Trilochan Verma vs State
2013 Latest Caselaw 4740 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CRL.A. 379/1999

                                      Date of decision: October 11, 2013

         TRILOCHAN VERMA
                                                           ..... Appellant
                           Through:   Mr. Sumeet Verma, Advocate

                           Versus

         STATE
                                                             ..... Respondent
                           Through:   Ms. Richa Kapoor, Additional Public
                                      Prosecutor for the State with Sub-
                                      Inspector Yogesh Kumar, Police
                                      Station Timarpur, Delhi

         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR
         HON'BLE MS. JUSTICE INDERMEET KAUR

                           JUDGMENT

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KAILASH GAMBHIR, J.

1. Challenge in this appeal filed under Section 374 of the Code of

Criminal Procedure 1973 (hereinafter referred to as Cr.P.C) is the judgment

dated 30.11.1998 and order of sentence dated 30.11.98 passed by the learned

Additional Sessions Judge whereby the appellant has been convicted for

committing an offence 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. 1000/- and in default to undergo

further RI for one month.

2. Before we deal with the contentions raised by counsel for the parties,

brief narration of the prosecution case as it unfolds in the charge sheet would

be necessary and the same is as under:-

3. On the night of 18.07.1996 at about 9.30 p.m. accused took his

daughter Usha from his house after having food. It is alleged that he went to

a drain (Nallah) near Burari Chowk and threw his daughter in the said drain

and returned back to his house alone. When his family members asked him

about the child Usha, he replied that she had not gone with him. Further

allegations are that the wife of the accused had died about one and a half

years prior to the alleged occurrence. Accused wanted to remarry and his

deceased daughter was coming in the way of settlement of his second

marriage and in order to get rid of her, he killed her. It is alleged that he

committed her murder by throwing her in the drain of Burari Chowk on

18.07.1996 at about 9.45 p.m. Prosecution machinery came up in action

when DD. No. 6A dated 19.07.1996 got registered in the police station

Timarpur at about 11.25 a.m. on the information received by wireless

operator of the said police station to the effect that Head Constable Banwari

Lal had informed that a girl of about two and a half years of age was found

dead in Burari main drain outer ring road. Copy of the said DD was sent to

SI Dharampal who went at the spot with Constable Rajiv where they found

the dead body of the deceased Usha. Dead body of the deceased was taken

out from the said drain with the help of fire brigade, Roop Nagar. No

external injury or sign of sexual assault was found on the deceased.

Proceedings under section 174 Cr.P.C were completed and the body was

sent for post mortem. Necessary formalities were done. Site plan was

prepared of the alleged place of occurrence and the statements of the family

members of the accused who were residing in the same house where accused

was living with the deceased daughter and that of the other PWs were

recorded. After completion of the necessary formalities and investigation, a

report under Section 173 Cr.P.C was filed against the accused in the

concerned court. After the committal, the case was assigned to the court of

learned Additional Sessions Judge for disposal vide order dated 19.10.96.

Charge was framed against the accused vide order dated 12.11.96 for having

committed an offence punishable under Section 302 IPC. Accused pleaded

not guilty and claimed trial. To prove its case prosecution examined as many

as 13 witnesses. Statement of the accused was recorded under Section 313

Cr.P.C and he denied his involvement.

4. Addressing arguments on behalf of the appellant Mr. Sumeet Verma,

Advocate contended that the case of the prosecution is based on last seen

evidence of PW-3, PW-4 andPW-5, who are the family members of the

accused and who were keeping an evil eye on the share of the accused in the

ancestral property, portion of which was under the occupation of the

accused. Counsel further submitted that so far the witness PW-9 is

concerned, he turned hostile and, therefore, his testimony of last seen

evidence cannot be taken into consideration. Counsel also argued that it is a

settled legal position that in a case of circumstantial evidence motive is of

utmost importance but in the facts of the present case the prosecution failed

to prove on record any motive on the part of the appellant to kill his own

child oftwo and a half years of age. Counsel further argued that the motive

sought to be projected by the prosecution cannot hold any ground. Simply

because the accusedwanted to remarry after the death of his wife that by

itself, by no stretch of imagination could have prompted him to get rid of

his small child. Counsel also submitted that none of the witnesses have

deposed that the said child of such a tender age was creating any kind of

hurdle or obstacle in the remarriage of the accused or they had ever noticed

the accused scolding or fighting with his daughter, which could reflect his

hostile attitude or conduct towards his daughter. Counsel also argued that as

per the time indicated in thepost-mortem report there is a wide gap between

the time when the accused was lastly seen in the company of the deceased

and the time of death of the deceased and, therefore, with such time gap,

possibility of any other person responsible for the murder of the deceased

cannot be ruled out. Counsel also argued that nearby the residence of the

accused marriage function was being held and the possibility of the deceased

daughter might getting attracted to the said celebration and going there

could not be ruled out. Based on these submissions counsel for the appellant

urged that the prosecution has failed to prove the case against the appellant

beyond any shadow of doubt and even if the last seen evidence is accepted

then also in the absence of any other positive corroborative evidence to

complete the chain of circumstances, to prove the guilt of the accused, the

appellant cannot be held guilty for the commission of the said crime. In

support of his arguments counsel for the appellant placed reliance on the

following judgments:-

1. State of Goa v. Sanjay Thakran & Anr., (2007) 3 SCC

2. Inderjit Singh & Anr v. State of Punjab, air 1991 SC 1674

5. Refuting the said contentions of counsel for the appellant, Ms.Richa

Kapoor, learned APP for the State vehemently contended that there can be

no reason to disbelieve the last seen evidence of the family members who

are all natural witnesses and the testimony of all these witnesses remained

unrebutted and unchallenged leaving no room to doubt their truthfulness,

credibilityand reliability. Counsel also argued that the family members who

entered the witness box as PW-3 to PW-5 had no motive to implicate the

accused in the commission of the said crime as they had only said what they

had seen from their own eyes and nothing beyond that. Counsel also argued

that no suggestion was given by the defence to these witnesses attributing

any motive much less themotive of their having an evil eye on the portion of

the ancestralproperty in the occupation of the appellant. Counsel further

argued that the post-mortem report proved on record as Exhibit PW-1/A also

proves the time of death of the deceased approximate to the time when she

was taken by the accused to a nearby shop for getting her a toffee. Counsel

also argued that there is no reason to disbelieve the motive theory as

deposed by PW-3 to PW-5 in their respective testimonies about the

remarriage plan of the accused after the death of his wife and his said

daughter coming in the way of his remarriage. Counsel thus submitted that

the last seen evidence supported by the medical evidence and motive on the

part of the appellant to get rid of his daughter completes the chain of

circumstantial evidence and there is no missing link by which even a doubt

can be created to prove the guilt of the accused in the commission of murder

of his own daughter. Counsel also argued that the appellant was vacillating

in his stands when interrogated by the police after the body of the deceased

was found in the drain.

6. We have heard learned counsel for the parties at considerable length

and given our anxious consideration to the arguments advanced by them.

We have also gone through the trial Court record.

7. Murder of a small female child of two and a half years had taken

place on the night of 18th July, 1996 and her dead body was found in a drain

near Burari Chowk. Undoubtedly, it is a barbaric and ghastly act by the

perpetrator of the crime, who probably had no heart when accomplishing

such a devilish act of committing murder of a child at such a tender age.

What could be the motive of a person who had taken away the child to the

drain and then had thrown her thereto die, where nobody could even hear

her cries? What could be the reason that the entire life of such a child was

snatched from her? Can the appellant, who is the father of the said child, be

a perpetrator of such a heinous crime or is it some outsider, who had

committed such a ghastly crime. In every criminal trial, search is for the

actual perpetrator of the crime and the very purpose is to punish the devil

and save the innocent.

8. The case in hand is based on circumstantial evidence and

undoubtedly, thelast seen together evidence is one of the important species

of circumstantial evidence. There is no reason for us to disbelieve the

testimonies of PW-3 to PW-5, who were consistent in their depositions

having seenthe appellant taking his daughter in his lap after the daughter had

insisted for having a toffee from him and leaving the house on 18th July,

1996 at about 9.20 - 9.30 p.m. and the said child not returning back home

with the appellant. The post-mortem, which was proved on record as Exhibit

PW-1 /A also indicates the time of death of the deceased about 18 hours

back. The post-mortem was conducted by PW-1, Dr. B.N. Acharya on 19th

July, 1996 at 2.30 p.m. and if the time of 18 hours back is calculated, then

the same approximately comes to the time when the appellant had taken

away the child form his residence. The said drain where the dead body was

found was stated to be about 1 k.m. away.PW-9 Jhetashanker, who was

running a pan shop at a little distance, where the accused accompanying his

daughter had gone, in his deposition also indicated almost the same time

9.00 or 9.15 p.m. on 18th July, 1996 when the accused had visited his shop.

Although PW9 had turned hostile in so far not affirming his statement under

Section 161 Criminal Procedure Code, 1973 wherein he had disclosed that

the appellant had gone towards Burari Chowk, but in his Court deposition he

resiled form the said statement by saying that he did not see in which

direction the accused had gone. The learned Trial Court has held the

appellant guilty of committing the offence of eliminating his daughter based

on last seen evidence of PW-3 to PW-5, the medical evidence mainly

comprising of post-mortemreport and the motive of the appellant to get rid

of his daughter so as to remarry.

9. It is well settled legal position that with a view to base conviction on

circumstantial evidence, the prosecution must establish all the pieces of

incriminating circumstances by independent, reliable and clinching evidence

and the circumstances so proved, if taken cumulatively, should form a chain

so complete as would permit no conclusion other than one of guilt of the

accused but inconsistent with his innocence. In State of Goa vs Sanjay

Thakran and Another (2007) 3 SCC 755 it was laid down that when a case

rests upon circumstantial evidence such evidence must satisfy the following

tests:-

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

10. Before we analyze, as to whether the facts of the present case qualify

the aforesaid laid tests, the settled principles to deal with the last seen

together evidence are to be kept in mind. There has been a consistent view

of Apex Court and various other High Courts that in the absence of anyother

positive corroborative evidence of the accused onlast seen together with the

deceased, it would be hazardous to come to a conclusion of guilt in such

cases. In State of U.P. v. Satish, reported in 2005 (3) SCC 114, the Apex

Court observed as under:-

"23. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."

11. In Godabariksh Mishra v. Kuntala Mishra, reported

inAIR1997SC286,the Apex Court took a view that the theory of last seen

together evidence is not of universal application and may not always be

sufficient to sustain a conviction unless supported by other links in the chain

of circumstances. The germane portion of the judgment is reproduced

below:

"11. ....

(g) The theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances. ...

12. The High Court having held that from the facts and circumstances proved in the case, it was not possible to hold that the accused had committed the murder of the deceased. Hence, she was acquitted by giving her benefit of doubt."

12. In Rishi Pal V. State of Uttarakhand, 2013 (2) ACR 1471, reiterating

the aforesaid legal position, the Hon'ble Apex Court while dealing with the

principle of 'last seen evidence' held as under:

"16. In MohiburRahman and Anr.v. State of Assam : (2002) 6 SCC 715, this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. Similarly in ArjunMarik and Ors. v. State of Bihar: 1994 Supp (2) SCC 372, this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in GodabarishMishra v. Kuntala Mishra and Anr. : (1996) 11 SCC 264, this Court declared that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances. In Bharat v. State of M.P. : (2003) 3 SCC 106; two circumstances on the basis whereof the Appellant had been convicted were (i) the Appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. This Court held:

... Mere non-explanation cannot lead to the proof of guilt against the Appellant. The prosecution has to prove its case against the Appellant beyond reasonable doubt The chain of circumstances, in

our opinion, is not complete so as to sustain the conviction of the Appellant....

20. Suffice it to say that even if we take the most charitable liberal view in favour of the prosecution, all that we get is a suspicion against the Appellant and no more. The High Court was in that view justified in setting aside the order passed by the trial Court and acquitting the Appellant of the offence of murder under Section 302 Indian Penal Code. The order passed by the High Court deserves to be affirmed giving to the Appellant the benefit of doubt. We accordingly dismiss the appeal filed by the Appellant and discharge the notice of show-cause issued to him."

13. It is thus seen that it wouldnot be safe to base conviction of the

accused merely onthe proven last seen together evidence unless such last

seen together evidence finds corroboration from other reliable and clinching

evidence forming a complete chain of circumstantial evidence leading to

only one conclusion favouring the hypothesis of guilt of the accused

inconsistent withhis innocence.

14. Applying the aforesaid legal principles in the facts of the present case

what can be seen here is that the prosecution, undoubtedly succeeded in

proving the last seen together evidence through the testimonies of PW-3 to

PW -5 to prove that the accused had taken the child with him on 18th July,

1996 ataround 9.p.m.and this fact also finds corroboration from the

deposition of PW-9, who although turned hostile but remained consistent in

affirming the visit of accused at his shop in the evening at around 9:00 -9:15

p.m. But the precise question staring at us is whether the conviction of the

appellant can sustain merely on the last seen together evidence of the said

witnesses, which is also supportedby the time of death as indicated in the

post-mortem report.

15. In a case based on circumstantial evidence,motive assumes utmost

importance although it is fairly well settled that failure to establish motive

for the crime cannot throw overboard the entire prosecution case where

otherwise the prosecution succeeds in proving its case with cogent and

convincing evidence. To say, that the appellant had eliminated his two and a

half years child with a view to remarry cannot be easily fathomable in the

absence of any other evidence proving the hostility of the appellant towards

the child or any other circumstance showing that she became a hurdle or

obstacle in the way of the appellant to remarry. We are, therefore, not

persuaded to accept the said motive theory propounded by the prosecution

through the depositions of PW-3 to PW-5. We cannot be oblivious of the

fact that death of the wife of the appellant had taken place about 1 ½ years

ago and none of the family members even those who entered the witness box

have come forward to depose that the appellant started behaving with his

daughter differently or he was not bringing her up properly with due care

and attention or he used to scold and beat her or at any stage he took her as a

hurdle in his remarriage. In the absence of any such incriminating evidence,

we cannot believe that the appellant being a father could have such a sinister

motive to eliminate his daughter just for the purpose of marrying again.

16. So far as the issue raised by the learned APP in regard to the

vacillating stand of the accused in the rukka is concerned , we find no force

in the argument raised by the learned APP as the rukka is not a substantive

piece of evidence, nevertheless, we cannot be oblivious of the fact that the

appellant could not be in a normal state of mind after having learnt about the

murder of his daughter. It is a matter of common knowledge that every

individual reacts and behaves peculiar to his own psyche, understanding and

rationality and in that very quest may not be able to answer the queries put

forth by the police officials aptly and sensibly. The said circumstance of

alleged vacillating stand of the appellant cannot be taken adverse to

inculpate the accused in the commission of the said crime. When a case

totally hinges upon circumstantial evidence, it is the duty of the court to see

that the chain of circumstances which lead towards the guilt of the accused

have been fully and conclusively established.

17. It is a cardinal principle of criminal jurisprudence that the accused is

presumed to be innocent unless proved guilty. The prosecution in every

criminal trial has to discharge a very heavy onus to prove its case beyond

any shadow of doubt and by mere notion or feeling that the accused may be

the guilty person, the Courts cannot hold such person to be the perpetrator of

the crime. The journey of the prosecution which starts from 'may be true'

must end up where the court derives complete satisfaction that was what

started with 'may be true' now has culminated to the stage of 'must be true'.

Even if the single chain of circumstantial evidence is snapped the

prosecution case crumbles under its own weight.

18. Taking the overall view of the facts and circumstances of the case, we

do not find ourselves in agreement with the reasoning of the learned Trial

Court holding the appellant guilty of committing murder of his own

daughter merely based on the last seen together evidence in the absence of

any other clinching and positive corroborative evidence proved on record by

the prosecution so as to complete the chain of circumstantial evidence,

incapable of forming any other opinion but guilt of the accused and

inconsistent with his innocence. The order of conviction dated 30.11.98 and

order of sentence dated 30.11.98 passed by the learned Trial Court is hereby

set aside. The appeal is allowed. Copy of this order be sent to jail

Superintendent for information and compliance.

KAILASH GAMBHIR, J

INDERMEET KAUR, J OCTOBER 11, 2013 rkr