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TMI Blog2010 (9) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... g there. From the Driving License recovered from the pocket of the pant worn by the deceased, it was found that he was Om Prakash, resident of E-273, Dev Nagar. Since this was an apparent case of murder, the FIR under Section 302 of IPC was registered on the endorsement made by the Police Officer on the copy of DD. The appellant Ramshree is the wife of the deceased whereas her co-convict Mahender Kumar used to ply an auto-rickshaw owned by the deceased. The case of the prosecution is that there was an illicit relationship between the appellants, which led to a conspiracy being hatched by them for committing murder of the deceased and pursuant to that conspiracy the deceased was murdered by the appellant Mahender Kumar and his accomplices Raj Kumar and Raju who have been acquitted by the trial court. 3. The prosecution examined 19 witnesses in support of its case. No witness was examined in defence. 4. There is no direct witness of the murder and the case of the prosecution against the appellants rests solely on the circumstantial evidence. The following circumstances are alleged against the appellants: (i) The deceased was last seen when he left along with the appellant Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vijay Kumar is the brother of the deceased. He corroborated the deposition of his mother and stated that when Mahender Kumar came in the morning of 8th February 1988 to park the auto-rickshaw and his mother asked him as to how he had plied the auto-rickshaw in night though his normal hours were during day time, the appellant Ramshree got annoyed and asked his mother as to how she was concerned about the time the auto-rickshaw was plied by Mahender Kumar. He further stated that at about 10:00-11:00 AM, a Police Constable came to Ramshree to find out the address of Om Prakash. In the night he came to know from his brother Kishan Lal that Om Prakash had been murdered. 7. Thus, according to both these witnesses, one of whom is the mother and the other, the brother of the deceased, Om Prakash had left with the appellant Mahender and his accomplices Raj Kumar and Raju Madrasi on 07th February, 1988. Admittedly, no missing report was lodged by them with the police either on 07th February, 1988 or at any time before they received information, on 08th February, 1988, about the murder of the deceased. In the ordinary course of human conduct, the family members of the deceased would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e previous day. 10. It is an admitted case that both these witnesses had come to know about the murder of the deceased on 08th February, 1988. According to PW-4 Kishan Lal, brother of the deceased, information about death of his brother was received by him at about 10-11 AM on 08th February, 1988, in the presence of his mother and other family members, including PW-6 Vijay Kumar and they had gone to the Police Station. He was specific that his mother as well as the appellant Ramshree had accompanied him to the Police Station. Admittedly, neither the mother nor the brother of the deceased informed the police at any time prior to 11th February, 1988 that the deceased had left the house in the evening of 07th February, 1988 alongwith the appellant Mahender Kumar and his accomplices Raj Kumar and Raju Madrasi. We find it extremely difficult to accept that despite coming to know of the murder of Om Prakash, they would not have disclosed this most vital information to the police, immediately on coming to know of the murder. The case of the prosecution is that the appellant Mahender Kumar was having an illicit relation with the appellant Ramshree and this fact was very much in the know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the appellant Mahender, Raj Kumar and Raju Madrasi on 07th February, 1988 and that the appellant Ramshree had an illicit relationship with the appellant Mahender Kumar though he claims to be aware of these facts. 11. The learned APP tried to explain the delay in disclosing this vital information to the police by contending that the appellant Ramshree had misguided their family members by falsely suspecting Ajay Kumar, brother-in-law of the deceased for his murder. It has come in the deposition of PW-15 SI Chander Bhan that Ramshree and Kishan Lal had suspected Ajay Kumar, brother-in-law of the deceased, for his murder. However, the statement alleged to have been made by Ramshree to SI Chander Bhan is not admissible in evidence in view of the provisions contained in Section 162 of the Code of Criminal Procedure, which provides that the statement made to a police officer, during the course of an investigation, shall not be used for any purpose, except to contradict its maker when he is called as a witness in the prosecution. Admittedly, investigation into death of the deceased Om Prakash had begun prior to the statement alleged to have been made by the appellant Ramshree to P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned alone alongwith the auto-rickshaw in the morning of 08th February, 1988 and was not accompanied by the deceased, and when his mother asked him as to how he had plied the auto-rickshaw in night though his normal hours were during day times, on hearing this, the appellant Ramshree had snubbed his mother by asking her how she was concerned as to at what time the auto-rickshaw was plied by Mahender. According to PW-1 Chander Wati, when the appellant Mahender returned alone, without being accompanied by the deceased in the morning of 08th February, 1988 and she expressed her concern about the deceased not coming with him, the appellant Ramshree asked her to keep quite saying that he (deceased) would come. We, however, feel that far from convincing PW-1 Chander Wati and PW-6 Vijay Kumar, such an interjection by the appellant Ramshree would only have aroused their suspicion since being wife of the deceased, she was supposed to be at least equally concerned about the welfare of the deceased and in that event, they would not have believed the excuse given by the appellant Mahender and would at least have cross checked by calling the deceased in his office. In any case, such a cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash. He further stated that Om Prakash used to suspect the fidelity of Ramshree. According to him, Ramshree had developed illicit relations with Mahender Kumar because Om Prakash was a weak and feeble man. He claimed to have witnessed Ramshree and Mahender Kumar lying and sitting on one cot. He also stated that he did not disclose this fact to Om Prakash so as to avoid quarrel between the couple. 16. Admittedly, the appellant Mahender used to ply the auto-rickshaw, owned by the deceased, on a regular basis. He used to take the auto-rickshaw in the morning and bring it back every day in the evening. It is also the case of the prosecution that the deceased knew about the alleged illicit relationship and this had also resulted in quarrel between him and his wife appellant Ramshree. We find it difficult to accept that despite having come to know of the alleged illicit relationship, the deceased would have permitted the appellant to continue to ply his auto-rickshaw on a daily basis. He knew it very well that if the appellant Mahender plies his auto-rickshaw, he will come to his house at least twice a day, once for taking the auto-rickshaw and then for leaving it at his jhuggi. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to the police that his bloodstains clothes were kept by him in the jhuggi of Raju and thereafter those clothes were recovered from the jhuggi of Raju. The disclosure statement alleged to have been made by Mahender is admissible under Section 27 of the Evidence Act only to the extent that some clothes were kept in the jhuggi of Raju, since pursuant to this statement some clothes were actually recovered by the police from that jhuggi. Section 27 of the Evidence Act, to the extent it is relevant, provides that the information which relates distinctly to the fact that discovered, by the police in consequence of that information, may be proved. The words so much of such information as relates distinctly to the facts thereby discovered are very important and constitute the core part of the section. The extent of the information admissible under the section would depend on the exact nature of the fact discovered, to which such information is required to relate. The fact discovered is not equivalent to the object produced by the accused or recovered by the police. It embraces the place from which the object is produced or recovered and knowledge of the accused as to this. The state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odstains come on the clothes of a person, while committing a murder, his first attempt would be to either get rid of those clothes by destroying them or to at least wash them thoroughly, so as to leave no stain of blood on them. The report of CFSL shows that the clothes alleged to have been recovered from the jhuggi of Raju were extensively stained. There is not report of the clothes having been washed or any faint stain of blood having been found on them. This shows that no attempt was made to wash the clothes. Since the prosecution has failed to prove that the clothes recovered from the jhuggi of Raju, pursuant to the statement made by the appellant Mahender Kumar were his clothes, mere presence of blood stains on those clothes does not necessarily connect him with the murder of the deceased. Circumstance No. (v) (vi) 20. It has come in evidence that on 12th February, 1988 the three wheeler scooter of the deceased, which the appellant Mahender Kumar used to ply, was seized by the police and some blood stains were found under the seat of that auto-rickshaw. It is the case of the prosecution that this auto-rickshaw was parked at the jhuggi of the deceased since morning o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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