Kanheya Kumar Singh vs State
2014 Latest Caselaw 6684 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                Date of Decision: December 11, 2014
+                                CRL.A. 1418/2014
         KANEHYA KUMAR SINGH                     ..... Appellant
                Represented by: Mr.M.L.Yadav, Advocate with
                                Mr.Lokesh Chandra and Ms.Vandana
                                Bhatnagar, Advocates

                                        versus

        STATE                                               ..... Respondent
                     Represented by:    Mr.Lovkesh Sawhney, APP
                                        Insp.Sanjeev Kumar,
                                        Insp/Investigation, PS Okhla
                                        Industrial Area
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)

Crl.M.B.No.10730/2014 Since the appeal is being heard today itself for final hearing, instant application which seeks suspension of sentence pending hearing of the appeal is dismissed as infructuous.

Crl.A.No.1418/2014

1. Vide impugned decision dated October 15, 2012, the appellant : Kanehya Kumar Singh has been held guilty of the offence of having murdered Awdhesh Kumar Mishra in the intervening night of February 14 and 15, 2010. Vide order on sentence dated October 31, 2012, he has been sentenced to undergo imprisonment life and pay fine in sum of `5,000/- and

in default to undergo simple imprisonment for one month.

2. In arriving at the conclusion of guilt against the appellant the learned Trial Judge has held that the motive for the crime was sodomy by the deceased upon the appellant, proved through the disclosure statement of the appellant. The appellant being last seen in the company of the deceased at the place where the deceased was murdered at 8:00 PM on February 14, 2010. Recovery of a raxine bag containing `1,600/-, a ladies wrist watch, a ball pen, a diary of the deceased, a passport size photograph of the deceased, a deposit slip of SBI in the name of the wife of the deceased as also one gents wrist watch, are the two other incriminating circumstances held proved against the appellant. The fourth and the last, is scratch marks on the person of the appellant noted by Dr.Sushil Sharma as recorded on the MLC Ex.PW- 19/A proved at the trial by Dr.Shashank Pooniya PW-19 who was familiar with the writing of Dr.Sushil Sharma.

3. Suffice it to state that the confessional statement made by the appellant that he strangulated the deceased because the deceased sodomized him is not admissible in evidence. That apart, the MLC Ex.PW-19/A of the appellant completely rules out he being sodomized.

4. The deceased was employed by Ajay Kumar Jain PW-7 as a security guard at Shed No.28, Okhla Industrial Area Phase-II, New Delhi. He used to reside in a room in the industrial shed where spare parts of automobiles were packed, a fact deposed to by Ajay Kumar Jain.

5. At 11:40 AM on February 16, 2010, as deposed to by HC Jitender Singh PW-4, he received information of a theft by a guard at DSIDC Shed No.28, Okhla Industrial Area Phase-II which he recorded in DD No.8A, Ex.PW-4/A. Copy thereof was entrusted to ASI Shiv Kumar PW-18 who

proceeded to the spot and met one Manjit Singh PW-2, a friend of Ajay Kumar Jain. On entering the factory dead body of the deceased was discovered. The usual proceedings of summoning the crime team, getting the scene of the crime photographed, lifting blood stained concrete from the floor and control earth and drawing up of the rough site plan to scale was completed. The dead body was sent for post mortem and report Ex.PW-1/A was obtained as per which the deceased was strangulated with a ligature material and asphyxia was the cause of death.

6. Ram Chander PW-3, running a PCO booth near Shed No.28 Okhla Industrial Area Phase-II, volunteered the information that firstly in the evening and then around 8:00 PM on February 14, 2010, he had seen appellant in the company of the deceased, a fact which Ram Chander stated when he deposed in court, with the variation of being confused by the date, which he gave as February 12, 2010, but to be understood as February 14, 2010 because he said that it was a Sunday; which happened to be February 14, 2010.

7. Sujit Kumar Rai PW-6, an accountant engaged by Ajay Kumar Jain PW-7, has deposed that he had last met the deceased at the shed where his dead body was found on February 13, 2010 when he gave him salary because the deceased was employed as a security guard. On February 15, 2010 the driver Mulla Ji who had gone to deliver goods at the shed informed him that Awdhesh i.e. the deceased was not opening the door of the factory. The next day he went to the factory and since there was no response, the police was informed and as they entered the factory from the rear door which was bolted from outside, he saw dead body of Awdhesh.

8. Ajay Kumar Jain PW-7 deposed that Awdhesh was employed by him

as a security guard and had requested him to employ the appellant as an additional security guard. He hesitated initially because the appellant had earlier worked with him but had left. At insistence of the deceased he permitted the appellant to work as a security guard.

9. The post mortem report Ex.PW-1/A shows that the post mortem commenced at 11:55 AM on February 19, 2010 and time since death was five days prior. Unfortunately, due to the delay in conduct of post mortem we do not even have any evidence of the approximate time of death of the deceased.

10. There is no evidence that the appellant used to reside in the factory shed in which dead body of deceased was found on February 16, 2010. Ram Chander PW-3 has not deposed that the deceased and the appellant used to reside in the factory. Ajay Kumar Jain PW-7 has simply said that at the asking of the deceased he had permitted the appellant to be engaged as a security guard, and we would simply highlight that the prosecutor has made the witness i.e. Ajay Kumar Jain speak very blurred on whether the appellant was permitted to be employed as a security guard or whether he had been permitted to stay in the factory by him or whether he had left it to the discretion of the deceased. We quote verbatim from the deposition on said aspect of Ajay Kumar Jain : 'About 15 days before his death the deceased Awdhesh had asked me that could he engage Kanehya Kumar Singh as security guard in the factory, who had earlier worked in our factory, but left before two years ago. I said to Awdhesh that why you want to engage/keep the person, who had already left our factory, but Awdhesh was insisting that he was okay and he could do work with him, then I permitted him to keep that person i.e. Kanehya Kumar Singh and thereafter,

he did not tell me as to whether he engaged Kanehya Kumar Singh or not.'

11. Now, the evidence of last seen assumes incriminating circumstance if the proximity of time between last seen and death and the place of last seen and place of death is of a kind which rules out the possibility of a third person intervening. In the instant case this proximity of time between last seen and time of death is missing. The evidence of last seen by Ram Chander is that the deceased and the appellant were seen at the factory at 8:00 PM. The time of death has not been ascertained even approximately. The dead body was discovered in the morning of February 16, 2010. We do not have evidence whether the deceased, as per permission granted by Ajay Kumar Jain gave consent to the appellant to work with him. We do not have any evidence that the appellant was permitted to reside in the factory. The only evidence is that the appellant knew the deceased and on the look out of a job had taken assistance from the deceased who had pleaded with Ajay Kumar Jain to give employment to the deceased. Thus, the possibility of the appellant who came to meet the deceased in the evening of February 14, 2010 and leaving and somebody else committing the crime cannot be ruled out.

12. As regards the recovery of a raxine bag containing `1,600/-, a ladies and a gents wrist watch, a ball pen, a diary of the deceased, a passport size photograph of the deceased and a deposit slip of SBI in the name of the wife of the deceased, we find that no witness has identified the two wrist watches and the pen in question as belonging to the deceased. As regards the other articles, possibility of planting cannot be ruled out for the reason robbery was not the object of the offence. As per the prosecution the offence was an act of revenge because deceased used to sodomize the appellant. It bags the

question : Why would the appellant keep ordinary, but highly incriminating articles with him? The purported recovery pursuant to the disclosure statement of the appellant is from G-67, Harkesh Nagar, a stated tenanted accommodation taken on rent by the appellant. The landlord of the premises has not been examined as a witness and we see no reason why the landlord of any other inhabitant in the building was not associated with the recovery. There is no evidence that the room in question wherefrom recovery has been made was in possession of the appellant. The seizure memo Ex.PW-16/D does not even record that the appellant opened the door of the room at premises No.G-67, Harkesh Nagar. How was the room opened? It remained a mystery. As per the prosecution the appellant was arrested when a secret informer informed that he was at G.B.Pant Polytechnic. Obviously, the appellant would not leave his tenanted premises without putting a lock on the door. The personal search memo Ex.PW-16/B of the appellant shows that a purse containing `40/- and a diary was recovered from him. It does not record that a key was recovered from him. The recovery is thus most uninspiring.

13. It is true that the MLC report Ex.PW-19/A notes that five injuries were detected by Dr.Sushil Sharma who had examined the appellant on February 18, 2010 after the appellant was apprehended on February 17, 2010 as claimed by the prosecution. The same are:-

"1. A grazed scabbed abrasion 3.5 x 1 cm present at left aspect of lower back.

2. A scabbed abrasion, scratch 1 x .2 cm present at back at right hand.

3. A scabbed abrasion, scratch 1 x .2 cm present at left,

lower side of neck.

4. Two linear, scratch abrasion 3 x .1 cm present at right aspect of middle of neck.

5. An abrasion of size 2 x .2 cm intrupted present at midline of neck, scabbed."

14. Examined under Section 313 Cr.P.C. we find that the appellant explained the injuries stating that when he was playing with his nephew, playfully his nephew scratched him causing the injuries. We find that the prosecution has not obtained any clarification from the doctor who examined the appellant as to how old were the grazed scabbed injuries. As per medical jurisprudence a grazed scabbed injury is when a scratch or an abrasion becomes itchy with passage of time and as one scratches around the area to suppress the itch, the injury becomes grazed.

15. The appeal is accordingly allowed. Impugned judgment dated October 15, 2912 convicting the appellant is set aside. The order on sentence dated October 31, 2012 is set aside. The appellant is acquitted of the charge framed against him.

16. Two copies of the present decision shall be sent to the Superintendent Central Jail Tihar, one for his record and the other to be supplied to the appellant.

17. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE DECEMBER 11, 2014 rk