Delhi High Court
Amit Anand vs State (N.C.T Of Delhi) on 5 August, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 1st June, 2022
Pronounced on: 5th August, 2022
+ CRL.A. 657/2019
AMIT ANAND ..... Appellant
Represented by: Mr. Biswajit Kumar Patra, Advocate.
versus
STATE (N.C.T OF DELHI) ..... Respondent
Represented by: Ms. Asha Tiwari, APP for the State.
JUDGMENT
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MS. JUSTICE MINI PUSHKARNA
MINI PUSHKARNA, J.
1. The present appeal is directed against the judgment dated
08.02.2019 and order on sentence dated 08.02.2019 passed by learned
ASJ-05 (North, Rohini, Delhi) in Sessions Case No. 58036/2016,
CNR No. DLNT01-001067-2012, arising out of FIR No. 299/2012
under Section 302 IPC and 25/24/59 Arms Act, registered at Police
Station Shahbad Dairy. The appellant has been convicted for offence
punishable under Section 302 IPC and Section 25 Arms Act and
awarded sentence of imprisonment for life and a fine in the sum of
Rs.1000/-. In default of payment of fine, he has been directed to
undergo Simple Imprisonment for one month. The appellant has
further been sentenced to Rigorous Imprisonment for three years and a
fine of Rs.1000/- under Section 25 of the Arms Act. In default of
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payment of fine, the appellant has been directed to undergo Simple
Imprisonment for one month. All the sentences were directed to run
concurrently by the Sessions Court.
2. In nutshell case of the prosecution before the learned trial court
was that the appellant Amit Anand, deceased Raj Kumar and Ritender
Singh (PW-3) used to do business of tehbazari on the pavement near
Udyog Bhawan, Maulana Azad Road, Delhi. Deceased Raj Kumar
prospered and left the work of tehbazari and started running a taxi. On
26.08.2012 at about 9:00 pm, appellant and Raj Kumar (deceased)
gathered in a room on the ground floor of the house No. N-77, Rajiv
Nagar Extension, Begumpur, Delhi which belonged to Ritender Singh,
and started drinking. Soon an argument started between appellant and
Raj Kumar in which Raj Kumar asked the appellant as to what he had
achieved in his life and that the appellant was still on the pavement,
whereas he (i.e. deceased Raj Kumar) was running a taxi. An
altercation ensued, however, Ritender Singh intervened and separated
both of them. Thereafter, Ritender Singh came to his room and started
watching T.V., whereas appellant went to the first floor of the house
to take food, which was served by Smt. Geeta (PW-2), wife of
Ritender Singh. After sometime at about 10:30 pm, Ritender Singh
and his wife Geeta heard noise of falling of some object. Appellant
shouted "Raju Raju". Thereafter, Ritender Singh heard a shriek.
Ritender Singh and Smt. Geeta came out of their room and they found
that Raj Kumar was lying on floor and appellant was running outside
the house. Ritender Singh caught the appellant and somehow
convinced appellant not to worry and that they would take Raj Kumar
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to a private hospital. On being convinced, appellant along with
Ritender Singh and Smt. Geeta took Raj Kumar to BSA Hospital,
Rohini in Ritender Singh‟s car. There Ritender Singh handed over
appellant to H.C. Ram Parvesh who was on the duty in the hospital.
Doctors declared Raj Kumar dead.
3. On the statement of Ritender Singh, Ex. PW-3/A, the FIR was
registered. After investigation, charge sheet was filed in the court of
learned Metropolitan Magistrate, who committed the case to Sessions
Court. After hearing arguments, a charge for offence punishable under
Section 302 IPC was framed. A separate charge under Sections 25/27
Arms Act was also framed against the appellant. He pleaded not guilty
and claimed trial.
4. The prosecution examined 19 witnesses to prove the charges.
The learned Trial Court after appreciating the evidence on record
convicted and sentenced the appellant as stated hereinabove. Hence
the present appeal on behalf of the appellant/convict.
5. Mr. Biswajit Kumar Patra, learned Counsel appearing on behalf
of the appellant through Delhi High Court Legal Services Committee,
vehemently submitted that the Trial Court had committed gross error
in convicting the appellant. According to him there was no eye
witness who has seen appellant committing the alleged crime. Perusal
of deposition of Ritender Singh suggests that the appellant did not
have any altercation with the deceased, which proves that there was
absence of mens rea on the part of the appellant for the alleged
commission of offence. He pointed to the cross examination of
Ritender Singh wherein he has categorically deposed that when he
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saw the appellant immediately after the incident, his hands and clothes
were not stained with blood. Appellant Amit Anand was crying
"Dekho Dekho Koi Idhar Ko Gaya Hai". He also referred to
deposition of Geeta, wherein she has deposed that there was no blood
stain on the hands and clothes of the appellant when she saw him after
coming out of her house because of the alarm raised by the appellant.
Learned Counsel for the appellant contended that there were about 7
stab injuries sustained by the deceased on both front and back side of
the body. Thus, the fact that no blood stains were found on the hands
and clothes of the appellant immediately after the incident, as deposed
by both PW-2 and PW-3, clearly pointed to the innocence of the
appellant. PW-2 and PW-3 reached the spot of incident on the alarm
raised by the appellant i.e. bhaga bhaga as well as sound of something
falling down, which means that the appellant had raised the alarm
immediately on finding some person trying to kill the deceased, who
ran away from the spot after committing the crime. Further, appellant
did not try to run away, but he accompanied PW-2 and PW-3 to the
hospital. Also, the recovery of the alleged weapon of offence i.e.
knife, stated to be on the disclosure statement of the appellant from
the bushes in the vacant plot near to the place of the incident, is not
reliable and trustworthy. The prosecution has not taken the finger
prints from the said knife to compare the same with that of the
appellant so as to connect the appellant with the crime. Further, the
FSL Report does not prove that the blood recovered from the knife
matched with the blood of the deceased. He further referred to the
scaled site plan, Ex. 12/A to show that as per the site plan, the knife
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was recovered from point „H‟ in the bushes and appellant was caught
by Ritender Singh, at point „G‟. The appellant had raised alarm
immediately and thus, there was no occasion for the appellant to run
and hide the knife.
6. On the other hand on behalf of the State, learned APP relied
upon the evidence as led by the prosecution. She relied upon the
deposition of PW-2 & 3 to establish circumstantial evidence against
the appellant. She further relied upon the deposition of PW-8, Dr.
Kuldeep Singh, PW-9, Dr. Vijay Dhankar, recovery of knife, sketch -
Ex. PW-18/J and opinion regarding weapon of offence, Ex. PW-9/B.
She further made reference to FSL Report dated 17.04.2013, Ex.PX-4.
She also relied upon deposition of PW-10 H.C. Naresh Kumar. She
thus submitted that on the basis of the prosecution evidence, including
both oral and scientific, the case against the appellant has been proved
beyond reasonable doubt.
7. We have considered the submissions of learned Counsels and
perused the record.
8. In order to prove the guilt of the appellant, the prosecution case
has been built upon circumstantial evidence. The principle laid down
by Hon‟ble Supreme Court, while dealing with the cases based upon
circumstantial evidence, is that circumstances must form a chain of
events, from which the only irresistible conclusion about the guilt of
the accused can be safely drawn and no other hypothesis against the
guilt is possible.
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9. Ritender Singh deposed to the effect that when he came outside
after hearing the noise of something falling down, at that time the
hands and clothes of appellant were not stained with blood.
10. To similar effect is the deposition of Geeta, wife of Ritender
Singh, who during the course of her cross examination on 12.01.2015
stated that when she saw appellant after coming outside her room
upon hearing the alarm raised by him, he was not having his hands
and clothes stained with blood.
11. The aforesaid fact assumes significance in view of deposition of
PW-9, Dr. Vijay Dhankar, Specialist and HOD, Forensic Medicine,
BSA Hospital, Delhi. He deposed that he conducted postmortem on
the body of the deceased on 27.08.2012. On examination 7 external
injuries (all incised stab wounds) were found on the body. On internal
examination, injuries corresponding to the external injuries were
found in the body. The injuries found on the body of the deceased, as
per deposition of PW-9 are as follows:
"... On examination 7 external injuries (all incised stab wounds) were
found on the body. On internal examination, injuries corresponding to
the external injuries were found in the body. Extravasation of blood
was found in the neck, about 2 litres of fluid and clotted blood present
in the right side of chest and about 100cc of fluid clotted blood was
present in the abdomen. All internal organs were pale."
12. As per the prosecution, one weapon of offence which was
allegedly recovered at the instance of the appellant, was used. Thus,
the assailant took out the same weapon of offence from the body of
deceased and inflicted the subsequent injuries. Considering the nature
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of injuries caused, it is highly unlikely that the appellant got no blood
stains on his hands and clothes, if he was the one who had caused stab
injuries to the deceased.
13. It has also come on record during the course of cross
examination of PW-2 that the appellant did not try to run away, but
accompanied PW-2 and PW-3 to the hospital. PW-2 deposed that the
appellant lifted the deceased along with her and PW-3 to take him to
the emergency ward in the hospital. PW-3 also deposed during his
cross examination that the appellant never tried to run away from the
hospital. The appellant was present in the hospital when deceased was
being treated by the doctors. Police reached the hospital after about
half an hour since the admission of the deceased. Thus, the appellant
was having sufficient time and opportunities to flee from the hospital.
14. Another important factor to be considered is that the presence of
appellant is recorded in the MLC, Ex. PW-8/A, as one of the persons
who brought the deceased along with Ritender Singh and Geeta.
Further the MLC does not note that PW-2 & PW-3 stated that the stab
wounds on the deceased had been caused by the appellant. Rather,
PW-8, Dr. Kuldeep Singh, OSD, Director General Health Services,
Karkardooma, Delhi deposed during his cross examination that the
persons who brought Raj Kumar to the hospital did not tell as to who
stabbed Raj Kumar.
15. As regards the alleged recovery of weapon of offence i.e. the
knife, important fact for consideration is that there are no independent
witnesses to the said recovery of knife. Recovery Memo of knife, Ex.
PW-18/K, does not bear signatures of PW-2 & 3. The police did not
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join PW-2 & PW-3 in effecting recovery of the knife, though the plot,
from which the knife was recovered, was situated just in front of the
house of PW-2 & 3. Thus, recovery of the knife by the police at the
instance of appellant, thus does not inspire confidence.
16. There is yet another important aspect. As per the prosecution
case, the appellant after inflicting severe incised wound went outside
the house to a vacant plot opposite, where he hid the knife in the
bushes and came back to the residence of Ritender Singh where the
deceased had fallen down. This version of the prosecution is
improbable on two counts. Firstly, the timeline given by Ritender
Singh and Geeta in view of their deposition that on hearing something
fall they immediately came running out from their room and saw the
appellant standing there, does not permit enough time to the appellant
to go to the vacant plot, hide the knife and walk back. Secondly, the
conduct of the appellant in coming back to the place of occurrence
after being able to run away is not commensurate to the guilt of the
appellant.
17. Then again, the FSL Report Ex. PX/4 simply showed that blood
was detected on the allegedly recovered knife, which was mentioned
as Ex.9 in the FSL Report. Blood Group could not be detected on the
said knife, but it has been opined that the blood was of human origin.
The FSL Report does not prove that the blood recovered from the
knife matched with the blood of the deceased.
18. Then again, recovery of clothes stained with human blood from
the appellant cannot be regarded as an incriminating evidence against
him, especially in view of deposition of PW-2 and PW-3 wherein they
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have categorically deposed that there were no blood stains on the
hands and clothes of the appellant when they saw him immediately
after coming out of their room upon hearing the noise and the alarm
raised by the appellant. There is every likelihood that the appellant got
blood stains on his clothes at the time of lifting the accused while
taking him to hospital along with PW-2 and PW-3.
19. Another point for consideration is the deposition of PW-2 & 3
wherein they stated that they reached the spot of incident on the alarm
raised by the appellant, as well as sound of something falling down.
The appellant has raised the alarm "Bhaga Bhaga" and "Dekho Dekho
Koi Idhar Ko Gaya Hai". This fact that the appellant had raised an
alarm on finding some person trying to kill the deceased, who ran
away from the spot after committing the crime, was stated by the
appellant in response to question 7 and 11 of statement of accused
recorded under Section 313 Cr.P.C. Questions 7 and 11 and response
of the appellant under Section 313 Cr.P.C. are reproduced as below:
"Q7. It is in evidence against you in the testimony of PW3
that he told the police that only you were present near
deceased Raj Kumar @ Raju, when he immediately came
outside after hearing the sound of falling. Hence he had a
suspicion over you. His statement was recorded as
Ex.PW3/A. What have you to say?
Ans. It is incorrect. PW2 and PW3 are very well having the
knowledge of this fact that two persons, after having
stabbed injured Raj Kumar (since deceased) fled away
from the spot. Even I tried to catch both of them but all in
vain. I with the help of PW2 and PW3 got injured Raj
Kumar (since deceased) admitted in the hospital. In this
process, myself, PW2 and PW3 got blood stains on our
clothes respectively."
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......
Q11. It is in evidence against you in the testimony of PW6
Ct.Tilak Ram and PW18 SI Sukhi Ram that on 27.8.2012
on receipt of DD No.4A by PW18 about admission of
injured Raj Kumar in BSA Hospital with stab injury and
doctor declared Raj Kumar dead and the person, who
stabbed Raj Kumar, is in custody of ASI Jai Bhagwan.
They went to BSA Hospital, where ASI Jai Bhagwan
handed over your custody to IO/PW18. PW18 collected
MLC of deceased Raj Kumar. What have you to say?
Ans. It is incorrect. The persons/ suspects, who stabbed
injured Raj Kumar (since deceased) had already fled away
from the spot. I have been falsely implicated in this case."
20. The fact of running away of some person from the place of
incident was also put to PW-2 during her cross-examination, wherein
she deposed, "It is wrong to suggest that I am deposing falsely to the
effect that accused Amit Anand told me that he chased one person who
ran away from our house." However, involvement of some third
person in the commission of crime has not been investigated.
21. The prosecution has failed to prove the motive. Thus, the
learned Trial Court has rightly given a categorical finding in the
impugned judgment dated 08.02.2019 that the motive for committing
the offence in question could not be proved.
22. Hon‟ble Supreme Court has held in catena of judgments that
where the evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should be fully
established, and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. In the case of Sharad
Birdichand Sarda vs. State of Maharashtra, reported as (1984) 4 SCC
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116, Hon‟ble Supreme Court has laid down five golden principles to
convict a person in case of circumstantial evidence. Hon‟ble Supreme
Court held as follows:
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned „must or should‟ and not „may
be‟ established. There is not only a grammatical but a
legal distinction between „may be proved‟ and "must be or
should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra where the
following observations were made: [SCC para 19, p. 807:
SCC(Cri) p. 1047]
Certainly, it is a primary principle that 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.
(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
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show that in all human probability the act must have been
done by the accused."
23. In the present case, the prosecution has not been able to fully
establish the circumstances which are fully consistent with the guilt of
the accused and inconsistent with his innocence. In our view, there are
serious gaping holes in the story of the prosecution, as noted above.
There are material discrepancies which go to the root of the case. The
circumstances relied upon by the prosecution, do not fully establish
the involvement of the appellant.
24. In view of the aforesaid discussion, this Court is of the
considered view that the appellant is entitled to the benefit of doubt.
Accordingly, the appellant is acquitted. He shall be released forthwith,
unless he is required to be detained in any other case.
25. A copy of this judgment be communicated to the Jail
Superintendent forthwith for taking necessary action, updation of
record and communication to the appellant.
(MINI PUSHKARNA)
JUDGE
(MUKTA GUPTA)
JUDGE
AUGUST 5, 2022
au/PB
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