Goverdhan @ Amit vs State
2009 Latest Caselaw 2060 Del

*                        IN THE HIGH COURT OF DELHI

%                               Judgment reserved on : 13.05.2009
                               Judgment delivered on: 15.05.2009

+                            CRL.A. 410/2008

        GOVERDHAN @ AMIT                   ...Appellant
            Through: Mr. Mukesh Jain, 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?


: PRADEEP NANDRAJOG, J.

1. The appellant was charged for the offence of having

murdered Gopal, his brother-in-law, at around 10:00 PM on

15.3.2000 in house No.B-474, Aman Vihar Delhi, as also for the

offence of causing destruction of evidence with the intention of

screening the offender. Appellant‟s sister Saroj, the wife of the

deceased, was charged for the offence of causing destruction

of evidence with the intention of screening the offender.

2. Vide impugned judgment and order dated

20.11.2004, the appellant and Saroj have been convicted for

having committed the respective offences they were charged

of. Probably, for the reason, Saroj has undergone the

sentence imposed, she has not filed any appeal against the

impugned order convicting her for the offence punishable

under Section 201/34 IPC. The appellant has filed the above

captioned appeal challenging the impugned order.

3. After noting the evidence on record, the learned

Trial Judge has discussed the evidence and concluded the

finding in paras 24 to 26 of the impugned decision, which read

as under:-

"24. The relationship between the deceased and the accused is not in dispute and the aspect of their living together as told by PW-1, is corroborated by the say of PW-4. Though PW-1 had stated that he did not see the deceased and the accused number 1 together on 15.3.2000, the evidence of PW-4 would go to show that deceased Gopal, was very much present in the house in the night of 15th day of 2000. There is nothing to disbelieve the say of PW-4 about the presence of accused No.1 and 2 with the deceased on the fateful day. Having now so held, it is to be seen that the dead body of Gopal, was recovered from the H.No.B-473, Aman Vihar, which is fully corroborated by the oral testimony of PW-12, 11 and 14. The contention of the Ld. Defence Cl. that the recovery of the dead body is doubtful for non- production of negative of the photographs taken by PW-13, does not sound logical in view of the oral testimony of the members of the investigation, who had removed the dead body

from the house. The second offence is thus established.

25. The case is on the pedestal of recoveries made from the spot i.e. the house of accused number 2 in this case at the instance of accused number 2. The bichhona which was wrapped over the dead body and the blood stains dari is another strong circumstance that can be connected to the incident. The arrest of Accused No.1 on 18.3.2000 would show that this accused was not available or absconded after 15.3.2000. This link and the factum of his non-availability after 15.3.2000, in the family of Accused No.2 where he was living is yet another strong circumstance and a link which cannot easily winked at. The subsequent recoveries consequent to the arrest of Accused No.1, namely, a Kulhari Ex.P-1, and the T-Shirt and Pajama, worn by the accused, connects another link to the annihilation of the said Gopal. It is to be also seen that the scientific evidence available on record namely, Ex.PR where the serology report confirms the presence of Group A human blood on Bed Sheet, Dari, Shirt, Pant and Underwear, Sweater, A Piece of cloth and also the same blood on the weapon Axe. The presence of the same blood group detected and confirmed by the Scientific examination as per the repot at Ex.PR, further confirms corroborating and establishing an unbroken chain of links to the dead body which was that of Gopal. It is to be also seen that the external injuries fond on the dead body and the evidence of PW-2 is to be reckoned. When viewed through the documentary and oral testimony of PW-2, it can be easily said that the commission of the murder of Gopal, was committed by the weapon at Ex.P1. Since, every link is connected making the entire chain of links of circumstances pointing to the culpability of this accused, I have no hesitation to hold that this accused was present on the fateful day and exhibit P1 Kulhari is used for inflicting the injuries found on deceased Gopal. The disappearance of accused number 1 after the incident would, further, establish that it is this accused alone and

none other else who had committed the said homicide of Gopal. It is on the record that when the incident happened the accused number 2 had gone out to fetch money for her husband. It is also established on record that when she returned the unexpected annihilation of Gopal, was a fiat accomplice. On coming to know, this ghastly incident, A-2 Saroj, had participated in concealing the dead body, further, had taken part to cause the disappearance of the evidence concerning the murder of Gopal. Under the abovenoted circumstances, it is needless to say that for the reasons discussed above, the prosecution was able to establish the guilt of the accused beyond reasonable doubt.

26. For the aforesaid reasons, I have no hesitation to hold out a conviction and, therefore, I hereby convict accused No.1 Goverdhan, for the offence U/s 302 of IPC r/w Section 201 of IPC and accused No.2 Saroj, for the offence U/s 201 of IPC in so far as the offence U/s 302/201 of IPC appearing against accused number 1."

4. Case of the prosecution was that the appellant was

residing in the house of his sister Saroj i.e. house No.B-473,

Aman Vihar. On 17.3.2000 an unknown person informed the

police that Gopal had been killed by his wife and his brother-in-

law and they had dumped his body in the septic tank of the

house. SI Raghubir Singh and Const.Jagjeet Singh reached the

house and on removing the slab covering the septic tank found

the dead body of a male (Gopal) aged about 40 years. The

body was seized and sent for post-mortem. Inspector Ranbir

Singh reached the spot and took over the investigation.

5. Saroj was interrogated at the spot and she made a

disclosure statement Ex.PW-4/A in which she stated that on

15.3.2000, around 10:00 PM, in a drunken condition, her

husband came home and demanded money from her. At that

time her brother Goverdhan came home. She left for the

bakery where her son Sunil works and when she returned she

saw her husband lying dead on the bed and her brother

Goverdhan besides him. Goverdhan said that her husband

used to trouble her and used to even trouble him by alleging

that he was having an illicit relation with their daughter and for

this reason he has removed Gopal from their path. Both i.e.

she and Goverdhan wrapped the body in a bichona and

dumped it in the gutter. On 16.3.2000 her brother left the

house. Since the walls of the room got stained with blood she

purchased limestone from the shop of Ganesh and

whitewashed the wall to conceal the blood stains.

6. The appellant was apprehended on 18.3.2000 and

as per the prosecution made a disclosure statement informing

that he can get recovered the axe with which he had inflicted

injuries on his brother-in-law. Thereafter, the appellant led the

police to the house of his sister and from under a table got

recovered an axe which was stained with blood.

7. The post-mortem of the deceased was conducted

by Dr.Komal Singh who noted three injuries in the occipital

region. The injuries were caused by a blunt object. Internal

injuries noted were the second and third right side rib being

fractured. The injuries on the head were opined to be fatal.

After the post-mortem the clothes of the deceased and his

blood sample on a gauze were handed over to the police.

8. After the appellant was arrested, a pajama and a T-

shirt were picked up from the room where the appellant used

to stay with his sister for the reason, as per the police, the

appellant stated that he was wearing the pajama and the T-

shirt when he committed the offence.

9. As per FSL report Ex.PR, the blood group of the

deceased was opined to be „A‟. No blood was detected on the

pajama and the T-shirt recovered from the room of the

appellant. On the axe which was recovered from under the

table, at the instance of the appellant, human blood of group

„A‟ was detected.

10. At the trial Sunil Kumar PW-4 the son of the

deceased deposed that the appellant used to stay in their

house and on 15.3.2000 was present in the house. He i.e.

Sunil Kumar, his brother and sister went to sleep in an

adjoining room at 10:00 PM and that he did not see the

appellant thereafter. He saw fresh whitewash on the wall of

the room where his father used to sleep and that he learnt on

17th that his father had been murdered. That on 16 th his

maternal grandmother had come from Jalandhar and in her

presence her mother confessed having murdered his father.

That the police interrogated his mother in his presence.

11. Sunil Kumar was declared hostile by the Court at

the request of the learned APP and on being cross examined

by the learned APP admitted that when his mother was

interrogated she told the police that the dead body of his

father was wrapped in a bichona and put inside the septic tank

and that his mother also told the police that she had

purchased limestone from the shop of Ganesh to whitewash

the blood stains on the wall.

12. Rajesh owner of Ganesh Paints who appeared as

PW-14 did not support the case of the prosecution i.e. did not

state that Saroj purchased limestone from his shop.

13. It may be noted that SI Raghubir Singh who had

initially gone to the house when information was received

about Gopal being murdered and body being dumped in the

septic tank was joined soon after by Inspector Ranbir Singh

PW-15 and the investigation at the spot was continued by

Inspector Ranbir Singh after the dead body was seized.

14. Ranbir Singh PW-15 deposed that he had noted

Saroj‟s disclosure statement Ex.PW-4/A. He also deposed:

"She revealed further that she came to know that the deceased was killed with the stroke of a kulhari (axe). She further disclosed that the dead body was wrapped with a bichona by her and accused Goverdhan. She further disclosed that the blood stained clothes and the kulhari, dari are recoverable and disclosed that they were concealed."

15. We need not note any further evidence for the

reason, on going through paras 24 to 26 of the impugned

decision it is apparent that the reasons given by the learned

Trial Judge to convict the appellant are: (i) the appellant was

present in the house on 15.3.2000 and absconded till he was

arrested on 18.3.2000. (ii) The recovery of the kulhari Ex.P-1

and the T-shirt and pajama worn by the appellant was another

link to connect the appellant with the crime and that the report

Ex.PR showed presence of human blood of group „A‟ on the

shirt, pant and the axe.

16. We are surprised at the reasoning of the learned

Trial Judge. The first and the fore most error, rather a blunder,

is the fact that the report Ex.PR categorically opines that no

blood was detected on the pajama and the T-shirt recovered at

the instance of the appellant from his room. It is a clear case

where the learned Trial Judge has just not bothered to go

through the report Ex.PR.

17. It is no doubt true that the axe Ex.P-1 has been

shown to be recovered at the instance of the appellant, but the

learned Trial Judge has failed to take note of the testimony of

Inspector Ranbir Singh PW-15 who has categorically stated

that on 17th itself, Saroj had informed him that the axe used to

murder her husband was hidden in the house. Further, the

recovery memo Ex.PW-4/F pertaining to the axe simply records

that it was picked up from under a table in the room. No

witness of the prosecution has deposed that the axe was

hidden. There is yet another piece of evidence ignored by the

learned Trial Judge. The rough site plan Ex.PW-15/A prepared

by Inspector Ranbir Singh PW-15 does not show any table in

any room; it be noted that the family of the deceased was

residing in two rooms. The said site plan shows two boxes

towards the eastern wall of the larger room. The site plan to

scale Ex.PW-3/A has inserted a table between the two boxes.

The spot of the table has been shown at serial No.3. There is

obviously a hiatus between the rough site plan and the site

plan to scale. The former which was prepared on 17 th itself

has to be given credence over the later, because by then, the

police had to show the existence of a table in the room.

18. Law pertaining to Section 27 of the Evidence Act is

clear. Only such statements made by an accused to the police

are admissible in evidence pursuant whereto a fact, hitherto

fore not in the knowledge of the police, is discovered.

19. The existence of the axe in the house was known to

the police on 17th itself. The appellant was arrested on 18th.

Further, the axe was recovered, as claimed by the police, not

hidden beneath or within any container in the house. Thus,

the recovery of the axe is meaningless.

20. The only incriminating evidence left is the conduct

of the appellant of absconding. The participative role of the

appellant as per the disclosure statement of Saroj is again no

evidence because Saroj herself is an accused and nothing told

by her to the police is admissible in evidence save and except

if it led to the discovery of a fact. In the instant case, no such

fact has been discovered.

21. Conduct of absconding by itself can never be

evidenced wherefrom chain of circumstances become

complete to infer the guilt of an accused.

22. Pertaining to the destruction of evidence, except for

the disclosure statement of Saroj and the testimony of PW-4,

there is no evidence to show that the appellant dumped the

body of the deceased. Qua the testimony of PW-4, it has to be

noted that pertaining to the destruction of evidence, he has

not deposed having seen anything. He has deposed that in his

presence his mother disclosed to the investigating officer that

the appellant and his mother had dumped the body of the

deceased in the septic tank. Obviously, said testimony is not

admissible evidence for the reason anything said by Saroj to

the police would be inadmissible in evidence as Saroj is an

accused. The narrative thereof has also to be inadmissible.

23. The appeal is allowed. The appellant is acquitted of

the charges framed against him.

24. The appellant is directed to be set free forthwith

unless required in custody in some other matter.

25. Copy of this order be sent to the Superintendent

Central Jail Tihar for compliance.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

May 15, 2009/mm