Delhi High Court
Rudal @ Jasan vs State on 26 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. 878/2013
Date of Judgment: 26th September, 2017
%
RUDAL @ JASAN ..... Petitioner
Through: Ms. Inderjeet Sidhu, Advocate
Versus
STATE ..... Respondent
Through: Mr. Rajat Katyal, APP with Inspector
Yashpal Singh, PS Naraina, Delhi
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S. SISTANI, J. (ORAL)
1. This is an appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'Cr.P.C') filed against the
judgment dated 21.01.2013, by which the appellant stands convicted
under Section 302 of the Indian Penal Code (hereinafter referred to as
'IPC') and the order on sentence dated 31.01.2013, by which the
appellant has been sentenced to imprisonment for life and a fine of
Rs.10,000/-, in default of payment of fine, to further undergo simple
imprisonment for a period of six months.
2. The case of the prosecution, as noticed by the Trial Court is that a PCR
call was received from mobile No. 9871186322, V97/3, Sonia Gandhi
Camp, Naraina Vihar Jhuggi which was recorded vide DD No.14B dated
23.05.2011. The said DD No.14B was assigned to ASI Vijay Pal, who
alongwith Const. Subhash went to jhuggi No.7/36, Sonia Gandhi
Camp, Naraina and found one dead body having injuries on its left
side of forehead and the bone of his left thumb was found to be
protruding. There was also blue colour mark round the neck of the
dead body. The crime team was summoned and the spot was
photographed. No eye witness was found and an offence under Section
302 of IPC was found to have been committed. ASI Vijay Pal prepared
the rukka and sent Const. Subhash for registration of FIR. Thereafter,
investigation was handed over to Inspector Ram Niwas and the
information regarding the incident was also sent to higher officers and
the concerned Ilaka Magistrate. During investigation, Inspector Ram
Niwas sent the dead body to the mortuary of DDU hospital. The
exhibits were lifted from the jhuggi and sealed with the seal of 'RNI'.
The statement of Amrej (neighbour of the deceased) was recorded as
per which on 22.05.2011, he was present in his jhuggi, which is
adjoining the jhuggi of Madan Ram (hereinafter referred to as 'the
deceased'). The deceased and the appellant were seen together by him
in the jhuggi of the deceased and both of them were under the
influence of liquor and hurling abuses. Amrej further stated that in
the morning of 23.05.2011, when he came to the jhuggi of the
deceased after hearing noises of people and found people gathered
outside the jhuggi of the deceased. At that time, the appellant was
coming out of the jhuggi of the deceased. Amrej caught hold of the
appellant but somehow he managed to get rid of the clutches of
Amrej and left the spot by saying that he was going to call police and
fled away from the spot but never turned up. In the meantime, the
daughter of Amrej held by him in his lap got dropped, and while
picking his daughter, he could not manage to catch hold of the
appellant and the appellant disappeared. Thereafter, the appellant
was not seen near the jhuggis and he raised suspicion that the
appellant had murdered the deceased. During investigation, the
statement of son and nephew of the deceased namely Manoj Kumar
and Jiwan Ram was recorded on 24.05.2011. Charge under Section
302 of IPC was framed against the appellant, to which he pleaded not
guilty and claimed to be tried.
3. To bring home the guilt of the appellant, the prosecution examined 24
witnesses in all. The statement of the appellant was recorded under
Section 313 of Cr.P.C whereby it was stated by the appellant that the
deceased was a contractor and the appellant was working under him as
a mason. On the fateful day of 22.05.2011, when the appellant
returned to the jhuggi of the deceased after work, he found the
deceased was sitting along with 4-5 persons in his jhuggi and were
taking liquor. The deceased offered him to join. The appellant joined
them and after having liquor, he fell unconscious. It was stated by the
appellant that he regained consciousness when he woke up by a
neighbourhood girl Reshma at about 7.00 in the morning. The
appellant found that the deceased was sleeping besides him however,
in the evening; the appellant had slept on the bed. All the articles were
found scattered in the jhuggi and the door of the jhuggi was lying
open. The appellant claimed that he had locked the door of the jhuggi
from inside in the evening. The other persons were also not found in
the jhuggi. The appellant claimed to be falsely implicated in the
present case. No evidence was led by the appellant in his defence.
4. Ms. Inderjeet Sidhu, learned counsel appearing on behalf of the
appellant submits that the judgment and the order on sentence of the
Trial Court are bad in law. The learned Trial Court has failed to
appreciate the evidence in its correct perspective. Learned counsel
contends that the prosecution has failed to seek an opinion of the
fingerprint expert while collecting the bottles and glasses which were
found lying near the body of the deceased. It was also contended that
the empty bottles and glasses were sent to the CFSL on 17.11.2011 i.e.
post the arrest of the appellant.
5. Learned counsel for the appellant submits that the Trial Court has
placed strong reliance on the testimonies of Shivali (PW-9) and Amrej
(PW-10) who are the witnesses of last seen. Ms. Sidhu contends that
the evidence of last seen is a very weak form of evidence and it would
be highly unsafe to convict the appellant solely on the basis of the last
seen of PW-9 and PW-10. Learned counsel also contends that no doubt
both the witnesses had seen the deceased and the appellant together,
but the time gap between their having seen the deceased and the
appellant was too large and on this ground alone, the appellant is liable
to be acquitted. Ms. Sidhu has also contended that strong reliance has
been placed by the Trial Court to the fact that soon after the crime the
appellant had absconded. It is contended that the appellant was not
permanently residing with the deceased and he was not a permanent
resident of Delhi and merely because he left the area in question, that
should not be taken as an incriminating factor against him.
Additionally, learned counsel contends that there is no evidence to
show that any effort was made to search the appellant and thus, he
cannot be termed as an absconder.
6. To substantiate her argument regarding the conviction of the appellant
solely on the basis of last seen evidence, learned counsel for the appellant
has relied upon the observations made by the Supreme Court of India in
the case of Anjan Kumar Sarma & Ors. v. State of Assam, reported at
AIR 2017 SC 2617, whereby it was held that circumstance of last seen
together along with the absence of satisfactory explanation in his
statement under Section 313 of Cr.P.C. are not sufficient for conviction
of the accused under Section 302 of IPC. The relevant para 18, 19 and 21
read as under:
"18. The circumstance of last seen together cannot by itself form
the basis of holding the Accused guilty of the offence. In
Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715, this
Court held that:
"12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
Accused who committed the crime. There must be
something more establishing connectivity between the
Accused and the crime. Mere non-explanation on the part
of the Appellant, in our considered opinion, by itself cannot
lead to proof of guilt against the Appellant.
.....
15. The theory of last seen--the Appellant having gone with
the deceased in the manner noticed hereinbefore, is the
singular piece of circumstantial evidence available against
him. The conviction of the Appellant cannot be maintained
merely on suspicion, however strong it may be, or on his
conduct. These facts assume further importance on account
of absence of proof of motive particularly when it is proved
that there was cordial relationship between the Accused
and the deceased for a long time. The fact situation bears
great similarity to that in Madho Singh v. State of
Rajasthan (2010) 15 SCC 588."
In Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372,
this Court held that:
"31. Thus the evidence that the Appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in the
night at the house of deceased Sitaram is very shaky and
inconclusive. Even if it is accepted that they were there it
would at best amount to be the evidence of the Appellants
having been seen last together with the deceased. But it is
settled law that the only circumstance of last seen will not
complete the chain of circumstances to record the finding
that it is consistent only with the hypothesis of the guilt of
the Accused and, therefore, no conviction on that basis
alone can be founded."
19. This Court in Bharat v. State of M.P., (2003) 3 SCC 106,
held that the failure of the accused to offer any explanation in his
statement under Section 313, Cr.P.C. alone was not sufficient to
establish the charge against the accused. In the facts of the
present case, the High Court committed an error in holding that
in the absence of any satisfactory explanation by the accused the
presumption of guilt of the Accused stood un-rebutted and thus
the Appellants were liable to be convicted.
......
21. It is clear from the above that in a case where the other links
have been satisfactorily made out and the circumstances point to
the guilt of the accused, the circumstance of last seen together
and absence of explanation would provide an additional link
which completes the chain. In the absence of proof of other
circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of
conviction. The other judgments on this point that are cited by
Mr. Venkataramani do not take a different view and, thus, need
not be adverted to. He also relied upon the judgment of this
Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in
support of his submission that the circumstance of last seen
together would be a relevant circumstance in a case where there
was no possibility of any other persons meeting or approaching
the deceased at the place of incident or before the commission of
crime in the intervening period...."
(Emphasis Supplied)
7. Reliance has been also placed by learned counsel for the appellant on the
decisions in Matru alias Girish Chandra v. The State of U.P., reported
at AIR 1971 SC 1050, Paramjeet Singh v. State of Uttarakhand,
reported at (2010) 10 SCC 439 and Kanhaiya Lal v. State of Rajasthan,
reported at (2014) 4 SCC 715.
8. Per contra, Mr. Rajat Katyal, learned counsel for the State, submits
that the prosecution has been able to establish its case beyond any
shadow of doubt. He has placed strong reliance on the testimonies of
PW-9 and PW-10 who are witnesses of last seen. As per their
evidence, not only the appellant was last seen drinking in the jhuggi of
the deceased, but also when he was confronted by PW-10, the next
morning, the appellant ran away from the spot. Thus, Mr. Katyal
contends that there was no time gap between the deceased having been
seen in the company of the appellant. The presence of the appellant
stands established in the jhuggi of the deceased and thus onus would
shift on the appellant to explain the cause of death of the deceased in
the jhuggi, where both of them were residing on the fateful night of
22/23.05.2011. Mr. Katyal relies on Section 106 of the Indian
Evidence Act, 1872 (hereinafter referred to as 'Evidence Act') to
canvass his argument that once PW-9 and PW-10 had categorically
testified that they had seen the appellant residing with the deceased in
his jhuggi, they were drinking together, they both slept together in the
same jhuggi and in the morning of 23.05.2011, he loosened his grip
and ran away from the spot, Section 106 of the Evidence Act would
come into play which reads as under:
"106. Burden of proving fact especially within
knowledge.--When any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him."
The above provision of the Evidence Act becomes relevant in view of
the fact that the presence of the appellant in the jhuggi of the deceased
stands duly established and as per the evidence of PW-9 and PW-10,
both the deceased and the appellant were consuming liquor in the
intervening night of 22-23.05.2011. It was prayed by the counsel for
the State that the burden would thus shift on the appellant to show the
circumstances which led to the death of the deceased.
9. Mr. Katyal while relying upon the case diary submits that efforts were
made to trace the appellant and thus the submission of counsel for the
appellant that no steps were taken to find the appellant is without any
force. Additionally, Mr. Katyal submits that no question was put to
any of the official witnesses regarding the steps taken to secure the
presence of the appellant.
10. Attention has been drawn by the learned counsel for the State to the
statement made by the appellant under Section 313 of Cr.P.C. The
relevant questions 19, 22, 24 and 28 read as under:
"Q.19. It is in evidence against you that you accused had
come to the jhuggi of Madan about 15 days before his death
Madan and you had been residing in Madan's jhuggi till his
death and Madan used to call you as Jasan. What have you to
say?
Ans. It is correct.
......
Q.22. It is in evidence against you that on 23.05.2011 in the
morning at about 6.00 AM, you accused came out of the jhuggi
of Madan and a person named Amrej, who resided in the
jhuggi adjacent to the jhuggi of Madan, grabbed you but you
accused succeeded in freeing yourself and fled from the spot
saying that you are going to call at telephone No. 100. What
have you to say?
Ans. It is correct.
........
Q.24. It is in evidence against you that on 23.05.2011 in the
morning at about 6.30 AM, when Amrej was returning to his
jhuggi from the market, he saw many public persons gathered
near the railway line and they were saying that Madan has
been killed and at the same time, you accused came out of the
jhuggi of Madan. What have you to say?
Ans. It is correct.
.....
Q.28. It is in evidence against you that on 25.09.2011, on the
basis of secret information, Inspector Ram Niwas along with
two Constables and Manoj reached Kirti Nagar in the search
of you accused and you were arrested vide arrest memo
Ex.PW12/B from near a DMS Booth in C-Block, near Sanatan
Dharam Mandir, Mansarovar Garden, New Delhi, at the
instance of Manoj. What have you to say?
Ans. It is correct."
11. We have heard learned counsel for the parties, considered their rival
submissions, carefully examined the testimonies of the witnesses on
record and the impugned judgment rendered by the Trial Court.
Learned Trial Court while convicting the appellant under Section 302
of IPC made the following observations. The relevant para 50 to 59
read as under:
"50. Therefore, the prosecution has proved on record that the
accused was last seen together with the deceased and in the
morning of 23.05.11 he was found present with the deceased in
the jhuggi of the deceased and he was apprehended and
anyhow, the accused succeeding in freeing himself and fled
away from the jhuggi on the pretext of calling police. In his
statements U/s 313 CrPC accused has admitted that he was
present in the jhuggi of the deceased on 22.05.11 and
consumed liquor and, in the morning, when he woke up he
found the deceased having died earlier and he fled away from
the scene of crime but the only defence put up by the accused is
that he became unconscious after getting liquor and when he
regained consciousness he found the deceased Madan dead
and he has stated in his statement that other persons had also
taken liquor in the jhuggi of the deceased alongwith him. But
PW 9 & PW 5 have deposed that only the deceased and
accused were present in the jhuggi of the deceased on
22.05.2011 and no other persons were present there.
Otherwise also, the accused has not cross examined any
witnesses regarding the fact that other persons except the
deceased and the accused were present is the jhuggi and
consuming liquor. As such, in the absence of any cross
examination of last seen together witness regarding the
presence of persons other than the accused and deceased, it
can be safely held that only accused was present with the
deceased in the intervening night of 22/23.05.2011.
51. It is evident from the record that the deceased and the
accused only were present in the jhuggi of the deceased on the
date of murder i.e 22.05.2011. Why I say so is that accused has
not denied his presence in the jhuggi on that day when the
dead body of the deceased was first seen and discovered by the
accused. So it was for the accused to explain the circumstances
in which the deceased died, how was the dead body discovered
by whom and in whose presence.
52. There is no escape for him from such explanation as he was
the only person present in the jhuggi and witnessed the
incident. In such cases, it is enough for the prosecution to
establish the presence of the accused at the crime spot at the
time of incident and the attending circumstances of the accused
having admitted consuming liquor with the deceased in the
intervening night of 22/23.05.2011. Then the burden shifts on
the accused U/s 106 of Evidence Act to explain the death of
deceased.....
53. The other inference circumstances appearing from the
record from which inference regarding guilt of the accused can
be drawn is that the accused fled away from the scene of crime
i.e the jhuggi of the deceased. It is settled law that mere
absconding by itself does not necessary lead to a conclusion of
a guilty mind. The act of self preservation is such that an
innocent man may feel paniky and try to evade arrest when
wrongly suspected of a grave crime. The act of absconding is
no doubt a relevant piece of evidence to be considered
alongwith other evidence but its value would always depend on
the circumstances of each case. For instance, the circumstance
of abscondence can be extremely fatal, if the prosecution is
able to prove that the victim was last seen in the company of
the deceased and that the accused is absconding after the
death of the victim. Normally, the courts are disinclined to
attach much importance to the act of absconding, treating as a
very small much item in the evidence for recording conviction.
It can scarcely be held as a determining link in the chain of
circumstance evidence which must admit of no other
reasonable hypothesis then that of the guilt of the accused. In
this regard, I found support from Matru Vs State of U.P. AIR
1972 SC 1050.
54. In the present case the accused himself admitted to be
present with the deceased before his death and in view of the
facts that circumstances of abscondence of an accused person
is considered a strong link in the chain of circumstances
evidence for establishing the guilt of the accused and I
consider it safe to rely upon the circumstances of abscondence
of the accused after discovery of the dead body of the deceased
to convict him.
55. Apart from that there was a golden opportunity for the
accused to explain any they including circumstance during his
examination U/s 313 CrPC. There also he choose to remain
silent and did not offer any plausible explanation regarding his
presence and how the deceased died of strangulation.
Recording of statement of accused U/s 313 Crpc is not a mere
formality. It is a statutory requirement which provides an
opportunity to the accused to state his case and explain the
exculpatory circumstances proved against him
56. It is for the accused to either remain silent or provides
answer to the question put to him. However, keeping silent and
not furnishing any explanation for incriminating circumstances
would sustain the charges against him.
57. It is obligatory on the part of the accused while being
examined U/s 313 CrPC to furnish some explanation with
respect to the incriminating circumstances associated with him
and the court must take note of such explanation, even, in case
of circumstantial evidence, in order to decide as to whether or
not the chain of circumstances is complete when the attention
of the accused is drawn to the circumstances that inculpate him
in relation to the commission of crime and he fails to offer an
appropriate explanation with respect to the same, the said act
may be considered as providing a missing link for completing
the chain of circumstance. In this regard & found support from
State of Maharashtra Vs Suresh (2000) 1 SCC 471, Musheer
Khan vs State of M.P.(2010) 2 SCC 748.
58. So far as the contradiction of the counsel for the accused
that the prosecution has failed to prove any motive on the part
of the accused to do away with the deceased is
concerned, the said contention appears to be attractive but the
same is fallacious and is hereby rejected as the motive is
engrained in the mind of the accused and it is not necessary for
the prosecution to prove motive in each and every case. Motive
is a thing primarily known to the accused himself and it may
not be possible for the prosecution in each and every case, to
find out real motive behind the crime. Sometimes motives are
clear and proved and sometime motive is surrounded in the
mystery and it is very difficult to locate the same when the
ocular evidence is very clear and convincing and the role of
the accused in the crime stands clearly established,
establishment of motive is not a sine qua non for proving the
prosecution case. In this regard, I found support from
Barikanoo vs. State of Uttar Pradesh 1997 1 crimes 500 (All)
and Yunis @ Kariya vs. State of M.P. AIR 2003 SC 539. Apart
from this, motive provides link in the chain of circumstantial
evidence but in the absence of the motive, if the entire chain of
circumstantial evidence is complete the absence of motive is
not going to snap the links in the chain of circumstance
evidence. In this regard, I found support from Amitava
Banerjee @ Amit @ Bappa Banerjee Vs State of West Bengal
(2012)1 SC Cri 624.
59. In the instant case, where there is no manner of doubt that
the deceased died in the presence of the accused and only the
accused knew how he died. He cannot get away by choosing to
remain silent. It was necessary for him to disclose the
circumstances in which the death of the deceased was caused
in order to exculpate himself. The silence of the accused herein
is only proof of his guilt."
12. The case in hand is based on circumstantial evidence. It is settled law
that in a case based on circumstantial evidence, the chain of events
must form a complete link to prove the sequence of events. In the
present case, the case of prosecution is based on the evidence of last
seen account of PW-9 Shivali and PW-10 Amrej who were the
neighbours of the deceased. At the outset, we deem it appropriate to
analyse the testimonies of PW-9 and PW-10.
13. PW-10 Amrej testified in his examination-in-chief that he knew the
deceased who used to reside in a jhuggi adjacent to his jhuggi at Sonia
Gandhi Camp, Naraina. PW-10 correctly identified the appellant in the
Trial Court as Jasan who had been residing with the deceased in his
jhuggi for about 15 days prior to the incident. On 22.05.2011, in the
evening hours, PW-10 had gone to the jhuggi of the deceased to demand
his labour charges as he had worked for him for about four days. The
deceased was a contractor and was engaged in the cleaning of the
printing press machines. After entering the jhuggi of the deceased, PW-
10 found both the appellant and the deceased sitting in the jhuggi. They
both seemed to be in a drunken state. PW-10 demanded money from the
deceased and he paid Rs.100/- to him. Thereafter, PW-10 left the jhuggi
of the deceased. On 23.05.2011, at about 6:30 in the morning, PW-10 had
gone to nearby market across the railway line to fetch eatables. When
PW-10 was returning to his jhuggi, he saw many public persons
gathering near the railway line and heard them saying that Madan has
been killed. At the same time, the appellant came out from the jhuggi of
the deceased. PW-10 grabbed the appellant by his hand; however, the
appellant freed himself from the grip of PW-10 and left the spot while
saying that he was going to make a call at 100 Number. Subsequently, a
person named Vinay (PW-13) made a call at 100 Number. PCR reached
the spot and after some time local police also reached the spot. The
statement of PW-10 was recorded by the Police. On 25.09.2011, the
appellant had been arrested by the Police and PW-10 was called at the
police station where he identified the appellant.
14. During cross-examination of PW-10, it was stated by him that he had
been residing in a jhuggi for about two to two and a half years along with
his wife. PW-10 used to meet the deceased almost daily. PW-10 denied
the suggestion that when he had gone to the jhuggi of the deceased on
22.05.2011; the deceased was sitting alone in his jhuggi. PW-10 admitted
that the appellant did not have any jhuggi in the camp. It was denied by
PW-10 that he had not seen the appellant coming out of the jhuggi on the
date of the incident or that he had not grabbed him.
15. The next important witness is PW-9 Shivali who testified in his
examination-in-chief that he knew the deceased as the deceased was a
distant relative of PW-9. In the month of May of 2011, PW-9 and the
deceased were residing in the jhuggies at Sonia Gandhi Camp, Naraina
Vihar. The distance between his jhuggi and the jhuggi of the deceased
was about 100 meters. PW-9 identified the appellant in Court as the
person who had come to the jhuggi of the deceased about 15 days prior
to his death and was residing with the deceased till his death. The
deceased used to call the appellant as Jashan. On 22.05.2011 at about
7.00 or 7.30 PM, PW-9 had gone to the jhuggi of the deceased where
he found that both the deceased and the appellant were found present
in the jhuggi and they were taking liquor. Thereafter, PW-9 left the
jhuggi of the deceased immediately. On 23.05.2011, at about 6:00 in
the morning, PW-9 had gone to the railway lines to defecate, where he
saw a girl named Reshma sitting on the railway lines and was shouting
that the deceased had been murdered. Public persons gathered at the
spot on hearing the shouts of Reshma. In the meantime, the appellant
came out of the jhuggi of the deceased. A person named Amrej who
was residing in the jhuggi adjacent to the jhuggi of the deceased
grabbed the appellant; however, the appellant succeeded in freeing
himself and fled away from the spot by saying that he was going to
call at 100 Number. Thereafter, another neighbour Vinay made a call
at 100 Number. PCR reached the spot and inquiries were made by the
police. The statement of PW-9 was recorded by the Police.
16. In his cross-examination, PW-9 stated that he had seen the appellant
for the first time about six months prior to the incident, when he had
come to see the deceased. PW-9 did not know as to where the
appellant used to stay. PW-9 used to meet the deceased occasionally
and during the period of 15 days prior to the death of the deceased.
PW-9 repelled the suggestion that he had not seen the appellant
residing with the deceased for 15 days prior to the death. PW-9 also
repelled the suggestion that he was deposing falsely for the reason that
the deceased was his relative. PW-9 denied the suggestion that he had
not seen the appellant coming out of the jhuggi of the deceased on the
date of the incident.
17. The criminal machinery was set into motion after a call was made by an
independent witness PW-13 (Vinay Kumar Pathak) who was neighbour
of the deceased at Number 100. PW-13 testified in his examination-in-
chief that he knew the deceased as the deceased used to live in his
neighbourhood. On 23.05.2011, at about 7.00 in the morning, when PW-
13 was strolling outside his jhuggi, he heard people saying that Madan
was lying dead in his jhuggi. Subsequently, PW-13 immediately made a
call at 100 Number from his Mobile No.9871186322.
18. Besides the above public witnesses, PW-5 Const. Nirmala (W) who was
posted as Channel Operator in PCR on the fateful day of 23.05.2011
testified that at about 7.01 AM she received an information from mobile
phone number 9871186322 to the effect that 'a person is lying dead
inside the jhuggi'. PW-5 further testified that the said information was
filled by her in the PCR form which was proved by her as Ex.PW-5/A
which reads as under:
"CALL IS TRUE. MADAN S/O U/K AGE 42 YEAR. HT
5'6"SAWLA RANG DHARIDAR BADAMI COLOUR SHIRT
UNDERWEAR JIS KE GALE MAI HARA DHARIDAR
ANGOCHHA LIPTA HUA HAI OR UPER KAMBAL DAL
RAKHA HAI OR CHOT KA KOI NISHAN NAHI HAI. MOKA
PAR DEAD HAI PAADOSI. VINAY S/O BALESWAR AGE 20
YEAR NE BATYAA HAI OR RAAT MAI DO SOYE THE. DUSRA
NAHI MILA."
19. HC Satish Kumar (PW-14) had brought the copy of the PCR Form
regarding the PCR call and proved the same as Ex.PW-14/A. The
investigation of the instant case was assigned to PW-23 Insp. Ram Niwas
who had lifted exhibits from the spot and seized them. The site plan was
also prepared by PW-23. The appellant was apprehended by him at the
instance of Manoj (PW-12) and was formally arrested. The personal
search of the appellant was conducted by PW-23 and was proved by him
as Ex.PW-23/B.
Medical Evidence:
20. PW-15 Dr. Subhajit Dhar, testified that on 23.05.2011, he was on
emergency duty in Safdurjang Hospital and examined the deceased
along with Dr. Ved Prakash. At 1.50 PM, the deceased was brought to
the casualty Department by the Police and after the examination; he was
declared as brought dead. The casualty note was proved by him as Ex.
PW15/A. The MLC of the deceased was proved by him as Ex.PW-15/B
which was prepared by Dr. Ved Prakash under his supervision.
21. PW-18 Dr. Sarvesh Tandon testified that on 24.05.2011, he was posted as
Sr. Specialist, Department of Forensic Medicine, Safdurjang Hospital
and conducted post-mortem examination of the deceased. His detailed
report was proved as Ex.PW-18/A. The injuries sustained by the
deceased read as under:
"External Examination:
1. Two abrasions, 1 x 1 cm size, around right eye, red in colour.
2. Left side of face swollen, underlying tissues contused.
3. Abrasion over left eyebrow, 2 x 2 cm, red in colour.
4. Contusion over middle front of neck, 2 x 2 cm, moreover left
side, red in colour.
5. Contusion over middle front of chest, 3 x 2 cm, more on right
side, with depressed area underlying it, with fracture of 3rd and
4th ribs, at costo-sternal joint, contusion is red in colour.
6. Abrasion over left side of chest, 1 x 1 cm, red, 4 cm below left
nipple.
7. Linear abrasion, 7 cm long, red in colour, over left arm,
middle lower part, outer side.
Internal Examination:
1. Head - left side scalp tissues contused
- skull fractured left temporal bone.
- left temporal parital lobes contused."
22. PW-18 opined the cause of death as asphyxia due to manual strangulation
(throttling). Injuries No. 1 to 7 and the head injuries illustrated in post-
mortem report were due to blunt force impact. It was further opined by
PW-18 that the injuries found on the neck of the deceased were sufficient
to cause death in the ordinary course of nature. All the injuries found on
the body of the deceased were ante-mortem in nature. Time since death
was opined as one and half to two days approximately from the post-
mortem examination.
23. Before dealing with the case on hand, it would be useful to revisit the law
relating to conviction of the accused on the basis of last seen theory in a
case based on circumstantial evidence under Section 302 of IPC.
24. In the case of Nizam v. State of Rajasthan, reported at (2016) 1 SCC
550, the Hon'ble Supreme Court noted the importance of last seen
evidence as a vital link in the chain of circumstances that would point
towards the guilt of the accused. In a case where the last seen evidence
against the accused gets proved, the burden of proof shifts to the accused
and it is for the accused to offer a reasonable explanation as to the cause
of death of the deceased. The relevant para 14 reads as under:
"14. The courts below convicted the appellants on the evidence
of PWs 1 and 2 that the deceased was last seen alive with the
appellants on 23-1-2001. Undoubtedly, the "last seen theory" is
an important link in the chain of circumstances that would point
towards the guilt of the accused with some certainty. The "last
seen theory" holds the courts to shift the burden of proof to the
accused and the accused to offer a reasonable explanation as to
the cause of death of the deceased. It is well settled by this Court
that it is not prudent to base the conviction solely on "last seen
theory". "Last seen theory" should be applied taking into
consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the
point of being so last seen."
(Emphasis Supplied)
25. In the light of the above, it is to be seen whether in the facts and
circumstances of the instant case, the Trial Court below was right in
invoking the 'last seen theory'. From the evidence of PW-9 and PW-10
extracted hereinabove, it has been proved that only the appellant was
residing with the deceased in his jhuggi for about 15 days prior to the
incident and the deceased was also last seen in the company of the
appellant prior to his death. The death of the deceased came to light on
the next morning. Be it noted, that the prosecution has succeeded in
proving the fact by definite evidence that the deceased was last seen alive
in the company of the appellant. Thus, a reasonable inference can be
drawn against the appellant and the onus stands shifted on the appellant
under Section 106 of the Evidence Act.
26. In the case of State of Rajasthan v. Kashi Ram reported at (2006) 12
SCC 254, the Apex Court discussed the principle underlying under
Section 106 of the Evidence Act. The relevant para 23 reads as under:
"23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of the
Evidence Act itself are unambiguous and categoric in laying
down that when any fact is especially within the knowledge of a
person, the burden of proving that fact is upon him. Thus, if a
person is last seen with the deceased, he must offer an
explanation as to how and when he parted company. He must
furnish an explanation which appears to the court to be probable
and satisfactory. If he does so he must be held to have discharged
his burden. If he fails to offer an explanation on the basis of facts
within his special knowledge, he fails to discharge the burden
cast upon him by Section 106 of the Evidence Act. In a case
resting on circumstantial evidence if the accused fails to offer a
reasonable explanation in discharge of the burden placed on him,
that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does not shift the
burden of proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the accused does not
throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis
compatible with his innocence, the court can consider his failure
to adduce any explanation, as an additional link which completes
the chain. The principle has been succinctly stated in Naina
Mohd., Re. [AIR 1960 Mad 218]."
(Emphasis Supplied)
27. The Supreme Court of India in the case of Babu v. Babu and Another
reported at (2003) 7 SCC 37, held that where two persons have slept
inside a bolted room on the night of the occurrence, it was for the accused
alone to explain as to what had happen and how the other person had
died on account of strangulation. The relevant para 14 reads as under:
"14. The second important circumstantial evidence against the
accused is that the accused and the deceased were last seen
together. To put it tersely, both of them slept together by retiring
to the room that night. Last seen together in legal parlance
ordinarily refers to the last seen together in the street, at a public
place, or at any place frequented by the public. But here, the last
seen together is much more than that. The last seen together here
is sleeping together inside the bolted room. It is in the evidence of
PW 3 and PW 6 that they had dined together and the accused and
the deceased were closeted in a room at about 8.30 p.m.
Therefore, on the fateful day the accused and the deceased were
closeted in a bedroom at about 8.30 p.m. is undisputed and it is
for the accused alone to explain as to what happened and how
his wife died and that too on account of strangulation."
(Emphasis Supplied)
28. In the case of G. Parshwanath v. State of Karnataka, reported at
(2010) 8 SCC 593, the Apex Court discussed the relevance of motive
in a case based on the circumstantial evidence. It was held that absence
of motive put the Courts on its guard to scrutinise the circumstances
more carefully to ensure that suspicion and conjecture do not take the
place of legal proof. The relevant para 45 reads as under:
"45. The argument that in absence of motive on the part of the
appellant to kill the deceased benefit of reasonable doubt
should be given, cannot be accepted. First of all every
suspicion is not a doubt. Only reasonable doubt gives benefit to
the accused and not the doubt of a vacillating Judge. Very
often a motive is alleged to indicate the high degree of
probability that the offence was committed by the person who
was prompted by the motive. In a case where the motive
alleged against accused is fully established, it provides
foundational material to connect the chain of circumstances. It
affords a key on a pointer to scan the evidence in the case in
that perspective and as a satisfactory circumstance of
corroboration. However, in a case based on circumstantial
evidence where proved circumstances complete the chain of
evidence, it cannot be said that in absence of motive, the other
proved circumstances are of no consequence. The absence of
motive, however, puts the court on its guard to scrutinise the
circumstances more carefully to ensure that suspicion and
conjecture do not take place of legal proof. There is no
absolute legal proposition of law that in the absence of any
motive an accused cannot be convicted under Section 302 IPC.
Effect of absence of motive would depend on the facts of each
case. Therefore, this Court proposes to examine the question of
motive which prompted the appellant to commit the crime in
question."
(Emphasis Supplied)
29. In view of the above, in a case based on circumstantial evidence, the
Court has to examine the entire evidence in its entirety and ensure that
the only inference that can be drawn from the evidence is the guilt of the
accused. For establishing the guilt of the accused on the basis of the
circumstantial evidence, the circumstances must be firmly established
and the chain of circumstances must be completed from the facts. In the
case on hand, the following incriminating circumstances are clearly
established against the appellant:
i) On 24.05.2011, in the evening, at about 7.00 or 7.30 PM, the
deceased was last seen in the company of the appellant and they
both were sitting and taking liquor;
ii) Next morning i.e. on 23.05.2011, when the death of Madan Ram
came to light, the appellant ran away from the jhuggi of the
deceased on the pretext that he was going to make a call at 100
number;
iii) The appellant evaded arrest for about 4 months after the incident;
iv) Even after the arrest of the appellant, he did not offer any
exculpatory explanation to discharge the burden under Section 106
of the Evidence Act and rather admitted his presence at the spot
with the deceased on the day of incident.
30. All the incriminating circumstances mentioned in aforegoing para in our
view form a complete chain and are consistent with no other hypothesis
except the guilt of the appellant. If the appellant was with the deceased
from about 7.00-7.30 in the evening of 22.05.2011 to about 6.00 in the
next morning, he neither have explained how the deceased had sustained
injuries nor offered some plausible explanation exculpating him. The
respondent has not even pleaded alibi, nor has he given an explanation
which may support his innocence.
31. On a careful examination of the testimonies of PW-9 and PW-10, we find
that their testimonies are consistent on all material aspects including the
date of the incident, time of the incident and the manner in which
Reshma had shouted that Madan had died. The testimonies of PW-9 and
PW-10 were also consistent in the manner the appellant had come out of
the jhuggi and the manner PCR call was made by PW-13. PW-9 has
testified that PW-10 had tried to grab the appellant but he succeeded in
freeing himself and fled from the spot, while saying that he was going to
make a call at Number 100. Thereafter, the appellant absconded for about
4 months. Thus, the testimonies of PW-9 and PW-10 leave no room for
doubt that the appellant and the deceased were last seen together in the
evening of 22.05.2011 till about 6.00 in the next morning, when the
incident came to light.
32. The appellant has contended that the prosecution has failed to seek
opinion with regard to the chance prints lifted from the spot do not affect
the case of prosecution when we have other evidence which duly connect
the appellant with the crime. Thus, it merely amounts to shoddy
investigation and nothing turns on it.
33. Ms. Sindhu has also argued that merely because the appellant has
absconded that by itself cannot be a ground to convict the appellant. She
has further argued that it is evident from the records that no steps were
taken by the State to search the appellant. She submits that this would get
immense importance, for the reason that the appellant was not a
permanent resident of jhuggi. In this regard, we find force in the
argument raised by the counsel for the State that the efforts were made by
the State to arrest the appellant. Attention of this Court has been drawn to
the case diary showing the steps taken by the State to search the
appellant. Additionally, we find that none of the official witnesses were
cross-examined on this aspect and even there was no suggestion given by
the defence in this regard, thus, we are of the view that in the given facts
and circumstances, the abscondance of the appellant is a highly
incriminating circumstance pointing toward his guilt.
34. The present appeal is to be decided on the touchstone of the law laid
down by the Hon'ble Supreme Court and reiterated by this Court in the
aforegoing para. Applying the law as laid down in Nizam's case (supra)
the last seen evidence is one of the vital link in completing the chain of
circumstantial evidence. Thus, the contention of the appellant that the
evidence of last seen is a weak form of evidence and it would be
highly unsafe to uphold the order of conviction solely on the last seen
evidence of PW-9 & PW-10 holds no value in the given
circumstances. We are of the view that the present case does not rest
solely on the evidence of last seen; the Trial Court convicted the
appellant keeping in view the other circumstances including factum of
abscondence for a period of about 4 months to evade arrest. The
judgments relied upon by the counsel for the appellant are distinguishable
and are not applicable to the fact of the present case.
35. In light of the above discussions, we do not find any infirmity in the order
of conviction and sentence passed by the learned Trial Court.
Accordingly, the appeal stands dismissed.
36. The Trial Court record be sent back along with a copy of this judgment.
37. Copy of this judgment also be sent to the Superintendent-Central Jail,
Tihar for updating the jail record.
Crl.M(B) 1635/2017
38. In view of the judgment passed, the bail application stands dismissed.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
SEPTEMBER 26, 2017//tp
