Raj Kumar @Raju & Anr. vs State
2009 Latest Caselaw 4402 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                    Judgment Reserved on: 20th October, 2009
                    Judgment Delivered on: 30th October, 2009


+                           CRL.APPEAL NO.645/2001

       RAJ KUMAR @RAJU & ANR.            ...........Appellant
                Through: Ms.Ritu Gauba, Advocate.

                                     versus

       STATE                          ...........Respondent
                    Through:     Ms.Richa Kapoor, A.P.P.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?                              No.

     2. To be referred to the Reporter or not?                    No.

     3. Whether the judgment should be reported in the
        Digest?                                        No.


PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated

10.8.2001, the learned Trial Judge has convicted appellants Raj

Kumar and Jagpal Singh for the offences punishable under

Section 302/34 IPC and Section 411 IPC. For the offence

punishable under Section 302/34 IPC, they have been

sentenced to undergo imprisonment for life and pay a fine in

sum of Rs.2,000/-; in default of payment of fine to undergo RI

for two months. For the offence punishable under Section 411

IPC they have been sentenced to undergo RI for one year. We

note that the charge in the case was framed against three

accused; namely, Raj Nirmal Gautam, Raj Kumar and Jagpal for

the offences punishable under Sections 396/34 IPC and Section

412 IPC. Accused Raj Nirmal Gautam expired during the

pendency of the trial and the proceedings were abated against

him.

2. Process of law was set in motion, when at 2.30 PM

on 12.9.1991 Ct.Randhawa PW-24, the duty officer at PS Gokal

Puri received information that a murder had taken place at

Ambedkar Vihar, Tunda Nagar and made entry, being DD No.

10-A. Copy of DD No. 10-A was entrusted to SI Shoraj Singh

PW-17 for investigation. Accompanied by Ct.Jitender PW-27, he

went to Ambedkar Vihar and found a dead body lying on a cot

inside house bearing Municipal No. A-61, Ambedkar Vihar. He

learnt that the name of the deceased was Suman Lata. Within

sometime, Insp. Ram Singh Chauhan PW-29, SHO PS Gokalpuri

also reached the spot.

3. Insp. R.S. Chauhan met Raj Bala PW-9, sister of the

husband of the deceased. He recorded her statement Ex.PW-

9/A wherein she stated that when she returned from school at

around 12.30 noon, she found the dead body of her sister-in-

law, Suman, in the kitchen with a sutli (a thin jute cord) tied

around her neck. She raised an alarm, whereupon few

neighbours collected. With their help, she removed the body of

Suman outside the kitchen and cut the sutli tied around her

neck. She noticed that a mangal sutra, black pearl studded

ornament of silver, earrings and nose stud were missing from

the person of Suman. From their almirah, a necklace, two pairs

of anklets, two rings, silver jewelry of children to be worn in the

neck and hands, gold pendant and jewelry belonging to

Suman‟s brothers including three neck pieces, gold bangles

and four silver tagris were missing. Insp. R.S. Chauhan made

an endorsement Ex.PW-29/A under the statement of Raj Bala

and handed it over to Ct.Jitender PW-27 who took the same to

PS Gokal Puri where the duty officer, HC Billey Singh PW-2,

registered an FIR Ex.PW-2/A for the offences punishable under

Section 394/302 IPC.

4. At the spot, photographer Ct.Surender Kumar PW-3

was summoned, who took eight photographs Ex.PW-3/1 to

Ex.PW-3/8 of the spot; negatives whereof are Ex.PW-4/1 to

Ex.PW-4/8. Insp. R.S. Chauhan prepared rough site plan Ex.PW-

29/B of the spot. He seized pieces of bangles lying there as

recorded in seizure memo Ex.PW-5/C. He also seized the pieces

of sutli lying in the kitchen as recorded in memo Ex.PW-17/A.

After filling in the requisite inquest papers, Insp. R.S. Chauhan

sent the body to the mortuary of the Civil Hospital. In the

meantime, Ombir Singh PW-5 husband of deceased, Sarvesh

PW-21 niece of the deceased and Murari Lal PW-8 father of

deceased also reached the spot. Insp. R.S.Chauhan recorded

their statements under Section 161 Cr.P.C. From the

statement of Ombir, he learnt that since a month prior to the

incident, one Raj Nirmal Gautam was living as a tenant in one

of the rooms of the house and that on the night prior to the

incident i.e. on 11.9.1991, Raj Nirmal Gautam, his cousin Raj

Kumar (appellant No.1) and one more person stayed over for

the night in the room of Raj Nirmal. The three left early next

morning informing that they might not return the following

night; Raj Nirmal was a native of Parivrit Garh. From the

statement of Sarvesh, Insp. R.S.Chauhan learnt that at around

10.30 AM on the day of incident, when Sarvesh returned from

school to collect her tiffin, she saw the tenant Raj Nirmal

Gautam along with two more persons in his room. One of those

two persons was the same who had stayed over at their house

the previous night.

5. At around 12 Noon on 13.9.1991, Dr. L.K. Barua PW-

18 conducted the post-mortem of the dead body of deceased

Suman Lata and prepared the post-mortem report Ex.PW-18/A.

He opined that the cause of death was asphyxia due to

strangulation by ligature and that the time since death was 27

hours or 28 hours. After the post-mortem, Dr. L.K. Barua

handed over the clothes and the jewellery on the person of the

deceased to the police officials.

6. In light of the statements recorded under Section

161 Cr.P.C. of Sarvesh and Ombir, the finger of suspicion

obviously pointed towards Raj Nirmal Gautam and his unnamed

associates. Therefore, on 14.9.1991, accompanied by a team of

police officials Insp. R.S. Chauhan went in search of Raj Nirmal

Gautam to his house at Parikshit Garh, but could not trace him.

7. The police team went to village Niloha in Tehsil

Mohan, District Meerut, in search of accused Jagpal.

(Surprisingly, we are unable to understand how Jagpal became

a suspect in the case and we shall deal with the effect of the

same on the result of the appeal at a later stage.) Jagpal could

not be found in his house, but an ID card of his was found and

seized as recorded in seizure memo Ex.PW-23/A.

8. On 16.9.1991, in the presence of SI Ram Chander

PW-23 and Gajpal Bharti PW-14, Insp. R.S. Chauhan arrested

accused Raj Nirmal Gautam and appellant Raj Kumar from

Bhagwanpur Khera, while they were alighting from a bus. On

their personal search, various jewelry items consisting of two

gold collars, pair of gold bangles, two silver tagris, a pair of

silver anklets, two hath-phool, pair of bangles of a child, pair of

anklets of a child, one gold chain, two chains with pendants, a

hair pin set, two gold rings, gold tikka, two pairs of earrings,

two tagris of a child, a key ring, toe rings, etc. were recovered

and seized as recorded in seizure memos Ex.PW-14/C and

Ex.PW-14/D. It may be noted that the jewelry recovery from

the person of appellant Raj Kumar is recorded in the memo

Ex.PW-14/C and the one which is recovered from accused Raj

Nirmal Gautam is recorded in the memo Ex.PW-14/D. On

17.9.1991, they were produced in Court for their test

identification, however, both of them refused to participate

therein.

9. Appellant Jagpal surrendered before the concerned

Metropolitan Magistrate on 27.9.1991. On 2.10.1991, police

obtained his custody from the Court and Insp. R.S. Chauhan

interrogated him and recorded his disclosure statement Ex.PW-

25/A. In the said statement he disclosed his involvement in the

murder and theft and stated that he could lead the police team

to the person to whom he mortgaged his share of the loot i.e. a

silver tagri. In pursuance of his disclosure statement, Jagpal led

the police team to Tulsi Ram PW-20, who produced a silver

tagri which was taken into possession as recorded in the memo

Ex.PW-20/A.

10. The jewelry items so recovered from the possession

of the accused and at their instance, were put up for test

identification proceedings. As recorded in TIP proceedings

Ex.PW-4/C, Omvir PW-5 and Murari Lal PW-8 correctly identified

the case property except one or two items.

11. The accused were then put to trial. As noted earlier,

during the trial, Raj Nirmal Gautam expired and the

proceedings against him abated. The prosecution examined 29

witnesses. We eschew reference to the formal and procedural

witnesses and note the testimonies of only the relevant

witnesses as per whose testimony, the learned trial Judge has

returned a finding of guilt against the appellants.

12. Km. Sarvesh PW-21, deposed that on 12.9.1991, she

was staying at her maternal uncle‟s house i.e. A-61 Ambedkar

Vihar. At 7 AM that day, she left for school and returned at

around 10.15 AM to take lunch. At that time accused Raj Nirmal

Gautam @ Raju and appellants Jagpal and Raj Kumar were

present in the house and were playing cards. Her aunt Suman

gave her lunch and after that she again left for her school.

When she returned at 1 PM, she saw her aunt Suman lying in

the kitchen and her mausi Raj Bala and some neighbours

weeping.

13. Dhani Ram PW-12 deposed that eight years back, on

a day when he was near the house of Ombir and was on his

bicycle, appellants Raj Kumar and Jagpal and one more person

went passed him. They were in a perplexed condition and were

looking here and there. Their behaviour had made him suspect

some foul play on their part. When he reached close to Ombir‟s

house, he heard some cries and went inside. Thereafter, he

stayed in the house till the dead body was removed from there.

14. On being cross-examined, he stated that the

appellants were not arrested in his presence, but when on the

next day of the incident he went to the police station with

Ombir and his neighbours, he saw the appellants in police

custody. He stated that he knew Ombir for the past 2/3 years

as he had earlier done some masonry job in Ombir‟s house.

15. Raj Kumar PW-15 deposed that at about 11 AM on

12.9.1991, when he was at Johripur bus stand, three persons

including appellants Raj Kumar and Jagpal hired his TSR for

Bhagwanpur Khera. On the way, he overheard their

conversation wherein they were discussing whether they

should have killed „her‟ or not. He dropped them to their

destination and continued with his work. On the next day when

he read in the newspaper about the murder of a lady in

Ambedkar Nagar, he himself went to PS Gokal Puri and

informed about the three persons who hired his TSR. On being

cross-examined he stated that on 13.9.1991, he had disclosed

the description of the appellants to the police.

16. Ombir Singh PW-5 deposed that he resides at

Municipal No.A-61 Ambedkar Vihar with his wife, three children,

his sister Raj Bala and niece Sarvesh. Raj Nirmal Gautam @

Raju was a tenant in one of the two rooms in their house. At

around 9.00 PM on 11.9.1991, Raj Nirmal came to the house

along with appellant Raj Kumar and one more person named

Dharmender @ Babloo. He i.e. Ombir offered them tea and

thereafter joined them in a game of cards. After sometime he

went to his room and slept. Raj Nirmal, Raj Kumar and

Dharmender stayed for the night and left early next morning at

6.30 AM. While leaving, Raju told him that he was going to his

village and may not return for the night. At around 7.30 AM, Raj

Bala and the children left for school. He i.e. Ombir also left for

his office at around 7.35 AM. At around 2.30 PM, he received

telephone call at his office informing him that his wife had met

with an accident. He reached home by 3.30 PM and found the

dead body of his wife. His almirah was found lying unlocked

and all the goods therein lying scattered. A number of jewellery

items including two gold collars, tikka, bangles, a pair of silver

anklets, two silver Tagris, pendants and hair pins were also

found missing. He learnt that Raj Nirmal had taken rupees

hundred as loan from his wife on the day of the incident. This

made him suspect Raj Nirmal to be the culprit as Raj Nirmal

had taken loan from them on a number of previous occasions

as well.

17. Raj Bala PW-9 deposed that she was a teacher and

on 12.9.1991, along with her two nephews, she left for school

at 7.30 AM. At 12 Noon when the school closes, she sent her

nephews home with an Aaya. Since the teachers were required

to stay back to check answer sheets, she stayed back. After

sometime the aaya returned and informed her that Suman, i.e.

her bhabi, was not in the house. On learning this, she returned

home at around 12.30 PM and found her bhabhi Suman lying in

the kitchen with her face covered with a dupatta and a sutli

tied around her neck. She raised an alarm, on hearing which,

some ladies of the neighbourhood reached and helped her cut

the sutli from Suman‟s neck and move her body outside the

kitchen. One of them informed the police, who reached and

made enquiries. That on the night prior to the date of the

incident, appellant Raj Kumar, Raj Nirmal Gautam and one

more person had slept in their house.

18. On being cross-examined she stated that on the day

of the incident accused Raj Nirmal, Raj Kumar and the third

person left the house early morning before she left for school.

19. Smt. Javitri Devi PW-26 deposed that she was

working as an aaya in Gyan Sarovar Public School. Raj Bala was

a teacher in the same school and that one day, at about 12

Noon she had gone to drop the two nephews of Raj Bala, who

were also studying in the said school, to Gali No. 2 Ambedkar

Vihar. That time, Raj Bala‟s bhabi was not present in the house

and a girl child was lying in the staircase and weeping. She

rushed back to Raj Bala and narrated the scene to her.

20. Tulsi Ram PW-20 deposed that at about 7.45 AM on

the day of the incident when he was returning from

Bhagwanpur Khera, accused Jagpal met him and told him that

his i.e. Jagpal‟s mother was seriously ill and he needed money

for her treatment. Jagpal showed him a silver Tagri and said

that he wanted to mortgage it. Tulsi Ram refused to mortgage

it but kept the tagri and gave him rupees one thousand to be

returned after a week. Jagpal returned only after twenty days,

that too with the police. He i.e. PW-20 handed over the Tagri to

the police. In his cross-examination by the defence counsel he

stated that his father-in-law Tota Ram was involved in a murder

case at PS Gokal Puri. But he denied knowing the investigating

officer of the said case. He further denied the suggestion that

he was deposing falsely at the instance of the prosecution to

save his father-in-law.

21. Vide impugned judgment and order dated

10.8.2001, the learned Trial Judge has convicted the appellants

for the offences punishable under Sections 302/34/411 IPC. In

doing so, the Trial Judge has relied upon the recoveries of jewelry

effected pursuant to the arrest and disclosure statements of the

appellants. He has held that the recoveries being of a heavy

nature and the appellants having failed to explain their

possession of the same, coupled with the fact that recoveries

were effected shortly after the murder, leads to an inference that

the appellants committed the murder and then took away the

property. Support has also been derived from the testimonies of

Dhani Ram PW-12 and Raj Kumar PW-15. While PW-12 deposed of

seeing the appellants near the house of the deceased in a

perplexed state, PW-15 deposed of having driven them towards

Bhagwanpur Khera in his TSR and on the way overhearing their

conversation about a murder.

22. It was urged before the learned trial Judge has been

urged in the Appeal on behalf of both the appellants, that charge

in the case was framed for the offences punishable under

Sections 396/412/34 IPC, which Sections have no application to

the facts of the present case. That such framing of a wrong

charge has caused prejudice to the appellants and requires the

proceedings against them to be quashed. The plea has been

negated.

23. We concur with the view taken by the learned trial

Judge on the said issue. Section 396 IPC provides punishment for

the offence of commission of murder while committing dacoity;

Section 412 IPC provides punishment for the offence of receiving

or retaining property knowing the same to be the fruits of a

dacoity.

24. We are surprised at the charge being framed

pertaining to dacoity for the reason dacoity requires

participation of five or more persons. As per the charge-sheet

laid, only three persons were named as accused and it was not

stated therein that two or more unknown persons or persons

who had absconded had participated in the crime. Thus, there

was no occasion to frame the charge pertaining to murder

being committed during dacoity. But, the question is, whether

any prejudice has been caused to the accused.

25. Surely, the accused do not understand the nuances

of the law. The difference between robbery and dacoity is

technical with reference to the number of persons who

participate. In both, the common element is the commission of

the offence of theft with the use of violence. If the number of

persons is five or more, the same acts constitute dacoity and

when the number is less than five the offence would be of

robbery. Thus, in the instant case, the accused were fully

made aware that the substance of the allegation against them

was of using force while committing the theft and in the

process killing Suman Lata. They were also made aware that

the substance of the allegation against them was of being

found with stolen property. We may note that the witnesses of

the prosecution who deposed to the theft of the jewelry were

effectively and fully cross-examined by the accused as also the

witnesses relating to the recoveries. Similarly, the appellants

were made aware that the substance of the allegation against

them was of being found to be in possession of stolen property.

26. In the decision reported as 2003 IV AD (Cr.) 287

State vs. Mohd. Afzal, while dealing with a similar situation

pertaining to a defective charge, this Court observed:-

"Section 218 Cr.P.C. embodies the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. However, it cannot be read pedantically to provide escape route to an accused. Justice Vivian Bose in the judgment reported as reported as AIR 1956 SC 116 Willie (William) Slaney vs. State of M.P observed:-

"that in judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts ought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself."

The said enunciation of law has stood the ground till date. Section 215 of the Code states that no error either in stating the offence or the particulars required shall be regarded as material unless the accused was misled by the error or defect resulting in a failure of justice."

27. Having repelled the contention that the defective

charge has resulted in a prejudice to the appellants, we

proceed to deal with the merits of the case, with reference to

the evidence led at the trial.

28. We take up firstly the evidence against appellant

Jagpal. As held by the learned Trial Judge, the incriminating

evidence against Jagpal is his disclosure statement where

under it was disclosed that he had mortgaged a silver tagri

with Tulsi Ram PW-20 from whom said tagri was recovered and

the identification of the tagri by Omvir PW-5 and Murari Lal PW-

8 as also refusal by Jagpal to participate in the test

identification proceedings. Further, learned Trial Judge has

relied upon the testimony of Dhani Ram PW-12, as per whom

Rajkumar, Jagpal and one more person went past him near the

house of Omvir and all were in a perplexed condition. The

learned Trial Judge has also referred to the testimony of

Rajkumar PW-15, as per whom three persons, two of whom

were Rajkumar and Jagpal had hired his TSR from near Johripur

Bus Stand and on the way were discussing whether they should

have killed a lady or not. We may note that the learned Trial

Judge has not referred to the testimony of Km.Sarvesh PW-21

who has stated that on the day of the murder, the appellants

and Raj Nirmal Gautam were seen by her in the house.

29. Pertaining to the testimony of Rajkumar PW-15, the

TSR driver, we hold that his testimony does not inspire any

confidence for the reason it mitigates against human conduct

for three offenders to publicly discuss the commission of an

offence by them and that too a heinous and a serious crime of

murder. Qua the presence of appellant Jagpal in the house, we

note that as per Omvir PW-5 and Raj Bala PW-9, the three

persons who had stayed in the room in their house taken on

rent by Raj Nirmal Gautam were, Rajkumar, Dharmender and

Raj Nirmal Gautam. Thus, the testimony of Km.Sarvesh PW-21,

insofar she alleges that Jagpal was the third person seen by her

in the company of Rajkumar and Raj Nirmal Gautam has to be

taken with a pinch of salt or being the result of a deliberate

statement falsely made by her. Similarly, same taint visits the

testimony of Rajkumar PW-15.

30. Normal conduct of the accused who commit dacoity

would be to share the booty equally amongst them. Thus, the

recovery of all the stolen property from appellant Rajkumar and

Raj Nirmal Gautam, save and except a silver tagri which is

claimed to be the recovery at the instance of Jagpal assumes

considerable importance. Indeed, we find it strange that the

share of the booty of Jagpal was a single silver tagri of virtually

insignificant value. The gold articles recovered from the

person of appellant Rajkumar and the deceased accused Raj

Nirmal Gautam runs into lakhs. We note that the weight of the

gold jewellery recovered, as per the seizure memo from

appellant Rajkumar is about 325 grams and the jewellery

recovered from Raj Nirmal Gautam is about 600 grams.

31. Is Tulsi Ram PW-20, the person who claims

mortgage of the silver tagri with him by Jagpal, a trustworthy

witness? The answer is „No‟. Our reason for the answer is

manifold. Firstly, as per his testimony, he did not know Jagpal

and he was not a jeweler. How did he know that the tagri was

made of silver. No reasonable person would give Rs.1,000/- to

a stranger and keep as security a white metallic object without

ascertaining that the metallic object is silver and is valued at

least Rs.1,000/-. That apart, Tulsi Ram admitted that his

father-in-law was an accused in a murder case registered at PS

Gokulpuri i.e. the same police station where the instant FIR was

registered. Thus, there is every possibility of Tulsi Ram being

under the influence of the police.

32. That Jagpal refused to participate in the test

identification proceedings is a matter of fact and we find that

he has given no satisfactory explanation for refusing to do so.

33. But, finding a serious improbability in the quality of

the substantive evidence led against him, we are inclined to

give the benefit of doubt to appellant Jagpal who claims to be

falsely implicated. Though not urged before us, from the

record of the learned Trial Judge, we note that when he was

arrested, from the possession of Jagpal an identity card issued

by Kisan Inter College, Meerut was recovered as per which

Jagpal was a student of Class-IX in the year 1991. The innocent

faced photograph of Jagpal on the identity card, which is at

page No.399 of the Trial Court Record appears to show his

being a minor. We are simply noting the said fact for the

reason no issue of Jagpal being a minor was urged.

34. Pertaining to the evidence against Rajkumar we

note that the recovery of gold jewellery belonging to the

deceased weighing about 325 grams from him has not been

dented by learned counsel for the appellant who simply

submitted that it was not believable that a person would be

carrying so much jewellery with him.

35. Surely, the police could not have planted 325 grams

of gold jewellery on Rajkumar. We further note that in the

complaint Raj Bala has told about some of the jewellery articles

which were stolen, some of which were recovered from

Rajkumar when he was arrested. Rajkumar‟s presence along

with the deceased co-accused Raj Nirmal Gautam and one

Dharmender at the house where the crime was committed in

the previous evening and the morning of the crime has been

proved through the testimony of Omvir and Raj Bala.

36. Thus, we concur with the view taken by the learned

Trial Judge pertaining to the conviction of Rajkumar as he was

found in possession of a fairly substantial fruit of the crime

soon after the crime was committed and the presumption of his

being a participant in the crime of dacoity and murder can be

drawn.

37. We are surprised that the learned Trial Judge has

convicted Jagpal of the offence punishable under Section 411

IPC for the reason the evidence against him shows that he

participated in the robbery and not that he dishonestly

received stolen property. The evidence on record justifies his

conviction for the offence of robbery punishable under Section

392 IPC.

38. The appeal accordingly stands disposed of by

setting aside the impugned judgment and order dated

10.8.2001 convicting appellant Jagpal of the offence punishable

under Section 302/34 IPC and the offence punishable under

Section 411 IPC. He is acquitted of the charges framed against

him. The appeal is dismissed insofar it relates to appellant

Rajkumar for the offence of murder. The appeal filed by him

pertaining to his conviction for the offence punishable under

Section 411 IPC is allowed. But, he is convicted for the offence

punishable under Section 392 IPC, for which offence we punish

him to undergo rigorous imprisonment for one year.

39. Since Rajkumar and Jagpal are on bail, the bail bond

and surety bond furnished by Jagpal are discharged. The bail

bond and surety bond furnished by Rajkumar are cancelled

who is directed to surrender and suffer the remaining sentence.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE OCTOBER 30, 2009 Dharmender