Delhi High Court

Vinod Kumar vs State on 1 October, 2013

Author: Kailash Gambhir

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Dated of decision: October 01, 2013

+      CRL.A. 474/1999
       VINOD KUMAR
                                                          ..... Appellant
                         Through:    Mr. R.P. Luthra and Mr. Tejas
                                     Parashar, Advocates
                         versus
       STATE
                                                         ..... Respondent
                         Through:    Mr. Sunil Sharma, Additional
                                     Public Prosecutor for the State
                                     with Sub-Inspector Amit Verma,
                                     Police Station Shakarpur, Delhi
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE INDERMEET KAUR
                       JUDGMENT

KAILASH GAMBHIR, J

1. By this appeal filed under Section 374(2) of the Code of Criminal

Procedure, 1973 (hereinafter referred to as Cr.P.C), Appellant- Vinod

Kumar seeks to challenge the Judgment dated 27th August, 1999 and

Order on Sentence dated 31st August, 1999 passed by the Court of Shri

I.C. Tiwari, Ld. Additional Sessions Judge, Shahdara, Delhi, whereby the

appellant has been convicted for committing an offence punishable under

Section 302 Indian Penal Code, 1806 (hereinafter referred to as IPC) and

sentenced to undergo Imprisonment for life together with imposition of

fine of Rs.2,000/- and in default thereof to undergo Rigorous

Imprisonment for a period of one year.

2. The prosecution story as has been unfolded in the Charge Sheet

filed by the prosecution is as under:-

"The appellant is the neighbor of the deceased. On 12.07.1995 at about 12 in the noon the appellant came to the residence of the deceased and called the deceased o accompany him. Upon this PW3 being Mother of the deceased inquired from the accused as to where are they going. The accused replied that they will return soon and after this he took the deceased along with him holding his hand. Father of the deceased, PW3 was also present in the house, but was sleeping as he had done his duty of Security Guard on the previous night. The deceased did not turn up till 1 pm. On this PW 3 went to accused's house to inquire about the whereabouts of the deceased. Accused told her that the deceased has gone to watch movie and he will be back. However the deceased did not return for the whole night. On 13.07.1995 at about 7 A.M PW3 again went to the house of the accused to inquire about the whereabouts of the deceased. There the

Mother of the accused informed PW3 that the accused has gone to work and he will be back by 9 PM. For the whole day PW1 and PW3 kept on searching the deceased but they could not find him. In the night at around 8 PM PW1 and PW3 again went to the house of accused, where they met the accused and inquired from him about the whereabouts of their son. The accused first informed them that the deceased has gone to purchase MANJHA (thread for flying kites). At this, when PW-1 and PW-3 said that Dharminder has not returned since yesterday, the accused replied that he had left Dharminder on the road and when PW-1 and PW-3 again inquired, then the accused replied that he had left Dharminder at their residence. After getting no satisfactory reply about the whereabouts of deceased, PW1 and PW3 threatened the accused that they will report the matter to the police if he does not tell them the truth. Thereafter PW1 at about 10 PM went to the Police Station to lodge a Missing Report of the deceased. After lodging the Missing Report the Police accompanied PW1 and PW3 to the house of accused, where they came to know that the accused has absconded from his house as soon as PW1 and PW3 left for Police Station.

On 14.07.1995 at about 8 AM PW5, Kamal Singh, cousin brother of the deceased, told PW1 that the dead body of deceased is lying in the bathroom which is on the terrace of Shanti Gopal Building. On hearing this PW1 reached the spot and identified the body of the deceased. A rope was tied with the neck of the dead body, the hands of the body were tied on the back side. PW1 suspected that the deceased has been murdered by the accused.

The SHO made his endorsement on the said rukka and sent the rukka to Police Station. On the basis of the said rukka a case was registered under Section 302 Indian Penal Code, 1860."

3. After the completion of investigation, the Charge-Sheet was filed.

The accused was charged for the offence punishable under Section 302 of

IPC. Prosecution in support of their case examined as many as 24

witnesses.

4. In order to afford an opportunity to explain circumstances

appearing in evidence against the accused person, he was examined under

section 313 Cr.P.C. His case has been of denial simplicitor. He claimed

his implication in the instant case to be false and fabricated at the hands

of investigating agency. However, he has not examined any witness in

his defense.

5. Addressing arguments on behalf of the appellant, Mr. R.P. Luthra,

Learned Counsel submitted that as per the case set up by the Prosecution,

Ram Singh (PW-1), father of the deceased and Ms. Munni Bai (PW-3),

mother of the deceased were the witnesses of last seen evidence but due

to many contradictions and discrepancies in their testimonies, the same

are totally irreconcilable. Giving a graphic description of the

contradictions in the testimonies of PW-1 and PW-3, Ld. Counsel for the

appellant pointed out that PW-1 in his statement deposed that on 12th July

1995 at 12 noon, he was sleeping at that time and in the first information

report, he stated that the accused Vinod came and took his son along on

the same day at the same time, while PW-3 in her Court deposition stated

that on 12th July 1995 at about 12 noon, she was taking lunch alongwith

her son Dharminder and other children, when the accused Vinod came

and called her son to accompany him. The other contradiction pointed out

by Ld. Counsel in the statement of PW-1 is that at about 1 PM on 12th

July 1995, his wife had gone to the house of accused Vinod to inquire

about Dharminder and at that time Vinod told his wife that Dharminder

had gone to purchase „manjha‟ and in a statement under Section 161 of

Cr. P.C., he stated that his wife had gone to Vinod‟s house at 9 p.m on

12th July, 1995, where Vinod told her that Dharminder had gone to see a

movie, while PW-3 in her deposition stated that she went to the house of

the accused to inquire as to why Dharminder had not turned up, but she

could not meet Vinod but the mother of Vinod told her that Vinod had

gone for duty and will return at 9 PM.

6. Similar contradictions have been pointed out by Ld. Counsel for

the appellant with regard to the subsequent visits of PW-1 and PW-3 and

as per the Ld. Counsel for appellant, the inconsistent stands taken by

PW-1 and PW-3 clearly put a question mark on the veracity and

truthfulness of the last seen theory propounded by these witnesses.

7. Ld. Counsel for the appellant also argued that the post mortem

report also completely falsifies the ocular evidence of PW-3 as in the post

mortem report (Ex-PW-6/A), it has been stated by the Doctor that the

stomach of the deceased was empty having no abnormal smell and NAD

Liver, spleen, kidneys and bowels are intact, showing signs of

decomposition, bladder and rectum-empty, whereas PW-3, deposed that

the deceased had accompanied the appellant after taking his lunch. The

contention raised by Ld. Counsel for the appellant was that if the

deceased had taken lunch with PW-3 at 12 noon, then in the post mortem

report his stomach, bladder and rectum could not have been opined as

empty. Another incongruity pointed out by Ld. Counsel for the appellant

to throw enough doubt, on the testimony of PW-1 and PW-3, was that as

per the post mortem report, which was given on 15th July 1995 at 11.15

a.m., the death was said to have taken place about three days back.

Meaning thereby that the deceased must have died on 12th July 1995 at 11

a.m. Contention of the Ld. Counsel for the appellant was that if the time

of death as per the post mortem report is taken into consideration, then in

any case the deceased could not have been in the company of the

appellant on 12th July 1995 at 12 noon. Ld. Counsel for the appellant

further pointed out that even as per the Statement of PW-1, under Section

161 of Cr. P.C. , she had visited the house of appellant at 1 PM on 12th

July 1995 and personally met the appellant, meaning thereby that the

deceased was not in his company.

8. Another contention raised by Ld. Counsel for the appellant was

that it is an admitted case of the prosecution that Shanti Gopal Building

was occupied by more than 50 offices and there is not even an iota of

evidence to demonstrate that the present appellant was ever seen in or

around the said building by the chowkidar or any the other employees

working in these offices much less to say on the date or time of incident.

Next argument advanced by Ld. Counsel for the appellant was that the

appellant and their family members never absconded from their place and

as per the deposition of PW-1 and PW-3, they have themselves met the

appellant and his parents, after the alleged incident of missing of the

deceased.

9. Ld. Counsel for the appellant also submitted that on 14th July,

1995, the accused himself had surrendered and Investigating Officer took

his jamatalashi and thereafter, had brought him to Shanti Gopal Building.

10. Ld. Counsel for the appellant further argued that as far as the

circumstance of recovery of rexine bag on 15th July, 1995 at the instance

of appellant is concerned, here the prosecution stands fully exposed as in

the site plan proved on record as Ex.PW-16/C the existence of this rexine

bag has been shown in the adjoining room of a portion where the dead

body of the deceased was lying, yet the same was not seized by the

Investigating Officer and has later planted the said rexine bag in the

alleged recovery at the instance of accused. With regard to the alleged

injuries on the person of the accused, it was also submitted that in his

statement recorded under Section 313 of Cr. P.C., the appellant clearly

explained that the injuries were caused by the police and with this

explanation offered by the accused there was no room left for the learned

Trial Court to draw any adverse inference of the said injuries against the

Appellant.

11. Ld. Counsel further submitted that so far as the human blood found

on the clothes of the appellant, which were seized by the police on 15th

July, 1995 is concerned, under no circumstance the same can be held as

evidence in establishing the culpability of the Appellant. Firstly, because

of the fact that in the post mortem report, it was clearly opined that the

deceased had not suffered any external injuries which could result into

putting blood stains the clothes of the accused and secondly, as per the

settled legal position the recovery of blood stained clothes is a very weak

piece of evidence to inculpate the accused, especially when the

prosecution has neither been able to prove any connection of the said

clothes with the appellant nor could they prove that the blood stains found

on these clothes match with the blood group of the deceased. Ld. Counsel

for the appellant also argued that there was no evasive replies given by

the appellant which could shift the burden of proof on him to prove his

innocence under Section 106 of the Indian Evidence Act, 1872 as the

prosecution in the facts of the present case has failed to discharge its own

onus to prove and establish the commission of the said crime by the

appellant beyond any shadow of doubt.

12. Ld. Counsel for the appellant also argued that the said witnesses,

PW-1 and PW-3 cannot be termed as sterling witnesses as their

testimonies are full of contradictions, discrepancies and embellishments

which are unsupported otherwise by any corroborative evidence. Ld.

Counsel for the appellant also argued that the prosecution has also not

brought to fore any motive on the part of the appellant in carrying out the

murder of the deceased named Dharminder. Based on these submissions,

Ld. Counsel for the appellant urged that the appellant has been falsely

implicated in the present case without there being even an iota of

evidence against him to link him with the commission of the said crime.

13. Refuting the submissions advanced by Ld. Counsel for the

appellant, Mr. Sunil Sharma, Additional Public Prosecutor for the State

submitted that the learned Trial Court has passed a well-reasoned

Judgment of conviction and order on sentence and there is no scope for

interference by this Court in the exercise of its Appellate powers.

Advancing his submissions, learned Additional Public Prosecutor argued

that the prosecution has successfully proved the chain of circumstances to

inculpate the accused in the commission of the said crime of murder by

him and the evasive replies given by the appellant on the visits of PW-1

and PW-3 (Father and mother of the deceased) to inquire from him the

whereabouts of their son, clearly establishes his involvement in the said

crime. The conduct of the accused in absconding from his house;

recovery of a rexine bag from the spot of crime during his disclosure

statement; offering no explanation to the injuries suffered by the accused;

human blood stains found on his pant and shirt, which were also

recovered from his house during his disclosure statement; and above all,

the last seen evidence of PW-1 and PW-3 are very strong circumstance

unerringly pointing out to only one hypothesis i.e. the guilt of the accused

and therefore there is no escape for the appellant to seek his acquittal in

the present case. Learned Additional Public Prosecutor further argued that

the discrepancies as pointed out by Ld. Counsel for the appellant in the

deposition of PW-1 and PW-3 are minor and trivial in nature and cannot

in any way impinge the credibility and reliability of their testimonies

supported by the other incriminating evidences proved on record by the

prosecution. Based on these submissions, Ld. Additional Public

Prosecutor prayed for outright dismissal of the present appeal.

14. We have heard learned Counsel for the parties at considerable

length and given out thoughtful consideration to the arguments advanced

by them. We have also perused the Trial Court record.

15. This is a case of circumstantial evidence as there is no eye witness

to the commission of the crime and the murder of the young boy had

taken place in a room on the roof of Shanti Gopal Building housing about

fifty offices. Mr. Ram Narain (PW-1) is the father of the deceased and

Ms. Munni Devi (PW-3) is the mother of the deceased. As per the

prosecution version the appellant was a neighbor who came to the

residence of deceased on 12th July, 1995 at 12 noon and called the

deceased to accompany him. Upon this, PW-3 Munni Devi inquired from

the accused as to where they were going and the accused replied that they

will come back soon and after saying so, he took the deceased alongwith

him by holding his hands. Father of the deceased/ PW-1 was also present

in the house but was sleeping as he had done his duty of security guard on

the previous night. Dharminder thereafter did not return up to 1 p.m.

although he was to go to school in the evening shift at 1:30 p.m. As per

her statement recorded under Section 161 of Cr. P.C., PW-3 stated that

when her son did not return back till 9 p.m on 12th July 1995, then she

had gone to the house of the accused Vinod so as to inquire about her son.

There Vinod met her and told her that her son Dharminder had gone to

watch a movie and would return back. During the whole night

Dharminder did not return back and on the morning of 13 th July 1995 at 7

a.m., PW-1 and PW-3 had again visited the house of the accused. There

they met the mother of the accused, who told them that the accused Vinod

had already gone to his duty and would return back by 9 p.m. and then

only they could inquire from him. During the entire day, both of them ran

helter skelter in search of their son but could not find any trace of him.

Again, at 8 PM on 13th July 1995 both of them had visited the house of

the accused but accused did not give any satisfactory reply and evasively

said that Dharminder had gone to purchase „manjha‟. At this, when PW-1

and PW-3 told the accused that Dharminder has not returned since

yesterday, the accused replied that he had left Dharminder on the road

and when PW-1 and PW-3 again inquired, then the accused said that he

had left Dharminder at their residence. The same was the first statement

given by PW-1 based on which the FIR (Ex.PW-20/A) was registered.

16. Learned Counsel for the appellant laid strong emphasis on some of

the contradictions and discrepancies in the Court depositions of PW-1 and

PW-3 mainly concerning about the various visits of PW-1 and PW-3 to

the house of the accused. This contention was also raised by the accused

before the learned Trial Court. Learned Trial Court took a view that the

occurrence took place on 12th July 1995 whereas PW-1 and PW-3 were

cross-examined on 15.12.1997 i.e. after the expiry of two years from the

date of occurrence and thus the human memory cannot be expected to be

so sharp that one remembers minute details after such a long gap.

Learned Trial Court further held that some minor discrepancies regarding

the fact as to how many times they had gone to the house to inquire about

their son; whether the accused met there or not; and what were the replies

of the accused and his mother; were bound to creep in and such

discrepancies did not discredit the evidentiary value of PW-1 and PW-3

who remained consistent in their deposition that it was the accused who

had taken away the deceased Dharminder at 12 Noon on 12th July 1995.

We find ourselves in complete agreement with the said reasoning given

by the learned Trial Court. The core issue is not that as to how many

times the mother and father of the deceased had visited the house of the

accused and timings of their visits but whether there is complete

consistency between the deposition of PW-1 and PW-3 in deposing that

their son was taken away from their residence by the accused at 12 Noon

on 12th July 1995 and thereafter he did not return back. Undeniably, the

appellant has not offered any explanation in his statement recorded under

Section 313 of Cr. P.C. or any evidence to explain the facts, which were

within his special knowledge about the whereabouts of the deceased after

he had taken him from their residence. It is a well settled proposition of

law that minor discrepancies, contradictions or irrelevant details which do

not in any way corrode the credibility of a witness, should not be used to

jettison his evidence in its entirety. It would be useful here to refer the

judgment in the case of State of Rajasthan Vs. Om Prakash, reported in

AIR 2007 SC 2257, in which it has been held by the Hon‟ble Supreme

Court that the irrelevant details which do in any way corrode the

credibility of a witness cannot be leveled as omissions or contradictions.

On the same lines, the Apex Court in the case of Rohtash Kumar

Vs. State of Haryana, reported in 2013CriLJ3183, also observed as

under:

"It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the Court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The Court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the Court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above should not be

taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole."

17. Based on the above settled legal position we do not find any merit

in the above contention raised by the Ld. Counsel for the Appellant.

18. The next contention raised by Ld. Counsel for the appellant was

that the post mortem report also completely falsifies the ocular evidence

of PW-1 and PW-3, who in their depositions stated that the deceased

Dharminder was taking lunch with PW-3 at 12 Noon on 12th July 1995,

when the accused had come to take him along, while in the post mortem

report, the opinion given by doctor is that the stomach of the deceased

was empty having no abnormal smell and the bladder and rectum was

also found empty. The contention raised by the Ld. Counsel for the

appellant was that if the above deposition of PW-1 and PW-3 is taken to

be correct, then the same goes diametrically opposite to the opinion given

by the Doctor who conducted the post mortem , appearing as if the

deceased had taken lunch with his mother, his stomach, bladder and

rectum could not have been found empty. This argument of the Ld.

Counsel for the appellant appeared to the Court quite attractive and

impressive at the first blush but after having carefully perused the

deposition of PW-3, we find no merit in such an argument. PW-3 in her

court deposition stated that on 12th July 1995, at about 12 noon, she was

taking her lunch at her house alongwith her son Dharminder and other

children and at that time accused Vinod came and called her son to

accompany him. No such statement was given by PW-3 under Section

161 of Cr. P.C. Even PW-1 also in his first statement and even in the

Court deposition did not state any such fact about his wife taking lunch

alongwith Dharminder and other children. Be that as it may, even if the

said deposition of PW-3 of taking lunch alongwith her son Dharminder

and other children is taken as correct, the same cannot be interpreted to

mean that Dharminder and other children were also taking lunch

alongwith Smt. Munni Devi. Smt. Munni Devi (PW-3) has been

categorical in saying that it was she who was taking lunch and at that time

her son Dharminder and other children were also present and the said

testimony of PW-4 remained unrebutted and uncontroverted as no

question or suggestion was put to her by the defense to dispute her said

deposition. Furthermore even the accused in his examination under

Section 313 Cr.P.C did not offer any explanation on this aspect.

Therefore, the said deposition of PW-3 thus, cannot be stretched to the

extent of defeating her last seen evidence and the opinion given by the

doctor in the post mortem report, more particularly, in the background of

the fact that the accused herein did not offer any explanation to truthfully

disclose the whereabouts of the deceased, after he was taken by him from

his residence on 12th July 1995. We are thus, not persuaded to accept the

said contention of the Ld. Counsel for the appellant to disbelieve the

testimony of PW-1 and PW-3.

19. Coming to the next contention raised by Ld. Counsel for the

appellant that Shanti Gopal building was occupied by more than fifty

offices and nobody had seen the appellant committing the crime is a very

strong circumstance in favor of the accused. In the present case, the crime

had taken place on the roof of the building. As per the site plan (Ex. PW-

9/A), there is no construction on the roof except one room and one

bathroom and the incident had happened in a room on the roof of the said

building which could not be witnessed by any of the occupant of the said

building, as the spot of the crime was an isolated place, and there was a

remote chance of anybody seeing the accused committing the said crime.

It is also pertinent to mention here that PW4 being the Chowkidar of the

said building, in his Examination-in-Chief has categorically stated that

prior to 14.07.1995, there was no Chowkidar in the said building. The

said testimony of PW-4 remained unrebutted and uncontroverted as no

question or suggestion was put to him by the defense to dispute his said

deposition. We therefore, do not find any merit in the argument of the Ld.

Counsel for the appellant that there was no possibility of anybody

committing crime on a roof top of the building housing fifty offices.

20. Another contention raised by Ld. Counsel for the appellant was

that the rexine bag, one strip of which was used to strangulate the victim

was already lying in the room adjacent to the portion where the dead

body of the deceased was lying as is duly shown in the site plan prepared

by the Investigating Officer and the same very rexine bag was planted in

the recovery made at the instance of the appellant during his disclosure

statement. Ld. Counsel for the appellant further submitted that the said

act of planting of rexine bag so as to frame the appellant in the murder of

the deceased by itself prove that the police with their overzealousness to

solve the crime got the present appellant falsely implicated. Undoubtedly,

there was a serious lapse on the part of the Investigating Officer in not

seizing the said rexine bag at the time of investigation of the crime, which

was lying in the room where the alleged murder was committed but the

moot question here is whether such a defect or lapse on the part of the

Investigating officer should discredit the entire case of the Prosecution?.

21. In regard to the defective investigation, the Hon‟ble Apex Court in

the case of Allarakha K. Mansuri vs. State of Gujarat, reported in AIR

2002 SC 1051, while dealing with the cases of omissions and

commissions by the investigating officer, and duty of the Court in such

cases held as under:

"even if the investigation is defective and faulty the accused person cannot be acquitted solely on account of defective and faulty investigation. With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general."

22. In another case of Ram Bali vs. State of Uttar Pradesh reported in

AIR 2004 SC 2329, the Apex Court took a view that acquitting an

accused person solely because of faulty or defective investigation would

amount to playing into the hands of Investigating Officer. The relevant

paragraph of the said judgment is reproduced as under:-

"In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."

23. This brings us to an ancillary issue as to how the Court should deal

the evidence in such like cases. It would be worthwhile here to reproduce

the following paragraph from recent judgment of the Apex Court in the

matter of Dayal Singh and Ors. vs. State of Uttaranchal, reported in

(2012) 8 SCC 263 as under:

"Where our criminal justice system provides safeguards of fair trial and Innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation,

there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well."

24. The present case, when examined in light of the above principles,

makes it clear that the defect in the investigation or omission on the part

of the investigation officer cannot prove to be of any advantage to the

accused. No doubt this is a definite lapse on the part of the investigating

officer which cannot be overlooked by the Court, however such lapses on

the part of the Investigating team of the police are not uncommon and if

the criminal Courts start giving benefits to the accused persons of such

minor lapses on the part of the Investigating Officer, then perhaps no

criminal case will end in conviction of the actual offenders of crime

against whom there may occur other strong evidences to prove them

guilty of offence. It is not the case of the appellant that the said rexine bag

was got recovered from the appellant at some other place and not from

the spot of the crime and had this been so, perhaps the contention of the

appellant would have some merit. It is not in dispute that the said rexine

bag was recovered from the same room adjacent to the room where the

dead body was found during the disclosure statement of the Appellant.

25. The appellant thus cannot derive any benefit or advantage due to

the said lapse on the part of the Investigating Officer in not seizing the

rexine bag lying in the room where the alleged crime of murder was

committed by the appellant as the criminal Courts are often confronted

with such lapses and defective and faulty investigation by the

investigating machinery and benefit of the same cannot be given to the

accused especially in a case where there exists strong incriminating

evidence against an accused unerringly pointing out his guilt in the

commission of crime.

26. Ld. Counsel for the appellant further assailed the finding of the

learned Trial Court with regard to existence of human blood on the

clothes of the accused and his failure to explain the existence of such

human blood in his statement recorded under Section 313 of Cr. P.C as

incriminating evidence against him. Contention raised by Ld. Counsel for

the appellant was that as per the Post mortem report, the opinion given

was that the deceased had not suffered any external injuries and therefore

there could not have arisen even a remotest chance of the clothes of the

appellant getting stained with the blood of the deceased. Ld. Counsel for

the appellant also argued that even otherwise, as per the settled legal

position, recovery of blood stained clothes is a very weak piece of

evidence to inculpate the deceased.

27. As per the post mortem report, the time since death had occurred

was three days. Thus there was a clear gap of three days from the time of

the commission of the crime and the conducting of the post mortem on

the body of the deceased. PW-16 in his deposition stated that he had

inspected the spot of the crime and lifted blood samples, blood stained

earth and earth control vide memo Ex.PW8/A. He also stated in his

deposition stated that blood sample, blood stained clothes of the deceased

and sample seal were deposited by him after conducting the post mortem.

The said witness further deposed that on 29.08.1995 all the sealed parcels

including the parcel containing Pant and T-shirt of the accused were sent

to the FSL for their scientific opinion. The said testimony of PW-16

remained unrebutted and uncontroverted as no question or suggestion was

put to him by the defense to dispute his said deposition. In the FSL report

proved on record as Ex.PW-16/H and PW-16/J human blood was found

on the clothes of the deceased and on the clothes of the accused. As per

the FSL report, blood was detected on the black thread rope which was

found wrapped around the neck of the deceased. In the face of the said

evidence proved on record, we cannot accept the argument of the Ld.

Counsel for the appellant that no human blood could have stained clothes

of the accused which he were wearing at the time of the commission of

the offence. We also cannot lose our sight from the fact that the injuries

were also received by the accused and possibility cannot be ruled out that

the deceased must have struggled with the accused before he was finally

strangulated with the help of a rope.

28. Another contention raised by the Ld. Counsel for the appellant was

that the Prosecution has not brought forth any motive on the part of the

appellant in carrying out the murder. There can be no doubt that in a case

of circumstantial evidence the motive assumes importance where the case

of the prosecution entirely rest on circumstantial evidence. At the same

time, it is also fairly well settled law that failure to establish the motive

for the crime does not throw over board the entire prosecution case. In a

case where the prosecution succeeds in proving its case with cogent and

convincing evidence, the absence of establishing motive will not prove

fatal to the case of the prosecution. We, therefore, cannot accept the

argument of the Ld. Counsel for the appellant that because of the failure

of the prosecution to prove the motive on the part of the appellant, the

appellant could not have been held guilty for committing the said crime.

Normally, behind every criminal act, there is a motive and it is imperative

for an investigating agency to make all efforts in ascertaining the motive

on the part of the accused but failure of the same in a case where the

prosecution has otherwise proved its case beyond any shadow of the

doubt based on cogent and convincing evidence, the accused cannot get

the benefit of motive aspect not being proved by the prosecution. There

may be many cases where the motive develops at a spur of moment

before the commission of crime and the motive on the part of the accused

may not come to the knowledge of the family members and other known

friends and relatives of the victim and therefore, the theory of proving

motive cannot be a rule of thumb. Sometimes the motive may not be

known even to the victim of the crime and may be known to the assassin

only in whose mind only any evil thought at any moment may take place.

In the light of this legal position, the failure on the part of the prosecution

to prove motive on the part of the accused for the commission of the said

crime will not prove fatal to its case in the face of other chain of

circumstances proved on record by the prosecution, which

unambiguously bring home the guilt to the accused. Here, it would be

worthwhile to reproduce the following paragraph from the recent

judgment of the Apex Court in the case of Amitava Banerjee @ Amit @

Bappa Banerjee Vs. State of West Bengal, reported in AIR 2011 SC

2913, as under:

"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty."

29. Thus for the aforesaid reason we find no merit in the argument of the Ld. Counsel for the Appellant.

30. We are also not persuaded to accept the argument of Ld. Counsel for the appellant that the accused gave sufficient explanation to explain

the reasons for the injuries suffered by him as per the MLC proved on record as Ex.PW-22/A by giving response in his statement recorded under Section 313 of Cr. P.C. that such injuries were caused by the police. Learned Trial Court has rightly observed that the appellant made no efforts to explain the injuries. As per the MLC proved on record, the appellant had suffered the following injuries:-

"Abrasion 4 x 3 cm on left forearm near waist, 2

swelling left side of face near the eye. The nature of

injury was opined to be simple but with blunt object."

31. The appellant in the present case was apprehended by the police on

15th July 1995 at 10/11 P.M. and his medical examination was conducted

at S.D.N. Hospital, Shahdara, on 16th July 1996 at 4.30 PM. As per the

report of MLC, the nature of injuries was found to be simple but had been

caused with a blunt object. This MLC was put to the accused in his

Examination under Section 313 Cr.PC and the accused only stated that

the said injuries were caused by Police. However, the appellant failed to

give the name of any police official who had caused said injuries to him

and weapon of offence used by the police official for causing such

injuries The appellant at no stage of the investigation of the said case or

during the trial of the case, till his submission was recorded under Section

313 of Cr. P.C. took any steps to apprise the Court or any other authority

about the fact that the alleged police assaulted him. It is also pertinent to

mention that when PW-16 Inspector Tika Ram, Investigating Officer was

examined, no suggestion was given to him regarding any beating by

Police.

32. We also find no merit in the submission of the Ld. Counsel of the

appellant that the appellant was not required to offer any explanation in

terms of Section 106 of Indian Evidence Act, once he had not admitted

that he had gone to the residence of the deceased at or about 12 Noon, for

taking the deceased along. The principle of law is that if there is a last

seen evidence then the accused must offer an explanation whether by

making a total denial or taking any plea or by disclosing any other fact

within his special knowledge about the victim of the crime, absence of

any satisfactory or trustworthy explanation about the injuries suffered by

the accused is an important piece of evidence in the chain of

circumstantial evidence. We are not suggesting here that in every case

where the accused fails to give a sufficient explanation about the injuries

on his person, his conviction can be warranted on a solitary factor but

certainly, failure on the part of the accused to explain as to how he got

injured and in what manner and in whose hands can constitute a strong

circumstance and can form an additional link in the chain of

circumstances to nail the accused, more particularly, where the injuries

were found on the person of the accused in proximity to the time of the

commission of the crime. It would be useful to refer here to the following

observations of the Apex Court in the case of Sunil Clifford Daniel v.

State of Punjab, reported in (2012) 11 SCC 205 as under:

"when the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances."

33. The present case is based on circumstantial evidence and as per the

settled legal position in a case of circumstantial evidence, all the pieces of

incriminating circumstances must be supported by reliable and clinching

evidence and the circumstances so proved must form such chain of events

as would permit no conclusion other than one of guilt of the accused.

34. The tests applicable to cases based on circumstantial evidence are

fairly well-known. The decisions of the Apex Court and various other

High Courts recognizing and applying those tests to varied fact situation

are a legion. In the case of Sharad Birdhichand Sarda v. State of

Maharashtra reported in 1984 (4) SCC 116, the Apex Court declared

that a case based on circumstantial evidence must satisfy, the following

tests:

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

(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.

35. What, therefore, needs to be seen is whether the prosecution has

established the incriminating circumstances upon which it places reliance

and whether those circumstances constitute a chain so complete as not to

leave any reasonable ground for the appellant to be found

innocent. Having been taken through the evidence adduced at the trial to

which we have referred in some detail in the earlier part of this judgment,

we have no manner of doubt that the prosecution has satisfactorily and

firmly established the following circumstances on the basis of the

evidence adduced by it::-

a) That PW-3, mother of the deceased was a last seen evidence of the

appellant taking the deceased alongwith him from his residence on

12th July 1995 at 12 Noon.

b) The testimonies of PW-1 and PW-3 that they repeatedly went to

the residence of the appellant so as to know the whereabouts of

their son but the appellant gave evasive replies to misguide them.

c) The proximity of time of the death of the deceased with the time of

deceased leaving his residence.

d) The conduct of the appellant in absconding from his residence after

he was told that the Police Report would be lodged against him for

not disclosing the whereabouts of the deceased.

e) The recovery of the blood stained clothes of the appellant at the

instance of the Appellant.

f) The appellant had suffered injuries on his own person as per the

MLC proved on record as Ex.PW-22/A, which remained

unexplained by the appellant forming an additional link in the

chain of circumstantial evidence to prove his guilt.

36. Having succeeded to prove the aforesaid circumstances there does

not remain even an iota of the doubt that the present accused is involved

in the murder of young boy of 15/16 years.

37. The mother of the boy, who was missing, could not have any

motive to name the appellant who accompanied the deceased on that

fateful day as there was no enmity of any kind between them. In fact, the

father and the mother did not name the appellant till the time they learnt

about the murder of their son as they could never suspect that such a

crime could be committed by none else than the Appellant. The evasive

replies given by the appellant and then not coming forward to state facts

within his special knowledge certainly, is an additional link in the chain

of circumstantial evidence to prove his guilt. Here, we are not suggesting

that merely based on the last seen evidence and the non-explanation or

evasive replies given by the accused, conviction of the accused can be

sustained even in the absence of any other positive corroborative

evidence completing the chain of circumstantial evidence, but at the same

time, we cannot be oblivious of salutary principle of law envisaged under

Section 106 of the Evidence Act, 1872 which envisions shifting of the

burden of proof of any fact which is within the knowledge of any person.

Undoubtedly, section 106 of the Evidence Act is not intended to relieve

the prosecution of its burden to prove the guilt of the accused beyond any

reasonable doubt. It is only when such a burden is discharged the onus

shifts on the accused to prove any fact within his special knowledge to

establish that he was not guilty of the offence. Appellant in the present

case has failed to discharge the said onus in terms of Section 106 of the

Evidence Act. The evasive replies given by the appellant to misdirect and

misguide the parents of the deceased clearly prove that the appellant was

not truthful in disclosing the facts within his special knowledge about the

whereabouts of the deceased and certainly in the facts of the present case

such conduct of the appellant form an additional link in the chain of other

circumstantial evidence set out by the prosecution against him. In the

case of Joseph and Poulo v. State of Kerela reported in 2000CriLJ2467

the Hon‟ble Supreme Court, inter alia, held as follows:

"The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that jewels of the deceased which were sold to PW 11 by the appellant, were seized.

The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 Cr.P.C. the appellant instead of making at least an attempt to explain or clarity the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts

have, from the falsity of the defense plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed."

38. The explanation offered by the accused in his statement recorded

under Section 313 of Cr. P.C. does not inspire any confidence. The act of

absconding of the appellant also goes against him. The appellant being

neighbor was rather expected to join the parents of the deceased in tracing

him, more particularly in the background of the parents not even naming

the appellant to the police having taken their child alongwith him on the

fateful day.

39. In the light of the above discussion, we find ourselves in complete

agreement with the reasoning given by the learned trial Court that the

circumstantial evidence proved on record by the prosecution that he was

last seen with the deceased, blood stain found on his pant and shirt,

injuries found on his person, giving of evasive replies by him, his conduct