Delhi District Court
Nathuni Yadav vs State Of Bihar, [1998 (9) Scc 238] on 9 February, 2010
1 IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI Sessions Case No.191/06 FIR no.974/05 PS: Sultanpuri U/s: 302/34 IPC State Versus Mahesh @ Kalia, S/o Suba, R/o Vill. Chholi Baliya, PS Sursa, Distt. Hardoi. ... Accused Date of Institution: 18.11.2005 Date of Decision : 9.2.2010 JUDGMENT
1. Anil was residing at Begumpur, Delhi for the last 15 years prior to date of incident. Anil used to ply rickshaw. Anil on 23.6.2005 had left his residence with rickshaw at about 5.30 pm but he did not turn up in the night. Shiv Pal Singh on 24.6.2005 at about 9.30 am saw crowd towards the house of Chunni Lal and reached there. Shiv Pal Singh found a naked dead body of a male which was lying on bricks. Shiv Pal Singh informed the PCR. Anil and Deepak on 24.6.2005 at about 9 am were going to their work place and at about 9 am reached near Indraprastha School where they also saw a naked dead body lying in the water and over the body, bricks were lying. They also noticed one cycle rickshaw, on which Devi Bhai Rickshaw Wala was written, was also lying near the dead body. Police came at the spot. They informed 2 the police that they knew the owner of the garage namely Devi Bhai and went to the garage of Devi Bhai to make inquiry. They came to know that the said rickshaw was given on rent to Anil. Thereafter Deepak and Anil went to the house of Anil where they met with his wife and informed her about the lying of a dead body near I.P. School. Savita, wife of Anil also reached at the spot and identified the dead body as of her husband namely Anil (hereinafter referred to as "deceased").
2. HC Fauzdar being Duty Officer posted at PS Sultanpuri received a PCR call about the lying of a dead body near I.P. School which was reduced into writing vide DD no.25-B and handed over to SI Satyapal for investigation. SI Satyapal Singh along with Ct. Nar Singh went to the spot where the dead body was lying. Inspector Mir Singh along with Ct. Sunil Dutt also reached at the spot. Inspector Mir Singh (herein after referred to as "Investigating Officer") recorded statement of Sunita, wife of deceased. Rukka was prepared and sent through Ct. Sunil Dutt to the Police Station for registration of FIR. FIR bearing no.976/05 u/s 302 was registered. Crime Team was called, photographs of spot and dead body were taken and exhibits were collected by the Investigating Officer. Site plan was prepared. The dead body was sent to mortuary, Sanjay Gandhi Memorial Hospital. Investigating Officer on 25.6.2005 also interrogated Devender @ Devi Bhai owner of Devi Garage .
3. Vijay used to ply rickshaw after taking on rent from Davender @ 3 Devi. The deceased was known to Vijay. Vijay also knew Mahesh and Bablu. Vijay on 23/24.6.2005 at about 11/11.30 pm was coming towards Pooth Kalan in his rickshaw after dropping a passenger at Kanjhawala Road and when he reached near CNG Petrol Pump then he saw Mahesh and Bablu were quarreling with the deceased. Vijay stopped his rickshaw for a while and then left from that place. On next day, when Vijay went to the garage of Devender @ Devi for the payment of rent then he informed about the presence of Mahesh and Bablu and the deceased opposite CNG Camp, Karala Road and also that they were quarreling with each other. Vijay also informed the said fact to the police on 26.6.2005.
4. Mahesh was also taking rickshaw on rent from Davender @ Devi for the last 2 ½ years prior to date of incident. Mahesh had disappeared with rickshaw given on rent about 12-13 days prior to 6.7.2005. On 6.7.2005 Mahesh and Bablu came to the garage of Davender @ Devi who made inquiries about the disappearance of Mahesh along with rickshaw. Mahesh disclosed to Davender @ Devi that in the intervening night of 23/24.6.2005, deceased in drunken condition came to the shop of pethewala situated at Kanjhawala Road where Mahesh used to stay in the night with rickshaw and started to abuse sister of Mahesh. Mahesh further disclosed to Davender @ Devi that the deceased was sent back by the Mahesh and Bablu but he again came and thereafter Mahesh and Bablu had taken the deceased towards Begumpur village in the rickshaw of Anil where they committed 4 murder of deceased by giving brick blows. They also removed the clothes worn by the deceased at that time and reduced into ashes and also put bricks on dead body of the deceased.
5. Davender @ Devi informed the police about the presence of Mahesh and Bablu in his garage. Investigating Officer along with Ct. Sunil Dutt reached at garage of Devender @ Devi where they interrogated Mahesh and Bablu and arrested Mahesh (hereinafter referred to as "accused") and Bablu. Their respective disclosure statements were also recorded. The accused Mahesh and Bablu led the police party to the place of occurrence, the place where they burnt the clothes of the deceased and the place where they thrown the ashes of the clothes and chappals of the deceased. The pointing out memos were prepared. The accused also led the police party at the pethewala shop and from the place situated near the said shop got recovered one T-shirt and one pant which was stated to be worn by him at the time of commission of offence. The Investigating Officer during investigation got prepared the scaled site plan, got opinion of the doctor about the brick stated to be used as a weapon of offence and seized from the spot, sent the exhibits collected during the investigation to CFSL, Kolkotta and FSL, Delhi for examination. The accused after completion of investigation was charge sheeted for the offence punishable u/s 302/34 IPC. Bablu was sent to the Juvenile Justice Board as he was found to be juvenile at the time of commission of offence. The charge sheet was submitted in the court of concerned Metropolitan Magistrate.
56. The accused was supplied copies of charge sheet along with annexed documents in compliance with Section 207 Cr.P.C. The court of concerned Metropolitan Magistrate vide order dated 9.11.2005 committed the case to the Court of Sessions which was assigned to this court for trial in accordance with law.
7. The charge for the offence punishable u/s 302/34 IPC was framed against the accused vide order dated 7.5.2007 to which he pleaded not guilty and claimed trial.
8. The prosecution examined Shiv Pal Singh as PW-1; Anil as PW-
2; HC Fauzdar Singh as PW-3; HC Tejpal Singh as PW-4; Inspector Subhash Chand as PW-5; Savita as PW-6; Deepak as PW-7; Hemant as PW-8; Ct. Dalbir Singh as PW-9; Ct. Sunil Dutt as PW-10; Vijay as PW-11; Ct. Rajvir Singh as PW-12; HC Virender as PW-13; Ct. Nar Singh as PW-14; Dr. V.K. Jha as PW-15; SI Manohar Lal, Draftsman as PW-16; Devender Kumar @ Devi as PW-17; Dr. Manoj Dhingra, MOIC, Sanjay Gandhi Memorial Hospital as PW-18; Ct. Surender Singh as PW- 19; Inspector Satyapal Singh as PW-20; Inspector Meer Singh as PW- 21; and HC Mahender Singh as PW-22.
PW-1 Shiv Pal Singh on 24.6.2005 at about 9/9.30 am informed the police about lying of dead body of the deceased. PW2 Anil and PW- 7 Deepak also reached at the spot where dead body of the deceased was lying and went to the house of the deceased and informed the wife 6 of the deceased PW-6 Savita. PW-3 HC Fauzdar Singh recorded the FIR bearing no.974/05 on the basis of rukka produced by PW-10 Ct. Sunil Dutt and made endorsement on the rukka. PW-3 also recorded DD no.25B and 19A. PW-4 HC Tejpal Singh also reached at the spot after receipt of the message from Control Room about the lying of dead body. PW-5 Inspector Subhash Singh and PW-9 Ct. Dalbir Singh being the member of Mobile Crime Team reached at the spot where PW-5 Inspector Subhash Chand prepared the report. PW-9 Ct. Dalbir Singh took the photographs on the pointing out of Investigating Officer. PW-6 Savita, wife of the deceased after being informed about the lying of dead body near I.P. School reached at the spot where she identified the dead body as of her husband and also made statement to the Investigating Officer. PW-8 Hemant identified the dead body of the deceased at Sanjay Gandhi Memorial Hospital on 26.6.2005. PW-10 Ct. Sunil Dutt went to the spot near I.P. School along with PW-21 Inspector Meer Singh after receipt of information regarding lying of a dead body. PW-10 also participated in the investigation conducted on 26.6.2005 and 6.7.2005 and was present along with Investigating Officer at the time of arrest of the accused and Bablu. PW-11 Vijay had seen the accused, deceased and Bablu together while they were quarreling with each other at the opposite side of CNG Camp, Village Pooth Kalan on 24.6.2005 at about 11/11.30 pm. PW-12 Ct. Rajvir Singh recorded the message about the lying of a dead body. PW-13 HC Virender delivered the copy of FIR to the concerned Metropolitan Magistrate and Senior Police Officials. PW-20 Inspector Satyapal Singh and PW-14 Ct. Nar Singh 7 after receipt of DD no.25B went to the spot i.e near I.P. School, A Block, Rajeev Nagar where they found a dead body was lying. PW-15 Dr. V.K. Jha conducted the post mortem on the dead body of the deceased. PW16 SI Manohar Lal, draftsman prepared the scaled site plan on the instructions of Investigating Officer. PW-17 Davender Kumar stated to be the witness of extra judicial confession made by the accused and Bablu on 6.7.2005. PW-18 Dr. Manoj Dhingra gave the opinion on the brick stated to be used as weapon in committing the murder of the deceased. PW-19 Ct. Surender Singh deposited the case property to CFSL, Kolkotta for analysis. PW-21 Inspector Meer Singh being the Investigating Officer conducted the investigation and submitted the charge sheet. PW-22 HC Mahender Singh being the MHC(M) was entrusted with the case property.
9. The prosecution proved copy of FIR as ExPW 3/A; endorsement made on rukka by PW-3 HC Fauzdar Singh as ExPW 3/B; copy of DD no.25B as ExPW 3/C; copy of DD no.19A as ExPW 3/D; inspection report prepared by PW-5 Inspector Subhash Chand as ExPW 5/A; statement of PW-6 Savita as ExPW 6/A; statement of PW-8 Hemant regarding identification of dead body as ExPW 8/A; photographs of the spot as ExPW 9/1 to ExPW 9/12 and negatives as ExPW 9/13 to ExPW 9/24; photocopy of diary maintained by PW- Davender owner of Devi Garage as ExPW 10/A; seizure memo of diary as ExPW 10/B; arrest and personal search memos of accused Mahesh as ExPW 10/C and ExPW 10/D; disclosure statement of accused Mahesh as ExPW 10/F;
8pointing out memos as ExPW 10/G, ExPW 10/H and ExPW 10/J; seizure memo of T-shirt and pant as ExPW 10/K; photocopy of PCR Form as ExPW 12/A; seizure memo of blood sample of deceased as ExPW 14/A; post mortem report as ExPW 15/A; scaled site plan of the spot as ExPW 16/A; photographs depicting rickshaw as ExPW 17/A to ExPW 17/D; pointing out memos as ExPW 17/E and ExPW 17/F; opinion of PW-18 Dr. Manoj Dhingra about brick as ExPW 18/A; photographs ExPW 20/A, ExPW 20/C and ExPW 20/D; seizure memos of brick and rickshaw as ExPW 20/D and ExPW 20/E; site plan as ExPW 20/F; rukka as ExPW 21/A; inquest papers as ExPW 21/B; application for conduction of Post Mortem as ExPW 21/C; death report as ExPW 21/D; brief facts as ExPW 21/E; statement of Triloki Nath as ExPW 21/F; PCR Form ExPW 21/G; FSL Reports as ExPW 21/H and ExPW 21/J; photocopies of register no.19 as ExPW 22/A to ExPW 22/E; photocopy of RC as ExPW 22/F; photocopy of receipt letter from CFSL, Calcatta as ExPW 22/G. The prosecution evidence was closed vide order dated 22.1.2010. PWs also identified exhibits collected during investigation as Ex.P1 to Ex.P5.
10. Statement of accused u/s 313 Cr.P.C. was recorded vide order dated 1.2.2010 wherein accused pleaded innocence and denied the incriminating evidence. The accused stated that on 26.6.2005 he was with Raju Gupta owner of Petha Shop who was admitted in Brahm Shakti hospital; and was implicated in the case. The accused preferred not to lead defence evidence.
911. Shri Atul Kumar Gupta, CPP for the State and Ms. Sadhna Bhatia, Advocate/Amicus Curie for the accused heard. Record perused.
12. In the adversarial system adopted by India, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence. There is no burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt, as to his guilt.
13. Section 300 IPC deals with murder. It reads as under :--
300. Murder :---
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as 10 aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:--
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
14. Section 302 IPC deals with punishment for murder. It reads as under :--
302. Punishment for Murder :--
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.11
15. There was no eye witness to the occurrence and entire prosecution rest on the circumstantial evidence. A fact in issue can be proved either by direct evidence or circumstantial evidence. Direct evidence means any fact which without the intervention of any other fact proves the existence of a fact in issue. In very few cases direct evidence of facts is available. criminals lay their plot in secret. They execute it ruthlessly under the cover of darkness or secrecy. They silence their victim altogether and do not leave any trail of evidence behind. In such cases the main event will have to be reconstructed before the court with the help of the surrounding circumstances such as the cause or the effects of the event. Circumstances sometimes speak as forcefully as does the direct evidence.
CIRCUMSTANTIAL EVIDENCE
16. The conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence. 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. 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 closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances the cumulative effect of the circumstances must be such as to negative the 12 innocence of the accused and bring the offences home beyond any reasonable doubt.
17. The Evidence Act does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of 'proved' does not draw any distinction between circumstantial and other evidence. Thus, circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in holding that the accused has committed the crime.
18. In Hanumant Govind Nargundkar and Anr. V State of Madhya Pradesh, AIR 1952 SC 343 it was observed as under :
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 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 13 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.
19. A reference may be made to a later decision in Sharad Birdhichand Sards V State of Maharashtra, AIR1984SC1622. While dealing with circumstantial evidence, it was 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 :
i) 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;
ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
iii)the circumstances should be of a conclusive nature and tendency;
iv)they should exclude every possible hypothesis except the one to be proved; and
v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
20. The proposition of law was highlighted in State of Rajasthan V 14 Rajaram, 2003 (3) JCC 1372 : (2003 (8) SCC 180), State of Haryana V Jagbir Singh and Anr., 2003 (11) SCC 261; Shiraji @ Dadya Shankar Alhat V State of Maharashtra, 2008 (4) RCR (Criminal) 202; and Kusuma Ankamarao V State of A.P., 2008 (3) JCC 2092; Tipparam V State of Andhra Pradesh, 2009 (3) AICLR 289; Babuddin V State; Crl. Appeal No. 225/2001 decided on 21.7.2009 by the High Court of Delhi.
21. The question needs consideration is, what does the expression 'proved beyond reasonable doubt' in case rest on circumstantial evidence signify. Does it mean that the prosecution is required to prove its case with hundred percent certainty? It was observed in Lal Singh V State of Gujarat, AIR 2001 SC 746 as under :--
"The learned Sr.Counsel Mr.Sushil Kumar submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred percent certainty is myth".
22. The Evidence Act does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of 'proved' does not draw any distinction between circumstantial and other evidence. Thus, 15 circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in holding that the accused has committed the crime.
23. The CPP argued that the deceased was killed by the accused and the Bablu (since facing trial in the Juvenile Justice Board) in a secluded place where no eye witness was available and entire prosecution's case resting upon the circumstantial evidence; the prosecution by appropriate evidence has proved the guilt of the accused to the exclusion of any other person being the author of the crime; PW11 Vijay has lastly seen the accused and Bablu (since facing trial in Juvenile Justice Board) while they were quarreling with the deceased and the PW-11 was known to the deceased as well as accused and the Bablu (since facing trial in Juvenile Justice Board) and thereafter the deceased was found dead at place near I.P. School; the accused has also made extra judicial confession to PW-17 which is admissible in law and can be the basis of conviction of the accused. The CPP has also relied upon the various pointing out memos prepared at the instance of accused and Bablu (since facing trial in Juvenile Justice Board).
The defence counsel argued at length. The defence counsel argued that the prosecution has failed to prove its case beyond reasonable doubts so as to indicate the accused being author of the crime by excluding the possibility of involvement of any other person 16 being the author of crime; the prosecution has also failed to prove motive of the offence; the testimony of PW-11 Vijay being a witness of last seen is not reliable; and the extra judicial confession as reflecting from the testimony of PW-17 cannot be relied upon. The defence counsel further argued that there are material contradiction in the respective testimonies of PWs raising substantial doubts, as such, the accused be acquitted.
MOTIVE
24. In case of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear, it is immaterial that no motive has been proved. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
1725. It was observed in case State of U.P. V Babu Ram, 2000 (11) AD 285 as under :--
Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law.
In this context we would reiterate what this court has said about the value of motive evidence and the consequences of prosecution failing to prove it, in Nathuni Yadav Vs State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh V Jeet Singh, [1998 (4 SCC 370)]. Following passage can be quoted from the latter decision:
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to 18 impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.
26. The defence counsel argued that the prosecution has failed to establish the motive of the accused in committing the offence. The accused was arrested on 6.7.2007 along with Bablu (since facing trial before Juvenile Justice Board) from the garage of PW-17 Davender @ Devi. The accused was interrogated by PW-21 Investigating Officer who recorded the disclosure statement ExPW 10/F. The disclosure statement ExPW 10/F is perused wherein the accused stated that the deceased was in the habit of consuming liquor and was also a drug addict; the accused used to sleep in the night at the shop of Pathewala where the deceased used to come and many times abused the accused; the deceased on 23.6.2005 came to the shop of pethewala and started to abuse the accused. The accused further stated that thereafter the accused and Bablu had taken him in the rickshaw of the accused and committed his murder near CNG pump at Kanjhawala Road, Begumpur. The disclosure statement ExPW 10/F made by the accused is not admissible in law as same is made in the police custody.
27. The disclosure statement Ex.PW 10/F made by the accused reflects that the accused along with Bablu (since facing trial before juvenile justice board) has committed the murder of the deceased as the deceased was abusing them regularly and also causing other problems.
19Except the disclosure statement Ex.PW 10/F, there is no any other evidence which can establish the motive on the part of the accused and Bablu and the said disclosure statement is not admissible. The prosecution has failed to prove the motive of the case.
LAST SEEN THEORY
28. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. It was held in the case of State of U.P. V Satish, AIR 2005 SC 1000(1) as under :
The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
29. This legal proposition was reiterated in cases Ramreddy Rajesh Khanna Reddy & Ar. V State of Andhra Pradesh, 2006 (4)JT 20 16; Shivaji @ Dadya Shankar Alhat V State of Maharashtra, 2008 (4) RCR (Criminal) 2002.
30. The prosecution to prove that the accused and Bablu were seen together with the deceased in the intervening night of 23/24.6.2005 at about 11/11.30 pm examined PW-11 Vijay. PW-11 was also a rickshaw puller and used to take rickshaw on hire from PW-17 Devender @ Devi. The testimony of PW-11 reflects that on 23.6.2005 at about 11/11.30 pm he was coming towards Pooth village in rickshaw after dropping a passenger at Kanjhawala Road and when he reached near CNG Pump and on the opposite side of CNG Pump, he had seen the accused, Bablu and deceased while they were quarreling each other. PW-11 deposed that accused, Bablu and deceased were known to each other and to him also. PW-11 had stopped the rickshaw for a while and thereafter he had left the place. PW-11 further deposed that on next day, he went to the garage of PW-17 Devender @ Devi to pay the rent of the rickshaw and told him about the presence of accused, Bablu and deceased at 11.30 pm on 23.6.2005 opposite CNG Pump, Kanjhawala Road. PW-11 also deposed that he has informed PW17 that they were quarreling with each other. PW-11 Vijay further deposed that on 26.6.2005 he was present at Devi Garage where the police officials from PS Sultanpuri came there and he disclosed the said facts to the police also. The testimony of PW-11 Vijay needs close scrutiny as he is the prime witness examined by the prosecution to support the last seen theory in the present case. There is no evidence to prove that PW-11 21 Vijay used to take rickshaw on hire from PW-17 Devender @ Devi, although, PW-17 Devender @ Devi deposed that PW-11 Vijay used to ply rickshaw after taking the rickshaw from him on rent. PW-17 Devender Kumar @ Devi produced the record of the rickshaw stated to be taken on rent by the deceased which was seized vide seizure memo Ex.PW 10/B and the relevant record is Ex.PW 10/A. However the PW17 Devender @ Devi did not produce any record pertaining to the rickshaw stated to be taken on rent by PW-11 Vijay. It raised serious doubts about the fact that PW-11 Vijay used to ply rickshaw after taking on rent from PW-17 Devender @ Devi. As per the testimony of PW-11 Vijay, he informed PW-17 Devender @ Devi that accused, Bablu and deceased were present opposite CNG Pump, Kanjhawala Road and quarreling each other on 23.6.2005 at about 11/11.30 pm but the PW-11 Vijay has not mentioned the date on which he informed said facts to PW-17 Devender @ Devi. PW-17 Devender @ Devi deposed that on 26.6.2005 PW-11 Vijay came to him and told that in the intervening night of 23/24.6.2005, he had seen accused, Bablu grappling the deceased at CNG Pump, Kanjhawala Road. If this part of the testimony of PW-17 Devender @ Devi is taken to be correct, it means that PW-11 Vijay informed said facts to PW-17 Devender @ Devi after two days to PW-17 and this delay raises serious doubts as to the deposition of PW-11 Vijay. Further when PW-11 Vijay informed said facts to PW-17 Devender @ Devi then at that time, the police officials of PS Sultanpuri also reached there. The prosecution has also examined the Investigating Officer PW21 Meer Singh but he did not deposed that on 26.6.2005, PW-11 22 Vijay and PW-17 Devender Kumar informed the fact that in the intervening night of 23.6.2005, the PW-11 had seen the deceased, Bablu and accused together. The cross examination of PW-11 Vijay is also important. PW-11 during cross examination deposed that he used to pay the rent of rickshaw to PW-17 Devender @ Devi after 4-5 days but he has not explained why he had gone to the garage of PW-17 Devender @ Devi on 26.6.2005. PW-11 Vijay also deposed that on 26.6.2005, he was taken to Police Station at about 3 pm and wherein his statement was recorded and thereafter he left the Police Station at about 9/10 pm. PW-21 Inspector Meer Singh did not depose that on 26.6.2005, PW-11 Vijay informed him about the presence of accused, Bablu and deceased. In these circumstances, the testimony of PW-11 Vijay does not inspire the confidence and cannot be relied upon. It has not been proved that accused, Bablu were lastly seen in the company of deceased.
EXTRA JUDICIAL CONFESSION
31. The term "confessions" is not defined in the Evidence Act. All the provisions relating to confessions occur under the heading of "admission". The definition of "admission" as given in section 17 becomes applicable to confession also. Section 17 defines admission as "a statement oral or documentary, which suggest any inference as to any fact in issue or relevant fact." A confession is a statement made by a person charged with a crime suggesting an inference as to any facts in 23 issue or as to relevant facts. The inference that the statement should suggest should be that he is guilty of the crime.
32. Confession in common acceptation means and implies acknowledgment of guilt - its evidentiary value and its acceptability however shall have to be assessed by the Court having due regard to the credibility of the witness. In the event however, the Court is otherwise in a position having due regard to the attending circumstances believes the witness before whom the confession is made and is otherwise satisfied that the confession is in fact voluntary and without there being any doubt in regard thereto, an order of conviction can be founded on such evidence.
33. Confessions may be divided into two classes i.e judicial and extra- judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra- judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra - judicial confessions are generally those that are made by a party to or before a private individual. There is no rule that extra judicial confession cannot be relied upon unless corroborated by other evidence.
34. In case of State of Uttar Pradesh V M.K. Anthony, 1985 Crl L J 493 held as under :--
There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot 24 be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra judicial confession a weak piece of evidence. If the evidence about extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is a perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and be the basis of a conviction. In such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.
35. In case of Narayan Singh and others V State of M.P., AIR 1985 SC 1678 expressly observed that it is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It was observed :
The Learned Sessions Judge has brushed aside their evidence by presuming hat their statements constituting an extra judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time 25 when the confession was made and the credibility of the witnesses who speak to such a confession.
36. In Baldev Raj V State of Haryana, AIR 1991 SC 37 it was held that :--
An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence.
37. In case Chattar Singh V State of Haryana, 2008 (4) RCR (Cri) 674, it was held :--
An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. it is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such 26 a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
38. The prosecution has also relied upon the extra judicial confession made by accused Mahesh Kalia and Bablu (since facing trial before Juvenile Justice Board) to PW-17 Devender Kumar @ Devi. As per prosecution, accused was taking rickshaw on rent from PW-17 Devender Kumar @ Devi and thereafter paying rent. As per prosecution, accused has disappeared with rickshaw given to him on rent by PW-17, 12-13 days prior to 6.7.2005. PW-17 Devender Kumar @ Devi deposed that accused neither returned rickshaw to him or sent the rent. PW-17 deposed that on 6.7.2005 accused and Bablu came to him along with rickshaw and thereafter he had taken both of them in confidence about their disappearance. PW17 deposed that initially they did not disclose anything but later on disclosed that in the intervening night of 23/24/6/2005 they committed the murder of deceased. PW-17 Devender Kumar called the police to his garage and then accused and 27 Bablu were apprehended and arrested by PW-21 Inspector Meer Singh. PW21 also deposed that on 6.7.2005 PW-17 Devender Kumar @ Devi told him that in the intervening night of 23/24.6.2005 accused and Bablu had committed the murder of Anil. PW-17 Davender Kumar was cross examined by the defence counsel. PW-17 Devender Kumar @ Devi during cross examination deposed that on 6.7.2005 accused and Bablu came to his garage at about 12 noon and at that time, Mistri Pana Lal was also present. Thereafter on being informed by PW-17 Devender Kumar, PW-21 Inspector Meer Singh along with other police officials came to the garage of PW-17 and made inquiries. PW-17 Devender Kumar @ Devi deposed that Mistri Panna Lal was also present in the garage when the police officials came but he remained busy in repairing work. The police officials also did not call any public person from the houses or shops to join the investigation. PW-17 Devender Kumar @ Devi deposed that the police do not call Panna Lal to join investigation and they remained in the office of PW-17 for about half an hour. The testimony of PW-17 reflects that the accused and Bablu made the extra judicial confession on 6.7.2005 after 12 noon and at that time, Mistri Panna Lal was also present. It is relevant to mention that the offence was committed in the intervening night of 23/24.6.2005. The extra judicial confession was made on 6.7.2005 i.e after expiry of about two weeks which raises serious doubts that the extra judicial confession was made without any tutoring or any colouring. The accused is stated to be remained out of the touch from PW-17 Devender Kumar for a considerable time. The testimony of PW-17 reflects that he took the 28 accused and Bablu into confidence and inquired about their disappearance. It is also apparent that the accused and Bablu initially did not disclose anything but they later on disclosed about the committal of murder of the accused by them. It is not reflected from the testimony of PW-17 that the extra judicial confession stated to have been made by accused and at that time they were free from any bias and tutoring. PW- 17 Devender Kumar @ Devi was renting the rickshaw to the accused and the accused has not paid the rent of the rickshaw taken on hire and also did not return the rickshaw to PW-17. PW-17 only enquired about the disappearance of the accused and Bablu and subsequently both of them disclosed about the committal of murder of the deceased. Although PW-17 has narrated the details of the alleged confession in his deposition but it is not appearing that the extra judicial confession was made voluntary and without any force, fear and pressure. The extra judicial confession stated to have been made by the accused and Bablu to PW-17 does not inspire confidence if carefully examined under all facts and circumstances of the case.
39. The testimony of PW-17 Devender Kumar @ Devi also reflect that he was involved in the investigation since beginning and was met with the police officials attached with the investigation of the case. PW- 17 Devender Kumar @ Devi was not an independent witness and the accused was taking rickshaw on rent from PW-17. It is also reflected that accused Mahesh has not paid the arrears of rent to PW-17 and also did not return back the hired rickshaw. In these circumstances, it will not be 29 safe and proper to rely upon the extra judicial confession stated to be made to PW-17 by accused and Bablu.
POINTING OUT MEMOS
40. CPP argued that the accused Mahesh was arrested on 6.7.2005 vide arrest memo Ex.PW 10/C and thereafter was interrogated by PW- 21 Inspector Meer Singh. PW-21 who also recorded the disclosure statement Ex.PW 10/F of the accused. As per the testimony of Investigating Officer PW-21, the accused has led the police party towards Begupur village near I.P. School. The accused pointed out the place near the heap of bricks where the dead body of deceased was left by the accused and Bablu. The accused and Bablu also pointed out the place of occurrence. The pointing out memo is Ex.PW 10/G. The accused and Bablu pointed out the place where they burnt the clothes of the deceased and also to the place where they threw ashes in polythene. The pointing out memos are Ex.PW 10/H and Ex.PW 10/J. The pointing out memos were prepared and at the time of preparation of said documents PW-17 Devender @ Devi was stated to be present. The testimony of PW-17 does not inspire any confidence as discussed herein above. The pointing out memos prepared by the Investigating Officer do not inspire confidence of the court as no public person was included.
MEDICAL AND SCIENTIFIC EVIDENCE
41. The prosecution also relied upon the opinion given by PW18 Dr. Manoj Dhingra regarding the brick stated to be the weapon of evidence 30 and the said opinion is Ex.PW 18/A. The PW18 Dr. Manoj Dhingra after going through the Post Mortem Report Ex.PW 15/C and after examining the brick Ex.P1 opined that injury no.1, 2 and 4 to 8 mentioned in Post Mortem report Ex.PW 15/A were possibly inflicted by the brick Ex.P1. However the said report/opinion as to the brick Ex.P1 do not connect the accused with the alleged offence. Opinion Ex.PW 18/A do not reflect that said injuries were caused by the accused. Moreover, the Post Mortem was conducted by PW-15 Dr. V.K. Jha but the opinion was given by PW-18 Dr. Manoj Dhingra which appears to be unusual in the given facts and circumstances of the case. The Reports given by the Expert from FSL also do not connect the accused with the alleged offence.
42. In view of above discussion, the prosecution has failed to prove complete chain of circumstantial evidence to indicate towards guilt of accused being the author of crime excluding the possibilities of others, hence failed to prove the offence u/s 302 IPC against the accused Mahesh Kalia. Hence, accused is acquitted for offence u/s 302 IPC. Accused is in JC, be released forthwith, if not required in any other case. Case property, if any, is confiscated to the State. File be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 9.2.2010 ASJ-01 (Outer) Rohini, Delhi.