Uma Shanker vs The State (Delhi Admn.)
2009 Latest Caselaw 5223 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                             Reserved on: 17.11.2009
%                                                    Date of decision: 15.12.2009


+                               CRL. A. No.3 of 1996

UMA SHANKER                                                ...APPELLANT
                                Through:        Mr. Aamir Hasan Khan, Adv.


                                          Versus


THE STATE (DELHI ADMN.)                                    ...RESPONDENT
                   Through:                     Mr. Pawan Sharma, APP.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                   No

2.        To be referred to Reporter or not?                    No

3.        Whether the judgment should be
          reported in the Digest?                               No


SANJAY KISHAN KAUL, J.

1. On the fateful day of 7.8.1991 early in the morning at about 4:30

a.m., the appellant along with one Inder Singh (PW-5) is alleged to

have gone to the house of Suresh Yadav (PW-4). They woke up

Suresh Yadav (PW-4) and informed him that the appellant had

killed one Bhure Lal (deceased) and had thrown his dead body in

the gutter. Suresh Yadav (PW-4) took the appellant to P.S.

Kotwali where SHO O.P. Sharma (PW-19) recorded the statement _____________________________________________________________________________________________

of Suresh Yadav (exhibit PW-4/A) on which he made an

endorsement (exhibit PW-19/A). The rucca was sent at 6:15 a.m.

by the police and an FIR No.325/91 under Sections 302/201 of the

IPC was registered (exhibit PW-9/A).

2. A disclosure statement (exhibit PW-4/C) was made by the

appellant where he stated that the deceased and the appellant were

working together in shop No.1120, Chhatta Madan Gopal,

Chandni Chowk. The appellant had to pay a sum of Rs.1,100.00

to the deceased which had been borrowed by the appellant. The

deceased threatened him that in case the amount was not paid

back, the deceased would go to the village of the appellant and

snatch away his cattle and would expose him to the villagers.

Faced with the situation the appellant bought a dagger with the

intent to kill the deceased and on the intervening night of

6/7.8.1991 at about 3:00 a.m. when they were sleeping in the same

shop the appellant stabbed the deceased on various parts of the

body number of times and threw the dead body in the manhole

situated on the backside of the shop. The appellant had also stated

that the deceased bit his index finger when he was trying to close

his mouth to prevent any noise. The clothes were washed and after

concealing the dagger the blood spots were also washed.

3. The investigation was entrusted to PW-19, who accompanied with

other police officials went to the spot. The appellant is stated to

have led the police team to the backside of the gali and on

removing the lid of the manhole the dead body of the deceased _____________________________________________________________________________________________

was found in the gutter which was sent for postmortem. On the

pointing of the appellant the site plan was prepared at the shop.

The clothes and the dagger hidden in the canopy of shop were

recovered at the behest of the appellant along with a blood stained

bed sheet and were seized vide exhibit PW-14/A. The sketch of

the dagger (exhibit PW-14/B) was prepared. The shop from which

the dagger was purchased about ten (10) days before the incident

was also visited.

4. On completion of the investigation the appellant was

chargesheeted and charges were framed under Section 302 read

with Section 201 of the IPC. The appellant pleaded innocence and

claimed trial. In terms of the impugned judgement dated

31.8.1994 the appellant was found guilty of offences under

Sections 302/201 of the IPC and was sentenced to life

imprisonment under Section 302 of the IPC and a fine of

Rs.1,000.00 and in default of payment of fine, the appellant was

directed to further undergo R.I. for one year. The appellant was

also sentenced for the offence under Section 201 of the IPC to

undergo one year R.I. with fine of Rs.500.00 and in default of

payment of fine, the appellant was directed to further undergo

three months R.I. giving the benefit under Section 428 Cr.P.C. and

both sentences to run concurrently as per order of sentence dated

6.9.1994. The appellant aggrieved by the same has preferred the

present appeal.

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5. Learned counsel for the appellant argued that the complete story

was fabricated and the appellant was never present at the time of

incident but was picked up from his shop on 7.8.1991 while he

was doing some labour. This was stated to have so happened at

the behest of Suresh Yadav and his co-worker who had a fight

with the appellant two days before the incident and threatened to

teach the appellant a lesson. It is the plea of the learned counsel

for the appellant that no recovery was made in the presence of the

independent witnesses and FIR has been registered on extra-

judicial confession.

6. Learned APP, on the other hand, has defended the judgement

contending that the body of the deceased was recovered from the

gutter at the pointing out by the appellant and in the presence of

witnesses. The clothes of the appellant as well as the knife were

recovered and seized. The blood group of the deceased was AB

and as per CFSL report (exhibit P-4) the same blood group has

been found on the clothes and dagger. It is also pleaded that

another circumstance pointing towards the guilt of the appellant is

that when he was medically examined an injury on his index finger

was noticed by the doctor and this fact has been examined in the

context of the disclosure statement of the appellant that the

deceased had bitten the finger of the appellant.

7. Learned APP submitted that the case was one of circumstantial

evidence and the guilt of the appellant has been proved on account

of the following circumstances:

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i. The appellant and the deceased alone were present in the

shop.

ii. PW-4 & PW-5 went to the police station along with the

appellant and both the said witnesses informed the police

about the extra-judicial confession of the appellant.

iii. The statement of PW-4 was recorded by PW-19 and the FIR

was registered pursuant thereto.

iv. The appellant led the police party to the shop and got

recovered the blood stained dagger exhibit P-1 and his

blood stained clothes and bed sheet (exhibit P-2 to P-5) as

well as the body of the deceased.

v. The CFSL report confirmed the blood group AB on the

various exhibits (exhibits P-1 to P-5) which is also the blood

group of the deceased.

vi. PW-4 has affirmed that both the deceased and the appellant

were working together and used to sleep inside the shop

though he resiled from his statement made under Section

161 Cr.P.C. only partially.

8. On examination of the relevant pleas of the learned counsels for

the parties, we find that the testimonies of PW-4 & PW-5 need to

be closely examined as the same are the bedrock of the case of the

prosecution apart from the recovery of body as well as recoveries

stated to have been made at the behest of the appellant. PW-4

while supporting the substantive part of the story has, however,

resiled from the earlier statement before the police insofar as the _____________________________________________________________________________________________

recovery of the weapon of offence (chhuri) is concerned. He has

further resiled from his statement about purchasing the chhuri.

Similarly, PW-5 supported a part of the story but resiled on the

issue of recovery of weapon of offence and disclosure statement

being recorded in his presence.

9. The testimony of Dr. S.P. Kalra (PW-17), establishes the injury on

the left hand's index finger of the appellant which had been opined

as due to teeth bite and the duration of which was about 12 hours.

This is in consonance with the disclosure statement made by the

appellant. The postmortem on the deceased was conducted by Dr.

L.K. Barua (PW-18). The injuries found on the body of the

deceased are as under:

i. One incised wound was seen on the middle of chest at the

level of nipples placed obliquely of size 1.25 cm X 0.5 cm.

muscle deep (on cut section).

ii. One incised wound was seen right side front of chest 10 cm.

below the right nipple of size 1.3 cm X 0.5 cm muscle deep.

(cut section).

iii. One incised wound on the right hypochondrium just below

the costal cartilages. This injury was placed 10 cm. right

side of the mid line and the size of the injury was 3.5 cm X

2 cm. X ? (depth to be ascertained).

iv. One incised wound was seen in the apigastric region placed

obliquely of size 3 cm. X 2 cm. X ?.

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v. Incised wound on the right angle of the abdomen placed

obliquely of size 3.5 cm X 2 cm. X ?.

vi. Incised wound over right hip of size 5 cms. X 1.5 cms.

Muscle deep.

vii. Incised wound on dorsal aspect of the left wrist of size 1

cm. X 0.5 cm. skin to muscle deep.

viii. Incised wound on the claft of left roe and middle finger of

size 5 cms. X 1.5 cms. Muscle deep.

ix. Incised wound on dorsum of the left hand on its ulnar

border of size 3 cm. X 1 cm. muscle deep.

x. One scratch on the back of left forearm of size 3 cms. X 0.2

cm.

xi. Abrasions of size 2 cm. X 1 cm. was seen on the back side

of left elbow.

xii. Scattered abrasions were seen on the left side back of chest

of size 8 cms. X 5 cms. Area.

xiii. There were abrasions on the back side of right elbow, in the

front side of left leg.

xiv. One ligature mark of width 1 cm. was seen all around the

neck width bifurcation on the back side of the neck.

10. Injuries No.(iii), (iv) & (v) were opined as individually sufficient

to cause death in ordinary course of nature. The death was caused

due to shock and haemorrhage resulting due to injuries. Thus,

multiple injuries had been inflicted. The witness was under

examination when the sealed parcel containing the dagger was _____________________________________________________________________________________________

opened and the dagger (exhibit P-1) was taken out and shown to

the witness. The witness saw the dagger and opined that it was the

same dagger which was shown to him at the time of conducting

the postmortem and the sketch of which was prepared by him on

the postmortem report.

11. A perusal of the impugned judgement shows that the trial court has

taken into account the information and the disclosure statement

and to the extent the same has resulted in discovery of fact which

are germane for proving the case of the prosecution. This

approach is in consonance with Section 27 of the Indian Evidence

Act, 1872. Thus, the purchase of dagger from the shop, biting of

the index finger of the appellant by the deceased, dragging of the

dead body by the appellant, cleaning of the blood of the deceased

from the sheet as also stains on the shirt and pant of the appellant

are relevant factors, which have been examined.

12. The testimony of PW-17 establishes the injury on the index finger

of the appellant and the cause of the same being a teeth bite. This

fact relates to the commission of offence and was mentioned in the

disclosure statement. There is no explanation given in this behalf

by the appellant under Section 313 of the Cr.P.C. as to how the

index finger was injured.

13. Similarly the police witnesses have established the recovery of the

dead body consequent to the disclosure statement. The appellant

removed the lid of the manhole and showed the dead body. A

pointing out-cum-recovery memo (exhibit PW-4/E) was prepared _____________________________________________________________________________________________

and proved in respect of the recovery of the body. The blood

stained earth collected as also the site plan have been proved by

the police witnesses and there is no reason to doubt the same. The

CFSL report establishes the presence of blood of the blood group

of the deceased on various items like the clothes of the deceased

and the dagger (exhibit P-1). The purchase of dagger (exhibit P-1)

by the appellant was established by the statement of Amarjit Singh

(PW-1), proprietor of the shop from where the dagger was

purchased.

14. The case is based on circumstantial evidence because there could

not have been any ocular witness. It is the appellant and the

deceased alone who used to sleep in the shop and thus so long as

the link in the circumstantial evidence is established and points

towards the appellant alone as the accused, a conviction based on

such circumstantial evidence cannot be faulted with.

15. The testimonies of PW-4 & PW-5, thus, establish that they came

with the appellant to the police station on their own after the

appellant had claimed that he had killed the deceased. There has

been no delay in registration of the FIR or in carrying out

investigation which could have thrown doubt on the process of

investigation. The police party went to the place of occurrence at

the behest of the appellant.

16. The extra-judicial confession in the present case is, in our

considered view, clearly voluntary and can be relied upon in view

of the facts stated herein being established by the recoveries made. _____________________________________________________________________________________________

The extra-judicial confession was made to PW-4 & PW-5 who are

both in the same milk business and the appellant and the deceased

were working together with them. It is in these circumstances that

the appellant confided in the two witnesses.

17. No doubt the dispute between the appellant and the deceased was

over a petty amount. There was balance outstanding of Rs.650.00

out of a loan of Rs.1,100.00. The fact, however, remains that as

per the evidence on record the deceased used to demand the

balance money almost on a daily basis which led to

unpleasantness. The deceased was pressing for the amount as he

had to leave for his village the day after the unfortunate incident

and even threatened to insult the appellant in the village. It is the

apprehension arisen from such threat which has resulted in the

crime being committed by the appellant. In fact, the various

injuries inflicted as per the postmortem report show the repeated

assaults by the appellant and the intent to kill the deceased was

obvious. Some remorse seem to have set in only after the crime

and that too to somehow escape severe punishment.

18. We may rely at this stage on the observations of the Supreme

Court in State of Rajasthan Vs. Raja Ram (2003) 8 SCC 180 which

are as under:

"....A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An

_____________________________________________________________________________________________

involuntary confession is one which is not the result of the free will of the maker of it....

The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of a witness who appears to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it."

19. We are of the considered view that the aforesaid test is satisfied in

the present case and the findings of the trial court on the issue of

conviction of the appellant and the sentence imposed are in

accordance with law. The appeal is accordingly dismissed.

20. The bail bond and the surety stand cancelled and the trial court is

directed to take steps for taking the appellant into custody to serve

the remaining sentence.

SANJAY KISHAN KAUL, J.

DECEMBER 15, 2009                                           AJIT BHARIHOKE, J.
b'nesh

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