Pramod Kumar @ Pintoo vs State
2009 Latest Caselaw 449 Del

*                     IN THE HIGH COURT OF DELHI

                                   Judgment reserved on : February 5, 2009
%                                  Judgment delivered on : February 09, 2009

+                                    CRL.A.24/2002

       PRAMOD KUMAR @ PINTOO                  ..... Appellant
               Through: Mr. O.N.Vohra, Sr. Adv. with
                        Mr. P.C.Dhingra, Advocate

                                     versus

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

                                     CRL.A.275/2003

       JITENDER @ MOTA @ RAM KUMAR            ..... Appellant
                 Through: Ms. Purnima Sethi, Advocate

                                     versus

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

                                     CRL.A.808/2005

       DEVENDER @ KALU @ KALIA            ..... Appellant
               Through: Ms. Upasana, Advocate

                                     versus

       STATE                                            ..... 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?
Crl.A.Nos.24/02, 275/03 & 808/05                                  Page 1 of 14
 : PRADEEP NANDRAJOG, J.

1. Young Arjun aged 14 years was studying in

Government Senior Secondary School, Tentwala, Gitanjali Park,

Sagar Pur, New Delhi. He was found dead lying in a pool of

blood in the toilet of the school at around 5:30-6:00 P.M. on

19.12.1999. The said information was available with the police

when a telephone call was received as recorded vide DD No.36-

A. SI Neeraj Chaudhary PW-14 accompanied by Const.Randhava

PW-7 and Const.Tej Pal Singh PW-1 reached the school at

around 7:35 PM. They found the dead body of Arjun Sharma.

Const.Chandan Singh PW-12 was summoned who took 8

photographs Ex.PW-12/2-1 to Ex.PW-12/2-8; negatives whereof

are Ex.PW-12/1 to Ex.PW-12/8. One Vishnu Dutt aged 14 years

was playing in the school and heard that a boy was lying dead in

the school which information he gave to the family members of

the deceased. Thereupon Sita Ram PW-3 the father of the

deceased reached the school and vide his statement Ex.PW-3/A

informed SI Neeraj Chaudhary, who recorded the statement,

that he had two sons, elder named Arjun and the younger

named Vijay both of whom were students of Government Senior

Secondary School, No.1, Gitanjali Park, Sagar Pur, New Delhi and

that at 1:00 PM his son Arjun had gone to the school to play but

did not return till the evening and that Vishnu had informed him

that his son was lying dead in the toilet of the school.

2. SI Neeraj Chaudhary made an endorsement on the

said statement and sent the same to the police station through

Const.Tej Pal Singh for registration of the FIR where HC

Goverdhan PW-5 registered the FIR Ex.PW-5/A under Section

302 IPC.

3. The reason was obvious. The deceased was found

battered on the face and the skull.

4. We eschew reference to the spot investigation

conducted for the reason nothing of material consequences

turns thereon save and except to note that a brick and an

asbestos sheet stained with blood were recovered from near the

dead body and as per the report of the serologist were opined to

be stained with human blood of group 'B'; the same blood group

as that of the deceased. The recovery of the two objects i.e. the

brick and the asbestos sheet from the spot and the presence of

human blood of group 'B' thereon has not been challenged by

any counsel during arguments in the three appeals. However,

we hasten to note that Sh. O.N.Vohra learned senior counsel for

appellant Pramod and other counsel appearing for the co-

accused conceded before us while arguing the appeal that

indeed Arjun died in the precincts of the school and there is

evidence to establish that he was brutally battered to death

inside the toilet of the school.

5. The body of the deceased was sent for post-mortem

to the Civil Hospital Delhi where Dr.K.Goyal conducted the post-

mortem on 20.12.1999 at 12:00 noon. 10 injuries all directed

towards the face, forehead and the skull were noted. Internal

injuries showed that the left frontal and right temporal lobes of

the brain were damaged. The skull had fractured and pieces

were embedded in the brain. There was internal haemorrhage

and clots were present over base of the brain. He opined that a

brick could be the weapon of offence and that no definite

opinion could be given with respect to the asbestos sheet being

used as the weapon of offence. He further opined that the

probable time of death was 20 hours to 22 hours before the time

when the post-mortem was conducted.

6. Thus, it is apparent that as per the report of the post-

mortem, young Arjun died between 2:00 PM to 4:00 PM on

19.12.1999.

7. Vijay Sharma PW-2, the younger brother of young

Arjun informed the police that at around 1:00 PM he and his

brother were playing behind the school and that Pintoo, Kalia

and Mota were present there. That he i.e. Vijay played till 3:00

PM and returned home. His brother and the said three persons

kept on playing. Thereafter, his brother did not return home.

8. Now, Pintoo is the pet name of appellant Pramod.

Kalia is the pet name of appellant Devender and Mota is the pet

name of appellant Jitender.

9. This led the police to track down the appellants who

were apprehended by the police.

10. Relevant for the present decision is to note that

appellant Pramod made a disclosure statement Ex.PW-17/G

recorded by SI Jasmohinder Chaudhary PW-17 as per which he

admitted to having murdered Master Arjun and disclosed the

whereabouts of the clothes which he i.e. Pramod was wearing at

the time of commission of the offence and offered to get the

same recovered from his house and thereafter produced a T-

shirt, a jacket, grey coloured jeans and a pair of shoes which

were seized vide seizure memo Ex.PW-17/J. The same were sent

to a serologist for a serological test and report Ex.PW-16/A

records that the jeans Ex.5A and a pair of shoes Ex.5B tested

positive for blood and that on the pant the blood of group 'B'

was detected. On the shoes human blood was detected, group

whereof could not be ascertained.

11. As noted above the brick and the asbestos sheet as

also a cotton gauze containing the blood of the victim were

reported to have human blood of group 'B'.

12. Thus, it is apparent that blood of the deceased was of

group 'B' and that the pant recovered from Pramod's house had

human blood of group 'B'. The shoes recovered from his house

had human blood, group whereof could not be detected.

13. Anil Kumar Dixit PW-4 had purportedly informed the

police that at 5:00 PM on 19.12.1999 accused Devender who

was in an inebriated condition told him that he, his brother Mota

and Pintoo have killed a boy in Tentwala School.

14. Hoping that Anil Kumar Dixit would support the

prosecution and prove the extra judicial confession; relying upon

Vijay, the younger brother of the deceased to prove having seen

the deceased in company of the appellants at about 3:00 PM on

the fateful day and the recovery of the blood stained pant and

the shoes of Pramod from the house of Pramod and pursuant to

the disclosure statement of Pramod as also the report of the

serologist opining on the presence of human blood on the pant

and the shirt of Pramod and the blood group being the same as

that of the deceased and as found on the brick found at the site

of the occurrence a charge sheet was filed indicting the

appellants of having murdered Master Arjun. We note that the

motive stated in the charge sheet was based on the alleged

confessions of the appellants who had told the police that to

satisfy their lust they had taken Arjun inside the toilet who

threatened to make public the misdeeds of the appellants,

motivating them to kill him so that their honour in the locality

would remain intact.

15. Anil Kumar Dixit PW-4 turned hostile and denied that

appellant Devender had made any confession to him.

16. Vijay, the younger brother of the deceased supported

the prosecution and deposed of playing behind the school with

his brother and the appellants from 1:00 PM to 3:00 PM on

19.12.1999 and that when he parted company with the group,

his brother stayed back with the appellants.

17. Sita Ram PW-3 the father of the deceased deposed

that his son Arjun went out to play at around 1:00 PM and did

not come home and that late evening Vishnu told him that his

son was found dead in the toilet of the school.

18. Appellant Pramod examined 3 witnesses in defence

namely Subhash Chand DW-1, Devender Solanki DW-2 and

Ramesh Kumar DW-3. We note that Ramesh Kumar is father of

appellant Pramod. All witnesses deposed that appellant Pramod

was running a general merchant shop from premises No.D-

2/142, Jeevan Park, Uttam Nagar, Delhi and that he used to open

the shop at around 8:00 AM and used to close the same at

around 9:30 PM. All three deposed that on the day of the

incident i.e. 19.12.1999, appellant Pramod was present in the

shop from 8:00 AM to 9:00 PM.

19. With reference to the testimony of PW-2 Vijay

Sharma and the fact that the clothes got recovered by appellant

Pramod from his house which he had told the police were the

ones which he was wearing at the time of the offence, since

human blood was found on the pant and the shoes and on the

pant the blood was of group 'B' coupled with the fact that the

blood group of the deceased was of group 'B', learned Trial

Judge has held that the said evidence established that the

appellants were the perpetrators of the crime. The result is the

conviction of the appellants for the offence of murdering Arjun.

Vide impugned judgment and order dated 24.12.2001 the

appellants have been convicted of the offence of murder and

vide order dated 2.1.2002 have sentenced them to undergo

imprisonment for life and to pay a fine of Rs.1,000/- each and in

default to undergo imprisonment for 3 months.

20. The plea of alibi sought to be proved by Pramod has

been negated by the learned Trial Judge inasmuch as there was

no documentary proof of Pramod carrying on business as a

general merchant from a shop. The defence witnesses were

brushed aside as being worthy of no credence; holding them to

be interested witnesses.

21. At the hearing held on 5.2.2009, Sh. O.N.Vohra

learned senior counsel for appellant Pramod urged that the

prosecution did not obtain a sample of blood group of Pramod

and that the possibility of Pramod having blood of group 'B'

cannot be ruled out. Thus, counsel urged that merely because

human blood was detected on the shoes of Pramod and human

blood of group 'B' was detected from the pant of Pramod is not

an incriminating evidence against Pramod.

22. The second submission made by learned counsel,

which was adopted by Ms.Purnima Sethi and Ms.Upasana

learned counsel for the co-accused was that the appellants are

aged around 25 years. The deceased was aged about 14 years.

There is no evidence that they were friends and the possibility of

deceased playing with the appellants is remote. If this be so,

learned counsel urged in unison that Vijay Sharma PW-2 had

obviously been tutored to state something which he had never

seen.

23. The last submission made is that in his statement

Ex.PW-3/A and even before the Court, Sita Ram, the father of

the deceased has stated that his son Arjun went out to play. He

never said that even Vijay had gone out to play. Thus, it was

urged that Sita Ram had discredited Vijay Sharma as regards

Vijay Sharma leaving the house together with his brother Arjun

to go and play outside.

24. Learned counsel for the accused Jitender and

Devender submitted that even believing Vijay Sharma, the

evidence of last seen was not enough to justify the conviction of

their clients. Learned counsel urged that the said appellants

may have parted company at any point of time and the

possibility of accused Pramod alone being the assailant cannot

be ruled out. In fact, submission made was that all three

appellants may have left and thereafter somebody else coming

into contact with the deceased and committing the crime cannot

be ruled out.

25. In the decisions reported as 2002 (8) SCC 45 Bodhraj

Vs. State of J & K and 2002 (6) SCC 715 Mohibur Rehman Vs.

State of Assam it was held that where a deceased is last seen

with the accused and the time gap of the dead body being found

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

of the crime becomes impossible and where due to close

proximity of the time a rational mind is persuaded to reach an

irresistible conclusion that either he should explain or own up

liability, the evidence of last seen is sufficient to convict the

accused unless the accused leads evidence and establishes of

having parted company with the deceased when the deceased

was alive.

26. The law of last seen is clear. The facts and

circumstances of each case would have to be properly noted

and carefully considered. Thereafter the Court has to determine

whether without any hiccup or hesitation the conclusion of guilt

can be drawn or not. The time gap, though relevant may

assume little significance if the circumstances so warrant.

27. Let us take an example of an accused snatching a

child from the arms of his mother and fleeing. There being good

evidence to establish the same. The dead body of the child is

found after 10 days in a field. The post-mortem report shows

that the child died a day prior to the dead body being found.

The accused is apprehended. He leads no evidence to show

that after fleeing with the child he abandoned him. The

circumstances of the case i.e. the snatching of the child by the

accused and fleeing away with the child is sufficient enough to

hold that the accused is the author of the crime because the

accused and the child were last seen together in a hostile

circumstance viz-a-viz the child. Similarly where a child is

entrusted with an adult to be safely escorted to the school and

both of them disappear and the child is found dead after 4 days,

the adult escort would be presumed to be guilty of the crime of

murder if it is found that the child was murdered, unless the

adult can satisfactorily explain having parted company with the

child.

28. The first submission urged by Sh. O.N.Vohra learned

senior counsel for accused Pramod does not merit much

consideration for the reason it is not to have established that the

blood group of Pramod was not of group 'B' for the reason

Pramod did not explain as to how his pant and shoes were

stained with blood. Now, there was no injury on the person of

Pramod. Had Pramod been injured it would have assumed

significance to find out as to what was the blood group of

Pramod. Since Pramod has not explained as to how his pant

was stained with blood and how his shoes were stained with

blood, the presence of human blood on his shoes and his pant

and the blood of group 'B' being detected on his pant is

incriminating evidence against Pramod for the reason

undisputably that the blood group of the deceased was group

'B'.

29. That the appellants are not students of the school

and there is an age gap of 11 years between the age of the

deceased and the appellant is of no significance because it is

not unheard of to see a 14 year old boy play with elderly boys or

even young man in the age group of 20 years to 25 years.

30. The submission that father of the deceased did not

depose that both his sons left together to play outside and only

Vijay deposed said fact shows that Vijay was improving upon the

case of the prosecution is neither here nor there as the same is

premised as if there are material contradictions or variations in

the deposition of Vijay and his father Sita Ram.

31. It is possible that a father sees only one child leaving

the house and not the other. It is possible that Vijay left the

house a minute or two after his brother or a minute or two

before. It is possible that when this happened the father

happened not to see Vijay leave the house. We find that Vijay

has not been cross examined minutely on this aspect. We note

that the only suggestion put to Vijay is that he is deposing

falsely.

32. Why should Vijay be lying? No motive has been

attributed to Vijay.

33. We have perused the testimony of Vijay. He was

aged 12 years when he deposed on 28.7.2000. Keeping in view

his age we find that he has deposed truthfully. He has been

cross examined and has withstood the test of cross examination.

34. The triple evidence against accused Pramod of being

seen with the deceased at 3:00 PM by Vijay Sharma, the post-

mortem report which shows that the deceased died between

2:00 PM to 4:00 PM (obviously has to be between 3:00 PM to

4:00 PM) and the presence of human blood on the pant and the

shoes of Pramod and blood group on the pant being of group 'B',

the same of the deceased completes the chain of circumstances

to hold that Pramod is guilty of having murdered young Arjun.

35. Qua accused Jitender and Devender, the only

admissible evidence is that of their presence along with Pramod

with the deceased at 3:00 PM. Tested on the law pertaining to

last seen evidence as explained in the two decisions of the

Supreme Court noted hereinabove, we are of the opinion that it

would be unsafe to convict Jitender and Devender for the

offence of having murdered Arjun inasmuch as it cannot be said

that there is no possibility of these two leaving the play field and

accused Pramod being left playing with the deceased.

36. It would not be out of significance to record that the

doctor who conducted the post-mortem did not report a definite

opinion that the asbestos sheet found at the spot was used to

batter the deceased. He was firm in the opinion that the blood

stained brick could be the object used to batter the young boy.

Though human blood of group 'B' was detected on the asbestos

sheet, the possibility of the sheet being stained with the blood of

the deceased when it got splattered cannot be ruled out;

meaning thereby there is no clinching evidence to show that two

people have acted in concert to cause the injuries. This is an

additional circumstance requiring benefit of doubt to be given to

appellants Jitender and Devender.

37. For the reasons noted above, Crl.Appeal No.275/2003

and Crl.Appeal No.808/2005 filed by appellants Jitender and

Devender are allowed. Their conviction is set aside. The order

of sentence imposed upon them is also set aside. Directions are

issued to the Superintendent, Central Jail, Tihar to release

Jitender and Devender if not required in any other case. The

appeal filed by Pramod i.e. Crl.Appeal No.24/2002 is dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 09, 2009 mm