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2009 DIGILAW 1149 (DEL)

ABDUL RAHIM v. STATE (DELHI ADMN. )

2009-10-22

AJIT BHARIHOKE, SANJAY KISHAN KAUL

body2009
judgment SANJAY KISHAN KAUL, J. 1. The appellant, Abdul Rahim, has been held guilty of offences under Sections 302/397/34 of the IPC for committing robbery, causing grievous injuries and the death of the deceased, Satish, and sentenced to undergo life imprisonment and to pay fine of Rs.5,000.00 and in default to pay fine was directed to undergo further six (6) months imprisonment in terms of the impugned judgement and order of sentence dated 18.2.1995. It may be noticed that the offence is stated to have been committed along with co-accused, Matloob, who, however, absconded during trial. The conviction is based on circumstantial evidence. 2. The case of the prosecution is that the deceased, Satish Narula, used to run the business of hiring of TVs and VCRs. On 5.11.1986 at about 9:45 p.m., Matloob and the appellant came to the house of the deceased where he stayed along with his mother, Shrimati Sheela Devi, PW-3, his elder brother, Jagdish Narula, PW-8, Suresh Kumar Narula, PW-4 another brother and his father Shri Prakash Lal Narula, PW-9. The said two persons wanted a TV and VCR installed in their house by the deceased. The deceased arrived at the house and went with the said two persons in a rickshaw with a TV and a VCR and did not return thereafter. Mr. Jagdish Narula, PW-8, on return from the office on the next day went to search for the deceased and at about 5:00 p.m. saw a crowd near the DDA flats in proximity to their residence where police was also present. The dead body of the deceased was found lying in a room of an under construction flat. 3. The prosecution claims that the police was present at site as on 6.11.1986 and they received a report about a dead body lying in the DDA flats and the information was entered in the DD entry No.12/A at 5:10 p.m. (exhibit PW-1/A) and S.I. Vinod Kumar along with Constable Surender Kumar were asked to investigate into the matter. S.I. Vinod Kumar handed over the ruqqa to H.C. Suresh Kumar, who took it to the police station and the DD entry No.13/A (exhibit PW-1/B) was recorded and a formal FIR No.412/86 (exhibit PW-1/C) was thereafter recorded at 7:20 p.m. in pursuance to the same. 4. S.I. Vinod Kumar handed over the ruqqa to H.C. Suresh Kumar, who took it to the police station and the DD entry No.13/A (exhibit PW-1/B) was recorded and a formal FIR No.412/86 (exhibit PW-1/C) was thereafter recorded at 7:20 p.m. in pursuance to the same. 4. Darshan Singh, PW-14, has deposed that on 6.11.1986 at about 5:00 p.m. he saw the dead body of a male in the room of the under construction DDA flats and he went to P.S. Shakarpur to inform regarding the dead body. Suresh Kumar Narula, PW-4, joined the investigation of the case when he identified the dead body of the deceased which had only an underwear and a banian (vest). 5. S.I. Jaibir Singh, PW-15, has deposed that he along with S.I. Vinod Kumar and Joginder Kumar proceeded with the investigation and to search out the accused. In the night of 6/7.11.1986 at about 1:45 a.m., they received a secret information that the appellant was standing at Shakarpur bus stop. The appellant was arrested at 2:00 a.m. and a personal search was conducted by S.I. Vinod Kumar. The disclosure statement was recorded both of the appellant (exhibit PW-15/C) and of the other accused, Matloob (exhibit PW-15/D). The prosecution claims that the place of occurrence was pointed out by the accused and one colour TV and a VCR along with two cassettes were recovered as per memo of articles (exhibit PW-15/G) from the house of Matloob. The appellant is stated to have got recovered the clothes of the deceased which were lying in a sealed pulanda vide seizure memo (exhibit PW-15/H). 6. Apart from the testimony of S.I. Jaibir Singh, PW-15, material witnesses in support of the case of the prosecution are Shrimati Sheela Devi, PW-3, mother of the deceased and Jagdish Narula, PW-8, brother of the deceased, who is also the complainant. PW-3 has deposed that Matloob and the appellant came to their house at about 9:30 p.m. and that they used to come to their house usually so. They wanted a TV and a VCR to be installed and the deceased left with them along with TV and VCR. The testimony of PW-8 is also to the same effect apart from his endeavour to search the deceased and thereafter the discovery of the dead body which has been referred to aforesaid. They wanted a TV and a VCR to be installed and the deceased left with them along with TV and VCR. The testimony of PW-8 is also to the same effect apart from his endeavour to search the deceased and thereafter the discovery of the dead body which has been referred to aforesaid. The father of the deceased, PW-9, also joined the investigation on 1.12.1986 and produced relevant documents regarding ownership of the TV and VCR. The TV was sold to one Prakash Narula, PW-9, by Shanti Swarup, PW-10. The postmortem of the body was conducted by Dr. L.T. Ramani, PW-7, on 7.11.1986 and he found that the injury on the neck was sufficient to cause the death of the deceased which death was caused so asphyxia resulting from strangulation. 7. Since there is no ocular witness the conviction is based on circumstantial evidence. The circumstantial evidence taken note of by the learned trial judge (as he then was) is set out in para 20 of the impugned judgement as under: i. The accused Abdul Rahim along with the co-accused has gone to the house of deceased to call him to install TV and VCR etc. in presence of mother and brother of deceased; ii. Deceased along with TV and VCR went in a rickshaw along with accused persons and he was seen by his mother and brother going along with the accused persons with TV and VCR. This was the last time when the deceased was seen alive; iii. The dead body of the deceased was found in underwear and banian on the way, which leads to the house of accused Matloob (P.O.); iv. The TV and VCR were got recovered by accused Matloob from his house; v. The pant, shirt, jacket and writ watch of the deceased were got recovered by the accused Abdul Rahim from his working place; vi. The accused Matloob was not at home, when the brother of deceased went in search of him; vii. The accused persons were arrested after midnight when they were at the bus stop; viii. The accused Matloob was not at home, when the brother of deceased went in search of him; vii. The accused persons were arrested after midnight when they were at the bus stop; viii. The CFSL report shows that the blood stains found on the clothes of the deceased, recovered at the instance of accused Abdul Rahim, were of the same blood group as that of found on the underwear and nail-clipping of the deceased, meaning thereby that the blood stains on the pant, shirt and jacket were that of the deceased; ix. The accused persons had refused to participate in the Test Identification Parade; x. The medical evidence showing that deceased was killed by strangulating with the help of a thin cord from back, approximately at the time, when he had left the home. 8. In order to appreciate as to how a case of circumstantial evidence has to be dealt with, the observations of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 are relevant, which are extracted hereinbelow: “151. It is well settled that the prosecution, must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity on lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh 1953CriLJ129 . 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh 1953CriLJ129 . This case has been Uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh (1969)3SCC198 and Ramgopal v State of Maharashtra 1972CriLJ473 . It may be useful to extract what Mahajan, J. has laid down in Hanumants case (at pp. 345-46 of AIR) (supra): It is well to remember that in cases where tile evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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 proposed to be proved. In other words, there 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. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra 1973CriLJ1783 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry (1952) NZLR 111, thus: Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. 156. Lord Goddard slightly modified the expression morally certain by such circumstances as render the commission of the crime certain. 157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horrys case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay 1960CriLJ682. Lagus case as also the principles enunciated by this Court in Hanumants case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases --Tufails case (1969)3SCC198 (supra). Ramgopals case 1972CriLJ473 (supra). Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19-2-1958), Dharambir Singh v. State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4-11-1958). To quote a few cases --Tufails case (1969)3SCC198 (supra). Ramgopals case 1972CriLJ473 (supra). Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19-2-1958), Dharambir Singh v. State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4-11-1958). There are a number of other cases where although Hanumants case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration 1974CriLJ617 , Mohan Lal Pangasa v. State of U. P. 1974CriLJ800 , Shankarlal Gyarasilal Dixit v. State of Maharashtra 1981CriLJ325 and M. G. Agarwal v. State of Maharashtra [1963]2SCR405 a five-Judge Bench decision. 158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar 1955CriLJ1647, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation...such absence of explanation or false explanation would itself be an additional link which completes the chain. 159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 160. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 160. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlals case 1981CriLJ325 (supra) where this Court observed thus: Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.” 9. We have, thus, to examine whether the circumstances from which the conclusion of the guilt has to be drawn have been fully establish and the same are consistent only with the hypothesis of the guilt of the accused. The chain of evidence should also be complete and must show that in all human probability the act has been done by the accused. 10. On appreciation of the submissions of the learned counsels for the parties and on examination of the evidence on record as well as the impugned judgement, in our considered view, the answer to the same has to be in the negative. We now proceed to discuss the reasons for the same. 11. The most important fact to complete the chain is as to whether the recovery has been made at the behest of the appellant. The recovery is of clothes of the deceased as also his wrist watch of HMT make. The disclosure statement and the recovery memo were both witnessed by an independent witness Joginder Kumar. Joginder Kumar is actually the brother-in-law of the brother of the deceased. This material witness has not even been examined by the prosecution. 12. The recovery is of clothes of the deceased as also his wrist watch of HMT make. The disclosure statement and the recovery memo were both witnessed by an independent witness Joginder Kumar. Joginder Kumar is actually the brother-in-law of the brother of the deceased. This material witness has not even been examined by the prosecution. 12. Learned counsel for the appellant did contend that there is significant inconsistency between the disclosure statement and the recovery memo inasmuch as the disclosure statement records that the clothes of the deceased had been concealed in a room where the appellant resided but the recovery memo showed that the same were recovered from the handloom of one Irfan situated at Plot No.30-B, West Laxmi Nagar Market, Delhi. The contention, thus, raised was that the recovery cannot be termed under Section 27 of the Indian Evidence Act, 1872. Learned counsel for the appellant contended that it could not be explained as to how the premises of Irfan was connected with that of the appellant. This aspect, however, has been explained by learned counsel for the State by referring to the recovery memo (exhibit PW-15/H). The same records the residence of the appellant as Village Sahaspur, P.S. Shivara, District Bijnaur, but presently residing at 30-B, West Laxmi Nagar Market, Delhi. The handloom of Irfan is situated in the same plot No.30-B, West Laxmi Nagar Market, Delhi. 13. The material aspect is that there is hardly any likelihood or probability for the appellant to have removed the clothes of the deceased and taken them with him. Learned counsel for the State submitted that the reason for such removal could be that it leads to identification of the body on the basis of the tailor, who may have stitched the clothes. We, however, find from the photographs that the condition of the body and the face was such that there could be no problem in the identification especially when the body was dumped in an under construction site nearby. In this behalf, learned counsel for the appellant has rightly referred to the observations of the Supreme Court in Shambhu Dayal Vs. Subhash Chandra 1998 Cri. L.J. 2271 that a person committing a dacoity would hardly be expected to take away the clothes and thus the evidence regarding discovery had been rightly rejected. 14. In this behalf, learned counsel for the appellant has rightly referred to the observations of the Supreme Court in Shambhu Dayal Vs. Subhash Chandra 1998 Cri. L.J. 2271 that a person committing a dacoity would hardly be expected to take away the clothes and thus the evidence regarding discovery had been rightly rejected. 14. Another aspect of the recovery is that one of the items alleged to have been recovered is an HMT make wrist watch. Needless to say that the same ought to have been proved. The watch of the deceased was not produced or exhibited in court nor was this aspect put to any of the investigating officers or the mother or brother of the deceased. Learned counsel for the respondent contended that the father of the deceased, PW-9, had moved an application for release of goods on Superdari and had taken the watch, which was exhibit P-8. We, however, find that this can hardly help the prosecution as the release of the watch on Superdari to the father of the deceased will not imply that it has been proved that the watch was of the deceased and that it was the watch, which had been recovered. The factum of recovery of the watch could, thus, not even taken into account. 15. We may also note another aspect regarding recovery of the watch inasmuch as the same had not even been put to the appellant in the statement recorded under Section 313 of the Cr.P.C. The relevant question put in this behalf is as under: “It is further in evidence against you that you led the police and got recovered the clothes of deceased from plot No.30-B, West Laxmi Nagar Market, Delhi, which were sealed in a pulanda and seized vide memo Ex.PW-15/H, signed by PW Jaibir Singh, Joginder Kumar and S.I. Vinod Kumar, what have you to say?” 16. Another infirmity which we find in the case of the prosecution is that S.I. Vinod Kumar, who had carried out the investigation was not examined. This, in our view, has caused prejudice to the defence of the appellant for the reason that the appellant is deprived of his right to cross-examine S.I. Vinod Kumar to question the steps taken in investigation. Similar view was taken by the learned single Judge (as he then was) of this Court in Bhim Sain Vs. This, in our view, has caused prejudice to the defence of the appellant for the reason that the appellant is deprived of his right to cross-examine S.I. Vinod Kumar to question the steps taken in investigation. Similar view was taken by the learned single Judge (as he then was) of this Court in Bhim Sain Vs. State (N.C.T. of Delhi) 2001 (60) DRJ 489 . It was held that the prosecution has failed to examine the Investigating Officer before the trial court and consequently, the site plan has not been proved on record. The prosecution was given several opportunities to produce the Investigating Officer, but still he was not examined. He was certainly a material witness in the case and his non-production has caused serious prejudice to the defence of the accused for the reason that the accused petitioner was not in a position to question the steps taken by the Investigating Officer in the course of investigation nor he could show to the Court with the help of the site plan that the allegations against him were false. 17. The case of the prosecution is really based on „recoveries? and „last seen?. If the recoveries itself become doubtful on the basis of „last seen?, the case cannot be said to be proved beyond all reasonable doubts against the appellant. Even if this aspect of „last seen? is taken into account the testimony of PW-8, brother of the deceased, shows he did not know the accused from beforehand. In the cross-examination all that he has stated is that the deceased told the names of the accused before he went with them. The said witness and his mother were in the courtyard when the accused came and called for the deceased near the gate of the house. The witness had no discussion with the accused except they asked about the deceased. This is admitted in the cross-examination. Having deposed so, the same is sought to be covered up by stating that the deceased told the names of both the accused before he left. This explanation is sought to be given only because not having known the names of the accused, the names could not have figured in the FIR. This throws a doubt on the prosecution story. Even PW-3, mother of the deceased, only states that the accused had visited their house earlier and she knew them. This explanation is sought to be given only because not having known the names of the accused, the names could not have figured in the FIR. This throws a doubt on the prosecution story. Even PW-3, mother of the deceased, only states that the accused had visited their house earlier and she knew them. She refers to the accused as Matloob and the „accused person?. At least insofar as the appellant is concerned it appears that even the mother did not know the name and there is no question of the names ought to have been appeared in the FIR. The possibility, thus, does remain that even if Matloob was the person who may have committed the offence, the appellant was sought to be roped in to somehow conclude the investigation. Interestingly, Matloob has been absconding from the time of trial and has still not been apprehended. 18. We, thus, find that the prosecution has failed to establish the case beyond all reasonable doubts against the appellant. A greater care has to be exercised as the complete case is based on circumstantial evidence and we find that the tests laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra case (supra) are not fully satisfied in the facts of the present case. 19. The appellant is, thus, acquitted giving him the benefit of doubt and the appeal allowed. The bail bond and the surety stand discharged. 20. The aforesaid order concludes the appeal but we find one disturbing aspect of this case, which is also present in other appeals coming up before us. There are co-accused, who are either not apprehended or abscond during trial or thereafter. It appears to us that there is lack of serious effort in locating such persons once the trial starts. On being questioned, learned APP submitted that there is a process in place for follow up action of such absconding accused but is unable to give the details of the same nor the number of such accused who have been apprehended. He, however, states that the percentage is not very large. We would like to examine this aspect further as a proper system must be put in place to ensure that there is a follow up action to locate such absconding accused and there is periodic review of the same. He, however, states that the percentage is not very large. We would like to examine this aspect further as a proper system must be put in place to ensure that there is a follow up action to locate such absconding accused and there is periodic review of the same. We would like to examine this aspect as the success rate in locating such absconding accused would definitely be a material factor. 3 21. We, thus, direct the Delhi Police to file a report on the mode and manner of follow up action to locate such absconding accused and its periodic review. It should also be indicated as to what has been the success rate in the past, at least for the immediate past three years. Such a report be filed at least three (3) days before the next date of hearing. 22. The appeal be listed for directions only in respect of the aforesaid directions on 20.11.2009.