Delhi High Court
Mubin vs State (Govt. Of Nct Of Delhi) on 26 February, 2010
Author: Ajit Bharihoke
Bench: A.K. Sikri, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: February 16, 2010
Judgment delivered on: February 26,2010
+ CRIMINAL APPEAL NO.49/1997
MUBIN ..... APPELLANT
Through: Mr. Sumit Verma, Advocate/
Amicus Curiae
Versus
STATE (GOVT. OF NCT OF DELHI) ..... RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. Appellant Mubin, having been convicted for murder of Mehboob and concealing his dead body in a "gutter" (manhole) under Section Crl. A.No.49/1997 Page 1 of 21 302/34 IPC and Section 201/34 IPC in terms of the impugned judgment dated 17.09.1996 in Sessions Case No.74/96, FIR No.495/93 P.S. Gokul Puri and sentenced in terms of order on sentence of the even date to undergo rigorous imprisonment for life as also to pay fine of Rs.500/-, in default of payment of fine to undergo RI for further period of one month for offence punishable under Section 302 IPC and also RI for three years and fine of Rs.250/- and in default to undergo RI for 15 days for the offence under Section 201/34 IPC, has preferred the instant appeal.
2. Ms. Abida Begum, wife of Mubin, was also convicted and sentenced vide the impugned judgment and order on sentence. She filed a separate appeal which stood abated vide order dated 06.12.2003 on account of her death.
3. Briefly stated, case of the prosecution is that on 06.12.93 at around 11:40am, Head Constable Ombir Singh of PCR informed Police Station Gokul Puri on wireless that one person was lying dead near the bus stand B-Block, Yamuna Vihar, Marutiwali Gali. The information was recorded at the Police Station as DD No.8A and copy of the DD report was entrusted to ASI Suresh Chand, who left immediately for the spot along with Constable Surender (PW11). PW9 Inspector Rajinder Parshad, who was posted as SHO, Police Station Gokul Puri, was on patrol duty in the area and said information was conveyed to him on wireless. He reached at the scene of occurrence, i.e., House No.627, Crl. A.No.49/1997 Page 2 of 21 Gali No.21, Chand Bagh, Delhi where ASI Suresh Chand and Constable Surender were already present along with the complainant PW1 Burkey Muneer, her mother PW3 Tafseer, the sweepress PW6 Urmila and others. The main door of the above referred house was found locked. The lock was broken open and the police party entered said house. There was a manhole within the premises of House No.627, Gali No.21, Chand Bagh, Delhi. Its cover was found open and the dead body of Mehboob @ Sharief (hereinafter called the "deceased") was found floating in the water within the "gutter". The dead body was taken out from the manhole and it was identified to be the body of the deceased by his wife PW1 Burkey Muneer and his mother-in-law, PW3 Smt. Tafseer. Inspector Rajinder Parshad recorded the statement of Ms. Burkey Muneer Ex.PW1/A wherein she stated that she was the owner of House No.627, Gali No.21, Chand Bagh, which was given on rent to the appellant Mubin 4-5 months back and he was living in the said house along with his wife and child. After some time, he stopped paying rent for the premises. On 30.11.93, her husband left the house at 6:00 pm to have a talk with the tenant Mubin regarding vacation of the tenanted premises. He, however, did not return back. Next day, she contacted Ms. Saira at Jyoti Colony to inquire about her husband, who told her that her husband had visited her house a day earlier at 1:30 pm and thereafter he left. PW1 Burkey Muneer further stated in her statement Ex.PW1/A that she continued to search for her husband but in vain. On Friday, i.e., 03.12.93, she along with her mother went to Crl. A.No.49/1997 Page 3 of 21 her house at Chand Bagh, but its entrance was found locked. Thereafter, she entered said house from the roof of a neighbour via staircase and found the door of the inner room open, but nothing could be found in the said room. In the morning of 06.12.93 at around 10:00 am, sweepress PW6 Urmila came to the house of her mother and informed that some foul smell was emanating from the above referred house in Chand Bagh. On this, she alongwith her mother and sweepress again went to said house but its main gate was found locked. Thereafter, she entered the said house from the roof of a neighbour‟s house and lifted the cover of the manhole located within the said house and found the dead body of her husband in the manhole in face downwards position. She identified the dead body of the deceased from the clothes on the person of the body and the Hawai Chappel in the left foot of the dead body. In the meanwhile, someone informed the police. Police came and broke open the lock of the main gate of the house in their presence and thereafter the dead body was taken out from the gutter. In the said statement, she expressed her suspicion against the appellant Mubin.
4. Inspector Rajinder Prashad, after obtaining signatures of PW1 Burkey Muneer on the said statement Ex.PW1/A sent it to the police station alongwith his endorsement Ex.PW9/A on 6.12.1993 at 1:15 pm for the registration of the case. On the basis of the said rukka, formal FIR No. 495/93 was registered at police station Gokulpuri. Crl. A.No.49/1997 Page 4 of 21
5. The Investigating Officer recovered two empty half bottles and one empty quarter bottle of Whiskey from the tenanted room of the appellant Mubin in the Chand Bagh house, which were seized. He also seized one Hawai Chappel from the manhole and another Hawai Chappel lying near the wall, besides a pair of lady‟s sandals. The Investigating Officer conducted the inquest proceedings.
6. Further investigation of the case was entrusted to PW14 SI Krishan Kumar on 08.12.1993. On 18.12.1993, SI Krishan Kumar, got prepared the scaled site plan Ex.PW14/A. On inquiry, SI Krishan Kumar came to know that Mubin was in judicial custody in Mathura Jail and the appellant‟s wife Ms. Abida Begum, co-convict was living with her mother in J.J. Colony, Welcome. He visited the house of mother of Abida Begum on 01.01.1994 alongwith PW3 Tafseer, PW4 Deshwatan and PW5 Ashok Pandit where he found the co-convict Abida Begum talking with her mother. On interrogation, Abida made a disclosure statement narrating the details as to what had happened on the night of 30.11.1993 at 8:30 am at the aforesaid Chand Bagh house and stated that she could get recovered one iron pincer and iron crowbar and pieces of bangles which were broken during the scuffle with the deceased and pursuant to the said disclosure statement Ex.PW3/A, she got recovered aforesaid iron pincers, iron crowbar and pieces of broken bangles, which were taken into possession vide pointing out-cum- recovery memo Ex.PW5/A. SI Krishan Kumar, PW14 obtained production warrants of the appellant Mubin from the court of MM, Crl. A.No.49/1997 Page 5 of 21 Shahadra and pursuant to that, he formally arrested the appellant Mubin in this case and took him in custody with the permission of CJM, Mathura. He obtained one day police remand of the appellant Mubin and interrogated him. During interrogation, Mubin made a disclosure statement Ex.PW13/B and also pointed the place of occurrence vide memo Ex.PW3/B.
7. On conclusion of investigation, appellant and his co-convict were charge sheeted and sent for trial. Both of them were charged for the offence punishable under Section 302 read with Section 34 IPC as also Section 201 read with Section 34 IPC. The appellant and his co-convict pleaded innocence and claimed to be tried.
8. In order to bring home the guilt of the appellant and his co- convict, prosecution has examined 14 witnesses, out of which PW1 Burkey Muneer, PW2 Ms. Saddan, PW3 Smt. Tafseer, PW4 Deshwatan, PW5 Ashok Pandit, PW6 Urmila, PW12 Dr. K.K. Banerjee and PW9 Inspector Rajinder Parshad, who purportedly recovered the dead body, are relevant for the just decision of the appeal.
9. PW1 Burkey Muneer is the complainant as also the wife of the deceased. In her testimony in court, she has almost reproduced the version in her complaint but for one contradiction. In her complaint to the Investigating Officer, she stated that on 06.12.93 when informed by PW6 Urmila that a foul smell was emanating from her tenanted house in Chand Bagh, she entered said house from the roof of the Crl. A.No.49/1997 Page 6 of 21 house of a neighbour and lifted the cover of the gutter located within said house and saw the dead body of the deceased in the gutter in face downwards position, whereas in her testimony in the court she has not deposed to that effect and stated that the lock of the house was broken and on entering, the cover of the "gutter" was found lying aside. In the cross-examination, she admitted that the adjoining house from roof of which she had access to the house in question on 03.12.93 belonged to her mother and was on rent with some tenant whose name she was not aware of. She also stated in the cross-examination that she did not enter said house on 06.12.93 before the breaking open of the lock of the said house and she did not even go to the roof of the adjoining house on 06.12.93.
10. PW2 Smt. Saddan is a hostile witness and she has not supported the case of prosecution.
11. PW3 Smt. Tafseer is the mother of the complainant. She testified that on 03.12.93, her daughter visited her and told that her husband had left the house saying that he was going to the house of the appellant Mubin and thereafter did not return. She, therefore, along with PW1 Burkey Muneer went to the house of Mubin bearing number 627, Gali No.21 Chand Bagh and found that it was locked from outside. They also made enquiries and the neighbours told that a quarrel had taken place but they were not aware where they had gone. She further deposed that on 06.12.93 PW6 Urmila, sweepress visited her Crl. A.No.49/1997 Page 7 of 21 house and told that some foul smell was emanating from the house of Mubin and clothes were lying in the gutter. On this, she along with PW1 Burkey Muneer, PW6 Urmila, Sweepress and some mohalla people reached at the spot and found police officials already present there. The police broke open the lock and thereafter recovered the dead body of the deceased from the gutter. She stated that from the spot of occurrence, police took into possession two half bottles and one quarter bottle of liquor, one hawai chappel recovered from the gutter, one hawai chappel big sized lying near the gutter, a third hawai chappel lying near the gutter and pair of lady‟s sandals, which were seized vide memo Ex.PW1/B and the memo was signed by her. She also stated that on 01.01.94, co-convict Abida Begum made a disclosure statement Ex.PW3/A in her presence and pursuant to the said disclosure statement, she got recovered one sabbal, a chimta and broken pieces of her bangles, which were taken into possession vide memo Ex.PW5/A. She deposed that she witnessed both the disclosure statement as well as recovery of the articles. In the cross examination, she admitted that her daughter had entered the aforesaid tenanted house of the appellant on 03.12.93 from the neighbouring house belonging to her, which was rented out to her tenants. She denied that she and her daughter had entered the house of Mubin from the roof of adjoining house occupied by her tenants on 06.12.93.
12. PW4 Deshwatan is a hostile witness. He stated that on 30.12.93 (it appears to be a typographical error and date should be 30.11.93), Crl. A.No.49/1997 Page 8 of 21 PW5 Ashok Pandit informed him that some "jhagra" (quarrel) was going on near the house of Mubin, but he denied having knowledge as to who was quarrelling and stated that he did not reach the house of Mubin and nothing was visible in the Gali. In the cross-examination by learned Amicus, he admitted the suggestion that PW5 Ashok Pandit did not tell him that the deceased went to the house of Mubin and that he had not seen the deceased going to the house of Mubin.
13. PW5 Ashok Pandit is also a hostile witness. He deposed that on 30.11.93 at around 7:00 or 8:00pm one Sharief who was drunk was abusing and when he asked Sharief as to why he is abusing, he retorted. Then he went to the shop of PW4 Deshwatan and told him that Sharief had abused him. Thereafter, he along with PW4 Deshwatan went to the house of Mubin which was closed from inside. He knocked on the door, and on his enquiry Mubin informed that Sharief was not there. He stated that no quarrel had taken place between Mehboob @ Sharief and Mubin in his presence.
14. PW6 Urmila is the sweepress. She deposed that about 5 or 6 years back, while she was cleaning the drain near the house of the appellant, she noticed a foul smell emanating from the said house from the septic tank. She informed about it to the residents of the lane. Somebody informed the police and police reached at the spot and broke open the door. She stated that she did not see anything being taken out from the septic tank. The witness was declared hostile and Crl. A.No.49/1997 Page 9 of 21 cross-examined by learned APP but she denied the prosecution case suggested to her.
15. PW12 Dr. K.K.Banerjee is the autopsy surgeon who conducted the post mortem examination on the dead body. In his opinion, the cause of death of the deceased was asphyxia as a result of compression of neck, likely to be produced by hand. He proved his report as Ex.PW12/A and fixed the time of death about a week prior to the date of post mortem. In the cross-examination, he admitted a possibility that the deceased might have died between 01/02.12.93. He also stated that since the body was in a highly decomposed state, it was difficult to ascertain the exact time of death.
16. PW9 Inspector Rajinder Parshad has stated that on 06.12.1993, on receipt of information regarding dead body in H. No. 627, Gali No. 21, Chand Bagh, he reached at the spot and found public persons including the complainant PW1 Burkey Muneer, PW3 Tafseer and PW6 Urmila. The main door of the scene of occurrence was locked, which was broken in presence of the said witnesses and on entering the premises he found the mouth of the gutter open and dead body of Mehboob @ Sharief was found floating therein. The dead body was taken out and was identified by the complainant Burkey Muneer and PW3 Tafseer as that of Mehboob @ Sharief. He also stated that he recorded the statement of PW1 Burkey Muneer Ex.PW1/A and sent it to the police station for the registration of the case. He has also proved Crl. A.No.49/1997 Page 10 of 21 the rough site plan Ex.PW9/C prepared by him at the spot, besides the seizure memo pertaining to the articles Exhibits P-1 to P-7 found at the spot. He also proved the broken lock as Ex.P-8.
17. The defence taken by the appellant in his statement under Section 313 Cr.P.C. is that he has been falsely implicated in this case.
18. The learned trial Judge, on conclusion of trial, convicted the appellant as well as his wife Abida Begum (since deceased) for the offences punishable under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC.
19. There is no eye-witness in this case. The case of the prosecution is based upon the circumstantial evidence. On perusal of the impugned judgment, it transpires that the learned trial Judge has found the appellant and his co-convict guilty in view of the following circumstances:-
(i) That the appellant was the tenant in H.No. 627, Gali No. 21, Chand Bagh, belonging to the deceased;
(ii) That the deceased, as per the testimony of PW1 Burkey Muneer, had left his house on 30.11.93 at 6.00 pm saying that he was going to the house of the appellant to talk with him regarding vacating of the tenancy;
(iii) That thereafter, the appellant did not return home and was not seen by anyone till the recovery of his dead body on 06.12.93;
Crl. A.No.49/1997 Page 11 of 21
(iv) That the appellant left the tenanted premises along with his wife Abida Begum and the child after locking the same from outside in the morning of 01.12.93;
(v) That the dead body of the deceased was recovered from the gutter within the said tenanted premises after breaking open the lock on its front door.
20. Before adverting to the rival contentions, we deem it appropriate to have a look on the law relating to circumstantial evidence. In the matter of Padala Veera Reddy v. State of A.P. 1989 Supp (2) SCC 706, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"10. (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."
21. In the matter of Sharad Birdhichand Sarda v. State of Maharashtra 12 (1984) 4 SCC 116, while dealing with the Crl. A.No.49/1997 Page 12 of 21 circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a 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;
(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."
22. Learned Amicus Curiae for the appellant has submitted that the learned Trial Court has erred in appreciating the evidence. He has submitted that the main incriminating circumstance which forms the foundation of the conviction is the recovery of the dead body of the deceased from the gutter within House No.627, Gali No.21, Chand Bagh, which was admittedly in the tenancy of the appellant and which, as per evidence, was found locked from outside. Learned Amicus Crl. A.No.49/1997 Page 13 of 21 submitted that the learned trial Judge has convicted the appellant and his co-convict on the premise that once the house in question was locked from outside, no one else could have had an opportunity to kill the deceased and dump his body in the gutter, ignoring the fact that from the testimony of PW1 complainant Burkey Muneer and PW3 Tafseer, mother of the complainant, it is established on record that the aforesaid gutter within said house was accessible from the roof of the adjoining house through the staircase and anyone after killing the deceased could have dumped his dead body in the gutter despite of the fact that the house was locked from outside. Learned Amicus further submitted that as per the testimony of PW1 Burkey Muneer when on 03.12.93 she accessed the house in question from the roof of the adjoining house, she found that the mouth of the gutter was closed with a cover, whereas as per the case of prosecution when the police entered the house on 06.12.93 after breaking open the lock, they found that mouth of the gutter was open and its cover was lying by the side of the wall. This circumstance also indicates that someone had accessed the house in question between 03.12.93 and 06.12.93 and removed the lid from the mouth of the gutter and a possibility cannot be ruled out that aforesaid person is the real culprit, who dumped the dead body in the gutter. Learned Amicus submitted that from the above, it is apparent that the learned Trial Court has ignored the fact that the circumstantial evidence placed on record by the prosecution does not rule out the possibility that someone else could have Crl. A.No.49/1997 Page 14 of 21 committed the murder of the deceased. Thus, he has urged us to accept the appeal and acquit the appellant giving him benefit of doubt.
23. Learned Standing Counsel for the State, on the other hand, has submitted that the learned Trial Court has rightly convicted the appellant and his co-convict. He has submitted that there is no mystery about the identity of the person who removed the cover from the mouth of the gutter after 03.12.93. In this regard, he has drawn our attention to the complaint statement of PW1 Burkey Muneer Ex.PW1/A, wherein she stated to the Investigating Officer that on 03.12.93 after being told about the foul smell emanating from the house in question, she went to the house in question from the roof of the adjoining house and removed the cover of the gutter and found the dead body of her husband face down in the gutter. Learned Standing Counsel for the State further submitted that as per the post mortem report, death of the deceased occurred about a week prior to the date on which the post mortem examination was conducted and this fixes the date of death of the deceased somewhere around 30.11.93, as such, there is no possibility of anyone else being responsible for murder of the deceased and dumping of his dead body in the gutter after 03.12.93. Thus, he has urged us to dismiss the appeal.
24. We have carefully considered the rival contentions and perused the record.
Crl. A.No.49/1997 Page 15 of 21 25 PW1 Burkey Muneer has categorically stated in her testimony that on 03.12.93, she visited the house in question along with her mother and found the door locked from outside. Thereafter, she went to the roof of the house adjoining house No.627, Gali No.21, Chand Bagh and from there she could see the door of internal room of the house open and that the cover was there on the mouth of the gutter. In her cross-examination, she stated that on 06.12.93, she went inside House No.627 from the roof of the adjoining house through the stair case. She, however, added that she did not go up to the ground floor of the house and had gone down only two or three stairs. From the aforesaid testimony, it is established that despite of there being a lock on the front door of House No.627, Gali No.21, Chand Bagh, its internal portion could be accessed from the roof of the adjoining house via the staircase. This circumstance opens a possibility that someone else could have dumped the dead body of the deceased in the gutter after killing him.
26. As regards the submission of learned Amicus for the appellant that the prosecution has failed to explain as to who removed the cover of the gutter between 03.12.93 and 06.12.93 when the dead body was recovered, the learned Trial Court, while rejecting said argument, has inter alia, observed thus:
".....I do not find any contradiction in the statement of Smt. Barke Muneer because her version is supported by Inspector Rajinder Parshad who had stated that when they entered the house they found the gutter opened and inside of the gutter one dead body of Mehboob was found in the gutter. I Crl. A.No.49/1997 Page 16 of 21 also do not agree with the contention of the Ld. Counsel for the accused that there is any mystery in the prosecution story with regard to the cover of the gutter not found on the gutter on 6.12.93. The most important thing is that both PW1 Smt. Barke Muneer and PW3 Smt. Tafseer were present at the time of recovery of dead body from the gutter. It is quite possible that since the dead body was lying in the gutter for 5/6 days and after the water entered the dead body, the dead body started floating in the water and on that account the cover of the gutter might have been opened. It has also been stated by Const. Karanvir Singh PW13 that the water of the gutter was flowing out of the gutter. So it is also possible that on account of the pressure of flow of water and that of the dead body the cover of the gutter might have opened. So there is no mystery in the gutter found uncovered on 6.12.93 by the PWs. The arguments of the Ld. Counsel for the accused has, therefore, got no force and the same is rejected."
27. We are unable to comprehend the logic given by the learned trial Judge to explain the aforesaid discrepancy. The learned trial Judge has observed that it is quite possible that after remaining in the gutter for five or six days, the dead body got bloated with water and started floating and because of the pressure of the dead body, the cover of the gutter might have been pushed open. Had the learned trial Judge taken some pains to peruse the rough site plan Ex.PW9/C prepared by the Investigating Officer, he would have realised the absurdity of the logic. On perusal of the rough site plan Ex.PW9/C, it transpires that the cover of the gutter was found lying at some distance from its mouth near the wall. If the cover had been pushed because of floating body, there may be a slight possibility that the cover might have been dislocated slightly from its position, but it is impossible that the pressure of the body would have thrown the cover to some distance by the side of the wall. In absence of any explanation as to who removed the cover of the gutter after 03.12.93, a possibility cannot be ruled out Crl. A.No.49/1997 Page 17 of 21 that someone else after committing murder of the deceased had dumped the dead body in the gutter by accessing the gutter and from the roof of the adjoining house, particularly when there is no evidence on the record that anyone saw the appellant or his wife near the house in question after the morning of 01.12.93. Learned Standing Counsel for the State submitted that it is highly improbable that someone could have accessed the gutter in the house in question to dump the dead body without being noticed by the residents of the adjoining house. We are not inclined to accept this contention. PW1 Burkey Muneer in her examination-in-chief as well as in her complaint statement concealed the fact that the adjoining house from which she had accessed the house in question belonged to her mother PW3 Tafseer. Only when she was cornered in the cross-examination, she admitted that the aforesaid house belonged to her mother and added that it was in occupation of a tenant whose identity she was not aware of. Even PW3 Tafseer has not mentioned the name of said tenant of the adjoining house. This circumstance clearly shows that identity of the tenant has been deliberately withheld by the witnesses and a possibility cannot be ruled out that the aforesaid concealment was done with a purpose. The defence suggested by the appellant to PW1 and PW3 is that they had killed the deceased because of the dispute regarding the payment of Mehar of Rs.1 lakh agreed at the time of marriage of PW1 and a possibility cannot be ruled out that because of Crl. A.No.49/1997 Page 18 of 21 the said dispute the relatives of PW1 might have killed the deceased and disposed of his body in the gutter.
28. Another factor which goes against the case of the prosecution is that though as per the complaint statement Ex.PW1/A, as also the testimony of PW1 Burkey Muneer, the deceased went missing since the evening of 30.11.93 and the efforts for his search yielded no result, yet no complaint was filed by the complainant with the police till the recovery of dead body from the „gutter‟ on 06.12.93. Non-filing of any report about missing of the deceased by the complainant also raises a strong doubt against the credibility of the witnesses namely, PW1 Burkey Muneer and PW3 Tafseer.
29. Lastly it may be added that investigating agency was put into motion by an information conveyed by PCR Head Constable Ombir Singh to the Police Station stating that a person is lying dead near bus stand B-Block, Yamuna Vihar, near Marutiwali Gali and some officers may be sent there. This information, if true, implies that the dead body of the deceased was found lying near the bus stand, which circumstance belies the basic story of the prosecution. Head Constable Ombir of PCR who could have thrown some light on this inconsistency has neither been examined nor cited as a witness by the prosecution. This circumstance also casts a strong doubt against the correctness of the prosecution story.
Crl. A.No.49/1997 Page 19 of 21
30. Learned Standing Counsel for the State submitted that much significance cannot be attached to the fact that there is confusion as to who removed the cover of the gutter between 03.12.93 and 06.12.93 because of the fact that as per the post-mortem report, time of the death is fixed somewhere near the night of 30.11.93. Therefore, there is no possibility whatsoever of anyone having killed and dumped the dead body in the gutter after 03.12.93. We do not find any merit in this argument because in the cross-examination, PW12 Dr. K.K. Banerjee admitted that it was possible that the deceased might have died between 1st and 2nd December, 1993 and he also stated that since the dead body was highly decomposed, it was difficult to ascertain the exact time of death. Once there is no definite evidence of the exact time of death, the aforesaid discrepancy in the prosecution evidence cannot be ignored. Otherwise also, a possibility cannot be ruled out that the deceased was killed on 30.11.93 and his dead body was subsequently dumped in the gutter after 03.12.93 or even before that because nobody had tried to look into the gutter till the recovery of the dead body on 06.12.1993.
31. The result of aforesaid discussion is that prosecution has not been able to firmly establish the incriminating circumstances leading to irrefutable inference of guilt of the appellant and his co-convict. In our considered view, a possibility of someone else having committed the murder and dumping the dead body in gutter cannot be ruled out. Since a possibility of innocence of the appellant cannot be ruled out, Crl. A.No.49/1997 Page 20 of 21 we find ourselves unable to sustain the judgment of conviction and order on sentence. We accordingly accept the appeal and acquit the appellant, giving him benefit of doubt.
32. The appellant is in Jail. He be released forthwith, if not wanted in any other case.
AJIT BHARIHOKE, J.
FEBRUARY 26, 2010 A.K. SIKRI, J.
pst
Crl. A.No.49/1997 Page 21 of 21