Raj Kumar @ Raju vs The State (G.N.C.T. Of Delhi)
2009 Latest Caselaw 4415 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment Delivered on: 30.10.2009

+                           CRL.A.No.979/2005

       RAJ KUMAR @ RAJU                                 ..... Appellant
                Through:            Mr.Rajesh Mahajan, Advocate.

                                    versus

       THE STATE (G.N.C.T. of Delhi)                   ..... Respondent

                      Through:      Ms. Richa Kapoor, Advocate
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. (ORAL)

1. Jagdish Prasad Aggarwal was admittedly murdered in the

intervening night of 31.12.2002 and 01.01.2003. The motive

was robbery, as cash and gold ornaments in the house of the

deceased were found missing.

2. Appellant Raj Kumar @ Raju and two other persons;

namely, Bhagwan Dass and Shiv Charan were accused of

committing the robbery and murdering Jagdish Prasad

Aggarwal.

3. When the Investigating Officer SI Narsi Lal PW-17

reached the house of the deceased in the morning of

01.01.2003 he recovered two mixer grinder jugs, Ex.P-1 and

Ex.P-2 from the house as recorded in the seizure memo Ex.PW-

1/A, on which HC Sher Pal Singh PW-7 lifted a chance

fingerprint from the jug Ex.P-1.

4. The appellant was arrested on 26.02.2003 and on the

same date a wrist watch was got recovered from him. His

disclosure statement Ex.PW-14/F was recorded as per which he

informed that a television belonging to the deceased had been

stolen by all three accused and that the same was taken by

Bhagwan Dass to his house and that later on he got it

transported to the house of Rajori at Faridabad. The television

set Ex.P-4 is shown to have been recovered at the instance of

the appellant from a house in Badarpur as recorded in the

seizure memo Ex.PW-20/A.

5. A test identification of the wrist watch got recovered by

the appellant and the television got recovered by the appellant

was conducted on 22.05.2003 before Shri.S.S.Rathi PW-6, then

functioning as a Metropolitan Magistrate, New Delhi.

Ramanand PW-3 was the witness at the TIP and as recorded in

the record of the proceedings Ex.PW-6/B, correctly identified

the wrist watch and the television.

6. There exists a report Ex.PW-11/A prepared by Shri

R.N.Rawat PW-11, Senior Fingerprint Expert, opining that the

sample fingerprints of the appellant matched the chance prints

developed on the jug Ex.P-1 which was seized at the spot

where the crime was committed.

7. Eschewing reference to the evidence against the co-

accused who have been acquitted and in respect of whom the

acquittal has attained finality, suffice would it be to record that

the incriminating evidence held proved by the learned trial

Judge against the appellant is that on the jug Ex.P-1, his

fingerprint being found evidence the presence of the appellant

in the house of the deceased. That the appellant was found in

possession of the wrist watch Ex.P-3 of the deceased and

pursuant to his disclosure statement got recovered the T.V.

Set Ex.P-4 evidenced the appellant being in possession of the

fruit of the crime. The twin, have been held to be a complete

chain of circumstances wherefrom the guilt of the appellant

can be inferred.

8. Pertaining to the evidence that on the jug Ex.P-1, the

chance fingerprint lifted was that of the appellant, we note

that the only evidence is the report Ex.PW-11/A and the

testimony of PW-11 that the sample fingerprint of the

appellant sent to him matched the fingerprint on the jug Ex.P-

1. But, we find no evidence through the testimony of any

prosecution witness that the sample fingerprint (S) of the

appellant were obtained after following the procedure

prescribed under the Identification of Prisoners Act, 1920.

9. As held in the decisions reported as AIR 1980 SC 791

State of UP Vs. Ram Babu Mishra and 1994 (5) SCC 152

Sukhvinder Singh Vs. State of Punjab where the provisions of

the Identification of Prisoners Act, 1920 are violated, specimen

samples pertaining to the fingerprints, handwriting etc. of an

accused and reports relatable thereto are inadmissible

evidence. We may additionally note that there is no evidence

on record that the jugs Ex.P-1 and P-2 were sealed at the spot

or soon thereafter. We note that the seizure memo Ex.PW-1/A

pertaining to the recovery of the two jugs does not record that

the jugs were sealed at the spot and the seals were handed

over by the Investigating Officer to the witness to the

recovery.

10. Thus, the incriminating evidence emanating from the

report Ex.PW-11/A is inadmissible in evidence and hence has

to be excluded while considering the circumstantial evidence

against the appellant.

11. The wrist watch Ex.P-3 has been claimed to be recovered

on 26.02.2003 i.e. the day when the appellant was arrested.

Surprisingly, evidenced by the Malkhana Register Ex.PW-23/A

duly proved by HC Surya Prakash PW-23, the Malkhana

Incharge, the wrist watch has been deposited in the Malkhana

on 20.05.2003 i.e. after 2 months and 25 days of the same

being recovered. Thus, the recovery of the wrist watch is

tainted.

12. Pertaining to the T.V. Set Ex.P-4, as noted above, as per

the disclosure statement of the appellant the same was in the

house of Rajori at Faridabad, but the recovery thereof has

been shown from a room in a house in Badarpur. No witness of

the prosecution has clarified as to how the disclosure

statement relates to one place and the recovery has been

effected from the other.

13. That apart, pertaining to the wrist watch and the

television, we find two serious infirmities in the case of the

prosecution. Firstly, neither Rajender Kumar PW-2 nor

Ramanand PW-3, the two sons of the deceased who were

examined as witnesses of the prosecution deposed that a

television and/or a wrist watch belonging to their father was

stolen. No doubt, PW-3 has stated that the wrist watch and

the T.V. Set belonged to his father. Well, is there not a

possibility that the deceased had sold them during his life

time?

14. The second infirmity lies in the weakness of the character

of evidence pertaining to the test identification of the two

items as recorded in the record of proceedings Ex.PW-6/B.

15. The said record of proceedings notes that the T.V. Set

was of BPL make and the wrist watch was of HMT make. As

recorded in Ex.PW-6/B, the T.V. Set was mixed up with three

television sets of the make Videocon, Salora and Phillips. The

wrist watch was mixed up with two watches of Titan make, a

wrist watch of Citizen make, a wrist watch of Calvin Klein make

and a wrist watch of Eden make. It is apparent that no

attempt was made to camouflage the T.V. Set in question and

the wrist watch in question. The two were mixed up with

ostensibly similar objects but with prominent difference

pertaining to the make of the two items, rendering worthless

the test identification conducted.

16. The cumulative reasons aforenoted compel us to give the

benefit of doubt to the appellant.

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

dated 23.09.2004 convicting the appellant of the offence of

murder and robbery is set aside. The order on conviction dated

27.09.2004 is also set aside. The appellant is acquitted of the

charge framed against him.

18. The appellant is in jail. He is directed to be set free if not

required in custody in any other proceedings.

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

Jail, Tihar for being made available to the appellant and for

compliance.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE October 30, 2009 sb