Bhutto Ram vs State
2009 Latest Caselaw 3409 Del

i.5
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : August 27, 2009

+                         CRL.A. 216/2004

         BHUTTO RAM                   ..... Appellant
                  Through:     Ms.Charu Verma, Advocate.

                               versus

         THE STATE (GNCT) OF DELHI   ..... Respondent
                  Through: Mr.Pawan Sharma, A.P.P.

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

21.3.2003, two matters have been disposed of by the learned

Trial Judge. In both, appellant Bhutto Ram was the accused.

2. At Sessions Trial No.124/2001, pertaining to FIR

No.272/01 PS Kirti Nagar, Bhutto Ram was charged for the

offence punishable under Section 302/394 IPC. At Sessions

Trial No.125/2001 pertaining to FIR No.285/01 PS Kirti Nagar,

Bhutto Ram was charged for the offence punishable under

Section 309 IPC.

3. Bhutto Ram has been held guilty in both Sessions

Trials and has been directed to undergo imprisonment for life

for the offence which was subject matter of FIR No.272/2001.

For the offence pertaining to FIR No.285/01 he has been

sentenced to undergo simple imprisonment for three months.

Both sentences i.e. the sentences for the offence which was

subject matter of both FIRs have been directed to run

concurrently.

4. The case of the prosecution against Bhutto Ram

was that on 13.5.2001 he fatally assaulted Kala Rai, the

deceased, in her flat bearing Municipal No.C-118, Double

Storey, Ramesh Nagar, which was on the first floor. He did so

to commit robbery. Her cries of rescue i.e. „bachao-bachao‟

attracted the attention of persons in the neighbourhood who

responded to the summons to rescue. A beat constable in the

area saw the crowd gathered on the street outside Municipal

No.C-118, Ramesh Nagar. The police control room was

conveyed the information of a lady crying for rescue in the flat

in question. The police responded to the summons to rescue.

The flat was found locked from within and it had to be broken

into. Household belongings were found scattered inside. Kala

Rai was found fatally assaulted lying dead in a pool of blood in

the kitchen of the flat. In the balcony thereof, the appellant

was found with injury on his neck. As per the prosecution, the

appellant who had no past history of any criminal activity

panicked when people gathered outside the street on hearing

the cries of the deceased, and losing his moorings attempted

to commit suicide. Thus, in the same sequence of events, the

appellant committed the murder of Kala Rai and attempted

suicide.

5. To prove the case of the prosecution, Bhagi Rani

PW-11 deposed that she received a call from a neighbour of

the deceased at 8:45 PM on 13.5.2001 that cries of „bachao-

bachao‟ were coming from the house of the deceased and the

lights of the house were off. She immediately informed Ishwar

Rai PW-1, the brother of the deceased of the said fact.

6. Ishwar Rai PW-1, deposed that at 9:00 PM on

13.5.2001, he was at his house which was at a distance of 5 to

7 minutes walk from the house of the deceased and he

received a telephone call informing him that cries of rescue i.e.

„bachao-bachao‟ were coming from the house of his sister i.e.

the deceased and the lights were off and people had gathered

outside his sister‟s house. He immediately reached the spot.

The door was closed and police came. A Sikh police

gentleman succeeded in breaking the door and found inside,

his sister lying dead in the kitchen and the accused was found

injured in the balcony of the house. Ishwar Rai deposed

further that his statement Ex.PW-1/A, on basis whereof the FIR

was registered, was recorded at the spot and that it bore his

signatures at point „A‟. He further deposed that blood and

blood stained earth (should read as „concrete‟) was lifted from

the flat, as recorded in the memo Ex.PW-1/B. A double bed

sheet, a pillow cover and a pair of black leather shoes, which

were stained with blood, were lifted by the police as recorded

in the memo Ex.PW-1/C. A knife Ex.P-1 was lifted from the

spot and a blood stained shirt of blue-white colour was also

lifted from the spot as recorded in the memo Ex.PW-1/D. The

sketch Ex.PW-1/E of the knife was prepared in his presence.

Tools used by an electrician Ex.P-2 to Ex.P-6 were also lifted as

recorded in the memo Ex.PW-1/F.

7. Const. Paramjit Singh PW-13 deposed that on

13.5.2001 he was on duty at Beat No.5 and at 9:00 PM, when

he reached house No.C-118, Ramesh Nagar, he saw a crowd

having gathered and from the first floor of the house cries of

„bachao-bachao‟ could be heard. He went upstairs but found

the main door locked from inside. There was an iron gate with

a wire mesh which was latched from inside. He opened the

latch of the iron door using a „sli‟ which is meant for setting

the turban and broke the door. In the meantime, PCR van and

Ishwar Rai, the brother of the deceased, also reached. They all

entered the premises and saw blood stains on the door of the

kitchen which was found closed. The door was opened and a

dead body of an old woman was found in a pool of blood.

Senior police officers reached the spot. Articles were lying

scattered in the bedroom and the door of the balcony at the

back side was also broken and the accused was seen lying

there with blood oozing from his nose. Blood stained knife was

found on the floor of the balcony. Blood was found on the

chaddar and pillow in the house. The IO recorded the

statement of Ishwar Rai and sent the rukka to the police

station.

8. ASI Mahavir Singh PW-12 deposed that in the

intervening night of 13/14.5.2001 he was incharge of PCR Van

„Power-23‟ in the area of PS Kirti Nagar. At about 9:00 PM

information was received that a lady in House No.C-118

Ramesh Nagar was crying „bachao-bachao‟ and that the lights

of the said house were off. He rushed to the said house and

met Const.Paramjit Singh as well as other local police staff

already present there. The house was found locked from

inside and Const.Paramjit Singh managed to break the door

open. On entering the house, blood was found on the door of

the kitchen and a dead body of an old lady was found lying in

a pool of blood in the kitchen. Additional SHO Sh.R.L.Gulati

PW-20 also reached there. The doors of the satsang room and

the bed room which were locked from inside were broken open

and in the bed room various articles were found lying

scattered. The balcony door, which was also locked, was

broken open and the accused, bleeding from his neck, was

found lying there. He i.e. ASI Mahavir Singh removed the

accused to Deen Dayal Upadhyay Hospital.

9. Gulab Rai PW-2 deposed that deceased Kala Rai,

aged 60 years, was his sister and used to reside alone in her

Municipal No.C-118, Double Storey, Ramesh Nagar. Kala Rai

used to conduct a satsang at her house between 6:00 AM to

7:00 AM and 5:00 PM to 6:00 PM, everyday. At about 9.00 PM

on 13.5.2001 he received a telephone call at his house from

Smt.Bhagi informing him that something was wrong in the

house of Kala Rai as cries of „bachao-bachao‟ were coming

therefrom and a huge crowd had gathered outside. He

immediately reached the house of his sister and found a huge

crowd gathered there, trying to open the door which was

locked from inside. A Sikh constable, using a steel pin used for

setting the hair in a turban, succeeded in opening the door.

On entering the house they found blood on the door of the

kitchen and the floor outside and his sister Kala Rai lying dead

in a pool of blood in the kitchen. After breaking open the

various doors of the house which were locked from within, they

found the accused in the balcony of the said house. The

accused apparently had a cut wound on his neck and was

bleeding therefrom. The accused was taken to the hospital.

Gulab Rai deposed that no one could have entered or gone out

of the house, before their entering the house, as at that time

all the doors of the house were locked from within. The police

lifted blood, blood stained earth from the kitchen and seized

them vide memo Ex.PW-1/B. From the bed room a blood

stained bed sheet, pillow cover and a pair of black leather

shoes were seized vide memo Ex.PW-1/C. From the balcony

blood, a blood stained knife and a blood stained shirt were

taken into possession vide memo Ex.PW-1/D. Tools used by

electricians were also recovered and seized.

10. On being cross examined by the counsel for the

accused he stated that the police brought the accused to the

house of the deceased on 19.5.2001 and at that time he i.e.

Gulab Rai was present there.

11. HC Narender Singh PW-17 deposed that at about

9:32 PM in the intervening night of 13/14.5.2001 he received a

copy of DD No.22A and immediately left for the spot i.e. C-118,

Ramesh Nagar, 1st floor. There he found a dead body of a lady

lying in a pool of blood. The body had injuries which appeared

to have been caused by a sharp edged weapon. The

Additional SHO Sh.R.L.Gulati also reached there and recorded

the statement of Ishwar Rai brother of the deceased. After

endorsing the said statement Sh.R.L.Gulati handed over the

rukka to him which he took to PS Kirti Nagar and got the case

FIR registered. He brought a copy of the FIR and the rukka

back to the spot.

12. HC Mohd.Yubsiroon PW-16 deposed that in the

intervening night of 13/14.5.2001 copy of DD No.22A was

assigned to HC Narender. He accompanied HC Narender to

House No.D-118, Ramesh Nagar where the SHO had also

reached. They found the dead body of Kumari Kala Rai lying in

a pool of blood in the kitchen of the house. The body had

injuries in the abdomen, chest and legs which apparently were

caused by a sharp object. The doors of the rooms of the house

were locked from inside and had to be broken open. The

accused was found in the balcony with blood oozing from his

neck. A blood stained knife was also lying nearby. Accused

was sent to DDU Hospital. The investigating officer recorded

statement of Ishwar Rai, brother of the deceased; got the spot

photographed; summoned the crime team and sent the dead

body to the mortuary of DDU Hospital. Blood lying at the spot

and blood stained earth were seized from the kitchen vide

memo Ex.PW-1/B. Blood was lifted from the double bed in the

bed room along with a blood stained pillow cover and a pair of

chappals and were seized vide Ex.PW-1/C. Blood and a blood

stained knife were lifted from the balcony and seized vide

memo Ex.PW-1/D. Sketch Ex.PW-1/E of the knife was prepared

by the investigating officer. One screw driver, one plass, one

brass tester and one red coloured cello tape also found lying at

the spot were seized vide memo Ex.PW-1/F. On being cross

examined he deposed that except the main gate there was no

other way to enter the house.

13. Inspector R.L.Gulati PW-20 deposed that on

13/14.5.2001 he was posted at PS Kirti Nagar as the Additional

SHO. He reached the spot i.e. House No.118, Double Storey

Ramesh Nagar and met HC Narender Singh, HC

Mohd.Yubsiroon and Const.Paramjit Singh who were already

present there and had managed to break open the door of the

house. He found the dead body of Kumari Kala Rai lying in the

kitchen of the house. The bed room and the Satsang room

were also locked from inside and had to be broken. The

accused was found lying on the floor in the balcony with an

injury in his neck and bleeding therefrom. The accused was

sent to DDU Hospital. On searching the house, in particular,

the bed room, an almirah therein was found open and many

household articles lying scattered; Small tin boxes were also

found lying open. He recorded statement Ex.PW-1/A of Ishwar

Rai and sent for the registration of a formal FIR. He

summoned photographer who took 31 photographs of the

spot. He prepared site plan Ex.PW-20/A. The crime team

arrived and lifted four chanced prints from the almirah in the

room. He conducted inquest proceedings and sent the dead

body to the mortuary DDU Hospital. Blood, blood stained

earth and earth control were lifted from the kitchen and seized

vide memo Ex.PW-1/B. Blood stained bed sheet, pillow cover

and a pair of black leather shoes were lifted from the bedroom

of the house and seized vide memo Ex.PW-1/C. From the

balcony a blood stained knife, blood, blood stained earth and

earth control were lifted and seized vide memo Ex.PW-1/D. He

prepared sketch Ex.PW-1/E of the knife. Electric tools also

recovered from the verandah were seized vide memo Ex.PW-

1/F. He went to DDU Hospital and enquired about the

condition of the accused. He seized the blood stained pants

and socks of the accused vide memo Ex.PW-16/A and took the

personal search of the accused vide Ex.PW-16/B. After the

dead body was identified by Ishwar Rai and Gulab Rai, the

post-mortem of the same was got conducted. The clothes of

the deceased were seized vide memo Ex.PW-13/A. Blood

sample of the accused was collected vide memo Ex.PW-15/A.

The statement of the accused could be recorded only on

19.5.2001 when, being declared fit, he was discharged from

the hospital. On interrogation the accused made a disclosure

statement Ex.PW-10/A on basis whereof an FIR was got

registered for the offence punishable under Section 309 IPC.

Accused pointed out the place of occurrence vide memo

Ex.PW-10/B. A site plan to scale Ex.PW-6/A was got prepared

and the post-mortem report was collected. The knife

recovered from the spot was sent to Dr.L.K.Barua for his

opinion regarding the same being the possible weapon of

offence. His opinion vide Ex.PW-4/B was obtained. The

investigation pertaining to the FIR for the offence punishable

under Section 309 IPC was assigned to SI Jagdish Prasad.

14. It may be recorded that Nanak Chand PW-3 who

was called to the spot lifted 4 chanced prints, 2 of which were

those of the deceased and 2 could not be linked to the

accused.

15. Not finding any blemish in the testimony of the

witnesses of the prosecution and the fact that the appellant

was apprehended from within the precincts of the house of the

deceased, the learned Trial Judge noted that the injuries on the

deceased were 11 in number, being:-

"1. On a incised wound on the parietal area of scalp. Size 3 cm x 1 cm bone deep.

2. Two incised wounds size 2.5 cm. x 1 cm and the other one 2 cm x 1 cm seen 3 cm. below the injury No.1.

3. One big incised wound on the back of neck placed vertically size 9 cm x 1 cm. muscle deep.

4. 3 incised wounds on the right side nap of neck within an area of 7 cm x 5 cm. The individual size of the wound varied from 2 cm to 1.8 cm.

5. Incised wound on the left side back nap of neck size 1.5 cm x 1 cm.

6. Incised wound on the lateral aspect of left eye brow size 1.5 cm x 0.3 cm.

7. 5 incised wounds in front side base of neck involving an area of 10 cm x 7 cm. size varied from 2 cm to 1.9 cm and were ? deep.

8. 6 incised wounds on the upper part of abdomen. Size varied from 2 cm to 2.8 cm and ? deep. The area involvement was 18 cm x 7 cm.

9. Contusion on the right arm on its back size 3 cm x 2 cm.

10. Incised wound on the left shoulder on its front side 2 cm x 1 cm

11. Incised wound on right shoulder on its back side size 3 cm x 1 cm."

16. Thus, learned Trial Judge has held that the evidence

establishes the truthfulness of the case of the prosecution.

The result is a finding of guilt against the appellant for the

offence of murder and attempted suicide.

17. With reference to the testimony of Const.Paramjit

Singh, learned counsel urged that as per his testimony it was

apparent that the door of the balcony was locked and it is thus

obvious that the appellant was in no position to access the

deceased who was found dead in the kitchen. Counsel urges

that under the circumstances, possibility of somebody else

being the assailant cannot be ruled out more so for the reason

even the appellant was found grievously injured and there is

no evidence that the injuries on the person of the appellant as

recorded in his MLC Ex.PW-5/A could be self inflicted.

18. The submission appears to be attractive but ignores

the fact that Const.Paramjit Singh PW-13 has not stated that

the door leading to the balcony was locked from within the

flat. He has only deposed that the door leading to the balcony

was broken. It is true that he has not clarified whether the

door was found locked from the balcony side or from the side

of the room. But, meaningfully read, it is apparent that what

Paramjit Singh intended to convey is that the balcony door was

locked from the side of the balcony. In this context we may

note that the appellant has not raised a defence, much less

explained while being examined under Section 313 Cr.P.C.,

that somebody else came and assaulted the lady of the house

and himself. Under the circumstances, the appellant cannot

predicate a submission that somebody else has committed the

offence. The plea that there is no evidence of the injury on the

appellant being self inflicted we may note that at page 43 of

the Trial Court record of Sessions Case No.125/2001 there

exists an application dated 17.5.2001 by the investigating

officer addressed to the CMO of DDU Hospital under the

caption „Subject - request regarding taking of blood sample

and opinion regarding injuries of unknown person‟. On the

application Dr.Surender Sehgal has opined: "there is no

evidence to suggest that the injury cannot be self inflicted.

Blood sample to be provided.‟ Thereafter Dr.Surender Sehgal

has appended his signatures. The relatable testimony of the

investigating officer, Insp.R.L.Gulati PW-20 is as under:-

"On 17.5.2001 I moved an application to the CMO DDU Hospital for taking the blood sample of the accused. On that day Duty Const.Kanwar Singh had produced one sealed blood sample and one sealed slide of blood sample along with one sample seal of CMO DDU Hospital which were taken into possession vide memo Ex.PW-15/A....... On 17.5.2001 as per the endorsement of the Dr."

19. It is apparent that there is an omission to record

what was correctly stated by the witness. The last sentence

noted hereinabove ends abruptly. The witness has clearly

referred to his application dated 17.5.2001 which is at page 43

of the Trial Court Record and has also referred to an

endorsement of the doctor. While recording the testimony the

exhibit mark has not been put on the application and the

endorsement by the doctor concerned thereon has not been

exhibited.

20. In view of the testimony of the investigating officer,

it is apparent that the application and the endorsement

thereon at page 43 of the Trial Court Record is the subject

matter of the testimony and hence we hold that there is good

evidence on record that the injuries on the person of the

appellant could possibly be self inflicted.

21. Ignoring the application in question and the

endorsement thereon, suffice would it be to state that opinions

of experts are evidence under Section 45 of the Evidence Act

and the primary duty is that of the Court to return findings

after evaluation of evidence. Commonsense has to be used by

the Judges in evaluating evidence. Life‟s experience is as

dependable as rival facts presented by parties to a litigation.

The injury on the person of the appellant as per his MLC Ex.PW-

5/A are three in number being a cut in the middle of neck 5 cm

x 1 cm x 2 cm and 2 small incised cuts below injury No.1.

Commonsense guides us that the injuries can be self inflicted.

22. It is next urged that of the four chance finger prints

lifted from the house of the deceased, two matched those of

the deceased and two were of some unknown person.

Conclusion drawn is that the same evidences the presence of

some other person in the house.

23. The submission by learned counsel ignores the fact

that the deceased, who was of a religious bent of mind, used to

have satsangs (religious discourses in her house) and obviously

people used to assemble in her house. Thus, the presence of

two finger prints in her house which were neither those of the

appellant nor of the deceased are not facts wherefrom an

inference requires to be drawn that somebody else could have

committed the crime.

24. It is next urged that as per the prosecution, robbery

was the motive of the appellant, which fact is belied from the

circumstance that no valuable, belonging to the deceased, was

found on the person or near the body of the appellant.

25. The argument is neither here nor there for the

reason the evidence on record shows that the articles

belonging to the deceased were found scattered and obviously

somebody had rummaged through the almirahs of the

deceased.

26. It has come on record that tools used by

electricians, Ex.P-2 to Ex.P-6 were lifted from the room. It has

come on record that the lights of the house of the deceased

were closed when cries of „bachao-bachao‟ were heard outside.

The entry to the house of the deceased is not a forced entry by

the assailant. There are every signs of the same being a

friendly entry. There is no evidence of the appellant being

engaged in criminal activities. What has happened is obvious.

To rectify an electrical defect in the house of the deceased the

appellant made a friendly entry and unfortunately the devil in

him overtook the good in him. Finding an old and an infirm

lady i.e. an easy target and an opportunity to enrich himself,

the appellant assaulted the deceased hoping to finish her off in

seconds. His inexperience gave time to the deceased to cry for

help. The appellant found the public having gathered outside.

He panicked. Where was the time for him to gather the loot?

This also explains the desperate act of the appellant to commit

suicide.

27. We need not speculate on hypothetical arguments

for the reason the evidence conclusively establishes that the

flat of the deceased on the first floor had only one entry which

was found to be locked from within. Inside the flat the dead

body of the deceased and the injured appellant were found. If

there was a third person who committed the crime then it was

the duty of the appellant to so disclose. He never did so to the

police. He adopted no such line of cross-examination. He did

not do so even when examined under Section 313 Cr.P.C.

Further, when the cries of the deceased were heard by the

neighbours, they gathered on the street outside the flat and

nobody saw anyone running away.

28. We find no merit in the appeal which is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE AUGUST 27, 2009 dk / mm