Abdul Qasim vs The State

Sanjay Kishan Kaul, J.—The appellant has been convicted u/s 302 of the Indian Penal Code, 1860 (for short, "IPC") for murder of deceased Kishan Bahadur only on the basis of circumstantial evidence in terms of the impugned judgment dated 29.04.1995 and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of which, to undergo further R.I. for a period of four months as per the order of sentence of the even date.

The appellant and the deceased were both working at Gulshan Ka Dhaba behind Batra Cinema. The case of the prosecution is that on 24.07.1993, at around 5.30 a.m., the appellant gave blows on the face of sleeping Kishan Bahadur by handle of a hand-pump and caused his death. There was no eye-witness to the incident. The story begins with a PCR Van nabbing the appellant at 6.15 a.m. on 24.07.1993 when the appellant is stated to have volunteered to H.C. Virender Singh, PW - 4, that he had killed the deceased with the handle of a hand-pump at around 5.30 a.m. H.C. Virender Singh is stated to have sent the information to a PCR stationed near the spot and, thus, H.C. Virender Kumar, PW - 9, reached the spot for verification of this information and found the dead body of the deceased. This information is stated to have been relayed at about 7.00 a.m.

H.C. Virender Singh, PW - 4, brought the appellant to P.S. Mukherji Nagar and on the basis of the statement of the appellant, F.I.R. No. 146/1993 was registered u/s 302 of the IPC. The F.I.R., Exhibit PW - 5/E, was recorded by Lady H.C. Kamini, PW - 7, on receipt of Rukka, Exhibit PW - 5/D. The investigation was entrusted to Inspector R.C. Garg, PW - 5. The dead body of the deceased was found lying inside the dhaba on a dari with blood scattered around. Injury marks were stated to have been found on the face of the deceased and the handle of the hand-pump was lying next to the body of the deceased. Samples of blood of the deceased were lifted and dari and pillow cover with bloodstains were taken into possession.

The circumstantial evidence, which has been brought on record and which has found the basis of the conviction of the appellant is the testimony of Shri Gulshan Kumar, PW - 2, the owner of the dhaba; H.C. Virender Singh, PW - 4; and Inspector R.C. Garg, PW - 5. Shri Gulshan Kumar has deposed that the appellant and the deceased used to often quarrel mostly in his absence as he was informed by his employees and this fact was verified from the appellant and the deceased. He stated that on 19.07.1993 or 20.07.1993, he had left both the appellant and the deceased at the dhaba and when he came back, he saw them hurling and abusing each other and he pacified them. On 23.07.1993, Shri Gulshan Kumar had left the dhaba around 9.00 or 9.30 p.m. to go to his house, which was located close to the dhaba leaving behind the appellant, the deceased and two or three other people, who worked at the dhaba as all of them used to sleep in the dhaba itself. He visited the dhaba around 11.15 p.m. and found that both the appellant and the deceased were sleeping in the dhaba, while the other employees were sleeping on the roof of the dhaba and he left for home within five minutes. He claimed that one of the employees came to him at about 7.00 a.m. and asked him to accompany the said employee to the dhaba and on reaching the dhaba, he came to know about the death of the deceased. He stated that none of the boys sleeping on the roof of the dhaba told him anything about the occurrence and neither they nor he had seen anything. The testimony of H.C. Virender Singh, PW - 4, shows that at 6.15 a.m., he was patrolling the area of Maju Ka Tila when he noticed the appellant coming from the opposite direction and trying to flee away on seeing the police. H.C. Virender Singh claimed that he followed the appellant and apprehended him on chase. It is at this stage he came to know about the involvement of the appellant in the murder of the deceased and he flashed the message to PCR and took the appellant to P.S. Mukherji Nagar. Inspector R.C. Garg, who was I.O. in the case, received the information vide D.D. No. 2A that the deceased had been murdered and along with S.I. Narinder Singh and two other officers reached the spot.

The post-mortem of the deceased was conducted by Dr. Ashok Jaiswal on 25.07.1993, who found that there were five major injuries on the face of the deceased. All these injuries were ante-mortem in nature and were caused by the application of heavy blunt object. The injury to the head was sufficient to cause death in the ordinary course of nature and all the injuries could have been possibly caused with the handle of the hand-pump. His opinion is that the injuries on the deceased could not have been caused by a fall on hard surface or even by striking against some hard object.

Learned Amicus Curiae has assailed the impugned judgment and contended that there were too many doubts in the story of the prosecution to have convicted the appellant on the basis of circumstantial evidence. The appellant and the deceased were sleeping in the dhaba and other employees were sleeping on the roof, yet neither any other employee nor any public witness was examined by the prosecution. Learned Amicus contended that the testimony of such witnesses would be material as it is difficult to perceive that no shriek or noise emanated when the injury as alleged to have been caused by the appellant to the deceased. In such a situation, the other employees sleeping on the roof would have awakened and would have attended to the dispute. Another material aspect pleaded is that no bloodstains were found on the handle of the hand-pump, which is the alleged weapon used for murder and this is despite the fact that blood was found scattered in the area. A further aspect is that as per the CFSL report, blood group on the samples could not be identified. The plea, thus, is that the extra-judicial confession of the appellant cannot be utilized to convict him.

Learned Counsel emphasized that if the entire case rests upon circumstantial evidence alone, the case of the prosecution has to be subjected to the tests as laid down in Padala Veera Reddy Vs. State of Andhra Pradesh and others, wherein the Apex Court held that such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) those circumstances, taken cumulatively, should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

Learned Counsel, thus, contended that the chain is not complete in the present case and by no stretch of imagination, can it be concluded that no other hypothesis is possible than the guilt of the appellant.

Learned APP for the State, on the other hand, has defended the impugned judgment by contending that the appellant was found moving in suspicious circumstances and confessed to the murder himself. It is in furtherance to the said confession that the dead body was found lying in Gulshan Ka Dhaba. The weapon of offence being the handle of the hand-pump was recovered near the dead body. The appellant ran away from the spot and was apprehended at Majnu Ka Tila. The appellant had no explanation of roaming around at Majnu Ka Tila early in the morning. Learned APP also referred to the post- mortem report to plead that the injuries caused with the handle of the hand-pump were sufficient to cause death. The chain was pleaded to have been completed as the motive was the prior quarrel between the appellant and the deceased, both working in the same place. The tehmat and lungi of the appellant were also recovered from the bushes. Learned APP submitted that the appellant was last seen by Gulshan Kumar, PW - 2, when he and the deceased were both sleeping inside the dhaba.

We have examined the submissions of learned Counsel for the parties.

We find that merely because the appellant was roaming around and apprehend at Majnu Ka Tila cannot be the ground to conclude that he caused the murder of the deceased. It is relevant to note that the appellant was not alone with the deceased in the dhaba as other employees were sleeping on the roof. Despite this fact, none of the said employees were examined. The owner of the dhaba, PW - 2, Shri Gulshan Kumar claimed that one of the employees came to him at 7.00 a.m. and asked him to accompany the employee to the dhaba where he found that the deceased had been done to death. There were some skirmishes between the appellant and the deceased, but that itself cannot be the sole basis of conviction of the appellant. The mere fact that there can be a motive does not necessarily lead to the conclusion that the appellant caused the death of the deceased.

The case of the prosecution is based on circumstantial evidence requiring the chain to be complete. The fact that the deceased is dead is not in dispute. The cause of the death was by injuries caused to him on his face and head. Blood was found scattered near the place. As per seizure memo (Exhibit PW - 2/A) blood stained steel handle of the hand-pump was seized from near the dead body of Kishan Bahadur. Despite this fact, the alleged weapon being the handle of the hand-pump was found not to contain any blood as is apparent from CFSL Report (Exhibit PW - 5/5). A lungi is stated to have been recovered from the bushes, which belongs to the appellant, but the lungi again does not have any blood on it. Only the blood stains on the pillow cover could be tested positive for human blood group AB. However, as regards the other samples, which were lifted, blood group could not be identified as per CFSL Report (Exhibit PW - 5/5).

It is difficult to perceive that the appellant having been found roaming at Majnu Ka Tila on being apprehended by chance blurts out a story of having caused the death of the deceased. It is as if the appellant was roaming around only to make a confession. The conviction of the appellant by the learned Additional Sessions Judge is based on the premise that once there was some prior dispute and both the appellant and the deceased were last seen sleeping in the room and the appellant was subsequently found roaming around early in the morning at Majnu Ka Tila are the factors, which are sufficient to convict him. We are unable to agree with this approach. The prosecution kept away the material witnesses being the other people, who were sleeping on the roof. The link was not established as no blood has been found on the alleged weapon nor any blood has been found on the clothes of the appellant. Even the lungi alleged to have been recovered from the bushes at the behest of the appellant had no bloodstains.

We are, thus, of the view that the prosecution has been unable to prove the case beyond all reasonable doubt and the appellant is entitled to the benefit of doubt as the case of the prosecution based on circumstantial evidence alone does not fulfill the tests as laid down by the Apex Court in Padala Veera Reddy''s case (supra). The appellant is accordingly acquitted giving him the benefit of doubt.

The appeal stands allowed and the bail bond and the sureties stand discharged.