Satyawan vs State
2009 Latest Caselaw 2541 Del

*                 IN THE HIGH COURT OF DELHI

%                          Date of Decision : July 9, 2009.

+                 CRL. APPEAL No.34/2001


      SATYAWAN                              ...Appellant
              Through : Mr.M.L.Yadav, Amicus Curiae.

                            versus

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

                  CRL. APPEAL No.765/2000

      KAMESHWAR TIWARI                     ...Appellant
             Through : Mr.M.L.Yadav, Amicus Curiae.

                            versus

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

                  CRL. APPEAL No.770/2000

      SATISH KUMAR                           ...Appellant
               Through : Mr.M.L.Yadav, Advocate.

                            versus

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

                  CRL. APPEAL No.780/2000

      RAMESH KUMAR                          ...Appellant
              Through : Mr.M.L.Yadav, Amicus Curiae.

                            versus

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

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


Crl. APPEAL No.34/2001                            Page 1 of 15
 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. (Oral)

1. At the outset we must record our anguish at the

clumsy judgment written by the learned Trial Judge which is

challenged before us. Without any discussion or appreciation

of the evidence; after simply noting the evidence on record, a

cryptic finding has been returned that the prosecution has

successfully proved its case.

2. Four accused i.e. the appellants were sent for trial

pertaining to FIR No.218/1987 PS Adarsh Nagar, under Section

302/386/363/364/120-B IPC. While penning the judgment,

ignoring the fact that there are four accused and the law that

where there are more than one accused, incriminating

evidence held established against each accused needs to be

succinctly stated, we find that the learned Trial Judge has not

done so.

3. We get no clue for any reasons from the impugned

decision, and therefore, we are unable to follow the

conventional route to be followed in appeals, requiring the

Appellate Court to state as to what reasons have been

recorded by the learned Trial Judge, and if the Appellate Court

were to disagree with the said reasons, to bring out the point

of disagreement and thereafter give reasons in support of the

conclusions reached by the Appellate Court.

4. In a serious offence, where the minimum

punishment prescribed, is of imprisonment for life and even

sentence of death can be imposed, it is expected from the

learned Trial Judges to be vigilant and to record, with clarity,

the reasons for their decision.

5. It all commenced when Master Narender @Bonny, a

student of second standard in D.B.C. School, Gali Mandir Wali,

Village Azad Pur went missing from near his house at around

5:00 PM. The child had returned from school at 01:00 PM and

went out to play marbles with his friends. His parents

searched for him and could not locate the child. Hanuman

Singh, the father of the young child, went to the police station

in the night of the date of the incident which happened to be

1.12.1987 and reported that his child was missing. DD No.19-

A was recorded at 10:10 PM about the child being missing.

6. The next morning, the mother of the child,

Smt.Maya Devi, noted an envelope Ex.PW-3/F on top of a

television set in her house. The original address of the

addressee was scored off and the name of her husband was

written thereafter. On opening the same, she found a letter

Ex.PW-3/A addressed to her husband stating that their child

was in the custody of the sender of the letter and unless

ransom in sum of Rs.60,000/- was paid, there could be danger.

The place where ransom was to be delivered was disclosed,

being the bus stand at Naniwalee Bagh. It was directed that

the money be put inside a bag and be left at a cement

platform at the bus stand. It was cautioned that after the bag

is left at the spot directed, the person delivering the bag

should not look back.

7. The father of the child i.e. Hanuman Singh, dutifully

informed the police and handed over the ransom note and the

envelope to the investigating officer who seized the same vide

memo Ex.PW-3/B and immediately got registered an FIR for

the offence of kidnapping.

8. Relevant would it be to note that the envelope

contained a printing thereon which indicated that a marriage

invitation card was enclosed in the envelope and was got

printed by Desh Raj PW-12, whose daughter Suresh was to be

married on 2.12.1987.

9. Unfortunately for the prosecution, the raiding party

which took position near the bus stand at Naniwalee Bagh

where the ransom amount was to be delivered managed to

apprehend some boys at the bus stand, found itself in a blind

alley, for the reason, it appears that one out of the said boys

named Lokeshwar innocently picked up the bag. The

interrogation of the said boys revealed their innocence and the

investigation was left at a standstill.

10. Before the investigation could proceed further, on

4.12.1987, the dead body of Narender was noted by Suresh

PW-6. He reported to the police that he had seen the dead

body of a child near the house of one Khacheru in Azadpur.

The police seized the body which was identified by his parents

as that of Narender @Bonny. The body was sent for post-

mortem and as per post-mortem report Mark 'A' it was

recorded that the skull was battered with a blunt object; there

being as many as twelve injuries on the temple and the skull

area. The cause of death was shock due to injuries to the

brain. The blood stained clothes of the deceased and his blood

sample was seized by the investigating officer after the post

mortem was over.

11. The investigating officer and his team questioned

all the young boys of the locality who used to play on the

street. Success was met when Kale PW-4 a resident of House

No.247 Azadpur disclosed to the investigating officer that on

1.12.1987 he i.e. Kale, Narender @Bonny and the appellants

Satish Kumar and Satyawan had played marbles on the street.

Thereafter, they all went to the house of appellant Satish and

played marbles there as well. He i.e. Kale left. Appellants

Satish and Satyawan as also Narender stayed back.

12. The investigating officer summoned Satyawan on

7.12.1987 and interrogated him and recorded his statement

Ex.PW-1/A. Satyawan confessed and disclosed that he along

with Satish, Ramesh and Kameshwar Tiwari had conspired to

kidnap Narender and demand ransom. He disclosed that since

they learnt that the police was searching for the child i.e.

Narender, all of them decided to kill Narender and that

Narender was killed by hitting him repeatedly on the head with

a brick. He disclosed the place to be the house of the

grandmother of Satish. He volunteered to point out the exact

spot in the house.

13. Satish was apprehended thereafter on 7.12.1987

and even he admitted his involvement and disclosed the place

i.e. the house of his grandmother in which even he used to

reside, as the place where Narender was killed. He admitted

that the ransom note was written by him and disclosed that he

had torn the sheet from his notebook and that he could get the

notebook recovered. He also disclosed that he had used an

old pyjama to create a head pad when he removed the body of

Narender on his head, to be disposed of outside. He

volunteered to get recovered the said pyjama.

14. Thereafter, Satyawan and Satish led the police to

the house of the grandmother of Satish, where Satyawan

pointed out a tand (loft) where the deceased was killed and

from within the tand he produced a brick which was stained

with blood. The brick Ex.P-1 was seized vide seizure memo

Ex.PW-1/D. The walls of the tand were found to be stained

with blood. The investigating officer removed a portion of the

cement concrete of the wall containing blood and seized the

same as recorded in the seizure memo Ex.PW-1/E. Satish

pointed out the place from where a blood stained pyjama Ex.P-

2 was recovered. He also produced a notebook Ex.P-3 from

the house, which was seized. A ball pen Ex.P-4 stated to have

been used by Satish to write the ransom note was also

produced by him which was seized. The seizure of said articles

stands recorded in the seizure memo Ex.PW-1/C.

15. Appellants Ramesh and Kameshwar were

apprehended and confessed to have participated in the crime.

Relevant would it be to note that nothing was recovered

pursuant to their disclosure/confessional statements, and

hence no part thereof is admissible in evidence, and hence we

do not note the same.

16. While in custody, the investigation officer took

specimen writings sample of appellant Satish on eight sheets.

The same, along with the ransom note and the register Ex.P-2

produced by Satish from the house of his grandmother were

sent to a handwriting expert who gave an opinion, vide report

Ex.PW-16/G, to the effect, that the author of the specimen

writings S-1 to S-8 was the same who had authored the

writings A-1 to A-19 in the register Ex.P-2 as also was the same

who had authored the ransom note Ex.PW-3/A.

17. The clothes recovered from the dead body of the

child i.e. Narender, his blood sample as also the pyjama Ex.P-

2, the brick Ex.P-1 stained with blood as also the cement

concrete which was lifted from the tand and was stained with

blood were sent for serological examination and vide report

Ex.PW-16/F, it was opined that the blood group of the

deceased was 'B' and that human blood of group 'B' was

detected on the pyjama, the cement concrete lifted from the

tand and the brick.

18. At the trial, the investigating officer deposed to the

information received by him in the form of disclosure

statements of appellants Satyawan and Satish and proved the

recoveries pursuant thereto. The seizure of the brick, the

pyjama and cement concrete from the tand have not been

disputed. The report of the handwriting expert was proved.

The post-mortem report of the deceased was proved. Since no

submissions have been urged pertaining thereto the question

which would arise for consideration would be what is the

evidentiary value of said recoveries and what is the

incriminating nature thereof.

19. Unfortunately for the prosecution Kale PW-4 turned

hostile and disowned having told the police that he had last

seen the deceased in the company of the appellants.

20. Ram Avtar PW-1 deposed about his nephew i.e. son

of his brother being missing and his involvement in the

investigation. He proved the various recovery memos to which

he was a witness.

21. Hanuman Singh PW-2 proved the missing person

report lodged by him as also the various recoveries effected in

his presence. He identified the various objects which were

recovered. The mother of the unfortunate child, namely Maya

Devi PW-11, deposed that her son had left the house on

1.12.1987 at around 4:00 PM to play and that since he did not

return back, a missing person's complaint was lodged. She

deposed that the next morning i.e. on 2.12.1987, at around

6:00 AM she saw the envelope Ex.PW-3/F on the television set

which contained the letter Ex.PW-3/A.

22. At the outset it may be noted that there is just no

admissible evidence against appellant Kameshwar Tiwari. It

appears that the learned Trial Judge has held him guilty on the

basis of his confessional statement, qua which, at the trial, the

learned Trial Judge wrongly permitted the investigating officer

to extensively depose qua the same. Thus, appellant

Kameshwar Tiwari is entitled to be acquitted.

23. Qua appellant Ramesh, the only evidence is the

testimony of Desh Raj PW-12 and his son Balbir Singh PW-10,

who have deposed that the envelope Ex.PW-3/F containing the

name of Desh Raj Pradhan was printed along with many such

envelopes when the marriage of Suresh i.e. the daughter of

Desh Raj was solemnized and invitation cards were distributed

and that Hanuman Singh i.e. the father of the deceased was

not an invitee. Their evidence further establishes that an

invitation was extended to Shri Chand, father of appellant

Ramesh. Thus, the only incriminating evidence against

Ramesh is the fact that the envelope in question i.e. Ex.PW-3/F

was possibly addressed to his father. We may hasten to add

that the name and address of the addressee on Ex.PW-3/F has

been defaced and cannot be read, meaning thereby, there is

indirect evidence of the said envelope being the one in which

the invitation card was delivered to his father.

24. The other evidence against Ramesh is his

confessional statement recorded by the investigating officer

and wrongly permitted to be proved during the testimony of

the investigating officer. The same is inadmissible evidence.

Thus, the only evidence worthy of being considered is the

envelope Ex.PW-3/F.

25. In a case of circumstantial evidence, law requires

chain of circumstances to be complete wherefrom an inference

of guilt can be drawn and presumption of innocence ruled out.

26. Anybody could have used the envelope. The

marriage of the daughter of PW-12 was solemnized on

2.12.1987. The invitation card was obviously sent prior

thereto. People do throw away the envelopes containing

invitation cards on the day the invitation is received. Anybody

could have picked up the envelope and used the same. Thus,

the sole evidence that the envelope Ex.PW-3/F could possibly

be the one in which an invitation was extended to the father of

Ramesh is insufficient evidence wherefrom an inference of

guilt can be drawn against Ramesh.

27. We ignore the part of the report of the handwriting

expert wherein he has opined that the specimen writings S-1

to S-8 of Satish matched the writing on the ransom note

Ex.PW-3/A, for the reason, the investigating officer took the

specimen writings in violation of the provisions of the

Identification of Prisoners Act 1920 and also contrary to the

law that specimen writing for purposes of expert opinion can

be directed to be taken under orders of the Court where the

trial is pending as held authoritatively in various judicial

pronouncements being: AIR 1980 SC 791 State of U.P. vs.

Rambabu Mishra and 1994 (5) SCC 152 Sukhwinder Singh &

Ors. vs. State of Punjab.

28. But, we take into account the report of the

handwriting expert i.e. Ex.PW-16/G, insofar it opines that the

writing on the ransom note is in the same hand as are the

writings A-1 to A-19 in the register Ex.P-2 which was produced

by the appellant Suresh from within the house of his

grandmother. The register Ex.P-2 contains the name of Satish

on the cover. Having produced the register from within the

house of his grandmother in which even Satish was residing

and Satish not having disclaimed that somebody else was the

author of writings A-1 to A-19, the inevitable conclusion has to

be that Satish has authored the writings A-1 to A-19 and in this

manner it is highly incriminating evidence that the writing on

the ransom note Ex.PW-3/A is by the same person who has

penned the writings A-1 to A-19 i.e. Satish.

29. The second incriminating evidence against Satish is

the recovery of the pyjama Ex.P-2 at his instance and pursuant

to his disclosure statement, which pyjama was opined vide

report Ex.PW-16/F to be stained with human blood of the same

group as that of the deceased.

30. The third incriminating evidence against Satish is

the proof of the fact, through the testimony of Maya Devi PW-

11, that in the intervening night of 1st and 2nd December 1987,

Satish visited their house and enquired about her husband and

that the following morning at about 6:30 AM she saw the

envelope Ex.PW-3/F on top of the television set in her house

which contained the ransom note Ex.PW-3/A. The said

evidence establishes that Satish was the one who

surreptitiously managed to deliver the ransom note in the

house.

31. In this connection, it is important to note that the

deceased was a resident of village Azad Pur. Even Satish is a

resident of said village and the bonhomie amongst the

villagers is well known. They visit each other's house more

freely than the city bred. That the family of Narender was

troubled and was searching for him in the night, gave an

opportunity to Satish to act as a sympathizer, and enter the

house to query about the whereabouts of the father of

Narender and while so doing surreptitiously put the ransom

note on top of the television.

32. The fourth circumstance is the fact that the tand

where the crime was stated to have been committed and in

respect whereof it stands established that indeed, the crime

was committed in the tand, is the house belonging to the

grandmother of Satish and the fact that even Satish used to

reside with his grandmother. We shall be dealing with the

proof that the crime was committed in the tand while dealing

with circumstances against Satyawan.

33. The four said incriminating circumstances

unerringly point towards the guilt of Satish and are complete

circumstances wherefrom the chain is complete to infer the

guilt.

34. Qua appellant Satyawan, the incriminating evidence

is his disclosure statement pursuant whereto the police gained

knowledge for the first time about the tand in the house of the

grandmother of Satish. From within the tand, a blood stained

brick was recovered on the pointing out of Satyawan. The

walls of the tand were stained with blood and the cement

concrete sample seized and as recorded in the seizure memo

Ex.PW-1/E were found to be stained with human blood of the

same blood group as that of the deceased. It is settled law, as

held in the decision reported as 2005 (7) SCC 714

A.N.Venkatesh & Anr. vs. State of Karnataka, that where on

the pointing out of an accused to a place, not known to the

police, a dead body is recovered; said evidence is

incriminating evidence. Similarly, a dead body may not be

recovered, but a place may be discovered and from the place

an object may be recovered which is linked to the deceased or

the cause of his death. Said evidence is incriminating

evidence.

35. The fact that Satyawan knew the place where the

deceased was killed, which place has been proved to be the

place of the crime through the medium of recovery of a blood

stained brick from the said place and recovery of the blood of

the deceased from the said place; in the absence of any

explanation by Satyawan as to how he acquired knowledge of

the crime being committed at the said place, we hold that said

evidence is sufficient wherefrom the guilt of Satyawan can be

inferred.

36. All appeals stand disposed of by the following

directions:-

(i) Criminal Appeal No.780/2000 and Criminal Appeal

No.765/2000 filed by appellants Ramesh and

Kameshwar Tiwari are allowed. Their conviction as

held for the various offences by the learned Trial

Judge is set aside. They are acquitted of all charges

framed against them. Being on bail, their bail

bonds and surety bonds are discharged.

(ii) Criminal Appeal No.770/2000 and Criminal Appeal

No.34/2001 filed by appellants Satish and Satyawan

are dismissed. Being admitted to bail, their bail

bonds and surety bonds are cancelled. They are

directed to surrender and undergo the sentence

imposed upon them which, needless to state is to

undergo imprisonment for life.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE

July 9, 2009 dharmender