* IN THE HIGH COURT OF DELHI AT NEW DELHI

Transcription

1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO.80/1997 Judgment reserved on: January 19, 2010 Judgment delivered on : January 25, 2010 RAM BILAS Versus Through:... APPELLANT Mr. S.M. Chopra, Advocate/ Amicus Curiae THE STATE (DELHI ADMN.) Through: CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE... RESPONDENT Mr. Pawan Sharma, Standing Counsel 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes AJIT BHARIHOKE, J. 1. The present appeal is directed against the impugned judgment dated convicting the appellant under Section 302 IPC for committing the murder of Shiv Lal (hereinafter referred to as the deceased ) and also the order on sentence dated , vide which the appellant has been sentenced to undergo RI for life and to pay a fine of Rs. 2000/-, in default of payment to undergo further RI for a period of six months, under Section 302 IPC. 2. Briefly stated, the case of the prosecution is that on at around 9.15 pm, the appellant Ram Bilas went to the Police Station Crl. A.No.80/1997 Page 1 of 13

2 Kalkaji and stated that he was residing in the house of one Birhma at H. No. 1338, Gali No. 8, Govindpuri and that Shiv Lal, father-in-law of Birhma also lived there. He stated that Birhma and Shiv Lal wanted him to vacate the house, regarding which he had a quarrel with Shiv Lal and stabbed him. He informed that the body of the deceased was lying in the house at the place of occurrence. The said information was recorded vide DD No. 16A (Ex.PW9/A) by PW5A, ASI Hari Prakash. Copy of the DD report was given to the SHO O.P. Swami and the SHO, alongwith the appellant left the police station and reached the spot of occurrence, where other Police Officers, including SI Ishwar Singh, PW 8 had already reached. Dead body of the deceased was found on the sofa in the room on first floor. The SHO made his endorsement Ex.PW8/A on the DD No. 16A and sent the rukka to the Police Station through Constable Surinder for the registration of the case. He prepared the site plan Ex.PW 9/B and got the spot of occurrence photographed. He also seized from the spot a blood stained sofa set vide memo Ex.PW 1/A and also lifted blood from the spot in a vial. On interrogation, the appellant made a disclosure Ex. PW1/B, pursuant to which he got recovered his bloodstained pant Ex.P2 and a bloodstained banian Ex.P3. The appellant also got recovered a knife Ex. P1 after taking out the same from a nala and the said knife was taken into possession vide memo Ex. PW1/E. 3. The Investigating Officer conducted the inquest proceedings and sent the body of the deceased for post mortem examination. The post Crl. A.No.80/1997 Page 2 of 13

3 mortem was conducted by Dr. M.S. Sagar, PW7, on and he found multiple abrasions and contusions on the body of the deceased, besides a stab wound which was sufficient to cause death in the ordinary course of nature. He opined that the cause of death was shock as a result of multiple ante mortem injuries. 4. The Investigating Officer also sent the case property to the CFSL and obtained the reports Ex. PW9/E-F. He correctly recorded the statement of the witnesses and on completion of investigation, he filed the challan in the court. 5. The appellant on being charged for murder punishable under Section 302 IPC pleaded innocence and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution has examined 10 witnesses, none of them, however, is the eye witness to the occurrence. The prosecution case is primarily based on circumstantial evidence. 7. PW5A ASI Hari Prakash was duty officer at P.S. Kalkaji on from 8:00 pm to 8:00 am. He has stated in the court that on at around 9:15 pm, the appellant came to the police station and lodged a report regarding the murder of the deceased Shiv Lal, which he recorded as DD No.16A and obtained the signatures of the appellant. He has proved the copy of the DD report as Ex.PW5/A. In the said DD report, appellant stated that he was residing in the house of his landlord Birhma, PW5, which was not liked by the deceased Shiv Crl. A.No.80/1997 Page 3 of 13

4 Lal, father-in-law of PW5 Birma and his relatives. They all used to tell him to vacate the house, which was a cause of acrimony between them and because of that reason, he had a quarrel with Shiv Lal and he inflicted knife blows on the person of Shiv Lal, who was lying in the house. PW5A ASI Hari Prakash also stated that later in the night at around 11:10 pm, on receipt of rukka from the SHO, O.P. Swami, PW9, he recorded the formal FIR, copy of which is Ex.PW5/B. 8. PW5 Birhma, the other important witness, deposed that the appellant was residing in his house as a tenant. Earlier, they were doing business in partnership which went into losses. He wanted the appellant to vacate the house and live separately. The deceased Shiv Lal also asked the appellant to live in a separate house as the partnership business had come to a stop. On , he had gone out along with his family members at about 11:00 am. When he came back to his house at 9:30 pm, he noticed police at his house. When he went upstairs, he saw the dead body of his father-in-law Shiv Lal drenched in blood lying on the sofa. He stated that the police collected blood samples in a glass vial. The sofa on which the dead body was lying was also sealed and seized by the police. This witness further deposed that the appellant on interrogation disclosed that he had thrown the knife in a nali (drain) and he had also kept his bloodstained vest on a cot and in furtherance of said disclosure statement, the appellant got recovered the knife Ex.P-1 from the nali abutting his house, which was seized by the police and the appellant also got Crl. A.No.80/1997 Page 4 of 13

5 recovered his baniyan (vest) which was stained with blood from a cot which was resting against the parapet wall overlooking the galli. There were blood stains on the pant of the appellant, which was also taken into possession by the police. 9. PW1 Girwar is also a witness to the disclosure statement made by the appellant and also the recovery of blood-stained knife Ex.P-1 as also the blood-stained baniyan of the appellant Ex.P-3 and seizure of blood-stained pant which he was wearing, by the police. His testimony regarding the disclosure and recovery is more or less similar to the testimony of PW5 Birhma. 10. PW7 Dr. M.S. Sagar conducted autopsy of the dead body. As per post mortem report, he started autopsy on at 1:00 pm. He has fixed the approximate time of death to be about 28 hours prior to the time of autopsy. According to him, there were following injuries on the dead body of the deceased: 1. Abrasion left hand dosum of size 3 cm. X.2 cm. 2. Contusion on the left side of forehead 5 cm. X 4 cm. 3. Abraided contusion left chest mid-axilary line of size 4 cm.x 1.5 cm. Over nineth intercostals space. 4. Incised wound dorsom of left hand.7 cm. X.2 cm. X tendon deep with clean cut averted margin. 5. Incised wound left mandibular region 1.5. cm. X.6 cm into muscle deep with clean cut averted margins. 6. Multiple abrasions mide line chest over sternal region. 7. Linear abrasion. 8. Fractured ribs left side fifth and sixth. Crl. A.No.80/1997 Page 5 of 13

6 9. Incised wound left ear lobule with part of it missing. 10. Stab wound over back of neck with muscle deep. 11. Stab wound on the right side of chest of size 1.7 cm x.75 cm transversely placed 5 cm below clavicular margin and 3 cm from the midline. 12. Incised wound right side chest 1.75X.5cm. Subcutaneous tissue deep only. He opined that injuries Nos.1, 2, 3 and 8 detailed above were caused by blunt force and rest were caused by a sharp object and those injuries were possible on the dead body by the knife Ex.P-1. Going by the time of death fixed by the Doctor by simple arithmetical calculation, it can be concluded that Shiv Lal died sometimes around 9:10 am on The appellant, when examined under Section 313 Cr.P.C. denied the prosecution story and claimed to be innocent. According to him, he has been falsely implicated at the instance of PW5 Birhma who wanted to save his own skin. 12. On perusal of the judgment, it transpires that the learned Trial Court on appreciation of evidence found that prosecution has been able to establish six incriminating circumstances, which taken together formed a chain so complete as to lead to only hypothesis of the guilt of the appellant, ruling out any possibility of his innocence. The circumstances taken as proved are detailed thus: (i) That the accused was living in the house of Birhma who is the son in law of deceased Shiv Lal. Crl. A.No.80/1997 Page 6 of 13

7 (ii) (iii) (iv) (v) (vi) That Birhma and Shiv Lal were asking the accused to vacate the house but the accused refused and he also became revengeful towards them. That the accused himself informed the police vide DD no. 16-A that he had stabbed Shiv Lal and he was lying in injured condition in the house. That the blood stained pant Ex.P.2 of the accused which he was wearing was seized and the accused also got recovered knife Ex.P.1, pant Ex.P.2 and baniyan Ex.P.3. That the same blood group B as that of the deceased was found on the knife Ex.P.1, pant Ex.P.2 and baniyan Ex.P.3. That the doctor who conducted the postmortem on the dead body of Shiv Lal opined that the injuries found on the dead body were possible with the knife Ex.P Learned counsel for the appellant has submitted that the case of the prosecution is based upon circumstantial evidence, which is neither reliable nor the circumstances relied upon by the learned Trial Court form a chain so complete so as to unerringly point towards the guilt of the accused. Learned counsel for the appellant submitted that the testimony of PW5 Birhma is unreliable if tested in the background of the medical evidence provided by the testimony of Dr. M.S. Sagar, PW7 and the post mortem report Ex.PW7/A, which fixes the time of death as 28 hours before the autopsy, which time comes out to be around 9:10 am. It is highly improbable, if not impossible, that the appellant could have killed the deceased Shiv Lal at his house without PW5 Birhma or his family members coming to know about it. Expanding on this argument, learned counsel for the appellant has drawn our attention to the testimony of PW5 Birhma who stated that on , he left the Crl. A.No.80/1997 Page 7 of 13

8 house along with his family members at about 11:00 am and returned back at 9:30 pm when he found his father-in-law Shiv Lal lying dead on the sofa. This version implies that till 11:00 am, PW5 Birhma was present at the house and admittedly he was living on the first floor along with his father-in-law. If that was the case, by no stretch of imagination it can be said that the appellant could have killed the deceased on the first floor of the house at around 9:10 am without PW5 Birhma having come to know about the incident. The next submission made by the learned counsel for the appellant is that as per the DD report Ex.PW9/A, the appellant gave information about the murder of the deceased on the night of at 9:15 pm and immediately thereafter, the Investigating Officer proceeded for the spot along with the appellant. Learned counsel has drawn our attention to the endorsement of PW8, Inspector Ishwar Singh on the DD report, wherein he has recorded that on reaching the spot, he found fresh knife wounds on the person of the deceased. This implies that the deceased was killed shortly before the arrival of PW8, Inspector Ishwar Singh at the spot of occurrence, which fact is belied by the medical evidence discussed above, which has fixed the time of the death of the deceased somewhere around 9:10 am. Learned counsel has submitted that the incident, as per the prosecution, took place during summer period in the month of April, 1991 and if the deceased had died at 9:10 am in the morning, then about 12 hours later the Inspector could not have found fresh knife wounds on the Crl. A.No.80/1997 Page 8 of 13

9 person of the deceased. From this, he has urged us to infer that the facts recorded in the endorsement Ex.PW8/A are not correct and this is a case of manipulation. Learned counsel has submitted that in view of the aforesaid infirmities, which are consistent with the theory of innocence of the appellant, the appellant ought to have been given the benefit of doubt, particularly when there is no convincing evidence on the record. He has submitted that even the motive for the crime projected by the prosecution, that Shiv Lal wanted the appellant to vacate the house is a very weak motive to infer that it would have led the appellant to kill the deceased. 14. On the other hand, learned counsel for the State has argued in support of the impugned judgment. He has submitted that the learned Trial Court has rightly concluded that there existed a motive on the part of the appellant to kill the deceased, as the deceased had been pestering him to vacate the house. It is also submitted that the appellant himself had reported the crime to the police vide DD report Ex.PW9/A and the information disclosed by him led to recovery of dead body of Shiv Lal from the house of PW5 Birhma, which is a very strong circumstance to infer the guilt of the appellant. Besides that the appellant also made a disclosure statement and pursuant to that he even got the weapon of offence, i.e., knife Ex.P-1 and his blood-stained vest recovered. Even the pant which the appellant was wearing was having some blood stains, which was also seized and all those articles when sent for serological examination, gave positive tests for presence Crl. A.No.80/1997 Page 9 of 13

10 of human blood of blood group B, which was the blood group of the deceased. In support of this contention, he has referred to serological report Ex.PW9/F. Learned counsel for the State further submitted that no significance can be attached to the time of death fixed in the post mortem report as it can never be accurately fixed. In support of this contention, he has relied upon Baso Prasad & Ors. Vs. State of Bihar, AIR 2007 SC Before adverting to the rival contentions, it would be useful to have a look on the law relating to circumstantial evidence. In the matter of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 10. (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 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 the 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. Crl. A.No.80/1997 Page 10 of 13

11 16. The above enunciated principle of law was reiterated in the matter of State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, where the Supreme Court, inter alia, observed thus: 9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. 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. The circumstance 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. 17. From the testimony of PW5 Birhma, it is apparent that he as well as the deceased Shiv Lal were living upstairs in house No.1338, Gali No.8, Govind Puri. As per the post mortem report Ex.PW7/A, the time of death as fixed by Dr. M.S. Sagar is around 9:10 am on Admittedly, as per PW5 Birhma, he left the house along with his family members at about 11:00 am. Therefore, it is highly improbable that the appellant could have killed the deceased on the first floor of the house without Birhma and his family members having any knowledge of the fact. Further, the incident admittedly took place in summer season on As per the first Investigating Officer, Inspector Ishwar Singh, when he reached at the spot on receipt of copy of the DD report Ex.PW9/A, which was recorded at 9:15 pm in the night, he found the fresh knife wound on the body of the deceased, which is an improbability if the deceased had died 12 hours earlier in the morning. Crl. A.No.80/1997 Page 11 of 13

12 The above circumstances, in our considered view, cast a strong shadow of doubt on the fairness of the investigation and the correctness of the prosecution story. We may add that if the murder took place at 9:00 am and the appellant even took care to get rid of his blood-stained baniyan Ex.P-3 and the weapon of offence, i.e., knife Ex.P-1, it appears highly improbable that he would have gone to the police station in the night at 9:15 pm to confess his guilt. 18. So far as the judgment of Supreme Court in the matter of Baso Prasad & Ors. Vs. State of Bihar, AIR 2007 SC 1019 relied upon by the prosecution is concerned, in our considered view, the aforesaid judgment is not applicable to the facts of the present case as it is based upon its own peculiar facts. In the above referred judgment, the issue before the Hon ble Supreme Court was the discrepancy between the medical evidence and the ocular evidence and the Supreme Court, after referring to the Textbook on Medical Jurisprudence, Forensic Medicine and Toxicology by Parikh, observed that exact time of death cannot be established scientifically and precisely only because of the presence of rigor mortis or absence of it. The facts of the instant case are entirely different. As per the post mortem report Ex.PW7/A, PW7 Dr. M.S. Sagar has fixed the time of death as 28 hours before the start of autopsy. No question was asked to the Doctor by the learned Prosecutor during his examination as to how and on what basis he had fixed the time of death nor PW7 Dr. M.S. Sagar was asked to explain whether or not there was any possibility of inaccuracy regarding the Crl. A.No.80/1997 Page 12 of 13

13 time of the death and, if so, to what extent. Since the case is based upon circumstantial evidence, it was obligatory on the part of the prosecution to clarify this fact by examining Dr. M.S. Sagar. The aforesaid gap left in the evidence regarding the fixing of time of death leaves scope for doubt and a possibility cannot be ruled out that the deceased died at 9:10 am as concluded by the Doctor concerned. Since the case is based upon the circumstantial evidence, possibility of any reasonable theory of innocence of the appellant must entitle him to benefit of doubt. 19. In view of our discussion above, the prosecution case appears to be highly doubtful and we find it difficult to sustain the conviction of the appellant under Section 302 IPC. We accordingly accept the appeal and set aside the impugned judgment of conviction and order on sentence and acquit the appellant giving him benefit of doubt. 20. The appellant is on bail. His bail bond and surety bond are discharged. AJIT BHARIHOKE, J. JANUARY 25, 2010 A.K. SIKRI, J. pst Crl. A.No.80/1997 Page 13 of 13