LAWS(DLH)-1981-9-37

DHARAMBIR ALIAS JONNI Vs. STATE

Decided On September 09, 1981
DHARAMBIR ALIAS JONNI Appellant
V/S
STATE OF DELHI Respondents

JUDGEMENT

(1.) The appellant was tried under Section 302 Indian Penal Code . for the alleged murder of Baldev Raj of village Mundka. He was convicted and sentenced to rigorous imprisonment for life under Section 302 Indian Penal Code . by an Additional Sessions Judge. Against his conviction and sentence the appellant filed this appeal in the High Court. The appellant was not arrested at the spot. He was, however, arrested on 26-11-77 from Company Bagh opposite Delhi Railway Station. The alleged incident took place on the night between 17th and 18th November 1977. At that time of arrest he had some old injuries on both of his hands. He was got medically examined. According to the prosecution, during the course of interrogation of the appellant by the police the accused made a disclosure statement, inter alia, saying that during the scuffle with the deceased his shirt and vest were torn and the deceased bit his thumb, as a result of which he i.e. appellant sustained injuries due to tooth bite and he got the same bandaged from a doctor in village Chuchhak was and that he could point the shop of the doctor. The appellant actually pointed out the shop of the doctor at village Chuchhak-was. There was no direct evidence connecting the accused with the crime although number of witnesses were examined by the prosecution. The trial court in the absence of any direct evidence, relied upon the circumstantial evidence, mainly relating to the confession made by the accused before Public Witness . 24, his abscondence from the village and his disclosure stament, slating that he had sustained tooth bite from the deceased, convicted and sentenced the appellant as mentioned above The first circumstance appealing against the appellant and considered by the trial court, was that the accused met Subh Ram, P. W. 24 at about 12 midnight and in the morning of 18th November, 1977, and confessed before him that he happened to commit the murder of Baldev Raj and he should support him. On this aspect, the Division Bench of this court after considering the statement, of this witness observed that the learned Additional Sessions Judge has slipped into grave error in placing reliance on the testimony of this witness. In its very nature, an extra judicial confession is evidence of weak type and the testimony of the witness to whom it is allegedly made has to be scrutinised and scanned carefully and closely. The conduct of this witness in keeping silent all the time before he swore affidavit dated 5th May, 1978, Ex. Public Witness .24, reflects adversely on his credibility. No explanation worth the name had been furnished for his continued reticence for over six months. One cannot be obvious to the fact that he was a Pradhan of Gaon Sabha and as such it was his bounden duty to assist the police in the investigation of the crime and impart the valuable information with respect to a heinous crime at the earliest which he was possessed of. It was further noticed that he was a person of doubtful character and was at the relevant time standing trial on a charge under the Opium Act. Persumably, therefore, he was under the thumb of the police and by no stretch of reasoning he can be characterised as an independent witness. Strangely enough he was not interrogated by the police during the course of investigation, and for that reason he was not cited as a prosecution witness. It was only on 9-5-78 that the prosecution flung surprise by producing his affidavit in court. In view of this it was held that he has forfeited his right to be belived and no reliance can be placed on his testimony.

(2.) The second circumstance considered against the accused was that he absconded on 18-11-77, although his name was not mentioned in the F. I. R. and was arrested only on 26-11-77. Held that there is solitary evidence of Head Constable Public Witness . 18, that under instruction from the Inspector, he went to village Aboharasthan on 20-11-77, in search of the accused, as sister of the father of the accused was residing there. However, the accused was not available there. His temporary absence from village, the assuming it to be so, for about 10 days after the occurrence in question cannot per se be termed as abscondence which admittedly implies that the appellant had intentionally disappeared to evade arrest. The onus lay on the prosecution to establish the factum of abscondence. The learned Sessions Judge was in error in observing that the accused ought to have adduced evidence that he remained in the village from 18-11-77 to 26-11-77. It is not at all possible to draw any adverse inference against the appellant from this circumstance either. Indeed abscondence can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.

(3.) The third circumstantial evidence was with ragard to the disclosure statement made by the appellant before the police that he suffered a tooth bite by the deceased during scuffle with the deceased.