Umesh vs State
2016 Latest Caselaw 3749 Del

$~R-50
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of Decision : May 18, 2016
+                               CRL.A.862/2001
       UMESH                                              ..... Appellant
                     Represented by:   Mr.Jitender Sethi, Advocate with
                                       Mr.Akash Sharma, Advocate

                                       versus

       STATE                                          ..... Respondent
                     Represented by:   Mr.Varun Goswami, APP

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

1. As per the prosecution, the appellant Umesh and co-accused Ramesh (a juvenile and sent for trial to the Juvenile Court), murdered the deceased also named Umesh.

2. The conviction of the appellant has been returned by the learned Trial Judge with reference to the testimony of Jagbir PW-1, found to be corroborated by the testimony of Jai Singh PW-2, Nand Kishore PW-4 and Leelu PW-5; as also on the reasoning that a khukri got recovered by the appellant being not sent to the doctor for opinion was irrelevant because the khukri was not the main weapon of offence. A reasoning which baffles us because the post-mortem report of the deceased shows that all the lacerated wounds could have been caused only by a blunt edged object, such as a palta (an implement used by confectioners to fry food stuffs in

deep containers), which appears to have been used as a handy object in the commission of the crime because the place where the deceased Umesh was brutally assaulted happens to be the shop where Umesh was carrying on business as a confectioner.

3. It therefore turns on the testimony of Jagbir, Jai Singh, Nand Kishore and Leelu, all of whom have deposed in sync that the appellant was an employee of deceased Umesh and a day prior to, when in the early hours of the morning Umesh's dead body was noticed in his shop, the day prior being November 11, 1992 at 9.00 P.M., the appellant had come to the shop of Umesh demanding `200/- at which a quarrel ensued. During the quarrel the deceased slapped the appellant but was pacified. They left the shop but the appellant and co-accused Ramesh as also one Dashrath slept in the shop and the next day early morning around 5.00 A.M., an unknown person informed Jagbir Singh that his brother : the deceased, was lying in his shop in a pool of blood.

4. The learned Trial Judge has believed all four witnesses who have deposed in sync to hold that the appellant was last seen in the shop of the deceased at 9.00 P.M. The appellant slept in the shop of the deceased and was found absconding the next day morning.

5. But what the learned Trial Judge overlooked is glaring and extremely material.

6. Jagbir Singh PW-1, the brother of the deceased was the first to reach the shop in the morning of November 12, 1992 at around 5.00 A.M. when somebody informed him that his brother was lying in a pool of blood in his shop. His statement Ex.PW-1/A recorded by ASI Phool Singh PW-17 is to the effect that in the morning at around 5.00 A.M. an unknown person

informed him that his brother was murdered by some unknown person in his shop and therefore he reached the shop of his brother and saw him unconscious and in an injured condition. He took him to GTB hospital in a TSR. Some unknown person has killed his brother using a knife and that the person should be apprehended.

7. Now, taking a very lenient view of the matter concerning the mental trauma of Jagbir Singh when he saw his brother grievously injured and thus not being in a position to think comprehensively, it is just not possible that such an important event of he witnessing a quarrel between his brother and the appellant at around 9.00 P.M. the previous night and the appellant staying for the night in the shop along with his brother could have escaped his memory, for it was too important an event casting grave suspicion on the appellant if the event had indeed taken place.

8. Further, if the four witnesses are to be believed, the deceased had slapped, the appellant who was his ex-employee and had come to the shop to demand `200/-. If this was the strained relationship, it does not stand to logic or reason that the appellant slept in the shop of the deceased in the company of the deceased.

9. This then alone is the evidence which we need to look at because there is nothing else which could possibly inculpate the appellant.

10. The post mortem report fixes the likely time of death to be around 4.00 A.M. and it is possible that the deceased, who presumably have bolted the shop from inside when he slept, had opened the same before dawn broke and anybody could have committed the crime.

11. But before terminating, we must note that the post-mortem report shows injuries to be possibly caused by a palta; in any case a blunt edged

object was used as the weapon of offence. The multiple injuries are all lacerated wounds numbering twenty one. The khukri, on which human blood was detected is obviously a planted weapon, and this is to be depreciated. Its recovery has been attributed to the disclosure statement made by the appellant recording a confession that he caused some of the injuries with the khukri. It dents the case of the prosecution, showing that the investigating officer acted beyond his authority, which was to conduct a fair investigation and present all facts which emerged during investigation before the Court, so that the Court could have reached a just and a proper conclusion.

12. The appeal is allowed.

13. The appellant is acquitted of the charge of having murdered Umesh. Impugned judgment dated November 02, 2001 is set aside and so is the order on sentence dated November 02, 2001.

14. The appellant being on bail, the bail bond and surety bond are discharged.

15. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE

MAY 18, 2016 skb