* IN THE HIGH COURT OF DELHI AT NEW DELHI % CRL. APPEAL NO. 449 OF 2003 + Date of Decision: 8th September, 2008 # MATADIN ...Appellant ! Through: Ms. Rakhi Nigam, Advocate versus $ STATE ...Respondent ^ Through: Ms. Richa Kapoor, APP CORAM: * HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment?(No) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest?(Yes) JUDGMENT P.K.BHASIN, J: The appellant Matadin and three other persons were tried for the offences punishable under Sections 302 and 201 IPC read with Section 34 IPC for committing the murder of one Hari Crl. A.No. 449/2003 2 Shankar and causing disappearance of the evidence of his murder but vide judgment dated 27.08.2002 the learned Additional Sessions Judge convicted the appellant alone under Sections 302/201 IPC and acquitted his three co-accused of both the charges. Vide order dated 28.8.2002 the appellant was sentenced to undergo life imprisonment and also to a fine of Rs. 5000/- under Section 302 IPC and rigorous imprisonment for three years and a fine of Rs. 1000/- under Section 201 IPC. Sentences of further imprisonment in case of default in payment of fine were also imposed. Questioning the correctness of his conviction and the sentences awarded to him the appellant(hereinafter referred to as „the accused‟) has preferred this appeal. 2. Before delving into the correctness of the impugned judgment of the trial Court it would be necessary to notice the case of the prosecution. A dead body of a boy aged 20-22 years was noticed lying on the railway track near Pandav Nagar on 6.3.96 at about 10.45 a.m. by one Head Constable of Police Control Room. Intimation about that was given to the Railway police station at Delhi‟s main station. ASI B.D. Sharma (PW-15) Crl. A.No. 449/2003 3 was asked to go to the spot. He reached the spot where he found dead body of a boy aged 20-22 years lying on the railway track. The legs were found tied with a rope and the face and neck of the body were swollen and injuries were also present on the face and neck of the deceased person. Since it appeared to be a case of murder a case under Section 302 IPC was registered vide FIR no. 48/96 (on the report Ex. PW-15/A) (Ex. PW-3/B) at Railway police station on the report of ASI B.D. Sharma. Since the dead body could not be got identified it was preserved in the mortuary for 72 hours. Intimation about recovery of a dead body of an unknown person was flashed to all the police stations so that it could be got identified. 3. It so happened that on 7.3.96 PW-9 Sukhai went to Moti Nagar police station to lodge a missing report of his cousin brother Hari Shankar who had been missing from his house since 5.3.96. That report was recorded as DD no. 5-A. He stated in his report that his cousin brother Hari Shankar was living with him for about 1-1/2 months and was working in Venkateshwara Rolling Mill at 63, Najafgarh Road. On 05.03.96, which was the day of Holi Crl. A.No. 449/2003 4 festival, at about 8 a.m. one Matadin(appellant herein) who was a close associate of the owner of the said Mill had taken Hari Shankar for playing holi. Hari Shankar, however, did not return till 4 p.m. and then he(Sukhai) went to the factory and enquired from Matadin about Hari Shankar who told him that Hari Shankar was sleeping after eating and drinking(thoda kuch kha-pi liya hai aur so raha hai) and he would bring him to his house after he would wake up but Hari Shankar had not come back. Sukhai raised suspicion against Matadin as well as the owner of his factory and requested the police to trace his cousin. By that time the dead body found from the railway track on 06/03/96 was lying in the mortuary and on the same day Sukhai was taken to the mortuary at Subzi Mandi and was shown that dead body and on seeing the dead body Sukhai identified the same to be that of his cousin Hari Shankar. PW-16 Insp. R.S. Dahiya who was the SHO posted at Railway Police Station at Delhi Railway Station then recorded the statement of Sukhai under Section 161 Cr. P.C. and started the search of Matadin and went to his house as well as his factory where he was working but he was not found at any of these two places. He was reported to be absenting from duty. Accused Crl. A.No. 449/2003 5 Matadin could finally be arrested on 11.3.96 on the pointing out of PW-9 Sukhai from his house. At that time accused Matadin was found packing his luggage to flee away. From the room of Matadin PW-16 recovered one whisky bottle(half) having some liquor in it and the same was taken into police possession and sealed. Accused Matadin made a disclosure statement in police custody and pursuant to that the police arrested two more persons, namely, Mukhtiar Singh and Ram Singh on 11.3.96. Matadin had in his disclosure statement disclosed about his involvement in the murder of the deceased Hari Shankar as also that of the said Mukhtiar Singh and Ram Singh and one Shitla Prasad who, however, could not be arrested by the police but subsequently he himself surrendered before the concerned Court on 27.5.96. 4. The dead body of the deceased was subjected to post mortem examination by PW-13 Dr. L.T. Ramani on 11.3.96. He noticed the following external injuries on the dead body of the deceased at the time of post mortem examination: 1. Bruise with abrasion 1 inch x ½ inch on the left sub-mandibular area. Crl. A.No. 449/2003 6 2. Multiple abrasion on the left cheek over 2 inch x 2 inch area. 3. Abrasion 1 ½ inch x 1 inch on the lower part of right cheek. 4. Abrasion 1 ¼ inch x 1 ¼ inch on the under surface of chin on the right side. 5. An abrasion ½ inch x 1 ¼ inch on the right sub-mandibular area. 6. Multiple grazed abrasion running vertically on the lower front of chest and front of abdomen involving 11 inch x 9 inch area with pealing off cuticle from below upwards at several places in vertical direction. There was no evidence of blockage/effusion beneath(post mortem injury). 7. Impression of ligature(rope) over lower parts of thighs 2 inch above the knee level. On internal examination the autopsy surgeon had found the smell of alcohol from the stomach. The cause of death was opined to be asphyxia resulting from strangulation and time since death was opined to be about 5 to 6 days. 5. The case was finally transferred to Patel Nagar Police Station since the place from where the dead body of the deceased was recovered fell within the jurisdiction of Patel Nagar Police Station. There a separate FIR was registered(being FIR Crl. A.No. 449/2003 7 No.168/96, Ex PW-6/A). On completion of the investigation the appellant Matadin and the three other accused persons, named already, were charged under Sections 302/201 read with Section 34 IPC. The trial Court framed charges against all the four accused persons under Section 302/34 IPC and also under Section 201/34 IPC. Since the accused persons had pleaded not guilty to these charges framed against them the prosecution was called upon to establish its case. Thereafter the prosecution examined 19 witnesses. Since there was no eye-witness of the murder of the deceased the prosecution had sought to establish its case against the accused persons on the basis of circumstantial evidence. The learned trial Court has not enumerated the circumstances specifically in its judgment but we find all the circumstances found to have been accepted by the trial Judge summed up in para nos. 30 and 31 of the judgment which are reproduced hereunder: “30. Thus the deceased was last seen alive in the company of Matadin on 5.3.1996 his dead body was recovered from the railway track which was just near the house of Matadin. The deceased was employed by Matadin and he was taken to the house of Matadin by Matadin for celebrating holi and when he did not return to the Crl. A.No. 449/2003 8 house of Sukhai he made enquiries from him and was given different version at different time. Three different versions were given by Matadin to Sukhai. First that the Hari Shankar was taking rest after taking liquor. Second that he had gone to Shahdra after taking 1000/ from him (Matadin). And third that Hari Shankar had left for his village. Matadin was himself not attending to his work at Venkateshwar Mill and was found missing for two days. All these facts conclusively prove that Hari Shankar was taken by Matadin for celebrating the Holi and he was offered liquor which was also found in his body at the time of post mortem and thereafter he was killed by strangulation and his dead body was put on the railway track to cause disappearance of the evidence. 31. The liquor bottle recovered from the house of Matadin was examined by Chemical Examiner and he found that the liquor bottle contained Ethyl Alcohol of 42.0 % V/V. The viscera was also found containing Ethyle Alcohol. These facts proved that Hari Shankar was in the company of Matadin on 5.3.1996 the date when it was holi and he was given liquor and thereafter he was killed by strangulation and his dead body thrown on the track to cause disappearance of the evidence.” 6. From the aforesaid two paras of the impugned judgment we have been able to cull out the circumstances which the prosecution had relied upon and the trial Court also found the same to have been established beyond any doubt and proved the involvement of accused Matadin in the murder of the deceased Crl. A.No. 449/2003 9 Hari Shankar. Those circumstances are: 1. The death of the deceased was homicidal. 2. On 5.3.96 accused Matadin had taken Hari Shankar at about 8.30 a.m. from his house for playing holi. 3. On the same day i.e. 5.3.96 at about 12.00 noon the appellant and the three acquitted accused persons and the deceased Hari Shankar had consumed liquor at the house of accused Matadin in Pandav Nagar. 4. Hari Shankar did not return back to his home on 5.3.96 after the drinks party at the house of Matadin. In the evening of 5.3.96 when PW-9 Sukhai went to the factory to inquire about Hari Shankar from Matadin, he was told by Matadin that Hari Shankar was sleeping as he had consumed excessive liquor. Then on 7.3.96 in the morning by which time also Hari Shankar had not come back home, when Sukhai again enquired from Matadin about Hari Shankar Crl. A.No. 449/2003 10 Matadin gave different and unsatisfactory versions about the whereabouts of Hari Shankar. 5. On 7.3.96 the dead body of Hari Shankar was found lying on the railway track in Pandav Nagar area where accused Matadin was living. 6. After PW-9 Sukhai had expressed his suspicion against accused Matadin he absconded and could be arrested only on 11.3.96. 7. After examining the evidence of various prosecution witnesses the learned trial Court came to the conclusion that the prosecution had succeeded in establishing the guilt of accused Matadin alone on the basis of aforesaid circumstances which were found to have been established but the involvement of other three accused persons had not been established. Consequently, Matadin was convicted under Sections 302 and 201 IPC while the other three co-accused persons were acquitted. Feeling aggrieved by his conviction and the sentences imposed upon him accused Matadin preferred the present appeal. Crl. A.No. 449/2003 11 8. It was argued by Ms. Rakhi Nigam, learned counsel for the appellant, that she was not disputing that the deceased died a homicidal death but this is a case of conviction of the appellant- accused for the offence of murder without there being any incriminating piece of evidence against him and the learned trial Court has convicted him primarily relying upon the confessional statement of the appellant which he had allegedly made after his arrest and was clearly inadmissible in evidence since it had not led to the recovery of anything incriminating which could be used against the accused. Learned counsel contended that both the prosecution witnesses examined to establish the circumstance of the deceased having been last seen alive in the company of the appellant Matadin and the acquitted accused persons had turned hostile during the trial and had not supported the prosecution case but still the learned trial Judge came to the conclusion that the deceased was seen alive for the last time in the company of the appellant Matadin. Learned counsel further contended that despite noticing that no witness had seen the deceased Hari Shankar in the house of Matadin enjoying liquor there the learned trial Judge gave a conjectural finding that the deceased must have Crl. A.No. 449/2003 12 consumed liquor in the house of Matadin since alcohol was found in his viscera and one bottle of whisky having some whisky in it was seized by the police from his room at the time of his arrest. Learned counsel submitted that just because alcohol was found in the stomach contents of the deceased after his death and PW-10 Shyam Narain had claimed that on the day of holi some persons were consuming liquor in the house of Matadin and Hari Shankar had left his house that day telling his cousin that he was going to Matadin it could not be inferred by the trial Judge that Hari Shankar also must have taken liquor in that gathering and so appellant Matadin could not have been convicted. It was also submitted that even if all the circumstances relied upon by the prosecution are taken to have been established the appellant could still be not convicted as from those circumstances taken together it could be said that the same formed a complete chain from which the only conclusion which could be drawn was of the guilt of the appellant-accused and those circumstances were incompatible with his innocence. 9. On the other hand, Ms. Richa Kapoor, learned Additional Crl. A.No. 449/2003 13 Public Prosecutor supported the trial Court‟s judgment under challenge and submitted that there was no infirmity in the findings arrived at by the learned trial Judge and, therefore, the present appeal deserved to be dismissed by this Court. 10. That the death of the deceased was homicidal is fully established from the evidence of autopsy surgeon and this fact was not disputed before us also by the learned counsel for the appellant. We will now proceed to examine if the other circumstances which the learned trial Court has found to have been established have actually been established or not and whether from those circumstances, the guilt of the appellant can be said to have been proved beyond any shadow of doubt. Regarding the second circumstance the prosecution as well as the learned trial Judge had relied upon the testimony of PW-9 Sukhai, cousin brother of the deceased with whom the deceased was living. The relevant part of his evidence reads like this: “In the year 1996 I was working in Mittal Steel Mill in village Mundka. I had a cousin brother, son of my uncle whose name was Hari Shankar. Hari Shankar was working at Venkateshwar Steel and Rolling Mill as contract Crl. A.No. 449/2003 14 labour under accused Mata Din who is present in the court today. Hari Shankar was residing with me in a house bearing no. W-153C/84, Rama Road, New Delhi. On 5.3.96 at about 8 - 8.15 p.m. accused Matadin came to my house to call Hari Shankar and at that time I was cooking meals and it was a day of holi. Matadin had taken Hari Shankar to celebrate holi at Venkateshwar Rolling Mill. Hari Shankar left telling me that he was going with Matadin and would return in a short while. Hari Shankar did not return and I waited till 4/4.30 p.m. and then I went to Venkateshwar Rolling Mill. Matadin told me that Hari Shankar was resting in his room after taking something (KHA PEEKE ARAAM KARR AHA HAI) and that he would come back to my house in the evening. Thereafter I returned to my house. Hari Shankar did not return at all though I went in search of him at one or two places. He did not return till next morning. I went to my duty and while leaving for my duty I had asked Ganga Ram to go to the mill where Hari Shankar was working and asked Mata Din about Hari Shankar. When I returned in the evening from my duty I enquired from Ganga Ram who told me that he had visited the mill and could not find Hari Shankar. He also informed me that he did not see Matadin in the Mill. In the evening I went in search of Hari Shankar to various places…………………………………. The holi was on Tuesday. Matadin accused met me again on Thursday when I went to the Mill to enquire about Hari Shankar. On enquiry Matadin told me that Hari Shankar had gone to Shahdara and would be returning by about 8.00 A.M. today to join the duty. I had gone to the Mill on that day at about 6.30 A.M. He again said that may be Hari Shankar had gone to his village as he (Hari Shankar) had taken Rs. 1000/- from him. I waited at the mill till 8.00 AM and when Hari Shankar did not turn up I went to Moti Nagar PS and lodged report which was recorded DD Crl. A.No. 449/2003 15 No. 5A mark X. On my report one Sanjeev Kr. was sent from PS who brought accused Mata Din to PS and after some time he was allowed to go but I kept on sitting at PS. After about two hours police officials again brought Matadin to PS and made enquiries from him. I do not know what kind of enquiries were made. At the police station somebody said that a dead body has been recovered from near Rly. Lines and then I was taken to mortuary Subzi Mandi where I identified the dead body of my cousin Hari Shankar. After post-mortem the dead body was handed over to me vide receipt Ex. PW-7/A……………………………………………………………..” 11. This is what he deposed in his chief-examination. However in his cross-examination on behalf of the accused he claimed that he himself had not seen Matadin on 05.03.96 taking Hari Shankar from his house for playing holi but Hari Shankar had told him that he was going to Matadin. He also admitted that during investigation stage he had told the police that, in fact, one person had come and told Hari Shankar that Matadin was calling him. He further claimed that he had not seen that person who had come to call Hari Shankar and that he himself had not seen Matadin also on 5.3.1996 at his house and he had presumed that Matadin had come to call Hari Shankar as Hari Shankar while leaving the house Crl. A.No. 449/2003 16 had told him that he was going with Matadin. 12. The learned trial Judge, however, despite having noticed in his judgment that PW-9 Sukhai had claimed in cross-examination that Hari Shankar had told him that he was „going to Matadin‟ and he himself had not seen Matadin at his house taking away Hari Shankar came to the conclusion that on 05/03/96 Hari Shankar was taken by Matadin for celebrating the Holi. The conclusion of the learned trial Court in this regard is to be found in the following lines of para no. 30 of the impugned judgment: “Thus the deceased was last seen alive in the company of Matadin on 5.3.96…….The deceased was employed by Matadin and he was taken to the house of Matadin by Matadin for celebrating holi……..All these facts conclusively prove that Hari Shankar was taken by Matadin for celebrating the holi……..” This conclusion appears to have been arrived at by relying upon the missing report (Mark „X‟) lodged by PW-9 Sukhai on 7.3.96 wherein he had claimed that Matadin had come to his house and had taken Hari Shankar along with him for playing Holi. That missing report, however, could not be taken into Crl. A.No. 449/2003 17 consideration as a piece of substantive evidence. If Sukhai had stuck to that version in Court then only that document could have been pressed into service by the prosecution to corroborate Sukhai‟s testimony. As noticed already, PW-9 in cross-examination had claimed that in his statement to the police(under Section 161 Cr.P.C. recorded after he had identified the dead body recovered from railway track on 06/03/96) that in fact on 05/03/96 somebody sent by Matadin had come to his house and had called Hari Shankar from outside their house saying that Matadin had called him for playing holi. It appears that the trial Judge relied upon that statement also when he observed in para no. 32 of his judgment that as per the prosecution evidence in fact Matadin had called Hari Shankar to his house for celebrating holi. That shows that PW-9 Sukhai had not been consistent in his version regarding what had actually transpired on 5.3.1996. In our view, no reliance can be placed on this kind of a witness. It is significant to note that the prosecution had not examined any other witness to establish that it was Matadin who had taken Hari Shankar from his house in the morning of 5.3.96 for celebrating holi and, therefore, in these circumstances the conclusion of the learned trial Court that the Crl. A.No. 449/2003 18 deceased had been taken away from his house by Matadin in the morning of 5.3.96 cannot be accepted by us. In our view, from the answers given by PW-9 in his cross-examination it is clear that the circumstance of the deceased having been taken by accused Matadin from his house in the morning of 5.3.1996 for playing holi, as was the prosecution case, was not established and on the contrary the statement of PW-9 in cross-examination demolished the prosecution case in respect of this circumstance relied upon by the prosecution. The aforesaid conclusions arrived at by the learned trial Court regarding the circumstance of accused Matadin having come to the house of the deceased Hari Shankar in the morning of 5-3-1996 and his having taken Hari Shankar with him for playing holi have been arrived at without giving any importance to the answers given by PW-9 Sukhai in cross-examination to the effect that he himself had not seen Matadin that day coming to his house and taking away his cousin Hari Shankar with him. It is now well settled that whatever a witness states in cross-examination is as much a part of his testimony as is the statement made during examination-in-chief and if in cross-examination on behalf of the accused something favourable for the accused has been elicited Crl. A.No. 449/2003 19 that part of his statement cannot be ignored and has to be given due weightage otherwise the whole purpose of giving an opportunity to the accused to cross-examine prosecution witnesses becomes redundant. Grave prejudice is caused to the accused if the favourable answers elicited on his behalf from some material prosecution witness in cross-examination are not taken into consideration, as has been done in the present case by the learned trial Court, and are totally ignored without assigning any reason. In our considered view, the prosecution cannot be said to have established this circumstance. 13. We find from the evidence adduced by the prosecution that even the third circumstance found to have been established by the learned trial Judge cannot be