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2007 DIGILAW 436 (DEL)

SHASHI NATH MISHRA v. STATE NCT OF DELHI

2007-03-01

P.K.BHASIN, R.S.SODHI

body2007
P. K. BHASIN, J. ( 1 ) THE appellant Shashi Nath Mishra, who has been convicted for the murder of one kalpana Devi wife of PW-12 Vishwanath, vide judgment dated 26. 11. 2002 passed by learned Additional Sessions Judge, Delhi in Sessions Case No. 60/99 in respect of FIR no. 569/98, Police Station Prasad Nagar, has filed this appeal feeling aggrieved by his conviction and sentence of life imprisonment imposed vide order on sentence dated 30. 11. 2002. ( 2 ) THE prosecution case is that the appellant was living in a room in which the deceased and her husband (PW-12) were also living. The husband of the deceased was a chowkidar. On 03. 12. 1998 when the husband of the deceased had gone to attend some marriage in the evening the appellant was seen entering the house where he was living with the deceased and her husband around 7. 30 p. m. by PW-4 Om prakash who was having a tent shop near their house. When PW-12, Vishwanath, husband of the deceased, came back to his house after attending the marriage along with his cousin Baijnath, he did not notice his wife in the house. He enquired from pw-4 Om Prakash about his wife who told him that he had not seen his wife. Thereafter, he along with Om Prakash came back to his house and searched for the deceased who was then found lying dead in a room by the side of the staircase. The police was informed. ( 3 ) INSPECTOR Dinesh Tiwari, PW-24, came to the spot and conducted the inquest proceedings. He also recovered various articles from the place of incident which included one pen having a photo of Sai baba on it lying in between the legs of the deceased. This police officer noticed teeth bite mark on the right cheek of the deceased and abrasion marks over her left chest and left elbow. He also noticed knife injuries on her body and a ligature mark on her neck. One knife was also found lying at the spot besides some broken pieces of bangles. On the basis of his own observation of the place of occurrence Inspector Tiwari prepared a rukka for registration of a case under Section 302 IPC and then sent it to the police station where a formal FIR under section 302 IPC was registered. One knife was also found lying at the spot besides some broken pieces of bangles. On the basis of his own observation of the place of occurrence Inspector Tiwari prepared a rukka for registration of a case under Section 302 IPC and then sent it to the police station where a formal FIR under section 302 IPC was registered. It appears that the husband of the deceased claimed before the police that some days before the incident he had given a pen having a photo of Sai Baba on it to the accused Shahi Nath mishra who was also his cousin brother and that very pen was lying at the place of incident in between the legs of the deceased. He got suspicious about the involvement of the accused Shashi Nath Mishra in the murder of his wife. The police then started searching the accused and in the meantime PW-4 om Prakash also appears to have claimed before the police that he had seen the accused entering the house of the deceased on 03. 12. 1998 at about 7:30 p. m. On the basis of some secret information, accused was spotted at Ajmal Khan Park where he was hiding himself behind the bushes in the park. He was arrested and during interrogation he made a disclosure statement pursuant to which he got recovered his blood stained clothes from a service lane where they were kept in a hedge. Samples of nail clippings of the accused were taken and a mould of his teeth was also got prepared. The same along with various articles seized from the spot were sent to cfsl for chemical examination. As per the cfsl report Ex. PW-24/g-1 blood was detected on the pant of the accused which he had got recovered but blood group could not be ascertained. The mould of the teeth of the accused did not tally with the teeth bite marks which were noticed on the cheek of the deceased. ( 4 ) ON the completion of investigation, the police submitted a challan in court against the appellant under Section 302 IPC and in due course, the case came to be committed to Sessions Court where he was charged under Section 302 IPC. The appellant pleaded not guilty and claimed to be tried. ( 5 ) THE prosecution examined 25 witnesses in all to establish its case. The appellant pleaded not guilty and claimed to be tried. ( 5 ) THE prosecution examined 25 witnesses in all to establish its case. The defence of the accused, when he was examined under section 313 Cr. P. C. , was of total denial and he pleaded false impiication. He claimed that he was arrested from house No. 11098, gali No. 2, Doriwalan, East Park Road, Karol bagh, New Delhi on 3/4. 12. 1998 on the basis of suspicion, That house belonged to one Bhuvinder Thakur. He also claimed that at that time one Arun Mishra was also present in that house and he along with that Arun Mishra was taken to the police station where he was given beatings and forced to sign blank papers. On the next day, police took him for medical examination and before that his finger nails and clothes were smeared with blood. The accused examined two witnesses in defence in support of his said stand that he was actually picked up from the house of Bhuvinder thakur. That Bhuvinder Thakur has been examined as DW - 1 and the other witness bhanu Pratap as DW-2. ( 6 ) AFTER considering the statement of PW-4 om Prakash, who claimed to have seen the accused entering the house of the deceased as well as the recovery of the pen having the photo of Sai Baba on it from the spot which PW - 12 Vishwanath, husband of the deceased claimed to have given to the accused some days prior to the incident the learned trial court found these circumstances to be sufficient to hold the accused guilty. The defence evidence was not found trustworthy. Consequently the appellant was convicted under Section 302 ipc. ( 7 ) DURING the course of hearing of this appeal, learned counsel for the appellant and learned Additional Public Prosecutor for the State referred to the evidence of PW-4 om Prakash, PW-12 Vishwanath and that of the Investigating Officer PW-24 Inspector dinesh Tiwari and made their respective comments about their testimony. Reference was also made to the CFSL reports regarding the presence of blood on the pant of the accused by the learned additional Public Prosecutor. Reference was also made to the CFSL reports regarding the presence of blood on the pant of the accused by the learned additional Public Prosecutor. Learned counsel for the appellant, on the other hand, highlighted the other CFSL report which was negative about the teeth bite marks noticed on the cheek of the deceased as well as the nail clippings of the accused on which no blood group was detected. ( 8 ) WE have examined the evidence which was highlighted before us and have also considered the rival submissions. As noticed already, the learned trial court has convicted the accused only on the basis of two circumstances which were found to have been established. The first circumstance relied upon by the trial court was that on 3. 12. 1998 at about 7/ 7:30 p. m. PW-4 Om prakash saw the accused going inside the house from where the dead body of the deceased was recovered. We, however, feel that testimony of PW-4 to the aforesaid effect does not inspire confidence. He himself has claimed in his cross-examination that when the police had reached the spot after he had informed the police about the murder, he as well as the husband of the deceased were both present. However, as per the evidence of the Investigating Officer, pw-24, none of them was present when he reached the spot and this is also substantiated from the fact that in the rukka sent by the Investigating Officer there is no mention of either PW-4 or PW-12. We also find from the evidence of the Investigating officer that he had started looking for the accused when the husband of the deceased had expressed suspicion about his involvement because of the find of the pen at the spot which he claimed to have given to the accused some days back. The investigating Officer also claims that next day of the incident, PW-4 Om Prakash, was joined in the investigation. He has not claimed that Om Prakash had claimed to have seen the accused entering the house of the deceased on 3. 12. 1998 in the evening. The investigating Officer also claims that next day of the incident, PW-4 Om Prakash, was joined in the investigation. He has not claimed that Om Prakash had claimed to have seen the accused entering the house of the deceased on 3. 12. 1998 in the evening. In any case, we are also of the view that even if it is accepted that Om prakash had seen the accused going inside the house where the dead body of the deceased was found that would not be a circumstance incriminating the accused for the murder of the deceased. The husband of the deceased himself has claimed that the accused was living with him in the same room where he was living along with his wife. He has also claimed that the accused is his cousin brother and another cousin of his, namely, Baijnath was also living with them. So the accused was entering his own house and that fact cannot be considered to be an incriminating circumstance. ( 9 ) WE are also of the view that the other circumstance relied upon by the trial court, namely, recovery of one pen having the photo of Sai Baba , also cannot be said to be incriminating the accused. There is no doubt that husband of the deceased (PW-12)has claimed that he had given that pen to the accused 8-10 days prior to the incident but his statement to this effect alone is not sufficient to reach to a conclusion that the husband of the deceased had gifted that pen to the accused or that after it had been given to the accused the same had not been returned back to the husband of the deceased by the accused. PW-12 vishwanath does not claim that when he gave the pen to the accused it had remained with the accused thereafter. So, merely on the ipse dixit of PW-12 that he had given the pen, found at the place of occurrence, to the accused he cannot be held guilty. Apart from this, there is another reason also for us to not to rely upon the circumstance of recovery of the pen from the place of occurrence as an incriminating circumstance because we find from the statement of the accused recorded under Section 313 cr. Apart from this, there is another reason also for us to not to rely upon the circumstance of recovery of the pen from the place of occurrence as an incriminating circumstance because we find from the statement of the accused recorded under Section 313 cr. P. C. that it was not put to him that the pen had been given to him by PW-12 8-10 days before the incident as claimed by PW-12. All that was put to him regarding the pen was that it was found lying near the dead body and it was seized. Learned counsel for the appellant was fully justified in submitting that in the absence of this fact having been put to the accused it could not have been used as an incriminating circumstance against him. It is now well settled that any circumstance which is considered to be an incriminating one and it is not put to the accused when he is examined under Section 313 Cr. P. C. the same cannot be used for basing conviction. ( 10 ) ALTHOUGH, the prosecution had also relied upon the find of blood on a shirt which the accused had got recovered after his arrest pursuant to his disclosure statement but we find that the learned trial court has not taken into consideration that circumstance for basing conviction. The trial court has also not made any reference to the recovery of any blood stained shirt at the instance of the accused. In any case, in our view, even this circumstance cannot be pressed into service, as was sought to be done by the learned Prosecutor before us, since while recording the statement of the accused under Section 313 Cr. P. C. it was also not put to him that he had got recovered a blood stained shirt. Learned Prosecutor submitted that the entire CFSL report was put to the accused about which he simply answered that he did not know anything about the report. In our view, simply by confronting an accused with a document like the CFSL report running into several pages it cannot be said that there was a proper opportunity given to the accused to explain this incriminating circumstance. An accused is not expected to go through the CFSL report to find out as to which particular part of that report he is to explain. An accused is not expected to go through the CFSL report to find out as to which particular part of that report he is to explain. We are, therefore, of the view that no reliance can be placed on the CFSL report also. ( 11 ) IF the evidence regarding recovery of the pen from the place of occurrence and blood-stained shirt at the instance of the accused is excluded from consideration and which we feel should have been excluded even by the learned trial court, there remains no other evidence against the accused and this fact has not been disputed even by the learned counsel for the State before us. No other circumstance has been referred to for consideration of this Court. We are also of the view that the evidence of PW-4 Om prakash by itself, even if it was to be accepted as reliable, cannot be made the basis of conviction. ( 12 ) FOR the foregoing reasons, we have no manner of doubt that the conviction of the appellant as ordered by the learned additional Sessions Judge cannot be sustained. His appeal deserves to be allowed which is accordingly allowed and consequently, the judgment dated 26. 11. 2002 and the order on sentence dated 30. 11. 2002 are set aside and the appellant stands acquitted of the charge of murder of Kalpana Devi. The appellant, who is stated to be confined in jail is ordered to be released from there forthwith, if not required to be detained in any other case. Jail Superintendent be informed of this direction.