Tillu Sahu vs The State (Govt. Of Nct) Delhi
2009 Latest Caselaw 415 Del

*                       IN THE HIGH COURT OF DELHI


                           Judgment reserved on : January 13, 2009
%                          Judgment delivered on : February 06, 2009


+                            CRL.A.215/2004

TILLU SAHU                                            ..... Appellant
                        Through:   Mr.Rajesh Mahajan, Advocate.

                                   versus

THE STATE (GOVT. OF NCT) DELHI           ..... Respondent
              Through: Mr. Pawan Sharma, Advocate


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

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

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. At 11.01 PM on 28.2.2002, DD No.33-A was

recorded at PS Vasant Kunj to the effect that a telephone call

has been received from telephone No.6155381 and the caller

has informed that somebody has been murdered in House

No.427, Kusumpur Pahari.

2. SI P.C.Yadav PW-14, accompanied by Const.

Banwari Lal PW-6, left for the spot and found the place to be a

jhuggi wherefrom an injured person had already been removed

by the PCR to the hospital.

3. Const. Banwari Lal stayed back and SI P.C.Yadav

went to Safdarjung hospital and found that the injured was not

fit for statement. He obtained a copy of the MLC, Ex.PW-15/1

of the injured recorded by Dr.Parvez. Returning to the jhuggi

which had fresh blood spread over the floor and on the walls,

SI P.C.Yadav made an endorsement Ex.PW-14/1 on the copy of

the DD entry and forwarded the same for registration of an

FIR. At the police station, SI Raghubir Singh PW-7, registered

the FIR, Ex.PW-7/1, under Section 307 IPC at 10.15 AM.

4. At the spot, SI P.C.Yadav summoned the crime

team and prepared the site plan Ex.PW-14/3. He seized plastic

foam stained with blood from the wooden bed inside the jhuggi

as per seizure memo Ex.PW-6/1. A blood-stained rod was also

seized from the jhuggi as per seizure memo Ex.PW-6/2. The

accused i.e. the appellant met SI P.C.Yadav at the spot. He

was wearing a blue-black shirt which was found to be stained

with blood. The same was seized vide seizure memo Ex.PW-

6/1. The appellant was arrested as per arrest memo Ex.PW-

14/6 from outside the jhuggi.

5. Const. Ravinder PW-13, took photographs Ex.PW-

13/1 to PW-13/8 of the jhuggi; negatives whereof are Ex.PW-

13/9 to PW-13/16.

6. The injured died a few hours after he was admitted

at the hospital. Thus the offence punishable under Section

302 IPC was added in the FIR. His body was sent for post-

mortem. Dr. A.K.Sharma PW-2, conducted the post-mortem on

2.3.2002 and recorded the following external and internal

injuries on the deceased:-

"External Ante mortem injuries:

Left eye was black

Avulsed contused lacerated wound of size 14x4 cm obliquely placed on the left lateral side of head, face and neck region. It is upper end ran downwards from left temporal region, cutting half of the anterior of pinna of left ear. It continued downwards anteriority along the left lateral part of the neck just behind the angle of the left mandible and terminated just short of the root of the neck on the left lateral side. Its depth in the region of angle of mandible was about 5 cm. It had caused continued downwards anteriority along the left lateral part of the neck just behind the angle of the left mandible and terminated just sort of the root of the neck on the left lateral side. Its depth in the region of angle of mandible was about 5 cm. It had caused damage to the tissue, muscle and small vessels in that area. Blood was oozing from the wound.

Internal Examination:

 Scalp: effusion of blood was found in left frontal region.

 Scull: Depressed fracture of size 2.5x2.5 cms on the left frontal region.

 Brain was pale.

 Neck injuries were already described as above. Effusion of blood was found in the neck tissues.  .........................."

7. He opined that the deceased die due to

haemorrhage and shock following injuries to neck caused by

blunt force impact and that injury No.2 was sufficient to cause

death in ordinary course of nature. The blood-stained clothes

of the deceased and a gauze containing blood of the deceased

were handed over by him to the police. A few days later i.e.

on 19.4.2002 SI Madan Pal PW-3, a draftsman, went to the site

and prepared the site plan to scale, Ex.PW-3/1.

8. Proceeding to investigate as to what had happened,

SI P.C.Yadav recorded the statement of the wife of the

deceased Smt.Sangita PW-1, who told the police that on

28.2.2002 at around 8.30 PM the appellant had come to her

jhuggi at C-250, Kusumpur Pahari and left with her husband

Raju (the deceased). She stated that her husband did not

return and at around 1.00 AM she learnt from the police that

her husband had sustained injuries and was admitted to the

hospital. She informed the police that there used to be quarrel

between her husband and the accused and that 2-3 days prior

to 28.2.2002 the accused had threatened to kill her husband in

her presence. Sanjay Charan PW-4, brother-in-law of the

deceased, also informed the police that about four days prior

to the incident there was a quarrel between the deceased and

the appellant.

9. One Bhompal PW-10, informed the police that he

was running a provision store at C-186, Kusumpur Pahari and

that at around 11.00 PM on 28.2.2002, from his telephone

No.6155380, the accused had made a call at No.100 and he

had heard him tell the police that he had murdered somebody

in his house and that he was waiting on the road near the shop

so that the police can come and pick him up.

10. The blood-stained shirt of the appellant; blood-

stained rod; blood-stained foam sheet lifted from the place of

the occurrence and the blood-stained clothes of the deceased

and the gauze containing the blood sample of the deceased

were sent to the Forensic Science Laboratory, Malviya Nagar

for seriology examination.

11. On 28.6.2002 a report was submitted by the

Laboratory to the effect that the blood-stained gauze, the pant

and the underwear of the deceased had blood of human origin

and was of „A‟ group.

12. The pipe was found to be having human blood

which gave no reaction when tested to identify the group

thereof. The shirt worn by the appellant was detected with

blood of human origin and group was „A‟. The foam sheet was

detected with blood of human origin but gave no reaction

when tested for the group thereof.

13. Armed with the aforesaid material and citing the

various police officers associated with the registration of the

FIR and in particular citing P.C.Yadav, who conducted the

investigation, the charge-sheet was filed listing the wife and

the brother-in-law of the deceased as also Bhompal as

witnesses of the prosecution. The FSL report, the MLC of the

deceased and the post-mortem report of the deceased were

also relied upon.

14. The wife of the deceased examined as PW-1,

deposed the facts aforenoted which she had informed to the

police. Therefore, we are not re-noting what she had deposed,

save and except to note that during cross-examination she

stated that her husband used to do polishing work in houses

and that the appellant was a plumber. That a quarrel had

taken place between her husband and the accused on some

issue at the place where both were working. In cross-

examination, she stated that her husband and the appellant

used to consume liquor and that there used to be quarrel

between the two even earlier on.

15. Sanjay Charan PW-4, brother-in-law of the deceased

stated that four days prior to the incident he was a witness to

a quarrel between the appellant and the deceased.

16. Bhompal PW-10, deposed of running a provision

shop at Kusumpur Pahari and being the subscriber of

telephone No.6155380 from which telephone, the appellant

was stated by him to have made a telephone call to the police

informing of having committed murder of somebody and

requiring the police to come to the shop so that he can be

apprehended by the police.

17. SI P.C.Yadav deposed about reaching the jhuggi

when he received DD No.33 and the further facts pertaining to

the investigation conducted by him, and as noted by us, while

narrating the sequence of events. Const. Banwari Lal PW-6

corroborated SI P.C.Yadav of having seen fresh blood stains on

the floor and the walls of the jhuggi as also on the rod and a

foam mattress on the bed inside the jhuggi.

18. The appellant has been convicted by the learned

trial judge for having murdered Raju. The evidence relied

upon by the learned trial judge is the deposition of the wife of

the deceased to the effect that her husband was last seen with

the appellant at around 8.30 PM, coupled with the fact that the

deceased was found dead at 12.35 AM the next day.

19. With respect to the testimony of the wife and the

brother-in-law of the deceased, learned trial judge has held

that there was evidence of motive i.e. there was a fight

between the appellant and the deceased a few days prior.

The next incriminating evidence relied upon by the learned

trial judge is the appellant going to the shop of PW-10 and

informing the police of having committed a murder i.e. the

disclosure of the appellant to the police, inculpating himself.

The next incriminating evidence found by the learned trial

judge is that, blood of group „A‟ was that of the deceased

evidenced by the report of the forensic science laboratory and

that blood of same group was found on the shirt of the

appellant and that the appellant had not explained the

presence thereof on his shirt.

20. Learned counsel for the appellant had urged that

the learned trial judge could not have relied upon the

testimony of PW-10 and what was disclosed by the appellant

to the police over the telephone because the said information

is given to the police and every part thereof is inadmissible in

evidence, save and except what is protected by Section 27 of

the Evidence Act. Learned counsel urged that no witness was

examined to prove that Raju was removed from the jhuggi of

the appellant and was in an injured condition. Further

submission made by learned counsel for the appellant was

that the FSL report could not be used as evidence against the

appellant for the reason, while examining the appellant under

Section 313 Cr.PC the said report was not put to the appellant

as a piece of incriminating evidence and hence the appellant

did not have any opportunity to explain the same.

21. Learned counsel urged that if the said two pieces of

evidence is removed, the only evidence against the appellant

is of being last seen with the deceased at 8.30 PM and in the

absence of any further incriminating evidence, no conviction

can be sustained on last seen evidence alone.

22. With respect to an inculpatory statement made by

an accused to the police the law is clear.

23. In the decision reported as AIR 1966 SC 119 Aghnoo

Nagesia Vs. State of Bihar it was held that the bar of Section

25 of the Evidence Act does not come into play, only when a

statement is made by the accused in custody before a police

officer. A statement made to a police officer would also be hit

by the bar of Section 25 of the Evidence Act even when the

accused is not in police custody or is nowhere near the police.

24. Only that part of the inculpatory statement would

be admissible which comes within the trappings of Section 27

of the Evidence Act i.e. results in the recovery of an object and

the discovery of a fact pursuant to the statement made by the

accused to the police officer.

25. The decision was followed, with approval, in the

decision reported as AIR 1972 SC 92 Khatri Hem Raj Vs. State

of Gujrat.

26. Thus, what ever was disclosed by the appellant to

the police when he rang up from the telephone of PW-10 is

inadmissible in evidence inasmuch as the same is an

admission of guilt made to a police officer.

27. However, as noted in the two decisions of the

Supreme Court hereinabove, same can be used, limited to the

proof of the fact that the informant was the appellant and that

he made a telephone call to the police from the shop of PW-10

and that he was present at the shop of PW-10 when the call

was made at around 11.00 PM.

28. Indeed, the FSL report has not been put to the

appellant as a piece of incriminating evidence and hence the

prosecution cannot rely upon the same.

29. It is unfortunate that the learned trial judge was not

live when the appellant was examined under Section 313

Cr.PC, as a result, a very vital piece of evidence has to be

discarded by us.

30. Unfortunately, no police officer or any public

witness has been examined to prove that Raju was removed to

the hospital from the jhuggi of the appellant.

31. What does that leave us with?

32. We are left with evidence that at 11.00 PM on

28.2.2002, the appellant had made a call from the shop of PW-

10, i.e. at 11.00 PM he was in Kusumpur Pahari at the shop of

PW-10.

33. We are left with the testimony of PW-1 and PW-4, to

the effect that a few days prior to the date of the incident

there was a quarrel between the appellant and the deceased.

We are left with the evidence of PW-1 of having last seen her

husband with the appellant at 8.30 PM and further evidence

that both of them left the jhuggi where the deceased resided.

We are left with the evidence of the photographs Ex.PW-13/1

to 13/8. We are also left with the evidence of P.C.Yadav PW-

14, who has categorically deposed that when he reached the

jhuggi he found fresh blood stains on the walls of the jhuggi as

also the floor. We also are left with the testimony of Const.

Banwari Lal PW-6, who had accompanied SI P.C.Yadav, who

deposed that fresh blood was noted both on the floor and on

the bed as also on a pipe when they reached the jhuggi.

34. Further material which we have is the answer to

question No.9 by the appellant when he was cross-examined

under Section 313 Cr.PC. The question is as under:

Q.9 This is also in evidence against you that photographs Ex.PW-13/1 to 8 were taken by PW- 13 in jhuggi no.427, Kusumpur Pahadi on the night intervening 28.2.02 and 1.3.02. Do you anything to say?

The appellant had responded:-

A. It is correct to the extent that the photographs pertain to my jhuggi.

35. Whether evidence of an accused being last seen

with the deceased is sufficient to infer that the accused is the

offender, unless the accused satisfactorily explains of having

parted company with the deceased when the deceased was

alive and kicking, appears to be a subject matter of a

controversy inasmuch as certain decisions have opined that it

is permissible to convict an accused on the basis of his being

last seen with the deceased and some decisions adopted the

rule of prudence that evidence of last seen with the deceased

is not sufficient unless there is some further corroborative

evidence linking the accused with the offence.

36. But, a close look at each of the decisions, in relation

to the facts thereof, would show that actually there is no

divergence of opinion.

37. Where the time gap and the circumstances of last

seen is so small that the possibility of someone else being the

author of the crime becomes impossible and the facts are such

that a rational mind is persuaded to reach an irresistible

conclusion that either the accused should explain having

parted company or to own up liability; the evidence of last

seen with the deceased is sufficient to prove the guilt of the

accused.

38. To put it pithily, depending upon the facts and

circumstances and in particular where the time gap between

last seen and the dead body being recovered is very small, the

court has to see whether there could be a possibility of

someone else accessing the deceased and hence possibly

being the author of the crime.

39. If not, last seen with the deceased would be good

enough evidence to infer that the accused is the author of the

crime.

40. The aforesaid principle can be culled out from the

decision of the Supreme Court reported as:-

1. Bodhraj Alias Bodha & Ors. vs.State of J & K (2002) 8 SCC 45

2. State of U.P. vs. Satish (2005) 3 SCC 114.

3. Ramreddy Rajesh Khanna Reddy & Anr. vs. State of Andhra Pradesh (2006) 10 SCC 172.

4. Mohibur Rahman & Anr. vs. State of Assam (2002) 6 SCC 715.

5. State of Goa vs. Sanjay Thakran & Anr. WITH Subhash Chandra Nanda vs. Sanjay Thakran & Anr. (2007) 3 SCC 755.

6. Jaswant Gir vs. State of Punjab (2005) 12 SCC 438.

7. State of W.B. vs. Mir Mohammad Omar & Ors.

(2000) 8 SCC 382.

8. Manivel & Ors. vs. State of Tamil Nadu 2008 (11) SCALE 188.

41. Applying the legal principle aforenoted to the facts

of the case, it assumes significance that the appellant and the

deceased had together left the jhuggi of the deceased at 8.30

PM. Information of the deceased being injured was available

with the police at 11.00 PM and as deposed to by P.C.Yadav

they had reached the jhuggi at 11.55 PM. The MLC Ex.PW-15/1

evidences that the deceased was brought at the hospital at

12.35 AM on 1.3.2002.

42. Since the FSL report cannot be used by us, we have

no evidence as to whether the blood in the jhuggi was of

human origin; and of what group. But, we have evidence that

the jhuggi was stained with blood. SI P.C.Yadav and

Const.Banwari Lal who have deposed said fact have not been

cross-examined on this issue. The appellant has not denied

that the jhuggi belongs to him. As noted above, the appellant

has not denied that photographs Ex.PW-13/1 to 13/8 are of his

jhuggi.

43. The appellant has not explained as to wherefrom

blood came on the walls of his jhuggi, the floor of his jhuggi

and the bed in his jhuggi. He has not said that he has

slaughtered an animal inside his jhuggi. He has not said that

he had got blood for somebody and the container broke inside

the jhuggi.

44. The time between 8.30 PM and 11.00 PM is only 2½

hours and in our opinion proximate enough, wherefrom, in the

absence of any explanation from the appellant as to when did

he part company with the deceased, it can safely be inferred

that the appellant is the author of the crime. In any case,

there is corroborative evidence, and as noted above, to link

the appellant with the commission of the crime.

45. Indeed, learned counsel for the appellant conceded

that in view of the post-mortem report of the deceased it is

obviously a case of murder.

46. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 06, 2009 rk