State vs Om Prakash Yadav @ Prem Alam
2020 Latest Caselaw 262 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Date of Decision: 16th January, 2020
+      CRL.L.P. 48/2020

       STATE                                               ..... Petitioner
                           Through:      Ms. Aashaa Tiwari, APP for State
                                         with Inspector Pratap Singh, PS
                                         Subhash Place.

                           versus
       OM PRAKASH YADAV @ PREM ALAM                        ..... Respondent

                           Through:      Nemo
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL SANGITA DHINGRA SEHGAL, J

1. By the present Leave Petition filed under Section 378(1) of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') the State seeks leave to appeal against the judgment dated 25.09.2019 passed by Additional Sessions Judge-04, North West District, RohiniCourts, New Delhi, whereby the respondent (accused before the Trial Court) was acquitted of the offences punishable underSections393/302/411of the Indian Penal Code (hereinafter referred to as 'IPC').

2. The brief facts of the case, as stated by the learned Trial Court are reproduced as under:

"...that on receiving of DD No.12A, SI Umesh Rana along with Ct. Prakash reached the spot where Sh.

Mahadev Prasad Sahu met him and he gave his statement to the effect that he was permanent resident of VPO Kakardob, PS Loukahi, District Madhubani, Bihar and at present he was residing at G-30, 3rd floor, JJ colony, Shakurpur, Delhi as a tenant at the house of Gopal. He was working as a driver at Hisariya Transport, Lawrence Road, Delhi. His co-villager Surat Lal Sahu aged about 55-60 years used to reside at H. No. G-7, 2nd Floor, Shakurpur, Delhi and he was in the business of lending money in small amounts. He and some other persons resident of his village and his neighbouring village used to visit Surat Lal Sahu for sending money to their family members residing at their native villages. They used to give money to Surat Lal Sahu and in turn Surat Lal Sahu used to send money to their family members and their family members used to collect that amount from the native house of Surat Lal Sahu at Bihar. On 07.12.2012 at about 10pm, he received a phone call of BechanSahu S/o Surat Lal Sahu and he informed him that he is unable to contact his father on telephone and asked him to go to the house of his father to see him. He informed BechanSahu that at that time, he was at Rai Sonepat. BechanSahu telephonically contacted him number of times that night but his transport vehicle could not be unloaded in the night at Rai Sonepat as such, he returned Delhi and reached home next day morning i.e. on 08.12.2012 at about 09.30am. Thereafter, he called his landlord Gopal and then he and Gopal went to the house of Surat Lal Sahu i.e. G-7, 2nd floor, Shakurpur, Delhi. There they found a lock on gate of balcony and when they peeped through the main gate, they saw that the door of room was found bolted from outside and one pair of shoes belonging to Surat Lal Sahu were lying outside the gate of room and one mobile phone was also lying outside the gate of the room. After seeing this, landlord Gopal broke open the lock of the gate of balcony and also opened the bolt (Kundi) of the room and then they saw that Surat Lal Sahu was lying dead on the cot which

was there in the said room and one towel of red color was found tied around his neck and specs were there on his eyes. Some coins and currency notes were lying near Surat Lal Sahu. He dialed number 100. On the basis of said statement, the present case vide FIR No. 478/12, u/s. 302 IPC was registered at PS Subhash Place."

3. After completion of investigation, charge sheet was prepared under Section 392/302/411 IPC against the respondent. After hearing arguments on charge, vide order dated 21.05.2013, charge under Section 393/302/411 IPC was framed against respondent, to which the respondent pleaded not guilty and claimed trial.

4. In order to bring home the guilt of the respondent, the prosecution examined 40 witnesses in all. After completion of the prosecution evidence, statement of respondent has been recorded under Section 313 Cr.P.C., wherein he claimedhimself to be innocent and stated that nothing has been recovered at his instance. Case property has been planted upon him by the IO and he was forced by the police to sign some blank papers and printed proformas. He had not made any disclosure statement and he never led the police to any place at any point of time. He was not having any money transaction with the deceased.

5. Ms. Aashaa Tiwari, learned APP for the State contends thatthe impugned judgment dated 25.09.2019 was based on imagination, conjectures and surmises; that the view taken by the learned Trial Court is contrary to the facts of the present case and the established principle laid down by the Hon'ble Apex Court and that the prosecution had successfully proved its case against the respondents for the charged offences beyond any reasonable doubt.

6. The Ld. APP further contends that perusal of the impugned judgment reveals that the evidence; circumstantial and last seen theory coupled with recovery of case property and the scientific evidence in form of CDR and CAF, as surfaced during the trial has not been properly evaluated and appreciated and there is no contradiction in testimony of PW-40/ BholaPaswan , regarding recovery of case property at the instance of the respondent.

7. We have heard the learned APP for the State at length and carefully examined the impugned judgment alongwith the material available on record.

8. It is settled law that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the respondent. Hence it is imperative to refer to the circumstances which have been dealt by the learned Trial Court. LAST SEEN THEORY

9. The learned APP for the state has stressed on the fact that the evidence on record proves that the deceased was last seen alive with the respondent at 7:30PM on 06.12.2012. This is an important link which points towards the guilt of the respondent. The learned Trial Courtin reference to the last seen theory has held as under:

".... In order to substantiate this circumstance, the prosecution has examined Pintu Kumar Yadav as PW6 who has deposed that he used to send money to his parents and family members at his place of Bihar through deceased Surat Lal Sahu. On 06.12.2012 at

about 7:30 pm, he reached the residence of Surat Lal Sahu i.e. H. No. G-7, 2nd floor, JJ Colony, Shakarpur, Delhi and handed over Rs. 20,000/- cash to him to deliver the same to his family members at his native place. When he reached the room of the deceased Surat Lal Sahu, accused Om Prakash was already present there. After delivering Rs. 20,000/- to Surat Lal Sahu, he made call on the mobile number of BechanSahuS/o Surat Lal Sahu and BechanSahu then had a talk with Surat Lal Sahu during the said call. On 07.12.2012, he again telephonically contacted Bechan Prasad Sahu and asked him if the said amount of Rs. 20,000/- has been delivered to his family members or not to which Bechan Prasad Sahu realized that his father's mobile phone is switched off and he is unable to contact his father. On 09.12.2012, when he reached the PS, he came to know that someone had killed Surat Lal Sahu by strangulating his throat. The testimony of PW6 with regard to making call to Bechan Prasad Sahu after delivering cash of Rs. 20,000/- to deceased finds corroboration from testimony of PW7 who deposed that on 06.12.2012 at about 7:30pm, one Pintu Kumar resident of district Madhubani, Bihar telephonically informed him on his mobile number 9661932245 from his mobile number 7428963029 that he had given Rs 20,000/- to his father. He also made him talk with his father on his said mobile and his father informed him that Pintu had given Rs. 20,000 to him. PW6 was cross-examined by the ld. Defence counsel but nothing could be elicited from him to shake his creditworthiness. It has been proved on record that after 06.12.2012 deceased was nether seen alive nor contacted by any person. PW7, son of the deceased has proved that on 07.12.2012, he tried to contact his father, but he could not contact him as both of his mobile phones were found to be switched off. PW7 telephonically contacted his co- villagers Mahadev/PW5, Ramdev/PW-12, Vishnu Dev/PW13 and one Pramod who could not contact the deceased. In view of the above discussion, it has been

proved on record that deceased was last seen alive in the company of the accused Om Prakash on 06.12.2012 at about 7:30pm."

10. PW-6 in his examination-in-chief has deposed as follows:

"When I reached at the room of Surat Lal Sahu, accused Om Parkash Yadav present in the court today (correctly identified) was already present at the room of deceased Surat Lal Sahu and he introduced himself to be resident of MansapurBalwa. After delivering Rs.20,000/- to Surat Lal Sahu, I made a call on the mobile number of BechanSahu s/o Surat Lal Sahu and BechanSahu then had a talk with Surat Lal Sahu during said call. I do not remember the complete telephone number of BechanSahu.

In his cross-examination, PW-6 has deposed that:

I had visited the room of Surat Lal Sahu for the first time on 06.12.2012. Vol. He was known to me being the resident of a village near to my village. Earlier, I used to deliver money to Surat Lal Sahu for sending the same to my family members at Kalu Hotel, Lawrence Road after telephonically contacting him as he used to roam in the area of Lawrence Road."

11. PW-7 in his examination-in-chief has deposed as under:

"On 06.12.2012 at about 7.30pm, one Pintu Kumar Yadav s/o Amrender Yadav r/o Village SiswaBadahi, PS Phul Paras, District Madhubani, Bihar contacted me on my mobile bearing No. 9661932245 from his mobile number 7428963029 and informed me that he had given Rs.20,000/- to my father which my father will deposit in my account and further asked me to hand over the said amount to his family members after withdrawing the same from my account. He also made me talk with my father on his said mobile and my father informed me that Pintu had given Rs.20,000/- to him. I was driving motorcycle at that time, as such, I told my father that I

will talk to him later. After reaching home, I took dinner and thereafter, I went to sleep.

Next day i.e. on 07.12.2012, I tried to contact my father on his above mentioned two mobile phones but his both the mobile phones were found switched off, as such, I could not contact him."

12. The perusal of the testimony of PW-6 reflects that the accused was present at the room of deceased Surat Lal Sahu and he introduced himself to be resident of MansapurBalwa. The said fact finds corroboration from the testimony of PW-7 who has deposed that"he also made me talk with my father on his said mobile and my father informed me that Pintu had given Rs.20,000/- to him." Hence, from the aforesaid discussion, it is evident that the deceased was with the respondent before the commission of the crime and the contention of the appellant as to the last seen theory sustains.

RECOVERIES AT THE INSTANCE OF THE ACCUSED

13. The next contention of the learned APP for the state is related to the recovery of the Aircel SIM (Ex. 18/P1), mobile phone Nokia 1280 (Ex. 18/P2), Mobile Phone Nokia 1200 (Ex.18/P3), Samsung mobile phone 5302, cash of Rs. 15,000/- and bag (Ex.19/P1) at the instance of the accused on which,the learned APP has argued that the recoveries have been duly corroborated by the prosecution witnesses. In this regard, we deem it necessary to refer to the testimony of PW- 40 (ASI BholaPaswan) who is a witness to the recovery at the instance of the accused.PW-40 in his examination-in-chief has deposed as follows: -

"On 24.12.2012, I was posted at PS Town Chhapra, Bihar as ASI. On that day, SI M.P. Saini along with

police staff of Delhi police and accused Om Prakash Yadav came to PS Town Chhapra. I joined the investigation with SI M.P. Saini and we all went to H.No. 294-L. Village Karim Chak, where one lady namely Afreen @ NaistaParveen met us and she had produced one SIM card to SI M.P. Saini. IO prepared the pulanda of said SIM card and sealed it and thereafter seized the pulanda vide seizure memo Ex.PW18/A, bears my signature at point C. IO recorded the statement of Afreen. Thereafter, accused led us to the house of Maulvi at ImliMohalla, Karim Chak, where one lady namely AjmeriKhatoon met us who handed over one mobile phone make Nokia 1200, to the IO. IO prepared pulanda of said mobile phone, sealed the same with the seal of MPS and seized it vide seizure memo Ex.PW19/C. IO recorded the statement of AjmeriKhatoon. Thereafter, from the said house, accused Om Prakash took out one mobile phone make Nokia 1280 from a black color bag. IO checked the bag and it was found containing one mobile phone make Samsung and cash worth Rs.15,000/- and invoice of Samsung mobile phone. IO prepared the separate pulandas of said articles, sealed the pulandas with the seal of MPS and seized them vide seizure memos already Ex.PW19/A, Ex.PW19/B, Ex.PW19/D and Ex.PW19/D, all signed by me at point C. The invoice of Samsung mobile is already Ex.PW3/A. IO recorded my statement. Accused Om Parkash Yadav is present in the court today, (correctly identified). I can identify the case property if shown to me.

At this stage, MHC(M) has produced one cloth pulanda bearing particulars of present case and having court seal, same is opened and it is found containing, one plastic box which is found containing one SIM card of AIRCEL bearing No. 89912505121148192705. The SIM is shown to the witness and witness correctly identifies the same, which was handed over by Ms.Aafreen @

NaistaParveen to the IO in his presence. The same is already Ex.18/P-1."

In his cross-examination he has stated:

"From the house of Afreen, one SIM card and one black colour bag containing mobile phones, cash and invoice were recovered at the instance of accused. We had remained at the house of Afreen for about 2-2½ hours.

Court observation: It is observed that witness is not answering and responding properly to the questions raised by the defence counsel.

It is incorrect to suggest that I have no knowledge about this case or that I have not joined the investigation of this case. Four-five police officials of Delhi police had come to PS Chhapra Town. I along with said Delhi police officials left PS Chhapra Town at about 5.00 pm for going to the house of Afreen. My statement was recorded by the IO at the house of Afreen. IO had recorded the statement of other witnesses regarding the investigation conducted at the house of Afreen at Chhapra. We had visited the house of Afreen only once. We remained at the house of AjmeriKhatoon for about 15-20 minutes. Thereafter, we left for PS."

14. A perusal of the examination and cross-examination of PW-40 (ASI BholaPaswan), we are of the view that there exists material contradiction in his testimony which have been reproduced below: - S. No Examination in Chief Cross- Examination

1. Went to H.No. 294-L. Village From the house of Afreen, Karim Chak, where one lady one SIM card and one namely Afreen @ black colour bag NaistaParveen met us and she containing mobile phones, had produced one SIM card to cash and invoice were SI M.P. Saini. recovered at the instance of accused. We had remained at the house of

Afreen for about 2-2½ hours.

2. Thereafter, accused led us to We had visited the house of the house of Maulvi at Afreen only once. We ImliMohalla, Karim Chak, remained at the house of where one lady namely AjmeriKhatoon for about AjmeriKhatoon met us who 15-20 minutes. Thereafter, handed over one mobile phone we left for PS." make Nokia 1200, to the IO.

from the said house, accused Om Prakash took out one mobile phone make Nokia 1280 from a black color bag.

IO checked the bag and it was found containing one mobile phone make Samsung and cash worth Rs.15,000/- and invoice of Samsung mobile phone.

15. Hence, in terms of the above discussion, we are of the view that the recovery of the Aircel SIM (Ex. 18/P1), Mobile Phone Nokia 1280 (Ex. 18/P2), Mobile Phone Nokia 1200 (Ex.18/P3), Mobile Phone Samsung 5302, cash of Rs. 15,000/- and bag (Ex.19/P1)effected at the instance of the accused are highly doubtful and the prosecution has failed to prove the same beyond reasonable doubt.

16. It is pertinent to note that the present case is based on circumstantial evidence and therefore the chain of circumstances so formed should be unhindered, i.e. the chain of circumstances should be complete and there should be no gap in the chain of evidence. The case depends upon the conclusion drawn from circumstances and the cumulative effect of the circumstances must be such as to negate the

innocence of the accused and bring the offences home beyond any reasonable doubt.

17. We may refer to the dicta of the Apex Court in Mohd. Azad vs. State of West Bengal reported inAIR 2009 SC 1307 wherein the law related to circumstantial evidence has been extensively dealt with. The relevant portions of the Judgment are produced below: -

"9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference 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. (See Hukam Singh v. State of Rajasthan 1977 Cri LJ 639; Eradu and Ors. v. State of Hyderabad 1956 Cri LJ 559; Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State of U.P. v. Sukhbasi and Ors. 1985 Cri LJ 1479; Balwinder Singh v. State of Punjab 1987 Cri LJ 33; Ashok Kumar Chatterjee v. State of M.P. 1989CriLJ 2124. 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. In Bhagat Ram v. State of Punjab AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. 1996Cri LJ 3461, wherein it has been observed thus:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....

11. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 7, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

12. In State of U.P. v. Ashok Kumar Srivastava [1992] 1 SCR 37, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also

pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

13. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

15. In HanumantGovindNargundkar and Anr. v. State of Madhya Pradesh 1953 Cri LJ 129 wherein it was observed thus:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully

established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

16. A reference may be made to a later decision in Sharad BirdhichandSarda v. State of Maharashtra 1984CriLJ1738. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' 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.

17. These aspects were highlighted in State of Rajasthan v. Rajaram 2003 Cri LJ 3901; State of Haryana v. Jagbir Singh and Anr. 2003 Cri LJ 5054 and KusumaAnkama Rao v. State of A.P. Criminal Appeal No. 185/2005 disposed of on 7.7.2008.

18. In conclusion, even though the prosecution has been able to provethat the deceased was last seen with the respondentat 7:30 PM on 16.12.2012, but the same cannot be the sole circumstance to convict the respondent. The recoveries of the mobile phones at the instance of the respondent have been proved to be unreliable due to the inconsistent testimonies of the prosecution witnesses.Hence, the prosecution has failed to prove theindividual circumstance, let alone the chain of circumstances. Moreover, the prosecution has failed to establish a hypothesis which is consistent only with the guilt of the respondent.

19. Hence, we are of the view that there exists no illegality or perversity in the reasoning given in the impugned judgment. The learned trial court has taken a holistic view in the matter and carefully analyzed the entire evidence placed on record.

20. Accordingly, no ground to interfere with the impugned judgment is made out and the leave petition is dismissed.

SANGITA DHINGRA SEHGAL, J.

MANMOHAN, J.

JANUARY 16, 2020/afa