Delhi High Court
Ranjeet Mukhiya vs State on 15 March, 2016
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On :March 01, 2016
Judgment Delivered On : March 15, 2016
+ CRL.A.143/2016
RANJEET MUKHIYA .....Appellant
Represented by: Mr.Ajay Verma, Advocate with
Ms.Manjeeta Kumari, Advocate
versus
STATE .....Respondent
Represented by: Mr.Varun Goswami, APP
Insp.Satish Kumar, IO and ASI
Satbir, P.S.Bawana
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
1. At 10:47 AM on September 08, 2013 ASI Pramod Kumar PW-5
noted vide DD No.22PP, Ex.PW-5/A that PCR has informed of a person
lying dead at Factory No.B-5, Sector-2, Bawana Industrial Area. He
handed over a copy of the daily diary entry to SI Jitender Joshi PW-26
who, accompanied by HC Vinod PW-21 and Ct.Satyapal PW-24, left for
the factory and on reaching found the main gate locked. HC Sukhdev
PW-14, In-charge of a PCR Van also reached. The four police officers
met Lalu Mukhiya PW-19, a labour contractor, who informed that
Laxman Mukhiya (the deceased) was lying dead inside and he did not
have the key with him. Therefore, as directed by SI Jitender Joshi, HC
Vinod and HC Sukhdev broke open the lock at the gate of the factory
and all entered inside to find deceased lying dead in a head room above
the staircase well (ledge/mumty) leading up to the second floor. In the
meanwhile Jagdish Kumar PW-9, the owner of the factory also reached.
2. SI Jitender Joshi recorded the statement Ex.PW-26/A of Jagdish
Kumar, as per which he had employed three labourers : named Jumman
Paswan, the deceased and the accused : Ranjeet Mukhiya; all of whom
used to reside in his factory. On September 07, 2013 he had handed over
`1,800/- to the accused in presence of the deceased and Lalu Mukhiya.
The money was to be divided amongst the three labourers employed by
him. Since some material had to be supplied, at around 07:00 AM today,
from his mobile number 9212095078 he made a call to mobile number
9718335231 which was with the accused, but got no response and
therefore he called up Lalu Mukhiya and requested him to check at the
factory and after sometime Lalu Mukhiya informed him that the factory
was locked from outside, at which he told him to jump over the main gate
and find out what was wrong. Lalu Mukhiya informed him after
sometime that having scaled the main gate he found the deceased lying
dead in the ledge and the other two labourers missing. Therefore, he
made a telephonic call to the police informing of the deceased lying dead
inside his factory.
3. Making an endorsement Ex.PW-24/B beneath the statement
Ex.PW-26/A, SI Jitender Joshi sent HC Vinod Kumar to PS Bawana for
FIR to be registered. ASI Yogender Singh PW-4 registered FIR
No.36/2013, Ex.PW-4/A for an offence punishable under Section 302
IPC.
4. At that point of time Insp.Satish Kumar PW-28 took over the
investigation and summoned the crime team. Insp.Anil Kumar PW-8,
prepared the crime team report Ex.PW-8/A; recording therein that „a
mobile phone without battery is found near the dead body‟. ASI Karambir
PW-6, Photographer from crime team took twenty one photographs
Ex.PW-6/A-1 to Ex.PW-6/A-21 of the spot; negatives whereof are
Ex.PW-6/B-1 to Ex.PW-6/B-21. Insp.Satish Kumar prepared the rough
site plan Ex.PW-28/B of the spot. He seized blood stained earth and earth
control from the ledge (mumty) of factory where the deceased was lying
dead vide memo Ex.PW-9/B.
5. A black coloured mobile phone was seized by Insp.Satish Kumar
from a bucket in the ledge as recorded in the seizure memo Ex.PW-9/D.
Inquest papers were prepared and the dead body was sent to the mortuary
of BSA Hospital, where around 12.30 P.M. on September 12, 2013,
Dr.Vijay Dhankar PW-23, conducted the post-mortem and prepared the
post-mortem report Ex.PW-23/A, recording therein that sixteen external
injuries were found on the person of the deceased; death was caused due
to combined effect of hemorrhagic shock and cranio cerebral damage
consequent to multiple injuries to the body and injuries found on person
of deceased were ante-mortem, fresh before death, caused by blunt force
and sufficient to cause death in the ordinary course of nature. He
recorded therein that 500 CC of yellowish coloured semi-digested food
was in the stomach. After the post-mortem Dr.Vijay Dhankar handed
over the clothes and blood sample of the deceased on a gauze to HC
Dharampal Singh PW-25 vide memos Ex.PW-25/A to Ex.PW-25/C.
6. Jumman Paswan and the accused were the obvious suspects in
view of what Jagdish Kumar told SI Jitender Sethi. Whereas the accused
was found absconding, Jumman Paswan informed that he had left the
factory to meet his ailing son, which fact was found to be correct and thus
the needle of suspicion pointed towards the accused.
7. On October 04, 2013, in the presence of SI Jitender Joshi and
Ct.Rajbir PW-20, Insp.Satish Kumar arrested the accused from village
Firozpur, District Sonepat, Haryana. His disclosure statement Ex.PW-
22/C was recorded, and ignoring the confession, relevant would it be to
note that he told that he could get recovered an iron pipe with which the
deceased was injured as also the clothes he was wearing at the time of the
incident. He led the police officers to a vacant ground in front of
factories No.B-11 to B-20, Sector-2, DSIDC, Bawana and got recovered
an iron pipe, a T-shirt and a half pant from within the bushes which were
seized vide memo Ex.PW-20/B.
8. At the pointing of Insp.Satish Kumar, Insp.Mahesh Kumar PW-3, a
draftsman, prepared the site plan to scale Ex.PW-3/A of the spot and
marked point B from where a black coloured mobile phone was seized.
9. The iron pipe recovered at the instance of the accused was sent to
Dr.Vijay Dhankar for opinion and vide Ex.PW-23/B he opined that the
external injuries on the deceased could be caused by the iron pipe. Sent
to forensic examination, vide FSL Reports Ex.PW-27/A and Ex.PW-27/B
it was opined that the blood detected on the iron pipe and the T-shirt had
some profiles of DNA generated from the blood sample of the deceased.
10. Insp.Satish Kumar obtained the call details (CDRs) Ex.PW-11/C of
mobile number 9212095708 belonging to Jagdish Kumar owner of the
factory and Cell ID chart Ex.PW-11/D regarding location of mobile
number 9212095708 on September 08, 2013. An analysis of CDRs
Ex.PW-11/C and Cell ID Chart Ex.PW-11/D of mobile number
9212095708 brings out that two calls were made from mobile number
9718335231 (mobile number purportedly belonging to deceased) to
mobile number 9212095708 belonging to Jagdish Kumar, owner of
factory, in the afternoon of September 08, 2013; the details whereof are
as under:-
S. No. Time of Call Duration of Location of Location of
Call mobile number mobile
9718335231 at number
the time of 9212095708
making call at the time of
receiving call
1. 12:09:50 on 26 seconds C-88, Khasra C-88, Khasra
September No.4226, Village No.4226,
08, 2013 Badli, Delhi - 110 Village
042. Badli, Delhi
- 110 042.
2. 12:10:54 on 72 seconds C-88, Khasra C-88, Khasra
September No.4226, Village No.4226,
08, 2013 Badli, Delhi - 110 Village
042. Badli, Delhi
- 110 042.
11. At the trial, the prosecution examined twenty eight witnesses. We
eschew reference to the formal and procedural witnesses and note the
testimonies of only the relevant witnesses as per whose testimonies, the
learned Trial Judge has returned a finding of guilt against the accused.
12. Jumman Paswan deposed that he was a labourer in the factory and
on the seventh day of a month of a year, both month and year which he
did not remember he had left the factory to meet his ailing son leaving the
deceased, accused and Lalu Mukhiya at the factory and next day he learnt
that the deceased had been murdered and the accused was absconding.
13. Jagdish Kumar deposed in sync with his statement Ex.PW-26/A,
contents whereof we have briefly noted while recording the narratives.
Pertinently, neither any question nor any suggestion was put to him by
the accused regarding two calls received by him on his mobile number
9212095708 from mobile number 9718335231 in the afternoon of
September 08, 2013.
14. Rajeev Ranjan PW-11, Nodal Officer, Tata Tele Services Ltd.,
deposed that the SIM card pertaining to mobile number 9212095708 was
issued to one Jagdish Kumar (owner of the factory). He proved the call
record details Ex.PW-11/C and Cell ID chart Ex.PW-11/D of/pertaining
to mobile number 9212095708 for September 08, 2013.
15. Soti Lal Yadav PW-16 deposed that he met the accused on
September 08, 2007 at Labour Chowk, Gurgaon and since accused
requested him for a job he hired the accused for loading goods in vehicles
and after about a week one Laxman Rai hired the accused.
16. Laxman Rai PW-17, deposed that in the year 2012 he used to
provide labour to Amira Rice Mill. On September 08, 2013 contractor
Soti Lal brought the accused to him for employment purposes. Accused
worked under him as a casual labour from September 18, 2013 to October
01, 2013.
17. Lalu Mukhiya deposed that he had got the accused, the deceased
and Jumman Paswan employed with Jagdish Kumar and all used to reside
in the factory. On September 07, 2013 Jagdish Kumar paid `1,800/- to
the accused for being distributed amongst the accused, the deceased and
Jumman. On September 07, 2013 he, accused and the deceased ate
chicken and drank liquor in the factory and he left. The next morning he
received a call from Jagdish Kumar that the accused was not responding
on his mobile phone and therefore he went to the factory and found it
locked. On being informed, Jagdish told him to jump inside and find out
what was wrong. He did so. He saw the deceased lying dead. He
informed Jagdish, who in turn informed the police and the police came.
The lock at the gate was broken.
18. SI Jitender Joshi and Insp.Satish Kumar deposed on the lines of
factual narratives noted by us in the foregoing paras.
19. Being relevant, we note following portion of the cross-examination
of SI Jitender Joshi:-
"Factory No.B-5, Sector-2, DSIIDC, Bawana where
the occurrence took place, was constructed upto 1 ½
floor at the time of occurrence. The kunda of the
main gate of the factory was broken by us on or
about 11.20 am. When the kunda was broken by us,
Lalu Mukhiya was present with us alongwith 10-12
public persons. I had requested those public persons
to join the proceedings, but none joined except Lalu
Miharukhiya. It is correct that IO had not seized the
plastic bucket, from inside which, the mobile phone
with earphone lead and railway ticket was recovered.
It is wrong to suggest that I had not joined the
investigation or that no exhibits were lifted by IO in
my presence or that PW Lalu Mukhiya or that PW
Jagdish Kumar had also not joined investigation."
20. Being relevant, we note following portion of the cross-examination
of Insp.Satish Kumar:-
"It is correct that the recovery of the weapon of
offence and clothes were effected from industrial
area. The said recoveries were effected in between
8.30pm to 9.00pm. It is correct that few of the
factories were opened at that time. I had visited three
factories prior to effecting the recoveries. I had
requested 7-8 workers of the said three factories for
joining investigation, but the said workers refused to
join the investigation. I had not recorded their names
and addresses and I had also not served any notices
to the said workers. I had not mentioned in case diary
the fact that I had visited three factories and
requested 7-8 workers for joining investigation. It is
correct that after effecting the recoveries and during
the sealing procedure I had not requested any of the
workers/formens of any of the factory situated there
for joining investigation. The writing work after
recovery was conducted while standing in front of
zypsy under street light. I had prepared the site plan
of the place of recovery. I had shown the position of
street light in the said light plan."
21. In his statement under Section 313 Cr.P.C. Ranjeet pleaded
innocence and denied having committed murder of the deceased. Being
relevant, we note following portion of statement of accused Ranjeet
recorded under Section 313 Cr.P.C.:-
"Q3. It is further in evidence against you that
PW19 Sh. Lalu Mukhiya provided you accused Ranjit
Mukhiya resident of Bihar, deceased Laxman
Mukhiya and PW2 Jumman Paswan as labourers in
the factory of PW9 Sh. Jagdsih Kumar. What you
have to say?
Ans. It is correct.
Q4. It is further in evidence against you that
PW19 Sh. Lalu Mukhiya on the demand of factory
owner PW9 Sh. Jagdish Kumar or due to shortage of
labourers, also used to work in the factory of PW9
Jagdish Kumar. What you have to say?
Ans. It is correct.
Q5. It is further in evidence against you that you
accused Ranjit Mukhiya, deceased Laxman Mukhiya
and PW2 Jumman Paswan used to reside inside the
aforesaid factory premises of PW9 Sh. Jagdish
Kumar and used to work in the factory of PW9. What
you have to say?
Ans. It is correct.
Q14. It is further in evidence against you that
after you accused Ranjit Mukhiya brought chicken,
you all three had consumed liquor and in the
meantime, you accused Ranjit Mukhiya also cooked
up the chicken. Thereafter, you all ate the chicken.
What you have to say?
Ans. It is correct.
Q15. It is further in evidence against you that
thereafter, PW19 Lalu Mukhiya left the factory of
PW9 Sh. Jagdish and when PW19 left the factory,
you accused Ranjit Mukhiya and Laxman Mukhiya
(since deceased) were present inside the room of the
factory. What you have to say?
Ans. It is correct.
Q22. It is further in evidence against you that
when PW19 Lalu Mukhiya went to first floor from
staircase i.e. towards mumti, he found Laxman
Mukhiya lying dead having injury over his face and
blood and was also lying near his body. What you
have to say?
Ans. It is not within my knowledge, however it
was revealed to me that Laxman Mukhiya was found
lying dead. I went to purchase vegetables and when I
reached back I found Laxman Mukhiya dead and
thereafter due to fear I ran away.
Q25. It is further in evidence against you that
PW19 Lalu Mukhiya had also informed PW9 Jagdish
Kumar that you accused Ranjeet Mukhiya was
absconding from the factory but mobile phone
belonging to you accused Ranjeet Mukhiya, was lying
inside bucket at mumti of the factory premises i.e. at
the place where you accused Ranjeet and PW2
Jumman used to cook food. What you have to say?
Ans. I went to purchase vegetables on that night
and when I returned back to the aforesaid factory
premises, I found Laxman Mukhiya lying dead and
thereafter due to fear I ran away while leaving my
mobile phone at the spot.
Q128. What else you have to say?
Ans. I am innocent and have been falsely
implicated. I have not committed the murder of
Laxman Mukhiya. Infact I had consumed liquor with
deceased Laxman Mukhiya on the intervening night
of 07/8.09.13 and thereafter I went outside for
purchasing vegetables and after purchasing
vegetables when I had returned back to the aforesaid
factory after about ½ hour, I found Laxman Mukhiya
lying dead in the aforesaid factory and due to fear I
ran away while leaving my mobile phone and one
railway ticket at the spot. Factory owner and other
persons falsely named me in the commission of
murder of Laxman Mukhiya. I had no enmity with
deceased Laxman Mukhiya. Some robber might have
entered inside the factory in my absence and
committed the murder of Laxman Mukhiya and I have
been falsely implicated in the present case. No
recovery were got effected by me and the same were
planted by the police."
22. In defence, accused examined his brother Sanjay Mukhiya as DW-
1, who deposed that around two years ago his brother i.e. accused called
him at 09.00 A.M. one day and told him that in the preceding night he
had consumed liquor with the deceased and thereafter had gone outside
the factory to purchase food and when he returned he saw the deceased
lying dead and due to fear his brother ran away. Being relevant, we note
following portion of the cross-examination of Sanjay:
"I do not remember the mobile number or phone
number from which accused Ranjeet Mukhiya made a
call to me. I also do not remember today the phone
number over which I attended the call.
I have not brought any telephone instrument or call
details to establish that the accused Ranjeet Mukhiya
had made a call to me....It is also correct that till
date I had not informed either the police or to any
higher officials of the police to the effect that infact
my brother i.e. accused Ranjeet Mukhiya had made a
call to me."
23. Vide impugned judgment dated August 31, 2015 it has been held
by the learned Trial Judge that the prosecution has succeeded in
establishing the guilt of the accused and as a result has convicted him of
having committed an offence punishable under Section 302 IPC and has
sentenced him to undergo imprisonment for life and pay fine in sum of
`5,000/-; in default to undergo simple imprisonment for three months.
24. In so concluding, the learned Trial Judge has held as follows:-
a) The post-mortem report Ex.PW-23/A of the deceased establishes
that death of deceased was homicidal in nature.
b) The testimony of Lalu Mukhiya establishes that deceased was last
seen alive in the company of the deceased. A careful analysis of post-
mortem report Ex.PW-23/A of the deceased, particularly the recordings
contained therein that fluid, semi-digested food, fecal matter and gases
were present in the body of deceased, not only corroborated the testimony
of Lalu Mukhiya that he, the accused and the deceased had consumed
chicken and liquor before he left the factory in the night of September 07,
2013, leaving the deceased alone in the company of the accused, but also
establishes that the death of the deceased had taken place soon after he
was last seen alive in the company of the accused.
c) The circumstance that the death of the deceased had taken place
soon after he i.e. the deceased was last seen alive in the company of the
accused, when coupled with the circumstance that there is nothing on
record to suggest the possibility of any other person having visited the
factory around the time of the death of the deceased or being the author of
the crime and failure of the accused to explain as to what happened
between him and the deceased after Lalu Mukhiya left the factory leaves
no manner of doubt that the accused is the perpetrator of the crime of
murder of the deceased.
d) The defence sought to be established by the accused through the
testimony of his brother Sanjay does not inspire confidence for the
reasons:- (i) being real brother of accused, Sanjay had every reason to
depose falsely in order to save his brother; (ii) Sanjay had given no
details whatsoever in his testimony about the purported call made to him
by the accused regarding murder of the deceased; (iii) there is
contradiction between the statement of the accused recorded under
Section 313 Cr.P.C. and the testimony of Sanjay, inasmuch as the
accused had stated that he had gone outside the factory in the night of
September 07, 2013 to purchase vegetables but Sanjay has deposed that
accused had left the factory to purchase food. In any case, there was no
occasion for the accused to go outside the factory in the night of
September 07, 2013 to purchase food since it stood established that the
accused had taken dinner with the deceased and Lalu Mukhiya; (iv)
testimony of Sanjay stood demolished upon failure of Sanjay to disclose
in his cross-examination either the telephone number on which he
received the call from the accused regarding murder of the deceased or
number from which the accused had called him; and (v) admission of
Sanjay in his cross-examination that he never informed the police or court
about the purported call made by the accused regarding murder of the
deceased.
e) The failure of the accused to explain the circumstances as to how
his mobile phone was recovered from near the dead body of deceased,
coupled with the fact that the accused did not attend the calls made by
Jagdish Kumar in the morning of September 08, 2013 lends credence to
the case of prosecution that the accused is the perpetrator of crime of the
murder of the deceased.
f) The testimonies of Soti Lal Yadav and Laxman Rai establish the
abrupt manner in which the accused left the employment of Jagdish
Kumar immediately after the murder of the deceased, which conduct of
the accused is another pointer towards his guilt.
g) The false plea taken by the accused in his statement under Section
313 Cr.P.C. serves as an additional link in the chain of circumstances
appearing against the accused.
h) DNA profile generated from the blood on the iron pipe and T-shirt
recovered at the instance of the accused matching that from the blood
sample of the deceased clinches the accused being the perpetrator of the
crime.
25. Learned counsel for the accused argued in appeal that it is a
cardinal principle of circumstantial evidence that circumstances
appearing against an accused, taken collectively, are incapable of
explanation on any reasonable hypothesis, save that of the guilt sought to
be proved against the accused. Counsel argued that it is the case of the
prosecution that the police had recovered the mobile phone belonging to
the accused from a bucket lying in the mumty leading to the second floor
of the factory and the accused was nowhere found in the factory at that
time. Learned counsel urged that the analysis of CDRs Ex.PW-11/C of
mobile number 9212095708 shows that two calls were made from mobile
number, 97183358231 belonging to the accused, to mobile number
9212095708 belonging to the owner of factory : Jagdish Kumar, and
duration of said two calls was 26 seconds and 72 seconds respectively.
Meaning thereby, that someone other than the accused had access to the
mobile phone of the accused and used the same to make calls to the
owner of the factory : Jagdish Kumar, which in turn implies that
someone other than the accused was present inside the factory around the
time the deceased was murdered. Counsel argued that in these
circumstances, the possibility that 'said some other person' had murdered
the deceased cannot be ruled out and thus benefit of doubt should be
given to the accused.
26. As is evident from the afore-noted conspectus of facts, the present
case is based on circumstantial evidence.
27. The well known rule governing circumstantial evidence is as
follows:-
a) The circumstances from which the inference of guilt of the accused
is drawn have to be proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact sought to be
inferred from those circumstances;
b) The circumstances are of a determinative tendency unerringly
pointing towards the guilt of the accused;
c) The circumstances, taken collectively, are incapable of explanation
on any reasonable hypothesis save that of the guilt sought to be proved
against him.
28. The Courts have added two riders to the aforesaid principle;
namely, (i) there should be no missing links but it is not that every one of
the links must appear on the surface of the evidence, since some of these
links can only be inferred from the proved facts and (ii) it cannot be said
that the prosecution must meet any and every hypothesis put forward by
the accused however far-fetched and fanciful it may be.
29. We may only add, circumstantial evidence in order to furnish a
basis for conviction, requires a high degree of probability, that is, so
sufficiently high, that a prudent man considering all the facts, feels
justified in holding that the accused has committed the crime.
30. The learned Trial Judge has gone into great pains in concluding
that testimony of Lalu Mukhiya establishes that the deceased was last
seen alive in the company of the accused soon before his death. In so
concluding, the learned Trial Judge has analyzed the testimony of Lalu
Mukhiya with the post-mortem report Ex.PW-23/A of the deceased and
other facts and circumstances of the case.
31. But, this kind of mechanist capturing of witness (Lalu Mukhiya's
testimonay) was totally unwarranted in the present case, in view of the
admission made by the accused in his statement under Section 313
Cr.P.C. that he and the deceased were all alone in the factory soon before
the death/murder of the deceased. In fact, what was required was an
application of mind and careful consideration of the defence taken by the
accused : of having parted company with the deceased, as he left to buy
vegetables and on return saw the deceased dead and out of fear he
absconding.
32. In order to highlight the approach which ought to have been taken
by the learned Trial Court, we deem it appropriate to give an illustration.
33. In the decision reported as AIR 1972 SC 922 Khatri Hemraj
Amulakh vs. State of Gujarat, the accused was acquitted by the learned
Court of Sessions of the charge of having murdered his wife, which
acquittal was set aside by the High Court. Matter reached the Supreme
Court. Pithily put, the case set up by the prosecution was that three
incriminating circumstances were appearing against the accused viz. (i)
after their marriage, the accused was not on speaking terms with his
father-in-law and did not allow the deceased to visit her father's house.
The deceased used to complain to her father that the accused used to
maltreat her; (ii) the accused was seen in a state of excitement around the
time when the deceased was murdered; and (iii) the accused was seen
running towards a police station soon after the deceased was murdered
and at that time his clothes were stained with blood. In his statement
under Section 342 Cr.P.C. (corresponding to Section 313 Cr.P.C. in the
new Code) the accused denied having murdered his wife or having
maltreated her. The accused however admitted that he was seen running
towards the police station with blood on his clothes and on his hands,
which he explained as follows:-
"At that time I was going to police station. My
clothes were stained with blood. At that time I had
gone home from my shop and found the door of my
house closed. So again I went to my shop, and then
again I returned. At that time I thought that my wife
might have gone to answer the call of nature and the
door must have been closed. Then I opened the door,
and my wife appeared to have been murdered. Then
in order to see whether she was alive or dead, I tried
to lift her and at that time my clothes and persons
were stained with blood. At that time her both the
hands were bent. She had cuts on her neck. So I was
going running to inform the police about this, and at
that time Govind had seen me going to the police
station, I informed the P.S.I., that someone has killed
my wife. I told the P.S.I., that I did not know as to
who has murdered my wife. Then P.S.I., abused me,
slapped me and told me that I was the murderer of
my wife. Then I was arrested. Then I was taken to the
Mamlatdar after about 10 or 12 days. Mamlatdar
had asked me as to what I was knowing about the
offence? I told him I knew nothing and I was
threatened to confess. But I did not confess. On that
day old Chappies were lying near my house."
34. Holding that first two circumstances relied upon by the prosecution
had not been proved, with reference to the third, the Supreme Court noted
the statement of the accused under Section 342 Cr.P.C. and opined
thereon as follows:-
"As regards the prosecution evidence that the
accused after the occurrence was seeing running
towards the police station with blood stains on his
clothes, we are of the opinion that the accused has
furnished a plausible explanation. According to the
accused, when he came to his house and found his
wife with a number of injuries on her back, he tried
to make her sit in order to find out whether she has
alive or dead. We find nothing unnatural or
improbable in the above conduct of the accused. It is
obvious from the Gujarati version of the statement of
the accused, to which a reference has been made by
the High Court, that the accused wanted to make sure
at that time as to whether the deceased was alive or
not. There was, in our opinion, no element of
improbability in the above conduct of the accused or
his subsequent conduct in running with the blood-
stained clothes to the police station to immediately
inform police about the murder of his wife."
35. The present case required similar approach by the learned Trial
Judge, as was adopted by the Supreme Court in Khatri Hemraj's case
(supra). The defence taken by the accused as to how and in what
circumstances he parted company with the deceased soon before the
deceased was murdered warranted a very thorough and critical analysis,
which we find missing in the impugned judgment.
36. The defence taken by the accused in his statement under Section
313 Cr.P.C. is as follows:-
"I am innocent and have been falsely implicated. I
have not committed the murder of Laxman Mukhiya.
Infact I had consumed liquor with deceased Laxman
Mukhiya on the intervening night of 07/8.09.13 and
thereafter I went outside for purchasing vegetables
and after purchasing vegetables when I had returned
back to the aforesaid factory after about ½ hour, I
found Laxman Mukhiya lying dead in the aforesaid
factory and due to fear I ran away while leaving my
mobile phone and one railway ticket at the spot.
Factory owner and other persons falsely named me
in the commission of murder of Laxman Mukhiya. I
had no enmity with deceased Laxman Mukhiya. Some
robber might have entered inside the factory in my
absence and committed the murder of Laxman
Mukhiya and I have been falsely implicated in the
present case. No recovery were got effected by me
and the same were planted by the police."
37. Does the aforesaid defence taken by the accused inspire
confidence?
38. In our opinion, the answer to the aforesaid question is an emphatic
NO. Reason(s) being:- (i) The defence taken by the accused is bereft of
many vital details such as, what time did Lalu Mukhiya leave the factory
in the night of September 07, 2013? What time did the accused go outside
the factory to purchase vegetables in the night of September 07, 2013?
etc. (ii) There is a gaping hole in the defence taken by the accused in that,
there was no occasion for the accused to go out of the factory to buy
vegetables in the night time on the fateful day, particularly when
admittedly the accused had eaten dinner with the deceased and Lalu
Mukhiya; (iii) Most importantly, the accused failed to examine the
vegetable vendor from whom he purportedly purchased vegetables on the
fateful day or any other person to prove his defence of alibi; and (iv) The
lock being put on the gate of the factory, if some outsider had entered
after accused left the factory and murdered the deceased and fled
thereafter, he would not have locked the factory from outside. The
putting of the lock on the gate is an indication of the job being that of
some insider.
39. A careful analysis of the evidence led by the prosecution; the
defence taken by the accused and other facts and circumstances brings
out following (incriminating) circumstances appearing against the
accused:-
a) The deceased was last seen alive in the company of the accused
soon before the murder.
b) Accused failed to explain as to how and in what circumstances he
parted company with the deceased before the deceased was murdered.
c) The mobile phone of the accused was recovered from a bucket
lying in the ledge where dead body of deceased was found, as evident
from the testimonies of police officers associated with spot investigation,
Crime Team report Ex.PW-8/A and site plan to scale Ex.PW-5/A. (The
conduct of the accused of having left behind his mobile phone in the
factory coupled with the fact that the accused never returned to factory to
fetch the same is highly indicative of the fact that the accused got
perplexed after committing murder of the deceased and left behind the
mobile phone in the factory in his hurry to leave the factory).
d) Accused left the factory to never return after the murder of
deceased without giving any intimation whatsoever to owner of factory
Jagdish Kumar as is evident from the testimonies of Jagdish Kumar, Soti
Lal Yadav and Laxman Rai.
e) DNA profiles generated from iron pipe and t-shirt recovered at
instance of accused Ranjeet were found to be similar to the DNA profile
generated from blood sample of the deceased.
(f) We note here that considerable emphasis was given by learned
counsel for accused Ranjeet upon the fact that no independent witnesses
were joined by the police at the time of recovery. In this regard, suffice it
to note the dictum of law laid down by Supreme Court in the decision
reported as (2002) 2 Crimes 63 (SC) Ambika Prasad vs. State that non-
joining of independent witnesses by the police would vitiate the recovery
made at the instance of an accused person only if a taint is shown in the
recovery proceedings. In the instant case, no taint whatsoever has been
shown in the recoveries of iron pipe and t-shirt made at the instance of the
accused.
g) Failure of the accused to prove his alibi.
40. The six circumstances enumerated above unerringly point towards
the fact that the accused is the perpetrator of the crime.
41. Regarding the argument advanced by learned counsel for the
accused that two calls made at 12:09 P.M. and 12:10 P.M. on September
08, 2013 from mobile number 9718335231 belonging to the accused
shows that somebody else was in possession of the phone and was in or
around the factory where the deceased was murdered, the legal answer
would be that neither Jagdish Kumar to whose mobile number two calls
were made was quizzed on this aspect nor the investigating officer and
therefore no argument can be advanced on a surmise. The decision of the
Supreme Court reported as AIR 1975 SC 290 Rahim Khan v Khurshid
Ahmad may profitably be noted, wherein it was observed as under:-
".......The entry with which we are concerned is
5072A and this is not unusual when by mistake a
clerk has written identical figures for two entries.
Moreover there is no cross-examination on this point
and in the absence of cross-examination giving an
opportunity to the witness to explain the
circumstances from which an inference is sought to
be drawn, no such inference--particularly of forgery
and publication of documents--can be permitted to be
raised." (Emphasis supplied)
42. In the decision reported as 1988 (Supp) SCC 686 State of UP V
Anil Singh, the eye-witness wrote a report giving fairly all the particulars
of the occurrence and lodged the same with the report within few minutes
of the occurrence. An argument was raised by the defence that it was
impossible for the witness to prepare such an exhaustive report and lodge
the same with the police so soon after the occurrence. The said argument
was repelled by Supreme Court on the ground that the witness in question
was not specifically cross-examined on said point.
43. In the decision reported as (2005) 9 SCC 298 Sunil Kumar v State
of Rajasthan great stress was laid by the defence on the facts that there
was delayed dispatch of the FIR to the Ilaqa Magistrate and delayed
recording of the statements of the witnesses under Section 161 Cr.P.C.
One of the reasons which weighed with Supreme Court for not drawing
an adverse inference against the prosecution was that no question was put
to the Investigating Officer regarding the aforesaid delay.
44. But there is a possible explanation concerning the two calls made.
Testimony of Jagdish Kumar shows that he had repeatedly made calls
from his mobile number 9212095708 to the mobile number 9718335231
of the accused and there was no response. These would have shown in
the mobile phone of the accused as missed calls. When Insp.Satish
Kumar saw the mobile phone his instinct would be to ring back because
some lead could lie therein. Indeed this is what had happened because at
the hearing of the appeal Insp.Satish Kumar who was present in the Court
said so. We only add one line of caution for the police. This ought to
have been recorded in the case diary. Insp.Satish Kumar said that in
future he would be careful and would do so.
45. The appeal is accordingly dismissed.
46. TCR be returned.
47. Copy of the judgment be sent to the Superintendent Central Jail
Tihar for his record.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
MARCH 15, 2016
mamta
