Brij Mohan vs The State
1983 Latest Caselaw 245 Del

JUDGMENT

G.R. Luthra, J.

1. The appellant, Brij Mohan was charged for having committed murder of Veena Jain on May 7, 1978 at about 9.15 a.m. and was convicted by an Additional Sessions Judge (Shri P. K. Jain) on 22nd November, 1979 and sentenced to undergo imprisonment for life. The present appeal is directed against the aforesaid conviction and sentence.

2. One Harbans Lal Jain and his wife Smt. Pushpa Devi (PW 7) had five daughters and one son. Veena Jain, who was murdered, was one of the daughters. The other daughters, who are alive, are Saroj Bala, Shashi, Neelam and Dimple. Saroj Bala and Shashi are married and are living with their respective husbands. Veena Jain was third in age. Who was unmarried. Name of the son of Harbans Lal is Dalip Kumar (PW 1).

3. Harbans Lal used to carry on cloth business. Brij Mohan appellant used to take cloth from Harbans Lal and sell the same by hawking on commission basis. At that time Harbans Lal and his family members were residing at R.K. Puram, New Delhi. They shifted to flat No. A-5-B/28, Janakpuri, Delhi about four years before the occurrence. Harbans Lal expired in July, 1976. By that time appellant had already ceased to be working with Harbans Lal. On the death of Harbans Lal, the appellant came for condolence. Thereafter he started visiting the house of the family at Janakpuri. Wife of Dalip Kumar objected to the visits of the appellant during the absence of the former. The appellant stopped visiting the house thereafter.

4. The version of the prosecution briefly is as follows : The appellant had started love affairs with Veena Jain, now deceased. He wanted to marry her but the family of Veena Jain was not agreeable. About six or seven days before the occurrence, Dalip Kumar received a letter from the appellant to the effect that the latter should be permitted to see Veena Jain on 5th or 6th May, 1978. PW 1 did not reply. The appellant did not turn up on both the aforesaid dates. On May 7, 1978, which was a Sunday, Dalip Kumar (PW 1) was at his house. His wife had gone to her parents along with the child. The younger two unmarried daughters Neelam and Dimple had gone to the house of their uncle at R.K. Puram. Smt. Pushpa Devi (PW 7), mother of Dalip Kumar, had gone to bring bread. The net result was that only Dalip Kumar (PW 1) and Veena Jain were in the house. Dalip Kumar was relaxing in the flat which is on the first floor. Veena Jain was washing clothes. After washing the clothes, she went to the terrace for spreading them in the sun. After some time mother of Dalip Kumar came back after purchasing bread. She saw that her flat was bolted from outside. She opened the bolt and then came in. Thereafter Dalip and she heard some cries of Veena Jain. PW 7 (mother of Dalip and Veena) happened to be a heart patient. Therefore, Dalip went upstairs to the terrace. He found that the appellant was inflicting injuries on Veena with a razor (used by barbers). On seeing Dalip, the appellant tried to run away. Dalip chased the appellant. First of all the appellant went over to the roof of an adjacent flat by way of lumping over an intervening wall of the height of 3' or 4'. Thereafter he returned to the terrace of the flat of Dalip and his family and ran away through the staircase passing in front of the flat of the family of Dalip. The appellant was noticed by PW 7 when he was so running away. Dalip continued the chase but the appellant escaped.

5. There was lot of blood scattered on the terrace. Veena was bleeding profusely. She came downstairs and fell down in front of the door of her flat.

6. O. P. Dubey (PW 16) happened to pass between 9 and 9.30 a.m. outside the flat of the deceased. He saw a large crowd collected there. He happened to be the Vice-President of Residents Welfare Association. He was told that some one had been killed. He went upstairs and found girl lying in pool of blood and her mother crying, "Bachao, Bachao". He immediately informed the police control room, Delhi (sic) received the telephonic call of O. P. Dubey at 9.36 a.m. He recorded that information and passed on the same to Police Station Janakpuri. At about 10.15 a.m. S.I. Tara Chand (PW 25) received copy of the report Ex. PW12/B in respect of the information received from the police control room. He immediately left the police station and reached the spot at about 10.20 a.m. At that place Dalip (PW 1) and his mother (PW 7) were present. Veena was lying in a pool of blood in the staircase in front of door of her flat. He sent Veena through S.I. Manphool Singh (PW 8) in taxi bearing No. DLT 2728 driven by Upinder Singh (PW 6) to Willingdon Hospital. He stayed back and recorded the statement of Dalip Ex. PW1/A and sent the same with an endorsement Ex. PW25/A to the police station for registration of formal first information report. That writing was received by ASI Dwarka Nath (PW 12) who was working as duty officer. PW 12 recorded the formal first information report and sent a copy of the same back to SI Tara Chand. Recording of the first information report was completed at 11.40 a.m. SI Tara Chand took into possession one pair of brown rubber chappals and another pair of rubber chappals having green stripes. Both the pairs of chappals were bloodstained. He also took into possession bloodstained handle of the razor lying on the terrace, the sample blood and bloodstained earth and put them into separate sealed parcels. Similarly control earth was also taken into possession.

7. In Willingdon Hospital, Veena was medically examined by Dr. R. Dixit who on the basis of the said examination prepared M.L.C. Ex. PW24/A. As Veena was found to be dead, death report Ex. PW24/B was also prepared by Dr. R. Dixit.

8. On May 8, 1978 at about 2.30 p.m. Dr. L. T. Ramani of Police Hospital conducted post-mortem examination on the dead body of Veena. He found the following external injuries :

1. An incised stab wound 4" x 3 1/2" bone deep transversely placed on the front of right elbow, margins of the wound were regular, both ends were equally tempering, muscles over the bones were completely divided, brachial artery and vein were completely divided.

2. Incised wound 1 1/2" x 1/2" x muscle deep obliquely placed on the right forearm one inch below the injury No. 1.

3. An incised wound 2" x 1/2" x muscle deep on the middle of right leg shin. There was a linear cut mark on the shin of tibia shaft.

4. An incised wound 8 1/2" long x 2" x muscle deep, (1 1/2") obliquely placed on the left buttock lower part. There was a cut mark on the lateral aspect of left femur at its upper end where injury was bone deep.

5. Incised wound 1/2" x 2/10" x skin deep on the palmer aspect of left index finger.

6. Incised wound 1 1/2" x 2/10" x skin deep at the base of right index finger and palm.

Dr. Ramani expressed an opinion that injury No. 1 was sufficient to cause death in the ordinary course of nature. Blouse and petticoat of Veena which were bloodstained were taken into possession by Dr. Ramani. They were made into a parcel and sealed and were sent to the police.

9. On 9th May, 1979 the appellant was arrested from Kingsway Camp, Edward Lines by S.I. Tara Chand (PW 25) on the pointing out of Dalip Kumar (PW 1). When the appellant was arrested, he had an injury on his right leg. He pointed out to that injury to PW 25 and also said that he had got the same treated from Dr. Hans Raj Kalra (PW 2). On account of that injury, the appellant was sent to the Police Hospital for medical examination where he was medically examined by Dr. Ashok Kumar Bachawat (PW 3) on 10th May, 1978. On examination by the said doctor one stitched wound on the lateral aspect of the upper part of the right leg of the appellant was found. According to Dr. Ashok Kumar, the injury was simple but he could not give any opinion about the type of weapon used and the duration of the injury because of the presence of stitches.

10. On May 10, 1978, the appellant was produced before Shri B. B. Choudhary, Metropolitan Magistrate, Delhi. Before the said Magistrate, the appellant gave specimen signatures and writing so that the same could be compared with the two postcards alleged to have been written by the appellant. One of the postcards was written to Veena Jain, now deceased, and the other was written to Dalip Kumar (PW 1).

11. On the same day i.e. 10th May, 1978, on interrogation by the police, the appellant made a disclosure statement Ex. PW1/J to the effect that he could get the bloodstained blade of the razor recovered from a drain in front of his house.

12. On May 11, 1978 the appellant got recovered the bloodstained blade of the razor from the drain in front of his residence at D-21, New Multan Nagar, Delhi. He also got recovered one bloodstained pant, one bloodstained open bushshirt and one bloodstained langot from inside his almirah in his aforesaid house. Blade of the razor and the aforesaid clothes were separately put into parcels and sealed.

13. In his statement the appellant admitted that he used to do cloth business on commission basis with the father of Veena, deceased. He also admitted that he was very well known to the entire family of Veena. He further admitted that father of Veena died in July 1976 and that he went to the house of Veena in connection with condolence. He, however, denied that he started visiting the house frequently thereafter. He further denied that he had written any postcard to Veena and Dalip Kumar (PW 1). He denied the entire occurrence. He stated that he was innocent and had been falsely implicated.

14. Dalip Kumar (PW 1) supported the entire prosecution version. He was an eye-witness to the occurrence because he reached on the terrace when still the appellant was inflicting injuries on Veena. He also chased and tried to catch hold the appellant but the latter escaped.

15. Statement of PW 1 is supported by that of Smt. Pushpa Devi (PW 7). She is the mother of the deceased. She stated that she went at about 8.45 a.m. on May 7, 1978 to bring a bread from the bazar, that at that time Veena was washing the clothes, that when she came back after a few minutes, she found the door of her flat bolted from outside, that she went inside the kitchen and placed the bread there, that after some time she heard the cries of Veena from the terrace, that as she was heart patient, she did not go to the terrace and that her son (PW 1) rushed to the roof. She added that immediately thereafter she saw the appellant Brij Mohan running downstairs, that he was having bloodstained clothes, that in his right hand, he had some bloodstained article and that her son Dalip Kumar was chasing the appellant. She narrated that after 2/3 minutes her daughter Veena came from upstairs, that she was submerged with blood and fell down near the entrance of their flat on the first floor and that she enquired from Veena as to what had happened to which the reply was that Birju Maar Gaya. Her statement is also very important because she saw the appellant running downstairs with bloodstained clothes and by holding a bloodstained article. Her statement also spells out the dying declaration of Veena to the effect that she had been injured by the appellant but the same is being dealt with separately.

16. Shri I. U. Khan, Advocate who was appointed as amices curiae for defending the appellant, argued that there were circumstances to show that PW 1 was not present at the time of the occurrence and that it was on account of near relationship, as brother of Veena, that he was falsely posing himself as an eyewitness of the occurrence. Sum and substance of the circumstances, on which he placed reliance in support of his arguments, are as under :

(a) There was no injury on the person of PW 1. Had he been present and chased the appellant, he would have received some injuries.

(b) Veena was taken in taxi by S.I. Manphool Singh (PW 8) to the hospital. Some relation should have accompanied her when she was taken to hospital. If PW 1 was present, he must have accompanied her.

(c) Petticoat of Veena was torn. On that account another petticoat was placed on her body by her mother PW 7. It has come in the statements of PW 1 and PW 7 that PW 7 was a heart patient. If PW 1 was present at the spot, he would not have troubled his mother to place petticoat on Veena, and it was PW 1 who would have done so.

(d) O. P. Dubey (PW 16) was the person who gave information for the first time to the police about the occurrence. He had come to the spot before giving that information. He in his statement does not mention that PW 1 was present at that time.

17. All the aforesaid circumstances do not lead to the conclusion that PW 1 was not present. He did not have any scuffle or grappling with the appellant. He was merely chasing and, therefore, there is no question of his having received any injury. It is true that he did not accompany Veena in the taxi when she was taken to hospital but there could be variety of reasons for that conduct. May be, he thought it advisable to stay on for looking after his mother PW 7 because she happened to be heart patient who had received a rude shock on account of infliction of injuries on the person of Veena. O. P. Dubey does not mention the presence of PW 1. But that could be on account of the fact that he did not try to notice in that respect and was more concerned to see Veena and make a report to the police as early as possible. Therefore, he had fleeting glance as to what had happened on the spot and thereafter immediately proceeded to inform the police control-room on the telephone.

18. The presence of PW 1 is vouchsafed by the fact that the first information report was recorded on the basis of his statement. S.I. Tara Chand (PW 25) stated that he reached the spot at about 10.20 a.m. and recorded the statement of PW 1. The occurrence took place at about 9.15 a.m. and it was in about one hour that the recording of statement of PW 1 commenced. PW 1 could not happen to be present for the purpose of recording that statement if he was not present at the spot at the time of the occurrence.

19. The statement of PW 1 is further corroborated by Sikander Lal (PW 4). The said witness (PW 4) is real brother of mother (PW 7) of Veena. He stated that he reached the spot at about 9.45 or 10 a.m. on 7th May, 1978, that he had come to discuss about the arrangements of taka ceremony in respect of engagement of Veena, now deceased, with one Sham Behari Jain but when he reached, he found a large crowd present and there was noise of weeping and crying and that on enquiry he was told by PW 1 that the appellant Brij Mohan had stabbed Veena with knife.

20. It is true that PW 1, PW 4 and PW 7 are close relations of Veena but it is a matter of common knowledge that close relations will not name a wrong culprit because that will have the effect of screening the real offender. Hence, there is no reason, at all, to disbelieve all these witnesses.

21. Then there is dying declaration of Veena. When she came downstairs after having received injuries, her mother asked as to what had happened. She uttered the words, "Birju Maar Gaya". Those words clearly indicated that it was the appellant who had inflicted the injuries. That dying declaration was very important because it was made at the earliest opportunity and that too before her mother who had herself seen the appellant coming downstairs and running away. For the second time, dying declaration was made before S.I. Manphool Singh (PW 8) who took her to the Willingdon Hospital by means of a taxi. The relevant portion of the statement of PW 8 reads as under :-

"On the way to the hospital, Veena told me that she was given injuries by the accused Birju. I got admitted Veena in the hospital (examination-in-chief) xxxx I had enquired from her as to what happened and who caused the injuries to her. On it, she had replied that Birju had caused those injuries to her". (cross-examination).

S.I. Tara Chand PW 25 stated on cross-examination as under :-

"I tried to talk with Veena and called her by name. She uttered the words 'Birju March Gaya Birju March Gaya'. I along with S.I. Manphool Singh had brought down Veena and put her in taxi. Immediately thereafter I went to the roof of the house.

22. Shri I. U. Khan, counsel for the appellant, contended that Birju could be different person. But that argument has no force in the present case. PW 7 had seen the appellant coming downstairs with bloodstained clothes and a bloodstained article which presumably was blade of the razor. Therefore, Birju, which was pet or nick name, pertained to the appellant. All the times the making of the statement by Veena was most natural. As a mother PW 7 must ask Veena as to how she had suffered the injuries. Similarly S.I. Tara Chand and S.I. Manphool Singh must have also asked what was the cause of the injuries and, therefore, giving of reply and telling the name of the assailant was most natural on the part of Veena. The most important aspect is that the aforesaid declarations were made shortly after the occurrence. Dying declaration could not be recorded because Veena survived for only a short time after the occurrence and she was dead when she reached the hospital.

23. There was recovery of bloodstained handle of the razor on the terrace. That handle along with other articles was sent to the Central Forensic Science Laboratory for analysis. Shri P. K. Biswas (PW 11) stated that he was posted as Junior Scientific Officer, Central Forensic Science Laboratory-cum-Assistant Chemical Examiner to the Government of India, New Delhi, that 11 parcels were received from the Police Station Janakpuri, New Delhi for Chemical examination and that the reports Ex. PW11/A to Ex. PW11/C were prepared after examination. These reports show that the handle had human blood of group 'A'. This was also found to be the blood group of Veena on analysis of sample blood and blood on her clothes. It is, therefore obvious that the weapon, of which the aforesaid was the handle was used for causing injuries to Veena. The handle is of a razor and therefore, the version of the prosecution finds corroboration.

24. There is further corroboration. It appears from the statements of PW 1, PW 4 and PW 25 that on May 10, 1978 at about 10 a.m., on interrogation by the Police, the appellant made a disclosure statement, relevant admissible portion of which is to the effect that he could get the recovery made of the bloodstained blade of the razor and his bloodstained clothes, which he had washed. It is mentioned in the disclosure statement that said blade was thrown in a drain near his house while his bloodstained clothes were kept inside an almirah in a room of his residence, D 21, New Multan Nagar, Delhi. However, aforesaid articles could not be recovered on May 10, 1978 itself. The explanation given by PW 25 is to the effect that the appellant had to be produced before a court for obtaining his remand in police custody, that the said remand was obtained, that at about 4.30 p.m. the Police party and the appellant started for effecting recovery, that the party reached at the house of the appellant at about 6.30 p.m., that it became dark that the room of the appellant was also locked and that, therefore, recovery could not be effected. On May 11, 1978 at about 12-30 p.m., as stated by PW 1, PW 4 and PW 25, on the pointing out of the appellant, blade of the razor was recovered from a drain outside the house of the appellant and bloodstained clothes consisting of langot, a pant and a bushshirt were FROM INSIDE AN ALMIRAH. The said witnesses stated that clothes and blade of the razor were put into separate parcels and sealed. Those clothes as well as the blade of the razor were sent to the Central Forensic Science Laboratory for examination. It was found that pant and langot were having human blood of group 'A' and that the blood on blade had disintegrated on account of which no opinion could be expressed. It may be recalled that sample blood as well as the blood on the clothes of Veena deceased showed that her blood group was 'A'. It is therefore, apparent from the above report of Central Forensic Science Laboratory that blood of Veena was sticking on the pant and langot of the appellant, which fact coupled with the recovery of the said clothes at his instance and also the recovery of a blade of a razor confirms the prosecution version to the effect that it was the appellant who had committed the murder of Veena.

25. There is another circumstance which corroborates the version of the prosecution. Dr. Hans Raj Kalra (PW 2) stated that on May 7, 1978 the appellant came to the former in connection with the treatment of an injury on the right leg, that the former gave sutures and anti-septic dressing, and charged Rs. 10/- from the latter and that at that time the latter told his name as Jagmohan. It appears that in the process of inflicting injuries on Veena, he happened to injure his right leg also. It is also apparent from the above that the appellant had a guilty mind and that is why he told his name wrongly as Jagmohan. It may be mentioned that Jagmohan is PW 5 and he is residing in the same house in which the appellant was residing. It appears that the appellant wanted to shift his guilt on to Jagmohan in case of detection.

26. The fact that he had injury on the right leg stands confirmed from the statement of Dr. Ashok Kumar (PW 3), Medical Officer of the Police Hospital Delhi. Dr. Ashok Kumar found one stitched wound on the right leg upper part, lateral aspect, of the appellant. The report of Dr. Ashok Kumar is Ex. PW/3A.

27. Dalip Kumar (PW 1) handed over on the very day of occurrence two postcards to S.I. Tara Chand. The said postcards are Exs. P-5 and P-6. The postcard Ex. P-5 is dt. 28th December, 1977 and is written by the appellant to Veena, now deceased. Apart from showing that appellant was in love with Veena, the said postcard indicates as to the extent to which the appellant was ready to go.

It is stated in the letter that he would not allow the hand of Veena now deceased, to be given to any one even though he had to be hanged till death. Actual words are, "Aap Ka Anchal ham bike Nahen Deengay Chahey Hamin Phansi Lag Jaye." That clearly shows that he was determined to go to any length to possess the deceased. There is also veiled threat to PW 1 that he would not be excused. Obviously the indication was that Dalip Kumar (PW 1) was standing in the way of marriage between appellant and Veena and that, therefore, PW 1 will also be harmed.

28. Ex. P-6 is a letter addressed to PW 1 by the appellant. In that letter it was requested by the appellant that he should be allowed to meet Veena at whatever place and on whatever date which was convenient and that he would come to meet on May 5 or 6, 1978.

29. The aforesaid letters give a clear indication that the appellant wanted to marry Veena at any cost and that in the event of his failure he was ready to commit any crime, even entailing capital punishment.

30. The fact that the appellant wanted to marry Veena also appears from the statements of PW 1 and PW 7 who deposed that the appellant after the death of father of Veena started visiting the house frequently and that he was prevented from doing so. It appears from the statement of PW 4 (maternal uncle of Veena) that she was engaged to one Sham Behari Jain of Kalkaji and that the 'taka' ceremony was to be PERFORMED on May 17, 1978. Obviously, on that account the appellant was frustrated in love. That is why as written in the postcard Ex. P-6 he was very keen to meet Veena, in the presence of Dalip Kumar (PW 1). In that letter, he stated that he would be grateful if he is allowed to meet Veena otherwise he would be cursing PW 1 for the whole life. It was on account of the aforesaid frustration that the appellant wanted to kill Veena so that if she could not be available to him for marriage, she would not be alive to marry any one else.

31. The appellant in his statement under Section 313 Cr.P.C. inter alia stated as under :-

"Q. 7. It is further in evidence that you wanted to marry Veena (deceased) but your proposal was turned down and she was engaged to one Sham Behari. What have you to say ?

Ans. It is incorrect. I was already married and I have 4 children."

The aforesaid statement was intended to indicate that there was no question of appellant marrying Veena when he had already been married and had four children. But it is a matter of common knowledge that sometimes even married men yearn for marrying a girl liked by them. In this respect it is very important to notice the statement of Jagmohan PW 5 who lives in the same house in which the appellant was living. PW 5 stated that on one Saturday the appellant and Veena came to his house. That means that the appellant was having an affair with Veena.

32. The appellant has indulged in falsehood to the effect that he never wrote those letters. Specimen handwriting of the appellant was taken in presence of Shri B. B. Choudhary, Metropolitan Magistrate (PW 20) and the said writing was compared with the writing on the postcards Ex. P-5 and Ex. P-6 by Shri T. R. Nehra, Sr. Scientific Officer (PW 23) who gave the opinion that the specimen writing and the writing on the postcards were in the same hand. The appellant also indulged in falsehood at the time of statement under S. 313 Cr.P.C. that he never gave specimen writing before a Magistrate. But his said denial is clearly not believable in view of the statement of PW 23. Under these circumstances it stands established that the postcards Exs. P. 5 and P. 6 were written by the appellant.

33. It is clear from the nature of injuries, the manner they were inflicted, the weapon used and threats conveyed in the postcard Ex. P. 5 and the frustration on account of failure to get married with Veena that the appellant intentionally wanted to cause the death of Veena. The details of the injuries (as found out on examination by Dr. L. T. Ramani) have already been given. Injuries 1, 3 and 4 had gone very deep up to bones. As far as injury No. 3 is concerned, there was cut mark on the skin of tibia shaft. Injury No. 4 was very long (8 1/2 inches) and so deep as to cause a cut mark on left femur bone. It is apparent that the appellant was inflicting injuries with full force. Injuries Nos. 1, 2, 5 and 6 indicate that the appellant wanted to strike on the vital organs but in a bid to save herself, Veena had placed elbow or forearm or the hands.

34. It is apparent from the photographs Ex. PW22/8 to Ex. PW22/14 that the blood on the terrace was scattered at many places. This is also what appears from the statement of PW 25 which reads as under :-

"It is correct to suggest that I found bloodstains at several places. The half portion of the roof was having bloodstains."

That means that Veena was running about and the appellant was inflicting injuries all the time. When he was inflicting blows with razor on the front of Veena, she received injuries 1 to 3, 5 and 6 and when for running away she was having back towards him she received a very long and deep injury No. 4 (even up to bone) on her buttocks. It is, therefore, clear that the appellant wanted to inflict as many injuries as possible so as to see that Veena does not escape death. It appears that he stopped because PW 1 came on the terrace and the appellant started having fear of apprehension. Obviously, therefore, the appellant is guilty of murder as defined in clause 'Firstly' of S. 300, I.P.C.

35. The case of the appellant is also covered by the definition of the word 'murder' as given in clause '3rdly' of S. 300, I.P.C. Obviously all the injuries which were inflicted were intentional. Injury No. 1, as was opined by Dr. L. T. Ramani, was sufficient in the ordinary course of nature to have caused death. Hence that way also the appellant is guilty of murder.

36. We, therefore, do not find any force in the appeal and dismiss the same and confirm the conviction and sentence.

37. Appeal dismissed.