1 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT : KARKARDOOMA COURTS : DELHI : [CASE NUMBER] Unique Case ID No. 02402R0375522009 [ENTITY] Vs. [ENTITY] s/o Sh. Maanpal Singh, R/o F237, Gali No.8, Shastri Park, New Usmanpur, Delhi. FIR No. 315/09 PS New Usmanpur U/[SECTION] [ACT]. Date of Institution : 03.02.2010. Date of reserving the Judgement : 01.12.2010. Date of Pronouncement : 08.12.2010. J U D G E M E N T :
Prosecution's case emanates from the fact that on 01.10.09 DD No. 13A was received at PS New Usmanpur. Said DD entry was assigned to [ENTITY] SI for action in the matter. He along with Constable [ENTITY] reached at spot, that is, MCD Flats BSES Poll No. 315, Usmanpur, Delhi, where dead body of a young boy, aged about 2022 years was lying in pool of blood. It was a case of sheer murder. No eyewitness was found there. FIR u/[SECTION] was registered. Dead body was sent to GTB Hospital for preservation. Investigation was taken up by Inspector [ENTITY]. Crime team was called at the spot, who inspected the 2 scene of crime and took photographs. Information of the dead body was published in newspaper through hue and cry. On 04.10.09 dead body was identified by [ENTITY] as of his son, namely, [ENTITY]. Postmortem on the dead body was got conducted. After postmortem examination, it was handed over to [ENTITY] for performing last rites. [ENTITY]ment of [ENTITY] was recorded, wherein he detailed that on 30.09.09, his son [ENTITY] along with [ENTITY] went towards Zero Pusta, Usmanpur, to purchase some gutka. His son did not return home. On 02.10.2010, he saw dead body of his son in hue and cry column of newspaper. He raised accusing finger on [ENTITY] as he owed a sum of rupees towards his son. Since his son [ENTITY] was demanding money from [ENTITY], as such latter must have murdered the former for the same reason. On 05.10.09, accused [ENTITY] was arrested in the case at the instance of [ENTITY]. Accused made his disclosure statement. He got recovered the knife with which he murdered [ENTITY]. Investigation culminated into a charge sheet against the accused.
2. Charge for offence punishable under [SECTION] [ACT] was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined [ENTITY] (PW1), [ENTITY] (PW2), Constable [ENTITY] (PW3), [ENTITY] (PW4), SI [ENTITY] (PW5), SI [ENTITY] 3 [ENTITY] (PW6), [ENTITY] (PW7), Constable [ENTITY] (PW8), Dr. [ENTITY] (PW9), Constable [ENTITY] (PW10), Constable [ENTITY] (PW11), Inspector [ENTITY] (PW12), Ms. [ENTITY] (PW13), [ENTITY] (PW14), Constable [ENTITY] (PW15), [ENTITY] (PW16) and SI [ENTITY] (PW17) in the case.
4. [ENTITY] (PW1) informed police that a dead body was lying on the side of wall near Jain Temple, near BSES Poll No. 315, MCD Flat, New Usmanpur, Delhi. He identified the dead body to be the same about which he had informed the police.
[ENTITY] (PW2) identified dead body of [ENTITY] vide Ex.PW2/A and is also a witness to last seen.
Constable [ENTITY] (PW3) deposited six sealed parcels at FSL Rohini, vide RC No. 88/21/9.
[ENTITY] (PW4) was working a MHC(M). He received various parcels on different dates and made entries in that regard in register No.19.
SI [ENTITY] (PW5) prepared scaled site plan and proved the same as Ex.PW5/A. SI [ENTITY] (PW6) inspected the scene of crime and prepared his visitation report, which is Ex.PW6/A. 4 [ENTITY] (PW7) is the complainant and father of deceased [ENTITY]. Constable [ENTITY] (PW8) took photographs of the spot from different angles. He proved negatives of photographs as Ex.PW8/1 to Ex.PW8/15.
Dr. [ENTITY] (PW9) conducted postmortem on the dead body of [ENTITY]. She proved the postmortem report as Ex.PW9/A, besides her subsequent opinion as Ex.PW9/B. Constable [ENTITY] (SPW10) delivered copies of FIR to senior police officials and ld. MM concerned.
Constable [ENTITY] (PW11) joined investigation on 01.10.09. He detailed those investigative steps, which took place in his presence.
Inspector [ENTITY] (PW12) was assigned investigation of the case on 01.10.09. On receipt of DD No. 13A, SI [ENTITY] along with Constable [ENTITY] went to the spot at MCD Flat, BSES Poll No. 315, Usmanpur and on the rukka of SI [ENTITY] FIR No. 315/09 u/[SECTION] [ACT] was recorded and the investigation of the case was marked to him. Constable [ENTITY] handed over copy of FIR and rukka to him. He along with Constable [ENTITY] went to aforesaid spot. On reaching there, SI [ENTITY], Incharge Crime team, SI [ENTITY] and photographer Constable [ENTITY] met him there. He found at the spot that one dead body of unknown person was lying. The height of that body was 5 feet. The 5 colour was wheatish and the face was in circle shape. It was wearing yellow colour shirt, black banyan, blue underwear and slati colour pant and in its right hand kalawa was wrapped and was wearing black colour mala in the neck. There were injuries on the dead body and near it black colour chappals, one cloth bag mehak chaini khaini and one coloured handkerchief was lying on the eastern side of the dead body towards legs. The incharge crime team inspected the spot and gave his report Ex.PW6/A and photographs Ex.PW8/1 to Ex.PW8/15 of the spot were taken by Constable [ENTITY]. He recorded statement of crime team members, that is, photographer and SI [ENTITY]. He prepared site plan Ex.PW12/A at the instance of SI [ENTITY]. He lifted blood, blood stained earth control and normal earth control near the dead body and gave them serial No.1, 2 and 3 respectively and wrapped them in a transparent plastic bag, besides aforesaid bag, plastic chappals, coloured handkerchief, which were given serial No.4 and wrapped in a transparent plastic bag. All the articles were sealed with seal of [ENTITY] and were taken into possession vide memo Ex.PW12/B. He instructed Constable [ENTITY] to take body to GTB Hospital for preserving the same for 72 hours. He interrogated from public persons regarding the identity of deceased, but no one could identify him and no eye witness met them there. Case property was deposited in malkhana. He transmitted wireless message 6 Ex.PW12/D and got issued hue and cry notice. On 02.10.09, he along with Constable [ENTITY], Constable [ENTITY] reached near Mandir, gali No.8, service lane Shastri Park for identification of deceased. [ENTITY], father of deceased, after seeing hue and cry notice identified the dead body to be of his son [ENTITY]. They went to house of [ENTITY], where landlord [ENTITY] met them and he also identified the deceased. On 04.10.09, he made an application Ex.PW12/E for conducting postmortem. He also prepared inquest papers Ex.PW12/F collectively. On 05.10.09, [ENTITY] came to PS and told him that he had seen accused in the area. Thereafter, he along with Constable [ENTITY] and Constable [ENTITY] and [ENTITY] reached near Mandir, gali No.8, service lane, pusta road, New Usmanpur, Delhi. He recorded disclosure statement of accused, which is Ex.PW12/G, and got recovered a blood stained chhuri from the bushes situated near C90, MCD Flats. He sent exhibits of the case to FSL through Constable [ENTITY] vide RC No. 88/21. He prepared challan and same was filed inthe Court.
Ms. [ENTITY], Sr. Scientific Officer (Biology) (PW13) examined exhibits of the case and gave her biological report Ex.PW13/A, besides serological report Ex.PW13/B. [ENTITY] (PW14) recorded FIR and proved copy of the 7 same as Ex.PW14/A. Constable [ENTITY] (PW15), Constable [ENTITY] (PW16) and SI [ENTITY] (PW17) deposed on the same lines as deposed by Inspector [ENTITY] (PW12).
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under [SECTION] [ACT] He had denied all allegations levelled against him. His case has been of denial simplicitor. He pleads that he has been falsely implicated in the case. He has nothing to do with the present case. However, he opted not to lead any evidence in his defence.
6. I have heard Sh. [ENTITY], Advocate, for the accused, and Sh. [ENTITY], ld. Prosecutor, for the [ENTITY] and have perused the record.
7. It was submitted by ld. Counsel for the accused that present case is based on circumstantial evidence and circumstances relied upon by the prosecution are motive, last seen, time since death and recovery of weapon of offence alleged to have been recovered at the instance of accused. As regards motive, it was submitted that as per prosecution case, the deceased had given a sum of Rs.1,000/ to the accused, which he was demanding and accused committed murder of deceased so that he would not have to repay that amount. It was submitted that this motive 8 for commission of crime has not been proved because father of the deceased nowhere speaks about any such money transaction between accused and the deceased, besides that there is no other evidence as such motive to commit crime is not proved. As regards the last seen evidence, it was submitted that according to prosecution, father of deceased saw the accused going with deceased. PW2 [ENTITY] is the landlord of the premises, where deceased along with his father was residing. He has also deposed that he saw accused going with deceased. However, between 30.09.09 to 02.10.09, no report of missing was lodged by father of the deceased. Further more, had the father of deceased seen the accused going with deceased, there would have been no occasion for him to make any inquiry from [ENTITY] in this regard. Moreover, [ENTITY] in his crossexamination stated that when [ENTITY] made inquiries from him regarding his son, he told him to wait for sometime as he might have gone to village and will return back. It was submitted that if he had actually seen the deceased going with accused, there was no occasion for him to tell [ENTITY] to wait for deceased to come back from village or [ENTITY] to make any inquiry from [ENTITY]. Under these circumstances, it was submitted that even the last seen evidence is not proved.
As regards time since death is concerned, it was submitted that as 9 per prosecution case, murder was committed on 30.09.09, however recovery was effected on 01.10.09. In this regard, he referred to the testimony of PW1 for submitting that according to him, he noticed a dead body was lying, whereupon he informed the police from his mobile phone on 01.10.09. One DD No. 13A was recorded on this information, however on record, there are two DD entries available with the same number, but contents are different, inasmuch as, one is dated 01.10.09 PS Nupur, which is exhibited as 17A and another DD is dated 02.10.09, PS Usmanpur, as such doubt is created whether dead body was found lying on 01.10.09 or 02.10.09. Further more, doctor who conducted postmortem examination deposed in examinationinchief that time since death was about 3 days. However, in crossexamination she stated that death may be possible on 02.10.09. As such it is not proved as to when death had taken place. As regards recovery of weapon of offence is concerned, as per prosecution case accused was arrested on 05.10.09 at the instance of father of deceased and he is the witness to the arrest of accused. However, if accused was arrested in his presence then natural consequence would have been that he would have been a witness to the disclosure statement and the recovery memo. However, neither he is witness to the disclosure statement nor to the recovery of weapon of offence. As such recovery of weapon of offence at the instance of accused 10 is also not proved. Moreover, as per FSL report blood was detected on knife, which was human origin, but blood group could not be opined. It was further submitted that both [ENTITY] and [ENTITY] have deposed that on 02.10.09 police officials brought photograph and have identified that photograph to be of son of [ENTITY] and thereafter they went to mortuary to identify dead body, but he referred to inquest report and the identification memo, which are dated 04.10.09, as such their plea that they had identified the dead body earlier is false. To prove all the links in the chain, which are totally missing in the instant case, as such prosecution has failed to establish its case beyond reasonable doubt, accused is entitled to be acquitted.
8. Rebutting the submissions of the ld counsel for accused, it was submitted by ld. Prosecutor that deceased and accused were friends and PW2 [ENTITY] is totally independent witness and he is neither on inimical terms with accused nor interested witness, as such there is no reason to disbelieve his testimony. This is the witness, who had seen the accused lastly with accused. Further more, weapon of offence was recovered at the instance of this accused and blood was detected on the knife and as per report of doctor the injuries were possible by weapon recovered from possession of the accused. Under these circumstances, it was submitted that prosecution has been able to bring home guilt of the 11 accused beyond reasonable doubt and accused is liable to be convicted of the offence alleged against him.
9. I have given my considerable thoughts to respective submissions of the ld. Counsels for the parties and have perused the record.
10. Admittedly, in the instant case there is no eyewitness to the incident. Case is based on circumstantial evidence.
11. Before going to circumstantial evidence appearing against accused persons, it may be mentioned that law regarding circumstantial evidence is well settled : It has been consistently laid down by hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Reference may be made to Hukam Singh v. [ENTITY] of Rajasthan, AIR 1977 SC 1063; Eradu v. [ENTITY] of Hyderabad, AIR 1956 SC 316; Earabhadrappa v. [ENTITY] of Karnataka, AIR 1983 SC 446: [ENTITY] of [ENTITY]P v. Sukhbasi, AIR 1985 SC 1224; Balwinder Singh v. [ENTITY] of Punjab, 1987(1) RCR (Crl.) 517(SC): AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from 12 those circumstances. In [PRECEDENT], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
12. Reference may also be made to a decision of hon'ble Supreme Court in C. Chenga Reddy v. [ENTITY] of A.P., 1996(3) RCR (Crl.) 793 (SC): 1996 (10) SCC 193, wherein it has been observed thus :
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence"
13. In Padala Veera Reddy v. [ENTITY] of A.P.,1990(2) RCR (Crl.) [SECTION] (SC): AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly 13 pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.
14. In [ENTITY] of [ENTITY]P. v. Ashok kumar Srivastava, 1992(3) RCR (Crl.) 63(SC): 1992 Crl. LJ 1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
15. Sir [ENTITY] in his admirable book 'Wills Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of 14 proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and 5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
16. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by hon'ble Apex Court as far back as in 1952.
17. In Hanumant Govind Nargundkar v. [ENTITY] of [ENTITY]P, AIR 1952 SC 343 it was observed thus:
" It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one propsed to be proved. In other words, there 15 must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
18. A reference may be made to a later decision in Sharad Birdhichand Sarda v. [ENTITY] of Maharashtra, AIR 1984 SC 1622. Therein, 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 of lacuna in the prosecution cannot be cured by a false defence or plea. The condition precedent in the words of hon'ble Supreme Court, before conviction could be based on circumstantial evidence, are reproduced as under :
(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 16 (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.
19. Substantially similar view was taken in Geejaganda Somaiah v. [ENTITY] of Karnatka, AIR 2007 S.C. 1355. This being the legal position, let us turn to the case in hand and to see whether prosecution has been able to complete its chain of circumstances to bring home the guilt of accused persons beyond reasonable doubt.
20. Prosecution, in the instant case, is trying to establish its case on the basis of : (1) Last seen evidence.
(2) Motive.
(3) Recovery of weapon of offence at the instance of accused.
21. I shall take up each of the circumstances set up by the prosecution.
Last seen evidence :
22. In order to establish this circumstance, prosecution has examined PW2 [ENTITY] and PW7 [ENTITY]. [ENTITY] is the landlord of the premises, where deceased along with his father [ENTITY] was residing. [ENTITY] has unfolded that on 30.09.09, he had seen [ENTITY] going from his house towards pusta 17 Usmanpur along with his friend [ENTITY]. Thereafter, [ENTITY] did not come to his house. [ENTITY] (PW7), father of deceased, has also deposed that on 30.09.09 it was Thursday on that day. At about 7.30am, [ENTITY], resident of Gali No.8, came at his house and had taken his son in his presence and thereafter he did not come back. He searched for his son [ENTITY], but could not trace him. He admitted in his crossexamination that he did not lodge any missing report of his son from 30.09.09 till 02.10.09, when police officials came and showed him photograph of his son on the plea that he is illiterate. Nothing has come on record to show that if he had seen his son going with accused [ENTITY], then he made any inquiry from him regarding whereabouts of his son. As per his version, he not only knew the accused, but also knew his house, inasmuch as, he has deposed that he is the resident of Gali No.8 and is residing at the house of [ENTITY] at Shastri Park, Delhi. That being so, natural course of conduct requires that he should have made inquiries from [ENTITY] regarding whereabouts of his son, but nothing has come on record to this effect. Further more, according to him, he stated before his owner regarding nontraceability of his son. [ENTITY] in his crossexamination has deposed that between 30.09.09 to 02.10.09, [ENTITY] inquired from him about his son and he told him to wait for sometime as he might have gone to his village and will return 18 back. If this witness had really seen the accused going with deceased, there was no occasion for him to tell [ENTITY] to wait for his return from village. Even if it is assumed that [ENTITY] is illiterate and he did not go to police station to lodge missing report, even if that is so when he made inquiries from [ENTITY] and if he had really seen accused going with deceased then they would have gone the police station and at least would have lodged missing report and would have stated before the police that lastly they had seen the deceased going with accused. Under these circumstances, conduct of father of deceased in not making any inquiry from [ENTITY] or his family members regarding whereabouts of his son and thereafter not lodging any missing report, coupled with the conduct of house owner [ENTITY], who asked [ENTITY] to wait for some time as deceased might have gone to his village and will return back cast a serious doubt as to whether they had really seen deceased going along with the accused.
23. This last seen theory assumes significance regarding the time when death took place. PW1 Sh. [ENTITY] has deposed that on 01.10.09 at about 12.30 or 12.45 in the afternoon, he was passing through MCD Flats, when he noticed one dead body lying on the side of wall near Jain Temple near BSES Poll No. 315, New Usmanpur. He made call at 100 number from his mobile No.9582342401. On receipt of this 19 information, DD No.13A was recorded. There is force in the submissions of ld. Counsel for the accused that on the judicial record two DD entries bearing No.13A are available. One DD No.13A is dated 01.10.09 and has been exhibited as Ex.PW17/A, regarding receipt of information regarding lying of a dead body near MCD Flats, BSES Poll No.315, while another DD is also bearing the same number and its contents are also the same, but it is dated 02.10.09 and this is attested copy of DD. The discrepancy in the dates is not explained by the prosecution.
24. Further more, the dead body was sent for postmortem examination and postmortem was conducted by Dr. [ENTITY] on 04.10.09. In her examinationinchief she has deposed that time since death was about three days. In pursuance to the question put in crossexamination, as to on what basis she ascertained time since death as about three days, she replied that as per postmortem changes finding and general observations, the time since death was ascertained to be about three days. The findings are greenish discolouration present on chest, abdomen and face, peeling off of the skin and post mortem blisters seen, abdomen distended and face bloated up due to putrification, hairs were loose and easily pluckable, rigor mortis passed off. However, in the very next breath she deposed that death could be possible on 02.10.09. That being so, it is not established as to when death took place.
25. ld. Counsel for the accused has placed reliance in 2010 (III) JCC 2024, Niranjan Panja vs. [ENTITY] of West Bengal. That was also a case where the prosecution case depended upon theory of "last seen" and it was held by Hon'ble Apex Court that in such cases it is necessary that prosecution should establish time of death, which prosecution failed to prove. Moreover, there are catena of other decisions to the effect that when case is based on last seen together, the time gap between point of time when accused and deceased were seen last alive and deceased was found dead should be so small that possibility of any person other than accused being the author of crime becomes impossible.
[SECTION]. In Bodh Raj alias Bodha & Ors. v. [ENTITY] of Jammu and Kashmir, (2002) 8 SCC 45, it was observed by Hon'ble Apex Court as under:
"31. The lastseen theory comes into play where the timegap 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 21 and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases "
27. In Ramreddy Rajesh Khanna Reddy & Anr. Vs. [ENTITY] of Andhra Pradesh, 2006 (2) RCR ( Criminal )462 : 2006 (1) Apex Criminal 675, Hon'ble Apex Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.
28. In Jaswant Gir v. [ENTITY] of Punjab, 2006(2) RCR (Criminal 202 :
2006(1) Apex Criminal 700: (2005)12 SCC 438, it was observed that :
"5 In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'lastseen' evidence, even if the version of PW 14 in this regard is believed "
29. From the principle laid down by Hon'ble Apex Court, the circumstance of lastseen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of 22 any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected mererly because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it could depend upon the evidence led by the prosecution to removed the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused person. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last 23 seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.
30. In view of these authoritative pronouncements, keeping in view the fact that firstly testimony of [ENTITY] and [ENTITY] that they had seen the deceased lastly with the accused does not inspire confidence. Moreover, since death is not established therefore, possibility of intrusion by any third party cannot be ruled out. As such, it is not possible to convict the accused on the basis of this "last seen evidence".
Motive :
31. Turning to the case in hand, firstly the money transaction between accused and deceased is not proved. Even otherwise, it does not appeal to reason that for a petty amount of Rs.1,000/ one can commit such a brutal murder, inasmuch as, as per postmortem report as many as 15 injuries were found on the person of deceased. As such, motive to commit crime is not proved.
32. As per prosecution version as deposed by Inspector [ENTITY], he was informed by [ENTITY] that his deceased son had 24 given a sum of Rs.1,000/ to accused and he had demanded money back from the accused. But he was not returning his money, and therefore he suspected that accused had killed his son due to this reason. In cross examination, the witness admitted that there was no proof that accused had taken Rs.1,000/ from deceased nor he carried out any investigation in this regard. Moreover, this part of this testimony does not find corroboration from testimony of father of deceased, inasmuch as, perusal of statement of [ENTITY] goes to show that same is conspicuously silent regarding any money transaction between accused and the deceased. He has nowhere deposed that his son had given a sum of Rs.1,000/ to accused [ENTITY] or that he was demanding return of money, which accused was avoiding or that because of this reason he suspected hands of accused [ENTITY] in murder of his son. Under these circumstances, motive to commit crime is also not established.
33. In [PRECEDENT], Hon'ble Apex Court emphasized that in case of circumstantial evidence, aspect of motive assumes considerable importance. In [PRECEDENT], Hon'ble Apex Court has laid down that it has been repeatedly pointed that where the case of prosecution has been proved beyond reasonable doubt on the basis of material produced before the Court, the motive looses its importance. But in a case, which is based on 25 circumstantial evidence, motive for committing crime on the part of the accused assumes great importance. It was further emphasized that if each of the circumstances proved at behest of prosecution is accepted by the Court for the purpose of recording finding that it was the accused, who committed crime in question, even in absence of proof of motive for commission of such crime, accused can be convicted. Similarly, in the case of [PRECEDENT], it has been observed that in case of absence of circumstantial evidence, motive assumes importance, inasmuch as, existence of motive is emphasizing factor in process of presumptive reasoning in such cases. The absence of motive, however, puts the Court of its care to scrutinize the circumstance more carefully to ensure that suspicion and conjectures did not take place on legal proof.
Recovery of Weapon of Offence :
34. It is the case of prosecution that on 05.10.09, [ENTITY], father of deceased came to police station and informed Inspector [ENTITY] that he had seen accused in the area. Thereafter, he along with Constable [ENTITY], Constable [ENTITY], [ENTITY] reached near Mandir Gali No.8, Service Lane, Pusta Road, New Usmanpur, Delhi. They found accused coming in front of them and on identification of [ENTITY], he was apprehended and [SECTION] interrogated. On interrogation, accused accepted his guilt in committing murder of deceased [ENTITY]. He recorded his disclosure statement Ex.PW12/G, wherein he admitted that he had borrowed a sum of Rs. 1,000/ from the deceased and due to this reason, he had killed him in a lonely place near BSES Poll No.315, MCD Flats, Usmanpur, Delhi. He arrested accused vide arrest memo Ex.PW7/C and took his personal search vide memo Ex.PW7/D. In his disclosure statement, accused further disclosed that chhurri by which he committed murder of [ENTITY] has been thrown by him in bushes, situated near flat No. C90, MCD Flats, and thereafter he took them to the said place and from bushes situated near C90, MCD Flats, he took out blood stained chhurri by which he committed murder of [ENTITY]. Thereafter, he prepared sketch of [ENTITY] and sealed the same in a parcel with the seal of [ENTITY] and took the same into possession vide memo Ex.PW12/H.
35. Disclosure statement made by accused and recovery of weapon of offence at his instance is challenged on the ground that (1) factually no such statement was made, and (2) the statement made was inadmissible in evidence.
36. Coming to the first limb of argument, arrest of the accused and then the making of disclosure statement in the manner as set by the prosecution has been challenged by ld. Defence counsel on the ground 27 that there is no independent witness to the arrest of the accused, although he was apprehended from a thickly populated area. This submission has force, inasmuch as, Inspector [ENTITY] in his crossexamination admitted that place from where accused was apprehended was thickly populated area. According to him, no public persons joined investigation during the course of recovery of weapon of offence from accused or at the time of recording his disclosure statement except [ENTITY], father of deceased. [PRECEDENT], [ENTITY] vs. [ENTITY] was a case where no independent witness was joined at the time of recording disclosure statement. It was observed by Hon'ble High Court by adversely commenting upon the conduct of SHO and the Subinspector that it is not disputed as to how this basic principle of investigation has been lost sight of by the investigating officer that at the time of interrogating the accused and for making recoveries, which are admissible under [SECTION] of the [ACT], sincere efforts must be made by the investigating officer to join independent public witnesses. It is not the case that no such public witnesses were available or any sincere effort was made in joining public witnessed, but without success. Merely, having brother of deceased with them for the purpose does not remove suspicion about the genuineness of the disclosure statement and recovery allegedly effected on the basis of such disclosure statement. 1999 Cr.L.J. 19, 28 Sanspal singh vs. [ENTITY] of Delhi was also a case where recovery of country made pistol and live cartridges was sought to be proved on the basis of testimony of police officials alone. No public witness was joined at the time of search of accused. Although evidence reflected that a number of persons were passing through at the time when recovery was being effected. As such public witnesses were available and should have been associated to witness the recovery. No explanation was forthcoming for not joining them as such it was held by Hon'ble Apex Court that it would be unsafe to maintain conviction of the appellant for the offence charged. Turning to the case in hand, it was admitted by the investigating officer as well as other police officials that place where accused was apprehended was thickly populated area and even no effort was made to join any public person in the investigation either at the time of recording disclosure statement of the accused or arrest of the accused or recovery of weapon of offence. Although Inspector [ENTITY] deposed that except the father of deceased, no public person had joined investigation. However, in the instant case, it is not even established that father of deceased was present at the time of recording of disclosure statement of accused or recovery of weapon of offence, inasmuch as, perusal of his testimony goes to show that same is confined to the fact that on 05.10.09, he had gone to police station to inform the police officials about the accused and 29 there upon three police officials came along with him and then accused was arrested by police officials from street No.8, Shahdara, Delhi. He identified his signatures on the arrest memo Ex.PW7/C and Ex.PW7/D. Thereafter, there is nothing in the testimony of this witness that accused was interrogated in his presence or he made any disclosure statement or weapon of offence was got recovered in his presence, inasmuch as, his testimony is completely silent in this regard and even the disclosure statement Ex.PW12/G and seizure memo of weapon of offence Ex.PW12/H does not bear his signatures. As such it is not established that any disclosure statement was made by accused in the presence of [ENTITY] or any weapon of offence was recovered in his presence. Net effect of the same is that although as per testimony of [ENTITY] and police official, at least [ENTITY] was present along with police officials at the time of arrest of accused, inasmuch as, it was only at his pointing that accused was arrested, but no explanation is forthcoming as to why even this witness was not made to join subsequent investigation of the case, i.e., disclosure statement and recovery of weapon of offence.
37. Further more, [SECTION] of the [ACT] mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly, [SECTION] of the [ACT] provides 30 that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of [SECTION] and [SECTION] of the [ACT], there is an exception carved out by [SECTION] of the [ACT] providing that when any fact is deposed to is discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. [SECTION] is a proviso to [SECTION] and [SECTION]. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. [SECTION] appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
38. In [ENTITY] of Uttar Pradesh v. [ENTITY] Upadhyaya, AIR 1960 SC 1125 Hon'ble Apex Court held that [SECTION] and [SECTION] were manifestly intended to hit an evil, viz., to guard againt the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The [ENTITY] is as much concerned with punishing 31 offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. [SECTION] renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. In that case Hon'ble High Court had acquitted the accused on the ground that his tatement which led to the recovery of gandasa, the weapon of offence was inadmissible. The accused [ENTITY] had made a statement to hand over the gandasa which he stated to have thrown into a tank and got it recovered. The Trial Court convicted the accused for the offence of murder. The Full Bench of Hon'ble High Court held that [SECTION] of the [ACT] which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending [SECTION] of the [ACT] (in short the 'Constitution') was unenforceable. After the opinion of the Full Bench a Division Bench of the Court excluded from consideration the statement made by the accused in the presence of the police officer and held that 32 the story of the accused having borrowed a gandasa on the day of occurrence was unreliable. The accused was acquitted but at the instance of [ENTITY] of [ENTITY]P., Hon'ble High Court granted a certificate to file the appeal Hon'ble Supreme Court. Hon'ble Supreme Court did not agree with the position of law settled by Hon'ble High Court and decided to proceed to review the evidence n the light of that statement in so far as it distinctly related to the fact thereby discovered being admissible. Dealing with the conclusions arrived at by Hon'ble High Court and on the fact of the case, Hon'ble Court observed :
"The High Court was of the view that mere fetching of the gandasa from its hinding place did not establish that [ENTITY] himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that [ENTITY] had seen someone placing that gandasa in the tank or that tank, or that [ENTITY] had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by [ENTITY] is provably in so far as it distinctly relates to the fact thereby discovered; and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of [ENTITY] of the gandasa stained with human blood in the light of the admission by him 33 that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the Hon'ble High Court."
39. In Mohmed Inayatullah v. The [ENTITY] of Maharashtra, AIR 1976 SC 483, it was held that expression ' fact discovered' includes not only the physical object produced but also place from which it is produced and the knowledge of the accused as to that. Interpreting the words of section "so much of the information" as relates distinctly to the fact thereby discovered, the Court held that the word 'distinctly" means "directly, "
indubitably", "strictly", unmistakably". The word has been advisedly used to limit and define the scope of proveable information. The phrase "distinctly" relates " to the fact thereby discovered". The phrase refers to that part of information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded.
40. In Earabhadrappa alias Krishanppa v. [ENTITY] of Karnataka, 1983 (1) RCR ( Crl.)292 (SC):1983 (2) SCR 552 it was held that for the applicability of [SECTION] of the [ACT] two conditions are pre requisite, viz., (i) information must be such as has caused discovery of the fact, and (ii) the information must ' relate distinctly' to the fact discovered. Under [SECTION] only so much of the information as distinctly relates to the fact really thereby discovered, is admissible. While deciding the 34 applicability of [SECTION] of the [ACT], the Court has also to keep in mind the nature of presumption under [SECTION] of the [ACT]. The Court can, therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. In that case one of the circumstances relied upon by the prosecution against the accused was that on being arrested after a year of the incident, the accused made a statement before the police leading to the recovery of some of the gold ornaments of the deceased and her six silk sarees, from different places which were identified by the witness as belonging to the accused. In that context the court observed:
" There is no controversy that the statement made by the appellant Ex.P35 is admissible under [SECTION] of the [ACT]. Under [SECTION] only so much of the information as distinctly relates to the facts thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates."
41. In [ENTITY] of Maharashtra v. Damu, S/o Gopinath Shinde and others, 200092) CR ( Crl. ) 781 (SC): JT 2000(5) SC 575 has held that the [SECTION] the [ACT] was based on the doctrine of confirmation by subsequent events and giving the section actual and expanding 35 meaning, held:
"The basic idea embedded in [SECTION] of the [ACT] is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non inculpatory in nature, but (if) results in discovery of a fact it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in Section. The decision of the Privy Council in [PRECEDENT], is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced; the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
42. Turning to the case in hand, as stated above, although father of deceased is a witness to the arrest of accused, but no satisfactory explanation is forthcoming as to why he was not made to join further investigation of the case whereby the accused was interrogated and he got recovered weapon of offence. Testimony of Inspector [ENTITY] 36 that at the time of recording of disclosure statement and recovery of weapon of offence, father of deceased was present is belied by the documents, inasmuch as, disclosure statement and pointingcumseizure memo does not bear his signatures. Constable [ENTITY] is another witness in whose presence the accused is alleged to have made disclosure statement and got weapon of offence recovered. However, in cross examination, this witness could not say if at the time of disclosure statement father of deceased was present or not. According to him, besides him disclosure statement was signed by Constable [ENTITY]. Although he went on stating that at the time of recovery of chhurri, father of deceased was present, but could not tell if recovery memo was signed by him. At any rate, recovery memo does not bear signatures of [ENTITY] and that belies presence of [ENTITY] at the time of recovery of alleged weapon of offence.
43. Moreover, it is also not proved beyond reasonable doubt that recovery of weapon of offence was from the place, which was exclusively within the knowledge of accused only, inasmuch as, although in examinationinchief police witnesses have deposed that accused had taken police officials to the bushes situated near flat No.C90, MCD Flats, New Usmanpur, and took out a knife. However, in crossexamination, Inspector [ENTITY] deposed that knife was recovered from bushes 37 situated "in an open place". If recovery was effected from an open place then it is accessible to all. Moreover, recovery of knife is only a possible weapon of offence and not the only weapon of offence as held in [ENTITY] vs. [ENTITY], 2010 (2) C.C. Cases (HC) 330. In that case, knife was alleged to have been recovered at the instance of accused in pursuance to his disclosure statement. It was observed by Hon'ble High Court that by relying upon Mani vs. [ENTITY] of Tamilnadu, JT 2008 (1) SC 191;, Deva Singh vs. [ENTITY] of Rajasthan, 1999 Cr.L.J. [SECTION]5; Surjit Singh and Anr. vs. [ENTITY] of Punjab, AIR 1994 SC 110; Narsinhbhai Haribhai Prajapati etc vs. Chhatarsinh and Ors, 1977 (9) UJ 2[SECTION] (SC) and Prabhu vs. [ENTITY] of UP, AIR 1963 SC 1113 that recovery of ordinary object is always treated as a very weak piece of evidence. Unlike firearms, knives etc are only capable of being opined as the possible weapon of offence and not the only weapon of offence. This view was reiterated in 2010 (2) CC Cases (HC) 333, Ashish vs. [ENTITY].
44. Further more, after recovery of weapon of offence, it was sent by the investigating officer to Dr. [ENTITY], who conducted postmortem examination on the dead body of deceased and for subsequent opinion. After seeing the knife, she gave her subsequent opinion Ex.PW9/B that injuries No. 1, 2, 3, 4, 5, 6, 10, 11, 12, 13 & 14 are possible by the weapon having dimensions as given in the weapon and injuries No.7, 8, 9 are 38 possible by weapon. Under these circumstances, as per opinion of doctor injuries found on the body of deceased were possible by weapon alleged to have been recovered from possession of the accused. From this piece of evidence at best, it can be said that evidence has reached level of suspicion. But it remained in the realm of "could be" and has not reached level of "should be". This is because of the fact that weapon of offence and articles seized at the spot, seven clothes of deceased were sent to FSL for opinion. Same were examined by Ms. [ENTITY], who gave her report Ex.PW13/A and Ex.PW13/B. As per report, following articles were received by FSL containing these parcels.
Parcel '1' : One sealed cloth parcel sealed with the seal of "[ENTITY]" containing exhibit '1' kept in a plastic container.
Exhibit '1' : Cotton wool swab having brown stains described as blood in cotton swab.
Parcel '2' : One sealed cloth parcel sealed with the seal of "[ENTITY]" containing exhibit '2' kept in a plastic container.
Exhibit '2' : Earth alongwith stone described as 'Blood stained earth control.
Parcel '3' : One sealed cloth parcel sealed with the seal of "[ENTITY]" containing exhibit '3' kept in a plastic container.
Exhibit '3' : Earth along with stone described as 'normal earth 39 control'.
Parcel '4' : One sealed cloth parcel sealed with the seal of '[ENTITY]' containing exhibit '4'.
Exhibit '4' : One weapon of offence made up of all metallic havng rusty brown stains described as knife.
Parcel '5' : One sealed cloth parcel sealed with the seal of '[ENTITY]' containing exhibits '5a', '5b', '5c' and '5d'.
Exhibit '5a' : One pant's having brown stains.
Exhibit '5b' : One shirt having dark brown stains. Exhibit '5c' : One baniyan dark brown stains.
Exhibit '5d' : One underwear having dark brown stains. Parcel '6' : One sealed envelope sealed with the seal of "[ENTITY]" containing exhibit '6'.
Exhibit '6' : Brown gauze cloth piece described as 'Blood on gauze'.
After examination, result of analysis was as under : (1) Blood was detected on exhibits '1', '2', '4', '5a', '5b', '5c', '5d' and '6'.
(2) Blood could not be detected on exhibit '3'.
Thereafter she gave her serological report, which is to the following effect : 40 Exhibits Species of ABO Origin Grouping/Remarks '1' Cotton wool swab Human No reaction '2' Blood stained earth Human No reaction along with stone.
'3' Earth along with stone No reaction (control) '4' Weapon of offence Human No reaction '5a' [ENTITY]'s Human No reaction '5b' Shirt Human Inconclusive '5c' Banian Human Inconclusive '5d' Underwear Human No reaction '6' Blood stained gauze Human Inconclusive cloth piece
A perusal of both these reports goes to show that although blood was detected on the cotton wool swab, blood stained earth control, knife, pant, shirt, banyana, undewear and blood on gauze, however, blood could not be detected on normal earth control. As per serological report, although on these exhibits blood was found to be of human origin, but group of blood could not be given either due to "no reaction" or "inconclusive". With the result, the group of blood appearing in articles could not be opined by the expert.
45. In [ENTITY] (supra) also the group of blood appearing on the articles could not be deciphered by expert and only human blood was found on the article. It was held by Hon'ble High Court that it cannot be linked with crime in question. Similar view was taken in [ENTITY] (supra).
46. Result of the aforesaid discussion is that neither motive to commit crime nor last seen evidence is proved. Even the recovery of weapon of offence at the instance of accused is not established beyond reasonable doubt and even if it is assumed that weapon of offence was recovered at the instance of accused, it is not proved beyond reasonable doubt that it was with this weapon that murder of [ENTITY] was committed.
47. In view of the settled legal proposition discussed above, since case of the prosecution rest solely on the circumstantial evidence, the circumstances from which conclusion of the guilt is sought to be drawn against accused needs to be fully and firmly established. The circumstances so proved should be consistent not only with hypothesis of guilt of the accused, but also exclude other reasonable hypothesis of his being innocent. Of course, circumstances proved by the prosecution need not exclude each and every hypothesis suggested by the accused, however remote and far fetched it may be. But the chain of evidence produced by the prosecution must show that in all probability the offence was committed by no one other than the accused.
48. Applying these settled principles of law, circumstances which the prosecution has been able to prove in this case, do not lead to the conclusion that in all human probability, accused [ENTITY] committed murder of deceased [ENTITY]. It is cardinal principle of criminal jurisprudence that accused is assumed to be innocent till his guilt is proved to the hilt. In case of any doubt, he is entitled to benefit of the same. Under these circumstances, prosecution has not been able to establish its case beyond reasonable doubt and as such accused is entitled to benefit of doubt. Accordingly, he is acquitted of the charges. Since accused is in JC, he be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the Open Court ([ENTITY]) On this 8th day of December, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.