Delhi District Court
State vs . (1) Dalip @ Naresh @ Kalia on 14 June, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 128/07
CASE ID: 02403R0678492007
State Vs. (1) Dalip @ Naresh @ Kalia
S/o Vinod Kumar
R/o J-597, Gali Transformerwali,
Pushta No. 3-1/2, Kartar Nagar,
Delhi.
(2) Ajay @ Appu @ Deepak
S/o Vijay Bali
R/o 168, Mata Colony,
Vijay Nagar, Ghaziabad (U.P.)
FIR No. 225/07
Police Station Tilak Marg
Under Section 302/201/34 IPC
Date of Institution of the Suit : 08/10/2007
Date on which order was reserved : 03/06/2010
Date of Decision : 14/06/2010
JUDGMENT
The SHO of police station Tilak Marg has challaned the accused persons to face trial for the commission of offences SC No. 128/07 Page1/36 punishable under Sections 302/201/34 IPC. The learned Metropolitan Magistrate in compliance of provisions under Section 207 Cr.PC. supplied the copies of documents to the accused persons and committed the case to the Court of Sessions for their trial, by invoking Section 209 CrPC.
BRIEF FACTS OF THE CASE The brief facts of the prosecution case are that on 16/6/2001 a Police Control Room (PCR) call regarding a dead body was received in the Police Station, Tilak Marg at 2.00 p.m. vide D D No. 16-A. SI Jai Singh along with Constable Gautam reached the spot so also SHO A. S. Parmar near the boundary wall of the railway line, Primary School Masjid, Bengali Market. They found there a dead body of a male aged about 22 years lying on grasses and bushes near the boundary wall. The deceased was wearing only one underwear of black colour and a pair of socks. At a distance of 2 feet towards the Eastern side of the body the bloodstained baniyan was lying. No eyewitness of the incident was found at the spot. The senior police officers also reached at the spot. SI Jai Singh made endorsement on the DD No. 16 A and the rukka was sent to police station on the basis of which FI R No. 225/2007 under sections 302 IPC was registered. The further investigation was handed over to M. L. Chander Additional SHO/TM. The crime team and the dog squad were called for on the spot through wireless message. The scene was preserved until the SC No. 128/07 Page2/36 arrival of the crime team on the spot. The rain had occurred till morning so the spot was quite wet. In the meantime SI KL Yadav and Constable Vijay also reached on the spot. Dog squad with a Dog Handler Constable reached the spot at around 3.35 PM. The dog squad undertook its function but it could yield no result. After that crime team photographer took the photographs from the scene of crime. The deceased had received head injuries and injury on right ear tample. No identifying object was found from the person of the deceased regarding his identity. The public persons from nearby area were called and shown the body for the identification but in vain.
During the subsequent investigation the dead body was found to be of one Sajid son of Raiyasat Khan resident of village Guladia, P.S. Mir Ganj, District Bareilly, UP. After identification of the body it was known that deceased was having illicit relations with one Baby wife of Dalip. Dalip was involved in several cases of robbery, snatching and assault from Railway Station areas. When this fact came to the knowledge of Dalip, he hatched a conspiracy along with his friend coaccused Ajay @Appu to eliminate Sajid who used to live along with Dalip's family. The post-mortem examination of the body was conducted and viscera was preserved . The dead body was handed over to kins of the deceased after post-mortem examination. The prime accused Dalip was arrested and his police remand was taken. After that accused Ajay was arrested on 25/6/2007. The SC No. 128/07 Page3/36 recoveries etc were made at the instance of the accused persons. The exhibits were sent to FSL Rohini. The meteorological report was obtained. The site plan was prepared. On completion of investigation the accused persons were challaned to face trial, as referred before. CHARGE AND PLEA OF ACCUSED PERSONS The prima facie case for the offence under section 302/ 34 IPC was found made out against both the accused persons so they were charged accordingly but they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case the prosecution has examined 23 witnesses in all. The gist of the statements of the prosecution witnesses is given below:
PW1 is Constable Gautam who stated that he along with SI Jai Singh after receipt of DD No. 16 A went to the spot and found dead body lying near the boundary wall. No eye witness was found. Rukka was handed over to him by SI Jai Singh which he took to the police station on the basis of which FI R was registered and he returned to the spot and handed over it to Inspector ML Chander.
PW2 is SI Mahesh Kumar who on 10/8/2007 was posted as draughtsman in the Crime Branch. He proved the scaled site plan ExPW 2/A prepared by him.
PW3 is DK Sharma, scientific assistant, regional meteorological Centre, Lothian Road, New Delhi and has proved the SC No. 128/07 Page4/36 copies of the meteorological record dated 15/6/2007 to 17/6/2007 as ExPW 3/A to ExPW 3/D. He stated that as per the record there was rain in Delhi on 15/6/2007, 16/6/2007 and 17/6/2007.
PW4 is woman Head Constable Harmukhi who was posted as the duty officer on 16/6/2007 in the police station Tilak Marg and has proved the copy of the FI R ExPW 4/A recorded by her.
PW5 is Riyasat Khan the father of the deceased Sajid. He stated, in brief, that his son Sajid used to reside with Sehwal in Delhi and was working in Jafrabad at a shoe shop . On 17/6/2007 Sehwal came to the village and told him that he was present in the room. Dalip came there and asked Sajid to come with him to see movie. Sajid refused to go with him as he was to go to his native place. But Dalip took him forcibly on the pretext that they will return back after an hour. Dalip returned back after an hour with shoe and clothes stained with blood and gave the same to his wife Baby and told that he had killed Sajid. Sehwal was present at the house at that time. Baby, wife of accused Dalip told Sehwal to run away from there otherwise Dalip would kill him. After some time, Baby talked to him on telephone and told him that Sehwal was telling lie. Sajid was with her and told him that she would get Sajid talk to him. On his request to talk with Sajid, she told that Sajid had gone somewhere.
PW5 Riyasat Khan stated that on 18/6/2000 Baby told him that she was bringing Sajid at Dhaneta station and sometimes at SC No. 128/07 Page5/36 Meerganj station. He along with his villagers went to these railway stations but Baby did not bring his son Sajid. At the railway station he saw one poster bearing photograph of his son Sajid. Thereafter, they went to P.S. Tilak Marg and from there they went to hospital where they identified the dead body of his son in a mortuary. The police recorded a statement ExPW 5/A. The notice with was seen by him at the railway station is ExPW 5/B and the receipt by which he received dead body is ExPW 5/C. PW6 is Devender Kumar who stated that on 23/6/2007 accused Dalip had taken a room on grant from him for a sum of Rs. 700/-- per month. After 2-3 days, police came there and apprehended accused Dalip from the house. The police had also recovered shoes in a polythene bag and thereafter took the accused Dalip from there with the shoes. The police had prepared seizure memo of the shoe ExPW 6/A. He identified the shoes collectively as ExPW 6/P1.
PW7 Sehwal stated that he came to Delhi on 10/20 days prior to the incident and started residing with Sajid who was living with Dalip and his wife Baby in the same room. He stated that accused Dalip and accused Ajay took Sajid with them in search of some job. He told Sajid not to go with Dalip and his friend but on the insistence of accused persons, Sajid accompanied them. At about 3-4 a.m. both the accused persons came to the room but Sajid was not with them. On being asked by him, Dalip told that Sajid had run away by taking Rs.SC No. 128/07 Page6/36
50,000/--. In the morning, Baby wife of accused Dalip told him that Sajid has been killed by Dalip and his friend Ajay. Baby told him to run away from there because if they came to know that he was aware of this fact, he would be killed. Immediately he left the room for his hometown. There he informed parents of Sajid about the incident. In answer to a specific question he stated that Sajid had told him that he had illicit relations with Baby. He had not seen them in objectionable position but he had developed doubt on their manners of talking. The witness deposed about the arrest of the two accused persons by the police in his presence. The witness also identified the shoes of the victim Sajid as ExPW 7/P1. He also identified the stone produced by accused persons as ExPW 7/P2 and identified the shirt of accused Dalip as ExPW 7/P3.
PW8 is Baby wife of accused Dalip. She is a hostile witness and has not supported the prosecution case either in the examination-in-chief or in the cross-examination conducted on behalf of State. Same is the position of PW9 Babu Kashyap the brother of PW8 Baby.
PW 10 VP Singh stated that accused Dalip alongwith his wife and one child came to his house as a tenant. He gave one room of his house on rent to accused Dalip for a sum of Rs. 500/-- per month. This tenancy was created on 1/6/2001. He vacated the said house on 18/6/2007. One other person whose name he did not know used to SC No. 128/07 Page7/36 come in the said house. On his enquiry his wife told that person was her devar. On 24/6/2007 police came to him and informed him that Dalip was involved in a murder case.
PW 11 Surinder Singh is record clerk, RML Hospital and has proved the death report ExPW 11/A prepared by Doctor Ashutosh Joshi and has stated that Doctor Ashutosh has since left the hospital and his present whereabouts are not know to the hospital authorities.
PW 12 is SI Jai Singh who corroborated with the statement of PW1 Constable Gautam regarding going to the spot on 16/6/2007 after receipt of DD No. 16 A and seeing the dead body there. On DD No 16/A he proved his endorsement ExPW 12/B and stated that he sent Constable Gautam to Police Station for registration of the case. He also stated that he took the dead body to RML hospital and got the body preserved for 72 hours and deputed Constable in the hospital to guard the dead body. He also stated that from the spot IO had seized the bloodstained earth, bloodstained baniyan and earth is control and converted the same into pulanda, sealed with the seal of MLS and seized vide memos ExPW 12/C to ExPW 12/F. PW 13 is Constable Ajit Singh who stated that on 16/6/2001 he joined the investigation with I O SI Jai Singh. Corroborated with the statement of PW1 Constable Gautam and PW 12 SI Jai Singh regarding the dead body of the victim lying at the spot crime team reaching the spot and recovery of the Earth control, SC No. 128/07 Page8/36 bloodstained earth. He also identified the T-shirt ExPW 7/P1.
PW 14 is Doctor Shabana Kumar Nayak who along with Doctor Devender Kumar conducted post-mortem examination on the dead body of Sajid Khan. They found the following injuries on the person of deceased Sajid Khan:
1) Lacerated wound of size 2 x 0.5 cm situated on left side forehead 4 cm above mid point of left supra orbital ridge
2) incised looking lacerated wound of size 3 .5 cm x 1.5 cm x scalp deep situated on right frontal region, lying vertically 3.5 cm above lateral and of right eyebrow
3) incised looking lacerated wound of size 7 cm x 2 cmx scalp deep situated anterio posteriorly on the right temporal region, 3.6 cm above root of right ear pinna
4) lacerated wound of size 3 cm x 2 cm situated on the right tempero parital region 6 cm above root of right ear pinna
5) lacerated wound of size 3.5 cm x 1.5 cm situated obliqually on the right temporal region 5 cm above and one cm behind root of right ear pinna
6) incised lookling lacerated wound of size 3.5 cm x 1 cm situated anterio posteriorly 1 cm above root of right ear pinna
7) three lacerated wound of size 2 cm x 1.5x 0.2 cm each situated on right side face out of which one was found over lateral half of right SC No. 128/07 Page9/36 eyebrow and two were find lying 1.5 cm apart over right maxillary prominence
8) two lacerated wound of sizes 1.2 cm x 0.5 cm x part thickness of scalp each situated above left parietal eminance and 1.5 cm in front of it respectively
9) incised looking lacerated wound size 1 cm x .5 cm x .4 cm situated on the outer aspect of mid part of right forearm 10 cm above right olecranon tip.
Maggots were found crawling in and over the injuries of head and face.
Internal examination:
Undersurface of scalp was found contused over right fronto-tempero-parietal left frontal and left parietal regions. Right temporal bone was found fractured to multiple pieces with fracture extension to left temporal bone across the coronalsuture, causing fracture of vault of scalp into two pieces. On removal of brain dura matter base of skull was found fractured to two halves with fracture extrending across posterior part of both middle cranial fossae.
Brain matter was found liquified and appear grayish black colour mass on the right side.
Blood sample and scalp hair were collected of the deceased sealed and handed over to the police. Viscrea was also sealed SC No. 128/07 Page10/36 sseparately.
Cause of death : cranio cerabral injuries as a result of hard and blunt force trauma to the head. All the injuries were antemortem in nature, together fatal in ordinary course of nature and could have been caused by moderate or heavy hard and blunt weapon.
Time since death was about within five days as per inquest report and autopsy finding. Postmortem report is Ex PW14/A ( six pages ) bears his signautres at point A on each paper. He identified the signature of Dr Davender Kumar Atal his signatures bears at point B who was then present in the court.
On 26.7.07 he received an application of the investigating officer for subsequent opinion and a sealed pulanda containing stone. They examined alleged weapon of offence. In their opinion injuries detected on the postmortem could have been caused by alleged weapon of offence i.e. stone. He proved the Subsequent opinion as Ex PW14/B. PW 15 is Doctor Devender Kumar Atal was dropped by the prosecution on the 7/8/2009 PW 16 is SI, KL Yadav who corroborated with the statement of PW1 Constable Gautam and PW 12 SI Jai Singh regarding the position at the spot, calling of the crime team at the spot and lifting of bloodstained earth, Earth control etc from the spot. He stated that on 20/6/2007 Zahid Ali and Riyasat identified the dead SC No. 128/07 Page11/36 body. He corroborated with the statement of PW7 Sehwal regarding arrest of accused Dalip and the arrest of accused Ajay. He stated the place of consuming the liquor was also pointed out by the accused and one half bottle empty was recovered from there vide memo ExPW 16/C. The IO also seized the clothes of accused Ajay which he was wearing at the time of incident vide memo ExPW 16/D. The clothes of accused Dalip were seized vide memo ExPW 7/E. The postmortem report and medical exhibits were seized by the IO vide memo ExPW 16/A. The pair of shoes were seized at the instance of accused Dalip from his rented accommodation vide memo ExPW 6/A. This witness also identified the case property. He identified the T-shirt recovered from the spot as ExPW 7/P1, the stone recovered as ExPW 7/P2, clothes seized vide memo ExPW 7/E as ExPW 7/P3, half bottle which was recovered vide memo ExPW 16/C and D1 the clothes seized vide memo ExPW 16/D. PW 17 is Constable Rajesh who was dog handler with dog squad and went along with Zanny dog on spot. He stated that on that day on account of rain the dog could not take smell and dog squad was not successful.
PW 18 is Head Constable Ravinder who stated that on 16/6/2007 he took 18 photographs of the spot. He proved the photographs as ExPW 18/ 1 to 17 and the negatives collectively as ExPW 18/18.SC No. 128/07 Page12/36
PW 19 is Head Constable Narpat Singh who has brought with him the original register No. 19 and has proved the copies of its relevant pages as ExPW 19/A (Colly).
PW 20 SI Rajesh Maurya, PW 21 Constable Vijay Kumar and PW 22 constables Satinder appeared in the court to give their statements but they were dropped by the prosecution.
PW 23 is Inspector M. L. Chander the investigating officer of this case. He stated that on 16.6.07 he was present on his duty at Gurudwara Rakab Ganj when he heard about the dead body through a wireless message and he immediately reached at the spot, i.e., behind Primary School, Bengali Market, New Delhi. At that time SI Jai Singh along with one constable was present there. Thereafter he inspected the area. Crime team was called. After inspection of the dead body, it was found his head was smashed with stones and was having only underwear and socks. Age of the dead body was about 20-22 yrs. Senior officers of police department also came there. With the consultation of the senior officers it was decided that it was a murder case and hence case under Section 302 IPC was got registered. Rukka was sent through constable Vijay by SI Jai Singh. In the meantime crime team also reached there. The body was photographed and help of the dog squad was also taken. On the inspection of scene of crime a T shirt of grey colour with stripes was found there. It was taken into custody vide memo Ex. PW 13/C (also already exhibited as Ex.SC No. 128/07 Page13/36
PW.12/F). One constable from the RPF was also there. Body was removed to RML hospital along with SI Jai Singh. He lifted the blood stains from the body, earth control, grass as well as from the ground vide memo Ex. PW 12/C, 12/D and 12/E .
In the meantime SI Jai Singh came from the hospital and he handed over finger prints of the deceased to him. Constable from police station Tilak Marg also reached at the spot along with copy of FIR and original rukka and filled up the relevant columns of the paper. Site plans were also prepared by him which are Ex. PW 23/A and 23/B. After that he made inquiries from the area and no clue could be found. He sent wireless message on all India basis for the identification of the body. Hue and cry notices were also distributed among the police station and displayed in rails and railway stations.
On 20.6.07 one Riyasat Khan from Uttar Pradesh came along with 3-4 persons after identifying his son from the posters displayed at Tilak Marg railway station. He took him to the RML hospital and showed the body where the body was preserved for identification. He immediately identified the body. Postmortem of the body was got conducted and body was handed over to his father. Deceased used to reside with one Dalip in Sahibabad. The name of deceased was Sajid and one Sehwal his relative was also living along with him during that night of 16-17/6/07. On the morning of 17.6.07 he came to know that Dalip and one Ajay @ Appu had killed Sajid SC No. 128/07 Page14/36 who informed his father after reaching there. Then with the help of sources he arrested accused Dalip from Kartar Nagar and also arrested accused Ajay @ Appu. He prepared their arrest memos and personal search memos which are Ex. PW 7/A, 16/F,16/G and Ex. PW 7/B. Disclosure of the accused persons were recorded vide memo Ex. PW 7/C( objected to) and 7/D. Pointing out memo was prepared at the instance of Dalip Ex. PW 16/E. In pursuance of the disclosure made by accused Dalip one stone was recovered from the bushes near the place of occurrence vide memo Ex. PW 7/D. Pair of shoes was also recovered from the residence of accused Dalip at his instance vide memo Ex. PW 6/A. One T shirt and trouser were also recovered from accused Dalip vide memo Ex. PW 7/E. One half empty bottle at the instance of accused Dalip was recovered from near Minto Bridge vide memo Ex. PW 16/C. Clothes of the accused Ajay were also seized vide memo Ex. PW 16/D. Witness identified the articles seized by him i.e. Ex. PW 7/P1 as the T shirt recovered vide memo Ex. PW 13/C. Ex. PW 7/P2 as the stone recovered vide memo Ex. PW 7/D. Ex. PW 6/P1 is the pair of shoe recovered vide memo Ex. PW 6/A. Ex. PW 7/P3 are the clothes of the accused Dalip. While Ex.D1 clothes of accused Ajay. Ex. C1 is the half empty bottle recovered vide memo Ex. PW 16/C. He also seized medical exhibits of the deceased vide memo Ex. PW 16/A. Articles seized by him were sealed with the seal of MLC. After collecting the relevant documents and recording SC No. 128/07 Page15/36 statement of witnesses, charge sheet was filed in the court . Both the accused then present in the court were identified by the witness. He also tendered FSL report Ex. PY and PZ in evidence. PLEA AND DEFENCE OF ACCUSED PERSONS In the statements under section 313 CrPC the accused persons have either expressed their ignorance as to the incriminating evidence put to them from the prosecution evidence or they have denied the question of put to them. The accused persons have stated that they were innocent and have been falsely implicated in this case. They have also stated that the witness Sehwal has concocted the story in order to save his own skin and they have a strong suspicion that he had killed Sajid. The accused persons did not lead any evidence in their defence.
ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State, learned counsel for accused persons Sh. L. K. Verma Avocate and have gone through the record of the case and the relevant provisions of law. No authority is cited from either side.
The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial SC No. 128/07 Page16/36 evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE
In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
In Venkatesan Vs. State of Tamil Nadu AIR 2008 Supreme Court 2369, it was held as under:
"2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also.
The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from facum probans, that is, the evidentiary facts.
To put it differently circumstantial SC No. 128/07 Page17/36 evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed."
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukhram Nath Vs. Commercial Credit Corpn Ltd. AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. (See Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320). The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shanker Bhaka Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554).
SC No. 128/07 Page18/36In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on SC No. 128/07 Page19/36 circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350);
Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must SC No. 128/07 Page20/36 be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of SC No. 128/07 Page21/36 two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC No. 128/07 Page22/36 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 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."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622).
Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;SC No. 128/07 Page23/36
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme Court Cases 67 relied upon by learned counsel for the accused it was held as under:
"8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the SC No. 128/07 Page24/36 one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof "
In the backdrop of above legal position as to cases based on circumstantial evidence it is to be seen whether the prosecution has been able to prove incriminating circumstances and each part of chain of circumstances appearing against accused persons beyond reasonable doubt.
LAST SEEN EVIDENCE According to the prosecution story the deceased Sajid and the two accused persons went together from the house where they were living together in Sahibabad and after some time only the accused persons returned and not the victim Sajid. The prosecution has produced three important witnesses for this aspect of its case namely PW5 Riyasat Khan, PW7 Sehwal ExPW8 Baby the wife of accused Dilip.
PW8 Baby is a hostile witness and has not supported the prosecution either in her examination-in-chief or in the cross- examination.
PW5 Riyasat Khan has stated that his son Sajid used to SC No. 128/07 Page25/36 reside with Sehwal in Delhi and was working in Jafrabad at a shoe shop . On 17/6/2007 Sehwal came to the village and told him that he was present in the room. Dalip came there and asked Sajid to come with him to see movie. Sajid refused to go with him as he was to go to his native place. But Dalip took him forcibly on the pretext that they will return back after an hour. Dalip returned back after an hour with shoes and clothes stained with blood and gave the same to his wife Baby and told that he had killed Sajid. Sehwal was present at the house at that time. Baby, wife of accused Dalip told Sehwal to run away from there, otherwise Dalip would kill him. Therefore, this witness PW5 has given hearsay evidence. His knowledge of the facts stated by him is derived from PW7 Sehwal. Let us see what this PW7 has stated in this regard.
PW7 Sehwal stated in his examination in chief that he came to Delhi on 10/20 days prior to the incident and started residing with Sajid who was living with Dalip and his wife Baby in the same room. He stated that accused Dalip and accused Ajay took Sajid with them in search of some job. He told Sajid not to go with Dalip and his friend but on the insistence of accused persons, Sajid accompanied them. At about 3-4 AM both the accused persons came to the room but Sajid was not with them. On being asked by him, Dalip told that Sajid had run away by taking Rs. 50,000/--. In the morning, Baby wife of accused Dalip told him that Sajid has been killed by Dalip and his SC No. 128/07 Page26/36 friend Ajay. Baby told him to run away from there because if they came to know that he was aware of this fact, he would be killed. Immediately he left the room for his hometown. There he informed parents of Sajid about the incident.
Therefore, there are material contradictions in the statement of PW5 Riyasat Khan and PW7 Sehwal. While PW5 Riyasat Khan has stated that PW7 Sehwal told him that accused persons took Sajid with him on the pretext of seeing movie but PW7 Sehwal has stated in the Examination-in-chief that they took deceased Sajid in search of some job, while PW5 Riyasat Khan has stated that his deceased son was working in Jafarabad at a shoe shop. PW7 Sehwal has stated that on the return of the accused Dalip on being asked, Dalip told him that Sajid had run away by taking Rs. 50,000/--. But father of the deceased Sajid PW5 Riyasat Khan has stated that Dalip returned back after an hour with shoe and clothes stained with blood and gave the same to his wife Baby and told that he had killed Sajid while according toPW7 Sehwal Baby told him that Sajid has been killed by Dalip and his friend Ajay.
The statements of PW5 Riyasat Khan and PW7 Sehwal are at complete variance with regard to last seen theory for which they were produced by the prosecution. Further, Baby the wife of accused Dalip who was examined by the prosecution as PW8 has not supported at all the prosecution case. Therefore, the prosecution in the present SC No. 128/07 Page27/36 case, has failed to prove the important aspect of the accused and the victim being last seen or going together on the said date while only accused Dilip a returned with coaccused Ajay and victim Sajid did not return with them.
RECOVERY OF CASE PROPERTY The prosecution has relied upon recovery of alleged bloodstained clothes, stone the weapon of offence, the shoe of the victim to connect the accused persons with the crime in question.
For the recovery of shoes of victim Sajid the prosecution has relied upon the recovery memo ExPW 6/A and upon the witnesses PW6 Devender Kumar, PW8 Baby wife of accused Dalip, PW21 Constable Vijay Kumar, PW7 Sehwal and the investigating officer PW 23 Inspector ML Chander. Out of the witnesses Constable Vijay' as PW 21 was dropped.
PW7 Sehwal identified the pair of shoe so recovered and belonging to victim Sajid as ExPW 6/P1. PW6 Devender the landlord of accused Dalip has identified the said pair of shoe and has proved the seizure memo of the shoes as PW 6/A. PW7 Sehwal one of the main public witnesses relied upon by the prosecution has stated in the examination-in-chief in response to a court question that the shoe of Sajid was of white and blue colour with laces. But in the cross- examination, after the shoes have been produced in the court, this witness admitted it correct that there was no blue colour on the shoe SC No. 128/07 Page28/36 ExPW 6/P1. In the seizure memo ExPW 6/P1 of the shoe the description of the shoe is given by stating inside the shoe there was red colour material and the outer side of the shoe was having designs of white, black and red colour. Further, there is contradiction as to place of recovery, though PW6 Devender has stated that shoe was recovered by police from the tenanted room of accused Dalip and was shown to him in a polythene but PW7 Sehwal has stated in the cross- examination that in his presence Baby on the direction of Dalip had brought the shoe to police station from her house. He did not remember the way by which shoe was brought in the police station whether it was in plastic or hanging from her fingers. PW8 Baby did not say in the examination-in-chief anything about recovery of shoe and in the cross-examination she has denied that accused Dalip had brought the shoe of Sajid. She has denied the suggestion made on behalf of prosecution that any recovery of shoe was effected in his presence by the police from her house and she volunteered that police obtained her signature on blank paper at police station Tilak Marg. Therefore, the three public witnesses produced by the prosecution for recovery of shoe of deceased Sajid are not reliable to prove the said recovery of shoe. Further, there is no convincing evidence produced by the prosecution to establish that the said shoe belonged to deceased Sajid. Under the circumstances it would not be safe to hold that the prosecution has been able to prove the recovery of shoe at the instance SC No. 128/07 Page29/36 and from the rented room of accused Dalip.
The prosecution has relied upon the recovery of the stone as weapon of offence by seizure memo ExPW 7/P2 at the instance of accused Dalip. The investigating officer PW 23 MC Chander, PW 16 SI KL Yadav and PW7 Sehwal are produced to prove it.
PW7 Sehwal stated and according to the three said other witnesses the said Stone ExPW 7/P2 was recovered vide memo ExPW 7/D. But the recovery of the said stone by the police at the instance of accused Dalip is of little value as PW 14 Doctor Sharbana Kumar who has conducted post-mortem on the dead body of the deceased and has given opinion that injuries detected on the post-mortem could have been caused by the alleged weapon of offence, i.e., stone and has proved the subsequent opinion as ExPW 14/B, has also stated in the cross-examination that it was correct that the injuries found on the dead body of the deceased could have been caused by any other blunt heavy object other than the object shown to him for subsequent opinion. He also stated that it was correct that at the time of examination of weapon of offence, he did not find any hair on it. He also stated that possibility could not be ruled out that the hair of the person on whom the injuries have been caused may be fixed/appeared on the weapon. In the FSL report dated 2/9/2008 the blood could not be detected on the said Stone. The absence of hair or blood of the deceased on the alleged weapon of offence, i.e., stone despite the fact SC No. 128/07 Page30/36 that there was plenty of blood lying at the spot and dead body, as is clear from the photographs of the spot proved by the prosecution, makes recovery of weapon of offence to connect with the crime in question, doubtful. Further, PW7 Sehwal has stated in the cross- examination that it was incorrect that there were many stones lying there. But the investigating officer PW 23 retired Inspector ML Chander has stated in the cross-examination that it was correct that where the body was lying so many stones were lying near the place. This contradiction assumes importance as the investigating officer PW 23 MC Chander has stated in the cross-examination that the stone was recovered at a distance of 2 feet from the place where the body was lying. The stone, the alleged weapon of offence, was also not photograped . Therefore, the prosecution case regarding recovery of the weapon of offence is not established by any convincing evidence.
According to the prosecution of the half liquor bottle was seized at the instance of accused Dalip in presence of PW 23 MC Chander, PW 16 SI KL Yadav and PW 20 SI Rajesh Kumar Maurya near a bush near electric pole No. 1536/29 A near the railway track near railway guesthouse vide seizure memo ExPW 16/C. PW 20 SI Rajesh Kumar Maurya was dropped by the prosecution. PW 16 SI KL Yadav has stated in the cross-examination that he could not tell the mark of half of liquor bottle. It was not broken and was without cap. The cap not found near the place from near the said half liquor bottle SC No. 128/07 Page31/36 was recovered. But in the seizure memo ExPW 16/C it is not stated that the said bottle was without any cap. Therefore, this contradiction between the statement of PW 16 SI KL Yadav in the cross- examination and the seizure memo ExPW 16/C is material and throws doubt in the recovery of half liquor bottle at the instance of accused Dalip, more so, when PW9 Babu Kashyap the brother of PW8 Baby who is produced by the prosecution to prove accused persons and deceased were consuming liquor near railway track, has not supported prosecution case, at all.
The prosecution has also relied upon recovery of clothes from accused Dalip vide memo ExPW 7/E and from accused Ajay vide memo ExPW 16/D to show that these clothes, suspected having bloodstains, were recovered from these two accused persons and were worn by them at the time of incident. It has also relied upon the T-shirt of the victim recovered vide memo ExPW 13/C. In the FSL report on the both T-shirts human blood was found but as per report of the Biology Division of the FSL the analysis of blood group gave inconclusive result. Therefore, the blood group on the two T-shirts recovered could not be ascertained to connect it with the blood group of the deceased Sajid which as per the report of Biology Division, on the other articles, was of 'O' Group. Hence, the recovery of clothes of the accused persons or the T-shirt of the victim from the spot could not connect the two accused persons with the crime in question.
SC No. 128/07 Page32/36In view of above discussion it is clear that the prosecution has not been able to prove beyond reasonable doubt the recovery of weapon of offence, the stone in question, the recovery of shoe of the victim at the instance of accused Dalip and the recovery of half liquor bottle. Nor it could connect the accused persons with the crime in question by seizing the clothes of accused persons or recovery of T- shirt from the spot allegedly belonging to the victims Sajid. EXTRAJUDICIAL CONFESSION The prosecution has relied upon the statement of PW7 Sehwal and PW8 Baby to prove extra judicial confession of accused Dalip. PW8 Baby who is wife of accused Dalip has turned hostile, as already stated, and has not supported the prosecution at all in this case. PW7 Sehwal has stated that Baby, wife of Dalip told him that Sajid has been killed by Dalip and his friend Ajay. Baby told him to run away from there because if they came to know that he ( PW7 Sehwal) was aware of this fact, he would be killed. But PW8 Baby has not stated in her statement that she has told PW7 Sehwal that accused persons have killed Sajid. Further PW5 Riyasat Khan who derived his knowledge of the incident from PW7 Sehwal has stated that Dalip returned back after an hour with shoe and clothes stained with blood and gave the same to his wife Baby and told that she had killed Sajid. Sehwal was present at the house at that time. Therefore, the statement of PW5 Riyasat Khan indicates that accused Dalip told his wife Baby SC No. 128/07 Page33/36 that they had killed Sajid and PW7 Sehwal was also present there but PW7 Sehwal has stated that he was told by Baby that accused persons have killed Sajid and there is no indication in the statement of PW7 Sehwal that accused Dalip told this fact to Baby in his presence. Therefore, due to this contradiction in the statement of PW5 Riyasat Khan and PW7 Sehwal, the alleged extrajudicial confession of accused Dalip to his wife Baby is not proved, more so, when PW8 Baby has not support the prosecution case in this respect or otherwise. MOTIVE In a case based on circumstantial evidence the motive of the accused in committing the murder of the deceased assumes importance. In the present case according to the prosecution story the deceased Sajid had illicit relations with Baby the wife of accused Dalip. But, as already stated, PW8 Baby has not supported the prosecution version on any aspect of the prosecution case including the motive of accused as alleged where prosecution. The only witness to prove motive is PW7 Sehwal. In response to a specific question put to him about relationship of Sajid with Baby he has stated that Sajid had told him that he had illicit relations with Baby. He had not seen them ever in objectionable position but he had developed doubt on their manner of talking. He also stated that he could not tell who others were knowing about the relations of Sajid and Baby. He had noticed some whisper between Baby and Dalip regarding relationship of Sajid SC No. 128/07 Page34/36 and Baby. Therefore, PW7 Sehwal is not eyewitness to alleged illicit relation between deceased Sajid and Baby. He has stated that this fact was told to him by deceased Sajid.
The father of deceased Sajid, PW5 Riyasat Khan has stated that he had come to Delhi one and a half months before the incident. It is difficult to believe that in such a short span of time deceased Sajid would develop illicit relations with Baby, a married woman. Further,PW7 Sehwal has stated in the cross-examination that he and Sajid used to sleep at the roof of the house and Dalip and his wife Baby used to sleep in the room. Therefore, this statement of PW7 Sehwal also negatives the alleged illicit relationship between Sajid and Baby, more so, when PW8 Baby has not supported the prosecution at all. Therefore, motive imputed to accused Dilip in committing murder of Sajid is not established. There is no motive alleged against coaccused Ajay who is stated to be friend of accused Dalip. RESULT OF THE CASE In the light of above discussion made under different headings the prosecution has not been able to prove its case against accused Dalip @ Naresh @ Kalia by not proving the different parts of chain of alleged incriminating circumstances appearing against him, beyond reasonable doubt. The case of prosecution is more weak against co-accused Ajay @ Appu @ Deepak. Hence, the prosecution has failed to prove its case against the accused persons beyond SC No. 128/07 Page35/36 reasonable doubt. The accused persons are acquitted of the charges under section 302/34 IPC . The bail bonds are discharged. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The file be consigned to the record room.
Announced in the
open court on 14/06/2010 ( S.K. SARVARIA )
Additional Sessions Judge-01/South
Patiala House Court/New Delhi
SC No. 128/07 Page36/36