Delhi High Court
Ashwani vs State on 8 October, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th August, 2018
Decided on: 8th October, 2018
+ CRL.A. 323/2018 & Crl. MB 451/2018
ASHWANI ...Appellant
Through: Mr. Vikram Singh with Mr. Harpreet
Sandhu, Mr. Bhanu Pant & Ms. Nidhi
Tiwari, Advocates.
versus
STATE ...Respondent
Through: Mr Kewal Singh Ahuja, APP for the
State.
+ CRL.A. 412/2018 & Crl. MBs 587/2018 and 1082/2018
GAURAV ...Appellant
Through: Ms. Saahila Lamba, Advocate.
versus
STATE ...Respondent
Through: Mr Hirein Sharma, APP for the State.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
Dr. S. Muralidhar, J.:
1. These two appeals are directed against the impugned judgment dated 12th
December, 2017 passed by the learned Additional Sessions Judge, Fast
Track Court, Shahdara, Karkardooma Court, Delhi (hereafter the „trial
Court‟) in Sessions Case No.173/2010 arising out of FIR No.175/2010
registered at Police Station („PS‟) Vivek Vihar, convicting both Appellants
for the offences punishable under Sections 392 and 302 read with Section 34
of the Indian Penal Code („IPC‟). The appeals are also directed against the
order on sentence dated 18th December, 2017 of the trial Court whereby for
the offence under Section 302/34 IPC each Appellant was sentenced to
imprisonment for life with the direction that he "would not be released on
remission before actual 28 years of incarceration" and fine of Rs.50,000/-
each and in default to undergo simple imprisonment („SI‟) for six months
each; and for the offence under Section 392/34 IPC, each of them was
sentenced to ten years RI with fine of Rs.25,000/- each and in default of
payment of fine to undergo SI for six months.
2. The matter regarding award of compensation to the legal heirs of the
deceased persons was referred by the trial Court to the District Legal Service
Authority, Shahdara in terms of Section 357-A of the Code of Criminal
Procedure („Cr PC‟).
3. The charge against the Appellants is that both of them on the intervening
night of 9th/10th August, 2010 at 137, Janta Flat, Ground Floor, Vivek Vihar,
sharing a common intention, committed theft of Rs.50,000/-, a gold chain, a
pair of earrings, a mobile phone Nokia 2626 in the house of Rajender Verma
and Shobha Verma („the deceased‟) and in order to commit theft, both the
accused committed the murder of the deceased, thereby committing the
offences punishable under Section 392/34 and 302/34 IPC.
4.The present appeals were admitted on 14th March, 2018. When the
nominal roll was called for, it transpired that each of the Appellants has
already undergone, as of 26th March, 2018 over seven years and seven
months of imprisonment. The Court decided to advance the final hearing of
the appeals itself instead of considering the case of the Appellants for
suspension of sentence. It also requires to be noticed here that the Appellant
Gaurav (the Appellant in Crl. Appeal No. 412/2018) was stated to have been
receiving treatment at the Institute of Human Behaviour and Allied Sciences
(„IHBAS‟) at Shahdara, Delhi during the time of his incarceration in jail. His
record of treatment was called from IHBAS by the Court vide order dated
11th April, 2018. This record was received on 22nd May, 2018 and was
allowed to be inspected by his counsel.
Reporting to the police
5. On 10th August, 2010, DD No.10-A (Ex.PW-16/C) was recorded at 10:01
am at PS Vivek Vihar to the effect that at Flat No. 137 Janta Flat, Vivek
Vihar a lady and her husband had been murdered. The mobile number of the
informant was also noted in the DD No.10-A. This was handed over to the
Station House Officer („SHO‟) Inspector Sanjay Drall (PW-25), who along
with the police staff reached at Flat No.137.
6. Earlier thereto, Sub Inspector („SI‟) Onkar Singh (PW-26) along with
Constable Vikrant (PW-13) reached the flat. The two bodies of Shobha and
her husband Rajender were found lying in the front room inside the flat at
the ground floor. Both legs of Shobha were tied with a cable wire and a
handkerchief was tied on her mouth. A pillow was lying on the mouth of
Rajender with bloodstains. Blood was also found on the other parts of his
body.
Visit of the crime team
7. PW-25 then called the crime team which came and inspected the spot,
took photographs and handed over the crime-scene report (Ex.PW-2/A). The
said report noted that the examination took place between 11:30 am to 1:30
pm. The age of Rajender was noted as 60 years and that of Shobha as 55
years. ASI Astasham Ali (PW-2) was part of the crime team. He deposed
that ASI Harshvardhan searched for finger prints but could not find any.
Photographs were taken by Constable Manoj Kumar (PW-1), which were
exhibited as Ex.PW-1/A1 to A10. Their negatives were exhibited as Ex.PW-
1/B1 to B10.
8. PW-1 confirmed that in none of the photographs any iron box was shown
lying in the room. According to him, the iron box was lying in the room
adjoining the room where the dead bodies were lying. However, he admitted
that the Investigating Officer („IO‟) did not ask him to take photographs of
the iron box. PW-1 also confirmed as correct that none of the photographs
showed any gold chain. He also did not remember any blood being scattered
on the floor.
9. Hema (PW-5), the daughter of the deceased, came to the spot along with
her husband, sister and other relatives. PW-25 recorded their statements and
prepared the rukka (Ex.PW-25/A) and sent it to the PS through PW-13 for
registration of the FIR. PW-25 on the pointing out of Hema (PW-5) prepared
the site plan (Ex.PW-25/B).
10. According to PW-25, an iron box which was compressed from the left
side was found there and seized vide memo Ex.PW-25/C. According to him,
an artificial yellow colour chain entangled with long strand of ladies hairs
was lying under the box. This was then seized and the pulanda was sealed.
A pillow of white and yellow colour having bloodstains, a bed sheet of
white and black colour, a gents pyjama of saleti colour, a blue and green
colour diaper, a sky blue colour checkered handkerchief and a green and
blue colour saree were lifted from the spot. These were kept in a separate
pulanda and were sealed.
First information
11. In her statement (Ex.PW-5/A), PW-5 disclosed that she was living at
Khanjhawla. She stated that she was supposed to meet her father that
morning and for that purpose telephoned him at 5 am, but her father did not
pick up the phone. She also tried the landline, but no one picked up the
phone. She then called her sister Lalita, who instructed PW-5 to call the next
door neighbour to find out if her parents were in the house. PW-5 called
Suraj, who lived in the opposite house. He checked and told her that the
inner room of the flat was locked from outside and that there was no one
inside the house.
12. After a while, PW-5 received a call that some incident had happened
with her parents. She then reached her parents‟ house. She found them dead
on the ground floor in the same condition in which the police had found
them. PW-5 disclosed to PW-25 that on the previous day, she had
accompanied her father to the SBI Bank at JNU and they had withdrawn
Rs.50,000/-. She was supposed to have accompanied him on the date of the
incident to renew a fixed deposit. On checking she found that Rs.50,000/-
cash, the earrings worn by her mother, the chain worn by her, a mobile
ending with the number 7693 of Nokia 2626 make were all missing.
13. PW-5 also disclosed that about 20 days earlier, they had let out the room
to one Ashwani age 22 to 23 years old, a resident of Village Nangla, District
Bhagpat, UP and he had also brought along a companion to stay with him.
Since neither of them were in their room, and even their belongings were not
there, she was confident that Ashwani (Accused No.1: A-1) and his dost
(friend) had stolen the above articles and murdered their parents. PW-25
sent both the dead bodies for post-mortem through Constable Shiv Charan
(PW-19).
Arrest and search of A-1
14. According to PW-25, he thereafter went along with SI Onkar Singh
(PW-26) in search of the accused to the Shahdara Railway Station.
According to PW-25, he received secret information that A-1 was present at
platform No.1. A-1 was apprehended on the pointing out of the informer
while he was sitting on a bench. Upon interrogation, A-1 is supposed to have
given a disclosure statement (Ex.PW-25/F) and arrested vide memo Ex. PW-
25/G. It requires to be noticed that the only witness to both these documents
was PW-26 i.e. SI Onkar Singh. The time of arrest of A-1 was shown as
9.30 pm on 10th August, 2010 at the Shahdara Railway Station. The person
to whom the information was given about the arrest was shown as Sunil
Kumar (DW-3), the father of A-1.
15. From the personal search of A-1, PW-25 is supposed to have recovered
the following articles:
(i) One leather purse containing Rs.70/-.
(ii) A Nokia phone - 1209 with sim card mobile number ending with the
digits 5875.
(iii) A Samsung black and yellow mobile phone with a sim card with a
number ending with the digits 0703.
(iv) A wristwatch of make „Fast-track‟
16. The personal search memo was again signed only by PW-26. In his
deposition PW-25 stated that A-1 "had drawn out earring/bali from the small
pocket of the right side of his jeans pant and a bundle of 100 notes of
Rs.500/- from his left pocket". These were, however, not mentioned in the
personal search memo but in a separate seizure memo (Ex.PW-25/I), which
again was signed only by PW-26 as witness. The said two articles were
sealed.
17. According to PW-25, on the slip covering the bundle of notes of
Rs.500/- produced by A-1 from the left pocket of his jeans pant, there was a
stamp of State Bank of India („SBI‟), Shakha (Branch) Munirka. The seizure
memo Ex. PW-25/J was handwritten and ran into two full pages. It noted the
serial numbers of each of the 100 currency notes. Again this memo was
signed only by PW-26 as witness. All these memos were purportedly drawn
up at the place of arrest i.e. the Shahdara Railway station..
18. Thereafter A-1 was supposed to have pointed out to PWs 25 and 26, the
place of occurrence. A-1 was then brought to the PS and the case property
was deposited in the malkhana.
Arrest and search of A-2
19. According to PW-25, on 11th August, 2010, he came to the Court of
District Judge (East) in connection with the bail application of some other
case. From the Court itself, accompanied by other police officials, PW-25
went in search of the co-accused Gaurav (A-2). When they reached near the
Surya Nagar Flyover, secret information was received by PW-25 that A-2
would come to the Metro Station, Dilshad Garden. Accompanied by the
informer, they reached there and A-2 was apprehended on the pointing out
of the informer when he came from the side of Seemapuri and crossed the
road.
20. A-2 is supposed to have made a disclosure statement (Ex.PW-6/C). He
was arrested vide memo Ex.PW-6/A. A perusal of the said document shows
that A-2 was arrested at 11:20 am on 11th August, 2010. The place of arrest
is shown as in front of Dilshad Garden Metro Station near Seemapuri
border, GT Road, Shahdara. His personal search was undertaken. He is
supposed to have produced a mobile phone of Nokia make 2626 of grey
colour from the right pocket of his jeans and regarding this a separate
seizure memo (Ex.PW-6/F) was prepared. His personal search memo
(Ex.PW-6/B) showed that Rs.290/- was recovered from his possession. All
these documents were attested by two police officials i.e. ASI Deshraj and
HC Satbir. A-2 was also taken to the spot and then brought to the PS and the
case property was deposited in the malkhana.
Post mortem
21. The post-mortem of the deceased was performed by Dr. S. Lal (PW-23).
As far as Smt. Shobha Verma was concerned, there were as many as six
major nail mark injuries over the face and forehead. Injury Nos. 7 and 8
were reddish bruises over the upper lip and lower lip. Injury No.9 was a
deep bruise with swelling of size 5x4 cm on the right temple and injury
No.10 was multiple reddish bruises at places in the right upper limb of
varying sizes.
22. The body was found with a black colour cable wire tied around both feet
and ankle-joint and bilateral hands at wrist joint. The wire was removed and
sealed. A red colour handkerchief tied around the oral cavity was found
with the fixed knot on the back of the neck. A sub-conjuctival haemorrhage
was present on bilateral eye. The nail was cyanosed.
23. The skull bones were found intact but there was sub scalpal
extravasation of blood seen on the right temple and frontal area. The brain
was congested. The cause of death was stated to be asphyxia due to ante-
mortem smothering which was sufficient to cause death in the ordinary
course of nature. The clothes of the deceased, the scalp hair, cable wire,
handkerchief and the blood of the deceased were preserved and handed over
to the IO along with sample seal in a sealed condition.
24. On the same day, PW-23 conducted the post-mortem of Shri Rajender
Verma. The dead body was wearing half sleeves baniyan (vest) and blue
kaccha (shorts). Sub-conjunctival haemorrhage was present on both eyes
and the nails were cyanosed. Injury Nos. 1 and 2 were superficial lacerated
wounds over the right side frontal area above the eyebrow and on the right
side forehead 2 cm below the eyebrow. Injury Nos. 3 to 7 were multiple
reddish bruises on the various areas on the face including the area above the
eyebrow over the bridge of the nose, the lower and upper lip. Injury No.7
was a wound over bumps with bruising associated with fracture of left
lateral inciser in lower jaw. Injury No. 8 was reddish bruise 3 x 1 cm over
left side upper gum area of upper jaw and Injury No. 9 was reddish bruise 6
x 5 cm middle outer of left arm placed 10 cm above elbow knuckle. Injury
No.10 reddish abrasion 2 x 1 cm over dorsum of elbow whereas injury
Nos.11 and 12 were reddish abrasions the over right and left tips of the
shoulders respectively.
25. Sub scalpal extra vassation of blood was seen over the fronto parietal
area. The skull bone was intact. The cause of death was stated to be
asphyxia due to ante mortem smothering which was sufficient to cause death
in ordinary course of nature.
26. The post-mortem of Smt. Shobha Verma was undertaken at 11.20 am
and of Shri Rajender Verma at 12:10 pm on 11th August, 2010. The time
since death in both cases was about 24 - 36 hours. In his cross-examination,
PW-23 clarified that there is a margin of 12 hours as „buffer time‟ and
denied the suggestion that in the present case the time since death was more
than 36 hours.
Trial
27. After preparation of the scaled site plan (Ex.PW-17/A) the charge-sheet
was filed by PW-25 on 8th October 2010. After the call detail records
(CDRs) were received, a supplementary charge sheet was filed on 6th
January 2011. Charges against both accused were framed by the trial Court
on 9th December 2010. On behalf of the prosecution, 27 witnesses were
examined for the prosecution.
28. When the incriminating circumstances were put to each of the accused
they denied them. As far as A-1 was concerned, he admitted as correct that
he asked Rajeev (PW-8) to arrange some accommodation for him as he had
studied in the same school and class with him. He also admitted that PW-8
then asked Sushma (PW-9), who was teaching in the same school with him
to arrange some accommodation; that PW-9 told PW-8 that a room was
available in the house of Shri Rajender Verma; that A-1 along with PW-8
came and saw the room and took it on rent and after 2 -3 days he shifted into
the room.
29. A-1, however, denied that when he had come to Delhi he requested PW-
8 that he did not have any ID proof and on the request of A-1, PW-8 gave
his SIM number ending in 5875 for use by A-1. Incidentally, in his
examination in Court PW-8 denied the above SIM number but confirmed
that it was the same SIM number given by him to A-1. In his cross-
examination, he stated that A-1 had used the SIM for 5-6 months and that it
was a prepaid connection.
30. A-1 was confronted with the evidence of Sulochana Devi (PW-11), who
resided in the house opposite to that of the deceased, to the effect that she
had told the deceased 15-20 days prior to their murder that the conduct and
character of A-1 was not good and asked them to get their house vacated
from him. In response, he stated:
"The land lady of the house told me to vacate the room two days prior
to the incident. It is incorrect that my conduct and character was not
good."
31. A-1 in his statement denied as incorrect, that PW-5 who came to meet
her parents on 9th August 2010 told them that A-1 would bring girls into the
room and PW-5 asked her parents to get him evicted and that at the instance
of her mother, PW-5 went to the room of A-1 to check his presence and
found that he and A-2 were sleeping in the room. As regards his arrest from
platform No.1 of Shahdara Railway Station while denying it he had stated
that he had been lifted from his house in village Nangla Rava, Distt.Baghpat,
U.P. on 10th August 2010 at around 5 pm. He stated that he was called
through Jagdish Pradhan of the village and his neighbours Dinesh and Kirpa
Ram were also present.
32. A-1 denied the disclosure statement and the recoveries from his personal
search. He, however, admitted as correct that Mukesh Kumar (PW-24) gave
a mobile phone ending with the number 0703 which was in his own name to
Shikha (sister of A-1) before getting a divorce from her for her use and
when he asked him to return the phone she refused stating that she had given
the phone to A-1 and that A-1 was using the said mobile phone. He also
admitted as correct that Tarun Khanna (PW-21), the Nodal Officer of Bharti
Airtel has brought the Original Customer Application Form (CAF) of the
above mobile number in the name of Mukesh Kumar (PW-24).
33. A-1 stated that he had been falsely implicated. He maintained that he had
vacated his room on 10th August 2010 and was at his house at village Nangla
Rava, Distt.Baghpat. According to him, nothing was recovered from his
possession and his signatures were taken by police on blank papers.
34. As far as A-2 is concerned, he denied even knowing A-1 or being
involved in any manner in the offence. He too stated that he had been
falsely implicated. His specific case was as under:
"I have been implicated falsely in the present case. I never met
with co-accused Ashwini after year 2005, however, sometime I
talked with him on telephone. I was arrested from my village at
Tera Bagpat, U.P. My father, uncle Anil and Surender our
neighbour were present and later on falsely implicated in this
case. Nothing was recovered from my possession. My signature
were obtained by police on blank papers."
Defence evidence
35. For the defence, the first witness was Jagdish Prashad (DW-1), the uncle
of A-1. According to DW-1 at around 7 to 7.30 pm on 10th August 2010 he
was informed that some police officials in civil dress had come. DW-1
stated that A-1 had also met him in the village everyday from 6 th August to
10th August. He stated that the police officials took A-1 away. In his cross-
examination, DW-1 stated that he did not complain to anyone that the police
had taken A-1 away. According to DW-1, he met A-1 on 7th August 2010 in
the morning. He denied the suggestion that A-1 did not meet him from 6th
August to 10th August 2010. He denied being a tutored witness.
36. Dinesh (DW-2) was a resident of the same village where A-1 came from.
He too stated that from 7th August to 10th August 2010, A-1 was in the
village. He stated that around 7 to 7.30 pm on 10 th August some persons in
plain clothes came there and he informed the pradhan and those persons in
plain clothes took A-1 away. According to DW-2, on 7th August A-1 was
present in his house and he visited him and even on 8th August he was
present in the house of DW-2 in the morning. He denied that A-1 was
present in the village on 6th August 2010. He remembered seeing A-1 on 9th
August 2010 in the village.
37. Sunil Kumar (DW-3) is the father of A-1. According to him on 7th
August 2010 A-1 came to the village. According to him A-1 did his B.Sc.
from the Noida Centre of Manipal University and the distance between the
college and his village was about 50 to 55 kms. The journey took one and a
half to two hours. DW-3 stated that between 6th to 10th August 2010 A-1 was
helping DW-3 in the fields and did not go to college.
38. Surender Singh (DW-4) was a resident of village Tedha, District
Baghpat and A-2 was his neighbour. According to him, A-2 had come to the
village 10 days prior to 10th August 2010 and he used to help his father in
agricultural work. DW-4 was a college student. According to him on 11th
August 2010, 5 or 6 police officials came to the village from the Crime
Branch and took A-2 away. In his cross-examination by the APP, DW-4
stated that he had not made any complaint to the police or in any Court
about A-2 being taken away on 11th August 2010. He claimed to have seen
A-2 outside his house on 10th August 2010 at around 6 pm and no one else
was with him.
39. Anil Kumar (DW-5) was a neighbour of A-2 in village Tedha. He
claimed that he saw A-2 in his house at around 8-8:30 pm on 10th August
2010. He stated that on 11th August 2010 between 3 and 4 pm, 5 or 6
persons in civil dress came and took A-2 away. He too did not inform any
police person or Court that A-2 was seen on 10th August 2010 at 8 pm in the
village. He denied the suggestion of the APP that he had not seen A-2 on 8th
October 2010 or one or two days prior in the village.
40. Vinod Kumar (DW-6) is the father of A-2. According to him on the
intervening night of 10th /11th August 2010 at around 3 am, four persons in
civil dress came in a private Bolero vehicle and took A-2 away. They
disclosed that they were from the Crime Branch Delhi Police. DW-6 stated
that A-2 was living in the house and was in search of some job and that 15
days prior to 10th August 2010, A-2 was helping him in the agriculture work.
41. Inter alia DW-6 admitted as correct that A-1 was studying in the class of
A-2 but he was not aware if A-1 had taken any room on rent. He denied the
suggestion that A-2 used to reside with A-1 in a rented accommodation at
Vivek Vihar. He admitted as correct that the mobile phone had been seized
from A-2. He denied the suggestion that A-2 is not living with him since 15
days prior to 10th August 2010.
Impugned judgment of the trial Court
42. In the impugned judgment, the trial Court came to the following
conclusions:
(i) PW-11 last saw A-1 in the house of the deceased. She deposed that on
9th August 2010 she saw A-1 standing on the roof at the grill at around
10.30 pm thereafter the deceased was not seen alive by anyone. Her
presence in the place from where she saw A-1 so standing was natural
and believable.
(ii) The presence of A-2 in the house of deceased on 9th August 2010 had
been proved by PW-5.
(iii) According to PW-5 when she called Suraj on the morning of 10th
August 2010 he stated that he did not find the accused at the house.
The conduct of the accused persons in running away from the spot,
together with the last seen evidence, is indicative of their guilt.
(iv) The recoveries effected from the possession or at the instance of the
accused proved that they committed murder of both the deceased with
a view to robbing Rs.50,000/- cash and the jewellery.
(v) The version of PW-5 regarding the presence of the iron box in the
room was corroborated by PW-1 and PW-25. PW-12, the Assistant
Manager of SBI proved the withdrawal of Rs.50,000/- by Mr.
Rajender Verma on 9th August 2010.
(vi) The deposition of PW-21, the Nodal Officer of Airtel proved that
mobile number ending with 7693 was issued in the name of PW-5 it
was this mobile phone that went missing according to PW-5. There
was no reason to disbelieve the testimony of PW-5 that she had given
the above mobile number for use to her mother.
(vii) The identification by PW-5, who was partially blind and, therefore,
could not identify articles during TIP was not unusual. Her vision
was not that she could not recognise human beings. She could
correctly identify the articles belonging to her otherwise by touching
them.
(viii) Since PW-5 had seen both accused after the arrest, there was no
requirement of getting the TIP of A-2 even though finger prints could
not be detected from the spot the other evidence available on record
was sufficient to prove the guilt of the accused. The failure to
examine Suraj was not fatal to the prosecution.
(ix) The recoveries made from A-1 at the Shahdara railway station were
believable when read with other evidence notwithstanding that such
recovery was not witnessed by any public witness. The difference in
the timings of the arrest of A-1 as mentioned by PW-5 and PW-25
was not a serious lapse.
(x) The Call Details Records (CDRs) of the mobile phones of A-1 and A-
2 showed that they were in contact with each other after the incident.
The SIM number ending with 5875 was given by PW-8 to A-1. PW-
24 also gave his mobile phone ending in 0703 to his wife Shikha who
in turn gave it to A-1 was using the number. A-2‟s mobile phone
ending in 0164 was proved by Hussain Jaidi, Nodal Officer Idea
Cellular (PW-22). The CDRs of the said mobile show that little 17
calls were exchanged between A-1 and A-2 through the numbers 0703
and 0164 respectively even after the incident on 10th August 2010.
(xi) The minor contradictions of the PWs could be safely ignored.
Consequently, the prosecution had established the motive, the last
seen theory, the recovery of the robbed articles and, therefore, there
was no missing link which required to be proved. The post-mortem
reports confirmed that the deaths were homicidal and the time since
death was very close to the actual time of death.
(xii) The DWs not only contradicted each other but also the defence of A-
1 who stated that he vacated the room on 8 th August 2010 meant that
till then he was residing in the room. DW-6 had admitted to A-1 and
A-2 knowing each other and also about the seizure of the mobile
phone from A-2. DW-4 and DW-5 did not appear to be trustworthy.
Both of them admitted to coming to depose at the instance of the
father of the A-2. The defence evidence not being trustworthy was
discarded completely.
43. For the aforementioned reasons, the trial Court proceeded to hold both
the accused guilty of the offences with which they were charged and
proceeded to sentence them in the manner indicated.
Law relating to circumstantial evidence
44. This being a case of circumstantial evidence, it is necessary to
recapitulate the settled legal position. In Sharad Birdhichand Sarda v. State
of Maharashtra 1984 (4) SCC 116, the Supreme Court explained that a case
based on circumstantial evidence should satisfy the following tests:
"(1) The circumstances from which the conclusion of guilt is
to be drawn should be fully established.
(2) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except
the one to be proved, and
(5) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused."
45. In Ram Avtar v. State 1985 Supp SCC 410, the Supreme Court
explained that:
"...circumstantial evidence must be complete and conclusive
before an accused can be convicted thereon. This, however,
does not mean that there is any particular or special method of
proof of circumstantial evidence. We must, however, guard
against the danger of not considering circumstantial evidence in
its proper perspective, e.g., where there is a chain of
circumstances linked up with one another, it is not possible for
the court to truncate and break the chain of circumstances. In
other words where a series of circumstances are dependent on
one another they should be read as one integrated whole and not
considered separately, otherwise the very concept of proof of
circumstantial evidence would be defeated."
46. In Brajesh Mavi v. The State (2012) 7 SCC 45, the Supreme Court
explained:
"From the several decisions of this court available on the issue
the said principles can be summed up by stating that not only
the prosecution must prove and establish the incriminating
circumstance(s) against the accused beyond all reasonable
doubt but the said circumstance(s) must give rise to only one
conclusion to the exclusion of all others, namely, that it is
accused and nobody else who had committed the crime.
Evidence of last seen
47. The first circumstance which the prosecution has set out to establish is
that the two accused were last seen with the deceased prior to their death.
For this purpose, the prosecution relies on the evidence of Hema (PW-5), the
daughter of the deceased and Sulochana Devi (PW-11), the neighbour of the
deceased.
48. The Court has carefully perused the evidence of PW-5 who was herself
visually challenged. The numerous improvements made by PW-5 emerged
in her cross-examination by counsel for the defence. Even in her
examination-in-chief, she did not mention about the comment made by PW-
11 of the conduct of A-1. On this point the learned APP was permitted to
cross-examine PW-5 and now she stated that it was correct that PW-11 had
told her parents that the activity of A-1 and A-2 was not good and that the
parents of PW-5 had asked A-1 to vacate the room and further that she (PW-
5) had also stated this fact to the police.
49. In her cross-examination by counsel for the defence PW-5 stated that her
statement had been recorded by the police 3 or 4 times. The first statement
was at 11.30 am and the second at 4 pm both on 10 th August 2010. She
clarified that while the deceased lived on the ground floor of the two and a
half storey building the first floor was vacant and the room in the second
floor was rented out to A-1. PW-11 lived in the house opposite to the house
of her parents. Suraj lived in the house to the right side of the house of her
parents while Dhani Ram lived in the left side of the house of her parents.
The numerous inconsistencies and improvements made by PW-5 in her
deposition in Court included the following:
(i) She had not stated to the police that the time of her three calls to her
parents was 6 am, 7 am and 8 am on 10th August 2010. She also did
not give the police her mobile number as well as the landline of her
parents.
(ii) She did not tell the police in her statement that her sister Lalita had
told her not to worry when PW-5 called Lalita to tell her that their
parents were not picking up the phone.
(iii) PW-5 did not tell the police that after one hour Lalita had told PW-5
that Lalita had also called her parents but they were not answering the
phone.
(iv) PW-5 also could not recall the number of Suraj. On checking her
mobile phone in the trial Court, she stated that she had saved his
number in the name of his sister Divya and that she had called Suraj at
around 8 to 8.30 am.
(v) She maintained that she had told the police that she had asked Suraj to
go into the house of their parents to see whether the tenants were still
there. However, in neither of her statements to the police (Ex.PW-5/A
and Ex.PW-5/DX) she had mentioned these facts.
(vi) She also asserted that she had told the police that Suraj had checked
from her parents‟ house and told her that the tenants were not there.
In fact, she had not so stated to the police.
50. It emerged in the cross-examination of PW-5 that the following facts
were deposed by her for the first time in Court, and were not stated to the
police earlier:
(i) Asking Suraj to check for her parents in the neighbours‟ house and
that after so checked he told her that her parents were not there.
(ii) That she got perplexed and then left her house.
(iii) That when she was in the bus she received a call from from Suraj that
her parents were dead.
(iv) That she had noticed that mustard oil taken from pickle on the eyes of
her mother.
(v) That the saree worn by her mother on 9th August 2010 was lying on a
chair near the dead body.
51. In her further cross-examination, PW-5 stated that she had called the
police at 100 number at 10 or 10.30 am and gave her mobile number which
ended with 5927. It must be noticed that DD No.10A records the mobile
number from where the call was made as ending in 4118. She claimed that
her sister Lalita had reached the spot within half an hour and that police did
not record Lalita‟s statement.
52. PW-5 was confronted with her previous statement to the police where
she had not stated about her mother telling PW-5 that A-1 used to bring his
friends and girls to the room. Further, she was confronted with the previous
statements where she had not told the police that her mother had further told
her that A-1 used to bring girls to the room and that she wanted to get him
evicted from the room. She had also not stated to the police that her mother
had asked to go to the room and check the presence of A-1 and A-2. She
also did not state to the police earlier that, when she went upstairs she found
"two boys sleeping in that room" or that when she returned to the ground
floor she told her mother that when the boys would wake up she would tell
them to vacate the room.
53. PW-5 also did not tell the police that she was taking tea when A-1 came
there and put an empty water bottle which he had borrowed from her mother
and then went back swiftly. She also did not state to the police that she had
asked A-1 not to put water bottle swiftly in a manner that her parents would
be unable to see or that A-1 told her that he was doing so as they were busy
in talks and it would not happen in future or that she then left to her parents‟
house and telling them that she would come again tomorrow.
54. PW-5 also did not state to the police anything about receiving a call from
her mother at 8.30 to 9 pm to enquire if she had reached her house
comfortably. She also did not state to the police that the next day at about 5
am she called her parents to inform them that she was coming to their house
and that her father should get ready.
55. PW-5 admitted as correct that she did not know A-2 by name prior to the
occurrence and that it was the police who told her the name of A-2 after his
arrest. She did not mention Gaurav in any of the statements given by her to
the police at any point of time. She stated that she had told the police that
she had seen A-2 sleeping in the room when her mother asked her to go to
the room but in neither of the statements to the police this fact was
mentioned. PW-5 also did not give any physical description of A-2 or the
clothes worn by him.
56. PW-5 stated that her parents were completely blind. She admitted as
correct that she too had poor eyesight. She admitted as correct that in the
TIP she told the learned Metropolitan Magistrate (MM) that she could not
identify the goods by looking at them but only by touch. She was not taken
by the police to Tihar Jail for TIP of A-2.
57. As regards her purchasing a mobile phone from Balaji Telecom,
Mukherjee Nagar on 30th October 2007 PW-5 stated that she had told the
police about giving that mobile phone to her mother for use but in her
previous statement to the police it was not so recorded. She admitted as
correct the photograph in the CAF number ending in 7693, given to her
mother did not have the photograph of PW-5.
58. There were more contradictions that emerged in the cross-examination
of PW-5 on 1st August 2012. It transpired that she had not stated to the
police earlier that she had been called by her father to accompany him to the
bank on 9th August 2010. She admitted as correct that police officers had
visited her house on 10th August 2010 and informed her that one of the
accused had been arrested and that all her family members were present.
59. More importantly, PW-5 did not remember if she had given "any
physical description of the tenant qua his height, built, colour, caste and
having beard or not." In neither of her statements had she claimed that she
stated to the police that she could identify the tenant who came to put the
bottle but in fact in neither of her statements she had said so. She admitted
that the police had brought both accused persons to her house on 11th August
2010. She claimed to have stated to the police that she had seen the face of
the tenant but when she was confronted with the previous statements that
was not found recorded.
60. The evidence of PW-5, as discussed above, does not give an assurance to
the Court that she is speaking the entire truth and that she can be relied upon
as a witness of the last seen evidence. The numerous contradictions and
improvements made by her in her depositions before Court have not been
noticed by the trial Court in the impugned judgment. The evidence of PW-5
as far as her examination-in-chief is discussed in para 8 of the Trial Court
judgment but the numerous improvements made by her over a previous
statement given to the police which was brought out in the cross-
examination have completely been omitted by the trial Court.
61. There are two other persons that PW-5 mentions who she contacted in
order to find out about her parents, one was her own sister Lalita and the
other one was Suraj, the neighbour. The police does not appear to have
examined either Lalita or Suraj. Considering that the eye sight of PW-5
herself is very poor and it has come in her cross-examination that she did her
12th from the National Association of the Blind (the fact not even noticed by
the Trial Court), it was important for the IO to have recorded the statements
of Lalita and Suraj to corroborate the version of PW-5.
62. Importantly, PW-5 did not tell the police in the first instance, despite her
statement being recorded twice, about her going to the room of A-1 on 9th
August 2010 and seeing him with A-2 sleeping in that room. This was the
most crucial fact without which it could not be established whether A-1 and
A-2 were last seen in the room.
63. As far as PW-11 is concerned, she did not support the prosecution. In
her examination-in-chief, she stated that she had seen A-1 "once or twice
standing at the first floor of the house of the deceased and that she had told
the deceased for 15-20 days prior to the murder that the conduct and
character of A-1 was not good and asked them to get the house vacated from
A-1." However, she claimed she did not know if the deceased had asked A-
1 to vacate the house. Also she stated that she "did not see any other person
with accused Ashwani in the house of the deceased."
64. At that stage the APP sought permission to cross-examine PW-11. Now
she categorically said that she had not seen A-2 with A-1 in the house of the
deceased. She resiled from her previous statement to the police that she had
told the deceased that the conduct and character of A-2 was also not good.
She now stated that it is wrong to suggest that the deceased and his wife
used to ask A-1 to vacate their house or that she (PW-11) had stated so to
the police. She even denied having told the police that A-1 and A-2 had
murdered the deceased and after committing robbery they had run away.
65. In the cross-examination of PW-11, it transpired that she was never
asked to join the investigation by the police and did not by herself make any
statement to them. She did not know how the police reached her house as
she had not given her address to anyone. PW-11 stated that on the date of
incident she had met the police but had not made any complaint against the
accused. According to her, PW-5 met her afterwards, for about half hour at
their house and except PW-5 she did not know any other relative of the
deceased. PW-11 stated:
"On that day I had not told Hema that accused Ashwani is not
having good conduct and character. From the date of murder till
my recording of statement I never told Hema about the conduct
and character of accused Ashwani."
66. PW-11 further stated as under:
"I had not complained to even any neighbour or my family
members about the conduct of the accused Ashwani prior to the
incident and thereafter. There was no tenant in the house of
deceased prior to the accused. I do not know how much rent
accused used to pay. I had never met accused personally. I do
not know if any written rent agreement was executed between
accused and deceased. Shobha (deceased) had told me the name
of tenant as Ashwani. Vol. I had seen accused twice before the
incident on the roof of third floor. There is only one room on
the third floor."
67. PW-11 further stated "one day before the incident, I had seen accused
Ashwani standing on the roof at the grill at about 10.30 pm. I had not seen
accused standing at the grill before or after that day." PW-11 stated that her
statement was not recorded by the police and that she did not tell her name
and address to the police ever.
68. PW-11 again comes across as a totally unreliable witness. She was in
fact declared hostile by the APP who cross-examined her. She completely
disassociated herself as far as A-2 is concerned. Even as regards A-1 except
saying that she had seen him standing "on the roof at the grill" she does not
state that she ever saw him in the room and particularly either on the date of
the incident or even earlier. She disassociated from her statement about A-1
not having good conduct and character and about her mentioning about it to
PW-5.
69. The Court finds that even while discussing the evidence of PW-11 the
trial Court omits all the numerous contradictions which is apparent in her
evidence and only mentions the fact that she had deposed that one day
before the incident she had seen A-1 standing on the roof at the grill at about
10.30 pm. Her turning hostile as regards A-2 is not even adverted to by the
trial Court. The trial Court again discusses PW-11 in para 44 of the
impugned judgment but without noticing the numerous contradictions and
improvements made by her.
70. The trial Court also appears to have not understood what last seen
evidence actually means. In the present case, last seen has to be understood
in the context of the deceased last being seen alive with the accused and not
merely in the vicinity of the accused. Here, with the deceased living on the
ground floor and A-1 having taken a room on the second floor, merely
because A-1 is seen "on the roof near the grill" cannot be understood as A-1
being last seen with deceased. Further there is no evidence to show that A-2
was with A-1 and in any event that A-2 was last seen with the deceased.
71. The Supreme Court in State of UP v. Shyam Bihari (JT 2009 (11) SC
274 explained the circumstance of 'last seen' as the "close proximity of place
and time between the event of accused having been last seen with the
deceased and the factum of death". That kind of an evidence is not available
in the instant case. In the written submissions of the learned APP before this
Court again reliance is placed only on PWs 5 and 11 in support of the theory
of last seen. The numerous improvements made by PW-5 rendering her an
unreliable witness were not even adverted to.
Arrest of the accused not proved
72. The Court finds that even fixing the identity of the two accused in the
present case appears to be doubtful. As far as the prosecution is concerned,
only PW-5 and PW-11 could have described A-1 and A-2. None else could
have given a description of either of them to the police. Without such
description, the police could not have put out information for any secret
informer to tell them about the presence of either A-1 or A-2. The system of
secret informer cannot possibly work unless an IO is able to give such secret
informer some description of an accused either orally given to the IO by a
witness or a photograph or a CCTV footage from where a drawing could be
made of such suspect.
73. In the present case, with no such description of either accused given by
PWs 5 and 11 to the IO, the circumstance of arrest of A-1 based on the
information given by secret informer is, therefore, not at all convincing.
That PW-5 herself being partially blind and with her evidence about having
seen A-1 and A-2 in the room on 9th August 2010 being an obvious
improvement over her previous statement to the police, the result is that the
police actually had no description of either A-1 or A-2 to proceed further in
the matter. It is also significant that there were no chance prints lifted from
the room where the murder took place which connected A-1 or A-2 to the
crime. It is a mystery how without any details concerning A-1 and A-2 a
secret informer could have given any information to the police about their
presence.
74. PW-25 does not explain how he straightaway went to Shahdara railway
station and to platform No.1 to arrest A-1. Shahdara railway station is
obviously a busy place especially at the time of arrest of A-1, which in the
arrest memo (Ex.PW-25/G) is shown as 9:30 pm. That no attempt was made
to associate a single public witness in his arrest makes it suspicious. Neither
PW-25 nor PW-26 state that they asked any person in the station or even an
employee of railways to come as a witness and they refused. On the other
hand, there is overwhelming evidence of the defence witnesses to show that
the arrest of A-1 took place from his village in UP. The circumstance of
arrest of A-1 at the Shahdara railway station platform No.1 is wholly
unbelievable.
75. Likewise, the so-called arrest of A-2 outside the Dilshad Garden Metro
Station at 11:20 am on 11th August 2010 again without a single public
witness attesting the arrest memo is wholly unbelievable. When arrests take
place from such busy places, to not even attempt to associate members of
the public or even the officials of the DMRC or even make the so-called
ritualistic statement that such persons were asked but they refused to join,
makes the circumstance of arrest of A-2 suspicious.
Recoveries not proved
76. The main motive for the crime appears to be the stealing of Rs.50,000/-
in cash which was with the deceased. This recovery of Rs.50,000/- is
supposed to have been made from the personal search of A-1. The personal
search memo of A-1 (Ex.PW-25/H) shows that in his purse, there was only
Rs.70/-. That personal search memo only refers to two mobile phones with
numbers ending 5875 and 0703 and a wrist watch. Further, this is not even
attested by an independent witness.
77. A separate seizure memo is drawn up (Ex.PW-25/J) as regards as
Rs.50,000/-. A-1 is supposed to have been carrying hundred such notes of
500 rupees in his pant and all the currency notes are written and all of this is
supposed to have been prepared sitting in the railway station with the only
witness being PW-26. What is sought to be connected is the mark of SBI
„Shakha Munirka‟ with the date of 9th August 2010 and that this was the
very sum of Rs.50,000/- which was withdrawn by the deceased. This is
where the trial Court has overlooked the evidence of PW-10 (Ashok Kumar
Gupta).
78. In his examination-in-chief what he brought to the Court was the original
record of a savings bank account in the name of Rajender Kumar Verma
maintained with the JNU Old Campus Branch of SBI. The APP ought to
have asked this witness two questions, (i) Whether SBI Munirka was a
different Branch from SBI JNU because the counsel for A-1 elicited from
this witness that "there were about 13 -14 steps towards SBI JNU. It was a
small branch." Also this witness did not deal with customer Rajender Kumar
Verma on 9th August 2010 and he had "no connection with cash." The slip
found over the bundle of notes purportedly recovered from A-1 was in fact
not shown to PW-10 at all. He ought to have been asked whether that very
slip was issued by the SBI JNU Branch where he was working. PW-10
stated as under:
"It is correct that there is no identification of the currency notes
and they can be identified only on the basis of slip of the branch
attached with them. Police did not meet me. I cannot tell the
name of the officer of the branch to whom the police met in
connection with this case. I have no knowledge if the bundle of
notes were shown to the any of the officers of the branch by the
IO."
79. It is, therefore, plain that even during investigation the slip found on the
500 rupee note bunch supposed it being recovered from A-1, was not
actually shown to the PW-10 to confirm if these notes were in fact issued
from that branch namely the SBI JNU Branch. It will be recalled that it is
the stamp of SBI Munirka which was found on the notes.
80. The further factor is that this seizure memo is also not witnessed by any
public witness. The evidence of PW-10 breaks the connection between the
notes purportedly recovered from A-1 and those withdrawn by the deceased
from his account with the SBI at the JNU Branch. Therefore, this recovery
also stands disproved.
81. The ear rings supposed to have been recovered from the right jeans
pocket of A-1 is also not reflected in the personal search memo but in a
separate seizure memo (Ex.PW-25/I). There is another ear ring seized from
A-2 for which there is a separate seizure memo (Ex.PW-6/E). It will be
recalled that even for A-2 there is overwhelming evidence to show that he
was arrested not outside the Dilshad Garden Metro Station but from his
village in Baghpat.
82. No finger prints lifted from the room where the deceased were found.
There was no other evidence to show the presence of either A-1 or A-2 in
that room on the ground floor of the building. Even the room occupied by A-
1 was not thoroughly searched and no prints lifted therefrom to show the
presence of A-1 and A-2. Even in the case of A-2 neither is the arrest memo
attested by any public witness nor is the seizure memo attested.
83. Therefore, important links in the chain of circumstances viz., the last
seen evidence, the arrest of the accused, and the recoveries made from either
of them have not been proved by the prosecution. Even identification of
these objects appears to be doubtful from the evidence of PW-5 it is
apparent that she was already shown these articles even before the TIP was
conducted. She states that on 11th August 2010 "police came at my house
and had shown me the ear rings and the mobile phone."
CDRs not proved
84. Turning next to the Call Details Records (CDRs), the Court finds that the
mobile phone 0703 is shown to be in touch with the mobile number ending
in 0164 twice on 7th August 2010 and on 10th August 2010 several times.
This by itself does not establish any linkage between A-1 and A-2 with the
evidence of the phones being issued in their respective names not being
proved. While it is true that A-1 and A-2 had been studying in the same
school, that was many many years prior to the occurrence. A-2 was
presumably using the phone of his father but this one circumstance by itself
will not connect both these accused with the crime.
85. The evidence of PW-22 is to the effect that phone number ending in
0164 was issued in the name of A-2 but the important part is the cell
location and there is nothing to show that at any time on 9 th August 2010 this
mobile phone was in the vicinity of the house of the deceased. In any event,
the CDR evidence failed since PW-22 stated this in his cross-examination:
"It is correct that the contents of Certificate under Section 65-B
is stored in my desk top and as and when it is required in court,
I take out the print of that and along with CDR I file it in court.
It is correct that I do not possess the technical knowledge qua
master server, its operation, its maintenance and also whether at
any time electricity failed during recording of the calls
mentioned in the CDRs or not. It is correct that I did the job of
taking out CDR and affixing the Certificate under Section 65-B
from my system and placed the same before this Hon'ble Court.
It is correct that I have no personal knowledge about the CDR.
It is wrong to suggest that I am placing incorrect CDR on the
record."
86. This makes the evidence in the form of CDR inadmissible in evidence.
The other Nodal Officer who was examined i.e. PW-21 did not himself
prepare the certificate under Section 65B IEA. He merely identified the
signatures of one Vishal Gaurav who had prepared it. This is despite his
statement in the cross-examination that:
"Vishal Gaurav is still working as Nodal Officer with Bharti
Airtel Ltd. I do not know where the main server of Bharti Airtel
Ltd. is located. Vishal Gaurav did not sign Ex.PW21/D in my
presence. I have joined Bharti Airtel Ltd. in March, 2011. The
call details in question of the aforesaid number were not taken
out in my presence."
87. These difficulties in accepting the CDRs in evidence were also
overlooked by the trial Court. In any event, merely because calls were
exchanged between the two numbers would not make up for the failure by
the prosecution to prove the other links in the chain of circumstances.
Motive not proved
88. Finally as far as the motive for commission of crime, it is stated to be the
stealing of Rs.50,000/- and the mobile phones. It has already been noticed
that the recovery of Rs.50,000/- from the personal search of A-1 has not
been proved by the prosecution. That this was to the knowledge of A-1 that
the deceased Rajender Verma withdrew Rs.50,000/- from the SBI account is
not proved. That what was recovered from him was the same Rs.50,000/-
was also not proved.
89. The ear ring being that of Smt. Verma is also doubtful since PW-5
identified it only by feel and touch and in any way the ear ring and mobile
phone were already shown to her by the police before the TIP. With the
recovery of these articles from the accused not being proved, there was no
evidence to prove the motive for the commission of crime.
90. In order that failure to prove the motive can be considered not fatal to
the prosecution, it must be shown that the other circumstances have been
clearly established by the prosecution. The correct legal position was
explained by the Supreme Court in Arjun Marik v. State of Bihar 1994
Supp (2) SCC 372 in the following words:
"...mere absence of proof of motive for commission of a crime
cannot be a ground to presume the innocence of an accused if
the involvement of the accused is otherwise established. But it
has to be remembered that in incidents in which the only
evidence available is circumstantial evidence then in that event
the motive does assume importance if it is established from the
evidence on record that the accused had a strong motive and
also an opportunity to commit the crime and the established
circumstances along with the explanation of the accused, if any,
exclude the reasonable possibility of anybody else being the
perpetrator of the crime then the chain of evidence may be
considered to show that within all human probability the crime
must have been committed by the accused."
Conclusion
91. For the aforementioned reasons the Court is of the view that both the
accused are entitled to benefit of doubt as each of the links in the chain of
circumstances put forth by the prosecution as constituting a complete chain
has not been proved beyond reasonable doubt and in any event these do not
point unmistakably to the guilt of the two accused.
92. The impugned judgment of conviction and the order on sentence passed
by the trial Court is set aside. The Appellants shall be released forthwith
unless wanted in some other case. The appeals are allowed and the
applications are disposed of. Each of the Appellants will fulfil the
requirements of Section 437A Cr PC to the satisfaction of the trial Court.
The trial Court record be returned forthwith with the certified copy of this
judgment.
S. MURALIDHAR, J.
VINOD GOEL J.
OCTOBER 08, 2018
rd/tr
