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2014 Supreme(Del) 2135
High Court of Delhi
PRADEEP NANDRAJOG & MUKTA GUPTA, JJ.
Jitender Mahawar @ Kalu @ Pawan
Versus
State
CRL.A. No. 1069 of 2014
Decided on: 19-09-2014
For the Appellant:Pramod Kumar Dubey, with Pulkit Misra, Namita Wali, Advocates.
For the Respondent:Varun Goswami, APP Insp.Anand Prakash, P.S. Vasant Vihar, Advocates.
The judgment emphasizes the importance of conclusive evidence and the need for a clear establishment of motive in cases based on circumstantial evidence.
Headnote:
Murder - Evidence, Circumstantial - Last Scene - Motive - Evidence Act, Section 3, Section 27 - Indian Penal Code, Section 300 - Juvenile Justice (Care and Protection of Children) Act, Section 2(12) - [Evidence Act, Section 3, Section 27, Indian Penal Code, Section 300, Juvenile Justice (Care and Protection of Children) Act, Section 2(12)]
Fact of the Case:
The appellant was found guilty of murdering the deceased based on circumstantial evidence including last scene, recovery of a jacket with the deceased's blood, and establishment of motive. However, discrepancies in witness testimony and lack of conclusive evidence led to the appellant's acquittal.
Finding of the Court:
The court found discrepancies in witness testimony and lack of conclusive evidence, leading to the benefit of doubt being granted to the appellant and his acquittal.
Issues: Discrepancies in witness testimony, sufficiency of circumstantial evidence, and establishment of motive.
Ratio Decidendi: The evidence of last seen was found to be shaky, the recovery of the jacket alone was not sufficient to sustain the verdict of guilt, and the established motive was deemed too remote to assume a proportion of motive to kill the deceased.
Final Decision: The appeal was allowed, the conviction and sentencing of the appellant were set aside, and the appellant was acquitted of the charge.
Pradeep Nandrajog, J. (Oral):
1. Holding appellant Jitender Mahawar @ Kalu @ Pawan guilty of the offence of having murdered Deepak Thapa, the learned Trial Judge has held that the testimony of Dinesh Kumar PW-1 establishes proof of the fact that Jitender and the juvenile co-accused ‘K’ were in the company of the deceased at around 12 mid-night at the place where five hours after the dead body was found, attracts the genre of law concerning last scene. A jacket got recovered by the appellant on which human blood of Group ‘O’, same group as that of the deceased was the next incriminating evidence found. The further incriminating evidence was the recovery of a mobile phone held proved by the learned Trial Judge as that of the deceased. Motive has been established by the learned Trial Judge through the testimony of Ms.Babli PW-20.
2. Information was received at PS Dhaula Kuan at 9.45A.M on December 14, 2010 that the dead body of a male was lying at Rao Tula Ram Marg flyover at its junction with Ol of Palme Road.
3. SI Mandeep PW-25 to whom the matter was referred for investigation reached the spot and found the dead body of a male person from whose personal search Rs.250/- was recovered. Near the dead body a SIM card of Idea Company was found. Two shirts, one orange and the other blue were also seen by him. A purse containing a voter ID card, two lighters, two gloves and one copper wire bundle were also seen lying near the dead body. He seized the articles as recorded in the seizure memos Ex.PW-12/A, Ex.PW-12/B, Ex.PW-12/C and Ex.PW-12/D. Pieces of brick and concrete stone lying nearby were seized vide memo Ex.PW-12/E.
4. The dead body was sent to the mortuary of All India Institute of Medical Sciences for post mortem.
5. The voter ID card was in the name of Deepak Thapa and since the address was mentioned thereon, information was conveyed to the mother Radha Thapa and the brother Arjun Thapa of the deceased.
6. The post mortem of Deepak’s dead body was conducted by Dr.Akhilesh Raj PW-15 who authored the report Ex.PW-15/A recording therein eight injuries on the dead body of which two were fatal. The injuries were lacerated wounds on the body, with two being on the temporal region resulting in subdural and subarachnoid haemorrhage. The right parieto temporal bone was fractured.
7. It was apparent that the deceased had been struck blows by a hard blunt object, which could be the broken brick pieces seized from the spot by SI Mandeep PW-25.
8. Dinesh Kumar PW-1 had claimed, as told to the Investigating Officer that around mid-night he, the deceased, Kalu (the appellant) and ‘K’ (a juvenile) were together at Shastri Market. The market is in Moti Bagh and is hardly 500 metres away from the place where Deepak’s dead body was found.
9. Kalu and ‘K’ became suspects and as per the prosecution were apprehended.
10. Since we are not concerned with ‘K’, the juvenile, who was referred to the Juvenile Justice Board for trial, we note that the prosecution claims to have recovered a mobile phone Ex.P-13, without a SIM card when appellant was apprehended and personal search was conducted. The learned Trial Judge has opined that the said mobile phone belonged to the deceased. The prosecution also claims that the appellant also got recovered a jacket, on which we find that as per the FSL Report Ex.PW-27/C to Ex.PW-27/E human blood of group ‘O’, that of the deceased was detected.
11. As regards the mobile phone Ex.P-13, the evidence is that on December 16, 2007, as deposed to by HC Anil PW-4, the same was deposited in the malkhana by Insp.Pawan as per entry No.1478, Ex.PW-4/C. Radha Thapa PW-5, Deepak’s mother has deposed that her son Deepak had a black coloured Videocon mobile telephone but did not remember the mobile number. The mobile phone Ex.P-13 has not been put to her for dock identification and we find that there is no TIP conducted qua the instrument. Insp.Pawan Kumar PW-27 and Ct.Ashok Kumar PW-14 have deposed that they recovered th
