UMAKANT YADAV vs STATE NCT OF DELHI

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: May 22, 2024
Pronounced on: July 02, 2024

+ CRL.A. 95/2024

MOHD. TAHIR ….. Appellant
Through: Mr. Adit S. Pujari, Advocate on the panel of Delhi High Court Legal Services Authority with Ms. Aparajita Sinha, Advocate

Versus

STATE (NCT OF DELHI) ….. Respondent
Through: Mr. Mukesh Kumar, Additional Public Prosecutor with Inspector Pawan Kumar & Sub-Inspector Vivek Kumar

+ CRL.A. 196/2024

UMAKANT YADAV ….. Appellant
Through: Mr. D.B. Goswami, Advocate

Versus

STATE NCT OF DELHI ….. Respondent
Through: Mr. Mukesh Kumar, Additional Public Prosecutor with Inspector Pawan Kumar and Sub-Inspector Vivek Kumar

CORAM:

HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MR. JUSTICE MANOJ JAIN

JUDGMENT
SURESH KUMAR KAIT, J
1. The above-captioned two appeals spring out of judgment dated 13.10.2023 passed by the learned Court of Sessions in case CNR No. DLST0l-002079-2015, in FIR No.932/2015, registered at Police Station Neb Sarai, Delhi, whereby appellants have been held guilty of committing offence under Section 302/34 IPC. Vide impugned Order on Sentence dated 20.11.2023, appellants have been directed to undergo ‘rigorous imprisonment for life’ and to pay fine of Rs.10,000/- each, a part of Rs.7,000/- whereof shall be compensation for State towards prosecution expenses. In default of payment of fine, appellants have been sentenced to undergo simple imprisonment for six months.
2. Since both the appeals arise out of common impugned judgment dated 13.10.2023 and Order on Sentence dated 20.11.2023, with the consent of learned counsel for the parties, these were heard together and are being disposed of by this common judgment.
3. The brief facts of the prosecution case, as have been spelt out in the impugned judgment, are that on 07.07.2015, on receipt of a call with regard to theft and assault, DD No. 14A was entered. Inspector Rajeev Kumar reached the spot i.e. the road near House No. D-219, Krishna Park, Delhi and it transpired that in the morning a boy was caught and beaten by the occupants of House No.216, Krishna Park and the neighbours. The said boy was found dead lying between a car bearing No. DL 3C Z9991 and House No. D-219 Krishna Park, having various injuries on the part of his body. The boy was sent to All India Institute of Medical Sciences (AIIMS) where vide MLC No.501270/2015, it was recorded that a boy was received ‘brought dead’ to the hospital. The mother of the deceased, namely, Smt. Meena Devi was called at AIIMS Trauma Centre, where she identified the body of her son i.e. deceased Sunil, aged about 15 years. Consequentially, FIR in question was registered against the appellants-accused, who were working as Caretaker and residing in the building, near to which dead body of Sunil was found.
4. During the course of investigation, it transpired that the deceased was last seen with appellants-accused. At their instance, weapon of offence i.e. wooden danda and wooden phatti alongwith torn clothes of the deceased were found. After conclusion of the investigation, charge-sheet for the offence under Section 302/34 IPC was filed against both the appellants.
5. Learned Court of Metropolitan Magistrate committed the case to the Court of Sessions on 12.07.2015 and vide order dated 07.01.2016,Charge under Section 302/34 IPC was framed against appellants-accused, to which they pleaded ‘not guilty’ and claimed trial.
6. The prosecution examined as many as 30 witnesses in support of its case. The accused persons, in their statement recorded under Section 313 Cr.P.C. denied the charges levelled against them, however, did not lead any evidence in their defence.
7. Learned Trial Court vide impugned judgment dated 13.10.2023 held that prosecution has successfully established the case against the accused persons by leading cogent evidence and held the accused guilty for having committed offence under Section 302/34 IPC.
8. Vide Order on Sentence dated 20.11.2023, learned Trial Court imposed punishment of ‘life imprisonment’ and directed the appellants to undergo ‘rigorous imprisonment for life’ for committing offence under Section 302/34 IPC and to pay fine of Rs.10,000/- each. Besides, learned Trial Court also directed the appellants to pay Rs.7,000/- each to the respondent – State towards prosecution expenses. In default of payment of compensation/fine, the appellants were directed to undergo simple imprisonment for a period of 06 months.
9. Aggrieved against their conviction, these appeals have been preferred on behalf of the appellants on the ground that the impugned judgment is contrary to the fundamentals and principles of criminal jurisprudence and trial proposition of law.
10. During the course of hearing, Mr. Adit S. Pujari, learned counsel appearing for appellant- Mohd. Tahir, submitted that the testimony of star witness Sonu Sharma (PW-1), who had identified the accused persons, is false and motivated because it is premised upon ‘last seen together’. The appellants/accused, being the caretakers of the building, no doubt were the obvious last persons to be with the deceased. Moreover, PW-1 in his cross-examination admitted that the appellants had not caught hold the boy or assaulted him in his presence and so, learned Trial Court has erred in holding that the deceased was being taken from one building to the other in the company of the appellants.
11. Learned counsel further submitted that the Trial Court was influenced with consideration of circumstances of last seen, recovery of wooden phatti, danda and torn clothes of deceased and death of victim being homicidal in nature; even though none of these were properly proved beyond reasonable doubt. Also submitted that the learned Trial Court has taken hypothetical view with regard to the guilt of appellant/accused-Mohd. Tahir and failed to appreciate that the prosecution witnesses PW-22, PW-26 to PW-30, who were official witnesses, gave evasive replies and their testimonies do not inspire confidence. There is no reliable eye-witness for identification of the accused to proceed for conviction of the appellant on the basis of circumstantial evidence. Lastly, learned counsel submitted that the prosecution has miserably failed to prove the present case beyond reasonable doubt and if after appraisal of evidence two views are possible, then the view favouring accused has to prevail.
12. Similarly, Mr. D.B. Goswami, Advocate appearing on behalf of appellant-accused -Umakant Yadav submitted that there is no evidence of any abetment to the actual act committed and lack of essential eye-witness is fatal to the case of the prosecution. Learned counsel submitted that the appellant had no intention, knowingly or unknowingly, to commit any such act, which is likely to cause death of the victim. Hence, the provisions of Section 302 IPC are not attracted.
13. Learned counsel further submitted that the incident took place in the early morning day light within the locality of occupants and deceased boy was moving on open street of residential society while being caught by hand by the accused persons from one place to another. Just because the deceased body’s dead body was found after about 1½ hours within the same residential society, does not prove the guilt of the appellants. There is no evidence on record to show involvement of appellants in the present case. Learned counsel submitted that the entire case of prosecution is premised upon circumstantial evidence and in light of the decision of Hon’ble Supreme Court in C. ChengaReddy and Ors. Vs. State of A.P. (1996) 10 SCC 193 if a case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in the first place be established and all further acts should be consistent to complete the chain of events leading to death of a person. Meaning thereby, the circumstances should be of conclusive nature and tendency; whereas in the present case, a hypothetical view of guilt of accused has been taken by the learned Trial Court. Reliance was also placed upon another decision by Hon’ble Supreme Court in State of U.P. Vs. Ashok Kumar Srivastava 1992 (2) SCC 86to submit that the courts while evaluating circumstantial evidence has to bear in mind that in case two inferences are possible, the one in favour of the accused must be accepted.
14. To the contrary, learned Additional Public Prosecutor appearing on behalf of the respondent-State submitted that upon receipt of information in respect of a quarrel, DD No.14A dated 07.07.2015 was recorded at Police Station Neb Sarai. Upon reaching the spot of crime, Inspector Rajeev Kumar came to know that a boy was caught by the occupants of House No. 216, Krishna Park and neighbours had beaten him up. The said boy had allegedly come to commit theft in the said house, who was later found lying naked between car bearing No. DL3CZ 9991 and House No. D-219, Krishna Park having injuries on various parts of his body. On the basis of DD entries and inspection of scene of crime, as well as MLC of the deceased; FIR in question was registered against both the appellants-accused, as deceased named Sunil was last seen alive with them. The eye-witness namely Sonu Sharma (PW-1) had also taken photographs of the deceased while he was with the accused persons wherein he is seen in good condition just before his death. The testimony of PW-1 stands corroborated with the versions of PW-10 namely, Nasib before the learned Trial Court.
15. Learned Additional Public Prosecutor further submitted that during the course of investigation, Mohd. Tahir had disclosed that he and co-accused had beaten up the boy with wooden phatti and danda. Accused Umakant had also disclosed that he had beaten the boy with wooden danda by holding his hair. At the instance of both the accused, weapon of offence i.e. wooden phatti alongw ith torn clothes of the deceased were recovered from the parking area. The autopsy report mentions the cause of death as ‘shock due to head injury caused by blunt force impact’ which is sufficient to cause death in ordinary course of nature.
16. Learned Additional Public Prosecutor also submitted that the Trial Court has rightly banked upon the principle of ‘last seen’ theory to convict the appellants. Lastly, submitted that the impugned judgment is well narrated, holding the appellants accused guilty of commission of crime under Section 302 IPC and therefore, they have been rightly sentenced for life vide Order on Sentence dated 20.11.2023 and thereby, the present appeals deserve to be dismissed.
17. In rebuttal, learned counsel for the appellants submitted that PW-11 Pradeep Kumar Goyal, who was residing in Flat No. D-216B, First Floor, in his deposition, stated that around 6:00 a.m. on 07.07.2015, he had seen many persons gathering in gali and also that a boy was sitting inside the building, which was locked from outside. He further disclosed that two persons opened the lock of the main gate and some public persons followed them. Both the persons took away the boy sitting inside the house. However, he did not identify the appellants as the accused persons, who had opened the lock of the main gate and taken away the boy inside the building. The Trial Court had thus taken a hypothetical view of guilt of accused persons by observing that the deceased was last seen alive in proper condition in the company of accused persons and after some time his dead body was found near the building where the accused persons were residing as caretakers, and so, the accused persons had acted with common intention to hurt him; though there is no evidence on record to show that the appellants/accused had taken away the deceased outside the residential area and there is no eye witness to the incident of causing injury upon the deceased. Mere finding of body of the deceased near the building where the appellants/accused were residing, would not prove the guilt of accused. Hence, setting aside of impugned judgment holding appellant guilty of the offence under Section 302 IPC is sought.
18. The arguments advanced by learned counsel representing both the sides as well as learned Additional Public Prosecutor for State, were heard at length and the testimony of the witnesses recorded, impugned judgment and other material placed before the learned Trial Court has been carefully perused.
19. PW-1 Sonu Sharma is the star witness, who in his examination-in-chief stated that on 07.07.2015, he had seen a boy sitting on the staircase in front of a house/building across his house and at the said time, many public persons were also present there, who were shouting that the boy was a thief. He stated that he obtained mobile number of mother of the boy and made a call to her but the same was not attended at the first instance. However, he received a call back from his mother and informed her that the boy apprehended by the public claims to be her son and either she should take him or they would bring him to her but there was no reply. The boy was in physically fit condition. In the meanwhile, caretaker namely, Mohd. Tahir and Umakant Yadav reached there, who firstly opened the lock of the gate of the said building, where the boy was sitting on the staircase and took that boy with them in the other building situated at a walking distance of about 1½ minute. He further disclosed that at around 9 a.m. he came to know that the same boy had died. He was called at police station where he produced his mobile, wherein he had taken a few photographs, which was seized by the police, converted into pullanda and sealed with the seal of RK. During his cross-examination, PW-1 identified the mobile instrument as well as photographs (Ex. PW-1/B-1 to B-6), which he had taken in his mobile on the day of the alleged incident. During his cross-examination, PW-1 stated that at around 4 a.m. to 5 a.m., he heard the noise and saw from his floor in the gali that 8 or 10 persons had gathered there. Upon asking, they told him that one unknown boy was sitting at one place, who has revealed that he was trying to break the lock of one flat of the building. The said boy appeared to be under some delirium/intoxication and was unable to utter the words properly. PW-1 asked him 2-3 questions as to why he was sitting there, for what purpose he was there etc., however, the boy could not reply properly but uttered something which PW-1 could not understand. PW-1 asked the boy mobile number of any of his family member to which he initially denied. However, on insistence he provided mobile number of his mother. At the first instance, his mother did not pick the call but thereafter, she picked up and was informed about the boy. PW-1 asked the mother of the said boy to take him from tuti hui deewar, Krishna Park, Khanpur, New Delhi or else to give the full address so that the said boy could be dropped by him. In the meanwhile, the accused persons opened the lock and all the public persons entered inside the said flat and in the commotion (dhakkamukki), the boy who was sitting in the flat fell down, who was made to sit again. PW-1 stated that accused persons were staying in the flat constructed in the stilt portion/parking area of the other building at a distance of about 20/30 steps. PW-1 also stated to have taken few photographs of the boy and at the said time, according to him, he did not notice any visible injury on the person of the deceased.
20. In his further cross-examination PW-1 also stated that he alongwith 1 or 2 persons had accompanied accused persons and the said boy upto the end of the street at around 6:30 a.m. to 6:45 a.m. and thereafter, he came back and saw them going till the end of the building. He specifically stated that he does not know as to whether any person by the name of Pradeep Kumar Goyal was present at the spot or not. But at the said time, the accused persons had not caught hold of him and he was walking of his own. He also stated that 8 or 10 public persons, who had gathered at the time when the deceased was found, had given fist blows to him and also that the accused persons had not beaten or assaulted the victim in his presence.
21. PW-2 Dr. Deepak Prakash, Senior Resident, Department of Forensic Medicines, JPNATC, AIIMS, New Delhi in his examination-in-chief stated that he had conducted the post-mortem upon the deceased and found the following anti-mortem injuries:-
1) Reddish abrasion of size 3.3 cm x 1 cm was present over right side face, 3 cm lateral to right eye brow.
2) Two reddish abrasion of size 1.5 cm x 1 cm and lx1 were present over right mastoid region.
3) Reddish contusion of size 2 cm x 1 cm was present over right mastoid region.
4) Reddish contusion of size 3×1.5 cm was present over right cubital fossa region.
5) Reddish abrasion of size 3.5×2 cm and 2×1 cm were present over left and right elbow region respectively.
6) Reddish abrasion of size 2.5×1 cm was present over dorsal aspect of left wrist.
7) Reddish contusion of size 2.5×1 cm and 1×1 cm were present over anterior aspect of right shoulder.
8) Reddish abrasion of size 4.5×2 cm, obliquely placed was present over posterior aspect of left shoulder, 1.5 cm below shoulder tip.
9) Reddish contusion of size 2.5×1 cm was present over lateral aspect of left side of chest, 5 cm lateral to left nipple.
10)Reddish abrasion of size 1.2×0.8 cm was present over left anterior superior iliac spine region.
11)Reddish contusion of size 5.5×0.8 cm and 4.4×0.8 horizontally and parallel were present over lower part of left side of abdomen, 5 cm above left anterior superior iliac spine and 6 cm lateral to midline.
12) Multiple reddish abrasion of varying size from 0.8×0.5 cm to 3×2 cm were present over both knees.
13) Reddish contusion of size 9×5 cm was present over upper one third of anterior medial aspect of left leg.
14) Multiple reddish contusion of varying size from 0.8×0.8 cm to 6×3 cm were present over upper part of left side of back region (left scapular region over an area of 20×15 cm).
15) Reddish contusion of size 9×3.5 cm was present over lateral aspect of lower part of chest, 12 cm below the axillary line and extending upto the posterior aspect of back (horizontally placed).
16) Reddish contusion diffusely present over both gluteal region.
17) Reddish contusion were present diffusely over an area of 37×15 cm, from posterior aspect of middle one third of right thigh extending upto middle one third of leg.
18) Reddish contusion were present diffusely over an area of 28×16 cm, from posterior aspect of middle one third of left thigh extending upto upper one third of leg.
19) Reddish abrasion of size 3×2 cm was present over medical aspect of middle one third of right leg.
Head:
Subscalp- Hematoma was present over parietal and occipital regions.
Brain- Subdural and subarachnoid haemorrhage was present diffusely over both parietal and occipital lobes and cerebellum of brain.
Lungs: Multiple contusions were present over lower lobe of left lung.”

22. PW-2 stated that the cause of death is shock due to head injury caused by blunt force impact and the injury was sufficient to cause death in ordinary court of nature. All the injuries were anti-mortem in nature. Also stated that he had examined the weapon of offence i.e. wooden phatti and wooden danda and according to him, injuries Nos. 1 to 19, except head injury could be possible by the wooden phatti while the head injury including injuries No. 1 to 19 could be possible by wooden danda. In his cross-examination, PW-2 stated that injuries No. 1 to 19 mentioned in the post-mortem were ante-mortem external injuries and the same were not sufficient to cause death. With regard to injuries No. 2 and 3, PW-2 stated that these injuries are behind the ears which is part of head and head injury in the present case could be possible due to struck against a wall against a particular force. PW-2 stated that injury sustained by the deceased at the time of post-mortem were fresh, which could have been caused within 24 hours. PW-2 could not differentiate age of injuries caused before 12 hours to 24 hours.
23. PW-3 Munna Lal is father of the deceased, who in his deposition, stated that on 06.07.2015 his son Sunil had gone for his job in the morning time but did not return back in the evening and at the said time, he was in Gurgaon on his job. On receipt of call from his wife, on 06.07.2015 he returned back to Delhi upon knowing about missing of his son. On 07.07.2015, he had made a call to the police at 100 number with regard to missing of his son and the police personnel had taken his wife to Trauma Centre. Later on he was shown body of his son Sunil in Mortuary, where he identified him and thereafter, the dead body was handed over to him. During his cross-examination, he stated that the police had recorded his statement 2-3 times. He also stated that on 06.07.2015 his son had left for his job but did not return and that the deceased was never involved in any criminal case.
24. PW-5 Smt. Meena, who is the mother of the deceased, in her examination-in-chief stated that on 07.07.2015 her son had taken an off from the shop where he used to work as he used to work in party/ function. On the said day, he had gone for a work in party/ function. On 08.07.2015 in the morning at around 4 a.m. she received a call that her son was apprehended while committing theft, however, no other details were given to her. On second call made by one Sukhbir, who is brother of her father-in-law on the number from which she had received the call, she came to know that her son had been taken by the watchmen of Pramod Gujjar. At around 2 p.m. on the said day, she was called at Police Station Neb Sarai by the police officials, where photographs of her son in a mobile were shown and upon enquiry she was informed that their son was hospitalised at Trauma Centre and was unconscious but otherwise fit. After about 2-3 days, she was told by the gali wallahs at the place of incident that both the accused had given merciless beatings to her son, electrocuted him by taking her son in the basement and removing his clothes. PW-5 stated that the accused persons had murdered her son by levelling false allegation of theft upon him. PW-5 also stated that the residents in the gali, where the incident had happened, told her that the accused persons had taken away her son in their building and then murdered him. During cross-examination, PW-5 stated that the person, who had made a call in the early morning time had not disclosed his name and address but had simply told the place as tuti hui deewar from where her son was taken away by the accused persons. PW-5, however, refused that she in her statement to the police had stated that the public had revealed that her son was taken away by the watchmen of Pramod Gujjar i.e. the accused persons. PW-5 proceeded that she had seen the accused persons only in Court.
25. PW-6 Dr. Kutty Sharada Vinod, Senior Resident (Medicines), JPNATC, AIIMS Hospital, New Delhi in his examination-in-chief stated that on 07.07.2015, he had prepared MLC of an unknown boy, aged 22 years, who was brought in Casualty but was declared dead.
26. PW-9 Naveen Kumar was an independent public witness, who stated that on 07.07.2015, he was present in his house and upon hearing noise of knocking from the adjacent building, he telephonically informed his neighbour Nasib, residing on the ground floor of the same building to have a look. He heard noise of public persons gathered there. PW-9 had since resiled from his statement given before the police, so was cross-examined by the Additional Public Prosecutor for the State. In his cross-examination by the learned Additional Public Prosecutor for State, PW-9 stated that he had not seen any boy being apprehended by public persons of the colony on the allegation of committing theft and also denied to have told the police that one Sonu Sharma (PW-1), resident of vicinity, had a photograph in his mobile of that boy, who was apprehended by public persons. PW-9 further stated that he knew that the appellants-accused being the caretaker of the building opposite to his house. He denied having told the police that he had seen the appellants-accused taking away the boy when he was apprehended by the public. He also stated that he had not seen the appellants-accused beating or talking with the deceased nor any public person beating the deceased boy.
27. PW-10 Nasib, another public witness, in his examination-in-chief stated that on 07.07.2015 at about 4 a.m. to 4:30 a.m., he received a call from Naveen who told him that some knocking noise was coming from the front side. On opening the door, he saw that a number of persons had gathered and one boy was inside the building, which was locked from outside and the public persons were yelling that the boy was a thief. One Sonu, residing in his gali, was also present there and had taken some photographs. The appellants-accused had opened the lock of the building and thereafter, the public persons entered into the building. The public persons caught hold the boy and some dhakkamukki took place due to which the boy fell down and his clothes got dust/mud. Thereafter, the appellants- accused took the boy with them and at that time, the boy was in good physical condition. During his cross-examination, PW-10 stated that when he first saw the boy he was sitting on the staircase. At about 5 a.m., Sonu had called mother of the deceased but his mother did not come. After about 10-15 minutes, Sonu again made a call to his mother and he was able to connect with her. He stated that the building of D-219 i.e. where the deceased had entered, was newly constructed and no one residing there at that time. However, PW-10 stated that he did not find the boy physically unfit or not oriented and that he was not aware who had opened the lock of the building where the deceased was sitting. He stated that he had not entered the building at the time when the lock was opened by the appellants-accused and that he was standing on the gate of his own building which is opposite to D-216. However, he had seen the accused persons taking away the deceased boy and some of public persons also followed them. He was not aware where the boy was taken. PW-10 during his cross-examination admitted that he had not seen the accused persons assailing the deceased boy when they were talking to him.
28. PW-11 Pradeep Kumar Goyal is another public witness examined by the prosecution. He in his examination-in-chief stated that on 07.07.2015, he was present in his house when he heard some noises from outside and thereafter, he went downstairs where a large number of persons gathered in the gali and saw a boy sitting inside a building which was locked from outside. In the meanwhile, two persons came and opened the lock of the main gate and that he did not know those persons nor could identify them. He also stated that public persons had also followed those two persons and thereafter, both persons took away boy sitting inside the building. Further stated that at the said time, the boy was in physically fit state but some public persons were doing dhakkamukki.PW-11 in his examination-in-chief also stated that he cannot identify those two persons who had taken that boy from the building after opening the lock, if shown to him. Since PW-11 had resiled from his statement given under Section 161 Cr.P.C. wherein he had identified the accused persons with their names, he was cross-examined by learned Additional Public Prosecutor on the point of identification of the accused. In his cross-examination, PW-11 denied the suggestion that appellants-accused are the same persons, who had locked the main gate of the building situated in front of his house and took away the boy sitting inside the building.
29. PW-12 Rajkumar Goyal is another public witness examined by the prosecution, who stated that on 07.07.2015 he was present in his house when he heard noise in the gali at about 5:30 a.m. to 6:00 a.m. and when he went out, he came to know that a thief had entered into a building. Thereafter, two persons opened the lock of the main gate of the said building and took the thief with them. PW-12 stated that he had come to know from the persons of the locality that the accused persons had taken away the thief but had no personal knowledge to the same who had identified the accused persons, namely, Umakant and Mohd. Tahir. With regard to identity of the appellants-accused, PW-12 stated that he stated that accused Umakant Yadav and Mohd. Tahir, who were present in the Court, were working as caretaker/security guard and they used to put the lock on the main gate and open the same. However, he had not seen them opening the lock of the building where the deceased boy was sitting and he had heard the same. PW-12 was cross examined by learned Addl. Public Prosecutor for State wherein he stated that he is not able to identify the accused named by him in his statement (Ex. PW-12/A) recorded before the police and that after the death of the boy, he came to know that both the appellants were arrested regarding the death of the boy. In his cross examination, PW-12 denied the suggestion that the boy was given beatings by the public persons. He stated that he was not aware as to which side the boy was taken by those two persons as he had returned to his home.
30. PW-13 Ajay Gupta is also a public witness who stated that on 07.07.2015, the boy who used to clean his car, informed him that one boy was lying in nude and unconscious condition in the gali and thereafter, he made a call to the police from his mobile phone. However, the police did not make any inquiry from him nor his statement was recorded. Learned Additional Public Prosecutor for State cross-examined this witness as he resiled from his earlier statement given under Section 161 Cr. P.C wherein he had stated that a boy in naked and unconscious condition was lying between the wall of his house and his WagonR car, who had marks of beating on his back, legs and other parts and that he informed the police at no. 100 thinking that the boy was beaten and that the boy was taken to the hospital in his presence. PW-13 denied all the suggestions given by the learned Additional Public Prosecutor for State.
31. PW-14 Afzar Ali is also public witness who in his examination-in-chief stated that on 07.07.2015, he had received a call from police station to videograph and photograph coverage and so he reached Krishna Park where he videographed the boy lying in dead condition and also took photographs when the post mortem was being conducted. In his cross-examination, PW-14 stated that he did not know who all were present and only police personnel were present and no public person was present.
32. PW-16 Pramod Chaudhary in his examination-in-chief stated that he knew both the accused persons as they were his employees and used to look after/take care of his premises No. D-216, Krishna Park. He further stated that both the accused used to stay in the same premises round the clock. On 07.07.2015, one boy was apprehended in premises No. D-318, Krishna Park and the public persons had produced him before both his employees. During his cross examination, PW-16 stated that he had constructed flats on Plot No. D-318 and he was having his office in F-216, which is at a distance of 150-200 meters and situated in different gali. There was no CCTV camera installed; only one entrance to enter gali where D-318 is situated and there was a gate of 7 ft. outside D-318, however, one can jump inside by climbing the rod/bar of the gate. He stated that he had come to know about the alleged incident at about 10 a.m. to 10:30 a.m. from the police that one thief was apprehended who had died.
33. PW-18 ASI Kuldeep Singh in his examination-in-chief stated that on 07.07.2015 he was working in M.H.C.(M) and on 08.07.2015, Inspector Rajiv Kumar had deposited 03 exhibits sealed with the seal of RK and 04 exhibits sealed with the seal of JPNATC and AIIMS and again on 10.07.2015, one another sealed parcel was deposited by him. The case property was sent to RFSL on 20.08.2015 and22.09.2015. During his cross-examination, PW-18 admitted that he had not stated about sending of exhibits to RFSL at the time of recording of his statement under Section 161 Cr.P.C.
34. PW-22 SI Vinay Kumar in his examination-in-chief stated that Investigating Officer Inspector Rajeev Kumar had called him to join investigation in the present case. He deposed that the accused persons in their disclosure statements stated that they can get recover the wooden danda/sticks which were used by them in causing injury to the victim and so the investigating team alongwith both the accused persons reached at D-216, Krishna Park from where one wooden phatti was recovered from the parking area. The accused persons thereafter pointed out the place of incident and also the place where they had thrown the torn clothes of the deceased. On their pointing, the torn clothes and the electric wire of red colour, with which clothes were wrapped, were recovered from the parking area corner. During his cross-examination, PW-22 stated that the disclosure statement of the accused was recorded in the absence of any public witness so no signatures were obtained on Ex-22/A and Ex-22/B.
35. PW-23 Inspector Mukesh Kumar Jain in his examination-in-chief stated that he had joined investigation in the present case with Inspector Rajeev Kumar on 13.07.2015. On the basis of rough notes and measurements, he prepared the site plan which was given to the Investigating Officer on 14.07.2015. In his cross-examination, PW-23 stated that he had not taken support of any CCTV footage at the spot nor did he notice any CCTV camera installed at the place of incident and therefore, the same has not been mentioned in Ex-PW23/A (site plan).
36. PW-26 Head Constable Sushil in his examination-in-chief stated that he had joined investigation of the case with Inspector Rajeev Kumar. On 07.07.2015, he alongwith the investigating team reached Krishna Park, D-318, Devil Road, Khanpur, Neb Sarai where they enquired from the public persons present at the spot, who told them that public persons had beaten one boy when he was committing theft at D-318, Krishna Park. Upon further enquiry, public persons told that one person was lying between one vehicle i.e. Wagon R and the wall of D-219, Krishna Park. When they reached there, the deceased was found in naked condition and had sustained injuries on his lower legs, hips and saliva was flowing out of his mouth. The body of the deceased was sent to AIIMS where he was declared brought dead. The investigating team collected all the Exhibits from the place of crime. PW-26 further stated that on 08.07.2017, he along with investigating team reached at the spot where accused persons were interrogated and their disclosure statements (Ex. PW-22/ A and Ex. PW-22/B) were recorded wherein they disclosed that a danda along with phatti, which was used in the incident and the clothes of the deceased were lying at the parking area of D-216, Krishna Park. Thereafter, he along with the accused persons and the members of investigating team reached at the above mentioned spot and at the instance of both the appellants-accused one danda, one phatti and clothes of deceased i.e. blue jeans, one blue shirt, one banyan, and one blue coloured Relaxo chappal, all smeared with mud were found. PW-26 stated that both the accused persons were arrested and the Investigating Officer of the case deposited the case property in the malkhana of Police Station, Neb Sarai. In his cross-examination, PW-26 stated that he was not aware as to whether the owner of House No. 219, Krishna Park with regard to the recovery of a body lying in his parking area was interrogated or not. He further stated in his cross examination that he did not remember the size of wooden phatti and danda which were recovered at the instance of the appellants accused, however, refused to suggest that no recovery was affected.
37. The appellants-accused Umakant and Mohd. Tahir in their statements recorded under Section 313 Cr.P.C. denied the allegations levelled against them and stated that they were innocent and have been falsely implicated by the police in order to solve the present case and recovery has been planted upon them. However, both the accused did not lead any evidence in their defence.
38. The learned Trial Court, in the impugned judgment dated 13.10.2023 has elaborately noted the testimony of the witnesses recorded and the arguments addressed on behalf of both the sides. While taking into consideration the provision of Section 302 IPC and decision of Hon’ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 in respect of conditions precedent for conviction based upon circumstantial evidence; observed that the various circumstances and the chain of events must be such so as to rule out the reasonable likelihood of innocence of the accused. The learned Trial Court vide impugned judgment observed as under:-
“67. To summarize, prosecution has successfully established the following circumstances beyond any reasonable doubt i.e.

(i) Circumstance of last seen;
(ii) Accused Persons Being Caretaker Of the Building;
(iii) Recovery of Wooden Phatti, wooden danda and torn clothes of the deceased at the instance of accused persons;
(iv) Death of victim being homicidal in nature;
(v) The identification of the accused;
(vi) Motive.”

39. This Court, in the light of testimony of witnesses examined, has gone through the findings of the learned Trial Court on afore-noted circumstances.
Circumstance of last seen& identification of accused:-
40. The learned Trial Court has observed that the time interval between the point of time when the accused and the deceased were last seen together is very small and that onus is upon the accused to provide a just explanation as to how and when he parted with the company of the deceased and if he fails to do so, it is an additional link in the chain of circumstances proved against him. The learned Trial Court has taken into consideration testimony of PW-1 to observe that PW-1 had from the time of deceased sitting on the stair case in the early morning till the time accused persons, who were the caretaker of the building, who opened the lock and took the deceased with them, had witnessed the incident. Also, PW-1 had taken the photograph of the incident. The learned Trial Court, on the aspect that PW-1 had admitted in his cross-examination that accused persons had not caught hold the boy nor they beat or assault the victim in his presence; has observed that this nowhere controverts the version of PW-1 that the deceased boy was last seen together with the accused-appellants. The learned Trial Court has also taken into consideration testimony of PW-5, mother of deceased, who stated that on call she had received the information that the accused person had taken away the victim and testimony of PW-28 and PW-29 to hold that telephonic conversations between PW-1 and PW-5 stand proved. Learned Trial Court has also relied upon testimony of PW-10 Nasib, PW-11 Pradeep Goyal and PW-12 Raj Kumar Goyal, to hold that presence of PW-1 at the crime spot at the time of alleged incident stands proved. The learned Trial Court negated the arguments put-forth by the appellant that there are variations and inconsistency in their testimony, holding that minor contradictions, inconsistencies and embellishment, which do not affect the core of the prosecution case, cannot be made a ground to reject the evidence in its entirety and the testimony of PW-1 and PW-10 is consisted to prove that the deceased boy was last seen with the appellants-accused.
41. On Circumstance of last seen, this Court finds that PW-1 in his statement has stated that at around 4 a.m. to 5 a.m. he heard the noise and when he came out, he saw from his floor in the gali that 8 or 10 persons had gathered there who told him that a boy was found sitting in the stairs of House No. 216 and when the accused persons, being the caretaker of the building opened the lock of the gate, a large mob of 8 to 10 persons manhandled him, which is proved from the fact that his clothes had turned muddy. Relevantly, PW-1 in his cross-examination has also stated that he had accompanied the boy till around 6:30 a.m. to 6:45 a.m. and thereafter, he does not know what had happened and he came to know at around 09:00 a.m. that the boy had died.
42. Even the other prosecution witness, PW-10 Nasib, in his examination-in-chief stated that on 07.07.2015 at about 4 a.m. to 4:30 a.m. he was informed by one Naveen, his neighbour, about some noise and on opening the door, he saw a boy sitting inside the building and a public persons in large number alleging him of being a thief. He also stated that he was not aware as to who had opened the lock of the building where the deceased was sitting. He in his cross-examination though stated that he had not entered the building at the time when the lock was opened by the appellants-accused and that he was standing on the gate of his own building which is opposite to D-216. However, he had seen the accused persons taking away the deceased boy and some of public persons also followed them. He was not aware where the boy was taken. PW-10 during his cross-examination admitted that he had not seen the accused persons assaulting the deceased boy when they were talking to him.
43. On the aspect of time gap and last seen, the Hon’ble Supreme Court in State of U.P. Vs. Satish (2005) 3 SCC 114 has observed as under:-
“22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

44. In the present case, according to prosecution, PW-1 and PW-10 are the persons who had last seen the deceased boy with the appellants-accused in the early morning hours and have categorically stated that they did not see appellants-accused manhandling the deceased boy and it was only around 09:00 a.m. that they came to know about death of boy, as to what had transpired within this time frame is not known to them and so, it cannot be said that the deceased boy was assaulted by the appellants-accused.
45. Even PW-3 Munna Lal and PW-5 Meena, parents of the deceased have though indicted that the appellants for committing the alleged crime but the stories putforth by them is hearsay and reliance cannot be placed upon their testimonies. Moreover, PW-5, mother of the deceased in her cross-examination denied that she in her statement to the police had stated that the public had revealed that her son was taken away by the watchmen of Pramod Gujjar i.e. the accused persons. PW-5 testified that she had seen the accused persons only in Court.
46. The principle of last seen has to be supported by other circumstantial evidence, as has been spelt out in C. Chenga Reddy Vs. State of A.P. (1996) 10 SCC 193 wherein the Hon’ble Supreme Court has observed as under:-
‘21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete 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.’

47. The settled position of law is that when there are variations or contradictions in the “last seen” evidence, courts must critically examine other corroborative material to ensure that the conviction is based on a firm and reliable foundation. It is essential to consider the entire evidence collectively and in the absence of any reliable material evidence, the conviction cannot be solely premised upon ‘last seen’.
48. To evaluate the theory of last seen alleged by the prosecution, we now proceed to find out as to whether in the facts of the present case when PW-1 had last seen the deceased boy with the appellants-accused between 04:00 a.m. to 05:00 a.m.; accompanied the accused persons upto the end of the street at around 06:30 to 6:45 a.m. and also PW-10 had also returned home by 5/5.30 a.m, whether the other circumstantial evidence complete the chain of events in support of case of prosecution?
49. Relevantly, PW-13 is the prosecution witness who had made a PCR call at around 7.50 a.m. and had admittedly found and seen the body of the boy at around 07:00 a.m. As per prosecution story, the deceased boy was beaten by the appellants-accused, whereas PW-1, PW-10, PW-11 and PW-26, have categorically in their statements stated that the deceased boy was beaten up by the public persons. None of the witnesses have stated that the deceased boy was beaten up by the appellants-accused. Moreover, PW-9 in his examination-in-chief has not even identified the appellants-accused being a member of the public persons. Also, PW-11 has categorically denied that the accused persons were the same persons who had opened the lock of the main gate of the building and took away the boy. Similarly, PW-12 also denied that the appellants-accused took away the victim and rather stated that two unknown persons took away the boy. Also, PW-9 in his examination-in-chief categorically did not identify the appellants-accused amongst the public persons who were present at the spot. PW-11 also denied the suggestion that the appellants-accused were the persons who had opened the lock of the main gate and took away the boy. PW-12 not only denied the suggestion that the appellants had taken the victim boy away but also stated that two unknown persons took the victim away.
50. In such circumstances, when all the above prosecution witnesses have in echoed voice stated that they did not see the appellants-accused manhandling the deceased boy and a few of them refused to identify the appellants as the person who had opened the lock of the building or as the persons who were seen last walking in the street or that the appellants were part of the aggressive mob who mishandled the deceased boy, prosecution story not only on the aspect of ‘last seen’ but also ‘identification’ of appellants-accused comes under clouds.
Accused Persons Being Caretaker of the Building
51. The learned Trial Court has relied upon testimony of PW-1 as well as PW-12 to hold in the impugned judgment that the appellants-accused persons were the Care taker of the building. Also, PW-16 who is owner of the building D-318, has in his testimony stated that he had employed the appellants as the Caretaker of the building. In fact, there is no dispute to the fact that the appellants were Caretaker of the buildingD-318. However, they were staying at D-216 and only when public persons gathered at the gate of the building i.e. D-318 upon noticing a boy sitting on the stairs of the building and since at the relevant time, no one was residing in the building, therefore, the gate of the building used to be locked, which was then opened by the appellants-accused. It is also not in dispute that the public persons who had gathered at the gate, soon after opening of the lock entered the building and manhandled the deceased boy. No doubt the appellant-accused were bound to consider about the safety and security of the building being the Caretakers of the building, however, none of the witnesses have deposed that the appellants-accused had caused any injury on the person of the deceased boy in their presence.
Recovery of Wooden Phatti, wooden danda and torn clothes of the deceased at the instance of accused persons

52. So far as recovery of wooden phatti, wooden danda and torn clothes of the deceased boy on the pointing of the appellants-accused is concerned, the learned Trial Court has held that the place of recovery of weapon of offence is near building D-216 where the appellants were staying. Pertinently, the alleged incident took place on 07.07.2015 and the weapon of offence and clothes of deceased were recovered on the next day 08.07.2015. The seized articles were lying in a public place i.e. public parking area, however, no public witness was asked to join at the time of alleged recovery. The prosecution story is premised upon the fact that the recoveries were at the instance of the appellants-accused, however, this is highly unbelievable that any accused after committing fatal injury to a person, would keep the weapon of offence near the building where he is residing. Even if it is taken that PWs-22, 26 and 30 have supported prosecution case in respect of alleged recoveries and that the trial court is not in error to hold that the testimony of official witnesses of prosecution cannot be called as interested witnesses and that non joining of public witness is not fatal to the prosecution case, but it is worthy to check the credibility of these witnesses. PW-22, in his cross-examination admitted that in his presence IO of the case did not record statement of any public witness and that once he reached the spot of recovery, he did not go upstairs to call any public witness present in the building despite the fact that D-216 is comprising of five-six floors. His testimony shows that no effort was made by the prosecution to join any public witness. It is not the case of the prosecution that none was present to join investigation or despite serving of notice, any public person refused to join investigation.
53. Further, PW-26 has stated in his testimony that when on 08.07.2015 he joined the investigation with the IO of the case and reached the spot, during interrogation the appellants-accused in their disclosure statements disclosed that the danda, phatti and clothes were lying at the parking area. At the pointing out of the appellants-accused, the exhibits were recovered, which were sent to FSL, Chankayapuri. With regard to recovery of the weapon of offence and clothes of the deceased, PW-30 has also supported the version of PW-26 however, he did not remember as to where the disclosure statements of the appellants-accused were recorded. During his cross-examination, PW-30 retracted from his earlier statement on recovery of weapon and stated that the lakdi ki phatti, wooden square shape danda and clothes of the deceased were recovered from the house of Pramod Chaudhary.
54. However, since place of recovery of weapon of offence, as per version of PW-26 and PW-30 is altogether different, what pinches the mind of the Court is that the appellants-accused were the Caretakers of the building and pursuant to death of the boy, why they would let the weapon of offence and clothes of the deceased remain/ or lie at a place near to their house and also why they, during interrogation themselves point out the places where these were lying, despite knowing the fact that fingers could be raised upon them for beating the boy to death.
55. In view of the above, we are of the considered opinion that the learned Trial Court has erred in holding that the version putforth by PW-22 and PW-26 is trustworthy and unblemished; however, PW-30 is evasive in his replies, so his statement cannot be relied upon. No doubt recovery of weapon of offence is an important piece of evidence, but the impugned judgment is silent on the aspect whether recovered lakdi ki phatti and wooden square shape danda belonged to the appellants-accused. As per forensic report, the injuries mentioned in the post mortem report could be possible from the recovered lakdi ki phatti and wooden square shape danda, however, there is no mention as to whether there existed any finger marks or any other mark of the appellants-accused on these to support prosecution case against them. Moreover, recovery of weapon of offence from a visible open place that too in the absence of any public person, castes a doubt upon the prosecution case.
Death of the victim is homicidal in nature
56. To prove the Post Mortem Report EX.PW2/A, prosecution examined Dr.Deepak Prakash (PW-2). As per prosecution case, the post mortem of the body of the deceased was got done on the next day of the alleged incident i.e. 08.07.2015 and the Post Mortem Report also suggests death ‘one day ago’. The post mortem report suggests that the cause of death is ‘shock due to head injury caused by blunt force impact’ and is sufficient to cause death in ordinary course of nature. However, PW-2 in his cross-examination stated that the head injury in the present case is possible due to struck against a wall but particular force is required for such injury, which in the present case is highly impossible as the body of the boy was found in open parking area.
Motive
57. The learned Trial Court with regard to motive behind commission of the offence by the appellants-accused, held that since they were appointed as the Caretaker of the building by PW-16, where the deceased boy was first found sitting on the stairs and was being addressed as thief by the public persons, so their motive to kill him in order to protect the property, can be inferred from the circumstances.
58. The undisputed fact is that the building D-318 where the deceased boy was seen sitting on the stair-case was a vacant building and no one was residing there. The appellants-accused used to reside in a nearby building i.e. D-216. The public persons gathered outside the building addressed the deceased boy as a ‘thief’ and when the appellants opened the lock of the building, some scuffling took place and the boy was beaten by the public persons. The appellants-accused carried the boy outside the building and as per testimony of prosecution witnesses, the deceased boy was seen going with them till the end of the street. However, none of the prosecution witness stated that the deceased boy was beaten or hit by any of them.
59. Being the Caretakers of the building, appellant-accused were liable to ensure its safety and security. The boy was seen sitting on the stairs of the building when the public persons saw him inside the building and it is not the case of prosecution that the boy was caught stealing something or had caused any damage to the building. The appellant-accused were not owners of the said building and had no personal malice or animosity against him. It is highly improbable that appellants-accused would beat or hit the boy in open area and after assaulting him, would put his body in the open parking area in morning hours and nobody would see them. As per prosecution, there was no CCTV camera installed in the area and so, in the absence of any eye witness or CCTV footage, it is not known as to what had exactly happened.
60. However strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. It has so been held by the Hon’ble Supreme Court in Pritinder Singh Vs. State of Punjab (2023) 7 SCC 727 wherein on the vital aspect of circumstantial evidence, it has been observed as under:-
“17. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It has been held that 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. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so 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.”

61. In the considered opinion of this Court, in totality of circumstances as discussed above, the prosecution has not been able to prove that the appellants-accused were last seen with the deceased boy. Instead, the concerned prosecution witnesses have denied to identify appellants-accused as last seen with the deceased or to identify them as part of public persons who had manhandled the deceased. Merely because the lakdi ki phatti and wooden square shape danda were recovered at the instance of appellants-accused, which did not bear their finger prints or even blood marks of the deceased and thus, not supported by any scientific evidence, it is hypothetical to presume that deceased boy was hit by the appellants-accused by the same. It is an admitted case of prosecution that no public witness was called upon to join investigation at the time of search and recovery of the weapons as well as recording of disclosure statements of the appellants-accused. Even if it is taken that in the opinion of PW-2, the injury upon the person of the victim boy could possibly be caused by the recovered weapon of offence, it cannot lose sight of the fact that PW-2 has also opined that the injury upon the head of the deceased boy, which proved fatal for him, could possibly be caused by hitting against the wall. Thereby, PW-2 has rendered two possible opinions by which injury could have been caused. Furthermore, at what place possibly the deceased boy would have been hit by the appellants-accused and how the dead body of the boy, without clothes, reached the open parking zone in morning hours of full light, is a broken chain of circumstance which prosecution has failed to establish.
62. In our considered view, the chain of circumstances put-forth by the prosecution, are inconclusive, untrustworthy and insufficient to bring home the guilt of accused. The prosecution has not been able to prove its case beyond reasonable doubt and as such, the appellants are entitled to get benefit of doubt.
63. Consequentially, giving benefit of doubt to the appellants- Mohd. Tahir and Umakant Yadav, these appeals are allowed. The impugned judgment dated 13.10.2023 and Order on Sentence dated 20.11.2023, are hereby set aside. The bail bonds, if any, of appellants-Mohd. Tahir and Umakant Yadav shall stand discharged and if in custody, they are directed to be released forthwith, if not wanted in any other case.
64. Registry of this Court is directed to transmit a copy of this Judgment to the learned Trial Court and the concerned Jail Authority for information and compliance.
65. With directions as aforesaid, these appeals are allowed and accordingly disposed of.

(SURESH KUMAR KAIT)
JUDGE

(MANOJ JAIN)
JUDGE
JULY 02, 2024
r/uk

CRL.A. 95/2024 & CRL.A. 196/2024 Page 1 of 34