{"id":152312,"date":"2011-07-13T00:00:00","date_gmt":"2011-07-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shailesh-kumar-ors-vs-state-on-13-july-2011"},"modified":"2016-04-08T04:07:19","modified_gmt":"2016-04-07T22:37:19","slug":"shailesh-kumar-ors-vs-state-on-13-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shailesh-kumar-ors-vs-state-on-13-july-2011","title":{"rendered":"Shailesh Kumar & Ors vs State on 13 July, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Shailesh Kumar & Ors vs State on 13 July, 2011<\/div>\n
Author: Badar Durrez Ahmed<\/div>\n
            THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                                  Judgment delivered on: July 13th , 2011\n\n+           CRL.A. 613\/2009\n\n\nSHAILESH KUMAR & ORS                                   ...       Appellant\n\n                      versus\n\nSTATE                                                 ...      Respondent<\/pre>\n
Advocates who appeared in this case:\n<\/p>\n
 For the Appellant:   Mr Abhay Singh along with Ms Yasmin Zafar<\/p>\n
For the Respondent:   Ms Richa Kapur, Addl. Standing Counsel<\/p>\n
CORAM:-\n<\/p>\n
HON’BLE MR JUSTICE BADAR DURREZ AHMED
\nHON’BLE MS JUSTICE VEENA BIRBAL<\/p>\n
     1.    Whether Reporters of local papers may be allowed to
\n           see the judgment ?   Yes<\/p>\n
     2.    To be referred to the Reporter or not?      Yes<\/p>\n
     3.    Whether the judgment should be reported in Digest? Yes<\/p>\n
BADAR DURREZ AHMED, J (ORAL)<\/p>\n
1.     The appellants Shailesh Kumar, Santosh and Alok Kumar are<\/p>\n
aggrieved by the judgment dated 26.05.2009 passed by the learned<\/p>\n
Additional Sessions Judge, Delhi, in sessions case no.72\/2008 whereby<\/p>\n
they have been convicted under Section 120-B, Section 302 read with<\/p>\n
CRL. A. No.613\/2009                                               Page 1 of 18<\/span>
\n Section 120B and Section 201 read with Section 120B IPC. The said<\/p>\n
case arose out of FIR No. 168\/2002 registered at Police Station Sarasvati<\/p>\n
Vihar.\n<\/p>\n
2.       The appellants are also aggrieved by the order on sentence dated<\/p>\n
28.05.2009 whereby the learned Additional Sessions Judge, Rohini<\/p>\n
Courts, Delhi, sentenced the appellants to rigorous imprisonment for life<\/p>\n
insofar as the offence under Section 120B IPC is concerned along with a<\/p>\n
fine of ` 5000\/- each. The appellants were also sentenced to rigorous<\/p>\n
imprisonment for life with a fine of ` 5000\/- each in respect of the<\/p>\n
offence punishable under Section 302 read with Section 120B IPC.<\/p>\n
Finally, the appellants were also sentenced to rigorous imprisonment for<\/p>\n
seven years and a fine of ` 1000\/- each in respect of the offence under<\/p>\n
Section 201 read with Section 120B IPC. All the sentences were directed<\/p>\n
to run concurrently.\n<\/p>\n
3.       In this case, a double murder of a father and son, namely, Ram<\/p>\n
Murat aged about 50 years and his son Chamki, aged about 15-16 years<\/p>\n
has been committed. The appellants have been convicted for the same as<\/p>\n
mentioned above.\n<\/p>\n
4.       It is through DD No.8A dated 28.02.2002 (Ex.PW1\/G) that<\/p>\n
information was received at Police Station Sarasvati Vihar, Delhi, at<\/p>\n
about 9.45 am, that house no.A-151\/152 J.J. Colony, Shakurpur, Delhi<\/p>\n
CRL. A. No.613\/2009                                          Page 2 of 18<\/span>
\n has been locked and that a foul smell is emanating from it. Thereupon,<\/p>\n
Inspector Jag Ram Singh along with SI Surjit Singh went to the spot. As<\/p>\n
per the ruqqa (Ex.PW17\/A), at the spot, SI Surjit Singh also met the SHO<\/p>\n
and the Additional SHO and Constable Bharat Kumar and thereupon a<\/p>\n
hammer was taken out from the investigating officer\u201fs kit and the lock of<\/p>\n
the house\/room was broken. It was discovered that there were two rooms<\/p>\n
on the ground floor of the said house. In the rear room, there was an iron<\/p>\n
trunk from which the foul smell was emanating. Beneath the trunk there<\/p>\n
appeared to be leakage of a blood like liquid which had since dried up.<\/p>\n
When the trunk was opened, it was found that it contained a quilt and two<\/p>\n
highly decomposed dead bodies of males. These bodies were later on<\/p>\n
identified as that of Ram Murat and his son Chamki. No eye-witness was<\/p>\n
present at the spot.       It is on the basis of the ruqqa that the FIR<\/p>\n
(Ex.PW1\/A) was registered.\n<\/p>\n
5.     The investigating officer called the crime team and the<\/p>\n
photographer.         The fingerprint expert PW-10 SI Subhash Chand<\/p>\n
examined the scene of crime but as per his report Ex.PW-10\/A no chance<\/p>\n
prints could be developed from any of the articles. The photographer,<\/p>\n
Constable Chunni Lal was the person who took the photographs which<\/p>\n
are Ex. PW11\/13 to 24 and the negatives of the said photographs are<\/p>\n
Ex.PW11\/1 to 12. The broken lock (Ex.P-1) the iron trunk (Ex.P-2) the<\/p>\n
CRL. A. No.613\/2009                                          Page 3 of 18<\/span>
\n quilt (Ex.P-3) and two dumb-bells (Ex.P-4\/1 and Ex.P-4\/2) along with<\/p>\n
samples of the blood on the floor were taken in the possession and were<\/p>\n
sealed with the seal of J.S.\n<\/p>\n
6.     It is the case of the prosecution that suspicion arose in respect of<\/p>\n
the appellants in view of the statements given by PW-3 Ram Avtar and<\/p>\n
PW-4 Insul Master who were tenants of the deceased Ram Murat in the<\/p>\n
said house. As per the statement of PW-4 Insul Master, suspicion was<\/p>\n
raised on Guddu (which is an alias of appellant Shailesh Kumar). It was<\/p>\n
suggested that deceased Ram Murat was seen in the company of the said<\/p>\n
Guddu and 2\/3 persons.         On the basis of the said statements, the<\/p>\n
appellants were arrested and thereupon their disclosure statements were<\/p>\n
recorded.\n<\/p>\n
7.     Thereafter, the investigation was completed and the charge-sheet<\/p>\n
was filed and the charges, as mentioned above, were framed against the<\/p>\n
appellants. In the course of trial, the prosecution examined as many as 31<\/p>\n
witnesses and the defence also examined two witnesses. The statements<\/p>\n
of the accused were recorded under Section 313 Cr.P.C. After arguments<\/p>\n
were advanced by the counsel for the parties, the learned Additional<\/p>\n
Sessions Judge delivered the impugned judgment and passed the<\/p>\n
impugned order on sentence.\n<\/p>\n
CRL. A. No.613\/2009                                           Page 4 of 18<\/span>\n<\/p>\n
 8.     The learned counsel for the appellant submitted that the entire case<\/p>\n
of the prosecution rests on three aspects, they being – (1) motive; (2) last<\/p>\n
seen evidence; (3) recoveries. Insofar as the motive is concerned, the<\/p>\n
learned counsel for the appellant submitted that the case of the<\/p>\n
prosecution is that the deceased Ram Murat was to purchase agricultural<\/p>\n
land in the village Pagore, District Basti, U.P., which apparently belonged<\/p>\n
to Shailesh Kumar and his brother Alok Kumar. It was suggested by the<\/p>\n
prosecution that Shailesh Kumar had agreed to sell the said land in the<\/p>\n
village to Ram Murat who was working in Delhi as a contractor.           Part<\/p>\n
payment (` 1.35 lakhs) had been made some time in August, 2001 and the<\/p>\n
remainder was to be made in February, 2002 and it is for this purpose that<\/p>\n
Shailesh Kumar and other appellants had come to Delhi to receive the<\/p>\n
balance. It was contended that as per the prosecution, the appellants took<\/p>\n
a sum of ` 80,000\/- representing a part of the balance amount from Ram<\/p>\n
Murat and did not execute any sale deed as their intention had turned<\/p>\n
dishonest. They killed Ram Murat and his son Chamki in the said room<\/p>\n
in the house itself with the dumb-bells Ex.P-4\/1 and P-4\/2 and a piece of<\/p>\n
wire Ex.P-6. The learned counsel for the appellants submitted that while<\/p>\n
this is the case of prosecution, insofar as the motive is concerned, the<\/p>\n
prosecution has not been able to establish the same by means of any<\/p>\n
cogent evidence inasmuch as there is no documentary evidence with<\/p>\n
CRL. A. No.613\/2009                                           Page 5 of 18<\/span>
\n regard to the agreement which is alleged to have taken place between<\/p>\n
Shailesh Kumar on the one hand and deceased Ram Murat on the other.<\/p>\n
There is no evidence of any receipt indicating that the appellants had<\/p>\n
received the amount of ` 1.35 lakhs or the amount of ` 80,000\/- as<\/p>\n
alleged. In fact, according to the learned counsel for the appellant, the<\/p>\n
most crucial point is that there is no evidence on record to establish or<\/p>\n
indicate that the appellant Shailesh Kumar or his brother Alok owned any<\/p>\n
land in the said village.\n<\/p>\n
9.     It was further contended by the learned counsel for the appellants<\/p>\n
that the passbook entries of Shailesh Kumar and Alok Kumar of their<\/p>\n
joint account do show a deposit of ` 20,000\/- on 26.02.2002 but there is<\/p>\n
no evidence to connect this money as being the money allegedly received<\/p>\n
from the deceased Ram Murat. He also submitted that Kissan Vikas<\/p>\n
Patras to the extent of ` 50,000\/- were also purchased on the same day but<\/p>\n
once again there is nothing to connect the purchase of these Kissan Vikas<\/p>\n
Patras with the money allegedly received from deceased Ram Murat. The<\/p>\n
learned counsel for the appellants contended that the purchase of the<\/p>\n
Kissan Vikas Patras was nothing unusual inasmuch as the defence<\/p>\n
witness DW-2 Ikram Hussain, who is the Post Master, has stated that on<\/p>\n
several earlier occasions also the said appellants had been purchasing<\/p>\n
CRL. A. No.613\/2009                                          Page 6 of 18<\/span>
\n Kissan Vikas Patras on different dates and were also maintaining a<\/p>\n
recurring deposit account.\n<\/p>\n
10.    With regard to the \u201elast seen\u201f evidence, the learned counsel for the<\/p>\n
appellant contended that the entire case of the prosecution rests on the<\/p>\n
testimonies of PW-3 Ram Avtar and PW-4 Insul Master. He submitted<\/p>\n
that it is a noteable fact that PW-6 Smt. Malti, who is the wife of PW-3<\/p>\n
Ram Avtar, did not support the prosecution case and was declared hostile.<\/p>\n
PW-6 Smt. Malti and PW-3 Ram Avtar, allegedly resided in the same<\/p>\n
premises as tenants. He further contended that the testimonies of PW-3<\/p>\n
Ram Avtar and PW-4 Insul Master did not inspire much confidence and it<\/p>\n
cannot even be concluded with certainty as to whether PW-3 Ram Avtar<\/p>\n
and PW-4 Insul Master were tenants or residents of the said house at all<\/p>\n
inasmuch as they were unable to give the name of any other tenant in the<\/p>\n
said house apart from giving the names of each other, although they had<\/p>\n
claimed to have been living there for a number of years. It is further<\/p>\n
contended by the learned counsel for the appellants that the testimonies of<\/p>\n
PW-3 Ram Avtar and PW-4 Insul Master are at variance insofar as the<\/p>\n
evidence with regard to “last seen” is concerned.\n<\/p>\n
11.    With regard to the alleged recoveries, the learned counsel for the<\/p>\n
appellant submitted, as already pointed out above, that the Kissan Vikas<\/p>\n
Patras, which were in the name of Shailesh Kumar and Alok Kumar, who<\/p>\n
CRL. A. No.613\/2009                                           Page 7 of 18<\/span>
\n are brothers, were nothing unusual and could not be linked up with the<\/p>\n
alleged transfer of money from Ram Murat to the appellants. Insofar as<\/p>\n
the recovery of three sarees, two pant pieces and two shirt pieces and two<\/p>\n
pairs of sandles from the appellant Santosh is concerned, the learned<\/p>\n
counsel submitted that there was nothing abnormal about this. He stated<\/p>\n
that Santosh was an employee of the other two appellants, who were<\/p>\n
running a welding shop in the said village and that these were personal<\/p>\n
items which could not be connected with any alleged receipt of money<\/p>\n
from the deceased Ram Murat.\n<\/p>\n
12.    The learned counsel for the appellant also submitted that even the<\/p>\n
funds for the purchase of Kissan Vikas Patras as well as deposit of<\/p>\n
` 20,000\/- in February, 2002 stands explained by the deposition of DW-1<\/p>\n
Smt. Kaushalya Devi, who is the mother of appellants Shailesh Kumar<\/p>\n
and Alok Kumar, wherein she has stated that her husband has sold some<\/p>\n
lands by virtue of three sale deeds which are Ex.DW1\/B, 1\/C and 1\/D,<\/p>\n
whereupon she had received certain funds and part of it had been given to<\/p>\n
her sons Shailesh Kumar and Alok Kumar.\n<\/p>\n
13.    Ms Richa Kapoor, appearing on behalf of the State, supported the<\/p>\n
judgment and order on sentence passed by the learned Additional<\/p>\n
Sessions Judge. She submitted that insofar as the motive is concerned,<\/p>\n
the withdrawals from the bank account of the deceased Ram Murat do<\/p>\n
CRL. A. No.613\/2009                                          Page 8 of 18<\/span>
\n indicate that a sum of ` 1.30 lakhs had been withdrawn in July\/August<\/p>\n
2001. It also indicates that an amount of ` 80,000\/- had been withdrawn<\/p>\n
by the deceased Ram Murat on 21.02.2002 and it is out of this sum of<\/p>\n
`80,000\/- that, according to her, a sum of ` 10,000\/- was given to the<\/p>\n
appellant Santosh with which he purchased the articles mentioned above<\/p>\n
and a sum of ` 70,000\/- was retained by the appellants Shailesh Kumar<\/p>\n
and Alok Kumar, who deposited ` 20,000\/- out of that in their joint<\/p>\n
account in the post office and purchased Kissan Vikas Patra of the<\/p>\n
balance ` 50,000\/- in joint names. This, according to the learned counsel<\/p>\n
for the State is clinching evidence and cannot be regarded as a mere<\/p>\n
coincidence.\n<\/p>\n
14.    Insofar as the evidence that deceased Ram Murat was last seen<\/p>\n
alive in the company of the appellants, she submitted that the testimonies<\/p>\n
of PW-3 Ram Avtar and PW-4 Insul Master have clearly established the<\/p>\n
said fact. She submitted that the name of Guddu, which is an alias of<\/p>\n
Shailesh Kumar, was disclosed by PW-4 Insul Master in the first instance<\/p>\n
after the discovery of the dead body. She submitted that though there<\/p>\n
may be some approximation with regard to the date of the incident, but<\/p>\n
the testimonies of PW-3 Ram Avtar and PW-4 Insul Master corroborate<\/p>\n
each other and do indicate that it is in the company of the appellants that<\/p>\n
the deceased Ram Murat was last seen alive. Ms Richa Kapoor also<\/p>\n
CRL. A. No.613\/2009                                           Page 9 of 18<\/span>
\n points out that the wire Ex. P-6 was also recovered at the instance of the<\/p>\n
appellant Shailesh Kumar and Santosh Kumar.\n<\/p>\n
15.    It was, therefore, contended by the learned counsel for the State<\/p>\n
that the circumstances which are established on record, form a complete<\/p>\n
chain and that the learned Additional Sessions Judge has rightly<\/p>\n
concluded that the appellants were guilty of the offences they were<\/p>\n
charged with and they had been correctly sentenced.<\/p>\n
16.    Before we take up the case of the prosecution with regard to<\/p>\n
motive, it would be necessary to fix the time of death of the deceased<\/p>\n
Ram Murat and his son Chamki. As per PW5 Dr. Akash Jhanjee, who<\/p>\n
conducted the post mortem examination on the dead body of Ram Murat,<\/p>\n
the said Ram Murat died of asphyxia which was a result of the combined<\/p>\n
effect of gagging and throttling. He was also injured by a very hard blunt<\/p>\n
object and a bed sheet had been stuffed into his mouth. The said doctor<\/p>\n
opined that the time since death was about 10-11 days prior to the date of<\/p>\n
the post mortem examination which was conducted on 04.03.2002. This<\/p>\n
would mean that Ram Murat died on 21\/22.02.2002. PW23 Dr. Sarvesh<\/p>\n
Tandon is the doctor who conducted the post mortem examination on the<\/p>\n
deceased Chamki. He was also of the opinion that Chamki died due to<\/p>\n
asphyxia consequent upon ante-mortem throttling and that the time since<\/p>\n
death was 10\/11 days.        Since the post-mortem examination was<\/p>\n
CRL. A. No.613\/2009                                          Page 10 of 18<\/span>
\n conducted on 04.03.2002, the date of death of the said Chamki would<\/p>\n
also be on 21\/22.02.2002. Thus, the opinions of both the doctors match<\/p>\n
on this aspect of the matter.\n<\/p>\n
17.    It is an admitted case that the dead bodies were found on<\/p>\n
28.02.2002. This would mean that the dead bodies were discovered after<\/p>\n
6-7 days of the deaths of Ram Murat and Chamki.\n<\/p>\n
18.    We now need to examine the testimonies of PW3 Ram Avtar and<\/p>\n
PW4 Insul Master with regard to their claim of being witnesses to the fact<\/p>\n
that they had last seen the deceased Ram Murat alive in the company of<\/p>\n
the appellants. As per PW3 Ram Avtar, “one day” at about “10 p.m.”, he<\/p>\n
had seen the accused in the company of Ram Murat when Ram Murat<\/p>\n
told him (PW3 Ram Avtar) that the accused persons had come from his<\/p>\n
village and that he had to give some money to them. As pointed out by<\/p>\n
the learned counsel for the appellant, from the cross-examination of this<\/p>\n
witness it is clear that the time of “10 p.m.” had not been mentioned by<\/p>\n
PW3 Ram Avtar in his statement under Section 161 Cr.P.C. (Ex.<\/p>\n
PW3\/DA) and that the introduction of the time of 10 p.m. was an<\/p>\n
improvement. Furthermore, we also note that PW3 Ram Avtar has not<\/p>\n
given any date as to when he saw the deceased Ram Murat in the<\/p>\n
company of the appellants. He merely mentioned – “one day”. However,<\/p>\n
PW3 stated that the next morning he found Ram Murat\u201fs house locked.<\/p>\n
CRL. A. No.613\/2009                                          Page 11 of 18<\/span>
\n This statement was also not there in the statement under Section 161<\/p>\n
Cr.P.C. and is also an improvement. PW3 Ram Avtar further stated that<\/p>\n
after about 4\/5 days, a bad smell was emanating from the said house and<\/p>\n
thereupon the police was called and the dead bodies were recovered. If<\/p>\n
we take the statement of PW3 Ram Avtar at face value, this would mean<\/p>\n
that 4\/5 days prior to the discovery of the dead bodies, which were<\/p>\n
admittedly recovered on 28.02.2002, the house of Ram Murat was found<\/p>\n
locked. In other words, the house would have been found locked either<\/p>\n
on 23rd or 24th of February, 2002. Since this witness has stated that one<\/p>\n
day prior to the house being locked he had last seen Ram Murat alive in<\/p>\n
the company of the appellants, the date on which that would have<\/p>\n
happened would be either 22.02.2002 or 23.02.2002.<\/p>\n
19.    We now come to the testimony of PW4 Insul Master. He stated<\/p>\n
that 3\/4 days prior to Id, Guddu i.e., appellant Shailesh had come to meet<\/p>\n
Ram Murat which would mean that appellant Shailesh met Ram Murat on<\/p>\n
19\/20.02.2002. PW4 Insul Master further stated that he saw a lock on the<\/p>\n
house of Ram Murat one day prior to Id. It has been ascertained by the<\/p>\n
trial court as well as by us that in the year 2002, Id-ul-Zuha had taken<\/p>\n
place on the 23.02.2002, which was also a Saturday. This means that if<\/p>\n
PW4 Insul Master is to be believed, the house of Ram Murat was locked<\/p>\n
one day prior to Id i.e., on 22.02.2002.\n<\/p>\n
\nCRL. A. No.613\/2009                                          Page 12 of 18<\/span>\n<\/p>\n
 20.    Thus, we find that as per PW4, the house of Ram Murat was locked<\/p>\n
on 22.02.2002, whereas according to PW3 Ram Avtar the house would<\/p>\n
have been locked on 23\/24.02.2002. There is clearly a mismatch between<\/p>\n
the testimonies of PW3 and PW4.         In a case of ocular evidence, a<\/p>\n
mismatch of this kind may not have had much significance but in a case<\/p>\n
which rests entirely on circumstantial evidence and, that too, on the<\/p>\n
category of evidence known as “last seen”, the dates and time are critical.<\/p>\n
The reason being that the gap between the person being seen alive and his<\/p>\n
dead body being discovered must not be such which could enable a<\/p>\n
hypothesis that some other person could have intervened and committed<\/p>\n
the murder. In the present case, we find that not only the dates when the<\/p>\n
house of Ram Murat was found locked, do not match, there is also no<\/p>\n
clarity with regard to the date on which the actual death took place.<\/p>\n
There is, of course, no dispute with regard to the fact that the dead bodies<\/p>\n
were discovered on 28.02.2002. If the deaths have taken place as per the<\/p>\n
medical evidence on record, then Ram Murat and Chamki would have<\/p>\n
died on 21\/22.02.2002 which would mean that their bodies were<\/p>\n
discovered 6\/7 days later. If the incident with regard to locking of the<\/p>\n
house is not clear, the time gap between the time of death and the time<\/p>\n
when the bodies were discovered is too great to shut out any hypothesis<\/p>\n
CRL. A. No.613\/2009                                           Page 13 of 18<\/span>
\n of any other person\/persons committing the murder of Ram Murat and<\/p>\n
Chamki.\n<\/p>\n
21.    Apart from this, we find that PW3 Ram Avtar and PW4 Insul<\/p>\n
Master do not inspire much confidence because although they claim to be<\/p>\n
tenants who had been living in that house for the last several years, they<\/p>\n
have not been able to name any of the other tenants apart from each other.<\/p>\n
In fact, PW4 Insul Master in his cross-examination could not say how<\/p>\n
many persons were tenants in the said house and not even whether there<\/p>\n
were 10, 15 or 20 tenants. This, despite the fact that the house concerned<\/p>\n
is a small three storeyed building which has one toilet on the top floor<\/p>\n
which was used by all the persons living in the said house, as per the<\/p>\n
testimony of the said witness himself, and, this, when PW4 has clearly<\/p>\n
stated that he has been living there for the past 5 or 6 years. Furthermore,<\/p>\n
he did not even know who was living on the first floor. Thus, we are of<\/p>\n
the view that the testimonies of PW3 and PW4 cannot be relied upon.<\/p>\n
22.    We now come to the question of motive. Motive is sought to be<\/p>\n
established on the testimonies of PW13 Moidhar, who is the brother of<\/p>\n
the deceased Ram Murat and PW7 Sanjay who is the son of the deceased<\/p>\n
Ram Murat. If one were to examine their testimonies carefully, one<\/p>\n
would find that they are at variance. While PW13 Moidhar brings up a<\/p>\n
story of land grabbing, PW7 Sanjay suggests a story of sale of land<\/p>\n
CRL. A. No.613\/2009                                           Page 14 of 18<\/span>
\n belonging to the appellants and, in particular, Shailesh Kumar. PW13<\/p>\n
Moidhar has stated that the appellants had grabbed the land belonging to<\/p>\n
Ram Murat and that they were demanding money for the release of the<\/p>\n
said land and it is in this connection that the moneys were being paid by<\/p>\n
Ram Murat to the appellants. On the other hand, PW7 Sanjay has stated<\/p>\n
that Ram Murat had agreed to purchase the land belonging to the<\/p>\n
appellants Shailesh Kumar and Alok Kumar and it is in this connection<\/p>\n
that part payment was made in August, 2001 and the balance was to be<\/p>\n
paid in February, 2002. We find it very strange that neither PW7 Sanjay<\/p>\n
nor PW13 Moidhar have given the description of the land in question.<\/p>\n
This is apart from the question that the stories of the two witnesses are<\/p>\n
entirely different. Even the prosecution has not been able to produce any<\/p>\n
evidence with regard to the description of the land, the extent of the land<\/p>\n
and the location of the land nor has the ownership of the land been<\/p>\n
established by the prosecution. This lacuna in the evidence is a very<\/p>\n
significant one and cannot be ignored.\n<\/p>\n
23.    Apart from the fact that the particulars and description of the land<\/p>\n
are not available and the fact that the testimonies of PW7 Sanjay and<\/p>\n
PW13 Moidhar are at variance, there is another important reason as to<\/p>\n
why the prosecution case with regard to motive cannot be believed. It has<\/p>\n
been suggested that a payment of ` 1.35 lakhs was made in August, 2001.<\/p>\n
CRL. A. No.613\/2009                                           Page 15 of 18<\/span>
\n To substantiate this, the prosecution has produced the pass book of<\/p>\n
deceased Ram Murat which shows that two amounts of ` 1 lakh and<\/p>\n
`30,000\/- had been withdrawn by him on 20.07.2001 and 09.08.2001 and<\/p>\n
therefore it is this sum of ` 1.3 lakhs which formed part of ` 1.35 lakhs<\/p>\n
allegedly paid by Ram Murat to the appellants. There is no explanation<\/p>\n
as to why the sum of ` 1 lakh and a further sum of ` 30,000\/- would have<\/p>\n
been withdrawn by Ram Murat 19 or 20 days earlier, when he knew that<\/p>\n
he had to make a payment of ` 1.3 lakhs in 2001.\n<\/p>\n
24.    We also find that while the prosecution has tried to draw a<\/p>\n
connection between the sum of ` 20,000\/- deposited in the joint account<\/p>\n
of the appellants on 26.02.2002 as well as Kissan Vikas Patras of<\/p>\n
`50,000\/- purchased on the same day and the alleged payment of<\/p>\n
`80,000\/- said to have been made by Ram Murat to the appellants<\/p>\n
immediately prior to his death, there is no similar “investment\/deposit”<\/p>\n
made by the appellants when a larger sum of money, that is, ` 1.35 lakhs<\/p>\n
is alleged to have been received by the appellants in August, 2001. We<\/p>\n
also find from the testimony of DW1 that the deposit of ` 20,000\/- and<\/p>\n
the investment in Kissan Vikas Patras of ` 50,000\/- could have been made<\/p>\n
out of funds provided by DW1 (the mother of Shailesh Kumar and Alok<\/p>\n
Kumar). DW2 the Post Master has also indicated that the appellants were<\/p>\n
purchasing Kissan Vikas Patras from time to time and were maintaining a<\/p>\n
CRL. A. No.613\/2009                                         Page 16 of 18<\/span>
\n Recurring Deposit Account for some time. Some of the earlier purchased<\/p>\n
Kissan Vikas Patras have also been placed on record.         Therefore, it<\/p>\n
cannot be said definitely or with any degree of certainty that the Kissan<\/p>\n
Vikas Patras purchased on 26.02.2002 and the deposit of ` 20,000\/- on<\/p>\n
that date in the joint account of the appellants Shailesh Kumar and Alok<\/p>\n
Kumar had a clear link with the withdrawal of ` 80,000\/- by Ram Murat<\/p>\n
immediately prior to his death. Therefore, the question of motive is also<\/p>\n
left hanging in the air inasmuch as the prosecution has not been able to<\/p>\n
establish the same with any degree of conclusiveness.<\/p>\n
25.     Insofar as the recovery of the clothing articles at the instance of<\/p>\n
appellant Sanjay are concerned, we do not find anything unusual about<\/p>\n
them. As regards the recovery of the wire (Ex.P-6), we find that the<\/p>\n
recovery is alleged to have been made on 04.03.2002 from the shelf of<\/p>\n
the same room from which the dead bodies were recovered. This is not<\/p>\n
believable because when the dead bodies were discovered, the crime team<\/p>\n
had been called. They had examined the entire room and even chance<\/p>\n
prints were attempted to be taken from various articles.          It is not<\/p>\n
believable that the wire would have been missed out. Therefore, we<\/p>\n
cannot draw any adverse inference against the appellants insofar as this<\/p>\n
alleged recovery is concerned.\n<\/p>\n
CRL. A. No.613\/2009                                           Page 17 of 18<\/span>\n<\/p>\n
 26.    In view of the foregoing circumstances, we find that the<\/p>\n
prosecution had not been able to establish its case beyond reasonable<\/p>\n
doubt. Giving the benefit of doubt to the appellants, their appeal is<\/p>\n
allowed and they are acquitted of all charges. The order of sentence is set<\/p>\n
aside and they are directed to be released forthwith.<\/p>\n
       The appeal stands allowed as above.\n<\/p>\n<\/p>\n
                                  BADAR DURREZ AHMED, J<\/p>\n
                                        VEENA BIRBAL, J<\/p>\n
JULY 13, 2011
\nsrb<\/p>\n
CRL. A. No.613\/2009                                           Page 18 of 18<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Shailesh Kumar & Ors vs State on 13 July, 2011 Author: Badar Durrez Ahmed 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-152312","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nShailesh Kumar & Ors vs State on 13 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shailesh-kumar-ors-vs-state-on-13-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shailesh Kumar & Ors vs State on 13 July, 2011 - 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