Sukh Bahadur (Aas Bahadur) vs State (Nct Of Delhi)
2004 Latest Caselaw 756 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order passed by the Additional Sessions Judge, New Delhi, on April 22, 1998 and April 25, 1998, respectively, whereby the appellant was convicted under section 302/392 Indian Penal Code read with section 25 of the Arms Act and sentenced to undergo imprisonment for life and fine of Rs.500/- or simple imprisonment for fifteen days for offence under section 302 I.P.C., and also to undergo imprisonment for two years and fine of Rs.500/- or simple imprisonment for fifteen days for offence under section 25 of the Arms Act, and for offence under section 392 I.P.C. a fine of Rs.500/- or simple imprisonment for fifteen days.

2. On September 21, 1993 at about 8.00 A.M. the wireless operator of the police received information from the P.C.R. that a message had been received from telephone No. 6802626, DLF Chattarpur, Amar Niwas Farms, sent by the chowkidar of the said house than Shri Hardev Singh Kandhari had been stabbed and that he was dead. On receipt of the aforesaid information a report was prepared and the said report was entrusted to Inspector Udai Vir Singh Rathi, S.H.O., who started investigations in the case and we t to visit the place of occurrence along with a police force. The said police party was told at the bungalow Amar Niwas Farms that the deceased Shri Kandhari was found dead in his house where he was sleeping and where the accused was also sleeping on hat fateful night. They also came to learn that the accused was employed as a servant by the deceased about one and a half month prior to the date of occurrence and that the said accused was missing from the said bungalow along with his goods immediate y after the incident. The police party found Hardev Singh Kandhari dead on the first floor of the said Amar Niwas. It is stated in the report of the police that he died due to injuries received with some Kandhari. The S.H.O. Shri Rathi, therefore, submitted a report for registration of the case under section 302 I.P.C. against the accused on September 21, 1993 at about 11.45 A.M. On the basis of the same, a sharp edged object and that blood was oozing out from Hardev Singh First Information Report, which is Ext. PW14/A, was recorded at the Police Station Mehrauli and the investigations were entrusted to Shri Jai Narain, Sub Inspector, who was examined in the trial as PW-15. After such entrustment of the case, Sub Inspector Jai Narain started the investigations and during the course of the said investigations he took into possession a blood stained quilt and other materials of the household. A site plan of the place of occurrence was also prepared and sample of the blood was also taken from the site of the crime. Since Hardev Singh Kandhari was dead, inquest proceedings were also held. During the inquest proceedings the Investigating Officer also recorded the statements of Shri R.S. Kandhari and Shri Somender Sing . From the dead body laser finger prints were also taken. A post mortem examination was also carried out at All India Institute of Medical Sciences by Dr. Alpana Sinha who was examined during the trial as PW-1. During the medical examination six juries were found on the body of Hardev Singh Kandhari. According to the opinion of Dr. Alpana Sinha the cause of death was due to coma resulting from cardio-cerebral injuries to head and face which were caused by blunt force impact. It was also opined that both the injuries were sufficient individually and collectively to cause death in the ordinary course of nature.

3. On September 26, 1993, the investigation was entrusted to Sub Inspector Satish Sharma who along with Head Constable Tilak Raj and Constable Hans Raj, Shri Raghubir Singh Kandhari, brother of the deceased, and Shri Somender Singh, nephew of the deceased went in search of the accused who was missing from the bungalow of the deceased after the incident. Search for locating the accused was made at the New Delhi Railway Station and the Old Delhi Railway Station. Around 11.00 A.M. on September 26, 1993 he accused was found sitting at platform No.3 of Old Delhi Railway Station. At the instance of Somender Singh and Raghubir Singh Kandhari the accused was arrested. On personal search of the accused on the platform itself, a revolver was recovered from the right side pocket of his pant. A sketch of the revolver was prepared which is proved as Ext. PW2/B. The said revolver was taken into possession vide memo Ext. PW2/A. The revolver at the time of its seizure contained six cartridges which too w re taken into possession. The police also took hold of a bag which the accused was carrying at that point of time. The said bag was searched and the same was found to contain a cash amount of Rs.15,000/-, one ring brass, three pants, three T-shirts, five shirts, three underwears, one baniyan, one sweater, four handkerchiefs, one passbook and the passport of the accused. These articles were taken into police custody and possession under a memo which is proved as Ext.PW2/C. Police remand of the accused was taken and thereafter on September 27, 1993 the accused made a disclosure statement according to which the accused disclosed that the stone by which Hardev Singh Kandhari was hit on the forehead was used by him after wrapping the same in the cloth and the said stone was concealed by him under the stairs in the waste papers which were there at Kandhari Farm House of the deceased. The said disclosure statement was reduced into writing and was proved in the trial as Ext.PW15/H. After the aforesaid disclosure statement was recorded, the police along with the accused under the supervision of Sub Inspector Jai Narain, I.O., went to Kandhari Farm House at about 5/5.30 P.M. on September 27, 1993 when the accused pointed out the place under the stairs at the ground floor where waste scrap was kept. The accused took out the pillow cover tied with lace which was containing blood stains and was torn off from one side, and the accused also brought out a stone. The said stone was taken into police possession idea memo proved as Ext. PW2/A. A sketch plan was also prepared which was proved in the trial as Ext.PW2/B.

4. After completion of the investigations, the police submitted a charge sheet against the accused. On the basis of the aforesaid charge sheet submitted, charge was framed against the accused which was read out to the accused who pleaded not guilty to he charge. Thereafter, a regular trial was conducted against the accused. During the course of the aforesaid trial the prosecution examined as many as twenty-one witnesses who were cross-examined on behalf of the accused. Thereafter, the statement o the accused under section 313 of the Code of Criminal Procedure was recorded. After completion of the trial, the learned Additional Sessions Judge adjourned the matter for pronouncement of judgment and order. Finally by judgment and order dated Apr l 22, 1998 and April 25, 1998, respectively, the learned Additional Sessions Judge convicted and sentenced the appellant which are under challenge in this appeal.

5. We have heard the learned counsel appearing for the appellant as also the learned Public Prosecutor who appeared for the State. During the trial the accused pleaded not guilty to the charge and claimed to be tried and, therefore, regular trial was h ld against the accused. Therefore, the prosecution was to prove the charges framed against the accused. In order to prove the guilt of the accused, the prosecution examined as many as twenty-one witnesses and also exhibited a number of documents. D. Alpana Sinha, who conducted the post mortem, was examined as PW-1. She proved the post mortem report as Ex.PW1/A and also the subsequent opinion of her which is proved as Ext. PW1/B. Raghubir Singh Kandhari, brother of the deceased, has been examined as PW-2. This witness deposed regarding the arrest of the accused and also regarding recovery of the arms from the possession of the accused and also recovery of the sum of Rs.15000/- from the accused. He also stated that the sum of Rs.15,000/- along with the revolver was kept in the almirah at the bungalow on September 20, 1993 and belonged to the deceased. He further stated that the accused was employed with the deceased at the instance of PW-2. He also stated that he was with his brother on September 20,1993 but he left on the same day and came back to the place of occurrence after receiving information on telephone from his nephew about the death of his brother. Sub Inspector Mukesh Kumar, who prepared the sketch plan, deposed as PW-3 and proved the said sketch plan which is Ext. PW3/A. PW-4 Gopal Singh deposed about the absence of the accused from the site of the crime. This witness had given the telephonic information to the police and this was recorded vide Daily Diary No. 4A. PW 5 Bhagwan Din proved the recovery memos Ext.PW4/A and Ext.PW4/B. It was in his presence that the blood stained articles were taken into possession. PW-6 Somender Kandhari was the nephew of the deceased. PW-7 Jung Bahadur was the cook of the deceased. He deposed to the fact that the accused was last seen in the bungalow of the deceased when he left the bungalow and in the morning when he returned to his duty he found the deceased dead and the accused absent from the bungalow along with his goods. H also deposed to the fact that the accused was employed by the deceased. He also proved Ext. PW7/A which is the first information report. PW-8 Constable Bachu Singh took the revolver and deposited in the laboratory. PW-9 Constable Vijay Pal supervised d the dead body from September 21, 1993 to September 22, 1993 at the mortuary of the AIIMS until the post mortem was done, whereas PW-9A Giri Raj, who took the photographs of the site of the crime, proved Ext.PW9/1 to Ext.PW9/12. PW-10 Head Constable Tilak Raj and PW-11 Hans Raj were also examined in the trial. They were, however, not cross-examined. PW-12 Constable Hans Singh brought the complaint Ext. PW7/A for the registration of the case at the police station, whereas PW-13 Head Constable Hoshiar Singh was the duty officer at the Police Station Mehrauli who took into possession viscera and clothes of the deceased brought from the hospital. The duty officer who recorded the F.I.R. and the D.D. report was Sub Inspector Dhani Ram who was examined s PW-14. Head Constable Ashwani Kumar, who was the in charge of the Malkhana of the police station, was examined as PW-14A who deposed that the articles of the deceased were deposited with him and that the said articles were sent to the laboratory from is custody. The Investigating Officers Jai Narain, SI, and Satish Kumar Sharma, SI, have been examined as PW-15 and PW-16. PW-17 Ishwar Dayal deposed that the revolver recovered was the licensed revolver of the deceased and that it stood in the name of the deceased at the time of its seizure. PW-18 Constable Rajan Singh took the special reports to the Ilaka Magistrate. PW-19 Udai Vir Singh was the SHO at the relevant time who recorded the FIR and the statement of Jung Bahadur and recommended for registration of the case and later filed the charge sheet. PW-20 is Constable Raj Bahadur who took care of the dead body until the post mortem was done and thereafter he had brought the viscera and clothes of the deceased from the hospital which were entrusted to the duty officer and subsequently deposited with the Malkhana. PW-21 Constable Jeet Kumar took the two sealed packets from the police station at the laboratory at Chandigarh.

6. The accused in his statement under section 313 Cr.P.C. denied that the accused was employed by the deceased. He also denied the recovery of the revolver and the sum of Rs.15,000/- from him. He also denied making any disclosure statement regarding t e stone and subsequent recovery of the stone from underneath the stairs of Amar Niwas. He stated that he was brought from Dehradun on September 22, 1993 where he was living with his brother after leaving the services of the deceased 10/11 days before the date of occurrence.

7. The learned counsel appearing for the appellant submitted that it has come in evidence on record that the brother of the deceased was also present at the place of occurrence on the fateful night when the alleged incident is shown to have happened, where as during the trial the prosecution tried to show and prove that the said brother of the deceased arrived at the place of occurrence in the morning after the fateful night. It was submitted that there was vital discrepancy between the case of the prosecution and the evidence led by it and that the accused was falsely implicated. Counsel appearing for the appellant further submitted that the prosecution planted the revolver, the sum of Rs.15,000/- and some other articles on the appellant at the time of his arrest. It was submitted that the entire story of the prosecution regarding the arrest of the appellant from the railway platform is unbelievable and false and, therefore, the learned trial court should have disbelieved the entire story of the prosecution and should have acquitted the accused. It was also submitted that there were about six to seven servants in the said bungalow and any one of those servants could commit the crime. It was also pointed out that there are vital discrepancies n the evidence of of PW-7 Jung Bahadur who was the cook of the deceased and, therefore, his testimony should have been rejected by the trial court.

8. The deceased was staying in Amar Niwas Farms, DLF Chhatarpur. He was living in that house without any other family member but he was being looked after by a number of servants who are staying within the compound. His brother is a resident of Dehradun but it appears that he keeps on visiting his brother from time to time. The deceased also had a nephew who was living in Delhi and was also examined in the trial as PW-6. The accused was also a servant employed by the deceased at the instance of h s brother, namely, PW-2. He had stated in his deposition that he came to Delhi on September 18, 1993 and went back to Dehradun on September 20, 1993 at around 7 o'clock in the morning and that he came back to Delhi on September 21, 1993 on receiving the telephone call from his nephew. He had specifically stated that the deceased came to him at Dehradun and told him that he was in need of a servant. He further stated that at that time the accused was jobless and showed his willingness and so he allowed him to join his brother, and that his duty was to attend to his brother. He had also stated that the accused had gone to work with his brother on August 17, 1993. He also deposed that on September 18, 1993 he came to Delhi and that in the morning o September 20, 1993 his brother had kept his revolver with six live cartridges and cash of Rs.15,000/- in the almirah of his house and that on that day his servant, the accused, was with him. He also stated that the police arrested the accused on September 26, 1998 from the Old Delhi Railway Station when he was also present and that on a search being made on the person of the accused the revolver of his brother was recovered from his right pocket of the pant which he was wearing. He also proved secure memo Ext.PW2/A by which revolver was taken into possession and sketch of the revolver Ext.PW2/B. The aforesaid witness could not be contradicted in his cross-examination. The Investigating Officer who arrested the accused from the Old Delhi Railway Station and before whom disclosure statement was made has proved the disclosure statement Ext.PW15/H and also the recovery of the stone and also the revolver and money. The very facts that the accused fled away from the place of occurrence immediately after the incident and his arrest from the Railway Station and the seizure of the revolver of the deceased from his custody and possession along with the amount of Rs.15,000/- in cash which also belonged to the deceased which are proved by cogent and reliable evidence lead to the only conclusion that it is the accused who committed the crime and is guilty of the offences alleged. It is brought out in evidence on record that the accused was last seen with the deceased as he was sleeping in the same house as that of the deceased on the fateful night and thereafter he was missing from the house when he was finally arrested from the railway station and from his custody and possession the revolved of the deceased was recovered along with cash of Rs.15,000/ .There is also a disclosure statement which is duly and legally proved in the trial that the accused hit the deceased with a blunt stone. A statement was made by the accused leading to the discovery of the said stone, the weapon of murder, from the p ace of occurrence, namely, Amar Niwas. The aforesaid statement leading to the discovery is also duly proved in the trial. The accused was confronted with all this evidence on record. However, neither in the cross-examination the said evidence coulee challenged by any plausible explanation thereto nor the accused could give any explanation in his statement when he was confronted with the aforesaid pieces of evidence. The very facts that he was missing from the house immediately after the occurrence and his arrest from the railway station platform along with revolver of the deceased lead to the only conclusion that he is guilty of the offence alleged against him which is proved in the trial. Counsel for the appellant tried to highlight certain discrepancies in the evidence of the PW-7 Jung Bahadur with other evidence which is on record. In our considered opinion there is no discrepancy in the evidence of PW-7 Jung Bahadur. The discrepancy which was sought to be highlighted was regarding t e time of arrival of the deceased at his house after dinner. The particular time when the deceased had arrived at his house after dinner could not be specifically stated, but such inability to state specifically the time of arrival of the deceased at he house in the night after dinner is a very minor discrepancy when pitted against overwhelming evidence which is on record leading to the conclusion that it is the accused-appellant who committed the murder. We are unable to agree with the counsel a peering for the appellant that there was any discrepancy in the evidence of PW-2 and PW-7. The said witnesses are found to be trustworthy and reliable. The entire evidence on record clearly points out that the appellant is guilty of the crime alleged against him and, therefore, we find no infirmity in the judgment and order passed by the learned trial court.

9. Accordingly, we uphold the orders of conviction and sentence passed by the learned trial court, and we hold that there is no merit in this appeal which is dismissed.