be due to the reason that as per report, the sofa

seat was spongy. However, that itself is not sufficient to cast any

doubt on the prosecution version.

26. The other incriminating piece of evidence against the accused

is the recovery of shoes at his instance. PW1 Satnam Singh, PW12

SI Sunil Jain, PW15 Inspector Ashok Kumar deposed that accused

was apprehended at SJ Bus Terminal. He made a disclosure statement

Ex. PW1/H and in pursuance thereof he led the police party and the

complainant to Sewa Nagar Railway Crossing from where he got

recovered the shoe, which was worn by him at the time of

commission of offence. The same was seized vide seizure memo

Ex.PW1/J. However, this recovery has been challenged by the

learned counsel for the appellant on the ground that firstly it does not

appeal to reason that clothes of the accused were seized in the

hospital while at the same time shoes were also not seized. Moreover,

the recovery is alleged to be effected from an open space near railway

track and as such same becomes doubtful. Even if that is so, the

prosecution case does not solely rest upon the recovery of shoes but

the circumstances narrated above prove the case of the prosecution to

the hilt.

27. Much emphasis has been laid for submitting that the learned

Additional Sessions Judge himself has noted the flaws in the

investigation viz. non-seeking subsequent opinion from the doctor

regarding the weapon of offence, collecting the serological report

from the Forensic Expert Department, non-seizure of shoes from

AIIMS, where the clothes of the accused were seized, non-

examination of neighbours. However, the learned Additional Sessions

Judge rightly observed that all this at the most can be termed to be

defects in the investigation. However, there are a catena of decisions

to the effect that defects in investigation by itself cannot be a ground

for acquittal. In Ram Bihari Yadav Vs. State of Bihar, AIR 1998 SC

1850, it was held by Hon'ble Supreme Court that if primacy is given

to the omissions or lapses by perfunctory investigation by the

investigating agency, the faith and confidence of people would be

shaken not only in law enforcing agency, but also in the

administration of justice. It is true if on account of any lapse doubts

are created in prosecution case, the accused would be entitled to the

benefit of that doubt. But, if the prosecution is able to establish its

case beyond reasonable doubt against the accused, in spite of lapses,

the accused cannot be acquitted because of the lapse on the part of

investigating officer. Substantially similar view was taken in C.

Muniappan and others vs. State of Tamilnadu, 2010 IX AD (SC)

317 where it was held that the defect in investigation by itself cannot

be a ground for acquittal. If primacy is given to such design or

negligent investigation or to the omissions or lapses by perfunctory

investigation, the faith and confidence of people in criminal justice

administration would be eroded. Where there has been negligence on

the part of investigating agency or omissions etc which resulted in

defective investigation, there is a legal obligation on the part of the

Court to examine the prosecution evidence de hors such lapses

carefully to find out whether said evidence is reliable or not or to

what extent it is reliable and as to whether such lapses affected the

object of finding out the truth. Therefore, the investigation is not the

solitary area for judicial scrutiny in a criminal trial. The conclusion of

trial in the case cannot be allowed to depend solely on the probity of

investigation.

28. The submission of learned counsel for the appellant that the

appellant was mentally imbalanced, moreover, before the incident he

slit his wrist in an attempt to commit suicide and therefore had

tendons on his wrist and with that injury the stabbing on the person of

the deceased could not have been done, with the broken knife he

could not have stabbed the deceased and in case he had done so he

would have received injuries on his palm and finger and the accused

had fallen from a height of 5 feet from the platform are devoid of

merit in as much as:

(i) the accused himself has examined DW2 - Dr. Virat, who

brought his medical record and deposed that he was a

known case of right orbital hemangioma and proptosis and

under the regular treatment from AIIMS. He had

symptoms of protrusion of eye balls from his childhood.

He was suffering from eye tumour but that did not have

effect on his mental condition. He could perform his

normal course with this disease. No treatment was required

from psychiatric illness to the accused. There was no

complaint of abnormal behavior by the accused.

(ii) As regards the submission that due to tendons on his wrist,

the stabbing on the person of the deceased was not possible

is without substance, in as much as PW3 - Dr. Salini

Giridhar, PW5 - Dr. Sunil Kumar Sharma and PW8 - Dr.

Jayant M.G. were extensively cross-examined and all of

them have deposed that a man after cut of tendons could

hold a cup of tea. Dr. Sunil Kumar Sharma further deposed

that there are more than 10 tendons on the wrist, so if all the

tendons are not cut it may be possible to hold a cup of tea.

It was not suggested to either of these doctors that due to

cut tendons on the wrist stabbing on the person of deceased

could not have been done by the accused.

(iii) As regards the plea that the accused had fallen from a

platform at the height of 5 feet, same is again devoid of

merit, in as much as it is not in dispute that after the

complainant saw the accused lying on the spot, he informed

his brother, who reached the spot and removed the accused

to hospital. His MLC, Ex. PW8/A records "history of

fall/jump about one hour ago". The accused was got

admitted in the hospital by none else, but his own brother

and this history was also given by him. Had the accused

fallen from the platform, there was no occasion for the

brother to have given the history of "fall/jump about one

hour ago".

(iv) The further submission that in case the

injuries had been caused by the accused by the blade only

he would have sustained injuries on his hand, same again is

devoid of merit in as much as per post mortem report,

Ex.PW3/A, the deceased has as many as 14 injuries on her

person. This rather goes to show that the accused stabbed

the victim in a most callous manner and gave indiscriminate

blows till he broke the knife and could stab no further.

29. From the aforesaid analysis, we are of the considered opinion

that all the circumstances, which have been established by the

prosecution, complete the chain. There can be no place of doubt that

the circumstances have been proved beyond reasonable doubt. In this

regard, it will be help to reproduce the observation made in Sucha

Singh Vs. State of Punjab (2003) 7 SCC 643, where it was stated

that:-

"20. ..... The prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect."

30. The present case is one where there is no trace of doubt that all

circumstances complete the chain and singularly lead to the guilt of

the accused. The fact that fourteen injuries were caused in quick

succession out of which injuries No.1,4,5 & 8 were opined to be

individually and collectively sufficient to cause death in ordinary

course of nature coupled with the fact that „the deceased was unarmed

and in a helpless situation‟ is sufficient to indicate that Section 300

„thirdly‟ is attracted in this case.

31. In view of the aforesaid reasons, we do not find any infirmity

in the judgment of conviction and order of sentence recorded by

learned Additional Sessions Judge. Accordingly, the appeal, being

devoid of substance, stands dismissed.

SUNITA GUPTA, J

REVA KHETRAPAL, J May 21, 2013 rs/aks