Chhote vs State
2015 Latest Caselaw 4292 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     Crl. Appeal No. 189/2015
                                       Reserved on : 21st May, 2015
%                                   Date of Decision: 27th May, 2015
CHHOTE                                               ..... Appellant
                           Through    Mr. V.V. Gautam and Mr.
                           Akshay Bhatia, Advocates.

                           versus

STATE                                              ..... Respondent
                           Through     Mr. Varun Goswami, APP for
                           State with ACP Rajender Gautam and SI
                           Dhirendra Singh.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR

SANJIV KHANNA, J.

Appellant Chhote impugns the judgment dated 12th August,

2014, convicting him for murder of Sarvesh on 17th December, 2012,

between 12 noon to 8 P.M. on the first floor of dairy of Ramesh

Kumar at Khasra No.705, Nawal Park, Alipur, Delhi. By order on

sentence dated 12th August, 2014, the appellant has been sentenced to

imprisonment for life, pay fine of Rs.2,000/- and in default of payment

of fine, undergo simple imprisonment of two months for the offence

under Section 302 of the Indian Penal Code, 1860 (IPC, for short).

Benefit under Section 428 of the Code of Criminal Procedure, 1973

(CrPC, for short) stands granted.

2. We have heard the learned counsel for the appellant and the

Additional Public Prosecutor. The prosecution case is entirely

predicated on circumstantial and „last seen together‟ evidence. The

prosecution has relied on the testimony of Ramesh Kumar (PW3) who

has alleged that the appellant was last seen together with the deceased

on the first floor of the dairy belonging to the said witness. Defence on

the other hand, has stressed that the prosecution has failed to bring

home the guilt of the appellant beyond reasonable doubt.

3. It cannot be doubted that the deceased Sarvesh was the victim

who had suffered a homicidal death on the first floor of the dairy of

Ramesh Kumar. His dead body was found in a room on the first floor

of the dairy in the evening on 18th December, 2008. The issue which

arises for consideration in the present appeal is whether the appellant

Chhote is liable and culpable for the murder of the deceased Sarvesh.

We find merit in the present appeal and proceed to record our findings

and reasons for acquitting Chhote after briefly recording the factual

position.

4. The facts in brief are as follows. HC Manoj Kumar (PW18) has

deposed that he had visited the place of incident along with Ct Dinesh

(PW16) after DD No.54B (Ex.PW1/A) was marked to him. The said

DD Entry (Ex.PW1/A) records that a man had closed the door and he

was not unlocking the same (ek aadmi ne darwaaza bund kar liya jo

khol nahi raha). On reaching, PW18 found the room locked from

outside and on peeping through the window, he saw a person lying on

the bedding on the floor with a cloth (gamchha) on his face. He

informed the SHO and called for senior officers. ASI Omender Singh

(PW-17) and SI Jitender Joshi (PW10) reached the crime scene. SI

Jitender Joshi (PW10) broke the lock and entered the room. A dead

body was found with blood on his face and pant. PW10 found blood-

stained bedding, wooden paaya (leg) of a cot (Ex.P1) along with five

empty pouches/bottles of country-made liquor (Ex.P2/1 to 5), which

were seized vide memo Ex.PW10/E, Ex.PW10/D and Ex.PW10/B,

respectively. The sketch of Ex.P1 is marked Ex.PW10/C. SI Jitender

Joshi (PW10) called the Crime Team who took photographs. SI

Jitender Joshi (PW-10) prepared the rukka (Ex.PW10/A) and got FIR

No.443/2012 (Ex.PW1/C) registered. A person, namely, Ramesh

Kumar had met PW10 at the spot but he was not able to identify the

deceased and had informed that the said room had been rented out to

one Ajay and only the said Ajay could reveal the identity of the

deceased. This factum is relevant as it reflects that initially the said

Ramesh Kumar, who has deposed as PW3, had stated that the room in

question was in occupation of one Ajay and had not named the

appellant Chhote or any third person. The dead body remained

unidentified till 19th December, 2012, when it was identified by Rajoul

(PW7). Thereafter, Kailash (PW6), brother of the deceased and

Rakesh Kumar (PW8), brother-in-law of the deceased had identified

the dead body. Post-mortem of the body was conducted at Babu

Jagjivan Ram Memorial Hospital (BJRM Hospital, for short) and the

post-mortem report (Ex.PW22/A) dated 21st December, 2012 records

the cause of death as craniocerebral damage as a result of blunt force

directed upon head, which was sufficient to cause death in ordinary

course of nature. It records the time since death as about 4 days.

5. Before elaborately referring to the testimony of Ramesh Kumar

(PW3), owner of the dairy in question in detail, we would like to

concisely examine testimonies of other witnesses.

6. Rajoul (PW7) has stated that he was a tenant of one Ramesh

Kumar (PW5) in House No.1284, Gali No.2, Bada Shiv Mandir,

Alipur, Delhi and deceased Sarvesh used to also reside with him. It

may be noted that the said Ramesh Kumar (PW5) is different and not

the same as the Ramesh Kumar (PW3) who was the owner of the

dairy at Nawal Park, Alipur, Delhi. Rajoul (PW7) has stated that the

deceased Sarvesh was a resident of village Asani, Nawada and used to

work as a labourer in Delhi. On 17th December, 2012, the deceased

Sarvesh had told him that he would be going to his native village to

bring his family. PW7 left for his work at about 9 A.M. and when he

returned, Sarvesh was not to be found in the house. Thereafter, PW7

came to know about the deceased Sarvesh on 19th December, 2012,

when the police had come to his house, made inquiries and took him

to the mortuary at BJRM Hospital, where he had identified the dead

body of Sarvesh. Rajoul (PW7) has expressly and categorically

deposed that he did not know the appellant Chhote nor could he

identify him. PW7 did not identify the appellant Chhote in the Court

stating that he had never seen him and that the appellant had never

come to meet Sarvesh in his rented accommodation. PW7 was cross-

examined by the Additional Public Prosecutor, but resolutely denied

the suggestions put to him including his statement under Section 161

Cr.P.C. (Ex.PW-7/X1). He specifically denied the suggestion that on

17th December, 2012, the deceased and appellant were present in the

rented room at Gali No.2, Bada Shiv Mandir, Alipur, Delhi.

7. Ajay Kumar (PW12) and Naval (PW14) have deposed in

seriatim that they used to reside in Delhi and were working in the steel

factory of one Kaalu at Alipur and had taken a room on rent in a house

at Garhi near Dairy in Alipur along with Sudhir (PW13). PW12 has

deposed that Sudhir‟s father also used to stay with them. The said

Sudhir (PW13) was working in another factory. Ajay (PW12) had

stated that they used to pay Rs.600/- per month as rent and share other

expenses like electricity, etc. On the date of the incident, Ajay Kumar

(PW12) along with Naval (PW14) and Sudhir (PW13) had gone to

their respective factories at about 8.30 AM.

8. PW12 deposed that he did not know the appellant Chhotu or the

deceased Sarvesh and had never seen them in the rented house. He

was cross-examined by the Additional Public Prosecutor but denied

all suggestions given to him. He even denied the fact that the appellant

Chhote used to reside in the rented accommodation. PW14 accepted

that he knew the appellant Chhote as he belonged to the village of his

brother-in-law (jija). But he deposed that he did not know the

deceased Sarvesh and had never seen him in the rented

accommodation. He was also cross-examined by the Additional Public

Prosecutor but he remained steadfast and did not accept the

prosecution version.

9. Sudhir (PW13) has corroborated that he along with Ajay

(PW12) and Naval (PW14) were residing on rent at Garhi near Dairy,

Alipur, Delhi. On 17th of a month in a year, which he did not

remember, he (PW13), Ajay (PW12) and Naval (PW14) had gone to

their respective factories at about 8.30 A.M. However, as the

employer refused to raise his salary, he left the job on that day to go to

his native village. He identified the appellant Chhote as they belonged

to the same village. PW13 has stated that the appellant Chhote was not

residing with them. He did not know the deceased Sarvesh and had

not seen him in the said house. He was cross-examined by the

Additional Public Prosecutor, but he too did not support the

prosecution‟s version.

10. The prosecution had also led evidence of Sunil Aggarwal

(PW2) and Hanuman Aggarwal (PW4), the employers of Ajay

(PW12), Naval (PW14) and Sudhir (PW13). Sunil Aggarwal (PW2)

has deposed that on 17th December, 2012, Ajay (PW12) and Naval

(PW14) had joined duty at about 9.30 A.M. and had left the factory at

about 8 P.M. On 18th December, 2012, neither Ajay (PW12) nor

Naval (PW14) came to the factory without any information. Hanuman

Aggarwal (PW4) has stated that Sudhir (PW13) had worked in his

factory on 17th December, 2012 between 9 A.M. to 8 P.M. After 17th

December, 2012, Sudhir (PW13) did not report for work.

11. It is noticeable and important to state here that after the

occurrence, Ajay (PW12), Sudhir (PW13) and Naval (PW14) were

missing and had absconded. They were traced out and had appeared

only on 7th January, 2013. This is an accepted and admitted position.

The appellant Chhote was arrested on 28th January, 2013 at 12:40 PM

vide arrest memo, Ex.PW10/F.

12. Thus, to establish the guilt of the appellant Chhote, the

prosecution is left and has to rely upon the testimony of Ramesh

Kumar (PW3), owner of the house in question from where the dead

body of Sarvesh was found, i.e. Khasra No.705, Nawal Park, Alipur,

Delhi. He deposed that he had a dairy on the ground floor with three

rooms on the first floor. The appellant Chhote and his friends, Ajay

(PW12), Sudhir (PW13) and Naval (PW14) used to live there. On 17th

December, 2012 at about 1.30-2.00 P.M., when PW3 was giving his

buffaloes a bath, he had seen the appellant Chhote going upstairs with

a polythene bag in his hands. The appellant came down after a while

and took upstairs a wooden piece, which was probably a „charpai ka

paaya‟ (one leg of a wooden cot). The other occupants of the room

had gone for work. After some time, an unknown person came and

went upstairs. PW3 had earlier also seen the said person as he used to

come to meet the appellant Chhote and others. He claimed that on the

same day, i.e. 17th December, 2012, at about 5.30-6.00 P.M., he

noticed that the light was on in the room and had knocked on the door.

He could see from the window (jangla) that one person was lying in

the room, but became suspicious when he did not respond. He had

then called the police control room pursuant to which the police had

reached there. Ramesh Kumar (PW3) testified that he had not seen the

appellant leaving the house. Subsequently, sometimes in January,

2013, the appellant Chhote was brought by the police. PW3 had then

identified him. The learned Additional Public Prosecutor was allowed

to put leading questions, to which PW3 accepted that on 17th

December, 2012 at about 6.30 P.M., he had seen the appellant locking

the room and going out alone. He was cross-examined on behalf of the

appellant wherein he had accepted that the distance between the room

and dairy was about 20-30 feet with common entry gate for the room

rented to Ajay (PW12) and the dairy. Ajay (PW12) had been residing

there for last three months without proper rent agreement or rent

receipts. He denied the suggestion that the appellant Chhote was not

residing with Ajay (PW12). He accepted as correct that he did not talk

to the appellant Chhote when he had purportedly come there with

polythene bag and that he had not heard any noise/scream. On an

application under Section 311 Cr.P.C. filed by the prosecution,

Ramesh Kumar (PW3) was recalled for examination when he had

corrected the date of making the call to the police as 18th December,

2012 and not on 17th December, 2012. The said examination may be

reproduced for convenience,

"In fact I had made a call to police at no. on 18.12.2012 and not on 17.12.2012 after getting suspicious when I had gone upstair for attending nature call. I had mentioned the date 17.12.2012 inadvertently earlier in my examination in chief."

He was cross examined by the counsel for the accused to which he

gave the following reply,

"I had made a call to the police on 18.12.2012 but I had not noted down the date of incident. Police has not taken any call details from me. It is wrong to suggest that I have changed the date from 17/12/2012 to 18/12/2012 at the instance of the IO. It is further wrong to suggest that I did not make a call on 18.12.2012"

13. Two factual aspects surface and emerge from the testimony of

Ramesh Kumar (PW3). First, as per PW3 the room in question was in

occupation of the appellant Chhote as well as Ajay (PW12), Sudhir

(PW13) and Naval (PW14). Second, he had seen the appellant Chhote

going to the room upstairs with a polythene bag and a paaya of

charpai (Ex.P1) on 17th December, 2012. Subsequently, he had seen

the deceased going upstairs. It will not be far-fetched to assume that

the deceased had gone to the same room. However, the dead body of

the deceased was found at about 6 P.M. on 18th December, 2012, i.e.

after more than 24 hours.

14. The question arising for consideration is whether the aforesaid

deposition of Ramesh Kumar (PW3), even if accepted as correct, is

sufficient to hold that the appellant Chhote is the perpetrator of the

said offence. The answer, we observe, in the facts of the present case,

should be in favour of the appellant Chhote The evidence or

deposition of Ramesh Kumar (PW3) fails to meet and by itself satisfy

the stringent requirement and is not on a standalone basis, strong and

compelling enough to justify conviction of the appellant, Chhote.

There are a number of alternate possibilities which the prosecution has

failed to disprove and dispel while trying to build its case upon

circumstantial evidence.

15. As noticed above, Ramesh Kumar (PW3) initially had only

referred to and given the name of Ajay (PW12) as his tenant, a fact

which is mentioned in the rukka and the FIR marked Ex.PW-1/C.

PW3 did not give names of other occupants of the room in question at

the initial stage. This is an indication and reflects that PW3 till 18th

December, 2012 did not know the name and identity of the other

occupants. PW3 apparently had subsequently ascertained and came to

know about the names of the residents. It would be relevant to

reproduce the translated extract of Ramesh Kumar‟s (PW3) initial

statement given to the police on 18th December, 2012 as recorded in

the rukka by the SI Jitender Joshi (PW10) as well as the FIR

(Ex.PW1/C),

"The owner of the dairy and the landlord, present at the scene, namely Ramesh Kumar, s/o Late Sh. Jile Singh, r/o H.No.946, Nawal Park, Alipur, Delhi-36, informed that he had given this room on rent to a person named Ajay. The said Ramesh Kumar could not provide elaborate details about the aforesaid unknown dead-body or the tenant Ajay."

16. The evidence led by the prosecution would only lead to the

conclusion that Ajay (PW12), Sudhir (PW13) and Naval (PW14) had

gone for work on 17th December, 2012, an accepted and proven fact.

However, this would not explain what had happened after Ajay

(PW12), Sudhir (PW13) and Naval (PW14) had left the factory and

came back and why none of them reported to work on 18th December,

2012. We have noted that five bottles of country-made-liquor

(Ex.P2/1 to 5) were found in the room. It is possible and cannot be

ruled out that Ajay (PW12), Sudhir (PW13) and Naval (PW14) had

consumed liquor in the said room. The probability of involvement of

third persons including other occupants of the house or any other

person between 17th and 18th December, 2012 cannot be ruled out and

is apparent and distinct. The other three occupants had absconded and

could be traced only on 7th January, 2013. They or any other person

had the opportunity to commit the crime, but we restrict ourselves on

the said aspect only to enumerate different possibilities. It is not

proved on record, whether the other three occupants had, not come to

the room in question and occupied the same in the intervening night of

17th and 18th December, 2012. Prosecution has failed on this aspect.

In case, Ajay (PW12), Sudhir (PW13) and Naval (PW14) had deposed

implicating the appellant, the position may have been different. The

deponents‟ version then would have been tested in cross-examination.

At best, the testimony of Ramesh Kumar (PW3) puts forth an

inconclusive proposition that the appellant could be the perpetrator but

falls short to prove beyond doubt that the appellant must be the

perpetrator. The said enunciation would remain a mere possibility

lacking conviction and certainty.

17. It is well settled and trite principle of law that in cases of

circumstantial evidence, the evidence and material on record must be

such that it not only indicates and point towards the accused as the

perpetrator of the crime but must also rule out any other hypothesis, or

possibility of involvement of a third person. This Court in

Crl.A.491/1999 titled Rahul Ranahyju versus State of NCT of Delhi,

decided on 13th April, 2015, referring to State (NCT of Delhi) versus

Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600, observed,

"The rule governing circumstantial evidence is that each and every incriminating circumstantial evidence must be established by reliable evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion is that the accused is guilty and no other hypothesis against the guilt is possible (See paragraph 97 [of Navjot Sandhu‟s case]). The inferences must have a foundation of solid and cogent facts, including surrounding circumstances, antecedents and subsequent conduct and all other factors that constitute relevant material. Thus, innocuous, innocent or inadvertent events or incidents should not enter the judicial verdict. The said views have been reiterated time and again (see John Pandian versus State, (2010) 14 SCC 129 and Yakub Abdul Razak Memon versus State of Maharashtra, (2013) 13 SCC 1, paragraph 125 onwards)"

18. In view of the aforesaid discussion and the factual position, we

are inclined to grant the benefit of doubt to the appellant Chhote and

set aside his conviction for having committed murder of Sarvesh. He

shall be released forthwith, unless required to be detained in

accordance with law in any other case.

19. The appeal is disposed of. Trial court record will be sent back.

(SANJIV KHANNA) JUDGE

(ASHUTOSH KUMAR) JUDGE May 27th, 2015/NA