Madan B. Lokur, J.
1. The Appellant is aggrieved by a judgment and order dated 14th November, 2002 passed by the learned Additional Sessions Judge in Sessions Case No.66/2001. The Appellant was convicted of an offence punishable under Section 302 of the Indian Penal Code (for short the IPC) read with Section 34 thereof for having committed the murder of Thumb Bahadur. The Appellant was sentenced to imprisonment for life and also to pay a fine.
2. This case highlights the need to reiterate the cardinal principle of our criminal jurisprudence, which is that a person is presumed innocent until he is proved guilty by a competent and impartial tribunal - a person accused of an offence does not have to prove his innocence. This principle is internationally recognized as well. In the International Covenant on Civil and Political Rights (to which India is a signatory) it is stated in Article 14(2) that:
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
The International Commission of Jurists in its Position Paper on Criminal Justice Reform in India (2003) has pithily observed:
The presumption of innocence prohibits the sentencing of a person, unless the state authority has proven his or her guilt. If a doubt remains, the accused cannot be convicted (in dubio pro reo).Indeed, our Supreme Court in Narendra Singh v. State of Madhya Pradesh : 2004CriLJ2842 has recognized that:
Presumption of innocence is a human right.Keeping this salutary principle in mind, we now consider the merits of the controversy before us.
3. Initially, there were two accused persons, that is, the Appellant and Bhim Bahadur but during trial of the case, Bhim Bahadur expired.
4. Thumb Bahadur (the deceased) was living on the top floor of house No.B-63, Dayanand Colony, Lajpat Nagar, New Delhi along with Ram Bahadur, Mohan Lal (Mohan Kumar), Jeevan Lal Vishwakarma, Pal Bahadur and his nephew Krishan Bahadur.
5. On 20th September, 1991, Bhim Bahadur and the deceased had some altercation with regard to the preparation of a ration card. Although the dispute was settled with the intervention of Krishan Bahadur, Bhim Bahadur gave a threat to the deceased that he will see him later on.
6. On 21st September, 1999, Bhim Bahadur and the Appellant went to the house of the deceased, which consisted of two rooms and a backyard. According to the prosecution, Bhim Bahadur and the Appellant assaulted the deceased with a half brick and strangulated him with the help of a coir rope which was found around his neck. Then they kept the body of the deceased in the backyard and sat in the adjacent room and consumed liquor.
7. The prosecution story is that when Krishan Bahadur, PW-4 and Mohan Kumar, PW-10 along with Jeevan Lal Vishwakarma and Pal Bahadur reached the house, they did not find the deceased. They tried to open the door of the backyard but were prevented from doing so by Bhim Bahadur and the Appellant. Thereupon, these four persons, that is, Krishan Bahadur, PW-4, Mohan Kumar, PW-10, Jeevan Lal Vishwakarma and Pal Bahadur nabbed both Bhim Bahadur and the Appellant. Krishan Bahadur, PW-4 then opened the door and went to the backyard where he found the dead body of Thumb Bahadur lying in a pool of blood.
8. Krishan Bahadur then went to intimate the landlord of the house Krishan Lal, PW-3 leaving Bhim Bahadur and the Appellant in the custody of the remaining three persons. Krishan Lal, PW-3 intimated the police about the crime and by the time Krishan Bahadur returned to the scene of crime, the police officials had already arrived there. The police apprehended Bhim Bahadur and the Appellant and interrogated them.
9. On interrogation, Bhim Bahadur made a disclosure statement as a result of which a blood stained shirt belonging to the deceased was recovered from the roof of the room. The crime team were called to the scene of crime and fingerprints were lifted from the glass tumblers and liquor bottles lying there. The glass tumblers, the liquor bottles and blood stained articles were seized and specimen fingerprints of Bhim Bahadur and the Appellant were taken and, according to the fingerprint expert, the fingerprints lifted matched with those of Bhim Bahadur only.
10. On completion of investigation, the police filed a challan under Section 173 of the Code of Criminal Procedure (for short the CrPC). The following charge was then framed against the Appellant as well as Bhim Bahadur:
That between 20.9.99 and 21.9.99 at the top floor of B-63, Dayanand Colony, within the jurisdiction of P.S. Lajpat Nagar, both of you in furtherance of common intention committed culpable homicide amounting to murder of one Thumb Bahadur by hitting him with fist, blows and bricks and thereby committed an offence punishable under Section 302 read with section 34 of the Indian Penal Code within the cognizance of this Court.
Both of them pleaded not guilty and claimed trial.
11. We do not wish to comment on the guilt or otherwise of Bhim Bahadur since he expired during trial of the case but we are certainly of the opinion that there are far too many contradictions in the testimony of the witnesses to nail the Appellant.
12. The most important witness in this case is Krishan Bahadur, PW-4, the nephew of the deceased. He says in his testimony that on 21st September, 1999 at about 10.30 pm, he came to the house along with Ram Bahadur and found the main door open. When he entered the house, he saw Bhim Bahadur and the Appellant consuming liquor in the rear room. He enquired about his uncle and also tried to open the door leading to the backyard but he was prevented from doing so by Bhim Bahadur and the Appellant. Then, Mohan Lal (Mohan Kumar), Pal Bahadur and Jeevan Lal Vishwakarma nabbed these two persons. The witness then went to the backyard and found the corpse of his uncle in a pool of blood. He does not give any indication of where Ram Bahadur was during this period. In his cross-examination, Krishan Bahadur, PW-4 admitted that while Bhim Bahadur used to visit the deceased, he had never seen the Appellant prior to the date of the occurrence. He confirmed that the altercation that had taken place on 20th September, 1999 was only between the deceased and Bhim Bahadur. On further cross-examination, he stated that Mohan Kumar, Jeevan Lal Vishwakarma, Ram Bahadur and Pal Bahadur used to stay at different places contradicting his statement in his examination-in-chief to the effect that they all lived in the same house. He also admitted that Mohan Kumar (Mohan Lal) is his real brother, a fact which he did not disclose in his examination-in-chief wherein he described Mohan Lal (Mohan Kumar) as his friend.
13. Mohan Kumar was examined as PW-12 and he stated that he used to reside on the top floor of B-63, Dayanand Colony, Lajpat Nagar and that he had come to Delhi about two months prior to the incident, completely contradicting the statement of Krishan Bahadur, PW-4 who stated that Mohan Kumar used to reside in Nizamuddin and had come from the village about two or three days prior to the incident. This witness further states, apparently inconsistently, that on 21st September, 1999 at about 10.00 pm, there was an altercation between Bhim Bahadur and Thumb Bahadur over the preparation of a ration card. This witness had gone to purchase some beedis accompanied by Jeevan Lal and Pal Bahadur and had returned home at about 10.30 pm. When he returned, he saw Bhim Bahadur and the Appellant consuming liquor and Krishan Bahadur was trying to open the rear door of the room. At that time, both Bhim Bahadur and the Appellant were threatening Krishan Bahadur that they would kill him as well. Thereupon, this witness, Krishan Bahadur and Jeevan Lal opened the door leading to the backyard and found the deceased lying in a pool of blood. This witness does not mention anything about Pal Bahadur nor does he notice the presence of Ram Bahadur. This witness also admits that he had not seen the Appellant before 21st September, 1999 but that Bhim Bahadur used to visit the deceased.
14. An analysis of the evidence of Krishan Bahadur, PW-4 and Mohan Kumar, PW-12 shows that while they were brothers, for some odd reason Krishan Bahadur, PW-4 referred to him as a friend. While Mohan Kumar, PW-12 stated that he had been in Delhi for a couple of months, Krishan Bahadur, PW-4 says that he arrived only two or three days prior to the incident. According to Krishan Bahadur, PW-4, Mohan Kumar was staying in Nizamuddin but according to Mohan Kumar he was staying in Dayanand Colony, Lajpat Nagar. We find these discrepancies to be irreconcilable. Although these discrepancies may not be very material so far as the crime is concerned, but they do show that there are some inexplicable contradictions between the testimony of these two most important witnesses.
15. It is also not possible to find out from the testimony of Krishan Bahadur, PW-4 and Mohan Kumar, PW-12 who were the persons present at the scene of crime other than Bhim Bahadur, the Appellant, Krishan Bahadur, PW-4 and Mohan Kumar, PW-12. While Krishan Bahadur, PW-4 initially mentioned the presence of Ram Bahadur, later on he did not ascribe any role to Ram Bahadur. Similarly, Mohan Kumar, PW-12 does not even mention anything about Ram Bahadur. It is, thereforee, doubtful if Ram Bahadur was at all present at the scene of crime as alleged by Krishan Bahadur, PW-4.
16. Constable Maharaj Singh, PW-6 states that when he reached the scene of crime at about 11.30 pm along with Sub Inspector Sunil Kumar, he only found a dead body lying there and no witness met him at that time. On his part, Sub Inspector Sunil Kumar, PW-13 states that the body of Thumb Bahadur was lying at the scene of crime and Krishan Bahadur was also present there apart from Bhim Bahadur and the Appellant. In his cross-examination, he states that including Thumb Bahadur, there were four persons who were present there but he does not recollect their names except that they were Nepali people. The other three persons could very well be Bhim Bahadur, Krishan Bahadur and the Appellant. If that be so, then Ram Bahadur, Pal Bahadur, Mohan Kumar and Jeevan Lal Vishwakarma were not present. Inspector Jai Singh, PW-15 states that apart from Krishan Bahadur, Bhim Bahadur and the Appellant, other PWs were also present. He does not indicate who they were and how many. In view of the contradictions placed before us, all those who were present at the scene of crime were important and material witnesses, but none of them entered the witness box.
17. In a case of circumstantial evidence, we have to be quite careful and circumspect in accepting the evidence which would need adequate corroboration. In Chhotan Mahton v. State : AIR1959Pat362 , it has been made very clear that:. the fundamental basis of the criminal law (is) that the burden of proving the case lies always on the prosecution and if, from the circumstances appearing from the evidence, there arises any doubt in the case it must be held that the prosecution case has not been proved, irrespective of the fact whether the defense taken up by the accused is true or not. And this principle applies both to the corpus delicti as well as to the guilt of the persons who are alleged to have committed the crime.
18. In Md. Alimuddin v. State of Assam it has been held
It is one of the fundamental tenets of criminal jurisprudence that the burden of proving the prosecution case squarely lies on the prosecution. This general burden never shifts. defense is not bound to open its mouth so long as prosecution does not discharge its general burden of proving its case beyond reasonable doubt. defense version may even be false, because a falsely instituted prosecution may compel the accused to adopt a false defense. So, prosecution cannot derive any advantage from the falsity or other infirmities of the defense version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt.
19. What has happened in the present case is that instead of reconciling the discrepancies and contradictions in the testimony of its witnesses, the prosecution has taken advantage of some flaws in the defense raised and, unfortunately, the learned Trial Judge has convicted the Appellant on the basis of these flaws. A few sample passages may be quoted from the impugned judgment and order. In paragraph 35, it is said,
In order to establish the fact that the accused had been at the place of occurrence and had been apprehended by the police, the prosecution had examined PW4 and PW12. If the suggestion given to PW4 is kept in mind it will be clear that the accused have not disputed their presence in B-63 at that time. The question arises as to whether the Explanationn put forth by the accused (as suggested to PW4) is acceptable or not. In my view since the accused Krishan Bahadur girl has taken an inconsistent plea, it cannot be believed. When this accused (Krishan Bahadur Giri) was examined Under Section 313 Cr.P.C., he has denied his presence at the place of occurrence. This particular plea was never suggested to the PWs.
Similarly, in paragraph 36, it is said,
The rough site plan Ex. PW 15/12 shows that there was no other entry to the room where the deceased was lying except through the room where the accused were taking liquor. The occurrence had taken place on the top floor of B-63. The rough site plan Ex. PW 15/12 and the site plan on scale Ex. PW 11/1 show that there was no window in the room in which the dead body was lying. Accused Krishan Bahadur girl has simply denied the prosecution version. He has not come forward with an Explanationn, which is acceptable. The witnesses (PW4 and PW12) were not knowing him from before. They were not inimical to him.
Then again, in paragraph 36, it is said,
The accused might not be knowing that these PWs (PW4 and PW12) also used to reside in that very house and that they would come there. The clothes of accused Krishan Bahadur girl had been sent to FSL. The report of FSL (Ex. PW 15/14) shows that the pant and shirt were having human blood. The group was not detected. The accused by taking a plea of denial implicate has failed to show that he has been falsely implicated because of one reason or the other. I know that it is for the prosecution to establish its case beyond reasonable doubt but at the same time I cannot loose sight of the fact that once the prosecution witnesses are held to be reliable, then the denial of each and every fact by the accused, provides the missing links. I thereforee, hold accused Krishan Bahadur girl guilty under Section 302/34 IPC.
20. There is nothing to suggest that the Appellant had any enmity with the deceased - the altercation that took place on 20th September, 1999 was between Bhim Bahadur and the deceased - the Appellant was not concerned with the dispute in any manner whatsoever. In fact, the Appellant was seen for the first time on 21st September, 1999 at the scene of crime soon after Thumb Bahadur had been killed. No recoveries were made at the instance of the Appellant. His fingerprints were not found either on the glass tumblers or the liquor bottles. According to the medical opinion given by Dr. Prashant Kulshreshtha, PW-15, some scuffle appears to have taken place but no injury marks were found on the person of the Appellant. It could as well be asked: what concern did the Appellant have with the crime?
21. In view of the gaps and uncertainties in the prosecution case, we cannot, on the basis of uncorroborated and discrepant circumstantial evidence, return a finding convicting the Appellant of an offence punishable under Section 302 of the IPC.
22. Consequently, the impugned judgment and order is set aside and the appeal is allowed. We direct that the Appellant be set at liberty forthwith, if not required in any other case.
23. In view of the assistance rendered by the learned amices Curiae, we direct the State to pay her a fee of Rs.5,500/- within a period of six weeks from today.