THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: July 13th , 2011
+ CRL.A. 613/2009
SHAILESH KUMAR & ORS ... Appellant
versus
STATE ... Respondent
Advocates who appeared in this case:
For the Appellant: Mr Abhay Singh along with Ms Yasmin Zafar
For the Respondent: Ms Richa Kapur, Addl. Standing Counsel
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MS JUSTICE VEENA BIRBAL
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
BADAR DURREZ AHMED, J (ORAL)
1. The appellants Shailesh Kumar, Santosh and Alok Kumar are
aggrieved by the judgment dated 26.05.2009 passed by the learned
Additional Sessions Judge, Delhi, in sessions case no.72/2008 whereby
they have been convicted under Section 120-B, Section 302 read with
CRL. A. No.613/2009 Page 1 of 18
Section 120B and Section 201 read with Section 120B IPC. The said
case arose out of FIR No. 168/2002 registered at Police Station Sarasvati
Vihar.
2. The appellants are also aggrieved by the order on sentence dated
28.05.2009 whereby the learned Additional Sessions Judge, Rohini
Courts, Delhi, sentenced the appellants to rigorous imprisonment for life
insofar as the offence under Section 120B IPC is concerned along with a
fine of ` 5000/- each. The appellants were also sentenced to rigorous
imprisonment for life with a fine of ` 5000/- each in respect of the
offence punishable under Section 302 read with Section 120B IPC.
Finally, the appellants were also sentenced to rigorous imprisonment for
seven years and a fine of ` 1000/- each in respect of the offence under
Section 201 read with Section 120B IPC. All the sentences were directed
to run concurrently.
3. In this case, a double murder of a father and son, namely, Ram
Murat aged about 50 years and his son Chamki, aged about 15-16 years
has been committed. The appellants have been convicted for the same as
mentioned above.
4. It is through DD No.8A dated 28.02.2002 (Ex.PW1/G) that
information was received at Police Station Sarasvati Vihar, Delhi, at
about 9.45 am, that house no.A-151/152 J.J. Colony, Shakurpur, Delhi
CRL. A. No.613/2009 Page 2 of 18
has been locked and that a foul smell is emanating from it. Thereupon,
Inspector Jag Ram Singh along with SI Surjit Singh went to the spot. As
per the ruqqa (Ex.PW17/A), at the spot, SI Surjit Singh also met the SHO
and the Additional SHO and Constable Bharat Kumar and thereupon a
hammer was taken out from the investigating officer‟s kit and the lock of
the house/room was broken. It was discovered that there were two rooms
on the ground floor of the said house. In the rear room, there was an iron
trunk from which the foul smell was emanating. Beneath the trunk there
appeared to be leakage of a blood like liquid which had since dried up.
When the trunk was opened, it was found that it contained a quilt and two
highly decomposed dead bodies of males. These bodies were later on
identified as that of Ram Murat and his son Chamki. No eye-witness was
present at the spot. It is on the basis of the ruqqa that the FIR
(Ex.PW1/A) was registered.
5. The investigating officer called the crime team and the
photographer. The fingerprint expert PW-10 SI Subhash Chand
examined the scene of crime but as per his report Ex.PW-10/A no chance
prints could be developed from any of the articles. The photographer,
Constable Chunni Lal was the person who took the photographs which
are Ex. PW11/13 to 24 and the negatives of the said photographs are
Ex.PW11/1 to 12. The broken lock (Ex.P-1) the iron trunk (Ex.P-2) the
CRL. A. No.613/2009 Page 3 of 18
quilt (Ex.P-3) and two dumb-bells (Ex.P-4/1 and Ex.P-4/2) along with
samples of the blood on the floor were taken in the possession and were
sealed with the seal of J.S.
6. It is the case of the prosecution that suspicion arose in respect of
the appellants in view of the statements given by PW-3 Ram Avtar and
PW-4 Insul Master who were tenants of the deceased Ram Murat in the
said house. As per the statement of PW-4 Insul Master, suspicion was
raised on Guddu (which is an alias of appellant Shailesh Kumar). It was
suggested that deceased Ram Murat was seen in the company of the said
Guddu and 2/3 persons. On the basis of the said statements, the
appellants were arrested and thereupon their disclosure statements were
recorded.
7. Thereafter, the investigation was completed and the charge-sheet
was filed and the charges, as mentioned above, were framed against the
appellants. In the course of trial, the prosecution examined as many as 31
witnesses and the defence also examined two witnesses. The statements
of the accused were recorded under Section 313 Cr.P.C. After arguments
were advanced by the counsel for the parties, the learned Additional
Sessions Judge delivered the impugned judgment and passed the
impugned order on sentence.
CRL. A. No.613/2009 Page 4 of 18
8. The learned counsel for the appellant submitted that the entire case
of the prosecution rests on three aspects, they being – (1) motive; (2) last
seen evidence; (3) recoveries. Insofar as the motive is concerned, the
learned counsel for the appellant submitted that the case of the
prosecution is that the deceased Ram Murat was to purchase agricultural
land in the village Pagore, District Basti, U.P., which apparently belonged
to Shailesh Kumar and his brother Alok Kumar. It was suggested by the
prosecution that Shailesh Kumar had agreed to sell the said land in the
village to Ram Murat who was working in Delhi as a contractor. Part
payment (` 1.35 lakhs) had been made some time in August, 2001 and the
remainder was to be made in February, 2002 and it is for this purpose that
Shailesh Kumar and other appellants had come to Delhi to receive the
balance. It was contended that as per the prosecution, the appellants took
a sum of ` 80,000/- representing a part of the balance amount from Ram
Murat and did not execute any sale deed as their intention had turned
dishonest. They killed Ram Murat and his son Chamki in the said room
in the house itself with the dumb-bells Ex.P-4/1 and P-4/2 and a piece of
wire Ex.P-6. The learned counsel for the appellants submitted that while
this is the case of prosecution, insofar as the motive is concerned, the
prosecution has not been able to establish the same by means of any
cogent evidence inasmuch as there is no documentary evidence with
CRL. A. No.613/2009 Page 5 of 18
regard to the agreement which is alleged to have taken place between
Shailesh Kumar on the one hand and deceased Ram Murat on the other.
There is no evidence of any receipt indicating that the appellants had
received the amount of ` 1.35 lakhs or the amount of ` 80,000/- as
alleged. In fact, according to the learned counsel for the appellant, the
most crucial point is that there is no evidence on record to establish or
indicate that the appellant Shailesh Kumar or his brother Alok owned any
land in the said village.
9. It was further contended by the learned counsel for the appellants
that the passbook entries of Shailesh Kumar and Alok Kumar of their
joint account do show a deposit of ` 20,000/- on 26.02.2002 but there is
no evidence to connect this money as being the money allegedly received
from the deceased Ram Murat. He also submitted that Kissan Vikas
Patras to the extent of ` 50,000/- were also purchased on the same day but
once again there is nothing to connect the purchase of these Kissan Vikas
Patras with the money allegedly received from deceased Ram Murat. The
learned counsel for the appellants contended that the purchase of the
Kissan Vikas Patras was nothing unusual inasmuch as the defence
witness DW-2 Ikram Hussain, who is the Post Master, has stated that on
several earlier occasions also the said appellants had been purchasing
CRL. A. No.613/2009 Page 6 of 18
Kissan Vikas Patras on different dates and were also maintaining a
recurring deposit account.
10. With regard to the „last seen‟ evidence, the learned counsel for the
appellant contended that the entire case of the prosecution rests on the
testimonies of PW-3 Ram Avtar and PW-4 Insul Master. He submitted
that it is a noteable fact that PW-6 Smt. Malti, who is the wife of PW-3
Ram Avtar, did not support the prosecution case and was declared hostile.
PW-6 Smt. Malti and PW-3 Ram Avtar, allegedly resided in the same
premises as tenants. He further contended that the testimonies of PW-3
Ram Avtar and PW-4 Insul Master did not inspire much confidence and it
cannot even be concluded with certainty as to whether PW-3 Ram Avtar
and PW-4 Insul Master were tenants or residents of the said house at all
inasmuch as they were unable to give the name of any other tenant in the
said house apart from giving the names of each other, although they had
claimed to have been living there for a number of years. It is further
contended by the learned counsel for the appellants that the testimonies of
PW-3 Ram Avtar and PW-4 Insul Master are at variance insofar as the
evidence with regard to “last seen” is concerned.
11. With regard to the alleged recoveries, the learned counsel for the
appellant submitted, as already pointed out above, that the Kissan Vikas
Patras, which were in the name of Shailesh Kumar and Alok Kumar, who
CRL. A. No.613/2009 Page 7 of 18
are brothers, were nothing unusual and could not be linked up with the
alleged transfer of money from Ram Murat to the appellants. Insofar as
the recovery of three sarees, two pant pieces and two shirt pieces and two
pairs of sandles from the appellant Santosh is concerned, the learned
counsel submitted that there was nothing abnormal about this. He stated
that Santosh was an employee of the other two appellants, who were
running a welding shop in the said village and that these were personal
items which could not be connected with any alleged receipt of money
from the deceased Ram Murat.
12. The learned counsel for the appellant also submitted that even the
funds for the purchase of Kissan Vikas Patras as well as deposit of
` 20,000/- in February, 2002 stands explained by the deposition of DW-1
Smt. Kaushalya Devi, who is the mother of appellants Shailesh Kumar
and Alok Kumar, wherein she has stated that her husband has sold some
lands by virtue of three sale deeds which are Ex.DW1/B, 1/C and 1/D,
whereupon she had received certain funds and part of it had been given to
her sons Shailesh Kumar and Alok Kumar.
13. Ms Richa Kapoor, appearing on behalf of the State, supported the
judgment and order on sentence passed by the learned Additional
Sessions Judge. She submitted that insofar as the motive is concerned,
the withdrawals from the bank account of the deceased Ram Murat do
CRL. A. No.613/2009 Page 8 of 18
indicate that a sum of ` 1.30 lakhs had been withdrawn in July/August
2001. It also indicates that an amount of ` 80,000/- had been withdrawn
by the deceased Ram Murat on 21.02.2002 and it is out of this sum of
`80,000/- that, according to her, a sum of ` 10,000/- was given to the
appellant Santosh with which he purchased the articles mentioned above
and a sum of ` 70,000/- was retained by the appellants Shailesh Kumar
and Alok Kumar, who deposited ` 20,000/- out of that in their joint
account in the post office and purchased Kissan Vikas Patra of the
balance ` 50,000/- in joint names. This, according to the learned counsel
for the State is clinching evidence and cannot be regarded as a mere
coincidence.
14. Insofar as the evidence that deceased Ram Murat was last seen
alive in the company of the appellants, she submitted that the testimonies
of PW-3 Ram Avtar and PW-4 Insul Master have clearly established the
said fact. She submitted that the name of Guddu, which is an alias of
Shailesh Kumar, was disclosed by PW-4 Insul Master in the first instance
after the discovery of the dead body. She submitted that though there
may be some approximation with regard to the date of the incident, but
the testimonies of PW-3 Ram Avtar and PW-4 Insul Master corroborate
each other and do indicate that it is in the company of the appellants that
the deceased Ram Murat was last seen alive. Ms Richa Kapoor also
CRL. A. No.613/2009 Page 9 of 18
points out that the wire Ex. P-6 was also recovered at the instance of the
appellant Shailesh Kumar and Santosh Kumar.
15. It was, therefore, contended by the learned counsel for the State
that the circumstances which are established on record, form a complete
chain and that the learned Additional Sessions Judge has rightly
concluded that the appellants were guilty of the offences they were
charged with and they had been correctly sentenced.
16. Before we take up the case of the prosecution with regard to
motive, it would be necessary to fix the time of death of the deceased
Ram Murat and his son Chamki. As per PW5 Dr. Akash Jhanjee, who
conducted the post mortem examination on the dead body of Ram Murat,
the said Ram Murat died of asphyxia which was a result of the combined
effect of gagging and throttling. He was also injured by a very hard blunt
object and a bed sheet had been stuffed into his mouth. The said doctor
opined that the time since death was about 10-11 days prior to the date of
the post mortem examination which was conducted on 04.03.2002. This
would mean that Ram Murat died on 21/22.02.2002. PW23 Dr. Sarvesh
Tandon is the doctor who conducted the post mortem examination on the
deceased Chamki. He was also of the opinion that Chamki died due to
asphyxia consequent upon ante-mortem throttling and that the time since
death was 10/11 days. Since the post-mortem examination was
CRL. A. No.613/2009 Page 10 of 18
conducted on 04.03.2002, the date of death of the said Chamki would
also be on 21/22.02.2002. Thus, the opinions of both the doctors match
on this aspect of the matter.
17. It is an admitted case that the dead bodies were found on
28.02.2002. This would mean that the dead bodies were discovered after
6-7 days of the deaths of Ram Murat and Chamki.
18. We now need to examine the testimonies of PW3 Ram Avtar and
PW4 Insul Master with regard to their claim of being witnesses to the fact
that they had last seen the deceased Ram Murat alive in the company of
the appellants. As per PW3 Ram Avtar, “one day” at about “10 p.m.”, he
had seen the accused in the company of Ram Murat when Ram Murat
told him (PW3 Ram Avtar) that the accused persons had come from his
village and that he had to give some money to them. As pointed out by
the learned counsel for the appellant, from the cross-examination of this
witness it is clear that the time of “10 p.m.” had not been mentioned by
PW3 Ram Avtar in his statement under Section 161 Cr.P.C. (Ex.
PW3/DA) and that the introduction of the time of 10 p.m. was an
improvement. Furthermore, we also note that PW3 Ram Avtar has not
given any date as to when he saw the deceased Ram Murat in the
company of the appellants. He merely mentioned – “one day”. However,
PW3 stated that the next morning he found Ram Murat‟s house locked.
CRL. A. No.613/2009 Page 11 of 18
This statement was also not there in the statement under Section 161
Cr.P.C. and is also an improvement. PW3 Ram Avtar further stated that
after about 4/5 days, a bad smell was emanating from the said house and
thereupon the police was called and the dead bodies were recovered. If
we take the statement of PW3 Ram Avtar at face value, this would mean
that 4/5 days prior to the discovery of the dead bodies, which were
admittedly recovered on 28.02.2002, the house of Ram Murat was found
locked. In other words, the house would have been found locked either
on 23rd or 24th of February, 2002. Since this witness has stated that one
day prior to the house being locked he had last seen Ram Murat alive in
the company of the appellants, the date on which that would have
happened would be either 22.02.2002 or 23.02.2002.
19. We now come to the testimony of PW4 Insul Master. He stated
that 3/4 days prior to Id, Guddu i.e., appellant Shailesh had come to meet
Ram Murat which would mean that appellant Shailesh met Ram Murat on
19/20.02.2002. PW4 Insul Master further stated that he saw a lock on the
house of Ram Murat one day prior to Id. It has been ascertained by the
trial court as well as by us that in the year 2002, Id-ul-Zuha had taken
place on the 23.02.2002, which was also a Saturday. This means that if
PW4 Insul Master is to be believed, the house of Ram Murat was locked
one day prior to Id i.e., on 22.02.2002.
CRL. A. No.613/2009 Page 12 of 18
20. Thus, we find that as per PW4, the house of Ram Murat was locked
on 22.02.2002, whereas according to PW3 Ram Avtar the house would
have been locked on 23/24.02.2002. There is clearly a mismatch between
the testimonies of PW3 and PW4. In a case of ocular evidence, a
mismatch of this kind may not have had much significance but in a case
which rests entirely on circumstantial evidence and, that too, on the
category of evidence known as “last seen”, the dates and time are critical.
The reason being that the gap between the person being seen alive and his
dead body being discovered must not be such which could enable a
hypothesis that some other person could have intervened and committed
the murder. In the present case, we find that not only the dates when the
house of Ram Murat was found locked, do not match, there is also no
clarity with regard to the date on which the actual death took place.
There is, of course, no dispute with regard to the fact that the dead bodies
were discovered on 28.02.2002. If the deaths have taken place as per the
medical evidence on record, then Ram Murat and Chamki would have
died on 21/22.02.2002 which would mean that their bodies were
discovered 6/7 days later. If the incident with regard to locking of the
house is not clear, the time gap between the time of death and the time
when the bodies were discovered is too great to shut out any hypothesis
CRL. A. No.613/2009 Page 13 of 18
of any other person/persons committing the murder of Ram Murat and
Chamki.
21. Apart from this, we find that PW3 Ram Avtar and PW4 Insul
Master do not inspire much confidence because although they claim to be
tenants who had been living in that house for the last several years, they
have not been able to name any of the other tenants apart from each other.
In fact, PW4 Insul Master in his cross-examination could not say how
many persons were tenants in the said house and not even whether there
were 10, 15 or 20 tenants. This, despite the fact that the house concerned
is a small three storeyed building which has one toilet on the top floor
which was used by all the persons living in the said house, as per the
testimony of the said witness himself, and, this, when PW4 has clearly
stated that he has been living there for the past 5 or 6 years. Furthermore,
he did not even know who was living on the first floor. Thus, we are of
the view that the testimonies of PW3 and PW4 cannot be relied upon.
22. We now come to the question of motive. Motive is sought to be
established on the testimonies of PW13 Moidhar, who is the brother of
the deceased Ram Murat and PW7 Sanjay who is the son of the deceased
Ram Murat. If one were to examine their testimonies carefully, one
would find that they are at variance. While PW13 Moidhar brings up a
story of land grabbing, PW7 Sanjay suggests a story of sale of land
CRL. A. No.613/2009 Page 14 of 18
belonging to the appellants and, in particular, Shailesh Kumar. PW13
Moidhar has stated that the appellants had grabbed the land belonging to
Ram Murat and that they were demanding money for the release of the
said land and it is in this connection that the moneys were being paid by
Ram Murat to the appellants. On the other hand, PW7 Sanjay has stated
that Ram Murat had agreed to purchase the land belonging to the
appellants Shailesh Kumar and Alok Kumar and it is in this connection
that part payment was made in August, 2001 and the balance was to be
paid in February, 2002. We find it very strange that neither PW7 Sanjay
nor PW13 Moidhar have given the description of the land in question.
This is apart from the question that the stories of the two witnesses are
entirely different. Even the prosecution has not been able to produce any
evidence with regard to the description of the land, the extent of the land
and the location of the land nor has the ownership of the land been
established by the prosecution. This lacuna in the evidence is a very
significant one and cannot be ignored.
23. Apart from the fact that the particulars and description of the land
are not available and the fact that the testimonies of PW7 Sanjay and
PW13 Moidhar are at variance, there is another important reason as to
why the prosecution case with regard to motive cannot be believed. It has
been suggested that a payment of ` 1.35 lakhs was made in August, 2001.
CRL. A. No.613/2009 Page 15 of 18
To substantiate this, the prosecution has produced the pass book of
deceased Ram Murat which shows that two amounts of ` 1 lakh and
`30,000/- had been withdrawn by him on 20.07.2001 and 09.08.2001 and
therefore it is this sum of ` 1.3 lakhs which formed part of ` 1.35 lakhs
allegedly paid by Ram Murat to the appellants. There is no explanation
as to why the sum of ` 1 lakh and a further sum of ` 30,000/- would have
been withdrawn by Ram Murat 19 or 20 days earlier, when he knew that
he had to make a payment of ` 1.3 lakhs in 2001.
24. We also find that while the prosecution has tried to draw a
connection between the sum of ` 20,000/- deposited in the joint account
of the appellants on 26.02.2002 as well as Kissan Vikas Patras of
`50,000/- purchased on the same day and the alleged payment of
`80,000/- said to have been made by Ram Murat to the appellants
immediately prior to his death, there is no similar “investment/deposit”
made by the appellants when a larger sum of money, that is, ` 1.35 lakhs
is alleged to have been received by the appellants in August, 2001. We
also find from the testimony of DW1 that the deposit of ` 20,000/- and
the investment in Kissan Vikas Patras of ` 50,000/- could have been made
out of funds provided by DW1 (the mother of Shailesh Kumar and Alok
Kumar). DW2 the Post Master has also indicated that the appellants were
purchasing Kissan Vikas Patras from time to time and were maintaining a
CRL. A. No.613/2009 Page 16 of 18
Recurring Deposit Account for some time. Some of the earlier purchased
Kissan Vikas Patras have also been placed on record. Therefore, it
cannot be said definitely or with any degree of certainty that the Kissan
Vikas Patras purchased on 26.02.2002 and the deposit of ` 20,000/- on
that date in the joint account of the appellants Shailesh Kumar and Alok
Kumar had a clear link with the withdrawal of ` 80,000/- by Ram Murat
immediately prior to his death. Therefore, the question of motive is also
left hanging in the air inasmuch as the prosecution has not been able to
establish the same with any degree of conclusiveness.
25. Insofar as the recovery of the clothing articles at the instance of
appellant Sanjay are concerned, we do not find anything unusual about
them. As regards the recovery of the wire (Ex.P-6), we find that the
recovery is alleged to have been made on 04.03.2002 from the shelf of
the same room from which the dead bodies were recovered. This is not
believable because when the dead bodies were discovered, the crime team
had been called. They had examined the entire room and even chance
prints were attempted to be taken from various articles. It is not
believable that the wire would have been missed out. Therefore, we
cannot draw any adverse inference against the appellants insofar as this
alleged recovery is concerned.
CRL. A. No.613/2009 Page 17 of 18
26. In view of the foregoing circumstances, we find that the
prosecution had not been able to establish its case beyond reasonable
doubt. Giving the benefit of doubt to the appellants, their appeal is
allowed and they are acquitted of all charges. The order of sentence is set
aside and they are directed to be released forthwith.
The appeal stands allowed as above.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
JULY 13, 2011
srb
CRL. A. No.613/2009 Page 18 of 18