Delhi High Court
Nirmal @ Lucky vs State on 14 September, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: August 20, 2018
% Judgment delivered on: September 14, 2018
+ CRL. A. 107/2016
1. NIRMAL @ LUCKY ....Appellant
Through: Mr. Sumeet Verma with Ms. Preeti
Jakhar, Advocates.
Versus
STATE ....Respondent
Through: Ms. Kusum Dhalla, APP with Ms.
Preeti, Advocate
Inspector Devendra Singh, PS
Nangloi.
+ CRL. A. 856/2015
2. SHAHID AHMED ....Appellant
Through: Mr. Sumeet Verma with Ms. Preeti
Jakhar, Advocates.
Versus
STATE ....Respondent
Through: Ms. Kusum Dhalla, APP with Ms.
Preeti, Advocate
Inspector Devendra Singh, PS
Nangloi.
CRL.As. 107/2016 & 856/15 Page 1 of 16
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGEMENT
14.09.2018
I.S.Mehta, J.
1. The Appellant Nirmal @ Lucky and Shahid Ahmed have preferred
two separate appeals i.e. Crl. A. 107/2016 & Crl. A. 856/2015 respectively
under Section 374(2) Read with Section 482 Cr.P.C., against the common
judgment and order on sentence dated 19.02.2015 and 23.03.2015
respectively by which both the Appellants have been convicted under
Section 302/34 IPC and were sentenced to life imprisonment and a fine of
Rs. 5,000/- each and in default of payment of fine to further undergo six
months imprisonment.
2. Brief facts stated are that a PCR call vide DD No. 7A dated
24.01.2011 was received at the Police Station Nangloi, Delhi. As per the
PCR call a dead body of male was found lying in front of House No. C-
550, Camp 2, Nangloi, Delhi. On receiving the said call ASI Shiv Narayan
alongwith Ct. Ashok reached to the spot and thereafter Inspector Ramphal
Singh too reached the spot. They found the dead body of Rakesh S/o Shyam.
The father of the deceased Rakesh was also present at the spot and his
statement was recorded vide Ex.PW3/A :
PW3 stated in his said statement that he is residing at C-109, Camp 2,
Nangloi, Delhi and runs a stall of biri-Cigarettes in front of Lokesh Cinema.
He is having five children. Rakesh @ Anda 24 years old was his eldest son
and he too worked at that stall with him. The deceased Rakesh @ Anda had
fallen in bad company. He started taking intoxicating substances, he also
used to steal money from the stall and Rakesh did not pay any heed to his
advices and on inquiry about the expenditure, he used to tell him that
Accused Nirmal @ Lucky has taken money from him and that Nirmal will
return the same. However, the money was not returned despite many
reminders to him. PW3 stated that on the previous night, he told Rakesh in
frustration that he will not get any money from him until he recovers the
money which was given to Nirmal by Rakesh. On this, Rakesh got annoyed
and left the house at 11:00 PM and told PW3 that he will recover the money
from Nirmal on the same night itself. Rakesh did not return to home that
night. In the morning at about 6:00 AM, one Anu, a distant relative told him
that Rakesh is lying dead in the street near dispensary. He visited the spot
alongwith Anu and saw the dead body of Rakesh lying in the street adjacent
to the dispensary, and was having a cut on his throat. At that time, one of his
nephew Sunil (PW2) informed him that he saw Rakesh in the company of
Nirmal @ Lucky at about 11:30 PM on the previous night on the street in
the corner of the dispensary, where both were arguing with each other. PW3
stated that he suspects involvement of Nirmal in committing murder of his
son.
3. On the basis of the said statement, FIR No. 20/11 was registered.
Investigation was undertaken. In the evening, on the basis of secret
information, the accused Nirmal was apprehended, interrogated and then
was arrested. Nirmal's disclosure statement was recorded and in pursuance
to his disclosure statement a blood stained dagger with cover Ex.P-2 was
recovered from underneath the railway track stones towards Bahadurgarh
site from Nangloi station. In furtherance to the disclosure statement Nirmal
led the police party to house No. C-234/235, Camp 2, Nangloi, Delhi and
got recovered his clothes- including black pants, green shirt and one track
suit upper jacket and maroon coloured vest having blood stains Ex.P-5. The
search of the pant revealed a blood stained surgical blade Ex.P-3. He then
led the police party to the house of the co-accused Shahid, but he was not
available there. However, he was apprehended on the next day from his
house and was interrogated and then arrested and his disclosure statement
was got recorded. In pursuance to his disclosure statement, his blood stained
clothes and shoes were recovered. Accused also identified the place of
occurrence of the incident.
4. After completion of the investigation, Chargesheet under Section
302/34 IPC was filed to which they pleaded not guilty.
5. Argument on charge was heard and charges under Section 302/34
were framed qua both the Appellant/accused on 25.04.2012.
6. The prosecution in order to prove its case has examined 19 witnesses.
Of these, Sh. Sunil (PW2), Sh. Shyam (PW3), Sh. Anu (PW4), Smt.
Pushplata (PW6), and Sh. Chhatar Singh (PW7) were the independent
witnesses. The remaining were the police/ formal witnesses. Thereafter, the
statement of both Appellant/accused was recorded under Section 313
Cr.P.C. on 19.09.2014.
7. After conclusion of arguments, the Trial Court vide judgment dated
19.02.2015 and order on sentence dated 23.03.2015 convicted both the
Appellant under Section 302/34 IPC. Hence, the present appeals.
8. The submission of Mr. Sumeet Verma, learned counsel for the
appellants, firstly, is that the present is a case based on circumstantial
evidence. Thus, it was essential for the prosecution to conclusively prove all
the circumstances and also to establish that the said circumstances form a
complete chain which leads to the only conclusion of the appellants guilty in
the commission of the crime. He submits that the prosecution has failed in
this respect.
9. Mr. Sumeet Verma submits that the prosecution's theory of
"last seen" is not proved, as statement of Sunil (PW2) was that he had seen
the deceased in company of A-1 on a busy road i.e. a public place at about
11:30 PM - 11:45 PM on 24.01.2011, whereas the time of death of the
deceased was estimated to be around 02:30 AM on 24.01.2011 (The post
mortem was conducted at 02:30 PM on 24.01.2011 and time since death was
stated to be 12 hours vide Ex. PW5/A). As such, seeing the deceased at a
public place with A-1, and that too nearly 3 hours before his death, does not
establish the last seen theory of the prosecution. He submits that in State of
Goa v. Sanjay Thakran, 2007 (3) SCALE 740, the time lag of 2 ½ hours
between the last seen together, and the time of death was held to be
sufficient to discard the evidence.
10. Mr. Verma submits that Sunil (PW2) also stated that he saw the
deceased moving on the road with A-1 where a marriage procession was
going on that road. When the baraat reached there, PW2 left the place.
Hence, the possibility of the deceased going with some other person, and of
some other person being the assailant, cannot be ruled out. He places
reliance on Deepak Chadha v. State, 2012 (1) JCC 540 and Sanjay
Thakran (supra).
11. Mr. Verma submits that unless the incriminating circumstance of last
seen together is established, the onus of proof by resort to Section 106 of
the Evidence Act, cannot be shifted upon the accused to explain as to how
and when he parted with the company of the deceased.
12. Mr. Verma submits that PW3, father of the deceased, who was the
maker of the FIR had repeatedly deposed that on 23.01.2011, his deceased
son left home at about 11:00 PM saying that he would quarrel with Kariya,
as Kariya had beaten him up and at that time the deceased was in a fit of
anger. He points out that during his cross examination by the learned APP
for the State, had clarified that the police did not record his statement when
he told them about Kariya. For this reason, there is no mention of Kariya in
the FIR. Mr. Verma further points out that PW19, the I.O. acknowledged
that the father of the deceased i.e., PW3 moved an application in the police
station, mentioning the names of six suspected persons for killing of his son.
There is no explanation by the prosecution as to why investigation was not
undertaken into the said allegations of PW3.
13. Mr. Verma also submits that the recovery of blood stained weapons
and clothes at the instance of the accused persons, by themselves, are
insufficient to sustain the charge of murder against the accused. In this
reliance is placed on Deepak Chadha (supra) and Prabhoo V. State of U.P.,
AIR 1963 SC 1113.
14. On the other hand, learned Assistant Public Prosecutor, Ms. Kusum
Dhalla has submitted that the deceased Rakesh was lastly seen in the
company of Nirmal (A-1) at Aggarwal Chowk on the road near Lokesh
Cinema by Sunil (PW2).
15. She has further submitted that weapon of offence i.e. blood stained
dagger, blood stained surgical blade and blood stained clothes recovered
from the accused were sent to the FSL, Rohini, Delhi. The FSL reports
Ex.PX, Ex.PY and Ex.PZ also show that blood of the deceased was found on
the weapon of offence and clothes which connects A-1 to the crime.
16. Ms. Dhalla further submits that in pursuance to disclosure statement
of A-1, Shahid (A-2) was arrested on the next day i.e. 25.01.2011 vide arrest
memo Ex.PW13/A. She submits that on his interrogation, A-2 has made
disclosure and in pursuance to the disclosure statement, he got recovered
blood stained pair of shoes and blood stained clothes Ex.P-6 and same were
also sent to the FSL, Rohini.
17. Ms. Dhalla further submits that the present case is based on
circumstantial evidence; prosecution has examined 19 witnesses and proved
that the deceased was lastly seen in the company of A-1 on the intervening
night of 23.01.2011 and 24.01.2011, soon before his death. The FSL reports
Ex.PX, Ex.PY and Ex.PZ connect the accused persons to the crime and
prosecution has proved its case beyond reasonable doubt. Thus, the court
below has rightly convicted both the accused persons.
18. A-1 further submits that the seal of Inspector Ramphal Singh i.e. 'RP'
was not handed over to the keeper of the seal and that the recoveries are
planted.
19. We have given our thoughtful consideration to the matter in the light
of the respective submissions and the evidence brought on record. Instant is
a case based on circumstantial evidence. The Supreme Court has
consistently laid down that when the case rests squarely on circumstantial
evidence, the inferences of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. The circumstances
from which an inference as to the guilt of the accused is drawn, have to be
proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances. Where the case depends upon the conclusion drawn from the
circumstances, the cumulative effect of the circumstances must be such as to
negate the innocence of the accused and bring home the offences beyond
any reasonable doubt.
20. The Supreme Court, in Gagan Kanojia v. State of Punjab, (2006) 13
SCC 516, observed :
" 1) There must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be
such as to show that within all human probability the act
must have been done by the accused.
2) Circumstantial evidence can be reasonably made the
basis of an accused person's conviction if it is of such
character that it is wholly inconsistent with the innocence of
the accused and is consistent only with his guilt.
3) There should be no missing links but it is not that every
one of the links must appear on the surface of the evidence,
since some of these links may only be inferred from the
proven facts.
4) On the availability of two inferences, the one in favour
of the accused must be accepted.
5) It cannot be said that prosecution must meet any and
every hypothesis put forward by the accused however far-
fetched and fanciful it might be. Nor does it mean that
prosecution evidence must be rejected on the slightest doubt
because the law permits rejection if the doubt is reasonable
and not otherwise."
21. In Satpal v. State of Haryana, (2018) 6 SCC 610, the Supreme Court
opined:
"4. To sustain a conviction on basis of circumstantial
evidence, it was necessary that all links in the chain of
circumstances must be complete leading to the only
hypothesis for guilt of the accused. If there were any
missing link in the chain of circumstances and the
possibility of innocence cannot be ruled out, the benefit of
doubt must be given by acquittal."
Material Contradiction
22. The Prosecution has examined Shyam (PW3), father of the deceased,
who stated that on 23.01.2011 his deceased son Rakesh @ Anda left the
home by telling him that he is going to attend marriage of his Masi
(Shyam's sister in law) and he came back at around 11:00 PM. He told him
that one Kariya who is also a resident of Camp 2, Nangloi has beaten him.
Thereafter, Rakesh left his house. He alongwith his other son Gaurav chased
the deceased but they did not find him. On the next day at about 4:00 AM
his nephew Anu (PW4) told him that Rakesh has been murdered and the
dead body is lying in front of his house. Meanwhile, someone informed the
police and police came at the spot.
23. PW3 was cross examined by the Learned APP with the permission of
the court and he has admitted that police had recorded his statement as
Ex.PW3/A which bears his signature. He further admitted that on
23.01.2011 at about 11:00 PM his deceased son Rakesh left home in a fit of
anger and said that he will return only after recovering money from the
accused No.1 Nirmal. PW3 further clarified that both his statements, first-
that Rakesh had gone to attend marriage of PW3's Sister-in-law and,
second- that deceased had gone to take money from Nirmal @ Lucky are
correct, and he had denied the suggestion that deceased Rakesh did not
come back to his house at 11:00 PM.
24. The statement of PW3 is a rukka Ex.PW3/A which is the basis of
registration of FIR No. 20/11 which is Ex.PW1/A. The statement of PW3
to the effect that the deceased Rakesh came back to his house i.e. C-109,
Camp 2, Nangloi at 11:00 PM after attending the marriage of his Masi and
his narration of the deceased being beaten by one Kariya, and leaving the
house in intoxicated condition at about 11:00 PM is not consistent with the
prosecution version as stated in FIR.
25. PW3 during cross examination has clarified that the suspect Kariya
was present in the police station on 24.01.2011 at about 10:00 AM. The
factum of PW3's suspicion on Kariya's hand in the murder of his son
Rakesh is further strengthened by the statement of the I.O. Inspector
Ramphal Singh (PW19), where he admitted that PW3 had moved an
application disclosing the name of 6 suspects in murder of his son. The said
admission is reproduced as under:
"It is correct that father of the deceased Shyam Sonkar
moved an application in the Police Station mentioning the
names of six suspected persons for the killing of his son."
The aforesaid application is not part of investigation which gives rise to the
doubts of the possible involvement of others in the crime, and also raises
doubt with regard to the involvement of the accused.
Last seen theory
26. The doctrine of last seen comes into play where the time-gap between
the point of time when the accused and the deceased were last seen alive
together, and the point when the deceased died is so small that the
possibility of any person, other than the accused, being the author of the
crime becomes absolutely impossible. In that situation, such a circumstance
would lead to show that the crime was committed only by the accused and
no one else.
27. In the instant case Sunil (PW2) has seen the deceased in the company
of the accused on 23.01.2011 at about 11:30 PM on the Road at Aggarwal
Chowk near Lokesh Cinema, where a marriage procession was going on and
they were arguing and talking to each other. As per the Post Mortem Report
Ex.PW5/A the deceased died at around 2:30 AM on 24.01.2011. The time
gap in between is about 3 hours.
28. Admittedly, the road was a public place, where a marriage procession
was going on at that relevant point of time. It is possible that accused might
have left the company of the deceased on that road, and deceased might
have further gone in company of some other person. Inference cannot be
drawn against A-1 of his being the perpetrator of the crime, only on the basis
that he was seen on the road i.e. public place, in the company of the
deceased, and that too three hours before his death. Here, paragraph 16 in
Deepak Chadha v. State (supra) is relevant. The Supreme Court observed:
"16. In the decision reported as 2007 (3)SCALE 740 State of
Goa vs. Sanjay Thakarn & Anr., Supreme Court had
categorically held that where the place of last-seen and the
place where the dead body is found are at a distance or if
place was the same, but there was a considerable time lag
between when the accused and the deceased were last seen at
the place and when the deceased was found dead, the
evidence of last seen in both circumstances would lose its
incriminating character if the place was a public place for
the reason in both circumstances the possibility of somebody
else being the assailant could not be ruled out"
As such, it cannot be concluded that Rakesh remained in the company
of A-1 till his being fatally injured. The last seen evidence, in our view is not
strong enough to be considered as incriminating.
Recoveries
Recovery at the instance of Nirmal @ Lucky (A-1)
29. I.O. Inspector Ramphal Singh (PW19) has stated that on 24.01.2011
after conducting the post mortem, the dead body of Rakesh @ Anda was
handed over to the relatives of the deceased. The sealed pulanda having
viscera and other case property was handed over to the I.O. and was seized
vide seizure memo Ex.PW9/A with the seal of 'RP' and the said case
property was deposited in the Malkhana. Thereafter, Inspector Ramphal
Singh (PW19) searched for the accused A-1 and he received a secret
information and on the basis of that secret information he constituted a team
of ASI Shiv Narayan (PW18) and Ct. Ashok (PW9) and himself and
apprehended the accused Nirmal @ Lucky near Rajdhani park Metro
station. He conducted his personal search vide personal search memo
Ex.PW19/C. Nirmal (A-1) made disclosure statement vide Ex.PW9/D.
Accused A-1 in pursuance to his disclosure statement got recovered weapon
of offence i.e. blood stained dagger Ex.P.2 from underneath the Railway
station track stones towards Bahadurgarh, Nangloi Station. Same was seized
vide seizure memo Ex.PW9/F with the seal of 'RP'. Thereafter, Accused A-1
in pursuance to his disclosure statement led them to his open house, house
number C-234/235, Camp 2, Nangloi, Delhi which is situated in a very
thickly populated area and mother of the accused was already present there.
He got recovered blood stained clothes i.e. black pant, green shirt and one
track suit upper jacket and maroon colour banyan Ex.P.5(colly) and out of
the one black colour pant, one blood stained surgical blade Ex.P.3 was found
and same were seized vide seizure memo Ex.PW9/G. Inspector Ramphal
Singh (PW19) sealed clothes and surgical blade in two separate pullanda
with the seal of 'RP' and same was seized vide seizure memo Ex.PW9/H.
30. The aforesaid alleged recoveries do not inspire confidence in the light
of A-1's accusations that the same were planted. A-1 has taken the following
cogent grounds in support of his said submission:
i. It is an admitted fact emerging on record that incident had taken
place on intervening night of 23.01.2011 and 24.01.2011.
ii. It is an undisputed fact emerging on record that dead body of
deceased Rakesh was found in front of C-550, Camp 2,
Nangloi, Delhi as shown in scale site plan Ex.PW16/A at about
6:37 AM on 24.01.2011 vide Ex.PW10/A. No members of the
said house were interrogated during the investigation.
iii. It is further placed on record that A-1 was arrested on the same
day vide Arrest Memo Ex.PW9/B at about 8:10 PM from near
Rajdhani Park Metro Station.
iv. It is further coming of record that post mortem of the dead body
of deceased Rakesh was conducted at 2:30 PM vide Post
Mortem Report Ex.PW5/A on that same day.
v. The post mortem report shows that the cloth, blood gauze,
viscera were preserved and sealed with a sample seal of 'SGMH
Mortuary' and was handed over to I.O. Inspector Ramphal
Singh (PW19).
vi. It is further coming on record that the blood found at the spot of
the dead body of deceased Rakesh was lifted and seized vide
Seizure Memo Ex.PW18/A and was sealed with the seal of
'RP'.
vii. As per Ct. Ashok (PW9) all the seized articles were deposited
with the Malkhana. However, the Malkhana register
Ex.PW17/A does not show which articles were deposited at
what time. The articles i.e. Blood seized from the spot in the
morning Ex.PW18/A should have been deposited with the
Malkhana first, to exclude any possibility of tampering or
planting of the blood. The Malkhana register indicates that the
blood stained dagger Ex.P.2 and the blood stained clothes
Ex.P.5 and blood stained surgical blade Ex.P.3 which were
seized vide Ex.PW9/F and Ex.PW9/H respectively were
deposited first in Malkhana, and blood lifted from the spot was
deposited with the Malkhana subsequently.
viii. At the most, it could be inferred that all the articles seized from
the spot, and at the instance of A-1, and was deposited with
Malkhana simultaneously- which means that I.O. Inspector
Ramphal Singh (PW19) throughout the day was in the physical
possession of the blood lifted from the spot.
31. The authenticity of seizure of the weapon of offence i.e. blood stained
dagger and surgical blade, and the blood stained clothes from A-1 by the
I.O. Inspector Ramphal Singh (PW19) with his seal of 'RP' could only be
established through ocular statement, or the deposit of the seal with the
Malkhana. In the instant case, prosecution has not led any ocular statement
to the effect that seal 'RP' after seizing of the articles was handed over either
to the team members, or was deposited with Malkhana. Further, learned
public prosecutor during chief examination of PW19 has not declared him
hostile, on this point. Therefore, the very sanctity of seizure of the aforesaid
articles with seal of 'RP' remains unestablished on the part of the
prosecution. Consequentially FSL Report Ex.PX, Ex.PY and Ex.PZ loses its
significance qua A-1.
Recovery at the instance of Shahid (A-2)
32. In pursuance to the disclosure statement of A-1 , Shahid (A-2) got
arrested on 25.01.2011 and at his instance the recovery of blood stained
shoes and the blood stained dirty clothes were seized.
33. A-2 was apprehended from his house. During interrogation he made
his disclosure statement Ex.PW13/C in pursuance to his disclosure A-2 got
arrested vide Arrest Memo Ex.PW13/A and his personal search was
conducted vide personal search memo Ex.PW13/B and his Disclosure
statement Ex.PW13/C was recorded and recovery of his shoes and Pant vide
Ex.PW13/D was done. Same was deposited with Malkhana and was sent to
FSL, Rohini. FSL report is Ex.PX, Ex.PY and Ex.PZ does not connect with
the blood group of deceased i.e. 'B Group' .
Conclusion
34. As discussed above, none of the circumstances inspire confidence to
show that the crime was committed by the accused persons. The appellants
have raised sufficient doubt on the case of the prosecution. As such, we set
aside both the judgment and order on sentence dated 19.02.2015 and
23.03.2015 respectively and acquit both the appellants A-1 and A-2.
35. The appeal is accordingly allowed, with no orders as to costs. Unless
wanted in any other case, both the appellant-accused shall be released
forthwith. They will comply with the requirement of Section 437A Cr.P.C
by furnishing a bond to the satisfaction of the trial court for the amount as
may be determined by the Trial Court. Fine amount, if deposited as per the
impugned Judgment and order, be refunded to the Appellants.
36. The trial court record be sent back together with a certified copy of
this judgment in each of the cases, one copy of this judgment be placed on
CRL. A. 856/2015.
I.S.MEHTA
(JUDGE)
VIPIN SANGHI
SEPTEMBER 14, 2018 (JUDGE)
