Delhi District Court
Digitally Signed By vs . on 1 October, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 244 of 2017
CNR NO. DLSE01-004509-2017
State
Vs.
1. Kamrul Islam Ghazi
S/o Sh. Karmat Islam Ghazi
R/o 659, Phase-111, J.J. Colony,
Raj Nagar, Madanpur Khadar,
Jaitpur, New Delhi.
FIR No. 60/17
U/s: 302/394/411/34 IPC
PS: Sarita Vihar
Instituted on : 24.05.2017
Committed on : 07.06.2017
Argued on : 01.10.2022
Decided on : 01.10.2022
JUDGMENT
1. The accused in the instant case has been sent to face trial for offence u/s 302/394/411/34 IPC with the allegations that on 23.02.2017 at about 9.30 PM to 24.02.2017 at about 11.15 AM, near Gol Chakkar, Vacant Plot of DDA, Jasola Vihar, New Delhi within jurisdiction of PS Sarita Vihar, he, in furtherance of his common intention with 'S' i.e. Child in Conflict with Law (CCL) committed murder of deceased Alom Miyan and committed robbery of his Aadhar Card, PAN card and rickshaw.
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AGRAWAL Date: 2022.10.01
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2. The facts as discernible from record may be taken note of: On 24.02.2017, on receipt of DD No. 11A regarding lying of a dead body at Jasola Golchakkar, near Jasola Apollo Metro Station, first Investigating Officer (IO)/ Inspector Benkatesh Kumar alongwith Ct. Ashok Kumar reached at the spot and found one dead body lying near bushes in a vacant DDA plot. The blood was oozing out from back side of head and neck of the dead body which was entangled between stones. No eyewitness was found at the spot. The FIR under section 302 IPC was registered and matter was investigated.
2A. During course of investigation, crime team inspected the spot, exhibits were lifted and photographs were taken. The dead body was sent to Mortuary, AIIMS Hospital for its preservation through Ct. Ashish. For identification of the dead body, details were uploaded on ZIPnet and Hue & Cry Notice were distributed.
2B. On 25.02.2017, one person namely Hazrat Ali i.e. complainant came to police station and informed about missing of his brother Alom Miyan. His statement was recorded wherein he informed that his brother was working as garbage collector and had gone on 23.02.2017 at about 8.00 PM to Village Kotla Mubarakpur for collecting garbage in the rickshaw and did not return till night; that deceased often used to play cards with accused and borrowed his (accused) rickshaw which got stolen; that accused used to quarrel with his brother in connection with said rickshaw and had threatened to kill him.
2C. The complainant further alleged that on 23.02.2017 at about
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9.30 PM, he had seen his brother and accused alongwith his (deceased) rickshaw at Road No.13 near Style Mall and he had asked his brother to come home to which his brother replied that he would come after some time; that his brother did not come back home; that he has apprehension that accused might have killed his brother to rob him of his rickshaw.
2D. The photographs of the dead body were shown to the complainant who identified the same as that of his missing brother Alom Miyan i.e. deceased. After postmortem, dead body of the deceased was handed over to him. The cause of death in the instant case was opined as 'Coma due to antemortem cranio-cerebral injury caused by blunt force impact'. All the exhibits were sent to FSL Rohini for examination.
2E. During investigation, on 12.03.2017, accused Kamrul Islam Ghazi and CCL 'S' were apprehended at the instance of one secret informer and after arrest, accused (alongwith CCL) confessed having killed the deceased by giving repeated stone blows on his head and thereafter having robbed him of his rickshaw, Aadhar Card and PAN Card. The robbed rickshaw and Aadhar Card were recovered from possession of accused whereas PAN Card of deceased was recovered from possession of CCL 'S'.
3. Upon completion of investigation, chargesheet u/s 173 CrPC was filed against the accused for offence u/s 302/394/397/411/34 IPC whereas the case against CCL was sent to concerned Juvenile Justice Board. After statutory compliance, present case was committed to the SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 3 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:07:54 +0530 court of Sessions by Ld. Magistrate vide order dated 03.06.2017.
4. Vide order dated, accused was formally charged for commission of offence under section 302/394/411/34 IPC, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
5. In order to prove its case, prosecution examined 05 witnesses of which PW1 Hazrat Ali is the witnesses of last seen i.e. the witness who had lastly seen the accused with the deceased prior to latter's death. The remaining prosecution witnesses are the police officials who were part of investigation in the instant case.
STATEMENT OF ACCUSED U/S 313 CrPC:
6. Examined under section 313 of CrPC, the accused either pleaded ignorance about the incriminating evidence or denied the same as incorrect. He claimed to be falsely implicated.
ARGUMENTS OF Ld. SUBSTITUTE ADDITIONAL PUBLIC PROSECUTOR FOR THE STATE:
7. This is a case of circumstantial evidence. Ld. Substitute Addl. PP submitted that prosecution has successfully established the chain of circumstances sans any break; that the chain of circumstances is consistent with the guilt of the accused and wholly inconsistent with the hypothesis of his innocence. Ld. Addl. PP went on to argue that accused committed the murder of the deceased; that testimonies of all the prosecution witnesses were consistent and there were no contradictions SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 4 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:08:00 +0530 therein; that as per PW1, the victim was lastly seen in the company of accused and soon thereafter he was found dead.
7A. He further argued that prosecution successfully established the 'motive to commit murder' by proving through PW1 that accused used to quarrel with deceased for his stolen rickshaw and had threatened to kill him; that besides the oral testimonies, the medical and scientific evidence complete the chain of circumstances against the accused. As per him, prosecution successfully proved the following chain of circumstances:-
(i) The victim was lastly seen in the company of accused on 23.02.2017 at about 9.30 PM and soon thereafter i.e. on 24.02.2017 he was found dead;
(ii) Accused had motive to murder the deceasd as former used to quarrel with latter with regard to his stolen rickshaw;
(iii) The robbed rickshaw and Aadhar Card of deceased were recovered from possession of accused;
(iv) All the injuries on the body of deceased were 'antemortem' in nature and occurred due to blunt force;
(v) The weapon of offence i.e. two big stones were found having human blood (as per FSL report Ex. AD3) and the blood group on one of said stone piece was found matching with that of deceased.
(vi) Though exact time of death could not be ascertained, however as per the post-mortem, the time of death correspondence with the period when the victim was seen in the company of accused.
ARGUMENTS OF Ld. DEFENCE COUNSEL:
8. Ld. defence counsel contended that the testimony of last seen witness is not reliable. He argued that prosecution has not been able to prove the circumstances, on which it relies, against the accused SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 5 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:08:19 +0530 conclusively and therefore, the accused deserves benefit of doubt. He argued that neither the oral deposition nor the testimony of expert witnesses are sufficient in the instant case to prove the circumstances and to complete the chain thereof so as to return a finding of guilt against the accused.
9. I have heard rival contentions and perused the record. For appreciating the rival contentions, it would be apt to analyze the evidence brought on record in detail to adjudicate, if the prosecution has been able to prove its case beyond all reasonable doubts or whether accused deserves to be acquitted in the present case?
EVIDENCE ON RECORD:
10. PW1 Hazrat Ali is the complainant and the brother of deceased who deposed that latter used to carry his rickshaw to collect garbage; that on the date of incident in the morning, deceased Alom Miyan took his rickshaw and went for collecting garbage; that deceased did not come home till evening and he started searching his brother; that he did not find the deceased; that after the murder of his brother, his rickshaw was recovered; that he does not remember anything else.
10A. The witness was cross examined by Ld. Addl. PP for State with permission of the court. During his cross examination, he deposed that he does not know if his brother used to gamble with accused or not; that he does not know if accused asked his brother to return his rickshaw or pay for the same. He however admitted the suggestion that he came to SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 6 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:08:27 +0530 know that a quarrel took place between accused and his brother on the issue of rickshaw/ money. He further admitted the suggestion that accused had threatened to kill his brother.
10B. During his further cross examination (by Ld. Addl. PP for the state), he however denied the suggestion that on 23.02.2017 at about 9.30 PM, he had seen the accused and deceased near Living Style Mall, Road No.13. He further denied the suggestion that he asked his deceased brother to come at home who denied saying that he will come after some time. He admitted the suggestion of State that in March 2017, he had gone with police team near Splendor Forum Building and saw accused driving the rickshaw (of deceased) with CCL being its rider. He further admitted the suggestion that he had identified the said rickshaw as belonging to his brother as 'Alom Miyan' was written on the paddle of the rickshaw. He further admitted that the rickshaw was painted at that time.
10C. The witness further admitted the suggestion that the police officials had seized the rickshaw from accused vide seizure memo Ex. PW1/G bearing his signature at point A. He further admitted the suggestion that during formal search, one Aadhar Card of his brother was found from possession of accused which was seized vide seizure memo Ex. PW1/H. He further admitted the suggestion that on 23.02.2017 at about 9.30 PM, he had seen accused with his brother near Living Style Mall, Road No.13 and could not recollect the said fact due to lapse of time.
10D. During his cross examination by Ld. LAC, he denied the
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suggestion that no quarrel between accused and his brother took place in his presence. He further voluntarily deposed that the quarrel took place behind Apollo Hospital at about 7.00 PM. He further denied the suggestion of defence that he did not see the accused and his brother near Living Style Mall.
11. PW2 Inspector Mukesh Kumar (Draftsman) prepared the scaled site plan Ex. PW2/A.
12. PW3 ASI Babu Lal, photographer, Mobile Crime Team proved photographs Ex. PH-1 to Ex. PH-11 and their negatives Ex. PW3/P1 to Ex. PW-3/P11 of the dead body.
13. PW4 Inspector Benkatesh Kumar is the first IO who deposed that on 24.02.2017, on receipt of DD No.11A, he alongwith Ct. Ashish had reached the spot i.e. Jasola Gol Chakkar where a dead body was found in front of the Splendor Forum Building in a vacant land of DDA in the bushes; that there was bleeding on the head and nose and dead body was entangled in stones; that Crime Team and Dog Squad was called at the spot; that Crime Team inspected the spot and took photographs; that no eyewitness was found at the spot and even the dead body could not be identified; that on the basis of DD entry and inspection of place of spot, he prepared tehrir Ex.PW4/A; that in the meantime, concerned SHO and police staff including Ct. Rohtas Malik reached at the spot and he handed over the tehrir to Ct. Rohtas Malik for registration of FIR; that after registration of FIR, Ct. Rohtas Malik came back and handed over copy of FIR and original tehrir to Inspector Sanjeev Mishra who had already SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 8 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:08:44 +0530 arrived at the spot and to whom the investigation of present case was assigned.
13A. He further deposed that during course of investigation, Inspector Sanjeev Mishra prepared the site plan and the exhibits found at the spot were sealed the seal of BK and seized the same vide seizure memo Ex.PW4/B; that thereafter, dead body was sent to Mortuary through Ct Ashish; that on 12.03.2017, he along with IO, ASI Yogender and brother of deceased namely Hazrat Ali reached behind Apollo Hospital where secret informer met them and on the basis of secret information, a raiding party was constituted comprising of aforesaid officials and secret informer; that thereafter raiding team reached near the Spelendor Forum Building where they found a garbage carrier paddle rickshaw was coming from the side of Jasola where one person was riding the same and another was seated on the back portion of said rickshaw; that on the pointing out of secret informer, both the said persons were apprehended; that during this course, ASI Khalil also visited at the spot; that after apprehension, both the said persons were interrogated and the person who was driving / riding the rickshaw revealed his name as Kamrul Islam Gazi and another person who seated on back portion of rickshaw revealed his name as CCL 'S'; that accused Kamrul Islam Gazi was identified by the brother of the deceased namely Hazrat Ali who disclosed that on 23.02.2017 at about 9.00-09.30 pm, he had seen the deceased Alom Miyan alongwith the accused Kamrul Islam and also identified the garbage carrier / rickshaw which was found in the possession of accused Kamrul Islam and another person who was found CCL; that near the paddle of said rickshaw, name SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 9 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:09:04 +0530 of deceased Alom Miyan was found written; that ASI Khalil Ahmed was sent to house of CCL 'S' to give information at his house and JWO was also called at the spot.
13B. He went on to depose that both the persons including CCL were interrogated and on their cursory search, one adhar card of deceased Alom Miyan was recovered from the right pocket of wearing pant of accused which was identified by the witness Hazrat Ali as the adhar card of his brother; that said adhar card and garbage cycle rickshaw were seized vide memos already Ex.PW1/H and Ex.PW1/J respectively by the IO; that accused Kamrul was arrested vide memo already Ex.PW1/D and his personal search was conducted vide memo already Ex.PW1/E; that accused Kamrul had also pointed out the place of commission of offence vide memo Ex.PW1/I; that CCL 'S' was handed over to JWO SI Nagender Nagar who was also apprehended and during his cursory search, one PAN card in the name of deceased Alom Miyan was recovered from the right pocket of his wearing pant which was also identified by brother of deceased as the card of deceased; that said PAN card was seized; that thereafter they returned back to PS alongwith accused and case property.
14. PW5 Inspector Sanjeev Mishra is the second investigation officer of the present case who deposed about the investigation conducted by him. He deposed on line of PW4. He inter alia deposed about following facts:-
(i) seizure of two stones (one being large and one being small in size) from the spot vide seizure memo Ex.PW4/B;
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(ii) identification of dead body by the complainant on the basis of photographs;
(iii) arrest of accused vide memo Ex. PW1/D;
(iv) seizure of the cycle rickshaw (of deceased) vide memo Ex.PW1/G from possession of accused;
(v) seizure of Aadhar Card vide memo Ex. P-1.
15. Record reveals that during course of trial, accused admitted certain documents of prosecution i.e. registration of FIR Ex. A1, DD No. 11A Ex. A2, General Diary No. 10A Ex. A3, DD No. 41B Ex. A4, MLC No. 1617 of 2017 Ex. A5, postmortem report of the deceased Ex. A6, crime scene report Ex. AD1, PCR form Ex. AD2, FSL reports dated 25.07.2017 and 28.06.2017 Ex. AD3 (colly) and Ex. AD4 respectively and subsequent opinion Ex. AD5 vide his separate statements recorded on two occasions i.e. on 08.03.2021 and 30.05.2021. Therefore, the said documents can be read into evidence without formal proof of same in terms of section 294 CrPC.
DISCUSSION ON LAW:
16. Since the case of prosecution is based on circumstantial evidence, it would be apt to have a look on the law in this regard.
Supreme Court in Anwar Ali and Another Versus The State of Himachal Pradesh, Crl Appeal No.1121/2016 dated 25.09.2020, held as under:-
"5.4 It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 11 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:09:18 +0530 circumstantial evidence, 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 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. In the case of Babu (supra), it is observed and held in paragraphs 22 to 24 as under:
"22. In Krishnan v. State (2008) 15 SCC 430, this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15) "15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) 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
(iv) 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. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351)"
23. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 12 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:09:24 +0530 must be fully established. They are: (SCC p. 185, para
153)
(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. A similar view has been reiterated by this Court in State of U.P. v. Satish (2005) 3 SCC 114 and Pawan v.
State of Uttaranchal (2009) 15 SCC 259.
24. In Subramaniam v. State of T.N (2009) 14 SCC 415, while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh Bhai v. State of Rajasthan (2009) 12 SCC 603)." 5.5 Even in the case of G. Parshwanath (supra), this Court has in paragraphs 23 and 24 observed as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 13 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:09:42 +0530 and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
17. In Shivaji Chintappa Patil Vs State of Maharashtra, Crl. Appeal No. 1348/2013 dated 02.03.2021, Hon'ble Apex Court observed as under:
"11. The law with regard to conviction on the basis of SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 14 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:09:49 +0530 circumstantial evidence has been very well crystalised in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made : [SCC para 19, p. 807 :
SCC (Cri) p. 1047] "19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
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18. Further, in State of Odisha Vs Banabihari Mohapatra and Anr., Special Leave Petition (Crl.) No.1156/2021, dated 12.02.2021, Supreme Court held as under:-
"35. Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any 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.
36. In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:
"10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.
10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 10.3. The circumstances taken cumulatively must 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.
10.4. 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."
37. Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 16 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:10:07 +0530 for interference under Article 136 of the Constitution of India.
38. It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.
39. In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence."
19. Next, in Anjan Kumar Sharma Vs. State of Assam (2017) 14 SCC 359, it was observed:
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' not and 'may be' established; (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 the explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature of tendency;
(4) They should exclude every possible hypothesis except the one to be provided; 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 shown that in all human probability the act must have been done by the accused (See: Sharad Birdhichand Sarda v. State of Maharashra (1984) 4 SCC 116; M G Agarwal v. State of Maharashtra AIR 1963 SC 200)."
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20. The principles with regard to appreciation of circumstantial evidence have also been explained in Gagan Kanojia Vs. State of Punjab (2016) 13 SCC 516.
21. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
22. In light of these guiding principles, I shall now give my findings in the factual matrix of present case.
FINDINGS:
23. Firstly, I shall adjudicate if prosecution has been able to successfully prove the various circumstances, whereupon it relies, in the present case.
CIRCUMSTANCE OF LAST SEEN:
24. Apex Court in Nizam & Anr. vs. State of Rajasthan, Crl. Appeal No. 413/2007, decided on 04.09.2015, discussed the law regarding last seen theory. It was observed: -
SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 18 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:10:25 +0530 "Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319."
25. Further, in Ramreddy Rajeshkhanna Reddy & Anr vs State Of Andhra Pradesh, Appeal (Crl.) 997 of 2005, Hon'ble Apex Court held as follows:
"It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 19 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:10:34 +0530 grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603].
The last-seen theory, furthermore, 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 courts should look for some corroboration."
26. In case of State of U.P. v. Satish, Appeal (Crl.) 256-257 of 2005, with regard to last-seen theory following was held:
"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. In this case there is positive evidence that the deceased and the accused were seen together by witnesses."
27. The other cases of Supreme Court based on last-seen theory is tabulated below for ease of appreciation and understanding:
1 Bodh Raj @ Bodha v. State of Jammu and Kashmir, The last seen theory comes into play where the (2002) 8 SCC 45; time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 20 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:11:05 +0530 possibility ...............
2 Tipparam Prabhakar v.
State of Andhra Pradesh, 8. The last-seen theory comes into play where the (2009) 13 SCC 534; 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 ..................
3 Rishi Pal v. State of Uttarakhand, (2013) 12 18. Finally in Jaswant Gir v. State of Punjab SCC 551; (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons.
4 Krishnan v. State of Tamil Nadu, (2014) 12 SCC 279; 24. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438, this Court held that in absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.
5 Kiriti Pal v. State of West Bengal, (2015) 11 SCC 14. From the evidence of PWs 6, 7 and 10, 178; prosecution has thus established that Anjali was last seen alive in the company of first appellant Kiriti Pal on the evening of 11.11.2008 and that at about 10.00/10.30 p.m., first appellant Kiriti Pal came alone. The theory of "last seen alive"
comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. .................
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6 State of Karnataka v. Chand
Basha, (2016) 1 SCC 501; 14. The prosecution story relies upon the 'last seen together' theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the 'last seen together' theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the 'last seen together' theory beyond reasonable doubt ............
7 Rambraksh v. State of Chhattisgarh, (2016) 12 12. In the present case as noticed above the SCC 251; Sessions Court as well as the High Court convicted the appellant/ accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set aside.
8 Anjan Kumar Sharma v.
State of Assam, 2017 (6) 21. It is clear from the above that in a case where SCALE 556 the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. .............................
28. Having discussed various principles of law on the aspect of 'last seen', I shall now examine the facts of present case qua circumstance SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 22 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:11:22 +0530 of last seen. As mentioned above, State cited complainant i.e. Hazrat Ali in support of said circumstance and examined him as PW1. As per prosecution version, PW1 had seen his brother i.e. deceased and accused on 23.02.2017 at about 9.30 PM and soon thereafter i.e. on next day at about 9.33 AM, he was found dead. However, evidently PW1 i.e. the sole witness examined in support of 'last seen' did not support prosecution version in the witness box. It is evident from his testimony that during his examination in chief, witness did not depose that he had seen his deceased brother and accused on 23.02.2017 at about 9.30 PM.
29. Further, during his cross examination by Ld. Addl. PP, the witness denied the suggestion that on 23.02.2017 at about 9.30 PM he had seen the accused and his deceased brother near Living Style Mall, Road No.13. It was only during his further cross examination that the witness admitted the suggestion of Ld. Addl. PP in this regard. Therefore, it is clear that the witness has not remained consistent in the witness box and has taken vacillating stand. On one hand, he denied the suggestion of Ld. Addl. PP about having seen the accused and deceased one day prior to discovery of latter's dead body on the other hand, in the later part of his cross examination, he claims to have seen the accused and his deceased brother by admitting the suggestion of Ld. Addl. PP given in this regard. Therefore, the testimony of PW1 is doubtful to say the least and cons away from being of unimpeachable or of sterling quality. No other witness was cited or examined by prosecution in support of theory of last seen. Therefore, considering the doubtful testimony of PW1, I am of the considered view that prosecution has miserably failed to establish the SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 23 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:11:30 +0530 circumstance of last seen in the instant case.
30. Be that as it may, even if assuming that PW1 had seen the deceased and accused on 23.02.2017 at about 9.30 PM, then also it cannot be said that the victim was found dead soon after he was lastly seen alive in the company of accused. The dead body was admittedly discovered on 24.02.2017 at around 9.33 AM i.e. after a gap of around 12 hours. The exact time of death could not be ascertained in the postmortem report Ex.A6 and the time since death has been reported as about 'three days' in the said report. Therefore, it is evident that the said report is not conclusive enough to ascertain the exact time of death so as to reach at a conclusion that the victim was murdered soon after he was seen alive in the company of accused. Further, the postmorterm in the instant case got conducted on 27.02.2017 between 2.10 to 3.10 PM. Therefore, counting therefrom, the date of death comes to 24.02.2017. The dead body was discovered on 24.02.2017 at around 9.33 AM as discernible from DD No. 11A Ex. A2. The victim was lastly seen alive in the company of accused on 23.02.2017 at 9.30 PM. Therefore, there is a gap of around 12 hours between the time when the deceased was lastly seen in the company of accused and the time when his dead body was discovered. Therefore, in view of huge time gap of around 12 hours, it cannot be said that the victim was found dead soon after he was lastly seen alive in the company of accused i.e. on 23.02.2017 at about 9.30 PM.
31. Hon'ble Delhi High Court in a similar situation, while setting aside a conviction for offence u/s 302 IPC in case titled as Deepak Sarna vs. State (NCT of Delhi), Crl. Appeal No. 174/2004, observed as SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 24 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:11:37 +0530 under:-
"49. The picture that emerges from the above discussion is that PWs 1, 5 and 6 are consistent that when he was met by them on 29th October 2000, A-3 admitted that the deceased had visited him on 28 th October 2000 in the evening and was there till around 10 pm. However, this by itself will not make this an incriminating circumstance vis-a vis A-3, since the time and place of discovery of the dead body was not proximate to this event. It will be recalled that the post mortem report placed the time of death at 3 days prior thereto which takes it to the morning of 29th October 2000 and not the night of 28th October 2000.
50. The fact that the dead body was found three days later on 31 st October 2000 and in a well in village Simbhavali in U.P. at a considerable distance from Malviya Nagar makes this circumstance of last seen a rather weak piece of evidence qua A-3. The legal position in this regard has been explained by the Supreme Court in State of U.P. v. Satish (2005) 3 SCC 114, 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."
51. In State of Karnataka v. Chand Basha (2015) 3 ACR 3439, the Supreme Court explained:
"This Court has time and again laid down the ingredients to be made out by the prosecution to prove the „last seen together‟ theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established."
32. Therefore, in my view, once prosecution fails to establish cogently the circumstance of last seen, the case of prosecution, which SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 25 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:11:45 +0530 essentially relies upon the 'circumstance of last seen', comes crumbling like a house of card.
33. In the instant case, apart from the aforesaid circumstance, the other circumstance on which prosecution heavily relies is the recovery of rickshaw and Aadhar Card of deceased from possession of accused. However, in my view, the said circumstance i.e. recovery of rickshaw and Aadhar Card from possession of accused, as vehemently relied upon by Ld. Addl. PP for the state, pales into insignificance in view of failure of prosecution to bring on record any evidence regarding alleged robbery committed against the deceased. It is evident from record that none of the witnesses including the complainant had deposed that the victim was robbed on the fateful day prior to his death. Therefore, in my considered view, the recovered articles i.e. rickshaw and Aadhar Card would not come within ambit of stolen property as defined under section 410 IPC.
34. Even otherwise, it is evident that PW1 did not depose anything in his examination in chief about said recovery and it was only during his cross examination by Ld. Addl. PP, the witness admitted the suggestion about the said recoveries, which to my mind is a very weak kind of evidence which would not suffice for cogently establishing the recovery. Similarly, the motive in the instant case stands not proved in the absence of any cogent evidence and on failure of PW1 to depose anything about same in his examination in chief. The other circumstances as relied upon by State are too weak in nature so as to return a find of guilt against the accused.
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35. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
36. Further, in Jose vs. Sub Inspector of Police, Koyilandy & Ors., (2016) 10 SCC 519, the Supreme Court held as under:-
"In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."
37. In light of aforesaid circumstances, this court has no hesitation in holding that the circumstances relied upon by the prosecution have not been fully established and they are not conclusive in nature. It is not a case where the only hypothesis of guilt of accused can be inferred from the facts brought on record. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could SC No. 244/17, FIR No. 60/17, PS Sarita Vihar State vs. Kamrul Islam Ghazi 27 of 28 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.01 12:11:59 +0530 only lead to one inference i.e. the guilt of the accused. Accordingly, accused stands acquitted in the instant case of all the charge levelled against him. The accused is directed to furnish bail bonds in terms of section 437A CrPC.
38. File be consigned to record room after due compliance.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.10.01 12:12:08
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Announced in the open (ANUJ AGRAWAL)
Court on 1st October, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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