Phool Singh vs State
2009 Latest Caselaw 3483 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: September 1, 2009

+                          CRL.A. 412/2001

       PHOOL SINGH                                  ..... Appellant
                Through:         Ms.Padma Priya, Advocate

                      Versus

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

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

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

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

     3. Whether the judgment should be reported in the
        Digest?                                        Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

2.11.2000, the appellant has been convicted for having

abducted deceased Ram Kumar as also having murdered him.

2. On 9.10.1995, information was received at PS

Najafgarh that a dead body was lying at the cremation ground

New Roshanpura, which information was recorded in the daily

diary register vide DD No.3A. SI Ram Prakash accompanied by

Const.Satpal left for the cremation ground. Inspector Randhir

Singh also reached there and took into possession the dead

body of a young male person aged about 25 - 26 years. A

photographer was summoned. The photographs of the

deceased were taken. A shoe at a distance of about 7 steps

from the dead body as also the pant having a label „Unique

Tailors, Hardah, Midnapur‟ of the deceased were taken into

possession as recorded in the memos Ex.PW-11/A and Ex.PW-

11/B respectively. Noticing strangulation marks on the neck

and bruise marks on the body an opinion was formed that it

appears to be a case of murder and hence FIR Ex.PW-5/A was

got registered for the offence of murder. Inspector Randhir

Singh PW-19 got prepared the site plan Ex.PW-19/B pertaining

to the place where the dead body was recovered. Dog squad

and crime team were summoned but no clues or leads

surfaced through their intervention. The dead body was sent

for post-mortem vide inquest papers Ex.PW-19/D. Request

Ex.PW-8/B for post-mortem stated that the body should be

preserved for 72 hours. The post-mortem was conducted on

16.10.1995, and as per post-mortem report Ex.PW-8/A,

Dr.L.T.Ramani PW-8, opined that death was due to asphyxia

resulting from strangulation.

3. The only clue which the police had was the label of

„Unique Tailors, Hardah, Midnapur‟. The place happened to be

in West Bengal. On 27.10.1995, SI Ram Prakash and HC

Lakhsman PW-13 along with Const.Rajesh left for West Bengal

and took along with them the pant Ex.P-5 of the deceased as

also the photograph of the deceased. They could get no clues

and hence returned. Under circumstances, not very clear, but

apparently in furtherance of the search to fix the identity of

the dead body, on 11.10.1995 the police came into contact

with Sita Ram PW-4 who, on seeing the photograph of the

dead body and the pant of the deceased, immediately

recognized the same to be that of the deceased Ram Kumar.

He informed the investigating officer that on 8.10.1995, four

persons; namely, appellant Phool Singh along with Narpat,

Jabbar Singh and Bhagwandas had come to Teliwara, the place

where he i.e. Sita Ram was staying along with the deceased

Ram Kumar, and that all the four gave beating to Ram Kumar

and forcibly took him away in a TSR saying that they were

taking Ram Kumar to the police station. Since Ram Kumar did

not came back, he i.e. Sita Ram went to PS Bara Hindu Rao to

lodge a report but the police officials refused to note any

report lodged by him. He came back and went to his village

Budayun the next day and sent complaints to senior police

officers under registered post.

4. We note that the motive for the crime alleged by

the prosecution is that the deceased had developed illicit

relations with one Yashwanti wife of Shyam Sunder. Phool

Singh i.e. the appellant is stated to be the brother of

Yashwanti. It is apparent that the motive was to kill Ram

Kumar who had defiled the family honour of the appellant

Phool Singh.

5. The Regd.A.D. receipts, being four in number Ex.P-1

to Ex.P-4, handed over by Sita Ram to the investigating officer

Randhir Singh are mentioned in the seizure memo Ex.PW-4/E.

It bears the date 15.11.1995 and records as under:-

"Seizure Memo of Postal Receipts

In the presence of the witnesses herein below mentioned Sita Ram S/o Kesho Ram resident of village Hironi, District Budayun, U.P. has handed over postal receipts pertaining to the complaint sent by registered post to various authorities pertaining to the abduction of his brother Ram Kumar from Teliwara, Sadar Bazar, Delhi on 8.10.1995 as per which complaints Phool Singh, Narpat, Jabbar Singh and Bhagwandas had abducted his brother. The VP registered receipts bear Serial No.729 to 732 bearing the postal stamp Gannor Budayun dated 9.1.1995 in respect whereof Sita Ram says that the registries were got sent on 19.10.1995. The postal receipts have been produced by Sita Ram and have been seized vide said memo.

Produced by Sd/-

Randhir Singh Addl. SHO Sd/- PS Najafgarh Sita Ram 15.11.1995"

6. We may note at the outset that though recorded in

the seizure memo Ex.PW-4/E that the seizure is being effected

in the presence of the witnesses whose names have been

recorded in the memo but no person‟s name has been

recorded as a witness and none has signed as a witness in the

seizure memo.

7. Sita Ram PW-4 deposed that Yashwanti was

married to his cousin Shyam Sunder and the deceased Ram

Kumar, his brother i.e. the brother of Sita Ram, had developed

illicit relationship with Yashwanti and since July - August 1995

started residing with him. Village Panchayat tried to persuade

Yashwanti to live with Shyam Sunder but she declined.

Brothers of Yashwanti felt bad. His brother Ram Kumar and

Yashwanti left the village. Shyam Sunder and his brother

lodged report against his brother. Phool Singh and one Tejpal

Singh are real brothers. Narpat, Jabbar Singh and Bhagwandas

are cousin brothers of Yashwanti. That accused Phool Singh,

Narpat, Bhagwandas were rickshaw pullers. Jabbar Singh was

employed with a doctor to clean his clinic. Bhagwandas,

Narpat, Phool Singh and Jabbar came to the place where he

was living and started beating Ram Kumar. They took him in

an auto rickshaw saying that they were taking him i.e. Ram

Kumar to PS Bara Hindu Rao. When his brother did not return

after two hours he went to PS Bara Hindu Rao where the police

personnel told that his brother Ram Kumar had not been

brought to the police station. He tried to search for his brother

but could not do so and next day went to his village Hironi. He

narrated the incident to his family members. Complaints were

made to higher authorities by registered post.

8. On being cross-examined, he admitted that the

postal receipts Ex.P-1 to Ex.P-4 are all dated 9.1.1995.

9. This then is the solitary evidence against the

appellant. We note that Bhagwandas, Jabbar Singh and Narpat

have been declared as proclaimed offenders.

10. Holding that there was no reason to disbelieve Sita

Ram PW-4, the learned Trial Judge has held that from his

testimony it was apparent that the deceased was abducted by

the appellant (and the three persons declared proclaimed

offenders) on 8.10.1995 and the deceased was not seen

thereafter. The next day his dead body was found. The

motive for the crime held established by the learned Trial

Judge is vindication of the family honour.

11. The learned Trial Judge has held that the fact that

PW-4 had sent complaints to the police evidenced by the

postal receipts Ex.P-1 to Ex.P-4 show the truthfulness of his

version.

12. With reference to the date 9.1.1995 affixed on the

four receipts, the learned Trial Judge has held that it appears

to be a case of misprint in the stamp of the post office.

13. What was sent to the authorities under registered

post pertaining to the postal receipts Ex.P-1 to Ex.P-4 has not

seen the light of the day for the reason said four complaints

have not been produced at the trial. The four postal receipts

show that the docket pertaining to each receipt has been sent

to the D.I.G. Delhi Police, the Home Minister, S.P. (Police) Delhi

and SHO PS Bara Hindu Rao. The receipts bear the stamp of

the post office Gannor, Budayun and the date 9.1.1995 is

clearly embossed on the seal of the post office.

14. The seal of the post office is the metallic seal used

at post office and we take judicial notice of the fact that each

day the post office changes the date of the seal.

15. The issue has obviously been trivialized by the

learned Trial Judge to the disadvantage of the appellant.

16. By no stretch of imagination and under no

circumstances it can be held that 9.1.1995 appears to be a

chance of misprint in the stamp by the post office.

17. In this connection we note that during cross-

examination PW-4 clearly admitted that the receipts correctly

bear the date 9.1.1995.

18. Under the circumstances, it is apparent that the

communications sent to the police authorities and the Home

Ministry were sent from Budayun on 9.1.1995.

19. As per PW-4, the complaints related to the

deceased going missing. If this be so, it is apparent that the

deceased went missing on 9.1.1995.

20. From the post-mortem report of the deceased it is

apparent that the deceased had died a few days prior to the

post-mortem which we note was conducted after 5 days of the

dead body being found. Under no circumstances can said

dead body relate to a person who died in the month of January

1995.

21. Last seen evidence becomes lethal and

incriminating evidence, depending upon the circumstances of

a case with a proximate nexus between the time of last seen

and the time of death of the deceased as also the proximity of

the place where the deceased and the accused were last seen

alive and the place wherefrom the dead body was recovered,

coupled with the circumstance of last seen.

22. We are satisfied that the evidence on record has

been misinterpreted and misread to draw incorrect conclusions

by the learned Trial Judge, entitling the appellant to the benefit

of doubt and hence an acquittal. The postal receipts show that

complaints pertaining to the deceased being missing were

sent on 9.1.1995. The deceased was alive till October 1995 for

the post-mortem report shows that he died somewhere around

8.10.1995.

23. Qua motive, suffice would it be to state that

inference of guilt on motive is based on presumptive logic and

by its very nature, presumptive logic is always treated as weak

logic.

24. The appeal is allowed.

25. Impugned judgment and order dated 2.11.2000

convicting the appellant is set aside.

26. The appellant is acquitted from the charge of

having abducted the deceased and having murdered the

deceased.

27. The bail bond and surety bond furnished by the

appellant are discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

September 1, 2009 Dharmender