Raja Ram vs State
2013 Latest Caselaw 2511 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Reserved on: 3rd May, 2013
%                             Date of Decision: 28th May, 2013

+              CRIMINAL APPEAL NO.1433/2012


RAJA RAM                                    ..... Appellant
                       Through:   Ms.Saahila Lamba, Advocate.

                                  Versus

STATE                                       ..... Respondent

Through: Ms.Richa Kapoor, APP.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. Appellant namely, Raja Ram was tried for the offence under

Section 302 of the Indian Penal Code, 1860 (hereinafter referred to

IPC) for causing death of Draupadi aged about 50 years at about 5.00

p.m. on 20th June, 2010 at Jhuggi No.168, Masjid Wali Gali, Hastal,

Uttam Nagar, New Delhi. Vide impugned judgment dated 28th July,

2012, the appellant has been convicted for the offence under Section

302 IPC and vide order on sentence dated 30th July, 2012, he has been

sentenced to undergo imprisonment for life and fine of Rs.1,000/- in

default of which to undergo SI for 15 days.

2. On 20th June, 2010, at 5.15 p.m., the Duty Officer, P.S. Uttam

Nagar, recorded DD No.30A (Ex.PW16/A) that an information on

wireless has been received that injury was caused on the head of

mother of complainant and a piece of cloth was gauged in her mouth in

Jhuggi No.168, Masjid Wali Gali, Hatsal, Uttam Nagar, New Delhi.

The same was sent to SI Vinod Kumar, who along with Head

Constable Harish Kumar went to the spot. Inspector J.K. Gautam

made DD No.33A (Ex.PW19/A) and Inspector Sube Singh along with

staff also reached at the spot where they came to know that injured had

been removed to DDU Hospital by PCR. Inspector Sube Singh went to

DDU Hospital and found that Draupadi was brought in casualty in

unconscious condition, where, she was declared dead.

3. On 20.6.2010, the complainant Rajesh Kumar Gautam @ Bhola

Nath, (PW-2) made a statement that at about 12.00 noon that he left the

house for work, his sister Hem Lata and Parveen also left for work at

about 9.30 a.m, Hem Lata used to work in Kothi at Fateh Nagar and

Parveen was employed in a beauty parlour at Fateh Nagar. His mother

was alone in the house. His neighbour Raja Ram who was working as

Mason, was doing repair work in his jhuggi during evening time for the

last 10 days and at the same time Raja Ram developed some relations

with his mother. On this, wife of Raja Ram namely, Bhagwati used to

quarrel with him but still Raja Ram used to come to meet his mother.

On that day at about 5.00 p.m, when he reached near his jhuggi, he

(complainant) saw appellant, Raja Ram in a perplexed condition,

coming out from his jhuggi and after seeing him, he ran towards his

jhuggi and he saw that there were blood stains on the pant and shirt of

appellant. When he entered in his jhuggi, he saw that his mother was

lying on the floor and blood was oozing from her head and there were

blood stains on pillow and bag (katta) and cloth was gauged in the

mouth of his mother. He took out the cloth from the mouth of his

mother and found that his mother was not speaking. Volume of the

speaker of TV was loud and a blood stained brick was lying near the

head of his mother. He ran towards the STD booth of Laxmi Chand

and called at number 100 and PCR van reached at the spot and

removed his mother to hospital where doctor declared his mother dead.

Appellant had killed his mother to pacify the anger of his wife.

Inspector Sube Singh made endorsement Ex.PW19/B and FIR

Ex.PW7/A was registered.

4. From the spot, blood stained chunni, saree, blood stained pillow,

blood stained brick and blood lying near the pillow and earth control

were seized vide memo Ex.PW2/C. The sketch of brick from both the

sides (Ex.PW2/D) was prepared. Crime team visited at the spot and

prepared the report Ex.PW19/J. Rough site plan Ex.PW19/C and

Ex.PW19/D were prepared.

5. On 21st June, 2010, at about 8.00 a.m., the appellant Raja Ram

was apprehended and arrested by Constable Dharamvir (PW-13) vide

memo Ex.PW13/A. At the time of arrest, he was wearing blood

stained clothes which were seized and exhibited as memo Ex.PW13/C,

he made disclosure statement (Ex.PW13/D) and pointed out the place

of occurrence vide memo Ex.PW13/E.

6. On 21st June, 2010, dead body was sent to mortuary for post

mortem. As per post mortem report (Ex.PW4/A) the cause of death

was craniocerebral injury caused by hard blunt and forceful impact

upon head. All injuries were antemortem in nature and of same

duration. The external injury No.1 was sufficient to cause death in

ordinary course of nature.

7. Statement of complainant Rajesh Kumar Gautam and Saleema

Begum, who was neighbourer were recorded under Section 161

Cr. P.C. Scaled Site Plan (Ex.PW17/A) of the scene of crime was

thereafter got prepared by SI Mahesh Kumar, Draftsman (PW-17).

The prosecution, in support of his case examined as many as 19

witnesses. Thereafter statement of appellant under Section 313 Cr.P.C.

was recorded. The appellant did not chose to lead any evidence.

8. We have heard the arguments advanced by learned counsel for

the appellant as well as learned Additional Public Prosecutor for the

State and carefully perused the records.

9. It is relevant to notice that the prosecution has not claimed that

the murder of the deceased was witnessed by anyone and no direct

evidence regarding the same is adduced before the court. Admittedly,

the whole case against the appellant rests on circumstantial evidence.

The law relating to circumstantial evidence is well settled. In dealing

with circumstantial evidence, there is always a danger that conjecture

or suspicion lingering on mind may take place of proof. Suspicion

howsoever strong cannot be allowed to take place of proof and,

therefore, the Court has to judge watchfully and ensure that the

conjectures and suspicions do not take place of legal proof. However,

it is derogation of Law of Evidence to discard and reject the

prosecution version on the ground that evidence relied upon is

circumstantial. Humans may fault or fail in expressing the

picturization of the actual incident but the circumstances often convey

the true and correct picture. It is aptly said that "men may tell lies, but

circumstances do not". In cases where evidence is of circumstantial

nature, at the first instance, each circumstance or the fact alleged/relied

should be fully established. Every fact must be proved individually

and only thereafter the Court should consider the total cumulative

effect of all the proved facts, i.e. whether in totality, each proved fact

reinforces that conclusion of the guilt. If the combined effect of all the

facts taken together is conclusive in establishing the guilt of the

accused, the conviction would be justified even though one or more of

these facts individually, by itself/themselves, is/are not decisive. The

circumstances proved should be such as to exclude every hypothesis

except the one sought to be proved. But this does not mean that before

the prosecution succeeds in a case of circumstantial evidence, it must

exclude each and every hypothesis suggested by the accused,

howsoever extravagant and fanciful it might be. Practical and

pragmatic approach is required. There must be a chain of evidence so

complete, as not to leave any reasonable ground for 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. Where the 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. If the circumstances proved

remain consistent with the innocence of the accused, then the accused

is entitled to the benefit of doubt. However, in applying this principle,

distinction must be made between facts called primary or basic on the

one hand and inference of facts to be drawn from them on the other. In

regard to the proof of basic or primary facts, the Court has to judge the

evidence and decide whether that evidence proves a particular fact or

not and if that fact is proved, question arises whether fact leads to the

inference of guilt of the accused person or not. There should be no

missing links in the case, yet it is not essential that every one of the

links must appear on the surface of the evidence adduced and some of

these links may have to be inferred from the proved facts. In drawing

these inferences or presumptions, the Court must have regard to the

common course of natural events, and to human conduct and their

relations to the facts of the particular case.

10. Now we will deal with all the incriminating circumstances one

by one;

A. Hostile witness

11. The prosecution case is primarily based upon the testimony of

son of the deceased Rajesh Kumar Gautam (PW-2) who is the

complainant in the present case. PW-2 deposed in his statement under

Section 161 Cr. P.C. that on 20th June, 2010, he left for his job at 10.00

a.m. and his mother (deceased) was alone in the house. At about 4.35

p.m., when he came back he saw the appellant coming out from his

jhuggi in perplexed condition and had also seen blood stains on his

pant. On seeing this, he immediately entered his jhuggi and saw his

mother lying on the floor with a cloth piece in her mouth. He then

rushed to nearby STD booth and called the police. The deceased was

declared dead by the doctors in the hospital. In his statement before

the Court, he deposed that he was working as a Car Mechanic and used

to leave for his job at 8.00 a.m. and come back at 8.00 p.m. His sisters

and mother (deceased) were working as maid servants. On 20 th June,

2000, he left for his job at 10.00 a.m. and at that time his mother was

alone at the house as both his sisters had also left for their work. At

about 4.30/5.00 p.m., when he came back to his house, he saw his

mother lying on the floor and cloth was there in the mouth of his

mother (deceased), he also noticed injury on her back side of the head,

hole over the cheek and bluish mark on her eyes which he supposes to

be a fist blow, he then called his neighbourer Saleema Begum (PW-3)

and made a call to the police from nearby STD booth. His mother was

then shifted to DDU Hospital, there she was declared dead by the

doctors. He refuted and denied factum of seeing the appellant coming

out from his jhuggi with a blood stained pant, in a perplexed condition.

He was declared hostile by the learned APP but did not support the

prosecution version. Therefore, testimony of this witness is of no use

to the prosecution as the witness turned hostile on the point which was

mainly relied upon by the prosecution. PW-2 in his statement under

Section 161 of the Code of Criminal Procedure or the complaint

Ex.PW2/A mentions the appellant's presence, but that cannot be used

as an evidence against the appellant to base his conviction. It can only

be used for the purpose of contradiction. Further, PW-2 deposed that

he left for work at 10.00 a.m. on 20.6.2010 whereas in his complaint

Ex.PW2/A he stated that he left for work at 12 noon. If we observe

post mortem report, the time of death itself come out to be 12 noon.

PW-2 is the son of the deceased and he has exonerated and has not

substantially supported the prosecution case. His statement to the

police was the edifice of the prosecution case.

12. It is well settled law that evidence of a hostile witness would not

be totally rejected if spoken in favour of prosecution or the accused but

required to be subjected to close scrutiny and that portion of the

evidence which is consistent with the case of prosecution or defence

can be relied upon. It is indeed necessary that Court must make an

attempt to separate grain from the chaff, the truth from the falsehood,

yet this could only be possible when the truth is separable from the

falsehood. Where the grain cannot be separated from the chaff because

the grain and chaff are so inextricably mixed up that in the process of

separation, the Court would have to reconstruct an absolutely new case

for the prosecution by divorcing the essential details presented by the

prosecution completely from the context and the background against

which they are made, then this principle will not apply.

13. Therefore, relying upon the above principles, testimony of

PW-2, who turned hostile and did not support the case of prosecution

on material aspects. His statement casts doubts about the prosecution

story.

B. Last seen

14. Prosecution has also relied upon the testimony of Saleema

Begum (PW-3). PW-3 had not seen the appellant Raja Ram killing

the deceased but the prosecution claims that she had seen him in the

house of the deceased. She further testified that the appellant was

residing in her neighbourhood jhuggi and he used to work as a Mason.

On the date of incident, the door of the jhuggi belonging to the

deceased was partly opened. The sound of the TV was on high

volume. Learned APP declared this witness hostile as she resiled from

her earlier statement that she saw the appellant and the deceased

together soon before the incident while they were watching TV. Her

examination-in-chief does not bring out or support the plea of last seen.

In her cross-examination, in a suggestion put to her on behalf of the

appellant, wherein she admitted that she saw the appellant Raja Ram

watching TV with Draupadi (deceased) but date and time of last seen

was neither disclosed by PW-3 nor was it put to her in the form of

suggestion by the Additional Public Prosecutor for the State. PW-3

deposition in Court is vague and ambiguous. It is difficult to pin point

when she had last seen both of them. Last seen evidence relies upon

proximity of time and place when the accused and the deceased were

last seen together and the time and place of crime/offence. Possibility

of a third person being or could be the perpetrator should be ruled out.

In the present case place of occurrence was not the house/jhuggi of the

accused.

15. The Supreme Court in Sahadevan and another v. State of Tamil

Nadu, AIR 2012 SC 2435, while referring to its earlier decisions in

State of Karnataka v. M.V. Mahesh, (2003) 3 SCC 353 and State of

U.P. v. Satish, (2005) 3 SCC 114 observed that with the development

of law, the theory of last seen has become a definite tool in the hands

of the prosecution to help in establishing the guilt of the accused. This

principle has been accepted in various judgments of this Court. The

principle is applied with care and caution as it has limitations. The fact

that the accused and deceased were last seen together, may raise

suspicion but this may not be individually or by itself sufficient to lead

to a finding of guilt. In Arjun Marik vs. State of Bihar, 1994 Supp.(2)

SCC 372, the appellant was alleged to had gone to the house of one

Sitaram in the evening and had stayed in the night at the house of

deceased Sitaram. It was observed that it would be shaky and

inconclusive to convict the appellant solely on this evidence. Even if it

was accepted that they were there, it would, at best, amount to be the

evidence that appellant was seen together with the deceased. The

circumstance of last seen by itself would not complete the chain of

circumstances for recording a finding consistent with the hypothesis of

guilt of the accused and, therefore, no conviction, on that basis alone,

should be founded. We must rule out the possibility of a third person

intervention or involvement.

16. Resiling from earlier statement and conduct of PW-3 makes the

statement of this witness unreliable. Moreover, mere last seen together

cannot be itself a ground for forming an opinion that it was only the

appellant who has committed the offence. The prosecution has to

prove last seen together with other circumstances that except the

appellant, no other person could have committed the offence. PW-3 in

her statement under Section 161 Cr.P.C. has stated that when at around

4.00 in the afternoon, she had come outside her house then she saw that

the door of the deceased's house was partly open through which she

could see that both the deceased and the accused were watching TV

and thereafter she went inside her jhuggi. However, in her statement in

chief she remained silent about the time. In her cross-examination

before the Court again she has not stated that the time and the place

where she had seen the accused and deceased together. The Court

deposition matters and is relevant. A vague statement of PW-3 without

mentioning the time is rather sketchy and unreliable. She too has not

fully supported the prosecution case.

17. Undoubtedly, the last seen theory is an important event in the

chain of circumstances that could completely establish and/or could

point to the guilt of the accused with some certainty. But this theory

should be applied while taking into consideration the case of the

prosecution in its entirety and keeping in mind the circumstances that

precede and follow the point of being so last seen.

18. In light of the abovementioned contradictions and the

uncertainty of evidence, we are of the view that mere last seen

circumstance is virtually not completely established and proved. The

fact of last seen together is ambiguous, debatable and suffers from

apparent deficiencies and discrepancies as well.

C. Arrest and Recovery

19. As per the story of prosecution, the appellant was arrested on

21st June, 2010 i.e., the next day of incident at about 8.00 a.m. when he

was sitting nearby his jhuggi. According to Constable Dharamvir

(PW-13) who apprehended the appellant deposed that the appellant

was arrested while he was wearing the blood-stained clothes which

were seized vide memo Ex.PW13/C and appellant made disclosure

statement Ex.PW13/D. It is highly unbelievable that after committing

such a heinous and ghastly crime, the appellant would be sitting nearby

the place of incident and that too with the blood stained clothes on his

person also in such a situation when the police had searched for him

the entire night after the incident and he was nowhere to be found.

Furthermore, if appellant would have been sitting there, other

neighbourers or son of the deceased who is complainant (PW-2) might

have seen the appellant and informed the police but no such evidence

is brought on record. Even if we believe that the appellant was

involved in the commission of crime and he was apprehended from

nearby his jhuggi, prudence suffice that he could have gone to his

jhuggi and changed his clothes instead of sitting there with the blood

stained clothes. All these circumstances make the arrest and recovery

of blood stained clothes of the appellant doubtful. Although blood

stained found on the clothes of the appellant tallied with the blood

group of the deceased but from the above circumstances, recovery of

blood stained clothes of the appellant seems to be shrouded and

nothing else.

D. Motive

20. It is true that in a case relating to circumstantial evidence motive

assumes importance unlike the cases of direct evidence but to say that

absence of motive would dislodge the entire prosecution story is

perhaps giving this one factor an importance which is not due and to

use the cliché the motive is in the mind of the accused and can seldom

the fathomed with any degree of accuracy.

21. In the present case, it is contended by learned Additional Public

Prosecutor for the State that the appellant had developed intimate

relations with the deceased, to which, wife of the appellant had

objected. To pacify his wife, appellant killed the deceased. Rajesh

Kumar Gautam (PW-2) deposed that the appellant had constructed the

walls of the rear room in the jhuggi and laid floor there. He had white

washed the walls of the said room but did not charge anything on

account of repair work as he had developed intimate relations with the

deceased (his mother). At best the statement shows that the deceased

and the appellant were close and had relationship with her. But there is

no evidence or material to show that they had fallen apart or the

relationship had soured. In fact others including family members of

the deceased would have surely protested and have had equal

grievance. Even if appellant was having relations with the deceased,

there is nothing to show that the same impelled the appellant to commit

murder of the deceased.

22. All facts, if considered, in toto will make the implication of

appellant in the present case doubtful and therefore benefit of doubt

should be extended to the appellant. The entire evidence when

examined in totality does not establish and prove the guilt/offence

attributed to the appellant.

23. In view of the aforesaid facts and circumstances, we allow the

appeal and set aside the impugned judgment dated 28 th July, 2012 and

order on sentence dated 30th July, 2012. The appellant is in judicial

custody, he be released forthwith, unless he is required to be detained

in any other case in accordance with law.

(VED PRAKASH VAISH) JUDGE

(SANJIV KHANNA) JUDGE May 28, 2013/gm