Delhi High Court
Shyam Bir vs State on 19 May, 2009
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, Ajit Bharihoke
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19.05.2009
+ CRL. A. 246/1994
SHYAM BIR ..... Appellant
versus
STATE ..... Respondent
AND
+ CRL. A. 3/1995
SMT. SHAKUNTALA ..... Appellant
versus
STATE ..... Respondent
Advocates who appeared in this case:
For the Appellants : Mr Sumeet Verma (Amicus Curiae)
For the Respondent : Mr Sunil Sharma
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J (ORAL)
1. These two appeals are directed against the judgment of the learned Additional Sessions Judge dated 29.09.1994 in Sessions Case No.63/1989 arising out of the FIR No.239/1989 registered at Police CRL.A. Nos. 246/94 & 3/95 Page 1 of 20 Station Sultanpuri. The accused had been charged under Section 302/120-B of the Indian Penal Code (hereinafter referred to as „IPC‟). The learned Additional Sessions Judge has found that the prosecution has been able to prove the charge against the appellants and consequently convicted them under Sections 302/120-B IPC. By virtue of the order on sentence dated 30.09.1994, the learned Additional Sessions Judge sentenced the appellants herein to undergo imprisonment for life. The appellants are aggrieved by the said impugned judgment and order on sentence.
2. As indicated in the impugned judgment, the case for the prosecution is that on 23.08.1989, one Varinder Kumar Verma (PW-
12) resident of 128, Gaurav Nagar, Prem Nagar, Kirari, Delhi gave information, which was recorded in D.D. No.4-A at Police Station Sultanpuri at about 2.15 a.m., that at about 12.15 a.m. in the night intervening 22.08.1989 and 23.08.1989, the appellant Shakuntala, who was the wife of Kishan Lal (deceased) and resident of House No.130, Gaurav Nagar, Kirari, came to his house and informed him that her husband was lying in a pool of blood on the cot and had an injuries on his face. It is further the prosecution case that on this information, the said Varinder Kumar Verma collected the persons of the colony and accompanied Shakuntala and found that Kishan Lal was lying on a cot CRL.A. Nos. 246/94 & 3/95 Page 2 of 20 in a pool of blood. Though Kishan Lal was breathing, he was not in a position to speak. The said D.D. was handed over to S.I. Raghunandan Singh for inquiry, who alongwith the staff, reached the spot and found that in the courtyard of House No.130, Gaurav Nagar, Kishan Lal aged about 30-35 years was lying dead on a cot and had injuries on the left side of his head and face which appeared to have been caused by some sharp edged weapon. The wife of the deceased, Ms Shakuntala was, at that point of time, not in a position to give a statement being in a state of shock and, accordingly, a case under Section 302 IPC was registered and thereafter the dog squad and crime team were summoned and further investigation was taken up. Apparently, during the course of the investigation, Shakuntala informed that her husband had been murdered by her previous husband (Raja Ram) alongwith his companion Master Chatri, Hira Lal and other persons and that thereafter those persons left the spot and she raised cries. It appears that the investigating agency went to the village of Raja Ram to verify this fact and on further investigation they were of the view that Raja Ram and his companions were not involved in the crime. On the other hand, Raja Ram had indicated that Shakuntala did not have a good character. According to the prosecution, the appellant Shyam Bir, who used to refer to the deceased Kishan Lal as his Mama (maternal uncle), used to visit his house secretly and had some connection with CRL.A. Nos. 246/94 & 3/95 Page 3 of 20 Shakuntala. On completion of the investigation, the case for the prosecution was that Shakuntala and Shyam Bir developed illicit relations and they hatched a plan to get rid of Kishan Lal. For executing the plan, Shakuntala is said to have procured an axe from PW-10 (Ram Kishan) on 22.08.1989 itself. When Kishan Lal was asleep, at the instance of Shakuntala, Shyam Bir entered the house and murdered Kishan Lal with the said axe which had allegedly been taken from PW-10 (Ram Kishan). Thereafter, Shyam Bir is said to have fled the place alongwith the said axe. According to the prosecution, the said axe was recovered at the instance of Shyam Bir from a room in Sanjay Model School, Niti Vihar, Kirari, Delhi. Nothing was, however, recovered at the instance of Shakuntala. It may be pointed out at the outset that though a post mortem was conducted in respect of Kishan Lal‟s dead body and a report was also prepared, the doctor who conducted the post mortem, has not been produced as a witness.
3. In this background, the learned counsel appearing on behalf of the appellants submits that this was a case of circumstantial evidence, there being no eye witness to the incident. He submits that the circumstances which have been relied upon by the prosecution and which have been accepted by the trial court are as under:- CRL.A. Nos. 246/94 & 3/95 Page 4 of 20
1) Recovery of the blood stained axe at the instance of Shyam Bir on 26.08.1989;
2) The testimony of PW-10 (Ram Kishan) that the axe belonged to him and that Shakuntala had taken that axe on 22.08.1989, but had not returned the same to him;
3) The testimony of PW-1 (Puran), who is alleged to be a neighbour, wherein he stated that Shyam Bir used to visit Shakuntala in the absence of Kishan Lal;
4) PW-14 (Raja Ram), who was the first husband of Shakuntala, has also stated that Shakuntala was loose charactered and that she had eloped with the deceased Kishan Lal without his (Raja Ram‟s) consent;
5) The post mortem report has also been considered by the trial court to establish the cause of the death.
4. Mr Sumeet Verma, who appeared on behalf of the appellants, contended that the circumstances which have been relied upon by the trial court have, first of all, not been established and, secondly, they do not form a complete chain so as to lead to the conclusion that it is only the appellants who are guilty for the murder of Kishan Lal. He submitted that the most important factor in this case is the question of recovery of the axe. As per the disclosure statement (Exhibit PW- CRL.A. Nos. 246/94 & 3/95 Page 5 of 20 15/D) said to have been made by the appellant Shyam Bir, it appears that he stated that the axe was concealed in his room and that he can get the axe recovered after pointing out the room. It is noteworthy that the address given in Exhibit PW-15/D, which contains the alleged disclosure statement of Shyam Bir, is Sanjay Model School, Gaurav Nagar, Prem Nagar, Kirari, Delhi. However, the address given in the recovery memo (Exhibit PW-10/A) indicates the address of Shyam Bir as 128, Gaurav Nagar, Kirari with a permanent address at Village Chhonk, P.S. Hathras, District-Aligarh (U.P.). The said recovery memo also indicates that Shyam Bir pointed out the residential room in Sanjay Model School, Niti Vihar, Kirari and further pointed out an axe wrapped in a gunny bag after untying a string tied on the door of the room. There are two witnesses to this recovery memo and they are PW-10 (Ram Kishan) and PW-15 (Mahipal). Insofar as PW-10 (Ram Kishan) is concerned, he stated that on 26.08.1989, he alongwith the police and Shyam Bir went to the house of Shyam Bir. It was at about 7.00 p.m. and Shyam Bir produced the axe from his house wrapped in a gunny bag. The axe was identified by PW-10 (Ram Kishan) as the same axe which was given by him to Shakuntala. Furthermore, in his cross-examination, the said witness, namely, PW-10 (Ram Kishan) clearly stated that the house of Shyam Bir was in Gaurav Nagar and that Prem Nagar and Gaurav Nagar are different areas but are adjacent CRL.A. Nos. 246/94 & 3/95 Page 6 of 20 to each other. He also indicated that he did not tell the police that the accused led the police party to his house No. 128, Gaurav Nagar. However, he was confronted with the statement in Exhibit D/A, which is his statement under Section 161 of CrPC, wherein it was so recorded. He has also stated that he did not know how far Niti Vihar Mohalla was from Gaurav Nagar. On the basis of these statements, the learned counsel for the appellants submitted that Gaurav Nagar and Niti Vihar are two separate areas and while the disclosure statement of Shyam Bir reveals that the axe was concealed in Shyam Bir‟s room, the same was actually recovered not from his house at Gaurav Nagar, but from a residential room in Sanjay Model School, Niti Vihar, which is different from the place where Shyam Bir resided.
5. The learned counsel further pointed out that the other recovery witness, namely, PW-15 (Mahipal) also stated in his examination-in- chief that on 26.08.1989, on the pointing out of accused Shyam Bir, one iron axe was recovered from the residential house of Shyam Bir at Niti Vihar. However, in his cross-examination, he stated that he never visited House No.128 and does not know the Municipal Number of the School. He also stated that he had not told the police that he went to House No.128, Gaurav Nagar. However, he was confronted with CRL.A. Nos. 246/94 & 3/95 Page 7 of 20 Exhibit PW-15/D, which is his statement under Section 161, CrPC, wherein it was so recorded.
6. The learned counsel also drew our attention to the testimony of PW-18 (Inspector Rajinder Prasad) who is the scribe of the said recovery memo. He stated that on the pointing out of the accused Shyam Bir, near Sanjay Model School, Niti Vihar, Kirari, an axe was recovered from a room. On the basis of the aforesaid evidence, the learned counsel for the appellants submitted that the place of recovery of the alleged murder weapon, namely, the said axe, is not certain. While the appellant Shyam Bir is said to have indicated that the axe was concealed in his room, PW-18 has stated that the said axe was recovered from a room near Sanjay Model School. PW-10, however, has stated that the same was recovered from Shyam Bir‟s house at Gaurav Nagar, while PW-15 (Mahipal) has stated that the axe was recovered from Shyam Bir‟s house at Niti Vihar. The learned counsel submitted that these are very material contradictions because unless and until the recovery of the axe at the instance of Shyam Bir is firmly established, there are missing links as to form a complete chain of circumstantial evidence leading to the guilt of the appellants. CRL.A. Nos. 246/94 & 3/95 Page 8 of 20
7. The learned counsel also submitted that the only portion of disclosure statement of Shyam Bir, which is admissible, is the knowledge of the place of recovery from where the axe could be recovered and not the factum of recovery of the axe. Since the place itself has not been established, there is nothing available with the prosecution which could connect the appellant Shyam Bir with the murder of Kishan Lal. Since Shyam Bir cannot be connected with the said offence, there is no question of any connection with the appellant Shakuntala either. The learned counsel submitted that the prosecution has failed to produce tangible evidence to enable the court to arrive at a conclusion that Shakuntala and Shyam Bir had any illicit relations. The only testimony is that of PW-1 (Puran) who is said to be a neighbour of the deceased Kishan Lal, who stated that Shyam Bir used to visit Shakuntala in the absence of Kishan Lal. However, the learned counsel pointed out that in the cross-examination of PW-1, the said witness has been found to be an untruthful one. He has stated that he was living at Anand Parbat but used to visit Gaurav Nagar. He further stated that his servant used to live at Gaurav Nagar. According to the learned counsel, this clearly indicates that he was not even a neighbour residing in the neighbourhood. He owned a house next to the house of Kishan Lal, but he was not present there at all times and only used to visit the said house and that too twice a week. Therefore, his testimony that CRL.A. Nos. 246/94 & 3/95 Page 9 of 20 Shyam Bir used to visit Shakuntala in the absence of Kishan Lal cannot be taken as a truthful statement.
8. The learned counsel for the appellants further submits that no motive has been established. In fact, even the question of conspiracy and the ingredients of Section 120-B IPC have not been established by the prosecution. He submitted that the circumstances pointed out by the prosecution are, firstly, not established and, secondly, they do not lead to the guilt of the appellants. He submitted that the impugned judgment and order on sentence be set aside.
9. Mr Sunil Sharma, who appears on behalf of the State, supported the judgment of the trial court. He referred to the said judgment and pointed out that the trial court has returned a finding that there was a connection between Shyam Bir and Shakuntala. According to him, as stated in the impugned judgment in paragraph 24, the fact that Shyam Bir used to visit the house of Shakuntala in the absence of her husband stands proved by the statement of PW-1 (Puran) who was a neighbour in the adjoining house No.128, Gaurav Nagar, Kirari. Mr Sharma also pointed out that the trial court found that because of the statement of PW-2 (Sanjay Kumar), it has been proved that the appellant Shyam Bir was residing in Village Kirari in a rented house. The further CRL.A. Nos. 246/94 & 3/95 Page 10 of 20 circumstance which has been proved was that the axe was borrowed by Shakuntala from PW-10 (Ram Kishan). The trial court also found that on the basis of the testimonies of PW-10 (Ram Kishan), PW-15 (Mahipal) and PW-18 (Rajinder Prasad), the recovery of the axe stands established and proved.
10. Mr Sunil Sharma then referred to paragraph 26 of the impugned judgment to show that the trial court did consider the argument of contradictions about the place from where the axe was recovered and after considering the same, the trial court came to the conclusion that these were not material contradictions.
11. Mr Sunil Sharma also pointed out that the axe, which had been recovered, had also been sent to the Central Forensic Science Laboratory, which confirmed that there were blood stains on the edge of the axe and that it was human blood of group „O‟. The blood sample of the deceased was also taken and the serological report indicates that his blood group was also „O‟. He also submitted that blood stains were also found in the bathroom of the house of Kishan Lal and no explanation was forthcoming from the accused with regard to that. CRL.A. Nos. 246/94 & 3/95 Page 11 of 20
12. Mr Sharma thereafter submitted that the motive also stood established inasmuch as there were illicit relations between Shakuntala and Shyam Bir. He also submitted that Shakuntala borrowed the axe from PW-10 (Ram Kishan) and that at about 12.15 a.m, Kishan Lal was killed by Shyam Bir in execution of the conspiracy hatched by both Shakuntala and Shyam Bir. Kishan Lal was killed by Shyam Bir using the same axe which had been recovered at the instance of Shyam Bir. Consequently, he submitted, the trial court had rightly convicted the appellants for having committed the offences under Sections 302/120-B IPC.
13. We have examined the evidence in detail and considered the arguments advanced before us. Several circumstances, as already pointed out above, have been outlined on the part of the prosecution in an attempt to establish the guilt of the appellants Shakuntala and Shyam Bir. Insofar as the question of motive is concerned, which, though not of vital importance in cases of ocular evidence, has a certain degree of importance in cases of circumstantial evidence. In this case, we find that the only statement forthcoming with regard to the illicit relations between Shakuntala and Shyam Bir is that on the part of PW-14 (Raja Ram) and PW-1 (Puran). The only thing that PW-14 (Raja Ram) has stated is that Shakuntala had a loose character and that she had eloped / CRL.A. Nos. 246/94 & 3/95 Page 12 of 20 run away with Kishan Lal, when she was married to him (Raja Ram). He does not say anything about appellant Shyam Bir. Therefore, his testimony, even if it is to be believed, does not indicate any connection between Shakuntala and Shyam Bir, what to speak of illicit relations between the two. Insofar as PW-1 (Puran) is concerned, we find that, although he has stated that Shyam Bir used to visit Shakuntala in the absence of Kishan Lal, such a statement is shrouded in a great deal of doubt. This is so because in his cross-examination itself, he has stated that he used to reside elsewhere and used to visit Gaurav Nagar only twice a week. Therefore, it is difficult to understand as to how he could have observed Shyam Bir visiting Shakuntala in the absence of Kishan Lal during his momentary bi-weekly visits to 128, Gaurav Nagar, which is adjacent to Kishan Lal‟s house, i.e., 130, Gaurav Nagar. Incidentally, even Shyam Bir was residing in the adjacent house, i.e., 128, Gaurav Nagar. Therefore, we do not agree with the conclusion of the trial court that the illicit relations or any connection between Shyam Bir and Shakuntala has been established. Clearly, the question of any motive having been established or proved does not at all arise.
14. Be that as it may, there are other circumstances which have been relied upon by the prosecution. One of them being the borrowing of the axe by Shakuntala from PW-10 (Ram Kishan). It has come in CRL.A. Nos. 246/94 & 3/95 Page 13 of 20 evidence led by the prosecution that PW-10 (Ram Kishan) used to lend his axe to Shakuntala. On 22.08.1989 also, Shakuntala borrowed the axe from PW-10 (Ram Kishan). But this circumstance by itself is not sufficient for the court to conclude that the axe was borrowed with the intention or the motive of committing the murder of Kishan Lal. It is also not sufficient in itself to enable us to reach the conclusion that the said axe was, in fact, used in the commission of the offence. It must be remembered that the borrowing of the axe by Shakuntala from PW-10 (Ram Kishan) does not amount to clinching evidence inasmuch as PW- 10 (Ram Kishan) himself had stated that Shakuntala borrowed the axe on earlier occasions also.
15. To our minds, the most important circumstance is the alleged recovery of the said axe. We agree with the learned counsel for the appellants that the place of recovery of the said axe has not been established. While Shyam Bir in his alleged disclosure statement indicated that the axe was concealed in his room, the axe was, in point of fact, as per the recovery memo (Exhibit PW-10/A), recovered from the residential room in Sanjay Model School, Niti Vihar, Kirari and not from the room in which Shyam Bir resided. Furthermore, there are serious contradictions between the testimonies of PW-10 and PW-18. PW-18 (Rajinder Prasad), who is the scribe of the said recovery memo, CRL.A. Nos. 246/94 & 3/95 Page 14 of 20 indicated that the said axe was recovered from a room near Sanjay Model School, whereas PW-10 (Ram Kishan) stated that the axe was recovered from the house of Shyam Bir at 128, Gaurav Nagar, Delhi. On the other hand, Mahipal (PW-15) made a complete different statement wherein he stated that the said axe was recovered from the house of Shyam Bir, but from Niti Vihar. There is no evidence indicating that Shyam Bir had any house at Niti Vihar. The only evidence, which has been brought forward by the prosecution, indicates that Shyam Bir had taken a room on rent and that he was residing at 128, Gaurav Nagar, Delhi. It has not been established and / or proved by the prosecution that Shyam Bir was residing either in a residential room in Sanjay Model School or near Sanjay Model School from where the axe is said to have been recovered. The evidence led by the prosecution, therefore, itself is extremely hazy with regard to the place of actual recovery of the said axe. This in itself casts serious doubts on the factum of recovery also. That being the position, the only link between the appellant Shyam Bir and the offence, being the recovery of the axe, is also not established.
16. There is another aspect of the case on which we have given our anxious consideration and that is the alleged recovery of blood from the bathroom of the house of the deceased. It has come in evidence that CRL.A. Nos. 246/94 & 3/95 Page 15 of 20 Kishan Lal was put to death while he was sleeping on his cot in the courtyard of his house. It is obvious that there would be blood stains on and around the cot. However, since the blood stains are said to have been recovered from the bathroom, the prosecution version is that after Shyam Bir committed the murder of Kishan Lal using the said axe, the said axe was washed by Shakuntala and Shyam Bir in the bathroom and it is then that Shyam Bir took the axe and fled from the scene. If this is to be believed, then it becomes irreconcilable with the testimony of PW-12. PW-12 (Varinder Kumar Verma), who was also residing in House No.128, Gaurav Nagar, Kirari, Delhi, the very house in which Shyam Bir also resided, stated that on 22.08.1989, it was the birthday of his son. After he had gone to sleep at about midnight, he had heard some noise. Thereafter, he came outside and met Shakuntala there, who told him that someone had killed her husband. He further stated that many other persons were also present there. He saw Kishan Lal lying on the cot and he was bleeding from his face and head. His body was covered with a bed sheet upto the chest. From the above statements given by PW-12 (Varinder Kumar Verma), it is apparent that there was some noise or commotion, as a result of which he was awakened from his sleep and when he went out of his house, he saw Shakuntala, who told him that somebody had killed her husband. It is quite probable that the noise or commotion which awakened him was CRL.A. Nos. 246/94 & 3/95 Page 16 of 20 the very incident of the murder of Kishan Lal and the assailants fleeing from the scene of crime. If that be so, then the time available to the appellants Shakuntala and Shyam Bir to have immediately washed the axe and also despatched Shyam Bir alongwith the axe was not sufficient. This is so because immediately upon hearing the noise, PW- 12 (Varinder Kumar Verma) came out of his house and met Shakuntala. There were other people also who had assembled there. The time interval, therefore, that was available for such a sequence of events, as alleged by the prosecution, was not sufficient, in our view, to support what the prosecution is alleging.
17. We also note that since the doctor, who conducted the post mortem examination, has not been examined, his report and opinion with regard to the cause of death cannot be looked into. With regard to the attempt of the prosecution to prove the post mortem report through a record clerk and not by the concerned doctor, this court had occasion to make certain observations on such an approach in the case of Ikramuddin v. The State: CRL.A. 189/1994 decided on 29.04.2009. The same are reproduced hereunder:-
"15. We may also note that the prosecution has undertaken the unsatisfactory approach of proving the MLC and the post mortem report through record clerks and not by the concerned doctors. Such a practice had been deprecated by courts time and again. The fact that doctors CRL.A. Nos. 246/94 & 3/95 Page 17 of 20 are not examined to prove the MLC and the post mortem report certainly affects the probative value of these documents. The following passage appearing in a decision of a Division Bench of this Court in the case of Chander Dev Rai v. The State: 2009 (1) JCC 67 would be instructive:-
„24. The FSL reports also completely exonerate the appellant. Even their probative value is not sufficient as they have not been proved to the satisfaction of the Court as they have been proved by a record clerk. In Sher Singh (Supra) it was held that before the documents like post mortem report and other reports are proved by a person other than the person who had prepared them, a thorough enquiry is to be done by the investigating officer by going personally to the concerned hospital and making efforts to trace the addresses of the doctor. Even if the persons who had prepared the documents are not traceable, it was held, that it is not proper to examine a clerk or a record keeper. In such cases another doctor working in the hospital who is acquainted with the handwriting and signatures of the doctor who prepared the same should have been examined. In the present case only a record keeper was examined and the said person was again examined for proving the back of the medical report. He has simply stated that he can identify the signatures and handwriting of the concerned doctors. No semblance of effort seem to have gone into tracing the doctors who had recorded the MLC and conducted the gynecological examination of the prosecutrix. Prosecution witness simply making the statement that the said doctor is not available or has left the service is not sufficient. Invariably before a doctor or for that matter any other person is employed he is enjoined to give permanent address to the employer. Same must have been the case here but the prosecution as usual has chosen a short cut of CRL.A. Nos. 246/94 & 3/95 Page 18 of 20 adducing the record keeper to prove the documents like MLC, medical examinations by simply stating that doctors are not available. This affects the probative value of these documents.‟ The defence had suggested the alternative theory of suicide. Therefore, the examination of the doctor who conducted the post mortem examination was all the more crucial for the purposes of establishing whether the death of Ashraf Jahan was homicidal or suicidal. The non-examination of the doctor who conducted the post mortem examination is also a circumstance which certainly goes against the prosecution and weakens their case."
18. In any event, since the doctor, who conducted the post mortem report has not been produced as a witness, his opinion cannot be relied upon by the prosecution to the detriment of the appellants. There is, therefore, no evidence before us which would suggest that the said axe was indeed the weapon which was used for the commission of the crime. The only piece of evidence which has been relied upon by Mr Sunil Sharma was the factum that the CFSL report showed traces of human blood of group „O‟ which was also the blood group of the deceased. It is common knowledge that blood group „O‟ is not a rare group and, even if it were so, it cannot be ruled out that there are other persons having the same blood group. It can only be regarded as a circumstance and by itself cannot be considered to lead to the conclusion that the blood on the axe was that of the deceased. CRL.A. Nos. 246/94 & 3/95 Page 19 of 20
19. In view of the foregoing discussion, we are of the opinion that the circumstances sought to be established by the prosecution are not sufficient and / or had not been sufficiently proved so as to lead to the guilt of the appellants. Consequently, we set aside the impugned judgment and order on sentence. The appellants are on bail. Their bail bonds stand cancelled and the sureties stand discharged.
The appeal stands allowed as indicated above.
BADAR DURREZ AHMED, J AJIT BHARIHOKE, J MAY 19, 2009 pst/dutt CRL.A. Nos. 246/94 & 3/95 Page 20 of 20