Delhi High Court
Kavinder And Ors. vs State (Nct Of Delhi) on 25 November, 2004
Equivalent citations: 2005CRILJ1589, 115(2004)DLT541, 2005(79)DRJ1
Author: T.S. Thakur
Bench: T.S. Thakur, J.P. Singh
JUDGMENT T.S. Thakur, J.
1. This appeal is directed against judgment and order on sentence passed by the Additional Sessions Judge, Karkardooma Courts, Delhi in Sessions Case No. 31 of 2002 whereby the appellants have been convicted of an offence punishable under Section 302 of the IPC for the murder of one Farid @ Katarva R/o Sunder Nagari, Delhi and sentenced to undergo imprisonment for life apart from payment of a fine of Rs. 2,000/- in default whereof the convicts have been sentenced to rigorous imprisonment for a further period of one year.
2. The prosecution case briefly stated is as under :-
3. Farid @ Katarva was a resident of Sunder Nagari, Delhi situate within the limits of Nandnagari Police Station. On 6th October, 2001, he is alleged to have left his house without informing anyone regarding his whereabouts. Four days later i.e. on 10th October 2001, while Farid had not yet returned home, his father Asgar Ali found a piece of paper lying outside his house with a message written on the same in Hindi, the English translation whereof reads as under :-
''Babloo had murdered Katru and thrown him in the latrine gutter 'L' Block''
4. Police Station, Nandnagari too had in the meantime received information according to which a murder was reported to have taken place in the MCD Flats. A Daily Diary entry (D.D. No. 35 B) was made on the basis of the said information and entrusted to S.I. Dharmender Kumar who reached 'L' Block, Sunder Nagari Along with Constable Sohan Pal for inquiry. There they met Asgar Ali, father of the deceased whose statement was recorded and forwarded to the police station for registration of a case. On receipt of a copy of the FIR, the investigation of the case started in the course whereof, the police seized in terms of Seizure Memo marked Ex. PW-1/B the ''chappals'' of the deceased. The police also noticed blood stains on the concrete near the grill and on the grill of the MCD Flats and lifted the samples from the same in terms of Seizure Memo marked Ex. PW-18/B. While the investigation was still in progress, information was towards the evening of 10th October, 2001 received by the police that the dead body of a boy was lying in the gutter of a latrine in 'L' Block, Sunder Nagari. Asgar Ali also appears to have handed over to the police the piece of paper with the message referred to earlier regarding Katarva's murder which was seized by the police in term of Ex. PW-1/A. Senior police officials of the Crime Branch had also in the mean time reached and were present near the gutter of 'L' Block in Sunder Nagari from where the dead body of the deceased was brought out by the police and identified by Asgar Ali as that of his son, Farid. The police got the post-mortem of the dead body conducted by the doctor and seized the clothes found on the dead body. The prosecution case further is that on 11.10.2001, SI Dharmender Kumar, Head Constable Dharamveer, Head Constable Ved Prakash and Constables Yogender and Surender went to 'L' Block, Sunder Nagari where they found 4-5 persons talking about the incident in a flat and were apprehended instantaneously for interrogation. In the course of interrogation, the police is said to have recorded the statements of the arrested persons, namely, Ravinder, Babloo, Kavinder, Rajeev and Anis. The prosecution version further is that at the instance of all the accused persons, one axe and a piece of pipe were recovered from vacant flat and seized. So also at the instance of the accused persons, the I.O. has, according to the prosecution, recovered a chain, a wrist watch and ring from a vacant MCD flat in 'L' Block, Sunder Nagari. These items were identified by Mona, mother of the deceased to be that of the deceased. The investigating officer is said to have seized the clothes of the deceased in terms of Memo marked Ex. PW-4/M pursuant to the disclosure made by the accused.
5. The post-mortem report found the following injuries on the dead body :-
''1. Incised chop wound 8.8 cms x 2.6 cms centered over right temporal area of head, 2 cms above the pinna and 14 cms from midline. The underlying right temporal bone has been out.
2. Incised wound 6 cms x 1 cm x 0.4 cms with levelling at upper end present horizontally over right side back of neck, placed 9 cms away from occipital proturance and 5 cms to the right of nape of neck.
3. Incised chop wound 5.5 cms x 0.8 cms x 2.8 cms present obliquely over left side of nose and upper lip, cutting the underlying maxillary bone.
4. Lacertated wound 5 cms x 1 cm x 1.1 cm over right frontal area of scalp, 2 cm away from midline and 5.5 cms above the supra orital ridge. The underlying right frontal bone has been fractured.
5. Reddish abrasion with extravation of blood 5 cms x 4 cms over the tip of left shoulder.
6. Reddish abrasion with extravation of blood 5 cms. X 4 cms over the back of left shoulder.
Time since death was about four days.''
6. All the above injuries were, according to the doctor, ante-mortem. The cause of death was described by the doctor in the following words :-
'' Cause of death - antemortem injury to head, produced by a heavy cutting weapon, as under injuries 1 and 3. Injury No. 2 was produced by a sharp cutting weapon. Injury No. 4 was produced by a long blunt weapon. Injury No. 5 and 6 were produced by blunt force. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Injuries No. 3 and 4 not necessarily fatal can be contributory to death.''
7. The seized axe and the iron pipe were referred to the Central Forensic Science Laboratory which submitted a report marked Ex. PW-18/P stating that human blood could not be detected on either the axe Ex-3 or the iron pipe Ex-5. The accused persons were upon completion of the investigation charged with the murder of the deceased Farid @ Katarva. Since two of the accused were juveniles, they were sent up for trial before the Juvenile Court while the remaining three, namely, the appellants in this appeal were committed to the Sessions. The accused pleaded not guilty and claimed a trial.
8. In support of its case before the court below, the prosecution examined as many as 18 witnesses. While PW-1 Asgar Ali is the father of the deceased, PW-2 Mona @ Tabasum is his mother. The rest of the witnesses all happened to be police officials associated with the investigation except PW-3, Dr. Gaurav Vinod Jain, PW-6 Saleem and PW-10 Hidayat Khan. Appreciation of the evidence so adduced before it led the trial court to the conclusion that the accused had the motive to commit the offence with which they were charged. It also found the testimony of Hidayat Khan and Saleem to be reliable and their version regarding recovery of the articles belonging to the deceased trustworthy. So also the recovery of the alleged weapons of offence and the clothes of the deceased at the instance of the accused persons were accepted by the court below and the accused appellants pronounced guilty of the commission of murder punishable under Section 302 readwith Section 34 of the IPC. By an order of sentence passed separately, the court below sentenced the appellants to undergo imprisonment for life and payment of fine as already indicated above. The present appeal assails the correctness of the said findings and order of sentence.
9. We have heard Mr. Chowdhary, learned counsel for the appellants and Mr. Chadha, learned counsel for the respondents and perused the record.
10. In the absence of any eye witness, the prosecution case rests entirely on circumstantial evidence. The approach to be adopted and the test to be applied by the court in cases based on circumstantial evidence, was examined by the Supreme Court in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh . The court in that case observed :-
''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 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. In other words, 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.''
11. The above statement of law has stood the test of time and has been reiterated in numerous subsequent decisions of the Apex Court. Reference to the decisions in Sharad Birdhichand Sarda v. State of Maharashtra and State of Haryana v. Ved Prakash should suffice.
12. Coming then to the facts of the present case. The prosecution relies upon the statements of PW-1 Asgar Ali and PW-2 Mona, the parents of the deceased to prove the existence of motive behind the alleged murder of the deceased. PW-1 Asgar Ali has, in his deposition before the trial court, inter alia stated that the deceased had, two days before he left home, informed him that he had quarreled with the chowkidars of the MCD flats and that the chowkidars had threatened to kill him. He had, on hearing this, gone to the appellants chowkidars and asked them as well as his son Farid not to quarrel with each other. In cross-examination, the witness states that he did not lodge any report about the quarrel between the deceased and the chowkidars because there was nothing serious about the said quarrel. To the same effect is statement of PW-2 Mona, the mother of the deceased. She has, in her deposition, stated that two/three days before leaving the house, Farid had told her about a quarrel that had taken place between him and the chowkidars. She also claims that she had, on hearing about the quarrel, gone to Sunder Nagri and spoken to the chowkidars and advised them as also her son not to quarrel. In cross-examination, the witness states that Sanjay Shara, Sub-inspector of police used to warn her not to send Farid in the plot otherwise he would be killed. She also admits that Farid was arrested by the police once and that she had lodged a report against ASI Sanjay Sharma. She also states that she had old the police that Babloo had threatened to kill Farid 5/6 days earlier to his leaving the house. She contradicts her statement made before the police that only Babloo had murdered her son. There is no other evidence to prove any enmity or other motive which could possibly probabalise the involvement of the appellants in the murder of the deceased. The depositions of PW-1 and PW-2 also do not give the genesis of the quarrel which is alleged to have taken place between the deceased and the appellants or anyone of them. According to PW-1 Asgar Ali, the quarrel was not reported to the police because there was nothing serious about the same. In the circumstances, we do not think a quarrel of a kind which was in the opinion of the father of the deceased minor affair, could possibly provide a strong motive for the respondents or anyone of them to commit the heinous offence of murder of the deceased. The alleged motive even if taken at its face value, is in any case weak in nature which aspect shall have to be borne in mind while appreciating and approaching the rest of the evidence adduced at the trial.
13. The prosecution next relies upon the disclosure statements made by the appellants and the recovery of the alleged weapons of offence and articles which allegedly belong to the deceased. The disclosure statements allegedly made by the accused persons are sought to be proved by reference to the deposition of PW-4 Head Constable Ved Prakash. In his deposition before the trial court, PW-4 Ved Prakash states that he had joined the investigation of the case along with Head Constable Ranbir, Constable Surinder and Constable Yogender on 12th October, 2001. Five accused persons were, according to him, taken from the lock up by the Investigating Officer and interrogated. Three out of all those interrogated, were present in the court which three obviously referred to the three appellants in this appeal as the remaining two were being separately tried by the Juvenile Court. The witness goes on to state that disclosure statement of Appellant Ravinder was recorded and is marked Ex.PW4/A that of Babloo, Kavind or, Rajiv and Anis are marked Ex. PW4/B, C and D respectively. These disclosure statements bear the signatures of the witness. The witness then says that all the accused persons led the police party to the place of occurrence in L-Block, Sunder Nagri, MD flats area and pointed out the place of occurrence. Documents described as pointing out memo and marked Ex.4/F, Ex.PW4/G, Ex.PW4/H, Ex.PW4/J and Ex.PW4/K, were prepared on the spot. The accused persons are then alleged to have got recovered the axend the pipe which were seized in terms of memo marked Ex.PW4/L and sealed. They had also got recovered from the MCD flats campus, the clothes of the deceased which too were packed and sealed in terms of memo Ex.PW4/M. The witness goes on to state that the instance of Ravinder, one ring was also recovered which was seized by the Investigating Officer in terms of memo Ex.PW4/N. This ring, according to the witness, belongs to the deceased. Similarly, accused Rajiv had got recovered one chain from the MCD flats which was also seized and sealed in terms of memo Ex.4/O. At the instance of accused appellant Anis, a wrist watch, belonging to the deceased, was also recovered from the flats and sealed in terms of memo Ex.P4/P which bears his signatures.
14. In cross-examination, the witness states that his statement under Section 161 of the Cr.P.C. had been recorded by the Investigating Officer but he had not in that statement indicated as to what was recovered at whose instance. The witness further says that he remembered everything about the case and had read the file on the date of his examination. He however is unable to recall the details of any cases investigated in the year 2001 in which he was arrayed as witness for the recovery of the articls. He further states that accused persons were brought out from the lock up at 9 a.m., but since no public witness was available, 4 Constables besides the Investigating Officer and the witness became witnesses to the disclosures made by the accused. All these witnesses had signed the seizure memos. Two other public witnesses who had met the police party at the spot, had signed the seizure memos. The witness goes on to state that the flats were lying vacant during those days and that there were about 250/300 flats in all. The axe and pipe were recovered from the lobby of the vacant flats. The rest of the articles were recovered from a distance of 50 yards from the place where the axe and pipe were recovered. The public witnesses namely Salim Khan and Hidayat Khan had met the police party near the spot by chance. Their statements were recorded at the spot. In further cross-examination, the witness says that the accused persons were interrogated separately but he does not remember whose disclosur statement was recorded first of all. All the accused persons were then taken together for getting the recoveries made. The witness further states that the place from where the clothes of the deceased were recovered is 20 paces away from the place of recovery of the pipe and axe. The seal with which the articles were sealed was returned by him after two days.
15. It was argued on behalf of the appellants that the disclosure statements recorded by the police were unreliable as no independent witness was associated with the same. It was also argued that while a police official is a competent witness and may be relied upon in a given case, the absence of any explanation for not associating independent witnesses with the recording of the disclosure statements, was sufficient to render the prosecution version regarding such disclosures doubtful. The statement of PW-4 was in any case contradictory and insufficient to firmly establish the making of the disclosure. No recovery made on the basis of such a doubtful disclosure could, therefore, be relied upon. Alternatively, it was submitted that the recoveries allegedly made at the instance of all the accused persons were no recoveries in the eye of law. Reliance was in support placed upon decisions of the Supreme Court in Satish Kumar v. State 1995(4) Crimes 305, Chander Pal v. State 1998 II AD(Cr.)Delhi 753 and Jaivir Singh (in Jail ) v. State (Delhi Admn.) 1995 Crl.L.J. 1477.
16. There is no gainsaying that a disclosure statement is an important piece of evidence especially when the same leads to the recovery of an incriminating fact or article. The Investigating Officer concerned, therefore, has to take care to associate with the process of investigation, independent witnesses to support the making of the alleged disclosure. He cannot choose the easy course of recording disclosures in the presence of members of his own team or a police stock witness. The Supreme Court has, in the decisions referred to above, emphasized the need for independent witnesses being associated with disclosure statements and recoveries and so has this court on more than one occasions. That apart the manner in which the disclosure statements are alleged to have been recorded is by itself doubtful. According to PW-4 Head Constable Ved Prakash, all the accused persons were brought out of lock up and interrogated leading to their disclosures but who was the first to make disclosure, the witness cannot recall. If the witness were to be believed each one of the persons were interrogated separately and each one of the disclosure statements recorded by the Investigating Officer before him. One could well ask that if the first disclosure statement had already disclosed the place where the axe and the iron pipe allegedly used for committing the crime was kept, where was the room for any other accused to make any disclosure of the said fact. Recording of any subsequent disclosure would therefore be a wasteful effort. The fact that all the accused persons were taken together in a gypsy and driven to the MCD flats where all of them together pointed out the place where the axe and pipe jointly recovered, is not only doubtful but legally inadmissible. The question whether a joint recovery can be made and if so, whether the same is admissible in law was examined by their lordships in Chander Pal v. State 1998 II AD(Cr.)Delhi 753 . Rejecting the contention that such a recovery can also be used as an incriminating evidence against the accused persons. the court observed:-
''Perusal of Ex.PW-4/G suggests that Chander Pal son of Janki Prashad and accused Kishan Lal son of Shanker Lal under police custody, voluntarily went ahead and after removing the earth from a pit by their own hands, took out and produced the clothes i.e. pant and bushirt of white colour stated to be that of deceased Nand Kishore. It is clearly suggested that both the accused persons voluntarily went ahead, removed the earth from a pit by their own hands took out and produced the clothes. (xxx xx). There is no manner of doubt that Ex. PW4/G clearly indicates that both accused together reached the place, removed the earth from the pit jointly by their own hands and both took out and produced the clothes. It is as clear as anything from memos Ex.PW/4D and Ex.PW-4/G that the recovery of piece of muffler and the clothes are nothing but by both the accused jointly and from this it can not be said as to which of the accused produced which article and, therefore, the recoveries of muffler an clothes vide either of these memos cannot be regarded legal and admissible in law, as contemplated under Section 27 of the Indian Evidence Act.''
17. In the present case, the recovery marked Ex.PW4/L relating to the alleged weapons of offence, the axe and pipe, is said to have been made at the instance of all the five accused persons together. Such a recovery is, in the light of the above pronouncement of the Supreme Court, worthless in the the eye of law and hence can not be pressed into service against the accused leave alone made a basis for finding them guilty of a capital offence. This is true even about the alleged recovery of the clothes of the deceased in terms of Ex.PW4/M, which recovery is also made at the instance of all the accused persons jointly.
18. The only other circumstance which the prosecution has relied upon, is the recovery of the articles belonging to the deceased from the alleged possession of the appellants. The prosecution version in this regard is that a golden ring, was recovered at the instance of accused Ravinder from the MCD Flats in his possession. Similarly, a golden chain was recovered from the same flats at the instance of accused Rajiv, a golden wrist watch was similarly got recovered by appellant Anis which were then seized in terms of memo Ex.PW4/N, 4/O and 4/P respectively. It is argued by Mr. Chadha, counsel appearing for the respondents that so far as these recoveries are concerned, the same were made individually by each one of the three appellants and did not suffer from any illegality attached to joint recoveries and that the recoveries were, in any case, supported by the depositions of independent witnesses namely PW-6,Saleem and PW-10,Hidayat Khan.
19. PW-6 Saleem has, in his deposition before the trial court, stated that on 12th October, 2001, the police came with the accused persons, who were five in number, out of whom three were present in the court at the time of his deposition. He further states that he was asked to accompany them to the DDA flats. The accused had told the police that the axe and the pipe were lying in the flats which were then taken out by the police. The accused thereafter led them to the other room from where they got recovered one chain, one ring and one wrist watch which were seized by the police in terms of memos signed by him.
20. In cross-examination the witness admits that there are three cases pending against him and that police had met him by chance on the date of recoveries. He further states that PW-10 Hidayat Khan was already with the police and so was Asgar Ali and his wife. He states that the case property was sealed in the Police Station in his presence. In cross-examination he states that he went to Police Station separately as the police had asked him to reach there. The accused were brought together and were kept together by the police. He left the Police Station at around 12.15 p.m.
21. PW-10 Hidayat Khan has in his deposition before the court below stated that he and Saleem were standing near a park when a gypsy came there with five persons sitting inside the vehicle along with the police. The police joined them with the investigation and took them to the flats and got recovered one axe and one pipe from the chajja (sunshade) of the flat. The accused were given 2/3 slaps and thereafter they took us to a room and got recovered one ring, one chain and one wrist watch from their room. All these articles were identified by the witness. The witness then says that they left the police and the articles recovered were sealed at the Police Station.
22. In cross-examination, the witness states that did not know Asgar Ali but had heard about his name. He further states that one case under Section 25/54/59 Arms Act is pending against him in which Sub-inspector Sanjay had arrested him in proceedings under Section 107/151 Cr.P.C. on two occasions. While in one other case he has been acquitted and there is one other case still pending. He knows Sub-inspector Sanjay Kumar, SHO Mohd. Iqbal and Head Constable Dharamveer. He had to pay the fare of Rs. 5 7 to the rickshaw driver. He has known Saleem from the date he met him near the spot. There were people going to and fro near the spot but no one was asked to join the raiding party. The chowkidars used to reside in the said flats. All the doors were not locked with lock but with wire. No writing work was done by the police at the spot. The room where the accused took the party was not locked but was bolted from outside.
23. Two important features are evident from the reading of the above two depositions. The first is that the two witnesses cannot be said to be as independent as they are sought to be projected by the prosecution. There are criminal cases pending against both of them. It appears that they are known to the police officials who were conducting the investigation. The second aspect is that the recoveries were all made from a single room where the accused were, according to the prosecution residing. It is difficult to see how such a recovery made together at the instance of the accused persons even though relating to different items attributed to each one of them can either inspire confidence or be relied upon. The prosecution wishes the court to believe that the ring, the chain and the wrist watch were all kept by the accused persons in an open almirah and presented one by one to the Investigating Officer. That version does not, however, inspire confidence especially when the witnesses, who support the same are themselves involved in criminal cases.
24. The net effect therefore is that neither the disclosures nor the recoveries made on the basis thereof, are either credible or otherwise legally admissible. The result is that the most important feature of the prosecution case collapses on closer scrutiny.
25. Apart from what is discussed above, there are a few other serious deficiencies that were pointed out to us by the counsel for the appellants. The first and the foremost is that the alleged weapons of offence were not shown to the doctor who conducted the post-mortem to elicit his opinion that the injuries found on the body of the deceased could be inflicted with the said weapons. The prosecution has not been able to explain or get over this deficiency. The Supreme Court has in Ishwar Singh v. The State of Uttar Pradesh dealt with a similar situation and held that the failure of the prosecution to connect the alleged weapon of offence with the injuries that caused the death, was a serious discrepancy in the prosecution case. The court observed:
''It is the duty of the prosecution, and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.''
26. In the light of the above, the discrepancy pointed out does assume significance especially when the recovery of the alleged weapons of offence by itself is doubtful for the reasons stated by us earlier.
27. The second and an equally significant aspect which Mr. Chowdhary pointed out, was the failure of the Investigating Officer to seal the alleged weapons of offence on the spot. Relying upon the decision of the Supreme Court in Amarjit Singh v. State of Punjab IV (1993) CCR 486 (SC), it was argued that failure on the part of the Investigating Officer to seal the alleged weapons of offence on the spot is a discrepancy which renders the prosecution case doubtful. There is no evidence to prove that the alleged weapons of offence namely the axe and the pipe were sealed on the spot. The evidence on the contrary is that the sealing was done in the police station. The argument advanced by the defense counsel cannot, therefore, be said to be far-fetched or blushed aside lightly.
28. The third significant deficiency pointed out in the prosecution story is that the alleged weapons of offence were seized from an open place in an uninhabited area where flats were no doubt built but the same were not yet occupied by anybody. Recoveries made from a spot which was open and accessible to any one, were indeed meaningless as held by the Supreme Court in Akhilesh Hajam v. State of Bihar 1995 (2) CCC 122 (SC). The court in that case observed:-
''As regards the seizure of blood stained iron angle on the basis of disclosure statement said to have been made by the appellant the same is also not free from doubt. According to the prosecution the appellant made the disclosure statement that he had kept the iron angle in the room concealed beneath the fuel wood which was used as a weapon of offence but according to the statement of PW 6 the witness of disclosure and seizure of the alleged iron angle the same was not found concealed beneath the fuel wood in the room but the iron angle was found in the varandan which is an open and accessible place. Such a seizure from an open and accessible place can hardly be said to be a recovery on the basis of disclosure statement. It is therefore difficult to accept that the seizure of iron angle was on the basis of the disclosure statement made by the appellant. Even if the iron angle would have been recovered from a concealed place them also on the basis of this circumstances of recovery alone in the absence of any report of Serologist as to the presence of human blood on the same the conviction of the appellant could not be founded.''
29. Last but not the least is the fact that the alleged weapons of offence did not have any blood stains on them leave alone of human origin. Evidentiary value of such a recovery was, therefore, considerably reduced. ( See 'Ravinder Parkash and Anr. v. State of Haryana 2002 IVAD (Cr.) SC265')
30. Suffice it to say that the prosecution case is, for the reasons stated by us in the foregoing paragraphs, rendered highly doubtful. While it is true that there may be a strong suspicion suggesting the involvement of the appellants in the crime, suspicion howsoever strong is not enough to justify a conviction. (See 'State (Delhi Administration) v. Gulzarilal Tandon and Sarwan Singh Rattan Singh v. State of Punjab ). There indeed is a long distance between the prosecution case 'may be true' and 'must be true' which must be traversed by cogent and reliable evidence. That evidence, in our opinion, is not forthcoming in the instant case. We, therefore, are inclined to give to the appellants the benefit of doubt and acquit them of the charges framed against them.
31. The appeal accordingly succeeds and is hereby allowed. The impugned judgment and order on sentence passed by the trial court are set aside and the accused acquitted of the charges framed against them.