Beeru @Surender vs State
2009 Latest Caselaw 2457 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. Appeal No.737/2005

%                                   Date of Order : July 3, 2009

       BEERU @SURENDER                  ..... Appellant
               Through : Mr.Rajesh Mahajan, Advocate.

                                   VERSUS

       STATE (G.N.C.T. OF DELHI)          .....Respondent

Through : Ms. Richa Kapoor, APP.

CORAM :-

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

(1) Whether reporters of local paper may be allowed to see the judgment? Yes.

(2) To be referred to the reporter or not? Yes.

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

PRADEEP NANDRAJOG, J.(Oral)

1. Vide impugned judgment and order dated 29.3.2005, the

appellant stands convicted for the offence of having

murdered Shanti W/o Narayan Dass. Vide order of

sentence dated 31.3.2005, the appellant has been

sentenced to undergo imprisonment for life and pay a fine

of Rs.1,000/-; in default of payment of fine, to undergo

rigorous imprisonment for three months.

2. In returning a finding of guilt, the learned Trial Judge has

held that the testimony of Meena PW-1, the sole eye-

witness to the incident is creditworthy and inspires

confidence. The learned Trial Judge has found sustenance

to the testimony of PW-1 with reference to the testimony

of Narayan Dass PW-2. The learned Trial Judge has been

influenced by the fact that PW-1 and PW-2 are illiterate

beggars and thus their conduct has to be appreciated with

reference to their socio-economic background.

3. It is not in dispute that on 10.5.2004, somewhere in the

late hours of the evening or in the intervening night of 10 th

and 11th May 2004, Shanti Devi W/o Narayan Dass was

killed. She and her husband i.e. Narayan Dass were

vagabonds. Their home was a space under a bridge

adjoining Delhi Loco Shed. Shanti Devi suffered from

leprosy. Her husband Narayan Dass is a physically

challenged person.

4. In her testimony, Meena PW-1, stated that she knew the

deceased and her husband Narayan Dass, who used to live

under the flyover adjoining New Delhi Railway Station. She

knew appellant Beeru who also used to live under the

flyover. Shanti Devi used to cook food for the appellant,

who would, many a times come drunk, but in spite thereof,

would be served food by Shanti. That, on 10.5.2004 she

was sitting under the flyover when appellant came at

around 7/8 PM and demanded Rs.10,000/- from Shanti.

Upon refusal by Shanti to pay, he i.e. the appellant started

beating Shanti with a broom lying nearby followed by

beating her with a stick and then a stone. When this was

happening, husband of Shanti Devi ran away. She i.e.

Meena tried to save Shanti by requesting the appellant to

leave her. At that, the appellant slapped her. That the

final assault on the deceased was in the form of

strangulation. The appellant strangulated Shanti to death.

She i.e. Meena, got scared and ran away. That on

18.5.2004, the police met her and she narrated the

incident to the police.

5. On being cross-examined, Meena stated that at the time of

the incident, five to six people collected at the spot and

tried to save Shanti Devi from the accused. She admitted

that in her statement recorded under Section 161 Cr.P.C. it

was not disclosed by her that she intervened to save

Shanti Devi when appellant assaulted Shanti Devi and that

it was also not recorded therein that when she intervened,

the appellant slapped her.

6. Narayan Dass PW-2, deposed that Shanti Devi was his wife

and they used to reside under the flyover adjoining New

Delhi Railway Station and that he knew appellant as the

appellant resided nearby and was a pickpocket and a

peddler of smack. That on 10.5.2004 he was sitting with

his wife when the appellant came drunk and questioned

his wife as to who has picked up Rs.10,000/- which he had

concealed beneath a brick. His wife replied in the negative

saying that she had seen no such money nor had she

picked up any. At that, the appellant started beating his

wife. He got scared. Being a handicapped person he ran

away to save himself from the appellant. Next morning

when he came back he found his wife lying dead and that

the appellant was arrested in his presence on 18.5.2004.

7. As noted herein above, the learned Trial Judge has found

Meena to be a truthful and a reliable witness. Thus, with

reference to her testimony, the learned Trial Judge has

returned a finding that the same establishes that the

appellant had caused the death of Shanti on being

aggrieved by the fact that Rs.10,000/- hidden by him under

a brick were missing. Corroboration has been found with

reference to the testimony of PW-2 who claims not to have

seen his wife being actually murdered, but had witnessed

the assault being commenced on his wife by the appellant.

The conduct of PW-2 of running away, being scared, has

been found to be acceptable by the learned Trial Judge

because of the fact PW-2 was physically handicapped.

8. It is unfortunate, probably the attention of the learned Trial

Judge was not drawn to certain relevant evidence which

brings out contours of the case of the prosecution in favour

of the appellant. Had it been so done, we are confident

that the impugned decision convicting the appellant would

not have been rendered.

9. Ex.PW-4/A, Ex.PW-7/G and the statement of Narayan Dass

recorded by the investigating officer under Section 161

Cr.P.C. are three material evidences which throw

considerable light as to what had happened as also

whether appellant's implication in the case is false.

10. As noted hereinabove, Shanti Devi died (was killed) in the

late evening of 10.5.2004 or somewhere in the intervening

night of 10th and 11th May 2004. Information pertaining to

her death was received at the police station and resulted

in DD No.6A Ex.PW-4/B being recorded at 11.5.2004. Said

DD entry was recorded at 6:55 AM as mentioned therein.

11. SI Brijesh Malik PW-7 (the investigating officer) to whom

Const. Darpan PW-5 handed over a copy of DD No.6A

proceeded to the spot in the company of Const. Darpan

where, as per information received, the dead body of a

female was noted in the early hours of the morning of

11.5.2004.

12. In his own hand, PW-7 recorded the endorsement Ex.PW-

4/A on copy of DD No.6A. In the said endorsement he

wrote that at the spot he saw Narayan Dass next to the

dead body of the woman and through Narayan Dass he

learnt that the dead body was of Shanti Devi, the wife of

Narayan Dass. He penned in the endorsement that in spite

of repeatedly asking Narayan Dass as to what had

happened and how Shanti Devi had died, Narayan Dass

was telling him nothing. Recording that the dead body has

been seized and sent to the mortuary for post mortem,

PW-7 deferred registration of an FIR to await the report of

post-mortem of the deceased since the material before

him was inconclusive, in any case, no definite opinion

could be formed based thereon that a crime had been

committed.

13. On the same day itself i.e. 11.5.2004 PW-7 once again

tried to reason out with Narayan Dass to elicit information,

if any available with Narayan Dass, pertaining to the cause

of the death of Shanti Devi. Ex.PW-7/G was penned by PW-

7 in which he wrote that Narayan Dass has informed him

that last evening at around 7:30 PM, two to three boys

came and started raising a hue and cry as to what has

happened to their money which they had hidden beneath a

tin sheet. He i.e. Narayan Dass got scared that these boys

may be suspicious of him and this fear led him to remove

himself from the place and that when he returned to the

spot in the morning at 6:00 AM, the next day he found that

his wife Shanti was dead. A further endorsement stands

recorded in Ex.PW-7/G on 18.5.2004 that in view of the

post-mortem report of the deceased which clearly

indicates a homicidal death, case was made out to register

an FIR for an offence punishable under Section 302 IPC.

14. It would be interesting to note that PW-7 kept pending the

registration of an FIR, pending inquest proceedings being

completed i.e. to await the report of the post-mortem of

the deceased.

15. The post-mortem report Ex.PW-12/A was made available to

the investigating officer on 18.5.2004, as per which the

cause of death of Shanti was manual strangulation. As per

the post-mortem report, Shanti had eight injuries. Six

injuries were caused by blunt force and two injuries were

the result of being strangulated by applying pressure over

the neck.

16. It was apparent that the death was homicidal. Thus, on

18.5.2004, an FIR for the offence of murder was registered.

17. Surprisingly, on the same very day i.e. 18.5.2004, the

statement of PW-1 and PW-2 were recorded by the

investigating officer under Section 161 Cr.P.C. It may be

noted that the two statements were recorded after the FIR

was registered.

18. In his statement under Section 161 Cr.P.C. Narayan Dass

for the first time named the appellant as the assailant.

Relevant would it be to note that in the said statement,

Narayan Dass stated that he did not know the name of the

appellant and that his name was told to him by Meena PW-

1. He informed that in the evening of 10.5.2004, the

appellant had questioned his wife as to what had

happened to his money and that when his wife told the

appellant that she knew nothing about his money, the

appellant assaulted his wife. He got scared and ran away.

19. Meena's statement under Section 161 Cr.P.C. which was

recorded on 18.5.2004 inculpated the appellant.

20. Suffice would it be state that Narayan Dass had no

information about the cause or circumstances under which

his wife died when he was first accosted by PW-7. The

same is evidenced by Ex.PW-4/A.

21. Ex.PW-7/G shows that at the second instance, PW-2 told

PW-7 that two to three boys, not known to him, had

created a ruckus pertaining to certain money which they

claimed to have hidden under a tin sheet and wanted to

know from his wife as to what had happened to their

money.

22. If this be so, the assailants had to be two or three. It is

also relevant to note that at that point of time, which

happened to be 10:05 AM on 11.5.2004, PW-2 just did not

name the appellant as the assailant of his wife or being a

part of the two or three boys who he claimed had an

altercation with his wife. It is also relevant to note that as

per Ex.PW-7/G, PW-2 left the spot being scared that the

said two or three boys may be suspicious of him having

removed their money, or that he may be assaulted by

them and thus he decided to remove himself from the

place. In his deposition in Court, PW-2 gave a completely

different cause for removing himself from the place of

occurrence i.e. when the appellant started assaulting his

wife, he got scared and went away.

23. Another important feature is that, in his statement under

Section 161 Cr.P.C. recorded on 18.5.2004, PW-2 told the

police that he learnt the name of the appellant on being

told to him by PW-1 Meena. But, in Court, PW-2 claimed to

have personally known the appellant for the reason the

appellant also used to share the residence under the same

flyover which was the abode of PW-1 and his wife.

24. Meena does not live in a place which is remote from the

place of occurrence. Meena also resides under the same

flyover where Shanti Devi and her husband used to reside

and where Shanti Devi was murdered. Surely, the

investigating officer would have questioned all the

vagabonds residing under the flyover in question to inquire

about the death of Shanti Devi. Meena Devi surfacing as

an eye-witness on 18.5.2004 is indeed an interesting facet,

casting a doubt of her being an eye witness.

25. The totality of the circumstances noted hereinabove,

makes it highly suspicious whether the investigation has

been conducted correctly or that the appellant has been

picked up, being a vagabond, to be implicated in the

offence and a medal claimed by the investigating officer

having successfully solved a murder.

26. For the facts and circumstances noted hereinabove, it

cannot be said that the prosecution has been able to

present a creditworthy case. The appellant is entitled to

an acquittal.

27. The appeal is allowed. The impugned judgment and order

dated 29.3.2005 is set aside. The appellant is acquitted of

the charge of having murdered Shanti Devi. The sentence

imposed upon the appellant is also set aside.

28. The appellant is directed to be set free, if not required in

any other case.

29. Copy of this order be sent to the Superintendent, Central

Jail, Tihar for compliance.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

JULY 03, 2009 Dharmender