Delhi High Court
Ramu vs The State (Delhi Admn.) on 23 July, 2010
Author: V.K. Jain
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.07.2010
+ Crl.A. 293/1997
RAMU .....Appellant
- versus -
THE STATE (DELHI ADMN.) .....Respondent
Advocates who appeared in this case:
For the Appellant : Ms Nandita Rao, Amicus Curiae
For the Respondent : Ms Richa Kapur
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may Yes
be allowed to see the judgment ?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
V.K. JAIN, J.
1. This appeal is directed against the judgment and Order on Sentence, both dated 19th March 1997, whereby the appellant was convicted under Section 302 of IPC and was sentenced to imprisonment for life and to pay a fine of Rs 1000/- or to undergo R.I. for six months in default.
2. In the morning of 20th September 1994 the dead body of Bhola, wife of the appellant was found lying between railway track near his Jhuggi. The postmortem conducted on the dead body revealed that cause of death was asphyxia. The case of the prosecution is that since there used to be quarrels between the appellant and the deceased, one such quarrel Crl. A No. 293/1997 Page 1 of 21 between them having taken place in the night of 19th September 1994, the deceased was strangulated by the appellant during that night.
3. The prosecution examined 24 witnesses in support of its case. No witness was examined in defence.
4. There is no eye-witness of the murder of the deceased and the case of the prosecution against the appellant rests solely on circumstantial evidence. The following circumstances were sought to be proved by the prosecution against the appellant:-
(i) The relations between the appellant and the deceased were far from cordial and there used to be frequent quarrels between them.
(ii) A quarrel had taken place between the appellant and the deceased at about 9 PM on 19th September 1992.
(iii) The appellant went to PW-4 Ram Ujagar in the morning of 24th September 1994 and represented to him that his wife had died in a train accident, whereas in fact she was murdered.
(iv) The appellant told ASI Mahender Singh, who went to the railway track in the morning of 24th September 1994, on receipt of information about the dead body of the deceased lying there, that she had died in a train accident. Crl. A No. 293/1997 Page 2 of 21
(v) Scratches were found on the right cheek of the appellant, when he was examined after his arrest.
(vi) Broken bangles were found lying on the railway track near the dead body and similar broken bangles were found in the jhuggi of the appellant.
(vii) The nails of the appellant and the deceased tested positive for human blood.
Circumstance No.(i)
5. There is no ocular evidence to prove that the appellant and the deceased used to have frequent quarrels. However, letter Ex.P-1 was seized by the police during investigation of this case. According to PW-10 Ghar Bharan, cousin of the deceased, this letter was written by him at the instance of her brother Hari Ram, in reply to a letter which the appellant had written to Hari Ram. Hari Ram came in the witness box as PW-1 and stated that the deceased used to quarrel with the appellant, as he was not employed. He received a letter from the deceased in this regard and then got the letter Ex.P-1 written to her. He, however, did not claim having witnessed any quarrel between the appellant and the deceased. In cross-examination, he stated that the letter, which he had received from the deceased, was handed over by him to the police. However, that letter has not been produced Crl. A No. 293/1997 Page 3 of 21 by the prosecution.
6. No explanation has been given by the prosecution for not producing the letter written by the deceased to her brother Hari Ram. The learned Trial Judge was of the view that had the letter written by the deceased to her brother been produced, the contents of that letter have gone a long way to show the state of relations between the appellant and his wife and suppression of that letter substantially detracts from the credibility of prosecution version, regarding motive behind the murder. Even otherwise, he found the letter to be innocuous which did not indicate that the appellant entertained any intention to kill his wife. He also noted that the letter was addressed to both of them and did not in any manner imply that the deceased had made a complaint of harassment or torture in her letter. He, therefore, felt that the evidence of motive was quite fragile.
7. We have perused the letter Ex.P-1. It is addressed to both, the appellant as well as the deceased. Vide this letter, both of them were advised not to quarrel and to live peacefully. Even if we believe this letter, in spite of the letter written by the deceased to her brother having not been produced, this shows nothing more than that there was some quarrel between the deceased and the appellant and that is why both Crl. A No. 293/1997 Page 4 of 21 of them were advised to refrain from quarrelling each other. We do not know the date on which the quarrel(s) referred in this letter had taken place or on which date this letter was sent. It does not indicate frequent or incessant quarrels between them.
Circumstance No. (ii), (v) & (vii)
8. There is no direct evidence of the appellant having quarreled with the deceased in the night of 19th September 1994. PW-2 Ashok Kumar, who is the neighbour of the appellant and the deceased did not support the prosecution and stated that he never saw any quarrel between them. PW-6 Indresh, who is another neighbour of the appellant and the deceased, also did not support the prosecution and expressed ignorance about their relations with each other. He claimed that he had never seen them quarrelling. There is no other witness of the alleged quarrel.
9.
10. The appellant was examined by PW-24 Dr.R.P.Sarswat in Civil Hospital vide MLC Ex.PW-24/A. On his examination, the following injuries were found in his person:
"(i) Two abrasions present over front of Right Zygoma placed parallel=Both were one inch long and were covered by black scab.
(ii) Abrasion 1 ½" below outer end of right eye placed horizontally ½" long also covered by Crl. A No. 293/1997 Page 5 of 21 black scab.
(iii) Abrasion fist below right nostril slightly semilunar in shape, 1" long and covered by black scab."
He opined that all the above injuries were possible by human nails and their duration was about two days. However, during cross-examination, he admitted that it takes two to three days for redish - black scab to be formed and, after three days, the scab becomes black. Since the scabs found on the person of the appellant were black, the necessary implication is that they were caused three days before the accused was examined. According to this witness, the appellant was examined at 7.30 pm on 21st September, 1994, meaning thereby, that the injuries in question were caused on 18th September, 1994 and not on 19th September, 1994. Though human blood was found by CFSL in the nails of the deceased, when they were examined in CFSL, the origin and group of that blood could not be ascertained. The blood in the nails of the deceased, therefore, would necessarily not be of the appellant and could be of some other person. Therefore, it is not necessary though it is quite possible, that the injuries to the appellant were caused by the deceased, using her nails for this purpose.
In his statement under Section 313 of Cr.P.C., it was Crl. A No. 293/1997 Page 6 of 21 claimed by the appellant that these injuries were caused to him during police custody. This part of his statement cannot be believed for the simple reason that he having been arrested on 20th September, 1994, the injuries which were three days old on 21st September, 1994, could not have been caused to him, while in police custody. Since the appellant has not given any other explanation for the injuries found on his person, it is possible to infer that these injuries were caused to him by the deceased. What we can say is that the injuries found on the person of the appellant were caused on 18 th September, 1994, and possibly they were caused by the deceased from her nails. But, since these injuries, in view of the medical opinion, were caused on 18th September, 1994 and not on 19th September, 1994, the presence of these injuries on the person of the appellant does not, by itself, prove that a quarrel had taken place between him and the deceased in the night of 19th April, 1994.
As regards blood found in the nails of the appellant, the report of CFSL does not show either the origin or the group of the blood found in the nails. PW-24 Dr.Saraswat admitted in his cross-examination that he did not notice any blood on the nails of the appellant, on examination by naked eye. In fact, during the course of trial the nails were not produced in Crl. A No. 293/1997 Page 7 of 21 the court and the phial alleged to be containing nails was found to be empty. The learned trial Judge was of the view that mere existence of blood on the nails cannot be recorded as an incriminating evidence against the appellant. There is no medical opinion that the injuries found on the person of the deceased could have been caused by nails.
Circumstance No.(vi)
11. While examining the evidence of the prosecution as regards the alleged recovery of pieces of bangles, the learned trial Judge noted that as admitted by PW-21 SI Sukhbir Singh and PW-22 Insp. Rajender Gautam, the Crime Team had arrived at and checked the Jhuggi of the appellant. On perusing the Report of Crime Team, Ex.CTR, he noted that as per column 12 of the Report, three broken pieces of sky blue bangles were "found lying on the railway track". But, there was no whisper of recovery of pieces of bangles in the Jhuggi. The learned Trial Judge also noted contradictions in the testimony of the police officials as to whether the Jhuggi was locked, as stated by PW-3 ASI Mohinder Singh, or was lying open, as claimed by PW-21 SI Sukhbir Singh.
12. The deposition of PW-21 SI Subhbir Singh and PW-22 Insp. Rajender Gautam shows that the Crime Team came to the spot in their presence. As rightly noted by the learned trial Crl. A No. 293/1997 Page 8 of 21 Judge, had broken pieces of bangles been lying in the Jhuggi of the appellant, that could not have escaped the attention of the Crime Team. In case the Crime Team had carried out inspection either before arrival of PW-21 and PW-22 to the Jhuggi of the appellant or in their presence, they would definitely have noted the pieces of bangles lying in the Jhuggi. Since recovery of pieces of bangles from the railway track, which was effected before arrival of Crime Team to the Jhuggi of the appellant, was noted in the Ex.CTR, there could have been no reason for the Team omitting to mention the recovery of similar pieces of bangles from the Jhuggi of the appellant. The learned Trial Judge has disbelieved the alleged recovery of pieces of bangles from the Jhuggi of the appellant. We see no reason to take a different view and, therefore, agree that this circumstance alleged against the appellant does not stand proved. In fact, we find it quite strange that though PW-3 visited the rail track in the morning of 20th September, 1994, the broken pieces of bangles were seized only on the next day. There is no explanation as to why these pieces of bangles were not seized on the very same day on which the dead body was found on the rail track. We say nothing more, since the prosecution has failed to prove that pieces of bangles were also found in the Jhuggi of the appellant.
Crl. A No. 293/1997 Page 9 of 21 Circumstance No.(iii) & (iv)
13. PW-4 Ram Ujagar, when he came in the witness box, stated that the appellant was living at a distance of about 1 km. from his shop and that about 1-1/2 years before his deposition in the court, the appellant came to his shop and told him that his wife had been run over by a train. He took the appellant to a neighbouring shop, from where telephonic information in this regard was given to the police. During cross-examination, this witness stated that the appellant was not his customer and never purchased goods on credit from him. He also admitted that no telephone was installed in his shop. It was contended by the learned counsel for the appellant that since the shop of this witness was situated at a distance about 1 km. from the Jhyggi of the appellant and no telephone was installed in his shop, there could be no occasion for the appellant to go to his shop and tell him that his wife had been killed in train accident.
14. It has come in the deposition of PW-3 ASI Mohinder Singh that when he reached the railway track on receipt of information from Police Control Room that the dead body of a woman was lying on the railway track at Loha Mandi, Naraina, the appellant Ramu, who was present there, identified the dead body and told him that the deceased had come to railway Crl. A No. 293/1997 Page 10 of 21 track to answer the call of nature and he recorded his statement Ex.PW-3/A. As per the statement Ex.PW-3/A, the appellant had told ASI Mohinder Singh that his wife had gone towards railway lines to answer the call of the nature and had collided with a train near Naraina Bridge.
It was contended by the learned counsel for the appellant that in view of the provisions contained in Section 162 of the Cr.P.C., the statement made by the appellant to ASI Mohinder Singh, who is a police officer, is not admissible in evidence, except for the purpose of contradicting the maker of the statement. On the other hand, it was contended by the learned counsel for the respondent that since neither any FIR had been registered nor the police had any information of commission of offence in respect of the deceased, by the time the statement Ex.PW-3/A was recorded, the investigation had not commenced at that time and, therefore, the statement is not hit by Section 162 of the Code.
15. Sub-Section (1) of 162 of the Code of Criminal Procedure reads as under:
"(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any Crl. A No. 293/1997 Page 11 of 21 inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination."
16. The expression „investigation‟ has been defined in Section 2(h) of the Code, which reads as under:
"Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person(other than a Magistrate) who is authorized by a Magistrate in this behalf."
17. Sub-Section (1) of Section 174 of the Code of Criminal Procedure reads as under:
"(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or Crl. A No. 293/1997 Page 12 of 21 special order of the District or Sub-divisional Magistrate, shall proceed to the place, where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted."
18. Section 174 of the Code is a part of Chapter XII of the Code. Since the police officer who receives the information about death of a person, irrespective of whether the death is by committing suicide or by killing or by accident or under a suspicious circumstance, is required to proceed to the place where dead body of the deceased is lying and to make an investigation and draw up a report of the apparent cause of death, it cannot be disputed that even while ascertaining the cause of death in a case of accident, the police officer is carrying out an investigation under Section 174 of the Code. The prohibition against the use of the statement made to police officer during the course of an investigation except for the purpose of contradicting the maker, applies not only to investigation into an offence but to every investigation under Chapter XII which would include investigation for the purpose of Section 174 of the Code.
19. In Razik Ram Vs. Jaswant Singh Chohan & Others Crl. A No. 293/1997 Page 13 of 21 : (1975) 4 SCC 769, a judgment relied upon by the learned counsel for the appellant, the Police Inspector, carrying out investigation during the inquest proceedings under Section 174 of the Code, got signed the statement of person recorded by him. It was held by Supreme Court that even a statement of a witness recorded by the investigator during the inquest under Section 174 of the Code would be within the inhibition of Section162. It was observed that the rule of public policy behind this provision was that the witness, at the trial, should be free to tell the truth, unhampered by anything that might have been made to say to the police. If Section 162 of the Code applies to the statement recorded during investigation under Section 174 of the Code, it applies not only in respect of the prohibition against obtaining signature of the maker of the statement but also in respect of use of that statement for any purpose other than contradicting its maker.
In Narpal Singh Vs. State of Haryana : 1977 Crl.L.J. 642, Supreme Court held that statement of witnesses examined during inquest proceedings were clearly hit by Section 162 of the Code and, therefore, not admissible in evidence.
In Periasami & Another Vs. State of Tamil Nadu :
1997 Crl.L.J. 219, Supreme Court held that recital in the Crl. A No. 293/1997 Page 14 of 21 inquest report being a reproduction of what the witnesses would have told the investigating officer, falls within the sweep of the interdict contained in Section 162 of the Code and hence could not be used for any purpose except to contradict its author.
In Babu Ram Vs. State of Punjab : 1996 Cri. L.J. 2503, Supreme Court held that any statement made to the Investigating Officer while he is conducting inquest, would be hit by Section 162 of the Code, as this would be a statement in the course of investigation.
20. The learned counsel for the respondent has referred to the decision of Supreme Court in Faddi Vs. State of Madhya Pradesh : AIR 1964 SC 1850, in support of her contention that statement made by the appellant to ASI Mohinder Singh is not hit by Section 162 of the Code. In the case referred to by the learned counsel, the appellant, who was prosecuted for murder of his son Gulab, went to the police and lodged a report accusing three other persons of killing his son Gulab by throwing him into the well. It was held by Supreme Court that the report was not a confessional statement since it stated nothing which would show that he was the murderer of Gulab. This judgment, in our view, does not apply to the facts of the present case for the simple reason Crl. A No. 293/1997 Page 15 of 21 that no investigation under Chapter XII had commenced in the case under reference when the appellant went to the police station to lodge the report, whereas in the case before us, an investigation under Section 174 commenced as soon as the police received information that the dead body of a woman who had met with a train accident was lying near Naraina Bridge and ASI Mohinder Singh proceeded to the spot.
21. Therefore, we are of the view that the statement made by the appellant to PW-3 ASI Mohinder Singh is not admissible in evidence except for contradicting its maker.
22. Even if we take the statement made by the appellant to ASI Mohinder Singh into consideration and also believe the deposition of PW-4, that, by itself, does not show that the appellant had tried to mislead the police by giving a false cause of death of his wife. The case of the appellant is that he was on duty in the night of 19th September, 1994 and had returned from duty in the morning of 20th September, 1994 when he came to know that dead body of his wife was lying on railway track. In case the appellant did not commit murder of his wife, as claims, there was no reason for him to say anything other than that his wife had met with a train accident on the rail track. Since the dead body of the deceased was lying on rail track and there was no visible cause Crl. A No. 293/1997 Page 16 of 21 indicating her murder, anyone in place of the appellant would have taken it as a case of accident with a moving train. The appellant is a layman working in a printing press. Even the police officer who went to the spot took it as a case of accident by colliding with a train. If a police officer on inspection of the dead body lying on the rail track forms an opinion that it was a case of train accident, nothing suspicious or misleading can be attributed to a layman if a similar opinion is formed by him.
In fact, the case of the prosecution is that not only the appellant but also the other persons who were present on the rail track at that time found it to be a case of train accident and made similar statement to PW-3 ASI Mohinder Singh. Other statement recorded by ASI Mohinder Singh at that time are of Sant Ram Tewari and Gian Chand Chaudhary Ex.PW- 3/B and PW-3/C respectively. In the brief facts Ex.PW-3/D to PW-3/G prepared by him on 20th September, 1994, ASI Mohinder Singh recorded during investigation under Section 174 of the Code of Criminal Procedure, he had come to know that the deceased had gone to railway lines in the morning to answer the call of the nature and had died by colliding with a train. It has come in the deposition of PW-6 Indresh that inhabitants of the locality had to go to jungle to cross the railway lines to answer the call of the nature. In case the toilet Crl. A No. 293/1997 Page 17 of 21 facilities were not available in or around the Jhuggi of the appellant, his wife had no option but to go towards the rail track to answer the call of the nature. Therefore, in our view, no conclusion of misleading the police can be drawn from the statement made by the appellant to ASI Mohinder Singh and to PW-4 Ram Ujagar.
CONCLUSION
23. As regards injuries found on the person of the deceased, as noted earlier, group of the blood alleged to have been found in the nails of the appellant has not been proved. There is no medical or other evidence that these injuries could have been caused by nails. The nails were not produced during trial. It was contended by the learned counsel for the appellant that the blood in the nails of the appellant could have come, when he touched or scratched his own injuries, and therefore could be his own blood as well and since the blood was not visible on the nails, even the appellant may not be conscious of this fact. The prosecution, therefore, has failed to establish that the injuries found on the body of the deceased were caused by the appellant. In any case, since the injuries found the person of the appellant were caused on 18 th September, 1994, as is evident from the age of the injuries, the injuries to the deceased, if at the hands of the appellant also Crl. A No. 293/1997 Page 18 of 21 would have been caused on 18th September, 1994 and not in the night of 19th September, 1994 when she was murdered.
24. Thus, the only incriminating circumstances appearing in evidence against the appellant are that he sometimes used to have quarrel with the deceased and had sustained some injuries on 18th September, 1994 which could possibly have been caused to him by the deceased during the course of one such quarrel.
25. We also take note of the fact that the prosecution has failed to prove that the murder took place in the Jhuggi of the appellant. We also note that the dead body was found lying in the middle of rail track, and not across the track. If the purpose of keeping dead body on the rail track was to destroy evidence of strangulation and smash the face of the deceased so as to conceal her identity, the dead body would have been kept across the track, in such a manner that the head was severed from the rest of the body and the face of the deceased was smashed by a moving train, so that it was rendered incapable of identification.
26. When a case rests purely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be proved, must be cogently and firmly established. Secondly, Crl. A No. 293/1997 Page 19 of 21 the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, 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. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the guilt of the accused.
27. For determining whether circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the overall picture emerging from a consideration of the diverse circumstances and their conjoint effect may be themselves appear innocuous. It is only when various circumstances are considered together that it becomes possible to understand and appreciate their true effect.
28. The circumstances proved against the appellant though they do create suspicion that the murder of the deceased could possibly have been committed by the appellant, do not conclusively and unerringly point towards him as the only person, who in all probability, must have Crl. A No. 293/1997 Page 20 of 21 committed her murder. It cannot be said that these circumstances are totally incompatible with the innocence of the appellant and no one other than him was responsible for the murder of the deceased. The appellant is, therefore, given benefit of doubt and is hereby acquitted. His Bail Bond stands discharged. The appeal stands disposed of.
V.K. JAIN, J BADAR DURREZ AHMED, J July 23, 2010 Ag/RS Crl. A No. 293/1997 Page 21 of 21