Delhi High Court
Ramesh @ Guddu vs State on 10 September, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on 19th July, 2018
Pronounced on 10th September, 2018
+ CRL.A. 1105/2017
RAMESH @ GUDDU ..... Appellant
Through: Mr. Chetan Lokur, Advocate
(DHCLSC) with Mr. Nitish
Chaudhary, Advocate.
versus
STATE ..... Respondent
Through: Mr. Hirein Sharma, APP.
CORAM: JUSTICE S.MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
VINOD GOEL, J.:
1. This appeal is directed against the judgment dated 13th July, 2017
passed by the Court of learned Additional Sessions Judge, Dwarka
Districts Courts, South West District, New Delhi („ASJ‟) in SC
No.132/2015 arising out of FIR No.356/2012, P.S. Bindapur whereby
the appellant was convicted for the offence punishable under Section
302/201 IPC and the order on sentence dated 29.07.2017 whereby the
appellant was sentenced to undergo life Imprisonment along with a
fine of Rs.3,000/- u/s 302 IPC; and Rigorous Imprisonment (RI) for
five years along with a fine of Rs.2,000/- for the offence punishable
u/s 201 IPC and in case of default of payment of fine, the appellant
was to undergo RI for six months. Both the sentences were directed to
run concurrently. The Ld. ASJ recommended to DLSA for the
payment of compensation to the legal heirs of deceased u/s 357A
Cr.P.C.
2. On 03.11.2012 at about 12.50 pm, information was provided by HC
Sita Ram, PS Dabri (PW8) by telephone to PS Bindapur about foul
smell coming from a room situated at the 1st Floor of the House No.A-
787, JJ Colony, Pankha Road, Delhi. A DD No.16A (PW8/K) was
recorded and the same was assigned to Sub Inspector (SI) Ashok
Kumar (PW15) who left for the spot along with Constable (Ct.) Kamal
Chand (PW21). Upon reaching the spot, the room was found locked.
In the meanwhile the crime team headed by the SHO Surender Kumar
(PW22) and other senior police officials also arrived there. The lock
was broken and on opening the door, a headless body was found lying
below the bundle of clothes on the right side of the room. The body,
as found, was in a white coloured vest and black & white striped
underwear. The clothes of the deceased and other personal
articles/belongings were recovered and seized. The dead body was
sent to the mortuary of DDU Hospital for preservation through Ct.
Sudhir (PW25). The rukka (Ex.PW26/B) was prepared and sent
through Ct. Kamal Chand (PW21). An FIR No.356/2012 was
registered under Section 302/201 IPC. One plastic bottle and lock of
the room were sealed with the seal of SD and were seized vide seizure
memo Ex.PW12/A. Blood sample and earth control were lifted on a
gauze by Inspector Subhash (PW29) vide seizure memo (Ex.PW12/B).
A blood stained mat, pillow and bed-sheet were also sealed in a
pulanda and seized vide seizure memo (Ex.PW12/C). The appellant
was arrested on 16.11.2012 vide arrest memo (Ex.PW12/D) at his
native place i.e. Village Panchwati, District Gorakhpur (UP). He was
interrogated. He made a disclosure statement (Ex.PW13/A). Pursuant
to the disclosure statement, the appellant got recovered two mobile
phones out of which one phone was of China make with the battery
No. JAI-BL-3C and the other phone was of SAMSUNG, one purse
containing two railway tickets and a card issued by the Gramin bank,
one black colour bag which contained a photocopy of the passport of
the deceased Nitin Kumar Singh, one jeans pant, one white colour
shirt, one gray colour pant and a bag containing Rs.20,000/- in cash,
all of which was in the denomination of Rs.500 each. All these articles
were converted into pulanda and sealed with the seal of SD and taken
into possession vide seizure memo Ex.PW12/F.
3. After completion of the investigation, charge sheet was filed
against the appellant before the link MM on 14.02.2013. After making
due compliance of Section 207 Cr.P.C., the Ld. MM committed the
case to the Court of Sessions on 11.04.2013.
4. The Ld. ASJ framed the charges against the appellant under Section
302/201 IPC on 07.05.2013 to the effect that he had committed the
murder of Nitin Kumar Singh prior to 03.11.2010 at an unknown time
at House No.A-787, JJ Colony, Pankha Road, Delhi and thereby
committed the offence punishable under Section 302 IPC. He was also
charged with the offence punishable under Section 201 IPC for
causing certain evidence connected with the said offence to disappear
with an intention to save himself.
5. To bring home the guilt of the appellant, the prosecution examined
30 witnesses.
6. The Ld. ASJ put the incriminatory evidence to the appellant u/s 313
Cr.P.C. While replying to the question whether he and the deceased
were previously known to each other, the appellant replied "I never
met with the deceased. However, I talked to him only once on mobile
phone when my brother was leaving Delhi for Nigeria". He admitted
that his brother Jagdish was sent to Nigeria by the deceased. He stated
that he was not using any mobile phone in Delhi. He further stated that
in his entire life, he had stayed in Delhi for only 3-4 days when he had
come to see off his brother. He stated that he never got issued mobile
No.82850-82350 and did not know if the mobile No.99589-60414 was
issued in the name of the deceased at House No.21, Kotla village, New
Delhi. Upon being asked if he had called the deceased thrice on his
said mobile number on 31.10.2012 (as per CDRs Ex.PW10/C and
Ex.PW11/C), the appellant replied "I had never used the said mobile".
He stated that he was not present at the said premises in JJ Colony,
Pankha Road after 7:15 pm on 31.10.2010 as at that time his wife was
hospitalized in Gorakhpur and he was there to take care of her. He
stated that since 28.10.2010 he had been present in Gorakhpur and was
falsely implicated.
7. The appellant examined DW1 ASI Dhanpat Sharma and DW2 Ct.
Sanjay in his defence.
8. It is argued by the Ld. counsel for the appellant that the judgment of
the Trial Court suffers from inherent infirmities. He urged that during
the interrogation neither the weapon of the offence nor the head of the
body could be recovered, which sufficiently raises a doubt. He argued
that the depositions of PW1 to PW4 to prove the tenancy of the
appellant on the premises in question are not substantiated by any
documentary evidence. He submitted that the testimony of PW2 and
PW3 are unbelievable as they did not know the name of the appellant
while renting him a room. He submitted that there are contradictions
in the testimony of these four witnesses and no reliance can be placed
upon their testimony. It is further argued that the last seen theory as
put forth in the deposition of PW4 is not believable as his statement
suffers from several improvements.
9. Per contra, it is submitted by the Ld. APP for the State that the Trial
Court has passed the impugned judgment and order on sentence after
due appreciation of evidence and there is no infirmity or illegality in
the judgment.
10. We have heard the Ld. counsel for the appellant and the Ld. APP
for the State.
TENANCY OF THE APPELLANT
11. The Ld. ASJ has relied upon the testimony of Rita Devi (PW3),
corroborated by her jethani Sheela Devi (PW2), wherein she stated
that she rented out the 1st Floor of the property bearing House No.A-
787, JJ Colony, Pankha Road, Delhi to the appellant, where the body
of the deceased was found. He noticed that their testimonies are
further corroborated by the depositions of Rajender Kumar, Cable
Operator (PW1) and another tenant on the second floor of the said
premises Bhupat Prasad (PW4).
12. Rita Devi (PW3) has testified that she is owner of the said house
and her jethani Sheela Devi (PW2) resides in the adjoining house. She
identified the appellant to be the person who approached her for
renting him a room about a year ago while she was with her jethani.
She stated that the rent was agreed @ Rs.2200/- per month and the
appellant informed her that he was working as a Raj Mistri and sought
time of about 3-4 days to hand over his identity proof. It is elicited in
her cross-examination that she is an illiterate person and did not
inquire about the name and address of the appellant. The appellant
assured them that he would be supplying his ID proof very shortly.
She stated that on the next morning the appellant brought his articles
like cylinder, television, utensils, etc. She noticed the appellant going
for his work and sometimes returning after 2-3 days. She denied the
suggestion that the room in question was let out to the deceased.
13. The statement of Smt. Rita Devi (PW3) is corroborated by the
statement of her jethani Smt. Sheela Devi (PW2). She testified that her
devrani Smt. Rita Devi (PW3) has been residing in the adjoining
House No. 786. She also identified the appellant present in the Court
to be the person who approached her devarani to rent him a room
about a year ago. It has further come in her evidence that a room was
agreed to be let out to the appellant @ Rs.2200/- per month. She
stated that on the next day, the appellant occupied the room. On her
asking, the appellant assured to provide his identity proof within 3-4
days.
14. It has come in her cross-examination that they did not ask the
name of the appellant while renting out the room. She stated that upon
making inquiries, the appellant told them that he is from Gorakhpur
and is presently residing at Bindapur. Like Smt. Rita Devi (PW3) even
Sheela Devi (PW-2) has denied the suggestion that room was let out to
the deceased and not to the appellant. She stated that the appellant
brought cylinder, television, utensils and tools of raj mistri. She had
seen the appellant 2-3 days after letting out the room.
15. The Ld. ASJ noticed that the legal requirement of informing the
police to verify the credentials of the tenant may not be known to
PW3, who is an illiterate person belonging to the lower middle class of
the society and more interested in renting out the property than getting
the tenant verification done. He found the deposition of Rita Devi
(PW3) and Sheela Devi (PW2) to be genuine to the extent that they
were assured by the appellant that he will furnish his identity proof in
a few days time.
16. The testimonies of Rita Devi (PW3) and Sheela Devi (PW2) are
corroborated by the testimony of Rajender Kumar (PW1), who is
working under the Cable Operator at Ishika Cable Network, Uttam
Nagar, New Delhi. He identified the person whose photograph
(Ex.PW1/A) was shown to him to have approached them, for
installation of cable connection at the premises 786-787, 1st Floor JJ
Colony, Uttam Nagar near bus stand, New Delhi.
17. The testimonies of Rita Devi (PW3) and Sheela Devi (PW2) are
further corroborated by the deposition of another tenant Bhupat Prasad
(PW4) who has been in occupation of the 2nd Floor of the said
property. PW4 deposed that he has been residing as a tenant on the
second floor of the said House of Rita Devi (PW3) at a rent of
Rs.1800/- per month for the last 7/8 years. He identified the appellant
to be the person who started residing on the first floor of the said
property. In his cross-examination he denied that the appellant was
neither the tenant of PW2 and PW3 nor occupied the said room.
18. The Ld. ASJ noticed that no documentary evidence like rent
agreement/cable installation receipt, etc. were produced by the
prosecution but found the oral testimonies of PW1 to PW4 inspiring
confidence to prove that a room on the first floor of the said property
was rented out by Rita Devi (PW3) to the appellant about 15 days
prior to the incident in question.
APPELLANT AND DECEASED KNOWN TO EACH OTHER
19. It is the case of the prosecution that the deceased and the
appellant were known to each other and they had stayed together in
Delhi for quite some time. To prove the relationship between the
appellant and the deceased, the prosecution examined Nitin Dutta
(PW6) and the father of the deceased, Amod Kumar Singh (PW7).
Nitin Dutta (PW6) testified that he knew the deceased i.e. Nitin Kumar
very closely since 2008 as they had joined Marina Trading LLC in
Dubai on the same day. They were good friends and shared a room for
11 months while staying in Dubai. After leaving his job, Nitin Dutta
(PW6) came back to India and after 7/8 months, the deceased came
back to Delhi. He stated that the deceased started residing at Kotla
village. He further stated that he went to Nigeria where the brother of
the appellant namely Jagdish was also working as a Technician in the
same company. He spent four months in Nigeria and then came back
to Moradabad. He testified that deceased continued to reside in the
same house in Kotla and he was in regular touch with him over the
phone. PW6 disclosed the mobile number of the deceased as 99589-
60414. He testified that the appellant was like a servant to the
deceased and resided with the deceased at Kotla village. He further
stated that the appellant met him at Moradabad in October 2012 for
some work of the deceased. It is elicited in his cross-examination that
the brother of the appellant was also sent to Nigeria by the deceased.
He stated that all the persons including Jagdish (brother of the
appellant) who were sent to Nigeria by the deceased had some
bitterness towards the deceased as they felt that the deceased had
charged them money for their travel expenses despite the employer
company bearing their travel expenses.
20. It is further elicited from the cross-examination of PW6 that the
appellant met him at Moradabad Railway Station probably on
09/10.10.2012 and even though he had never seen him before, he was
able to locate him by calling him on his mobile number 99562-61066.
21. In the cross-examination of PW6, the appellant did not dispute that
PW6 met him at Moradabad in October 2012 or that they knew each
other or the brother of the appellant was sent to Nigeria by the
deceased or that deceased and appellant were known to each other and
that the appellant was deputed by the deceased for some work at
Moradabad. The appellant did not dispute that PW6 called him at
Mobile No.9956261066. The Hon‟ble Supreme Court in Sarwan
Singh v. State of Punjab, (2003) 1 SCC 240 held that whenever an
accused had failed to cross-examine any witness on any part of his
testimony, the same must be believed to be true unless proved
otherwise. Relevant paragraph of this judgment is reproduced below:
"9. Incidentally, in the early nineties, terrorist
activities were on a peak in the border districts of
Punjab and it has practically been an axiomatic truth
in the area in question that no one would in fact
come out of the residential houses after dusk unless
perforced at 3 o'clock in the morning. There exists
no other evidence nor even there being any
suggestion of existence of any other factor for
such perforced outing at 3 a.m. It is a rule of
essential justice that whenever the opponent has
declined to avail himself of the opportunity to put
his case in cross-examination it must follow that
the evidence tendered on that issue ought to be
accepted. A decision of the Calcutta High Court
lends support to the observation as above. [See in
this context A.E.G. Carapietv. A.Y. Derderian [AIR
1961 Cal 359] (opinion of P.B. Mukherjee, J., as he
then was).]"
22. Apart from the deposition of PW6, the father of the deceased,
Amod Kumar Singh (PW7) testified that his deceased son had returned
from South Africa on 31.10.2012 and they had a conversation on the
same day. He stated that from the next day, when he tried to call his
son, he found the phone of his son to be switched off. Being worried,
on 3.11.2012, he went to the house of the appellant where he met
Jagdish Sharma, the brother of the appellant, and upon inquiring the
whereabouts of his son, he did not provide him any information and
rather misbehaved with him. It is elicited in his cross-examination that
his son had informed him about the appellant to be a very good cook.
He denied the suggestion that the appellant was just formally
introduced to the deceased being a native of the village.
23. From the depositions of Nitin Dutta (PW6) and Amod Kumar
Singh (PW7) the Ld. ASJ found that the appellant and the deceased
were known to each other and they had stayed together in Delhi for
quite some time. This fact is also corroborated by the
scientific/technical evidence i.e. Call Detail Records („CDR‟) of the
mobile number of the appellant (82850-82350) and the deceased
(99589-60414) showing frequent communication between these
mobile numbers on the date of incident i.e. 31.10.2012. The CDR of
the said mobile number of the appellant is Ex.PW10/C and of the
deceased is Ex.PW11/C. Prior to that, a call was also made by the
deceased on 05.06.2012 to another phone No.99562-61066 of the
appellant, which was revealed by Nitin Dutta (PW6) and reflected in
the CDR (Ex.PW11/C). These call records between the appellant and
the deceased sufficiently corroborate the depositions of Nitin Dutta
(PW6) and Amod Kumar Singh (PW7) that the deceased and the
appellant were known to each other.
LAST SEEN EVIDENCE
24. It is the case of the prosecution that on 31.10.2012 at about 7.35
pm the deceased was present at the place of the incident with the
appellant. The Post-mortem report (Ex.PW16/A) opined the time of
the death of the deceased as approximately 2½ days on the date of
recovery of the dead body. Admittedly, the body was recovered on
03.11.2012 at about 1 pm which indicates that Nitin Kumar was
murdered on the intervening night of 31.10.2012/01.11.2012. It is
noticed by the Ld. ASJ from the testimony of Bhupat Prasad (PW4)
that on 31.10.2012 at about 7.35 PM when he returned from his office
he found a fair complexioned person conversing on his mobile phone
at the place of the incident and the appellant was sitting beside him.
25. In the cross-examination of PW4, it is revealed that he had seen
the deceased twice in the same evening, though, he had disclosed to
the police that he saw the deceased only once. He saw the deceased
wearing shorts and under shirt (vest). He did not hear any scream or
shout from the first floor on the night of 31.10.2012 but on the next
day he found the room of the appellant to be locked. The Ld. ASJ
found that the testimony of Bhupat Prasad (PW4) is corroborated by
the technical evidence relating to the CDRs and mobile phone
locations of the appellant and the deceased. Sh. Shishir Malhotra
(PW10), Nodal Officer, Aircel Limited proved the Consumer
Application Form (CAF) Ex.PW10/B, CDR (PW10/C) and Cell ID
Chart Ex.PW10/D of the mobile phone of the appellant (82850-
82350). Further, Vishal Gaurav (PW11), Nodal Officer, Bharti Airtel
Ltd, proved the CAF (Ex.PW11/B) and CDR and Cell ID Chart
(PW11/C) of the mobile phone of the deceased (99589-60414). The
records have the necessary certification as required under Section 65B
of the Indian Evidence Act as Ex.PW10/E and Ex.PW11/A
respectively.
26. The Ld. ASJ found from the CDRs of both the said mobile phones
that there had been communication between these mobile phones five
times on 31.10.2012. It shows that the deceased Nitin Kumar called
the accused at 9.27 am when he was at the IGI Airport and the
appellant was at Pankha Road. At the time of second call at 9.55 am
the deceased reached Uttam Nagar, whereas the recipient i.e. the
appellant remained in the same area. The deceased made the third call
to the appellant at 12.47 pm when both their locations were in East
Delhi. At the time of 4th and 5th call made by the appellant to the
deceased at 7.09 pm and 7.11 pm, both of them were in the same area
i.e. Navada/Vipin Garden, Dwarka Mor. The record further reveals
that the appellant made his last three calls at 20:43:30, 22:00:27 and
22:04:44 hours from the area in which place of incident is situated.
The deceased Nitin Kumar made his last four calls to different
numbers at 21:02:57, 21:37:24, 21:52:13 and 22:20:08 hours from the
same area. Both of the mobile phones were switched off thereafter
and not used. The appellant has not put his defence to either of the
prosecution witnesses particularly PW10, PW11, PW4 and PW29 that
he was in Gorakhpur on 31.10.2012 or that he or the deceased did not
call each other. He did not take any step to prove his plea of alibi by
examining either his wife or the Doctor who treated his wife in the
Hospital at Gorakhpur. In such a situation mere denial by the appellant
of the usage of his mobile phone No.82850-82350 is not sufficient to
rebut the case of the prosecution. Therefore, there is no illegality or
perversity in the findings of the Ld. ASJ that the appellant and the
deceased were not only known to each other but were also in regular
touch with each other and on the fateful night they stayed together at
the place of incident.
RECOVERY
27. The Ld. ASJ noticed from the depositions of HC Mahender
(PW12), Constable Amarjeet Singh (PW13) and Insp. Subhash Chand
(PW29) that on 16.11.2012 they reached village Jhangha, District
Gorakhpur (UP) and then accompanied the local police to village
Panchdevari and arrested the appellant from a place near his house
vide arrest memo PW12/D. His personal search was conducted vide
search memo Ex.PW12/E. Pursuant to the disclosure statement
(PW13/A) the appellant got recovered his two mobile phones, one
being a Chinese make and the other being a SAMSUNG make, one
purse containing two railway tickets, a card issued by the gramin bank,
one black colour bag which was found to contain one specs cover
having the inscription of Sprint, one photocopy of the passport of the
deceased (Nitin Kumar Singh) valid till 30.05.2016 issued from Patna
(Bihar), one jeans pant, one white colour t-shirt, one grey colour pant,
one shirt bearing strips and Rs.20,000/- cash in the denomination of
Rs.500/- each. These were converted into a pulanda and sealed with
the seal of SD and taken into possession vide memo Ex.PW12/F. This
recovery has been proved by the depositions of Subhash Chand
(PW29), HC Mahender (PW12) and Ct. Amarjeet Singh (PW13). The
prosecution has also examined the public witness to the recovery
proceedings, Mintu (PW14), a relative of the appellant wherein he
stated that no recovery was effected by the police. PW14 admitted that
he was present at the house of the appellant at the time the appellant
was arrested. PW14 also admitted that the seizure memo Ex.PW12/F
and Ex.PW12/J bears his signature at point-X. The father of the
deceased i.e. Amod Kumar Singh (PW7) has identified the sunglasses
and the bag belonging to his son during the TIP proceedings
Ex.PW7/C. In his deposition, PW7 has explained that his son visited
his native place in May, 2012 and remained there for about 18/19 days
and for that reason he could identify the articles during the TIP
proceedings. The Trial Court observed that since the deceased had
returned from the foreign country on the date of the incident itself, the
recovery of cash amount of Rs.20,000/- from the appellant is quite
probable. The Ld. ASJ believed the evidence of recovery of articles
from the house of the appellant to have been recovered at his instance.
From the testimony of PW4 and the CDRs, it is already established
that on the fateful night of 31.10.2012 the deceased and the appellant
were together at the place of incident and the dead body of the
deceased was found from the said premises on 03.11.2012. The place
of incident was found locked on 01.11.2012 and thereafter the dead
body was taken out after breaking the lock on 03.11.2012. The Ld.
ASJ found that as per the crime scene report (Ex.PW9/A), only a
plastic bottle and a plastic bucket were found in the room apart from
the body, and the bed sheet, pillow and mat put on it. The Ld. ASJ
noticed that other articles of the appellant i.e. utensils, television and
cylinder, etc. were removed and head of the dead body was destroyed
and dead body was hidden in a planned manner only to avoid detection
of the identity of the culprit and the victim. Since the appellant and
the deceased were together on the fateful night of 31.10.2012 and the
headless body of the deceased was found there on 03.11.2012 with the
room locked, the onus was on the appellant to furnish an explanation
u/s 106 of Evidence Act as to what happened there on the said night. It
is rightly observed by the Ld. ASJ that it is not the case that any other
person used to reside with the appellant in the said premise or any
other person had come to that place on 31.10.2012 or till the recovery
of the dead body.
MEDICAL EVIDENCE
28. The post-mortem on the body of the deceased was conducted by
Dr. B.N. Mishra (PW16) who proved the post mortem report
Ex.PW16/A. He observed that the head was sharply cut completely
from the body and missing from the trunk of the body at least at the
level of 6th cervical vertebra. The whole structure of the neck exposed
as cut ends including bonny components and surface of the plane
shows smearing of the blood admixed with putrefied secretions. There
were two-three incised wounds of size 3 cm x 0.5 cm x muscle deep to
2 cm x 1 cm x muscle deep present on the both palms, which were
classified as defence injury. He found the cause of death to be "due to
shock caused by decapitation of head by sharp edged weapons like
heavy knife etc." He observed that all the injuries were ante mortem in
nature and the manner of death was homicide.
29. The headless body was identified by Sh. Amod Kumar Singh and
Sh. Samrat Singh Mani (cousin). DNA examination conducted by FSL
report Ex.PW30/A concluded Amod Kumar Singh (PW7) and Smt.
Ahilya Devi to be the biological father and mother of the deceased
respectively.
30. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116, a three-Judge Bench of the Supreme Court, in a case of
circumstantial evidence like the present one, laid down the law as to
when in a case of circumstantial evidence charge can be said to have
been established. Five points enumerated in said case are summarised
as under:
(i) The circumstances from which the conclusion of
guilt is drawn should be fully established. The accused
must be, and not merely may be guilty, before a court
can convict and the mental distance between "may be"
and "must be" is long and divides vague conjectures
from sure conclusions;
(ii) 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;
(iii) The circumstances should be of a conclusive
nature and tendency;
(iv) They should exclude every possible hypothesis
except the one to be proved; and
(v) 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.
31. The Ld. ASJ observed that though the prosecution has not been
able to prove the motive clearly but found some clue from the
evidence on the record. It is noticed from the depositions of Nitin
Dutta (PW6) that the brother of the appellant was sent by the deceased
to Nigeria and all the persons including Jagdish (brother of the
appellant) who were sent by the deceased to Nigeria, had some
bitterness towards the deceased as they felt that all the expenses for
their travel to Nigeria were borne by the concerned company and still
the deceased had charged the money from them. The appellant has
also admitted in his statement u/s 313 Cr.P.C. that his brother Jagdish
was sent to Nigeria by the deceased and he talked to the deceased on
mobile phone when his brother was leaving Delhi for Nigeria.
However, the Ld. ASJ found that since the prosecution has established
all the ingredients of the offence on the basis of the convincing
evidence, absence of proof of motive cannot be of much importance
and the appellant still can be convicted. The Ld. ASJ has placed
reliance upon decision Tarsem Kumar Vs. The Delhi
Administration AIR 1994 SC 2585 observing that "of course, if each
of the circumstances proved on behalf of the prosecution is accepted
by the Court for the purpose of recording a finding that it was the
accused who committed the crime in question, even in absence of
proof of a motive for commission of such a crime, the accused can be
convicted."
32. In view of the circumstances, the Ld. ASJ found that it was the
appellant who had killed the deceased by severing his head with a
sharp object. Though the weapons of the offence could not be
recovered but that in itself is not going to give any benefit of doubt to
the appellant. Since the scene of crime was in exclusive occupation of
the appellant and on the fateful night it was the deceased and appellant
who were there in terms of depositions of Bhupat Prasad (PW4)
corroborated by the Call Details Record (CDR) and thereafter recovery
of the headless body of the deceased on 03.11.2012. The Ld. ASJ
found that it was only the accused, who had the opportunity and the
reason to destroy the evidence with the intention to save himself from
being identified as the perpetrator of the crime and concluded that
there remained no doubt that it is the appellant who destroyed the
evidence after committing murder of deceased Nitin Kumar.
33. After going through evidence we found that the letting out of the
room on the 1st Floor of Property i.e. A-787 has been proved by the
depositions of PW3 and PW2 and corroborated by PW1 (official of the
Cable Operator) and by the deposition of Bhupat Prasad (PW4). It is
also established from the depositions of Nitin Dutta (PW6) and Amod
Kumar (PW7) that the deceased and the appellant were known to each
other and they used to be in frequent conversation with each other. It is
also established from the deposition of Bhupat Prasad (PW4) that it
was the deceased who was seen lastly at 7.30 pm on 31.10.2012 at the
place of crime and his deposition is corroborated by the technical
scientific evidence of Call Detail Records (Ex.PW10/C &
Ex.PW11/C). Pursuant to the disclosure statement, the appellant got
recovered the sunglasses and photocopy of his passport from his
house. The headless body of the deceased was identified by his father
(PW7) and Samrat Singh Mani (cousin). DNA test of the deceased
matched with PW7 and his wife. There is consistency in the facts
established by the prosecution only with the hypothesis of the guilt of
the appellant which are conclusive in nature and the chain of evidence
is so complete so as not to leave any reasonable ground for the
conclusion consistent with the innocence of the appellant.
34. In State of W.B. v. Mir Mohammad Omar (2000) 8 SCC 382, the
Supreme Court, while interpreting the burden of extent of proof on
prosecution, observed as under:
"31. The pristine rule that the burden of proof is on
the prosecution to prove the guilt of the accused should
not be taken as a fossilised doctrine as though it admits
no process of intelligent reasoning. The doctrine of
presumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if the
traditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic
coverage, the offenders in serious offences would be
the major beneficiaries and the society would be the
casualty.
***
36. In this context we may profitably utilise the
legal principle embodied in Section 106 of the
Evidence Act which reads as follows:
„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.‟
37. The section is not intended to relieve the
prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the section
would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his
special knowledge regarding such facts, failed to offer
any explanation which might drive the court to draw a
different inference."
35. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10
SCC 681, which is a case similar in nature to the present one, the
Supreme Court has held as under:
"15. Where an offence like murder is committed in
secrecy inside a house, the initial burden to establish
the case would undoubtedly be upon the prosecution,
but the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character.
In view of Section 106 of the Evidence Act there will
be a corresponding burden on the inmates of the house
to give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away
by simply keeping quiet and offering no explanation on
the supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is no
duty at all on an accused to offer any explanation."
36. In Narendra Singh v. State of M.P. (2004) 10 SCC 699, it has
been held that even in a case where a plea of alibi is raised, the burden
of proof remains on the prosecution, and it has been further observed
that presumption of innocence is a human right.
37. In Suresh v. State of Haryana (2015) 2 SCC 227, wherein, the
court discussing the issue in para 9, observed:
"9. ... No doubt, the burden of proof is on the
prosecution and Section 106 is not meant to relieve it
of that duty but the said provision is attracted when it is
impossible or it is proportionately difficult for the
prosecution to establish facts which are strictly within
the knowledge of the accused."
38. Further, in the case of Kuldeep Singh v. State of Rajasthan (2000)
5 SCC 7, a three-Judge Bench of this Apex Court has held that:
"18. ... in a case of circumstantial evidence when the
accused offers an explanation and that explanation is
found to be untrue, then the same offers an additional
link in the chain of circumstances, to complete the
chain."
39. Similar view has been taken by the Supreme Court in Rumi Bora
Dutta v. State of Assam (2013) 7 SCC 417, wherein it has been
accepted that a false answer offered by the accused when his attention
is drawn to the circumstances, it renders a circumstance to be of
inculpating nature i.e. in such a situation a false answer can also be
counted as providing a missing link for completing the chain.
40. In Sharad Birdhichand Sarda (supra) it was also held that a false
explanation or false plea taken by the accused can be used as an
additional link in the chain of circumstantial evidence subject to
satisfaction of three essential conditions, namely, (i) various links in
the chain of evidence led by the prosecution have been satisfactorily
proved, (ii) the said circumstance points to the guilt of the accused
with reasonable definiteness, and (iii) the circumstance is in proximity
to the time and situation.
41. Earlier, in the case of Deonandan Mishra v. State of Bihar (1955)
2 SCR 570, the Supreme Court observed that:
"9. ...It is true that in a case of circumstantial evidence
not only should the various links in the chain of
evidence be clearly established, but the completed
chain must be such as to rule out a reasonable
likelihood of the innocence of the accused. But in a
case like this where the various links as stated above
have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity
to the deceased as regards time and situation, and he
offers no explanation, which if accepted, though not
proved, would afford a reasonable basis for a
conclusion on the entire case consistent with his
innocence, such absence of explanation or false
explanation would itself be an additional link which
completes the chain."
42. The plea of alibi was taken by the appellant. He made no attempt
to prove his defence and this has become an additional link in the
chain of the circumstances which unerringly point to his guilt. The
chain is so complete as not to leave any reasonable doubt for
conclusion consistent with his innocence.
43. We do not find any reason to differ from the view recorded by
the Ld. ASJ. The appeal is dismissed with no order as to costs.
(VINOD GOEL)
JUDGE
(S. MURALIDHAR)
JUDGE
SEPTEMBER 10th, 2018
"sandeep"
