SHAILESH @ RINKUVs STATE

,,,,

Dr. S. Muralidhar, J.:",,,,

Introduction,,,,

1.This appeal is directed against a judgment dated 20th May 2013 passed by the learned Additional Sessions Judge (ASJ),D warka Courts in Sessions",,,,

Case No.15/2013 arising out of FIR No.296/2011 registered at Police Station („PS‟) Dabri, convicting the Appellant for the offences under Sections",,,,

411/392/397/302/201 Indian Penal Code („IPC‟).,,,,

2.This appeal is also directed against the order on sentence dated 28th May 2013 passed by the learned ASJ whereby:,,,,

(i)Fr the offence under Section 302 IPC, the Appellant was sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/- and in default of",,,,

payment of fine, to undergo simple imprisonment for six months;",,,,

(ii)For the offence under Section 392 IPC, the Appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-",,,,

and in default of payment of fine, to further undergo simple imprisonment for two months;",,,,

(iii)For the offence under Section 397 IPC, the Appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of",,,,

Rs.2,000/- and in default of payment of fine, to further undergo simple imprisonment for one month;",,,,

(iv)For the offence under Section 411 IPC, the Appellant was sentenced to undergo rigorous imprisonment for three years and to pay fine of",,,,

Rs.2,000/- and in default of payment of fine, to further undergo simple imprisonment for one month;",,,,

(v)For the offence under Section 201 IPC, the Appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of",,,,

Rs.3,000/- and in default of payment of fine, to further undergo simple imprisonment for two months,",,,,

(vi)For the offence under Section 27 Arms Act, the Appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of",,,,

Rs.3,000/- and in default of payment of fine, to further undergo simple imprisonment for two months.",,,,

All the sentences were directed to run concurrently.,,,,

The charges,,,,

4.The Appellant was charged with:,,,,

(i)robbing the deceased Smt. Meena Mehra on 31st August 2011 at an unknown time at her house on Som Bazar Road, Jeewan Park, New Delhi of",,,,

Rs.40,000/- in cash and one gold locket and,",,,,

(ii)while committing the robbery, using a deadly weapon thereby committing an offence under Section 397 read with Section 392 IPC;",,,,

(iii)committing her murder by stabbing her in the neck thereby committing an offence punishable under Section 302 IPC;,,,,

(iv)throwing the knife into heap of garbage lying alongside the ganda nala behind Jeewan Park Bus Stand and also setting fire to his own blood stained,,,,

clothes thereby committing an offence punishable under Section 201 IPC;,,,,

(v)being found in possession of Rs.6,340/- in cash and retaining it having reason to believe that it was stolen property belonging to the complainant,",,,,

Mahender Mehra (PW-4), thereby committing an offence under Section 411 IPC; and",,,,

(vi)getting recovered on 15th September 2011, the knife used in the commission of the offence, thereby committing an offence punishable under",,,,

Sections 25/27/54/59 Arms Act.,,,,

Complainant’s narration of events,,,,

5.Mr. Mahender Mehra (PW-4) was a property dealer running a business under the name and style of „M/s. Mehra Properties‟ at RZ-73, Raghu",,,,

Nagar, Pankha Road, Delhi. The parents of the Appellant were tenants of PW-4 in his house adjoining his office at RZ-74, Raghu Nagar,P ankha",,,,

Road. Initially, the Appellant was staying with his parents in the said house but later on separated from his parents.",,,,

6.According to PW-4, about seven to eight days before the date of the incident, i.e. on 31st August 2011, the Appellant called PW-4 on his mobile",,,,

phone number 9136290363 („0363‟) when PW-4 was present in his house. According to PW-4, he told the Appellant that he (PW-4) was at home",,,,

and would be coming to the office. It is stated that as PW-4 reached his office, the Appellant, in the meanwhile, had reached the house of PW-4.",,,,

When PW4 returned home for lunch, his wife (the deceased) told PW-4 that the Appellant had come to the house and asked for water. After drinking",,,,

water, the Appellant had left.",,,,

7.According to PW-4, at around 11:06 am on 31st August 2011, the Appellant again called PW-4 on his mobile phone and asked him whether he was",,,,

coming to the office. PW-4 then said that he would be coming to the office soon after having his breakfast. PW-4 reached the office but did not find,,,,

the Appellant. When PW-4 called the Appellant on his mobile phone, the Appellant told him that he would be coming to the office soon. When he had",,,,

not yet arrived even half an hour thereafter, PW-4 called him again and the Appellant told him that he would be arriving soon. This was repeated",,,,

another two or three times. Ultimately, according to PW-4, the Appellant reached the office of PW-4 at 1:30 pm. According to PW-4, the Appellant",,,,

appeared to be in a frightened state as if he had come running from somewhere. When asked, the Appellant told PW-4 that he had come from",,,,

Sagarpur. The Appellant spoke to someone on his mobile phone and told PW-4 that his grandfather had fallen very ill and therefore, he had to go to his",,,,

village immediately. He then left the office.,,,,

8.Half an hour thereafter, PW-4 left for home for lunch. When he reached his house at around 2:20 pm and rang the door bell, his wife did not come",,,,

to open the door as she usually did. When he went upstairs, he found that his wife was lying on the centre table and her head was on the sofa set",,,,

nearby. She was bleeding from the throat as well as mouth. PW-4 then cried „khoon khoon‟. He states that his hands were trembling to such an,,,,

extent that he could not hold his mobile phone in his hands.,,,,

9.PW-4 first called Mr. Kamal Bassi, a leader of the Bharatiya Janata Party who resided nearby. PW-4 claims that he thereafter called the police",,,,

control room („PCR‟) on number 100. The PCR van reached the house at 2:45 pm on 31st August 2011. The local police also reached there and,,,,

made inquiries.,,,,

Inspection of the scene of crime,,,,

10.As far as the police were concerned, the original PCR form was unable to be produced before the trial Court. However, the extract of the DD",,,,

entry register (Ex.PW-9/A) reflected that a call was received at 2:25 pm from the address of PW-4 and from mobile number ending in 0363 stating,,,,

that his wife had been murdered. Head Constable („HC‟) Jagdish Prasad (PW-9) attached to PS Dabri received the said information from the,,,,

wireless operator and reduced it in writing as DD No.27A. The said DD was handed over to Constable (Ct.)S urender Kumar (PW-13) who in turn,,,,

handed it over to Inspector Sita Ram Kumawat (PW-18).,,,,

11.PW-18 then proceeded to the spot along with PW-13 and found around five to seven people present on the third floor. The deceased was lying,,,,

with her head on the sofa and legs as well as feet on a nearby table. Blood had been scattered on the floor. A message was sent to the crime team.,,,,

Inspector Ram Kishan Yadav (PW-22) posted as SHO at PS Dabri had also reached the spot. The police noticed that there were injury marks on the,,,,

throat of the deceased. There was blood on the centre table and on the sofa and the floor. Some drops of blood were also near the kitchen door. The,,,,

almirah in the bedroom was open and its articles were lying scattered in the room. The main door of the flat was open and so were the doors of all the,,,,

rooms.,,,,

12.The crime team inspected the spot and photographed it from various angles and thereafter, the dead body was sent to DDU Hospital through Ct.",,,,

Surender (PW-13). The statement of PW-4 was recorded (Ex.PW-4/A) and on that basis ar ukka was prepared and sent to the police station through,,,,

HC Ramesh Kumar (PW-14) for registration of the FIR.,,,,

Post-mortem examination,,,,

13.The post-mortem of the deceased was performed by Dr. Santosh Kumar (PW-11). The cause of death was noted to be haemorrhagic shock,,,,

caused by tearing of large blood vessels of the neck consequent upon stab injury by a sharp edged pointed weapon. The external injury no.1, namely",,,,

the knife wound on the neck, was opined to be sufficient in the ordinary course of nature to cause death. There were four external injuries. Apart",,,,

from the incised stab wound on the base of the neck on the right side, there was an incised wound on the lateral aspect of the left eyebrow. There",,,,

were two further bruises, one on the left side of the face and other on the left frontotemporal region. After the post-mortem examination, the dead",,,,

body was handed back to PW-4.,,,,

Arrest and recovery of the weapon of offence,,,,

14.According to PW-22, on 15th September 2011, secret information was received that the Appellant would be coming to ISBT Anand Vihar as he",,,,

planned to travel to Haridwar. PW-22 assembled a team of policemen and the informer and reached ISBT Anand Vihar. According to PW-22,",,,,

“the accused Rinku was apprehended inside the ISBT Anand Vihar on the pointing out of secret informerâ€​.,,,,

15.The Appellant was then interrogated and arrested. His personal search was conducted (Ex.PW-18D). The Appellant purportedly gave a disclosure,,,,

statement. He then led the police team to the crime spot and, thereafter, to a spot on the banks of the ganda nala behind the Jeewan Park Bus Stand.",,,,

From there, he got the knife purportedly used by him in the commission of the offence recovered.",,,,

16.The Appellant was produced before the trial Court on 16th September 2011 and remanded to two days‟ police custody. The Appellant purportedly,,,,

disclosed to the police that he had thrown the clothes he was wearing at the time of the incident into a drain in Sagarpur after burning them. It is stated,,,,

by PW-22 that although the Appellant had led them to the spot and “intensive search was made for those clothesâ€​, they could not be found.",,,,

17.PW-22 further stated that at the time of the Appellant‟s arrest, a sum of Rs.6,340/- was recovered from his possession and was seized. The",,,,

weapon of offence was shown to the autopsy doctor on 22nd November 2011. His opinion was that the subject injuries found on the deceased could,,,,

be caused by that weapon.,,,,

18.PW-22 also prepared a rough site plan of the scene of crime (Ex.PW22/E). He also obtained the CDRs of the mobile phone of the Appellant,,,,

having the number 8750595281 (hereafter „5281‟). Upon the completion of the investigation, a charge sheet was filed. By an order dated 27th",,,,

January 2012, the charges were framed against the Appellant in the manner indicated hereinbefore.",,,,

The trial,,,,

19.Twenty-four witnesses were examined by the prosecution. When all the incriminating circumstances against him were put to the Appellant under,,,,

Section 313 Cr PC, he denied them and claimed innocence. He claimed to have been falsely implicated in the case. He denied having made any",,,,

disclosure statement. He stated: “I was never arrested or apprehended from ISBTA nand Viharâ€. The Appellant claimed that the police team,,,,

from Delhi lifted him from his native village and that his signatures were forcibly taken on blank papers.,,,,

20.In order to prove that he was arrested not from ISBT Anand Vihar but from his native village, the Appellant examined Ct. Mahesh Chand Dubey",,,,

(DW-1) attached to PS Jagdishpura, Agra, Uttar Pradesh. The said police official from PSJ agdishpura brought General Diary („GD‟) No.27 dated",,,,

14th September 2011. He identified the hand writing in the said GD to be in the handwriting of Ct. Pawan Kumar who was on medical rest having,,,,

suffered a fracture in his leg. In terms of GD No.27 (Ex.DW-1/A), the Appellant was apprehended by the police team at Agra who informed DW-1",,,,

that they were taking the Appellant along with them to PS Dabri, South-West Delhi for examination.",,,,

21.In the cross-examination by the Additional Public Prosecutor („APP‟) for the said State, DW-1 stated that it was correct that as per GD No.27,",,,,

the Appellant was not formally arrested by the Delhi Police at PS Jagdishpura. He admitted also as correct that the GD does not bear the,,,,

signatures/thumb impression of any of Delhi Police officials or of the Appellant. DW-1 denied the suggestion made by the APP that Ex.DW-1/A was,,,,

a false entry made in collusion with the Appellant.,,,,

Impugned judgment of the trial Court,,,,

22.The case was entirely based on circumstantial evidence. In the impugned judgment dated 20th May 2013, the trial Court came to the following",,,,

conclusions:,,,,

i)According to PW-4, the deceased was using a mobile phone 0363 owned by Sangeeta Singh (PW-23), the daughter of PW-4 and the deceased. This",,,,

was proved by Jyotish Mohrana (PW-24). PW-23 deposed that the number 0363 was in fact being used by PW-4.,,,,

(ii)The entries from 22nd August 2011 until 31st August 2011 in the CDRs of the mobile numbers 0363 (belonging to PW-4) and 5281 (belonging to,,,,

the Appellant) showed that a number of calls had been exchanged between the numbers. This was further corroborated by Sudhir Kumar Bhatnagar,,,,

(PW-20) who had seen the Appellant coming to the shop of PW-4 which was in the vicinity of the shop of PW-20. According to PW-20, on 31st",,,,

August 2011, at around 1:30 pm, when PW-4 was sitting in his shop, the Appellant came there in a frightened state. When inquired, he said that his",,,,

grandfather was on his death bed and he had to leave for his native place.,,,,

(iii)The version of PW-4 was corroborated by the CDRs that showed that the Appellant was in constant touch with PW-4 at least one week prior to,,,,

31st August 2011.,,,,

(iv)The Appellant was in search of an occasion to rob the deceased in the absence of her husband. The visit made by him to the house of PW-4 one,,,,

week prior to the incident was in the form of reconnaissance. There was no cross-examination of PW-4 on the Appellant coming there in a frightened,,,,

state. The Appellant had been in search of an occasion to find the deceased alone. This conduct of the Appellant was relevant as it pinpointed the,,,,

incriminating nature of his actions.,,,,

(v)The further incriminating circumstance against the Appellant was that he had disposed of all his household articles on the day of the incident and,,,,

left the rented premises in which he was living. During his crossexamination, PW-2 admitted that the lady he met had stated that she was disposing of",,,,

the household articles as some person was sick in the family and she had to vacate the rented accommodation.,,,,

(vi)The testimony of PW-2 was further corroborated by Rambo Devi (PW-3) who stated that that the Appellant had stayed in her house on rent for,,,,

about 1 month and vacated it in the evening of 31st August 2011. The Appellant along with his four children and wife had left on 31st August 2011,,,,

stating that someone had been sick in the family. The conduct of the accused, therefore, incriminated him. It proved that he had hurriedly left his",,,,

house after committing the crime.,,,,

(vii)The Appellant did not have any explanation for absconding for two weeks after the incident.,,,,

(viii)Even the motive for the crime stood proved as it was known to the Appellant that PW-4 had received money in the month of June 2011 for,,,,

vacating the premises. This was further substantiated by the recovery of Rs.6,340/- from his possession.",,,,

(ix)As regards the deceased being last seen alive in the company of the Appellant, the prosecution had examined Prem Pal (PW-7) who was ironing",,,,

clothes just below the house on the street. PW-7, however, turned hostile. The recovery of the weapon of the offence was also a circumstance",,,,

against the Appellant,,,,

(x)As regards the arrest of the Appellant, the trial Court merely noted that DW-1 had brought the register with him but in view of the testimony of",,,,

PW-22, he threw doubt about the defence evidence. The knife had a blood stain which tallied with the DNA profiling of the blood of the deceased.",,,,

The knife had been recovered at the instance of the Appellant.,,,,

(xi)All of the aforementioned circumstances were conclusively proved against the Appellant by the prosecution.,,,,

23.The trial Court, therefore, proceeded to convict the Appellant for the aforementioned offences and sentenced him in the manner noticed",,,,

hereinbefore.,,,,

24.This Court has heard the submissions of Mr. Vikas Padora, Advocate and Ms. Inderjeet Sidhu, Advocate on the panel of the Delhi High Court",,,,

Legal Services Committee for the Appellant and Mr. Kewal Singh Ahuja, the learned APP for the State. The counsel for the complainant was also",,,,

heard.,,,,

Law relating to circumstantial evidence,,,,

25.As noted earlier, with no direct evidence available in this case, the trial Court‟s conviction hinged on the circumstantial evidence available to it.",,,,

Before discussing the evidence on record in light of the above submissions, it is necessary to recapitulate the settled legal position regarding",,,,

circumstantial evidence.,,,,

26.In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Supreme Court explained that a case based on circumstantial",,,,

evidence should satisfy the following tests:,,,,

“(1)The circumstances from which the conclusion of guilt is to be drawn should be fully established.,,,,

(2)The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on",,,,

any other hypothesis except that the accused is guilty.,,,,

(3)The circumstances should be of a conclusive nature and tendency.,,,,

(4)They should exclude every possible hypothesis except the one to be proved, and",,,,

(5)There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the,,,,

accused and must show that in all human probability the act must have been done by the accused.â€​,,,,

27.In Ram Avtar v. State 1985 Supp SCC 410, the Supreme Court explained that:",,,,

“...circumstantial evidence must be complete and conclusive before an accused can be convicted thereon. This, however, does not mean that there",,,,

is any particular or special method of proof of circumstantial evidence. We must, however, guard against the danger of not considering circumstantial",,,,

evidence in its proper perspective, e.g., where there is a chain of circumstances linked up with one another, it is not possible for the court to truncate",,,,

and break the chain of circumstances. In other words where a series of circumstances are dependent on one another they should be read as one,,,,

integrated whole and not considered separately, otherwise the very concept of proof of circumstantial evidence would be defeated.â€​",,,,

28.In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the Supreme Court held:,,,,

S.No.,Time of Call,"Outgoing or

incoming",Duration,Other person

1.,02.18 PM,Outgoing,40 secs,"987319943 (naresh

verma)

2.,02.22 PM,Incoming,54 secs,"01123861102

(CATS

Ambulance)

3.,02.24 PM,Incoming,16 secs,"01123861102

(CATS

Ambulance)

4.,02.37 PM,Incoming,62 secs,8750871087

5.,02.42 PM,Outgoing,1 sec,"9211208269 (Ganesh

painter)

6.,02.52 PM,Outgoing,39 secs,"9818477740

(sunita)

7.,02.55 PM,Incoming,47 secs,"0114553811 (Educo

Office)

8.,03.13 PM,Outgoing,13 secs,9818477740

,,,,(sunita)

9.,03.52 PM,Incoming,79 secs,"011262883650 CAW

Cell, nanakpura

10.,04.28 PM,Outgoing,43 secs,"9868114294

(sudhir)

11.,04.52 PM,Incoming,108 secs,"01125639350

(PS Dabri)

12.,05.31 PM,Incoming,10 secs,9015284626

13.,05.32 PM,Incoming,30 secs,9289058869

14.,05.37 PM,Outgoing,18 secs,"9015284626 (Ravi

ravinder)

15.,05.43 PM,Outgoing,13 secs,"9015284626 (Ravi

ravinder)

16.,05.55 PM,Outgoing,13 secs,"9015284626 (Ravi

ravinder)

17.,05.59 PM,Outgoing,23 secs,"9015284626 (Ravi

ravinder)

Unconvincing recoveries,,,,

44.According to PW-4, Rs.40,000/- of the Rs.50,000/- cash which was allegedly stolen from the house of PW-4 was in four bundles of Rs.1000 notes.",,,,

What happened to that money is a mystery. What was found with the Appellant is a sum of Rs.6,340/- which nowhere reflects the actual amount",,,,

purportedly robbed by the Appellant. Even the denominations of the currency notes did not match what was stolen. The prosecution has not bothered,,,,

to further investigate the money trail. This is a huge gap in its evidence.,,,,

45.The recovery of the knife in an open place and, that too, two weeks after the occurrence does not inspire confidence at all. In Mani v. State of",,,,

Tamil Nadu (2009) 17 SCC 273, the Supreme Court was faced with a similar scenario and opined:",,,,

“19. …It need not be stated that where the discovery of the relevant articles have been made from the open ground though under the bush, that",,,,

too after more than 10 days of the incident, such discovery would be without any credence. It does not stand to any reasons that the concerned",,,,

investigating officer did not even bother to look hither and thither when the dead body was found. We are, therefore, not prepared to accept such kind",,,,

of farcical discovery which has been relied by the courts below without even taking into consideration the vital facts which we have shown above.,,,,

20.The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the,,,,

discovery.â€​,,,,

46.Therefore, the circumstance of the recovery of the knife also cannot be said to be proved by the prosecution beyond reasonable doubt.",,,,

47.There is also no explanation given by the prosecution for the absence of any entry in the malkhana register about the deposit of the knife and its,,,,

removal therefrom at the time it was sent to the FSL. There is no road certificate. The learned APP pointed out that when the FSL received the knife,",,,,

it found the seal of the packet intact. However, as pointed out by Mr. Padora, the sample seal was not sent to the FSL for comparing it with the seal",,,,

on the packet. Therefore, even this circumstance cannot be said to have been proved by the prosecution.",,,,

Conclusion,,,,

48.There are too many loopholes in the case of the prosecution. The circumstances that remain unproved are too numerous. The circumstances as put,,,,

forth by the prosecution do not form a continuous chain. It cannot be said that each of the links in the chain has been convincingly proved by the,,,,

prosecution beyond reasonable doubt. Therefore, the benefit of doubt, in this regard, ought to be given to the Appellant.",,,,

49.The Court accordingly acquits him of the offences with which he was charged. The impugned order of the trial Court and the order on sentence,,,,

are hereby set aside. Unless wanted in some other case, the Appellant shall be released forthwith. He will fulfil the requirement of Section 437A Cr",,,,

PC to the satisfaction of the trial Court at the earliest.,,,,

50.The appeal is allowed. The trial Court record be returned together with the certified copy of this judgment.,,,,