Kharak Bahadur vs State
2009 Latest Caselaw 3165 Del

R-70
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 13th August, 2009

+                               CRL.A. 389/2001

       KHARAK BAHADUR                     ..... Appellant
                Through:        Mr. Sumeet Verma, Advocate

                                versus

       STATE                            ..... Respondent
                     Through:   Mr. Pawan Sharma, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

          1. Whether the Reporters of local papers may be
             allowed to see the judgment?

          2. To be referred to the Reporter or not?        Yes.

          3. Whether the judgment should be reported in the
           Digest?                                     Yes.

PRADEEP NANDRAJOG, J. (ORAL)

1. Vide impugned judgment and order dated 30.7.1998,

the appellant has been convicted for offences punishable under

Section 394 IPC and Section 302 IPC.

2. Vide order dated 30.7.1998, the appellant has been

sentenced to undergo rigorous imprisonment for 6 years for the

offence punishable under Section 394 IPC. Fine in sum of

Rs.200/- has also been imposed for said offence. For the offence

punishable under Section 302 IPC, the appellant has been

sentenced to undergo imprisonment for life. Fine in sum of

Rs.2,000/- has also been imposed. It has been directed that in

case of default of fine, appellant shall undergo further RI for 1

month.

3. From the evidence led before the learned Trial Judge

and the charge sheet filed against the appellant, it is apparent

that the prosecution was relying upon three circumstances to

nail the guilt of the appellant. The first was the direct

participation of the appellant in the crime, for which there was

an eye witness; namely, Neha Gupta PW-4, the daughter-in-law

of Smt.Laxmi Devi who suffered a brutal death in her house on

9.1.1993 in the late afternoon. The time being around 3:10 PM.

The second incriminating circumstance sought to be proved

against the appellant was of a gold ring Ex.P-13 being recovered

pursuant to the disclosure statement Ex.PW-7/L made by the

appellant which ring was identified by Neha Gupta in the TIP

proceedings Ex.PW-14/C conducted on 27.2.1993 as that of the

deceased; the ring being recovered from house No.A-1286

Jahangir Puri, which was seized as recorded in the memo Ex.PW-

7/M. Lastly, the refusal of the appellant to participate in the

Test Identification Proceedings conducted on 5.2.1993.

4. The learned Trial Judge has held that the

incriminating evidence pertaining to the recovery of the ring

Ex.P-13 could not be used against the appellant as incriminating

evidence, for the reason there was evidence on record that a

day prior to the recovery of the ring, the police had visited

house No.A-1286, Jahangir Puri from where the ring was

recovered.

5. The conviction has been sustained with reference to

the testimony of Neha Gupta PW-4 and the refusal by the

appellant to participate in the Test Identification Proceedings

held on 5.2.1993.

6. We note straightaway, the testimony of Neha Gupta

PW-4. She has deposed as under:-

"1. On 9.1.1993, at about 3.10 PM, Myself, my mother-in-law Smt. Laxmi Devi and two children were at home, alongwith our servant Mr.Ramu. We were watching the TV. My mother-in-law was also sitting near me. In the meantime, two persons, came there and both of them over- powered myself and my mother-in-law. They struck something heavy on my head and I became unconscious. When I regained consciousness, I did not see those robbers. Then I was taken to the hospital for treatment.

2. After few days, I was told that those persons have killed my mother-in-law Laxmi Devi.

3. On checking, I found that the cash of Rs.30,000/- or Rs.35,000/-, gold chain, two bangles, a pair of topas, nose pin which I was wearing, at the time of incident, were missing. One bangle, and one pair of topas, which my mother-in-law was wearing alongwith one ring, were missing. From the Almirah, one kundan set, one ginni-set, one Hasli-set, 2/3 pairs of karas, 5 or 6 pairs of topas, about 3-4 chains, and two or three rings, about 2-3 pairs of topas of children, about one or two chains of the children, all made of gold, were missing.

4. The accused present in court, is one of those

two robbers who had committed robbery in our house. The accused present in court, tied a „mufler‟ around the mouth of my mother-in-law Laxmi Devi. My mother-in-law Laxmi Devi died because of suffocation, because the „Mufler‟ tied on her mouth was very tight.

5. On 26.4.93, at the Instance of police, I came to Tis Hazari Court, alongwith my husband. I saw the accused present in court in Tis Hazari Court, when he was produced before the Magistrate and I identified him to be one of those persons, who had committed robbery/murder in our house. I do not know whether any rope was also used by the accused persons, for tieing my mother-in-law.

6. After this incident, our servant Ramu disappearerd.

7. On 27.2.1993, at Model Town Police Station, I identified one gold ring, to be belonging to my mother-in-law, which he was wearing at the time of occurrence. Again stated, I identified the said ring before the Magistrate on the said date, at Tis Hazari Court and not at the police station.

8. At this stage, one pullanda, sealed with the seal of AS is opened and is found to containing one bed-sheet of Mehroon colour of a double bed, which is blood-stained. The bed-sheet Ex.P-1 is the same, which was laid on the bed & over which all of us were sitting, watching the TV. The half woman-sweater Ex.P-2 and „Salai‟ Ex.-3 are the same, which were kept near my mother-in-law as she was knitting the said sweater. The clip Ex.P-4 is the same, which I was wearing at the time of incident. Three pieces of rope are also taken out from the pullanda. Hand-towel Ex.P-5 was also kept, near us, which is also slightly blood stained. The pair of socks Ex.P-6/1 & 2 are the same, which my son was wearing at that time. Shawl Ex.P-7 is the same, which my mother-in-law was wearing. One knife is also taken out from the said pullanda.

9. At this stage, another sealed packet, seal with the seal of PS is opened and is found to contain a „mufler‟, which is a knot, wherein long hairs of

white and black colour are entangled. I cannot identity the „Mufler‟ again said, it appears that my mother-in-law was tied with the Mufler same as Ex.P-8. I have seen the pair of socks Ex.P-9/1, the Petticot Ex.P-10 and the blood stained blouse Ex.P-11, Saree Ex.P-12, which is also blood-stained and identify the same to be clothes, which my mother-in-law Laxmi Devi was wearing at the time of commission of robbery and when she was killed.

At this stage, a sealed packet, sealed with RKJ is opened and is found to contain one gold ring, wherein four jwells are imbedded. Ring Ex.P-13 is the same, which my mother-in-law was wearing at the time of commission of robbery and was robbed by the robbers."

7. Neha Gupta has been subjected to cross

examination. Nothing has been brought out in her cross

examination, indeed, nothing has been pointed out to us,

wherefrom it can be even urged that Neha Gupta has not

successfully withstood the test of cross examination.

8. The learned Trial Judge has rightly held that Neha

Gupta‟s presence in the house cannot be disputed for the

reason even she received a grievous injury and became

unconscious in the house where she was residing with her

mother-in-law. We may note, with reference to her testimony,

that when two persons intruded into the house and over

powered her and her mother-in-law, something heavy was

struck on her head and she became unconscious. No questions

have been put to Neha Gupta on this aspect when she was cross

examined. Thus, said part of her testimony has gone un-

rebutted. From the testimony of Neha Gupta, it is apparent that

she and her mother-in-law, deceased Laxmi Devi and two

children of Neha Gupta were at their home. Their servant Ramu

was also in the house. The family was watching television. Two

persons entered the house and over powered Neha Gupta and

her mother-in-law. She saw that her mother-in-law was gagged

with a muffler. At that point, she was struck with a heavy object

on her head and she became unconscious. She regained

consciousness in the hospital and learnt that her mother-in-law

had been killed.

9. Only one of the two persons referred to by Neha

Gupta in her testimony could be apprehended, being the

appellant. The other could not be traced.

10. Neha Gupta has categorically deposed that the

appellant was one of the two persons who had committed

robbery.

11. Challenging the conviction of the appellant, two main

submissions and a third in the alternative have been urged at

the hearing of the appeal today.

12. It is firstly urged that Neha‟s statement under Section

161 Cr.P.C. was recorded after 19 days of the incident. Thus,

learned counsel urges that it casts a serious cloud on what Neha

Gupta told the police, for she was given an unexplainable time

to ponder over her thoughts and make a tailor made statement

to the police. The second submission made by learned counsel

is that Neha Gupta‟s statement categorically shows the

presence of servant Ramu in the house. Drawing our attention

to the testimony of the investigating officer, Insp.Dharambir

Gupta PW-13, who deposed that when he reached the house,

the servant was absconding, counsel urges that there is every

possibility of Ramu being involved in the crime. Counsel

wonders as to why Ramu has not been cited as a witness of the

prosecution if the prosecution was convinced that Ramu was not

involved. Another limb of this submission is that Neha Gupta

has deposed that her children were present in the house.

Counsel submits that admittedly there is no evidence of the

children being injured. It is urged that an adverse inference

should be drawn against the prosecution for not examining

Neha‟s children as witnesses. Extending this argument a little

further, learned counsel draws our attention to the answers

given by Neha Gupta in her cross examination wherein she

stated that she raised an alarm and mohalla people gathered at

her house. She claims not to have remembered as to who

informed the police. She remembers being taken to the hospital

by their neighbour Tanu in her car. Further, in her cross

examination, she stated that she told the persons who had

gathered to take care of her mother-in-law. The sum and

substance of the submission made is that Neha Gupta has

deposed inchoately and hence is an unreliable witness.

13. The alternative submission made by learned counsel

is that the part of the statements of Neha Gupta in para 4 of her

testimony in chief where she states that her mother-in-law died

due to suffocation because of muffler being tied very tightly on

the mouth of her mother-in-law was suggestive of the fact that

the intention of the robbers was not to kill Laxmi Devi but was to

stifle her voice. The intention behind gagging a person is to

stifle his or her voice.

14. It is true that Neha Gupta‟s statement under

Section 161 Cr.P.C. was recorded after 19 days of the incident.

The reason appears to be the serious head injury suffered by

Neha Gupta requiring her hospitalization. Unfortunately, the

prosecution has not proved the medical record pertaining to

Neha Gupta‟s hospitalization. But, the appellant cannot gain

anything with respect to said issue for the reason neither Neha

Gupta nor the investigating officer has been questioned as to

why Neha‟s statement was recorded belatedly. In the decision

reported as Ramanand Yadav Vs. Prabhu Nath Jha AIR 2004 SC

1053 it was held as under:-

"14. The second factor which was weighed with the High Court is the delayed examination of three witnesses i.e. P.Ws. 6, 7 and 9. The evidence of P.W.7 does not appear to be very much credible and the trial Court and the High Court also did not appear to have placed much reliance on his evidence. But so far as P.Ws. 6 and 9 are

concerned, it is clear from reading of the evidence that the Investigating Officer was not asked specifically the reason for their delayed examination. This Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. (See Ranbir & Ors. Vs. State of Punjab AIR 1973 SC 1409 and Bodhraj @ Bodha & Ors. Vs. State of Jammu & Kashmir 2002 (8) SCC 45."

15. The second submission urged by learned counsel has

three limbs and hence we deal with the same as if each limb is a

separate submission.

16. The plea that Ramu, the servant employed by the

Gupta family, was in the house and there is a possibility of Ramu

being involved in the crime cannot be ruled out needs to be

dispatched with the answer that the plea begs the question as

to what was the appellant doing inside the house of the Gupta

family without any valid excuse? If it is established that the

appellant had entered the house, in the absence of any

explanation from the side of the appellant as to why he entered

the house, it becomes irrelevant that Ramu fled from the house

for the reason Ramu fleeing from the house is explainable out of

fear. In any case, without questioning the investigating officer

as to why he has not made Ramu an accused, on hypothesis no

arguments can be projected. We find not a question put to the

investigating officer as to why conduct of Ramu was not

investigated.

17. The second limb pertains to not examining the

children of Neha Gupta as a witness. The plea is predicated on

the admission of Neha Gupta that her children were present in

the house. We wonder what could be deposed to by the

children of Neha Gupta? Neha Gupta appeared as PW-4 on

16.2.1996. The incident in question took place on 9.1.1993.

Age of Neha Gupta has been recorded as 27 years as on the

date when she deposed. Thus, as on 9.1.1993, Neha Gupta

would be aged 24 years. It is apparent that her children would

be toddlers and hence incapable of being examined as

witnesses.

18. The third limb of the second submission pertains to

the conduct of Neha Gupta when the crime was committed. As

noted in the preceding para, Neha was aged 24 years when the

crime was committed. When two men over power two women,

one of whom is old and the other is too young, fear is bound to

freeze the two women. The younger one sees the older one

being gagged. The younger one is fatally assaulted with a blunt

object on the forehead. The recollection of contemporaneous

event by the young women is bound to be hazy and a little

incoherent. Tested in the aforesaid backdrop, we find nothing of

serious infirmity in the testimony of Neha Gupta.

19. This takes us to the last and the alternative

submission made. When she saw her mother-in-law being

gagged and later on learnt that her mother-in-law had died, the

logical mind of Neha Gupta made her speak that her mother-in-

law was killed due to strangulation by the accused. But, the

cause of death of the deceased is not asphyxia due to

strangulation but is the cumulative effect of asphyxia resulting

from strangulation and cardiac tymponad. The same is

evidenced from the post-mortem report Ex.PW-8/A of the

deceased and the testimony of Dr.L.T.Ramani PW-8 who

conducted the post-mortem of the deceased. The post-mortem

report shows 13 injuries inflicted on the eye lids, lips and chest

of the deceased. Second to sixth rib were fractured on the right

side and there was extensive bruising of both lungs. Neck

tissues showed extra-vasation of blood in subcutaneous and

submandibular region of the left side of the neck. Sub mucus

petechiae was seen on the laryngeal mucosa and epiglottis.

Extensive bruising of right auricular region of heart with small

laceration of anterior auricular wall was also noticed. It is

apparent that blunt force was applied all over the chest and

even the neck was throttled. Death had to result. It is obvious

even to a layman keeping in view the fact that Laxmi Devi was

aged 52 years when she was done to death.

20. We repeat that the appellant was identified by Neha

Gupta as one of the two assailants. It assumes significance that

the appellant refused to participate in the Test Identification

Proceedings conducted on 5.2.1993 and said evidence is

another piece of incriminating circumstance against the

appellant.

21. We find no merit in the appeal.

22. The appeal is dismissed.

23. The appellant has admitted to bail on furnishing a

personal bond. We cancel the personal bond furnished by the

appellant and direct the appellant to surrender and suffer the

remaining sentence.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 13, 2009 mm