Research › Search › Judgment

Delhi High Court · body

2013 DAILYLAW 2733 (DEL)

State v. Azad Khan

2013-08-22

Indermeet Kaur, Kailash Gambhir

body2013
JUDGMENT : 1. By this application filed under Section 378 r/w Section 482 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) the petitioner seeks grant of leave to appeal against the judgment dated 17.09.2011 passed by the court of Sh. Ravinder Dudeja, Additional Sessions Judge, North-West, Delhi in SC No. 128/09 arising out of FIR No.68/04, thereby acquitting the accused from the charges framed against him under Section 302/34 IPC. 2. Arguing the present criminal leave to appeal, Mr. Sunil Sharma, APP for the State submits that the order passed by the learned Trial court thereby acquitting the accused is contrary to law and the facts of the case as the learned Trial Court has brazenly ignored the incriminating evidence proved on record clearly bringing home guilt of the accused, counsel also submits that the learned Trial Court failed to appreciate that generally no public witnesses come forward to join the investigation in heinous cases of crime and therefore, in the absence of public witnesses the testimony of police witnesses regarding recovery of various articles at the instance of the accused should not be doubted. Counsel also submits that the learned Trial court also failed to appreciate that the weapon of the offence and the mobile phone box having blood stained marks were recovered from the house of the accused and this evidence by itself was sufficient to nail the accused. Counsel further argued that the learned Trial Court also failed to appreciate that the accused had absconded after having committed the crime and he was arrested by the police only on a secret information. Counsel also argued that the learned Trial court also did not appreciate that the key of the room where the deceased was found murdered was seized from the co-accused Chandan based upon the disclosure statement of the accused Azad Khan. Counsel also argued that the learned Trial Court also did not appreciate that the testimony of PW3-Sudhir Kumar Singh, PW4-Ramneet Singh and PW5-Fateh Kumar proved the recovery of the mobile phone at the instance of the accused Azad Khan. Based on these submissions, counsel urged that the prosecution proved its case beyond reasonable doubt to convict and sentence the accused for the commission of offence under Section 302/34 IPC. 3. We have heard the learned APP for the State and have also gone through the trial court record. 4. Based on these submissions, counsel urged that the prosecution proved its case beyond reasonable doubt to convict and sentence the accused for the commission of offence under Section 302/34 IPC. 3. We have heard the learned APP for the State and have also gone through the trial court record. 4. The prosecution case as set out in the charge sheet is that on 22.02.2004 telephonic information was received at PS Adarsh Nagar from an unknown person that foul smell was coming from the room situated on the first floor of the house No. B-18, Village Bhadola. On this information, DD No.13-A was recorded. On receipt of DD No. 13-A, Inspector Rajender Bhatia, SHO, PS Adarsh Nagar along with HC Harpal Singh reached at the spot. They found that room on the first floor was lying locked from outside and foul smell was coming from the room. The lock was broken open to check the room. The body of a 40-45 years old man with a deep slit mark on his neck was lying on a cot in the room. The body could not be identified. No eyewitness was found at the spot. SHO prepared the Rukka Ex. PW-40/A and sent the same at Police Station through HC Harpal on the basis of which, FIR was registered under Section 302/34 IPC. Crime team was called at the spot. The spot was photographed. SHO prepared site plan and inquest papers. The body was sent to BJRM Hospital Mortuary. The broken lock was taken into possession. On 24.02.2004, a pan vendor Ram Dular met the 10 and informed him that about 5-6 days ago, he had met the deceased Kamlesh Kumar Tiwari @ Pandjit Ji in his room at the first floor at B-18, village Bhadola and that in the gali, Azad Khan, Chandan and Guddu met him and they asked him about Pandit Ji. He told them that Pandit Ji was present in his room and that thereafter neither Kamlesh Kumar Tiwari @ Pandit Ji nor Azad Khan, Guddu and Chandan met him. Statement of Ram Dular was recorded under Section 161 Cr.P.C. The body of the deceased was identified on 27.02.2004 by Shambhi Nath Tiwari and Som Nath Tiwari to be that of their brother Kamlesh Tiwari. The Post mortem of the body was conducted. On 24.03.2004, on the basis of secret information, accused Azad Khan was arrested. Statement of Ram Dular was recorded under Section 161 Cr.P.C. The body of the deceased was identified on 27.02.2004 by Shambhi Nath Tiwari and Som Nath Tiwari to be that of their brother Kamlesh Tiwari. The Post mortem of the body was conducted. On 24.03.2004, on the basis of secret information, accused Azad Khan was arrested. He gave disclosure statement confessing his guilt. He stated in his disclosure statement that they had looted Rs.25,000/-and a mobile phone along with its charger and the box of mobile phone from the room of Kamlesh Tiwari and that he had sold the mobile phone to his friend Fateh Kumar for Rs.2,000/-. On the pointing out of accused Azad Khan, the box of mobile phone make Nokia 3315, blue colour, IMEI No.352539004243391 having blood spots, a phone charger having the name of Kamlesh Tiwari written on it, photograph of Kamlesh Tiwari, Rs.2,000/- which were left over of the looted cash and a blood stained kitchen knife were recovered from his room at house No.200, Kewal Park. Accused Azad Khan also pointed out the place of occurrence, on 26.03.2004, co-accused Chandan was produced in court on production warrants, with the permission of the court, he was arrested in this case and his disclosure statement was recorded. On the pointing out of accused Chandan, the key of the lock of the room of Kamlesh Kumar Tiwari and Rs.1,000/- which were part of the looted cash were recovered from his room. One Bablu was arrested in case FIR No.221/04 under Section 25/54/59 Arms Act, 1959 and made disclosure statement with regard to this case but no evidence was found against him and therefore, he was not arrested in the present case. Accused Guddu, who was named by Ram Dular, could not be arrested. During investigation, IO obtained the opinion of the doctor with regard to the recovered knife and also sent the exhibits to FSL, Rohini. Pending the receipt of FSL result, charge sheet was prepared under Section 302/34 IPC and accused Azad Khan and Chandan were sent to the court for trial. 5. The prosecution had examined 42 witnesses to prove its case. Both the accused persons in their statements recorded under Section 313 Cr.P. C. pleaded not guilty. Pending the receipt of FSL result, charge sheet was prepared under Section 302/34 IPC and accused Azad Khan and Chandan were sent to the court for trial. 5. The prosecution had examined 42 witnesses to prove its case. Both the accused persons in their statements recorded under Section 313 Cr.P. C. pleaded not guilty. The co-accused Chandan had pleaded that he was a juvenile and after an enquiry was conducted into the aspect of his juvenility the accused Chandan was tried before the Juvenile Justice Board. After hearing the arguments in the case, the trial court passed an order of acquittal against the accused Azad Khan under Section 302/34 IPC vide its judgment dated 17.9.2011 and hence the present criminal leave to appeal by the State. 6. The learned Trial Court after placing reliance on the various judgments of the Apex Court laying down the principles dealing with the circumstantial evidence reached to a conclusion that the prosecution has not been able to establish the chain of circumstances so complete so as to reach the conclusion of the guilt of the accused by cogent evidence ruling out every other possibility consistent with the innocence of the accused unerringly pointing to the complicity of the accused in the crime. 7. In a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be fully proved and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. As observed by the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, H9S4) 4 SCC 116, the following five golden principles constitute the punchsheel or the proof of a case based on circumstantial evidence. (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be' proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973 CriLJ 1783 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'maybe' and 'must be' is long and divides vague conjectures from sure conclusions. (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. 8. On perusal of the impugned judgment, we find that the learned trial court has rightly acquitted the accused on the ground that the prosecution had not been able to establish the chain of circumstances so complete so as to reach the conclusion of guilt of the accused without any shadow of doubt. The arguments raised by the counsel for the appellant before this Court have been appropriately dealt with by the learned Trial Court with sound reasoning. The arguments raised by the counsel for the appellant before this Court have been appropriately dealt with by the learned Trial Court with sound reasoning. On the joining of independent witnesses, the view taken by the learned Trial Court is that no sincere efforts were made by the IO of the case to join any independent public person either at the time of recovery or as an attesting witness to the disclosure statement, therefore, the recovery made at the instance of the accused is rendered doubtful, in the absence of any explanation given by the prosecution for not joining the witnesses, we can concur with the view taken by the learned Trial Court that in the absence of any such efforts, the recovery made at the instance of the accused became doubtful. 9. Dealing with the next contention raised by the counsel for the appellant that the weapon of the offence and the mobile phone box having blood stained marks were recovered from the house of the accused and this evidence was sufficient itself to nail the accused, we find no infirmity in the reasoning given by the learned Trial Court in taking a view that it is highly improbable that the accused after committing the crime would sell the mobile phone but would retain its box having blood stains over it along with the charger with the name of the deceased written over it. We also find no perversity or infirmity in the observation of the learned Trial Court on the issue of alleged recovery of bloodstained knife at the instance of the accused, as the knife alleged to have been recovered at the instance of the accused would not by itself lead to a conclusion that the accused was the perpetrator of the crime of murder, in this regard, the learned Trial Court rightly took into the consideration the fact that the blood stained knife and other articles were recovered after more than a month of the incident and there was no evidence to establish the presence of the accused at the house of the deceased when the occurrence took place. 10. In the light of the above discussion, we do not find that there is any illegality, infirmity or perversity in the order passed by the learned Trial Court. 10. In the light of the above discussion, we do not find that there is any illegality, infirmity or perversity in the order passed by the learned Trial Court. Accordingly, the present application seeking grant of criminal leave to appeal against the order of acquittal dated 17.9.2011 passed by Sh. Ravinder Dudeja, Additional Sessions Judge, North-West, Delhi under section 302/34 of IPC is hereby dismissed. It is ordered accordingly.