Delhi High Court (May 31, 2001) 2001 (TLS)125166 2001-DLT-94-850 :: 2001-AD (Del)-5-592 PRAHLAD Vs. State (National Capital Territory of Delhi) USHA MEHRA ( 1 ) APPELLANT Prahlad has assailed the order of his conviction under Section 364/302/201 Indian Penal Code and the sentence imposed upon him by the learned Addl. Sessions judge sentencing to him life imprisonment and fine of rs. 1000. 00 in default R. I. for six months under Section 302 Indian Penal Code, 10 years imprisonment and. ,fine of Rs-1000. 00 in default R. I. for six months under Section 364-A Indian Penal Code. He was further sentenced imprisonment for five years and fine of Rs. 1000. 00 in default R. I. for six months under section 201 Indian Penal Code. All the sentences were to run concurrently. ( 2 ) MR. RAJEEV Awasthi counsel for the appellant contended that case of the prosecution was based on circumstantial evidence. There was no eye witness to the occurrence. And the circumstantial evidence of last seen adduced by the prosecution suffer from a number of infirmities. Prosecution in order to prove the last seen circumstance adduced the evidence of Ramji (Public Witness-2) and ramu (Public Witness-11 ). Mr. Awasthi contended that reading of the evidence of Ramji (Public Witness-2) and Ramu (Public Witness-11) would show that they are planted subsequently. Their statements under section 161 Criminal Procedure Code. were recorded after the discovery of dead body. So no reliance could be placed on their testimonies. Secondly the dead body that is the skeleton recovered at the alleged disclosure of the appellant was so decomposed that it could not be identified. Dr. L. K. Baruah (Public Witness-6) who conducted the post-mortem could not tell the sex of the person whose skeleton was recovered nor could tell the cause of death. ( 3 ) IN order to appreciate the challenge made by the appellant we may have quick glance to the facts of this case. Deceased Nagin a boy of seven years was found missing from his house on 24/07/1994. Nagin as per the version of his mother Champa (Public Witness~9) had gone out at about 7. 00 P. M. on 24/07/1994 to play. Thereafter he did not return. Champa (Public Witness-9) searched for him but could not find out the whereabouts of Nagin. She, therefore, lodged a missing report with the police on 25/07/1994 vide Ex. Nagin as per the version of his mother Champa (Public Witness~9) had gone out at about 7. 00 P. M. on 24/07/1994 to play. Thereafter he did not return. Champa (Public Witness-9) searched for him but could not find out the whereabouts of Nagin. She, therefore, lodged a missing report with the police on 25/07/1994 vide Ex. Public Witness-8/a. Police tried to trace out nagin but failed. When the boy Nagin was found missing his father Kanji Bai (Public Witness-1) was not at home- he had gone out in connection with his business. He returned back after two days and. lodged report vide Ex. Public Witnessi/a. He also tried to search for his son, but there was no trace of nagin. After about a month Ramji (Public Witness-2) and Ramu (Public Witness-11)told Kanji Bai (Public Witness-i) that they had seen his son Nagin with the accused Prahlad on the fateful day i. e. 2 4/07/1994 at about 7. 00 P. M. Kanji Bai (Public Witness-1) reported this matter to the police vide Ex. Public Witness-1/a. On receipt of secret information police apprehended the accused from bus stand of Route No. 857 where he was found selling eggs on the "rehri". It is further the case of the prosecution that after the accused was apprehended he made a disclosure statement as to how he murdered Nagin and hidden the body of Nagin. On the basis of disclosure statement of the accused police reached the spot i. e. pit near water tank Raghubir Nagar and at the pointing out of the accused dead body was recovered. It was hidden under the earth and a stone was put over there. After the recovery of the dead body which was a skeleton, the same was sent for post-mortem. The skeleton was identified by Kanji Bai (Public Witness-I) to be that of his son nagin. ( 4 ) THE case of the prosecution as already pointed out above rests on the circumstance of last seen evidence and the recovery of the dead body at the instance of the accused. So far as the last seen evidence is concerned, neither the testimony of Ramji (Public Witness~2) nor the testimony of Ramu (Public Witness-ll) inspire confidence. The version given by them does not appear to be truthful and straight forward. Ramji (Public Witness-2) tried to show as if he was an independent witness, a neighbour only. So far as the last seen evidence is concerned, neither the testimony of Ramji (Public Witness~2) nor the testimony of Ramu (Public Witness-ll) inspire confidence. The version given by them does not appear to be truthful and straight forward. Ramji (Public Witness-2) tried to show as if he was an independent witness, a neighbour only. He concealed the fact that he was the real elder brother of Kanji Bai (Public Witness-l) father of the deceased. His version that he had seen at about 7. 00 p. M. Nagin with the deceased near the gate of Kapra mandi, Raghubir Nagar, Delhi and at about 9. 00 P. M. he left Delhi for his village in Gujrat and that he returned after a month from his village and then learnt that Nagin was missing from his house for the last about a month appears to be an afterthought story. According to him, after he came back sometime later police came to his house and then he told that he had seen the accused with nagin in Kapra Mandi at about 7. 00 P. M. on 2 4/07/1994. He tried to project as if he was a neighbour and had nothing to do with Nagin s family. However, when subjected to cross-examination he admitted that he was the real brother of Kanji Bai (Public Witness-l ). He tried to conceal his identity and projected as if he was an independent witness. His conduct was not natural. Being the real brother of Kanji Bai (Public Witness-1) he would have immediately got the information in his village that his brother s son was missing. He even tried to improve his statement in court from the one made under Section 161 Criminal Procedure Code. When confronted with his statement under Section 161 Criminal Procedure Code. Ex. D/a he had to admit that to the police he never said that he left for Gujrat the same day at about 9. 00 P. M. or that he told to the police in his statement under section 161 Criminal Procedure Code. that when he returned after a month kanji Bai told him that his son was missing. In his statement under Section 161 Criminal Procedure Code. 00 P. M. or that he told to the police in his statement under section 161 Criminal Procedure Code. that when he returned after a month kanji Bai told him that his son was missing. In his statement under Section 161 Criminal Procedure Code. he stated that when he returned back he heard about the, missing of the Nagin but in court he said that Kanji Bai (Public Witness-l) told him about the missing of Nagin as soon as he returned from Gujrat. He denied that accused was having-, an affair with the daughter of Kanji Bai (Public Witness-1) and that is the reason the accused was not liked by his family. He admitted that there was a dispute between the accused and Kanji Bai regarding the climbing on the roof of the Jhuggi of accused. From this testimony it is apparent that he tried to implicate the accused to settle their family dispute. ( 5 ) SIMILARLY, Ramu (Public Witness-11) and other alleged witness of the last seen also did not inform the police that he had seen the deceased with the accused at about 7. 00 P. M. on 24/07/1994. In his cross-examination he stated that he had told about the last seen of the accused with the deceased to the mother of Nagin. That he accompanied Smt. Champa (Public Witness-9) mother of the deceased to the police station. But the fact of the matter is that this part of his testimony is belied by the statement of Champa (Public Witness-9 ). He rather contradicted himself in cross-examination when he stated he never- accompanied Champa (Public Witness-9) to police station. He has wavered throughout on this aspect hence no reliance can be placed on his testimony. Even otherwise Champa (Public Witness-9) also denied that Ramu (Public Witness-11) ever told her that deceased was last seen with the accused. Nor the police even mentioned this fact in police record. He admitted that he had gone to the police station only after the recovery of the dead body. He also admitted that it was only after the dead body was recovered that he told about last seen circumstance to the police. When subjected to cross-examination he contradicted himself on every aspect. He denied that he told Kanji Bai (Public Witness-1) about the last seen of the deceased with the accused. He also admitted that it was only after the dead body was recovered that he told about last seen circumstance to the police. When subjected to cross-examination he contradicted himself on every aspect. He denied that he told Kanji Bai (Public Witness-1) about the last seen of the deceased with the accused. In view of this contradictory stand taken by Ramu (Public Witness-11) no reliance can be placed on his testimony. Noexplanation has been offered by him as to why he did not inform champa (Public Witness-9) mother of the deceased or for that matter to police that he had seen the deceased with the accused on 2 4/07/1994 at 7. 00 P. M. In order to build a cover up for the delay in reporting the matter he took the plea that he left for his village at Gujrat and returned after 1-1/2 or 2 years. In his own words he said: "i left for my village after 2-3 months of that day. I returned after 1- - 2 years. " ( 6 ) THERE may be a typographical error in mentioning the period instead of 2-3 days or 1- or 2 months, it might have been typed months and year. But the fact remains that he neither informed the family of the deceased that deceased was with the accused at 7. 00 p. M. nor to police even during,those 2-3 days when he was in Delhi. Therefore, testimony of this witness does not inspire confidence. ( 7 ) THERE are other reasons also for not relying on the testimony of these witnesses. Their statements under Section 161 Criminal Procedure Code. were recorded after accused was arrested and dead body had been recovered. Once the dead body was recovered in the naked condition Ramu (Public Witness-11) took the plea that the accused was taking the deceased in naked state. This part of his statement was contradicted by Champa (Public Witness-9 ). She said that Nagin went outside of the house at 7. 00 P. M. to play. At that time he was wearing stripe shirt and nicker. Thus, it becomes clear that Ramu (Public Witness-11) was not telling the truth. This part of his statement was contradicted by Champa (Public Witness-9 ). She said that Nagin went outside of the house at 7. 00 P. M. to play. At that time he was wearing stripe shirt and nicker. Thus, it becomes clear that Ramu (Public Witness-11) was not telling the truth. Even kanji Bai (Public Witness-1) in order to prove that he identified the dead body to be that of his son came out with the plea that Nagin left house in naked condition which on the face of Champa s testimony stood falsified. Smt. Champa (Public Witness-9) mother of the deceased categorically stated that nagin was wearing shirt and nicker when he left house, which statement appears to be worthy of credence and appears truthful. Therefore, the statement of Ramu (Public Witness-11) cannot be relied upon on this count also. ( 8 ) DR. L. K. BARUAH (Public Witness-6) stated that after removing the,skeleton remains from the mud bones of human being could be seen. After examining the jaw bones he came to the conclusion that the body was that of a person who was between the age group of seven and eight years. But at that stage he could not possibly say about sex of the deceased. While examining the bones no cut or fracture was seen anywhere on the body. There were also no viscera/ muscles/ organs. Hence cause of death he could not give nor could give the exact time of death by seeing the bones. He, however, did not disagree with the suggestion of the police that the death of that dead body might have taken place about one month back. He proved his report Ex. Public Witness-6/a. He could not tell whether four missing teeth of the upper jaw had fallen before the death or thereafter, when the doctor could not say the sex of the dead person nor could tell the cause of death then in such circumstances it could not be said that the death of the person whose body was recovered which was mere skeleton was homicidal. Except that the dead body was of a child between the age group of 7 and 8 years no other identification mark could be traced which could link the body to be that of Nagin. Even from the bones he could not tell about the sex of the person. Except that the dead body was of a child between the age group of 7 and 8 years no other identification mark could be traced which could link the body to be that of Nagin. Even from the bones he could not tell about the sex of the person. In similar circumstances the Apex court in the case of The state of Punjab Vs. Bhajan Singh and Others 1975 crilj 282 held that when the case rest on circumstantial evidence and the doctor is unable to find the cause of death because the dead body was in decomposed state it could not be said that the death of the person was homicidal. The ratio of Bhajan Singh s case (supra) apply to the facts of this case. ( 9 ) UNDER the above circumstances, when no clinching evidence has come on record to prove that the deceased was with the accused at 7. 00 P. M. on 24/07/1994 the last seen circumstance becomes doubtful. In the absence of proving the last seen evidence the needle of guilt cannot rest on the neck of this appellant. Even from the report of Dr. Baruah homicidal is not proved. ( 10 ) FOR the reasons stated above, appeal is accordingly allowed. The conviction and sentence are set aside. Appellant is ordered to be released forthwith, if not required in any other case. Order be conveyed to the appellant through the Superintendent Central Jail, Tihar. --- *** --- .