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2007 DIGILAW 681 (DEL)

GIAN CHAND v. STATE OF DELHI

2007-03-29

MANMOHAN SARIN, S.L.BHAYANA

body2007
S. L. BHAYANA, J. ( 1 ) THIS is an appeal arising out of the judgment dated 26. 04. 1994 and sentence dated 27. 04. 1994 of the additional Session Judge, Delhi, wherein the addl. Session Judge convicted and sentenced the appellant under Section 302 IPC to undergo Imprisonment for Life. ( 2 ) THE brief facts of the prosecution case are that, on 23. 05. 1989, information was received at the Police Control Room that a dead body was found lying near railway lines, e-Block, Phase-I, Ashok Vihar, New Delhi. On the basis of this information, DD No. 24-A was recorded at P. S. Ashok Vihar. Sub inspector R. K. Sharma along with constable surinder Kumar were deputed to go to the spot. The said Sub Inspector along, with the constable, went to the spot and found a dead body draped with white baniyan and blue striped lungi. The body was lying in a pool of blood with hands tied on the back with a nylon cord. A blood stained lungi with checks was lying near the dead body. There were injury marks found on the chest, neck and left foot of the dead body. Neither any eye-witness was available at the spot nor the dead body could be identified by anyone at the spot. Sub inspector, R. K. Sharma took up the investigation. The Investigating Officer inspected the spot, prepared a site plan and seized the exhibits from the spot. He sent the dead body to the mortuary for post-mortem. ( 3 ) DURING the investigation, it was revealed that the name of the deceased was Jabar, R/o tehsil Mehsi, Village Lilja, Dist. Saharsa, Bihar. Thereafter, the SHO took over the investigation of this case. The SHO recorded the statement of witnesses. He arrested the accused gian Chand in this case, who made a disclosure statement and on his pointing out,. . a Kirpan was also recovered. After completing the investigation, challan was filed before the Court. ( 4 ) THE learned Metropolitan Magistrate committed this case to the Court of Session judge, being triable by the Session Court. Learned trial Court, after hearing the arguments from both the sides, framed charge against the accused under Section 302 IPC, to which the accused pleaded not guilty and claimed trial. The prosecution examined as many as twelve witnesses to prove its case. PW-1 was lady constable Neeru. Learned trial Court, after hearing the arguments from both the sides, framed charge against the accused under Section 302 IPC, to which the accused pleaded not guilty and claimed trial. The prosecution examined as many as twelve witnesses to prove its case. PW-1 was lady constable Neeru. She was a formal witness. PW-2, H. C. Ram Kishan, was also a formal witness. PW-3, Head Constable Parkash chand was a formal witness. PW-4, Dr. D. N. Sharma, had conducted post-mortem examination on the dead body. He proved the postmortem report. PW-4 found about 19 injuries on the person of the deceased. Injury Nos. 1, 6 and 8 were caused by blunt object. While injury Nos. 2, 3, 7, 9 and 18 were caused by sharp object. Injury Nos. 5,10,15 and 16 were sufficient to cause death in ordinary course of nature. In his opinion, the victim died of hae-morrhagic shock on account of various injuries caused to him. Time since death was about 34 hours. In his opinion, injury Nos. 2 to 5, 7, 9 to 14 and 16 to 18 were possible by Kirpan. ( 5 ) PW -5, ASI Balbir Singh was a formal witness. PW-6, Head Constable Mahinder singh, a photographer, was also a formal witness. He had taken photographs of the place of occurrence from different angles. PW-7, abdul Kalam is the brother of the deceased. He deposed before the Court that Jabar was his elder brother and was a truck driver in Karol bagh. On 22. 5. 1989, at about 5. 00 PM, he was present at Eagle Hotel. He saw Gian Chand riding a cycle with Jabar sitting at the pillion seat. They told him that they were to visit badrule, his cousin, from whom Jabar was to take some money and Jabar also told him that he would go to the village on 25th April, 1989. ( 6 ) PW-8 was constable Surinder Kumar. He had joined the investigation of the case along with S. I. Ravinder Kumar. He was a formal witness. PW-9 is Mohd. Badrule. He deposed before the Court that Jabar was his cousin brother and was a truck driver in Karol bagh. On 22. 05. 1989, at about 9. 00 p. m. , jabar and his Palledar Gian Chand came to his jhuggi and demanded Rs. 2000/- which jabar had already deposited with him. He was a formal witness. PW-9 is Mohd. Badrule. He deposed before the Court that Jabar was his cousin brother and was a truck driver in Karol bagh. On 22. 05. 1989, at about 9. 00 p. m. , jabar and his Palledar Gian Chand came to his jhuggi and demanded Rs. 2000/- which jabar had already deposited with him. He handed over the amount to Jabar who further handed over the same to his Palledar Gian chand. Thereafter, both of them went to Karol bagh on Cycle. PW-10 was Jagdish Singh. He deposed before the Court that Jabar was a truck driver and his truck No. was DDI-2261, while gian Chand was his Palledar. On 22. 05. 1989, both of them handed over the keys of the truck to him in the night and told him that they were going to the native place. ( 7 ) PW-11 was Sub-Inspector Ravinder kumar Sharma. He deposed before the Court that on 23. 05. 1989 when he was posted at p. S. Ashok Vihar, he received DD No. 24-A. He along with constable Surinder Kumar reached railway lines, Ashok Vihar and found the dead body of a man lying at the spot and blood stained lungi was also lying near the dead body. He sent ruqqa through constable surinder Kumar, on the basis of which formal fir had been recorded. He prepared site plan, took possession of the various exhibits on the spot and sent the dead body to mortuary for post-mortem. He sent the exhibits to CFSL. Further investigation was taken up by PW-12 inspector Harbans Singh. ( 8 ) PW-12 Inspector Harbans Singh deposed before the Court that he took up the investigation of this case on 06. 06. 1989. On receipt of information, he along with SI ravinder Kumar, went to Old Delhi Railway station. On the way, they also met Mohd. Badrule, brother of the deceased, who also joined the raiding party. At the instance of the brother of the deceased, accused was arrested. On pointing out of the accused, one kirpan EX. P8 was recovered from near the drain of his house, which was taken into possession. The accused also got recovered one cycle EX-P9 and one underwear EX-P10 from the said Jhuggi. These articles were taken into possession vide memo Ex. PW9/d. Learned additional public prosecutor closed the prosecution evidence. On pointing out of the accused, one kirpan EX. P8 was recovered from near the drain of his house, which was taken into possession. The accused also got recovered one cycle EX-P9 and one underwear EX-P10 from the said Jhuggi. These articles were taken into possession vide memo Ex. PW9/d. Learned additional public prosecutor closed the prosecution evidence. Thereafter, statement of the accused under Section 313 Cr. P. C. was recorded. All the allegations of the prosecution were put to the accused but he denied the same and claimed to be innocent. ( 9 ) WE have heard counsel for the appellant learned prosecutor for the State and perused the record. ( 10 ) LEARNED Counsel for the appellant submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is therefore liable to be acquitted. He further pointed out that in this case, two very material witnesses were examined but their cross-examination was deferred. They were neither summoned again nor were they cross-examined by the counsel for the accused. So, the statement made in examination-in-chief by PW-8, Constable surinder Kumar and PW-9, Mohd. Badrule, cannot be read In evidence. We have gone through the statements of these two witnesses pw-8 and PW-9. They were examined by the trial court on 10. 02. 1993 and 24. 03. 1993. But their cross-examination was deferred on account of absence of the counsel for the accused. PW8 and PW9 were never cross-examined by the counsel for the accused later on. So, evidence of these witnesses PW-8 and pw-9 cannot be read in evidence. Counsel for the appellant further submitted that PW10, jagdish Singh was examined on 03. 09. 1993. PW-11 Ravinder Kumar Sharma was examined on 01. 11. 1993. But both PW10 and PW11 were not cross-examined on account of absence of counsel for the accused. He has pointed out that no legal assistance was given to the accused and all these witnesses were examined but not cross-examined by the counsel for the accused. The whole trial has been vitiated and the benefit of the same should be given to the accused. We have gone through the statements of PW1, PW2, PW5, PW10, pw11 and PW12 and we find that all these witnesses were examined in chief but in the cross-examination, it is recorded" NIL opportunity given". The whole trial has been vitiated and the benefit of the same should be given to the accused. We have gone through the statements of PW1, PW2, PW5, PW10, pw11 and PW12 and we find that all these witnesses were examined in chief but in the cross-examination, it is recorded" NIL opportunity given". We hold that these witnesses could not be cross-examined by counsel for the accused as no legal assistance was provided. Therefore, the counsel for the accused could not cross-examine the witnesses on the dates when these witnesses were produced in the court. Counsel for the accused in appeal pointed out that since accused was without any legal assistance, he moved an application before the trial Court on 23. 04. 1994 with the prayer that he may be provided with counsel on State expenses to defend him in this case but learned trial Court neither provided any counsel to the accused on State expenses nor did it pass any order on the said application and, therefore, the accused remained unrepresented throughout the trial. The trial stands vitiated as the witnesses were not crossexamined as no legal assistance was provided by the trial Court to the accused, who is stated to be a very poor person. Counsel for the accused further submitted that it is the right of every accused to get fair trial in the trial Court and every accused has a right to be represented by a competent counsel to defend him at the trial. In this case also, the witnesses could not be cross-examined on account of absence of counsel for the accused as no counsel was provided by the trial Court to the accused to defend him in this case. ( 11 ) LEARNED counsel for the accused further submitted that since this case is based on circumstantial evidence, the chain of circumstances proved by the prosecution does not point an accusing finger on the accused, the chain of circumstances is not complete and the same has been broken as no cogent and reliable evidence has been produced in the court to prove the case against the accused. PW-9, Mohd. Badrule stated that the deceased was last seen alive in the company of the accused, his cross-examination was deferred and he was never cross-examined, therefore, his statement/examination-in-chief cannot be read in evidence against the accused. Prosecution claims that he is a material witness. PW-9, Mohd. Badrule stated that the deceased was last seen alive in the company of the accused, his cross-examination was deferred and he was never cross-examined, therefore, his statement/examination-in-chief cannot be read in evidence against the accused. Prosecution claims that he is a material witness. The prosecution has, therefore, failed to prove that the deceased was last seen alive in the company of the accused. One Kirpan is alleged to have been recovered from the accused but Kirpan has not been connected with the murder of the deceased as no blood was found on Kirpan nor it connects the accused with the commission of crime. ( 12 ) WE have gone through CFSL report and as per the CFSL report, traces of blood were too small for serological analysis of the kirpan. Therefore, blood group could not be detected on the Kirpan to connect the Kirpan with the commission of crime. Counsel for the accused further submitted that simply because the accused was last seen in the company of the deceased in the evening of 22. 05. 1989, it is not sufficient to convict the accused on this ground. It is well settled that the last seen evidence is not conclusive evidence of guilt. This view finds support from the observations made by the Hon'ble Supreme Court in the case titled Kansa Behera Vs. State of Orissa wherein it was held that the appellant was seen with the deceased in the evening of the occurrence. However, the instrument of the offence was recovered at the instance of another accused who had been discharged, and under these circumstances, therefore, the evidence about the appellant having been seen in the evening with the deceased is of no consequence. It was held that on the sole circumstance of the appellant having been seen with the deceased in the evening, the inference of guilt could not be drawn especially in the circumstances of the case where one another accused person from whom the instrument of offence was recovered and who had a grudge against the deceased had been let off. It was held that on the sole circumstance of the appellant having been seen with the deceased in the evening, the inference of guilt could not be drawn especially in the circumstances of the case where one another accused person from whom the instrument of offence was recovered and who had a grudge against the deceased had been let off. ( 13 ) IT is also observed by the Supreme court in the case titled Pohalya Motya Valui vs. State of Maharashtra that ordinarily, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactory account for the disappearance of the deceased is considered a circumstance of an incriminating character. But where two accused were last seen with the deceased and though both should explain the disappearance of the deceased, one of them is acquitted of the charge of murder and no appeal is filed against his acquittal, the very circumstance that the deceased was last seen with them ceases to be of an incriminating character and the other accused cannot also be convicted solely on that basis. ( 14 ) IT is also observed by the Supreme court in the case titled State of Haryana vs. Jagbir Singh and Others that according to the prosecution evidence, the accused were last seen at 10. 00 PM on March 15 with the deceased who was then wearing "bush-shirt and pants". At the post-mortem, the doctor found "a shirt and pullover on the dead body". The High Court, therefore, rightly observed that possibility was not ruled out that the deceased went elsewhere with others after changing his dress after he was last seen by the witnesses with the accused. The Supreme court observed that when the main planks in the circumstantial evidence gave way, no conviction could be sustained. ( 15 ) LEARNED counsel for the accused submitted that all the links in the chain of events must be established beyond reasonable doubt. But in the present case, several links in the chain of events of circumstantial evidence are missing and all the links have not been proved by prosecution to establish the guilt of the accused. ( 15 ) LEARNED counsel for the accused submitted that all the links in the chain of events must be established beyond reasonable doubt. But in the present case, several links in the chain of events of circumstantial evidence are missing and all the links have not been proved by prosecution to establish the guilt of the accused. It is also observed in the case titled balwinder Singh vs. State of Punjab4, wherein it was held that it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent not only with the hypothesis of the guilt of the accused but also totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever, strong they may be, to take the place of proof. ( 16 ) COUNSEL for the accused submitted that accused remained unrepresented throughout the trial. He was working as Palledar. He is an illiterate person. The Court should have provided him with counsel in this case to defend him. Since trial Court failed to provide the counsel on State expenses to the accused to defend him, so the trial stands vitiated. Reference may in-thts connection be made to the decision of this Court in Surrender Kumar vs. State6, where the Court held as under : "the appellant has been convicted under section 392 of the Penal Code and has been sentenced to undergo rigorous imprisonment for five years. His grievance is that during the trial he was unrepresented and was made to conduct the proceedings and to defend himself without the assistance of a lawyer though he is illiterate and ignorant of the rules of the game and that the learned trial Judge neither thought of coming to his help by lending his own skills nor by even offering a lawyer at state expense. Unfortunately, the record supports him. The learned Judge just overlooked it. Unfortunately, the record supports him. The learned Judge just overlooked it. He probably took it to be of no consequence. He also took no serious note of the fact that the accused could not be credited with the skill and knowledge essential to prepare his defence and that he needed the guiding hand of a counsel at every step of the proceeding against him. As far back as in the year 1979, the Supreme Court had emphasised in Hussain Ara khatoony vs. State of Bihar, AIR 1979 supreme Court 1369 that free legal service is an inalienable element of reasonable, fair and just procedure and that the right to free legal service must be held implicit in the guarantee of article 21. In Khatri vs. State of Bihar, 1981 Criminal Law Journal 470, the supreme Court again laid emphasis to provide free legal services and termed it as a " Constitutional obligation". In sukh Das vs. Union Territory of arunachal Pradesh, 1986 Cri LJ 1084, it was re-emphasised by the Supreme court that entitlement to free legal aid is not dependent on the accused making an application to that effect and that the Court is obliged to inform the accused of his right to obtain free legal aid. The Court placed reliance on Union of india vs. G. K Appte, AIR 1971 SC 1533 at 1537, Veerbhadra vs. Rama-swamy Naickar, 1959 SCR 1211, chajju Ram vs. Radhey Sham, 1971 (Suppli.) SCR 172 where the Court held that "justice is not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. " in Surrender Kumar case (Supra), it was held that "i see no reason to take a different view The conviction reached is clearly vitiated The appeal is consequently accepted. The judgment and conviction and the order of his sentence stand set aside. Let the appellant be released forthwith, if not required in any other case". ( 17 ) ON the other hand, Learned APP for the State submitted that the prosecution has proved its case beyond reasonable doubt against the accused appellant. It is the appellant and none else who has committed murder of the deceased Jabbar. Let the appellant be released forthwith, if not required in any other case". ( 17 ) ON the other hand, Learned APP for the State submitted that the prosecution has proved its case beyond reasonable doubt against the accused appellant. It is the appellant and none else who has committed murder of the deceased Jabbar. The witnesses produced by the prosecution have proved that the deceased was last seen alive in the company of the accused on the night of the murder, and even kirpan has been recovered at his instance. It has been proved beyond reasonable doubt by the prosecution that the appellant is guilty of murder. He has submitted that the trial Court has rightly convicted the appellant under section 302 IPC and there is no infirmity in the judgment and the appeal filed by the appellant deserves to be dismissed. ( 18 ) WE have gone through the record. It is an admitted case that PW1 Lady Constable neeru, PW2 Head Constable Ram Kishan, pw3 Prakash Chander, PW5 ASI Balbir Singh, pw6 HC Mohinder Singh, PW11 SI Ravinder kumar, PW12 Inspector Harbans Singh have been examined in chief by the learned trial court but they have not been cross-examined at all by the counsel for the accused. In the cross-examination, it is written "nil opportunity given". Since the trial Court had not provided any counsel to the accused, so these witnesses could not be cross-examined at all. We also find that PW8 Constable Surinder Kumar was examined in chief on 10. 02. 1993. His cross-examination was deferred but this witness was never summoned again and he was never cross examined by the counsel for the accused. Similarly, PW9 Mohd. Badrule was examined in chief on 24. 03. 1993, but was never produced for cross examination by the counsel for the accused. Similarly, PW10 Jagdish was examined in chief on 03. 09. 1993 and in his cross-examination, it is written "nil opportunity given". These three witnesses and other witnesses examined by the trial Court are very material and important witnesses, particularly in the case of PW8 and PW9. Their cross-examination was deterred but they were never produced for cross-examination by the counsel for the accused so the evidence of both these witnesses PW8 and PW9 cannot be read against the accused. These three witnesses and other witnesses examined by the trial Court are very material and important witnesses, particularly in the case of PW8 and PW9. Their cross-examination was deterred but they were never produced for cross-examination by the counsel for the accused so the evidence of both these witnesses PW8 and PW9 cannot be read against the accused. The remaining witnesses which were also examined by the trial Court, could not be cross-examined by the counsel for the accused as no counsel was provided by the learned trial Court to defend the accused effectively. ( 19 ) WE, therefore, are of the view that great injustice has been done to the appellant who has remained unrepresented throughout the trial. In this case, the appellant is'an illiterate person, who was working as a Palledar and he is ignorant of the rules of the game and it was the duty of the learned Trial Judge to provide him a lawyer to defend him in this. case. But the trial Court just overlooked it. The learned trial Judge also did not take note that the accused was illiterate and could not be credited with the skill and knowledge essential to prepare his defence and he needed the guidelines of a competent lawyer at every step of the proceedings in this case. But unfortunately, the learned trial Court had not provided any legal assistance to the appellant. In our opinion, the entire trial stands vitiated. ( 20 ) WE have also gone through the statement of the witnesses in this case. The only evidence produced by the prosecution against the accused is that the deceased was last seen alive in the company of the accused. This circumstance alone is not enough to convict the accused for commission of murder of the deceased. Other circumstance proved by the prosecution against the appellant/ accused is that a Kirpan was recovered at his instance, but no blood group has been detected on the Kirpan by CFSL. So, the Kirpan does not connect the accused with the commission of crime. In our opinion, the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused. Since the accused remained unrepresented through-out the trial, the benefit of the same would also go to the accused. So, the Kirpan does not connect the accused with the commission of crime. In our opinion, the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused. Since the accused remained unrepresented through-out the trial, the benefit of the same would also go to the accused. ( 21 ) KEEPING in view that the evidence of material witnesses, as recorded, was not subjected to cross-examination by the appellant/accused, as legal aid by way of counsel had not been provided to the appellant, as also on account of absence of the counsel for the appellant, the said evidence cannot be relied on and the trial itself stood vitiated. Besides the above, the prosecution has not been able to establish the case beyond reasonable doubt. The chain of circumstantial evidence is not complete, as set out in paras 10 to 12, hereinbefore. The established circumstances should be consistent with not only with the hypothesis of the guilt of the accused, but also totally inconsistent with his innocence. But in the present case, there are several links in the chain of events which are missing. We, therefore, hold that there is merit in the appeal as the prosecution has not been able to prove its case against the accused beyond reasonable doubt. ( 22 ) WE refer our appreciation on the assistance rendered by Mr. P. R. Thakur, amicus Curiae, to the Court. ( 23 ) THE appeal is allowed. Appellant is, therefore, acquitted with benefit of doubt being given. Judgment be communicated to the superintendent, Tihar Jail, for implementation. Appeal allowed.