* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 25.08.2011
+ CRL.A. 532/2011 & CRL. M. (BAIL) 702/2011
RAM SUNDER @ RAMU ..... Appellant
Through: Mr. Kamal Katyan, Mr. Kapil Dhaka
and Mr. Amit Baisoya, Advocates.
versus
STATE ..... Respondent
Through: Mr. Sanjay Lau, APP.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G. P. MITTAL
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%
1. This appeal impugns the judgment and order of the learned Additional Sessions
Judge dated 31.01.2011, in SC No.65/2009 holding the Appellant guilty for committing
offence punishable under Section-302, IPC and sentencing him to life imprisonment.
2. The prosecution’s case was that on 13.07.2005, an intimation (i.e. D.D. No.10/A
marked as Ex.PW-20/A) was received at 7:12 AM regarding the dead body of Girish.
The body was found at the CPWD Enquiry Office/Complex, Netaji Nagar. The
prosecution alleged that police officials PW-16 and 17 reached the spot and were later
followed by PW-10 and PW-21. The deceased Girish was lying face down in the pool of
Crl.A.532/2011 Page 1
blood; a thick bamboo danda with blood stains also lay beside his body. It was alleged
that blood stains could be seen on the wall, window pane and switch board. Certain
personal articles such as a red colour purse, two papers etc. were lying around. An
aluminum vessel was also found; it contained a glass tumbler and a half bottle of
“Classic” brand whiskey. The bottle had a small quantity of liquor. The prosecution
alleged that PW-1 met the police and his statement PW-1/A was recorded. He claimed
having seen the deceased in the company of the Appellant in front of the Pump House at
9:00 PM on 12.7.2005. They were having liquor inside the Pump House. PW-1 stated
that he did not disturb the two and went inside his house. Later, next morning around
7:00 AM when he went out of his house to take the scooter, he noticed the Pump House
entry open and blood coming out of there. He opened the door and found Girish lying
face downwards and also bleeding from the head. He noticed a bamboo stick with blood
stains. He rushed to the Junior Engineer Jai Ram Yadav and informed the police.
3. The prosecution alleged that on the basis of this information, investigation was
carried out and the Appellant was arrested. It seized the articles which included the
bamboo danda and also lifted finger prints from the site and sent them for analysis to the
Finger Print Bureau. The deceased’s body was sent for Postmortem examination. After
conclusion of the investigation, the Appellant was charged with committing Girish’s
murder; he denied the charge and claimed trial.
4. The prosecution examined 22 witnesses and relied on several exhibits including
danda and other material objects. The Trial Court by the impugned judgment held the
appellant guilty for having committed the offence and handed down the punishment
mentioned earlier.
5. It was submitted that the Trial Court had noticed that three incriminating
circumstances that were alleged by the prosecution, i.e., evidence of the deceased “last
seen” in the company of the appellant; the report of finger print examination and the
recovery of objects at the behest of the appellant. Counsel submitted that the Trial Court
disbelieved the prosecution evidence pertaining to appellant’s finger prints match with
those found at the site. It was urged that the Trial Court also disbelieved the recoveries
and the reliance placed on them by the prosecution. It, however, relied upon the
Crl.A.532/2011 Page 2
prosecution’s version that the appellant was last seen in the company of the deceased.
Arguing that this circumstance alone was insufficient to implicate and fix the criminal
responsibility on the appellant, counsel submitted that even though the impugned
judgment noticed the nature of burden to prove placed upon the prosecution in
circumstantial evidence cases i.e. need to prove each and every link in the evidence
conclusively and also equally prove the chain of circumstances conclusively, the
judgment did not follow that approach and relied on the probabilities.
6. It was submitted that the circumstance regarding the appellant having been last
seen by the prosecution witnesses was primarily deposed to by PW-1 and PW-2. Counsel
emphasized that PW-2 Pradeep Singh merely stated having seen the appellant along with
the deceased near the Enquiry Office at Netaji Nagar around 9:00-09:15 PM on
12.07.2005. PW-1 said the same thing. However, he also mentioned that both of them
were drinking at that time. Counsel argued that the evidence of PW-1 established that the
scene of occurrence was not in an open area and within the compound. It was argued that
a very important circumstance was lost sight of by the Trial Court i.e. that the entire
compound had 3 Watchmen – Munna Lal, Sudershan and Arun – all of whom were named
by PW-1. Besides these three individuals, PW-1 also mentioned the presence of J.E. Jai
Ram. None of them were examined, even though they were material and could have
thrown much light on the crime. Further it was emphasized that having regard to these
and the depositions of PW-1 that the Pump House was accessible to one and all without
any difficulty, the last seen circumstance, in this case was insufficient to implicate the
appellant.
7. Learned counsel urged that the postmortem report, PW-3/A and the depositions of
the doctor PW-3 established that the death probably occurred about 36 hours prior to the
commencement of postmortem (i.e. it was at 11:45 AM on 14.7.2005). If that were
correct, the approximate time of death would have been about 12-12:30 AM on
13.7.2005. Having regard to the nature and location of the premises and the high degree
of probability that several other residents frequented the compound which was a
Government colony and also that there were three watchmen in the vicinity on the
lookout throughout the night, the prosecution’s version of “last seen” could not have been
Crl.A.532/2011 Page 3
the sole basis for convicting the appellant. It was urged that the Appellant lived in the
same compound; his father was a government employee and had been allotted a quarter.
If indeed he had attacked the deceased Girish, as alleged by the prosecution, some
resident or at least the watchmen on duty would have been alerted. Learned counsel
emphasized that the postmortem mentions no less than 9 injuries including one on the
head. There was nothing suggestive of the fact that the deceased was incapacitated from
crying out or defending himself. If indeed, the prosecution’s versions were correct and
the deceased was beaten to death around 12-12:30 AM, the circumstance of last seen at
9:00 PM, the previous night was insufficient to return the findings of conviction in this
case.
8. Learned APP argued that the prosecution had established that the appellant was
the only person last seen in the company of the deceased. It was submitted that PW-1 and
PW-2 were unanimous on this aspect. Furthermore, submitted the counsel, even though
the Trial Court disbelieved the matching of the finger prints that were found at the site,
nevertheless this Court should re-appreciate the evidence. Learned counsel argued that
the Trial Court resorted to a needless technicality in insisting that the specimen finger
prints had to be obtained after orders were sought in this regard from the Magistrate.
Counsel urged that if that these findings were disregarded, there was material enough to
prove the accused’s presence at the site; his finger prints were found on the danda and
other articles – which matched with the finger prints supplied by him. Learned counsel
relied upon the finger prints expert’s report marked as Ex.PW-19/A to Ex.PW-19/C.
9. Counsel argued that even though the Trial Court disbelieved the finger print
evidence, in substance, shorn of the technicality, the material strongly incriminated the
appellant. The appellant did not give any explanation in this regard. This circumstance
coupled with the last seen evidence spoken of by PW-1 and PW-2, urged the APP,
justified the findings of conviction. It was also urged that at the earliest opportunity i.e.
on receipt of the information itself at 7:12 AM, on 13.7.2005, the police rushed to the
spot and immediately recorded the statement of PW-1. There was no reason to implicate
the appellant falsely; despite cross examination of PW-1, nothing was elicited to show
existence of any motive on his part. Having regard to totality of these circumstances,
Crl.A.532/2011 Page 4
submitted counsel for prosecution, this Court should not disturb the findings rendered by
the Trial Court.
10. We would first deal with the submission regarding the allegation that chance
prints developed from the site matched with that of the Appellant’s specimen. In this
regard, the reasoning which found favour with the Trial Court was the prosecution’s
inability to prove that the Appellant’s specimen finger prints were taken with permission
from the Magistrate, during the investigation. Apart from that that aspect, we also notice
that the Finger print expert’s reports – marked as Ex. PW-16/ to PW-16/C mention that
two chance prints mentioned with the finger prints of the Appellants, sent on a slip of
paper. Interestingly, however, the prosecution was unable to prove who obtained those
specimen, and when. Neither the IO in the case, nor any of the police witnesses, stated
that the Appellant’s specimen handwriting was obtained, nor does the Trial Court record
disclose when the prints were obtained. In these circumstances, we see no reason to
disturb the findings concerning the lack of credibility about the chance prints found at the
site, matching the Appellant’s finger prints.
11. The prosecution relied on the recovery of a blood stained pant, at the behest of the
Appellant. The blood stains on the pant matched with the blood stains of the deceased.
The Trial Court, however rejected this as a circumstance; its reasoning is as follows:
“Thus, though the prosecution has proved the recovery of pant from the
possession of accused and it has also proved the blood group of deceased but I
consider that this circumstance cannot be read against the accused for two
reasons, one, that prosecution has not proved by way of an independent evidence
that accused was wearing the same pant at the time of incident and secondly, the
IO in his testimony has admitted that he did not ascertain the blood group of the
accused. Therefore, this circumstance cannot be read against the accused.”
We find no infirmity with this finding, and concur with it.
12. The most important circumstance which persuaded the Trial Court to hold the
Appellant guilty as charged is now discussed. After discussing the testimonies of PW-1
and PW-2, and holding that they both spoke of having seen the decased and the accused
together, the impugned judgment went on to hold as follows:
“9.3 Now if we appreciate the evidence of these two witnesses, both the
witnesses have made a consistent and corroborative statement that they had seen
Crl.A.532/2011 Page 5
accused and deceased on 12.07.05 during night hours. PW2 has specifically
stated that he had seen the accused with the deceased at around 9 or 9:15 pm
whereas, PW1 though did not state specifically the time, but he has stated that he
saw accused with the deceased inside the pump house when he went there to park
his scooter. PW1 was cross examined in detail on the point that he has deposed
falsely against the accused on account of personal enmity. Except bald
suggestions, accused has not brought any material on the record that PW1 had
any enmity with the accused. It is settled proposition that mere suggestions unless
supported by some cogent evidence has no evidentiary value. Thus, this court is
not ready to believe that PW1 or PW2 have deposed falsely regarding the fact of
having seen the accused with the deceased on 12.07.05 at around 9 pm. There is
no cogent reason to disbelieve the testimony of PW 1 and PW2.
***************** ********************
9.5 Law regarding appreciating of evidence is also very well settled. The
memory of every individual is different. Some person have a very sharp memory
regarding the identification of the articles and some do not have that good
memory. While appreciating the evidence, the court is required to take into
account the educational background and social status of the witness. The court
has also to take into account the fact that when such persons appear in the court,
they may not be able to assimilate their thought properly and may not be able to
express the things properly. The testimony of a witness has to be read as a whole.
The court cannot expect a witness to depose in a parrot like manner. Similarly,
certain contradictions in the testimony of prosecution witnesses regarding
timings, highlighted by Ld. defence are not material and does not go to the root of
the case. One has to be practical while appreciating the evidence and should be
able to separate the grain from chaff. I consider the contradictions as highlighted
by ld. Defence counsel are not material and does not go to the root of the case. I
consider that if the entire law regarding appreciation of evidence and last seen is
taken into account, the necessary corollary which is culled out from the fact is
that if the witnesses have made cogent, credible and credit worthy statement that
the accused was seen in the company of the deceased and the death takes place
after sometime and the time gap is very small and there is no possibility of
anybody else having committed the offence, then it is a strong circumstance and
can be made the basis for recording the conviction.”
It was thereafter held that after an overall consideration of the testimonies of both the
witnesses, and the surrounding circumstances, there was no reason to disbelieve their
statement. The Appellant was, therefore convicted.
Crl.A.532/2011 Page 6
13. It has been repeatedly held that when a case rests entirely on circumstantial
evidence, such evidence must satisfy three tests. Firstly, the circumstances from which
an inference of guilt is to be drawn, are to be cogently and firmly established. Secondly,
those circumstances should be of a definite tendency of unerringly pointing towards the
guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain
so complete that there is no escaping the conclusion that within all human probability the
crime was committed by the accused and none else. In other words the circumstances
should be incapable of explanation on any reasonable hypothesis save that of the
accused’s guilt. ( Ref. Hanumanth Govind Nargundkar & Anr. v. State of M.P., AIR 1952
SC 343; Chandmal and Anr. v. State of Rajasthan, AIR 1976 SC 917 and Sharad Birdi
Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116).
14. The evidence of an accused being “last seen” with the deceased is a species of
cases relying on circumstantial evidence. Several rulings have cautioned the courts on the
need to scrutinize this aspect circumspectly, and have evolved broad guidelines to be
followed. For the purpose of the present discussion, it would be sufficient to recollect
State of Uttar Pradesh Vs. Shyam Behari & Anr. 2009 (8) SCALE 743, where the Court,
after having discussed detail the law of this point, summarized it as follows:-
“103. We may summarize the legal position as under:
(i) Last seen is a specie of circumstantial evidence and the principles
of law applicable to circumstantial evidence are fully applicable
while deciding the guilt or otherwise of an accused where the last-
seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by
further evidence is required.
(iii) The single circumstance of last-seen, is of a kind, where a rational
mind is persuaded to reach on irresistible conclusion that either
the accused should explain, how and in what circumstances the
deceased suffered death, it would be permissible to sustain a
conviction on the solitary circumstance of last-seen.
(iv) Proximity of time between the deceased being last seen in the
company of the accused and the death of the deceased is important
Crl.A.532/2011 Page 7
and if the time gap is so small that the possibility of a third person
being the offender is reasonably ruled out, on the solitary
circumstance of last-seen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the
accused were last seen alive with the place where the dead body of
the deceased was found is an important circumstance and even
where the proximity of time of the deceased being last seen with
the accused and the dead body being found is broken, depending
upon the attendant circumstances, it would be permissible to
sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in
mind and play a very important role in evaluation of the weightage
to be given to the circumstance of proximity of time and proximity
of place while applying the last-seen theory.
(vii) The relationship of the accused and the deceased, the place where
they were last seen together and the time when they were last seen
together are also important circumstances to be kept in mind while
applying the last seen theory.
For example, the relationship is that of husband and wife and the
place of the crime is the matrimonial house and the time the husband
and wife were last seen was the early hours of the night would require
said three factors to be kept in mind while applying the last-seen
theory.
The above circumstances are illustrative and not exhaustive. At the
foundation of the last-seen theory, principles of probability and cause
and connection wherefrom a reasonable and a logical mind would
unhesitatingly point the finger of guilt at the accused, whenever
attracted, would make applicable the theory of last-seen evidence and
standing alone would be sufficient to sustain a conviction.”
15. The court trying the offence has to be acutely conscious of the fact that the
circumstance of “last seen” is merely a link, in the chain of circumstances, which
has to be proved conclusively, along with other links. The Supreme Court, in
Inderjit Singh v. State of Punjab AIR 1991 SC 1674, held that if no direct
evidence to connect the accused is available and no enmity between the accused
and deceased is found, then, on the basis of the only circumstance that deceased
Crl.A.532/2011 Page 8
was last seen in the company of the accused person, no person can be convicted.
It was observed as follows:
“Among the circumstances relied upon by the prosecution, in the light of
these principles we find that except the circumstance No. 1, the other
circumstances are not incriminating. In number of cases it has been held
that the only circumstance namely that the deceased was last seen in the
company of the accused by itself is not sufficient to establish the guilt of
the accused. It is no doubt true that the deceased’s death was homicidal
but since there is no direct witness connecting any of the appellants with
the crime we should fall back on the circumstantial evidence and we are of
the view that circumstances relied upon by the prosecution are hardly
sufficient to establish the guilt of the accused. The circumstance, i.e., the
absence of enmity between the accused and the deceased and the witness
would also show that the accused also had no enmity against the
deceased. Therefore, this circumstance is neutral. However, now coming
to the recovery of the gun, the High Court has acquitted him of that
charge. The only relevant circumstance as pointed above is that the
appellants and the deceased left the house together in a friendly manner
for bird-shooting. It is needless to say that no conviction can be passed on
this sole circumstance. In the result; the convictions and sentences
awarded by the Courts below are set aside. The appeal is allowed.”
16. In the present case, what is apparent is that PW-1 and PW-2 deposed having seen
the deceased in the company of the Appellant around 9 PM on 12-7-2005. The deceased
was next found dead in the early morning, the next day, by PW-1. However, the Trial
Court overlooked certain material aspects, i.e., that the premises where the body was
discovered, and in the vicinity of which the Appellant was “last seen” was in a
Government residential colony. The spot of occurrence was opposite a Pump house; the
entire premises, were enclosed by a compound wall, and had three watchmen. None of
them were examined. The premises, i.e., the Pump House, was easily accessible. The
Trial Court disbelieved the chance finger prints and the recovery of articles. There is
nothing on the record or testimonies of witnesses, suggesting that the Appellant
harboured any motive to commit any crime against the deceased, or murder him. Having
regard to these circumstances, the mere fact that the two were “last seen” together, three
hours back, it would be unsafe to conclude that the Appellant committed the crime.
Crl.A.532/2011 Page 9
17. In view of the above discussion, we are of the opinion that the Appeal is entitled
to succeed. We set aside the judgment and order of the Trial Court, and acquit the
Appellant; he shall be set at liberty forthwith. The Appeal is therefore, allowed.
S. RAVINDRA BHAT, J
G. P. MITTAL, J
AUGUST 25, 2011
/vks/
Crl.A.532/2011 Page 10