Satender vs State
2009 Latest Caselaw 2174 Del

R-5&6
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Decision : 20th May, 2009

+                           CRL.A.525/2001

       SATENDER                                  ..... Appellant
                      Through:   Mr.M.L.Yadav, Advocate.

                                 versus

       STATE                                    ..... Respondent
                      Through:   Ms.Richa Kapoor, APP.

                            CRL.A.687/2001

       PUSHPA                                    ..... Appellant
                      Through:   Mr.M.L.Yadav, Advocate.

                                 versus

       STATE                                    ..... Respondent
                      Through:   Ms.Richa Kapoor, APP.


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

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

       2. To be referred to the Reporter or not?       Yes

       3. Whether judgment should be reported in Digest? Yes

: PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

21.3.2001, the appellants have been convicted under Section

302/34 IPC; for having murdered Vijay @Chotu, aged between

3 - 4 years.

2. The conviction of the appellants has been based

with reference to the testimony of Nathu Ram PW-1, his wife

Chandrawati PW-2, Ramesh PW-7, Dr.N.K.Aggarwal, PW-11,

Narayan Singh PW-12 and Nirmal Sen PW-13.

3. The machinery of criminal law went into operation

when DD No.7A dated 18.6.1998 was recorded at PS

Bhajanpura at around 11:50 AM to the effect that police

control room had relayed the telephonic information received

at the police control room that foul smell was emanating from

a room of House No.E-37, Gali No.9, Sudamapuri Extension

Village.

4. SI Amar Singh PW-18 accompanied by Const.Ashok

Kumar left for the place along with a copy of DD entry and

proceeded to the room from where the foul smell was

emanating. The room was locked. After breaking the lock

they recovered the dead body of a male child aged 3 - 4 years

which was wrapped in a cloth mattress. The body was highly

decomposed. SI Amar Singh made an endorsement Ex.PW-

18/A on the copy of the DD entry and sent the same for FIR to

be registered.

5. The FIR Ex.PW-10/A was registered at the police

station.

6. The dead body was seized and sent to the mortuary

for post-mortem. On 23.6.1998, Dr.N.K.Aggarwal PW-11

conducte the post-mortem of the unknown male child aged 3-4

years and noted that the body was highly decomposed. Such

was the stage of decomposition of the body that no opinion

can be given as to how the unfortunate child died. Report

Ex.PW-11/A was penned by Dr.N.K.Aggarwal.

7. The only thing of relevance pertaining to the report

is the opinion that the time of death appeared to be a month

prior to the date of the autopsy.

8. Nathu Ram PW-1 is the owner of the house in

question wherefrom the dead body of a male child was seized

by the police on 18.6.1998. He deposed that on 24.4.1998 he

had rented a room in his building to a family consisting of a

husband, wife and a child and that he went to the room of the

tenant on 23.5.1998 to receive the rent. He was told by the

tenant that they would be vacating the room in 3 - 4 days'

time and the rent up to date should be adjusted against the

advance money. He identified the appellants as the couple

who had taken on rent the room in his building on 24.4.1998.

He went on to depose that the last time he saw the couple was

when he had gone to the tenanted room in the night of

23.5.1998 and thereafter did not see them. That on 24.5.1998

he saw the tenanted room locked from outside. He further

deposed that his wife was ill and on 1.6.1998 both i.e. he and

his wife left for Haridwar and returned on 5.6.1998. He noted

some foul smell inside the house. He checked his house,

found nothing offensive. As time passed by the bad smell got

increased and his senses indicated him that the smell is

emanating from the tenanted room and that is why he

informed the police control room of the said fact. That the

local police came and broke the lock of the room. From a

taand within the room, the skeleton of a child, wrapped in

quilt, which was completely decomposed, was recovered. That

the statement Ex.PW-1/A bearing his signatures at point 'A'

was recorded by the police and that after a few days the police

came to his house and showed him a photograph of appellant

Pushpa in which photograph an adult male and a child were

also shown. That the child in the photograph was the same

child who was residing with the appellants and in respect of

whom he was given to understand that he was the child of the

appellants.

9. We note that the witness i.e. PW-1 did not fully

support the case of the prosecution, as was thought of by the

learned APP. The witness was cross-examined and on being

cross-examined denied that he ever told the police that he saw

the appellants locking the rented room on 4.6.1998.

10. Chandrawati PW-2, the wife of PW-1, was examined

on 14.9.1999. She deposed that a year back, her husband had

let out a room in their house to a couple who stayed in the

room for a month with a child. That after a month the couple

left for some place and that after 15 - 20 days thereafter they

felt bad smell emanating from the room. The police was

summoned and from a taand in the room a skeleton, wrapped

in a clot or blanket was recovered. Chandrawati was also

declared hostile and cross-examined by the learned APP. In

her cross-examination she denied that she ever told the police

that she had seen the accused on 3.6.1998 or on 23.6.1998.

11. Ramesh PW-7 deposed that appellant Pushpa

@Suman was his wife and they were married about 14 years

back. Two girls and a boy were born to them. 3 - 4 years

back his wife left with the three children for her parental house

and did not returned to him thereafter.

12. Narayan Singh PW-12 deposed that the appellants

had stayed at his building as tenants for a month in the year

1998.

13. Nirmal Sen PW-13 deposed that in the year 1998 he

was working as a Manager with Gagandeep Lodge near Ratan

Talkies at Haridwar. On 17.6.1998, the appellants (duly

identified in the Court by the witness) came and resided in the

lodge for 3 days from 17th to 19th June 1998 and that an entr to

this effect was made in the relevant register maintained at the

lodge. That Ex.PW-13/A i.e. the extract of the register was

evidencing the entry at point 'A'.

14. When the incriminating circumstances were put to

the appellant Satender Chauhan he denied that he ever stayed

as a tenant much less with the co-accused and the child at the

house of Nathu Ram with effect from 24.4.1998. He denied

having left the tenanted premises on 23.5.1998. But, admitted

that he had stayed as a tenant under Narayan Singh for a

month in the year 1998. However, he stated that he did so

with his wife Kiran.

15. The learned Trial Judge has held that the evidence

aforesaid establishes that Pushpa @Suman had left her

matrimonial house along with her two daughters and a son, a

fact established by the testimony of PW-7. That the two had

resided as a tenant firstly under PW-12 and thereafter under

PW-1 and when they resided as husband and wife at the

tenanted premises under PW-1 they had with them a young

male child and that both of them scooted off from the

tenanted premises on 24.5.1998 after locking the same from

outside. None accessed the room till it was broken into by the

police on 18.6.1998 and the dead body of the child was

recovered. Said facts established by the testimony of PW-1

and PW-2.

16. To put it in a nutshell, the learned Trial Judge has

sustained the conviction on circumstantial evidence, being the

appellants residing with the child in the room where the dead

body of the child was recovered and that after 23.5.1998 the

room was not accessed by any outsider and that the child had

died about a month prior to the date of the post-mortem which

was conducted on 23.6.1998.

17. Learned counsel for the appellants urges that the

cross-examination by the learned APP of PW-1 and PW-2 shows

that the case of the prosecution was that the appellants had

left the tenanted premises on 3rd or 4th June 1998. Counsel

urges that the post-mortem report conclusively shows that the

child had died a month prior. Meaning thereby, that there is a

possibility of the appellants not being the offenders.

18. Faulty investigation or the fault of a prosecutor

cannot be a ground to throw out the case of the prosecution, if

otherwise, the same is established.

19. The post-mortem report itself is good evidence to

infer that the child had died about a month prior to the date

when the post-mortem was conducted. The post-mortem was

conducted on 23.6.1998. A month prior would approximate

23.5.1998. This is the date spoken of by Nathu Ram PW-1 in

his examination-in-chief as the date on which he last

interacted with the appellants.

20. The testimony of Nathu Ram and his wife shows

that the appellants had checked into the room tenanted to

them by Nathu Ram along with a male child. The testimony of

Nathu Ram establishes that the male child was the one who

was shown to him in the photograph.

21. Unfortunately, the photograph which was shown to

the witness has not been exhibited; yet another lapse by the

prosecution. But from the record we find that there is only one

photograph which shows the accused with a small male child.

The unexhibited photograph has been tagged between page

No.179 and 181 of the Trial Court Record.

22. The testimony of PW-13 corroborates the fact that

the appellants have been masquerading as husband and wife

and from 17th to 19th June 1998 had resided at Gagandeep

Lounge near Ratan Talkies, Haridwar. Though appellant

Satender has only admitted the fact that he stayed as a tenant

for a period of one moth in the year 1998 under Narayan Singh

and has claimed that the lady with whom he stayed as a

tenant was his wife Kiran, we note that Narayan Singh PW-12,

who deposed that Satender and Pushpa @Suman, present in

Court, had remained his tenant for a month in the year 1998,

was not subjected to any cross-examination. Thus, the

testimony of Narayan Singh that the appellants had stayed

under him as tenants has gone unchallenged.

23. It is obvious that Satender has partly accepted the

truth and the part of the truth denied by him is a patent lie

spoken by him.

24. The cumulative effect of the evidence of afore-

noted witnesses would be that Pushpa @Suman had left her

matrimonial house along with her two daughters and her son.

She and appellant Satender started living together and started

holding themselves out to be husband and wife. When they

took on rent the room from where the dead body of the male

child was recovered under the tenancy of Nathu Ram, the

young child was with them. They resided in the room till the

morning of 24.5.1998 and left. When they left, the room was

locked from outside. None disturbed the lock. None entered

the room. Thus, the appellants must explain the

circumstances under which the young child died. The conduct

of the appellants in leaving the dead body inside the room and

running away is also indicative of their guilt. Their further

conduct of not surrendering the tenancy and just not returning

to the tenanted premises is another nail in their coffin.

25. We concur with the conclusion arrived at by the

learned Trial Judge.

26. We find no merit in the appeals. The same are

dismissed.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

MAY 20, 2009 Dharmender