NASEEM AHMED versus DELHI ADMINISTRATION

NASEEM AHMED '· DELHI ADMINISTRATION

December 12, 1973

[M. H. BEG AND Y. V. CHANDRACHUD, JJ.]

Penal Code-M11rder-Circ1unstanlial 111tde11ct.

The appellant and the deceased who were friends, came to Delhi to purebuo motor-cycle and stayed in hotel. The decelSOd fell ohort of money and Ibo appellant promised to get it from 11omeone known to bim. Two J)J'OleCQ.tlon witnesses saw the dec~ased and the appell111t enterill1 the robm of the bolel on the night of the occurrence and the 11>pelfant leavina the hotel room In Ibo morning on the followin1 day, Two day1 later the room· wu broken open and the dead body of the deceased 'waa recovered. The appell111t wu lm&led at Gaya in his sister's house and an "&ttaclle cue c:ontainina clotha, apanaet 11t. an allenkey set and connectina rod were recovered from him. 1b.e' appellant wa• convicted under s. 302 Penal Code by the Sessions JudF. In appeal th• Hi&h Court reduced th)' s~nteq~.,to.llf~.imprisarumnt

Dismissing the appeal tr this Court,

HELD : In case of circumstantial evidence it Is n .... ary to find whether the circumstances on Which the prosecution relies are 'capable of auPDOdinl the •ole inference that.the appellant is. auillY' of.tho crime ol which be la dWFd· The circumstances have to be established by the prooeeutlcm by clear and cogent ev.idence and those circumstances ·must not be cOaibtent wfth tbe iDDo-<:ence of the accused. For determinina:whethcr the clrwmstan.Cel eetablllhed On evidence raise but One infere"nce· consistent with the auUt of the accuaed, naard must be had to the to~lity of the circumstances. Individual circumstances considered in' 'iSOtttion ·arid divorced .from 'the context of the overatt pictute cmergin~ from consideratiOn of the diverse circumstan~s and their confoint effect may by th.en15elves appear innocuou,. It is only when the various circum-stances are considered'"'coniointl\'.. that _it becomes wssible to understand and appreciate their trUe effect.· [696G~Hf ._;·., ., . ·V~ ff'

In the instant case, the circuinstances thai, the appellant and tbe-deceaacd who occupied room in th. hotel were seen enterinsc: the room:. ;~:er at mid .• night on the night of the occurrence, the appellant wu seen 1 .the room and leaving the hotel, the .dead body was recovered from tho room. · the appe1. Jan~ was found indulgihg in what for man of his means was Spree °'-:atra-vagance, and _blood stained connectina: rod was reCQvered from the house of the appellant's sister where he was found, all Point to the ,Wlt of 1he accused.

Criminal Appeal No .. 80

CRIMINAL APPELV•TE JURISDICTION : of 1970.

Appeal by Special Leave from the Judglnent and Order dated the 23rd October, 1969 of the Delhi High Court in Criminal Appeal No. 61 of 1969 (Murder Reference No. 3 of. 1969) ·

Harjinder Singh and S. Sodhi, for the appellant

G. Das and R. N. Sachthty, for the respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, J .-This appeal by special leave is directed against judgment of the High Court of ·Delhi confirming the con-viction of the appellant under section 302 of the Penal Code but re, ducing the sentence of death imposed on him by the leamed Additional Sessions Judge, Delhi to life imprisonment. The charge against the appellant is that on the night between the 17th and 18 August, l 968 he committed the murder· of one Ram Kumar.

On April 11, 1968 Ram Kumar, his brother Shiv Kumar, their mother and the appellant left Kanpur for Moradnagar. On April IS Ram Kumar, Shiv Kumar and the appellant left Moradnagar for Delhi for purchasing secondhand motor-cycle. Shiv Kumar went back to Morndnagar for catching bus to Kanpur.

At about 7·15 p.m. on April 15, 1968 Ram Kumar and the appel· !ant .booked room at Hindustan Hotel, Ballimaran, Delhi. They signed their names in the )tote! register and entered therein their Kanpur address. On the 16th they were admittedly together and while in search of motor-cycle they met Abdul Hafeez, Babu Khan and Om Prakash. On the 17th morning Ram Kumar and the appel· !ant struck deal with Bahu Khan and Om Prakash agreeing to purchase from them motor-cycle for Rs. 1,000/·. Ram Kumar paid sum of Rs. 25/. by way of advance and the sends agreed to deliver the motor-cycle in the evening. At about 6 p.m. on the 17th evening Babu Khan and Om Prakash went to Hindustan Hotel with the motor-cycle and met Ram Kumar, who told them that he was short of money by three or four hundred rupees and that he had sent the appellant to get the amount from his (the appellant's) Ustad. Babu Khan and Om Prakash waited till about 9-30 p.m. but the appellant did not turn up and so they went away with the motor-cycle.

The case of the prosecution is that at about 12-30 a.m. on the night between the 17th and 18th the deceased Ram Kumar and the appellant were seen going to their hotel room by Lal Chand, part· ner of the hotel. It is further alleged that at about 10 ·a.m. on the 18th morning, Lal Chand and his brother Tek Chand saw the appel· !ant locking the room and leaving the hotel. On April 20th, the hotel premises were full of foul smell and thereupon the lock of the room which was occupied by Ram Kumar and the appellant was broken open. Inside the room was found the dead body of Ram Kumar with two stab injuries, one n~ar the right eve brow and the other near the right ear , and nine contused lacerated wounds on the scalp, each injury being. brain deep. According to medical eYidence the stab injuries were caused with pointed, sharp-edged weapon while the other injuries were caused by hard, blunt substance. Soon after the discovery of Ram Kumar's dead body Lal Chand 1orl[0]e~ •he First Tnfnr'l'lation Reoort at the Lahori Gate police station stating that two persons who had entered thei.r·names as Nasim Mahazroo and Ram Kumar occupied room in his hotel on April 1 S,

that he had seen them entering the room at about 10-30 p.m. on the night between 17th and 18th April and that the younger of the two (namely Nasim, the appellant) had locked the room at about JO a.m. on the 18th and had not returned since then. The First Infer, mation Report then refers to the circumstance' in which the dead body of Ram Kumar was found in the room.

The appellant could not be found at Kanpur where he nornrnll) resides and it was on May 4,. 1968 that he \Y~S arrested at Gaya (Bihar) in the house of his sister. On search of that house an attache case containing clothes, ~ spanner set, an allenkey set and connectin~ rod arc said to have been recovered.

According to the prosecution., the. appellant committed the murder of Ram Kumar with the motive of committing theft of about six 01" se,·en hundercd rupees which he had kept with him for purchasing the: motor-cycle. The appellant admitted th?t he was on friendly terms. with Ram Kumar and that they had gone to Delhi for purchasing " motor-cycle. He .also admitted that Ram Kumar agreed to purcha'I: tl1e motor-cvclc from Babu Khan and Om Prakash, that sum of Rs. 25/- was given to Orn Prakash by way of advance, that he, the appellant, was asked by Ram Kumar to raise some money from bis Ustad to make up the price of the motor-cycle and that during hL< absence, Om Prakash and Babu Khan had come to the hotel but had left before he rc•achcd the hotel.The version of the appellant is that he was unable to get the re-quired amount from his Ustad and therefore on reaching the hotel at about 9 p.m. on the 17th he told Ram Kumar that be would go to Kanpur and bring the amount.. He claims to have left for Kanpur by the 9-45 p.m. train reaching there at 6 a.m. on the 18th. He obtained sum of Rs. 450/- on April 19 from one Rafi and arrived in Delhi on the evening of April 20. He says that he went to Ba!li-maran where the Hindustan Hotel is situated and on bearing rumours that person was murdered in the hotel and that his name was involv-ed in it he fled to Gaya out of fear. He denied that any of the iacri-minuting articles were recovered from his sister's house.

This is case of circumstantial evidence and it is therefore neces-sary to find whether the circumstances on which the prosecution rc-]i('S are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in tho first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent \\ith the innocence of the accused. For determining whether the circums-tances established on the evidence raise but one inference consist.:nl with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from tlic context of the overall picture emerging from con: sidcration of the diverse circumstances and tlieir conjoint effect may by themselves appear innocuous. It is only when.the various circums-tances are considered conjointly that it becomes possible to under-stand and appreciate their true effect. If person is seen running

awa>' on the heels of murder, the explanation that he was fleeing in• paiuc is apparently not .irrational. Blood-stains on the clothes ca11> be attributed plausibly to bleeding nose. Even the possession of " weapon· like knife can be explained by citing variety of acceptabk answers. But such circumstances cannot be considered in wate.r-tight compartments. If person is found running away from the scene of murder with blood-stained clothes and knife in his hand, it would, in prop~r context, be consistent with the rule of circums-tantial evidence to hold that he had committed the murder.

The circumstances· on which the High Court relics arc these :

(I) that on April IS, 1968 tlic .. appcllant and the deceased'. Ram Kumar arrived at Delhi for purchasing motor-cycle; ·

(2) that on the evening of the 15th they occupied Room No> 2 in the Hindustan Hotel, Delhi;

(3) that on the 16th, the two were together and were looking: out for secondhand motor-cy<le;

( 4) that on the 17th the deceased agreed to purchase motor-cycle from Babu Khan and Om Prakash and paicf sum of Rs. 25/- to Om Prakash by way of advance. The motor-cycle needed repairs and ·the sellers agreed tO' deliver it in .the evening;

(5) that the price of the motor-cycle was fixed. at Rs. IOOOF but the deceased was short of money by about Rs. 400/-;:

(6) that on the evening of the 17th Babu Khan and Om. Prakash went to the hotel to deliver the motor-cycle when the deceased told them that the appellant had gone: to bring the money from his Ustad. Babu Khan and Om Prakash waited till about 9 p.m. and since the appellant had not returned till then they left with the motor-cycle;

(7) that Lal Chand (P.W. !), partner of the bot.cl saw the· 11ppcllant and the deceased coming to the hotel at about 12-30 a.m.;

(8) that at about 10 a.m. on the 18th Lal Chand and bis· brother Tek Chand (P.W. 2) who run the ltotcl in part·· ncrship saw the appellant locking Room No. :2 and leav~ ing the hotel; ·

(9) that the appellant went to Kanpur on the 18th and got new -clothes stitched for himself from tailor there ori payment · of Rs. 60/- as tailoring charges. Appellant was generally in poor financial circumstancos;

(10) that during his stay at Kanpur the appellant stayed at ''Himacbal Hotel' in an assumed name, 'S. N; Gander'. He bQQked room in the hotel at 5-30 p.m. on the lSth and left the hotel at 4 p.m. on the 19th;

(11) that the appellant was traced at Gaya, Bihar, on May 4, 1968 in the house of his sister. On search of that house 'connecting rod' having stains of human blood was recovered along with other articles.

There is clear and uncontroverted evidence to show that the deceas-ed had sum at least of about Rs. 700/- with him, that he wanted to purchase motor-cycle, that he and the appellant were occupying Room· No. 2 in the Hindustan Hotel, that it was agreed to purchase . motor-cycle for Rs. 1000/- from Babu Khan and Om Prakash and that the deceased had deputed .the appellant on the 17th evening to get the deficit amount of about Rs. 300/. from the latter's Ustad. These facts were never disputed and are not in dispute before us either.

The crucial point of time at which the prosecution and the defence .part company is the mid-night between the 17th and the 18th. Lal Chand has stated in his evidence that at about 12-30 a.m. he saw the deceased and the appellant entering Room No. 2. It was urged by the learned counsel appearing on behalf of the appellant .that Lal Chand may have made mistake in identifying the. companion of the deceased hut we see no foundation for this submission. Lal Chand is prop-rietor of the Hindustan Hotel and he was neither interested in the c.ieceased nor did he have any grudge against customer like the ap-·pellant. It is significant that in the First Information Report which Lal Chand lodged at the Lahori Gate police station on the evening of the 20th, he has specifically mentioned that he saw the deceased aud the appellant entering the room at about 12·30 a.m. on the night between .the 17th and the 18th. At the time when that Report was lodged no one had anv. clue to the murder and Lal Chand could not have started building up theory of his own so as to implicate the ·appellant falsely. The evidence of Lal Chand shows that the appel-lant and the deceased spent the night in Room No. 2,

Counsel for the appellant also challenged the evidence of Lal 'Chand and Tek Chand that they saw the .a1112.ellant locking the room at about 10 a.m. on the 18th and leaving the hotel. This fact is also · specificallv mentioned in the First Information Report which. in our opinion. is highly significant circumstance. Tr.~ case of the appel-lant is that he left Delhi at about 9.45 p.m. on the 17th and therefore 'he could not have been seen locking the room at 10 a.m. on the 18th. The evidence of Chhedi Lal, the Manager of Yasin Tailors, Kanpur, is relied upon as showing that the appellant was in Kanpur at least at about 2 p.m. on the 18th and therefore he could not have left Delhi as late as at 10 a.m. The train takes more than 8 boors to c9ver the distance between Delhi and Kanpur. Chhedi Lal was obviously try-ing to offer helping hand to the appellant .but even then his evidence ·does not show that the appellant bad delivered the cloth to him at 2 p.m. on the 18th. In answer to question put by the learned Sessions Judge, Chhedi Lal stated that he did not remember the exact . time when the cloth was delivered to him by the appellant and that the ·cloth may have been delivered at any time between 12 noon and 8 p.m.

on the 18th. The Sessions Court and the High Court were therefore right in accepting the evidence of Lal Chand and Tek Chand that the appellant locked the room at about 10 a.m. and left the hotel.

These two circumstances are by themselves sufficient to deter-· mine the guilt of the appellant. The appellant and the deceased occupied .a room in the Hindustan Hotel, they were seen entering the room together at mid-night between the 17th and 18th and the appcl· lant locked the room on the 18th morning and left the hotel. From that room was discovered the dead body of Ram Kumar on the 20th. The sum of Rs. 700/· which lite deceased had c:in him was found. missing and at the Kanpur end, the appellant was indulging in what for m~n of his 111eans was spree of extravagance. He obtained tcrylene cloth and paid &rn of Rs. 60/ - to the tailor while his friend wa~ lying dead al Delhi. The appellant is supposed to have gone to Kanpur to obtain the deficit sum of Rs. 300/- and if he was truly on snch bona fide mission, il passes comprehension that he should hav~ stay•d i11 the Himachal Hotel, Kanpur in the false name of S. N. Ga11dc;r.

The conduct of the appellant after his arrival at Kanpur 011 the 18th is valuable link in the chain of causation. He knew that the amount was required by his friend urgently and that his friend was waiting for him in Delhi. On his own showing, he had merry tilllc in Kanpur and according to him it was on the 20th that he went back . to Delhi. And what should he have done? He says that he went to Baliin1aran locality whcr.c· the :f!indL1aan Hotel is situutctl and thc:n to the hotel il<cll'. Having come to know .there that he was being in-E volved in murder which had taken place in the hotel, he claillls to have !led to Gaya, out of sheer fear. This explanation is wholly irl'U· tional and is false. He and the deceased were on intimate terms amI there is evidence showing that the deceased and his family used to· treat him as of. their own kin. If he were innocent, he would have' iP·· quired about his benefactor in moment of sorrow and would nut have run away under the magic spell of strange sense of fear.

Added to the weight of .these circumstances is the discovery of the blood-stained connecting rod from the house of the appellant'• sister. That discovery was ehallcngGd before us because the two wit· ncs:;cs who acted as Panch'as to the-seizure memo turned hostile and tfie prosecution was left to depend on the testimony of two police or.iccrs to prove the discovery. Jhat the two witnesses turned hos-· tile was not surprising because both of them arc closely related to the appelbnt. ft would have been better if the prosecution had examined the other Panch, Sayyed Habib-ul-Rab, who is described as retired Judge in the Memo of Seizure. The Investigating Officer, however · was not asked as to why he was not examined and we see no warrant for assuming that the witness though available was deliberately kept bact:.

The post-mortem report shows that on the person of the deceased were found two stab injuries and nine contused lacerated wounds.

The nature of the injuries shows that two different weapons were µsed in the commission of Ram Kumar's murder. But in the light of the various. circumstances discussed above, it is impossible ,to accept the inferen~ pressed upon us on behalf of the appellant that not only were two different weapons used but at least two persons had partici-pated in the commission of the murder. Even granting that there was more than on,c person, there is no. doubt that the appellant had participated and was key figure in the commission of the crime. 11

We therefore dismiss the appeal and confirm the order of con-.viction and sentence.

Appeal dismissed.