Delhi High Court
Vokhyamamin Alexander vs State Of Nct Of Delhi on 1 October, 2003
Equivalent citations: 2003VIIIAD(DELHI)133, 108(2003)DLT702
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Appellant Vokhyamamin Alexander is a Russian citizen. He stands convicted by the impugned judgment dated 31.7.1999 for having committed the offence under Section 302, IPC.
2. In sustaining the conviction, the learned Sessions Judge has held that the following chain of circumstances stood established against the appellant and the same were sufficient to come to the conclusion that the charge against the appellant of committing murder of K. Allexander on the mid-night of 15/16.9.1996 at Room No. 102, Hotel Kumar Palace stood proved beyond reasonable doubt:
(a) The accused and the deceased were staying in Room No. 102, Hotel Kumar Palace since 14.9.1996.
(b) They were seen staying in the same room on the intervening night of 15/16.9.1996.
(c) On 16.9.1996 at about 2 p.m. K. Allexander was found dead in the hotel room.
(d) Appellant was seen at the hotel on 17.9.1996 and was arrested.
(e) Pursuant to his disclosure and at his pointing out, US $ 1500 were recovered from the room A.C.
3. Appellant, in the present appeal, urges us to hold to the contrary. Mr. Jagdish Singh, Counsel appearing for the accused lead us through the evidence of various prosecution witnesses, whose evidence, according to the learned Counsel neither establishes that the appellant was staying along with the deceased since 14.9.1996 in Room No. 102, Hotel Kumar Palace, much less was seen staying in the said room in the intervening night of 15/16.9.1996 and that there was neither a disclosure nor a recovery pursuant thereto at the instance of the appellant.
4. The case begins with a complaint made by Mohd. Ayub Ali working as Manager of Hotel Kumar Palace, to the local police that at 2 p.m. on 16.9.1996, Ramesh employed in Hotel Kumar Palace as Sweeper had stated to him that he had gone to clean Room No. 102 but there was no response from inside. He went up to the room, pressed the handle and pushed the door. On peeping inside the room, he found that the beds were scattered which roused his suspicion. He entered the room and thereafter the bathroom for checking. In the bathroom, he found the body of K. Allexander dressed only in his underwear. Mouth was wrapped with tape. Body was also tide with tape.
4. Inspector Ram Krishan, came in response to the telephone call made by Ayub Ali. He prepared the Rukka and sent the same for registration. FIR No. 372/ 96 P.S. Nabi Karim under Section 302, IPC was registered.
6. According to the prosecution, investigation revealed that six Russians which included the appellant and the deceased had checked into the hotel through a travel agent on 14.9.1996 and three rooms were allotted to them. As per the register maintained by the hotel, appellant and the deceased were shown as allottee of room No. 102. Investigation revealed that in the intervening night of 15/16.9.1996, appellant and the deceased had stayed in the room and in the morning on 16.9.1996, the appellant came to the hotel and was arrested. Interpreter was called. Appellant made a disclosure statement admitting that he had committed the murder of the deceased to rob him as he had to give money to one Liak Ali for purchase of goods. A purse containing US $ 1500 of the deceased was thereafter recovered at the pointing out by the appellant from behind the A.C. Grill in the room. At the time when murder was detected, finger prints were lifted from the tape and glass tumbler lying in the room, which finger prints, as per the report obtained, matched with the finger prints of the appellant.
7. The complainant Mohd. Ayub Ali was examined as PW 15. In his testimony, he stated that in the month of September, 1996 he was working as a Manager in Hotel Kumar Palace, Pahar Ganj. Mohd. Anis Alam was the other Manager. They used to work in the shifts of 12 hours duration. On 14.9.1996, he was on duty from 9 a.m. to 9 p.m. The accused accompanied by the deceased had arrived in the hotel. They had checked in together. He checked their passports. He allotted room No. 102 to them. Since they were foreign nationals, he filled up Form ‘C’ to be sent to FRRO. Both of them had occupied the room. On l6.9.1996 at 2/2.30 p.m., sweeper Ramesh told him that there was no response from room No. 102. They went up, turned the handle, opened the door and went inside. Both the beds were found used, belongings were lying scattered. On checking he found the dead body of the deceased in the bathroom tide with plastic tape. He informed the police over the telephone. Police came to the spot and recorded his statement Exhibit PW 15/A. Two liquor glasses, cigarette packets, empty liquor and beer bottles were seized. The entry regarding the occupation of room No. 102 was seized. On 17.9.1996, he joined the investigation. The accused was arrested by the police on being identified by him. On 18.9.1996, he again joined the investigation. Accused led the police and him to room No. 102 and from the A/C unit of that room behind the grill, got recovered a leather purse containing US $ 1500.
8. In cross-examination, the witness admitted that the appellant and the deceased were a group of six persons of Russian origin/who had come to the hotel. Three rooms were allocated to them. No signatures were obtained on the register against the entries pertaining to the allocation of the rooms because foreigners generally do not sign the register. He had not collected the payment as the same was to be charged to the travel agent. He did not remember if any of the occupants of the rooms had placed an order for food on 14.9.1996, 15.9.1996 and in the intervening night of 15/16.9.1996.
9. PW 11, Anis Alam deposed that he was the other Manager of Hotel Kumar Palace. On the intervening night of 15/16.9.1996, he was on duty at the hotel from 9 p.m. to 9 a.m. At the intervening night he had received a telephone call from a Russian staying in room No. 101 that he was feeling uneasy due to noise. He did not tell him where from the noise was coming. Since no A/C room was available, he refused the request for change of room. On the same night, in room No. 102, the appellant and the deceased were staying. In cross-examination, he stated that he does not remember the names of any of the guests of other rooms who were staying at that time. He admitted that on 14.9.1996, a group of Russian tourists had stayed. No entry was a made in the register in his presence. He did not know who was staying in room No. 101.
10. From the evidence of PW 11 and PW 15, it is apparent that a group of six Russians had checked into the hotel on 14.9.1996 and three rooms were allotted to them. Since they were foreign nationals, Form ‘C’ had to be filled up and supplied to the FRRO. PW 15 admitted that he had filled in Form ‘C’. He no doubt says that the appellant and the deceased occupied room No. 102 in the hotel but did not depose that he actually saw them staying in room No. 102. Neither did PW 11 actually see the two in one room i.e. room No. 102, From the testimony of PW 11 and PW 15, it is further evident that no hotel staff actually saw the accused and the deceased staying in room No. 102. Learned Counsel for the appellant contends that neither the appellant nor the accused nor the other four Russians had signed against the entries pertaining to three rooms allotted to the group of six and from the evidence of PW 15, it is apparent that he filled up the names of two persons each, as the occupants of three rooms, allotted to the group of six.
11. There is no evidence of any of the witnesses on record to show that the appellant and the deceased had actually resided in room No. 102. The register containing the entry was not signed by the appellant and the deceased. PW 15 in his deposition did not even state that he entered in the register the occupation of three rooms as told to him by six Russian tourists. We, therefore, do not have evidence from PW 11 and PW 15 to the effect that they had actually seen the appellant and the deceased staying together in room No. 102.
12. Ramesh, sweeper, was examined as PW 2. He stated that during his tenure in the hotel, no incident had taken place. He was declared hostile. In the cross-examination, he stated that on 16.9.1996 when he reached hotel in the morning at about 9 a.m. he saw that a crowd including the managerial staff had gathered at room No. 102 because a dead body was lying there. He was called later to bring out the body. He never met the police nor was his statement recorded. He denied that it was he who told Manager Ayub Ali that there was no response from room No. 102. He denied that the Manager Ayub Ali in his presence discovered any dead body in the room.
13. PW 9, ASI Rajeshwar Prasad deposed that on receiving information about the murder having been committed in Hotel Kumar Palace, he reached the spot at 2.40 p.m. on 16.9.1996. S.H.O. had also reached there. They proceeded to room No. 102 and saw a dead body of the deceased tide in tape. Belongings were lying scattered in the room. Two glasses having small quantity of liquor were lying. Photographer was summoned. He recorded the statement of Manager Ayub Ali and sent the Rukka for registration of FIR. Bottles of liquor, beer and glasses were seized.
14. PW 10, S.I. Vijaypal Singh stated that on 16.9.1996, he was summoned to room No. 102 of Hotel Kumar Palace from where he lifted some chance finger prints from, glasses, bottles and almirah through his subordinate K.N. Singh. He got chance finger prints developed and gave the report to the I.O. Surprisingly, this report was not placed on the file of the Court as recorded in the proceedings dated 2.6.1998. I.O. Ramesh Krishan told the Court that since the report was of advisory nature, he had not filed the same in Court.
15. PW 13, Shri K.N. Singh, stated that on 16.9.1996 he was called to Room No. 102 of Hotel Kumar Palace for lifting chance prints from the dead body. He examined the body through laser. He did not find any chance prints and he did not give any report.
16. PW 7, Padam Singh, Photographer deposed that at the request of the police, he had taken photographs at Room No. 102 of Hotel Kumar Palace. He stated that he may have given the negatives to the police or may have lost the same, in any case he could not produce them. In his cross-examination, he stated that he was made to enter the room, take photographs, then was sent out. Position of the body and its posture was changed. He was re-summoned to take photographs. He was repeatedly made to take photographs and each time was told to go out of the room, enter again and take further photographs.
17. PW 22, Inspector Ram Krishan, I.O. stated that on 16.9.1996 on receipt of DD No. 17-A, he reached Hotel Kumar Palace. He met Manager Mohd. Ayub Ali, who took him to room No. 102. A dead body in underwear was lying in the bathroom. Two glasses were lying on the table, one filled with liquor and the other half filled. The dead body was tide in the shape of a foetus in the womb. He recorded the statement of Ayub Ali and sent the same through Constable Manoj for registration of FIR. He summoned the photographer, who took photographs Finger Print Expert was summoned to lift the chance finger prints from the liquor bottles. He effected seizure of pant and shirt of the deceased. He took photographs of the hotel register. On 17.9.1996 when he was keeping a watch on the hotel, the Manager informed him that a Russian, who had occupied room No. 102, was asking as to why the room was locked. He tried to speak to the Russian who could not understand Hindi or English. He summoned one Satish, who know Russian language and he interrogated the accused. The accused made a disclosure statement Exhibit PW 9/A, as per which he disclosed that he had ordered goods worth Rs. 2,50,000/- from a firm in Madangir. He paid Rs. 85,000/- in advance. Balance amount he had promised to pay. Since he had no means to pay, he murdered his room-mate and took US$ 1500 which he concealed in the hotel room. Accused led them to the hotel room and got recovered a black purse containing US $ 1500. He seized the same. On being cross-examined, he stated that he had checked the entries from 14.9.1996 to 17.9.1996 and had learnt that 5/6 Russians had checked in the hotel on 14.9.1996. They had stayed in Room Nos. 101, 102 and 103. He admitted that he did not make any effort to ascertain as to when the other Russians were checking in and checking out of the hotel. He did not join the other Russians in the investigation nor made any inquiry from them. He admitted that he did not know Russian language. He admitted that he did not call any person from Russian Embassy to join him for interrogation of the accused. He stated that he summoned the interpreter Satish from Multani Dhanda. He stated that he was not familiar with Satish Kumar. He stated that he did not ascertain the source of US$ 1500 which were recovered and could not say whether they actually belong to the deceased. No person other than the accused had told him that the money belonged to the deceased. He admitted that no personal belongings of the accused were recovered from room No; 102. He admitted that he did not make any inquiry from Reserve Bank of India if the deceased had brought US $ 1500 with him.
18. Satish, who had acted as the Translator when the accused was interrogated and purportedly made the disclosure statement was examined as PW 8. He stated that he never joined the investigation and know nothing about the case. On being cross-examined by the Public Prosecutor, he denied that he knew any Russian or was doing the job of translation from Russian to Hindi. He denied having joined the investigation on being summoned by the police on 17.9.1996. He denied that he again joined the investigation on 18.9.1996. He denied that he accompanied the police along with the accused to room No. 102 when recovery of a purse containing US$ 1500 was made. On being cross-examined by Counsel for the accused, he stated that he sells stationary articles in Karol Bagh and was threatened by the police to sign blank papers. To save his skin, he signed the same. He never studied Russian language nor did he know Russian. He was 10th class fail. No Russia was ever interrogated in his presence.
19. PW 4, Liak Ali stated that he was called by the police about a year back and had made inquiry from him if any Russian had placed any order on him. He had told the police that no Russian had placed any order on him. Witness was declared hostile. In the cross-examination, he stated that he has a factory at premises No. 63, Madangir where he manufactures leather jackets. He denied that on 14.9.1996, accused had placed an order for jackets and coats worth Rs. 2,50,000/- on him. He denied that he had any business dealings with the accused.
20. We have gone through the judgment of the Trial Court while returning the conviction, the learned trial Judge has placed great reliance on the hotel register which showed that the appellant and the deceased had checked into room No. 102. Unfortunately, learned trial Judge failed to appreciate that six Russians had checked into the hotel as a group. Three rooms were allotted to them i.e. two in each room. PW 15, who had filled the register did not state that he had actually seen the appellant and the deceased occupying room No. 102. He even did not stale that he mentioned the names of two Russians in each of the room allocated on being told by them that they were occupying a particular room. He stated in this deposition that he filled the register as Form. ‘C’ had to be forwarded to FRRO. The learned Trial Judge grossly overlooked the fact that none of the witness PW 11 or PW 15 stated that they had actually seen the appellant and the deceased occupying room No. 102. Missing this vital aspect, too much reliance was made on the entry in the hotel register. In our opinion, there is a very high probability that when six persons checked into a hotel, to whom three rooms are allocated, the persons at the reception would keep on entering two names against a room. In any case none deposed that he had actually seen the deceased and the appellant occupying room No. 102.
21. It is the admitted case of the prosecution that the Investigating Officer did not know Russian language and the accused did not know Hindi or English. According to the I.O., the accused had made a disclosure statement, in the presence of PW 8 who had translated the same. PW 8 denies having joined the investigation much less having acted as an interpretor. We, therefore, have the statement of the police that the accused made a disclosure and led them to the hotel room, from where recovery of US $ 1500 in a purse was made at the instance of the accused. Accused denies any such disclosure. If PW 8 did not act as an interpreter and admittedly, the I.O. not knowing Russian and the accused did not know Hindi and English, the disclosure statement as well as the recovery lose credibility. In any case, the I.O. admits that he had not conducted any investigation to ascertain the identity of the purse which contained US $ 1500 allegedly recovered at the instance of the accused. One important fact which has emerged is that no personal belonging of the appellant were found in room No. 102. The other important facet which has come on record is that I.O. made no attempt even to find out whether the deceased had with him US $ 1500. Strangely enough, none of the other Russian persons were interrogated by the I.O.
22. From the testimony of PW 10, Vijay Pal Singh and PW 13 K.N. Singh, we have one witness saying that he did not lift finger prints but the other saying that finger prints were lifted which were developed and he had made a report, but unfortunately the report was not placed on record. The I.O. Ram Krishan told the Court that the report was of advisory nature so he had not filed the same in Court. We, therefore, have no evidence on record that the finger prints of the accused were lifted from the room which less they were of the appellant. Therefore, on this, we have nothing on record which implicates the appellant with the crime.
23. Testimony of PW 4, Liak Ali even demolishes the alleged motive in the crime.
24. Realty or truth, the fundamental and basic presumption in the administration of criminal law and criminal justice delivery system is the innocence of the alleged accused till the charges are proved beyond reasonable doubt. Clear, cogent, credible and unimpeachable evidence must emerge to sustain the conviction. Indictment of an accused does not arise merely because a heinous crime has been committed. Mere suspicion, however, strong or probable is no substitute for the legal proof required to substantiate the charge of commission of a crime. Graver is the charge, greater is the standard of proof required. Dealing with criminal case, one is consistently reminded that there is a long mental distance to be traversed between “may be true” and “must be true” to “is true” and “sure conclusion”.
25. On the evidence on record, we are afraid that the prosecution has failed to establish that the deceased and the appellant had occupied room No. 102 on 14.9.1996, The prosecution has failed to prove that in the intervening night of 15/ 16.9.1996, appellant and the deceased had stayed in room No. 102. Prosecution has failed to establish that at the disclosure of the appellant, prosecution recovered US $ 1500. The prosecution has failed to prove that the deceased was having US $ 1500. The prosecution has failed to prove the motive for committing the crime. We accordingly allow the appeal. The appellant, who is in jail, is ordered to be set free. The impugned judgment and order dated 31.7.1998 in Sessions Case No. 33/97 in FIR No. 372/96 P.S. Nabi Karim under Section 302, IPC is set aside. Appellant be released forthwith if not required in any other case. Fine be refunded. Order be conveyed to appellant through Superintendent Central Jail, Tihar.