in the high court of delhi at new delhi sahai vs. state.pdf · 2009-09-02 · whereas deceased...
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Crl.A.Nos.17/95, 21/95, 106/95 Page 1 of 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : July 3 , 2009
+ CRIMINAL APPEAL NO.17/1995
SOHAN SAHAI ..... Appellant
versus
STATE ..... Respondent
WITH
+ CRIMINAL APPEAL NO.21/1995
ASAD BAI @ ASAR BAI ..... Appellant
versus
STATE ..... Respondent
AND
+ CRIMINAL APPEAL NO.106/1995
MUNNA LAL ..... Appellant
versus
STATE ..... Respondent
Advocates who appeared in these cases:-
For the Appellants: Ms Charu Verma
For the Respondents : Mr M N Dudeja
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE AJIT BHARIHOKE
Crl.A.Nos.17/95, 21/95, 106/95 Page 2 of 21
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
AJIT BHARIHOKE, J.
1. These three appeals are directed against the judgment as also order on
sentence both dated 31st October 1994 passed by learned Additional Sessions
Judge in Session‟s Case No.18/1994 arising out of FIR No.31/1989 under
Section 302/34 IPC, P.S. Samepur Badli. Learned trial Judge vide aforesaid
judgment and order on sentence has convicted the appellants for the offence
punishable under Section 302 read with section 34 of the Indian Penal Code (in
short `IPC‟) and sentenced them to undergo imprisonment for life and also to
pay a fine of Rs.500/- each and, in default of payment of fine, to undergo further
simple imprisonment for a period of three months respectively.
2. Briefly stated, case of the prosecution is that on the night intervening 11th
and 12th February 1989 PW-1 Laik Ram, who was security supervisor in
Ishvaku India Pvt. Ltd., visited police post Prashant Vihar at around 3.00 AM
and informed that on the fateful night at about 2.30 AM when he had gone to
check his security staff at Plot No.4, Sector-9, Rohini he was informed by
Villan Jamadar that one Surat Ram has been murdered in the jhuggies of Sain
Baba Housing Society. His statement to that effect was recorded by ASI Inder
Singh and sent to the police station for registration of the case. On the basis of
Crl.A.Nos.17/95, 21/95, 106/95 Page 3 of 21
said information, FIR No.31/1989 under Section 302 IPC was registered at
Police Station Samepur Badli.
3. ASI Inder Singh also conveyed the information to the SHO and
proceeded to the spot of occurrence. SHO Inspector Rati Ram also reached
there, and found that the dead body of Surat Ram was lying on a cot in his
Jhuggi. The cot as well as the mattress thereupon were stained with blood.
Blood stained cot Ex.P-1 and mattress Ex.P-2 were converted into sealed
packets and taken into possession. Investigating Officer lifted blood from the
spot on a piece of cotton and sealed it in a phial and also took into possession
the blood stained earth and the control earth from the spot. He found a green
coloured printed saree Ex.P-3 smeared with blood at the roof of adjoining
jhuggi which was also converted into a sealed packet and taken into possession.
The Investigating Officer got the spot of occurrence photographed and also
prepared a rough site plan. He also arranged for sending the dead body for post
mortem. During investigation, statement of PW-2 Villan Jamadar was recorded
wherein he named the appellants Munna Lal, Sohan Sahai and Asad Bai as the
persons who had committed murder of Surat Ram. Dead body of the deceased
was sent for post mortem. It is further the case of the prosecution that appellant
Munna Lal was arrested on 14th February 1989 and on his disclosure and
pointing out, blood stained knife/churri Ex.P-4 as also his blood stained kurta
and lungi Ex.P-5 and P-6 were recovered, which were converted into sealed
Crl.A.Nos.17/95, 21/95, 106/95 Page 4 of 21
packets, and taken into possession. Thereafter, on the same day appellant
Sohan Sahai was arrested. He was wearing a blood stained shirt Ex.P-9 which
was taken into possession. Accused Asad Bai was also arrested on 14th
February 1989. She made a disclosure statement and in furtherance thereof she
got recovered her blood stained petticoat and blouse Ex.P-7 and P-8 which were
seized by the police. On 17th February 1989, after the post mortem, a sealed
packet containing blood stained clothes of the deceased was also handed over to
the police. All those blood stained articles including the weapon of offence
were sent for serological examination. Except for petticoat Ex.P-7 and blouse
Ex.P-8 of Asad Bai and blood stained earth lifted from the spot of occurrence,
which tested positive for blood group `B‟, all other exhibits tested positive for
blood group `O‟. The knife Ex.P-4 was sent for opinion of the doctor who
conducted the post mortem and he opined that the injuries found on the person
of deceased Surat Ram could have been caused by the knife Ex.P-4. After
completion of the investigation, all the three appellants were forwarded for trial
under Section 302/34 IPC.
4. The learned counsel for the appellants has taken us through the judgment
and pointed out that learned Additional Sessions Judge has recorded conviction
of the appellants relying upon following evidence/circumstances:-
(a) Eye witness account of the occurrence given by PW-3 Villan
Jamadar.
Crl.A.Nos.17/95, 21/95, 106/95 Page 5 of 21
(b) Believing the evidence of motive to the effect that appellant Asad
Bai wanted to perform second marriage of her daughter Mangli
Bai with appellant Sohan Sahai in consideration of Rs.1500/-
whereas deceased Surat Ram was against it and wanted Mangli
Bai to go back to her husband.
(c) The extra judicial confession made by the appellant in presence
of PW4 Kul Bahara.
(d) Recovery of blood stained weapon of offence i.e. knife/churri
Ex.P.4 at the instance of Munna Lal as also recovery of his blood
stained kurta Ex.P-5 and lungi Ex.P-6;
(e) Recovery of blood stained shirt Ex.P-9 from the person of
accused Sohan Sahai;
(f) Recovery of blood stained petticoat and blouse Ex.P-7 and Ex.P-
8 at the instance of accused Asad Bai;
(g) Serological reports Ex.P-13/1 to Ex.P-13/4, which establish that
blood stains on the clothes of Munna Lal and Sohan Sahai as also
on the knife/churri Ex.P-4 matched with the blood stains on the
clothes of the deceased, the cot and the mattress and blood lifted
from the place of occurrence, as all those exhibits had stains of
blood group `O‟.
5. Learned counsel for the appellants has assailed the impugned judgment
on the ground that learned trial court has erred in relying upon the testimony of
purported eye witness PW-3 Villan Jamadar whose narration, about the manner
in which murder took place, is highly unnatural, bordering on fiction and whose
presence at the spot is highly doubtful. She has further submitted that the
Crl.A.Nos.17/95, 21/95, 106/95 Page 6 of 21
learned trial Judge, though, he has relied upon the testimony regarding extra
judicial confession, has failed to take note of the fact that PW-4 Kul Bahara in
his cross examination has stated that Asad Bai had confessed about her guilt at
the police station. She has argued that since the alleged confession was made
while in custody at the police station, it is inadmissible in evidence. Learned
counsel for the appellants has further contended that the evidence of the
prosecution regarding the recovery of the weapon of offence and blood stained
clothes at the instance of respective appellants is highly doubtful. She has also
drawn our attention to the serological report Ex.PW-13/1 to Ex.PW-13/4 and
pointed out that except for the blood stains on the blouse Ex.P-7 and the
petticoat Ex.P-8 of Asad Bai and the blood stained earth sample lifted from the
spot, which tested positive for blood group `B‟, all other samples tested positive
for blood group `O‟. She has submitted that this mis-match between the blood
stains found on the exhibits, casts doubt on the prosecution case and in
particular indicates that someone else who was having blood group `B‟ was
there at the spot of occurrence but, there is no explanation forthcoming as to
who that person was, whose blood was found in blood stained earth lifted by the
Investigating Officer from the spot. Thus, she has argued that a possibility
cannot be ruled out that some other person with blood group `B‟ was
responsible for the murder of Surat Ram. She has also argued that evidence to
prove motive is also not reliable and is liable to be rejected. In view of the
aforesaid submissions she has urged that appeal be accepted.
Crl.A.Nos.17/95, 21/95, 106/95 Page 7 of 21
6. Learned counsel for the State, on the other hand, has argued in favour of
the conclusions arrived at by the learned Additional Sessions Judge. He has
submitted that the learned Additional Sessions Judge has rightly relied upon the
testimony of PW3 Villan Jamadar, who is a natural witness being a resident of a
nearby jhuggi and who had no motive whatsoever to falsely implicate the
appellants for the murder of the deceased Surat Ram, which version also finds
support from other circumstantial evidence. In support of this contention, he
has drawn our attention to the testimony of PW3 Villan Jamadar and PW4 Kul
Bahara and submitted that from their evidence, it is amply proved on record that
there was a motive on the part of the appellants Asad Bai and Sohan Sahai to
kill the deceased, who was not agreeable to second marriage of his daughter
Mangli Bai with the appellant Sohan Sahai. He has pointed out that the
appellant Asad Bai had even confessed her guilt in presence of PW4 Kul
Bahara. He has further submitted that aforesaid evidence also finds support
from the evidence relating to recovery of blood stained weapon of offence
Ex.P4, blood stained lungi Ex. P-5 and kurta Ex. P-6 of appellant Munna Lal, at
his instance, as also the recovery of blood stained petticoat and blouse of
appellant Asad Bai Exhibits P-7 and P-8 at her instance and also recovery of
blood stained shirt Ex.P-9 which appellant Sohan Sahai was found wearing at
the time of arrest. He has also drawn our attention to serological reports
Ex.PW13/1 to Pw13/4 and submitted that the blood stains found on
knife/churri Ex.P-4, saree of Asad Bai Ex.P-3, lungi and kurta of appellant
Crl.A.Nos.17/95, 21/95, 106/95 Page 8 of 21
Munna Lal Exhibits P-5 and P-6 and shirt of appellant Sohan Sahai Ex.P-9
tested positive for human blood of group “O” and those blood stains matched
with the blood group of the deceased Surat Ram lifted from the spot in a phial
and also the blood stains found on cot Ex.P-1 and mattress Ex.P-2 on which the
dead body was found. Thus, he has argued that the learned Additional Sessions
Judge has rightly relied upon the testimony of PW3 Villan Jamadar which finds
corroboration from above referred circumstantial evidence of motive as also
confession of the appellant Asad Bai and the recovery of the blood stained
weapon of offence and clothes at the instance of respective appellants and urged
us to dismiss the appeals.
7. We have carefully considered the submissions made by the learned
defence counsel as also the learned counsel for the State.
8. Foundation of the judgment of conviction recorded by the learned
Additional Sessions Judge is the eye witness account of the occurrence given by
PW3 Villan Jamadar. His testimony, however, does not appear to be
trustworthy. Firstly, because, the witness in his examination-in-chief has stated
that on the fateful night at around 2.00 A.M., he had gone out of his jhuggi to
urinate. He heard some noise coming from the jhuggi of Surat Ram, therefore,
he peeped into the jhuggi, and he saw in the light of an earthen lamp (diya) that
appellant Sohan Sahai was holding Surat Ram by his legs, appellant Asad Bai
was holding him by her hands and Munna Lal was cutting his neck with a
Crl.A.Nos.17/95, 21/95, 106/95 Page 9 of 21
churri. On seeing this, he went running to Laik Ram, Security Guard of the
company and narrated the entire incident to him. Thereafter, he went along
with Laik Ram to the police post. If above version of the witness was true, then
in the rukka Ex.PW1/A wherein the statement of Laik Ram was recorded, the
names of the appellants and the details about the manner in which murder of
Surat Ram was committed would have found mention in the statement of Laik
Ram Ex. PW1/A recorded at the police post. However, it is noted, that though
aforesaid statement Ex.PW1/A records that PW 3 Villan Jamadar told Laik Ram
that Surat Ram has been murdered in the jhuggis of Sain Baba Housing Society,
there is no mention of the names of the culprits and the details about the manner
in which murder was committed. Secondly, PW3 Villan Jamadar, in his cross-
examination, has stated that when Munna Lal was cutting the throat of the
deceased slowly with the knife/churri, nobody had put his or her hand on the
mouth of the deceased. If the aforesaid version was true then definitely the
deceased must have cried with pain and even physically resisted the appellants.
In such eventuality, obviously, the nearby jhuggi dwellers would have heard the
cries of the deceased and reached the spot of occurrence, which is not the case.
Even there is nothing in the testimony of the Investigating Officer to suggest
that he found any sign of resistance given by the deceased at the spot of
occurrence. Therefore, we do not find it safe to rely upon the testimony of
PW3 Villan Jamadar, which is highly unnatural and bordering on fiction.
Otherwise also, Villan Jamadar in his cross-examination has stated that he
Crl.A.Nos.17/95, 21/95, 106/95 Page 10 of 21
accompanied PW1 Laik Ram to the police post for lodging the report. If he was
an eye witness to the occurrence and had gone to the police post with one Laik
Ram, for lodging the report, his entire version should have found mention in
the report Ex. PW1/A lodged by PW1 Laik Ram.
9. Learned counsel for the State has submitted that Asad Bai was wife of the
deceased Surat Ram, therefore, it can be safely inferred that she, being the wife,
was present in the jhuggi of Surat Ram on the fateful night. He has argued, thus
it was obligatory upon her, in view of Section 106 of the Indian Evidence Act,
1872, to explain in her statement under Section 313 Cr.P.C., as to where she
was on the fateful night or what happened in the jhuggi which resulted in
murder of the deceased. He has argued that, since Asad Bai has failed to come
out with any explanation in that regard, it provides a strong additional
incriminating circumstance against her. In support of this contention, he has
relied upon the decision of the Hon‟ble Supreme Court in the matter of State of
Rajasthan Vs. Kashi Ram (2006) 12 SCC 254.
10. We are not convinced with the submission made by learned counsel for
the State. In criminal cases the onus of proving every fact essential to
establishment of charge against the accused lies upon the prosecution as in
criminal jurisprudence accused is presumed to be innocent till proved guilty
beyond reasonable doubt. The prosecution must stand or fall on its own legs
and it cannot derive any strength from the weakness of the defence. On perusal
Crl.A.Nos.17/95, 21/95, 106/95 Page 11 of 21
of the record, it would be seen that the prosecution has not adduced any
evidence to establish that the deceased Surat Ram was last seen in his jhuggi
with the appellant Asad Bai. Therefore, in absence of any evidence to that
effect, accused Asad Bai was not under any obligation to give any explanation
about her whereabouts on the fateful night. The judgment in the matter of State
of Rajasthan vs. Kashi Ram(supra) relied upon by the prosecution is based
upon its own peculiar facts which are distinguishable from the facts of this case.
To properly appreciate the contention of learned counsel for the State, it is
necessary to reproduce para 17 of the said judgment, which reads thus:
“17. We have been taken through the entire evidence on record. The
medical evidence on record clearly proves that the death of Kalwati and her
two minor daughters was homicidal caused by strangulation. The cause of
death was asphyxia. It is also established on record that the deceased was
last seen alive in the company of the respondent on 3-2-1998 at her house.
The prosecution has also successfully established the fact that the house
was found locked on the morning of 4-2-1998 and continued to remain
locked till it was opened after removing the door on 6-2-1998. Throughout
this period the respondent was not to be seen and he was arrested only on
17-2-1998. Neither at the time of his arrest, nor in the course of
investigation, nor before the court, has the respondent given any
explanation in defence. He has not even furnished any explanation as to
where he was between 4-2-1998 and 17-2-1998. It has been argued on
behalf of the prosecution that this most important circumstance has been
completely ignored by the High Court. The case of the prosecution
substantially rested on this circumstance. The respondent was obliged to
furnish some explanation in defence. He could have explained where he
was during this period, or he could have furnished any other explanation to
prove his innocence. Counsel for the respondent on the other hand,
contends that though the respondent furnished no explanation whatsoever,
there is evidence on record to prove that he had gone to attend Surat Garh
fair with his family members. A question, therefore, arises whether the
presumption under Section 106 of the Evidence Act may be drawn against
the respondent in facts of the case, since the fact as to where he was during
the relevant period and when he parted company with the deceased, were
Crl.A.Nos.17/95, 21/95, 106/95 Page 12 of 21
matters within his special knowledge the burden of proving which was cast
upon him by law.”
From the aforesaid observation of the Supreme Court in the judgment, it is
apparent that adverse presumption under Section 106 of the Indian Evidence
Act was drawn against the accused in the aforesaid matter because prosecution
had been able to establish some incriminating circumstances against him which
called for explanation on the part of the accused in the said case. However, in
the present case, the facts are entirely different. The prosecution has not led any
evidence whatsoever to establish that the deceased was last seen alive in the
company of the appellant Asad Bai on the fateful night. Therefore, in our view,
there was no legal obligation upon the appellant Asad Bai to come out with any
explanation in her statement under Section 313 Cr.P.C. and that the judgment
cited on behalf of the prosecution is not applicable to the facts of this case.
11. The learned trial court, besides the testimony of PW3 Villan Jamadar,
has also relied upon purported extra judicial confession made by appellant Asad
Bai to her son-in-law PW4 Kul Bahara. It would be seen that PW4 Kul Bahara
in his testimony, inter alia, stated thus:
“when the police had taken away Asad Bai on account of murder of
her husband, the police also took me from my jhuggi at about 12.00
night and at the police station Asad Bai had confessed that she had
murdered her husband, in my presence”
Crl.A.Nos.17/95, 21/95, 106/95 Page 13 of 21
From the aforesaid version, it is apparent that purported extra judicial
confession, if at all it was made, was made by Asad Bai at the police station
while she was in custody. Therefore, said confession is inadmissible in view of
Section 26 of the Indian Evidence Act, 1872. Thus, in our view the learned trial
court has erred in relying upon the testimony of PW4 Kul Bahara relating to
extra judicial confession made by the appellant Asad Bai.
12. It would be noticed that the Additional Sessions Judge has also believed
the evidence of the prosecution regarding motive on the parts of the appellants
to kill the deceased Surat Ram. The story of the prosecution as per the charge
sheet is that Mangli Bai daughter of Asad Bai was married to PW4 Kul Bahara.
She returned from her matrimonial home after 15 days. Asad Bai did not wish
her daughter Mangli Bai to go back to her husband Kul Bahara and she wanted
to marry her to the appellant Sohan Sahai in consideration of Rs.1500/-,
whereas the deceased Surat Ram was opposed to the idea and he wanted Mangli
Bai to go back to her husband and there used to be fight between Asad Bai and
the deceased Surat Ram on the said issue. To prove the aforesaid motive,
prosecution has examined two witnesses PW3 Villan Jamadar and PW4 Kul
Bahara. PW3 Villan Jamadar in his cross-examination on behalf of the
appellant Asad Bai was unable to tell about the exact nature of conversation
which used to take place between Surat Ram and Asad Bai regarding their
daughter Mangli Bai, and in the later part of the cross-examination, he has
Crl.A.Nos.17/95, 21/95, 106/95 Page 14 of 21
admitted that he was never present during such conversations. In his
examination-in-chief also he has stated that he used to hear that Asad Bai
wanted to marry their daughter Mangli Bai again, whereas Surat Ram wanted to
send her to her previous husband. However, he has not clarified in his cross-
examination from whom he had heard that but, he is categoric that he never
heard any conversation between Asad Bai and the deceased Surat Ram
regarding their daughter Mangli Bai. Therefore, it is obvious, that PW3 Villan
Jamadar is not an eye witness to any such discord between the appellant Asad
Bai and the deceased and his testimony regarding the motive part is only
hearsay, and, therefore, is inadmissible in evidence.
13. Another witness examined by the prosecution to prove motive on the part
of the appellants Asad Bai and Sohan Sahai to kill the deceased Surat Ram is
PW4 Kul Bahara. We may mention at the outset that PW4 Kul Bahara falls
within the category of an interested witness because according to him 15 days
after his marriage with Mangli Bai, his mother-in-law (appellant Asad Bai)
took her back to her house and never sent Mangli Bai back to her matrimonial
home. From this, it can be inferred that witness might be nursing a grudge
against the appellant Asad Bai as she was not allowing her daughter to go back
to her matrimonial home. Further, PW4 Kul Bahara in his examination-in-chief
has stated that Asad Bai did not send Mangli Bai back to her matrimonial home,
as she had agreed to marry her somewhere else for a consideration of Rs.1500/-,
Crl.A.Nos.17/95, 21/95, 106/95 Page 15 of 21
out of which she had already accepted Rs.150/- as advance. His aforesaid
version is not believable because in his cross-examination, he could not tell the
name of the person whom Asad Bai had agreed to remarry her daughter Mangli
Bai to for a consideration of Rs.1500/-. Had he actually been witness to such a
transaction, he would at least have known the name of the person with whom
Mangli Bai was supposed to be remarried. Further, to prove above referred
point of discord between appellant Asad Bai and her deceased husband Surat
Ram, the best witness could be Mangli Bai herself. Mangli Bai, however, has
neither been cited nor examined as a witness to prove the motive. Since
prosecution has opted to withhold the best evidence by not producing her as a
witness, we are inclined to infer that had she been examined as a witness, her
version would have gone against the prosecution. Therefore, under the
circumstances, we are of the view that the evidence led by the prosecution to
establish motive on the part of the appellants Asad Bai and Sohan Sahai, is not
reliable, and that the learned Additional Sessions Judge has erred in
concluding that there was a motive on the part of the appellant to kill the
deceased.
14. Coming to the recovery of the weapon of offence knife/churri Ex.P-4 and
blood stained lungi Ex.P-5 and kurta Ex.P-6 at the instance of accused
Munna Lal. To prove aforesaid recovery, prosecution has relied upon the
Crl.A.Nos.17/95, 21/95, 106/95 Page 16 of 21
statements of the Investigating Officer PW13 Inspector Rati Ram, PW12
Constable Anang Pal Singh and PW 2 Pratap Chand Mandal.
15. PW 2 Pratap Chand Mandal has stated in his examination-in-chief that
accused Munna Lal was arrested by the police on 14th February, 1989 and he
made a disclosure statement to the police stating that he could get recovered one
white shirt and lungi and knife. Thereafter, he led the police party to jhuggi
opposite the jhuggi of the deceased and got recovered knife/ churri Ex.P-4 and a
lungi Ex.P-5 and kurta Exhibits P-6. He has stated that recovered articles were
taken into possession vide memo Ex.2/B, which bears his signatures at point
“A”. Perusal of the record would show that though the recovery memo Ex.2/A
bears the signatures of PW2 Pratap Chand Mandal, neither the disclosure
statement of Munna Lal Ex.12/A nor his personal search memo Ex.P-12/B bears
signatures of this witness. Had this witness been present at the time of arrest of
Munna Lal and when he made disclosure, under natural circumstance, the
Investigating Officer would have obtained his signatures on the personal search
memo as well as the disclosure statement of the appellant Munna Lal, being an
independent witness. Since his signatures are not there on the arrest memo
Ex.PW12/B and disclosure statement Ex.PW12/A, his presence at the time of
the recovery of Exhibits P-4 to P-6 is doubtful. Otherwise also, PW13 Inspector
Rati Ram in his entire testimony has nowhere stated that PW2 Pratap Chand
Mandal was with him on 14th February 1989, when he received information
Crl.A.Nos.17/95, 21/95, 106/95 Page 17 of 21
about the presence of the appellant Munna Lal at his jhuggi, or that he
subsequently joined him in the investigation to witness the recovery of weapon
of offence and blood stained clothes of the appellant Munna Lal Exbts P-4 to P-
6 at his instance. On the other hand, in his cross-examination he has stated that
when he arrested Munna Lal, he did not join any independent witness from the
nearby jhuggis to his arrest. Therefore, it remains unexplained as to when PW2
Pratap Chand Mandal came to be joined as witness and under what
circumstances he signed the pointing out-cum-recovery memo Ex.12/A as also
the sketch of the knife Ex.2/A. Even the testimony of Constable Anang Pal
Singh who is supposed to be other witness of recovery of weapon of offence
and clothes Exbts.P-4 to P-6 on the pointing of appellant Munna Lal, does not
give any clue as to how and when PW2 Pratap Chand Mandal came to be joined
as a witness to the recovery at the instance of appellant Munna Lal. In view of
the aforesaid circumstances, we are of the opinion that presence of PW2 Pratap
Chand Mandal at the time of recovery is highly doubtful and that being so, the
testimony of PW12 Constable Anang Pal Singh and PW13 Investigating Officer
Inspector Rati Ram also becomes doubtful and unreliable. Thus, we do not find
it safe to rely upon the aforesaid evidence of recovery of witness and blood
stains clothes at the instance of Munna Lal.
16. If the evidence pertaining to recovery of above said articles at the
instance of Munna Lal fails, then the evidence of the prosecution regarding
Crl.A.Nos.17/95, 21/95, 106/95 Page 18 of 21
recovery of the blood stained shirt from the person of accused Sohan Sahai as
also the blood stained petticoat and blouse at the instance of Asad Bai becomes
doubtful, because of the same reasons. Otherwise also, the prosecution story, as
narrated by the Investigating Officer Inspector Rati Ram, to the effect, that at
the time of arrest accused Sohan Sahai was wearing blood stained shirt Ex.P-9
appears to be highly improbable, because had prosecution version about murder
of Surat Ram been true, under natural course of circumstances, the first impulse
of the appellant accused would have been either to get rid of the shirt or to wash
it in order to remove the blood stains from the shirt, instead of moving around
wearing the blood stained shirt. Thus, in our view, even the evidence of
recovery of blood stained shirt from the person of the accused Sohan Sahai is
highly doubtful.
17. Even if the recovery of petticoat and blouse Exhibits P-7 and P-8 at the
instance of appellant Asad Bai is accepted, then also it is of no help to the
prosecution because as per the serological report, the blood found on the
petticoat and the blouse Exbts. P-7 and P-8 was of group “B” which did not
match with the blood group “O” found on the samples lifted and seized from
the spot of occurrence, as such those clothes are not connected to the murder of
the deceased Surat Ram.
Crl.A.Nos.17/95, 21/95, 106/95 Page 19 of 21
18. Lastly, it would be seen from the serological report Ex.13/3 that though
the case of the prosecution is that the blood group of the deceased Surat Ram
was „O‟, the blood stained earth lifted from the spot of occurrence tested
positive for the blood group „B‟. That being the case, a possibility of someone
having blood group „B‟ been present at the spot of occurrence or having been
involved in the killing of the deceased Surat Ram cannot be ruled out. From the
record, including the testimony of the Investigating Officer Inspector Rati Ram,
it is apparent that Investigating Officer has not cared to find out the reasons for
presence of blood group „B‟ in the blood stained earth lifted from the spot of
occurrence. In absence of any explanation coming forth in this regard, a
possibility cannot be ruled out that some other person with blood group „B‟
might be responsible for the death of the deceased.
19. Further, the Investigating Officer Inspector Rati Ram in his testimony has
deposed that on reaching the spot of occurrence, he seized blood stained earth,
blood stained articles including one printed green saree which was found at the
roof of adjoining jhuggi of son of appellant Asad Bai, vide a Seizure Memo Ex.
PW1/B. On seeing the blood stained saree, under the natural course of
circumstances, Investigating Officer was expected to suspect some lady for the
murder. According to PW1 Laik Ram, who is one of the witnesses to the
Seizure Memo Ex.PW1/B, PW3 Villan Jamadar was present at the time of
recovery of the saree. If Villan Jamadar actually was an eye witness to the
Crl.A.Nos.17/95, 21/95, 106/95 Page 20 of 21
occurrence, at least at the time of recovery of saree, he would have told the
Investigating Officer that the deceased was killed by the appellants Asad Bai,
Sohan Sahai and Munna Lal. In that eventuality, the Investigating Officer was
naturally expected to arrest Asad Bai instead of allowing her to go along with
the dead body as Inspector Rati Ram has deposed in his testimony. The
aforesaid conduct of Inspector Rati Ram rules out the presence of PW3 Villan
Jamadar at the time of occurrence and raises a strong doubt that he has been
introduced subsequently as an eye witness by the Investigating Officer.
20. In view of the discussion above, we are of the opinion that the learned
Additional Sessions Judge has erred in appreciating the evidence inasmuch as
relying upon the testimony of PW3 Villan Jamadar as also the evidence relating
to motive on the part of the appellants as well as the extra judicial confession
made by appellant Asad Bai. Even the testimony of witnesses regarding
recovery of incriminating articles, like weapon of offence Ex.P4 and blood
stained clothes of the appellant Exbts P-5 to P-9 at their instance is highly
doubtful. Thus, we do not consider it safe to sustain the judgment of
conviction. Accordingly, we accept the appeals filed by the appellants Sohan
Sahai, Asar Bai and Munna Lal and set aside the judgment of conviction as also
the order of sentence passed by the learned trial Judge.
Crl.A.Nos.17/95, 21/95, 106/95 Page 21 of 21
21. All the three appellants are, accordingly, acquitted. Appellants are on
bail, therefore, their bail bonds stand cancelled and their respective sureties
stand discharged. The appeals stand disposed of as having been allowed.
AJIT BHARIHOKE, J.
July 3 , 2009 BADAR DURREZ AHMED, J.
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