Delhi High Court
Subhash Chand vs State on 7 September, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 1st September, 2009
Judgment Delivered On: 7th September, 2009
+ CRL.A. 136/2001
SUBHASH CHAND ..... Appellant
Through: Mr. K.K.Sud, Sr. Adv. with
Mr. Kunal Malhotra, Adv.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Adv.
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.
1. The deceased Krishan Kumar @ Kukku, resident of
Municipal Number 653 Sector-37 Faridabad, Haryana, along
with his father Shri Ram Lal PW-16 used to run a tyre shop
under the name and style of M/s Ram Lal & Sons, at Shop
No.56-A Bankey Lal Market, Badarpur. At around 11.30 AM on
17.9.1990, Krishan Kumar went to deposit Rs.20,000/- in cash
at the Badarpur branch of Central Bank. When he did not
return till late evening, Ram Lal PW-16, father of Krishan
Kumar went to PS Badarpur, and at about 10.50 PM got
recorded DD No.16A Ex.PW-16/1, that Krishan Kumar aged 30
years, height 5‟4", of wheatish complexion wearing a sky blue
coloured shirt, a dark blue coloured pant and a pair of hawai
slippers had not returned ever since he went to Central Bank
at 11.30 AM to deposit cash.
2. Since Krishan Kumar could not be traced till the
next few days, at about 10.40 AM on 20.9.1990, Smt.Shobha
PW-22, wife of Krishan Kumar visited PS Badarpur, where, at
her instance, HC Naresh Kumar PW-1 registered FIR
No.274/1990 Ex.PW-1/A for an offence punishable under
Section 364 IPC, noting therein, that Krishan Kumar was seen
on the day he went missing in the company of appellant
Subhash Chand and another person on a scooter which was
being driven by Subhash Chand towards Delhi; and that
Subhash Chand owed some money to Krishan Kumar. Copy of
the FIR was handed over to SI Shanker Singh PW-25 who was
entrusted with the investigation.
3. Accompanied by Const.Raj Pal and Const.Anil
Kumar as also Ram Lal PW-16, Ramesh Kumar PW-15 and Anil
Kumar PW-8 (father and brothers-in-law of Krishan Kumar) who
had accompanied Smt.Shobha to the police station for
registration of the FIR, SI Shanker Singh went to Badarpur
Mathura Road and apprehended Subhash Chand from his shop.
He i.e. SI Shankar Singh interrogated Subhash Chand and
recorded his disclosure statement Ex.PW-8/A wherein Subhash
disclosed his involvement, as also the involvement of co-
accused Sukhbir and Sudesh, in the murder of Krishan Kumar.
It stands recorded in the disclosure statement that the
deceased was murdered in flat No.339A, Janta Flats, Sarita
Vihar where the body was still lying and that the key of the flat
was with co-accused Sukhbir. SI Shanker Singh seized a
scooter bearing registration No.DNW-0906 which was parked
in front of the shop of Subhash, as recorded in seizure memo
Ex.PW-8/E. Thereafter Subhash led SI Shanker Singh and
others to the house of Sukhbir and Sudesh where SI Shanker
Singh arrested them and interrogated them and recorded their
disclosure statements Ex.PW-15/1 and Ex.PW-15/2. Accused
Sukhbir handed over a key Ex.P-21 which was seized as
recorded in memo Ex.PW-8/D and accused Sudesh Kumari
handed over a bunch of six keys Ex.P-20 stating that they
belong to the deceased, which were seized as recorded in
memo Ex.PW-8/C. All the three co-accused led SI Shankar
Singh and as recorded in the pointing out memos Ex.PW-6/A,
Ex.PW-6/B and Ex.PW-6/C, pointed out Flat No. 339-A, Janta
Flats, Sarita Vihar, New Delhi.
4. Unfortunately, the arrest memos of the appellant as
also the co-accused have not been filed along with the charge
sheet and hence have not been proved. Had this been done,
an important evidence pertaining to the time the appellant and
the co-accused were arrested would have come on the judicial
record and as would be evident from further facts noted by us,
the same would have resolved a controversy as to whether the
dead body of the deceased was recovered by the police from
Flat No.339A, Janta Flats, Sarita Vihar, New Delhi at the
instance of the appellant and his co-accused or whether the
police recovered the same on independent information
available.
5. Independent of the afore-mentioned events, at 1.25
PM on 20.9.1990, Const.Gulshan PW-26, the duty officer in the
Police Control Room received information from an unknown
person about Flat No.339-A Janta Flats, Sarita Vihar being
locked from outside for the last three days and a foul smell
emanating therefrom. HC Hari Chand PW-21 and two other
constables, who were stationed in a PCR van in the area, were
the ones to whom said information was sent over the wireless
and they rushed to the spot. The information about the foul
smell was also forwarded to PS Badarpur, within jurisdiction
whereof the said Flat No.339-A fell, and at 1.30 PM DD No.4-A
was recorded at PS Badarpur that it was reported that foul
smell was emanating from the flat in question. Pursuant
thereto, SI Dinesh Singh and Const.Mehak Singh from PS
Badarpur also reached the spot.
6. Unfortunately, SI Dinesh Singh and Const.Mehak
Singh have also not been examined and thus through their
mouth we have no evidence on record as to what they did and
found when they reached the flat in question.
7. Thus, there is considerable confusion as to how
access was made by the police to Flat No.339A, Janta Flats,
Sarita Vihar, New Delhi. Whereas according to the testimony
of the HC Hari Chand PW-21, he along with SI Dinesh Singh
and Const.Mehak Singh who had also reached the flat and
were posted at PS Badarpur, broke open the wire gauze of the
house and found a dead body inside and thereafter SI Shankar
Singh also came there, SI Shankar Singh PW-25, Ram Lal PW-
16, Ramesh Kumar PW-15 and Anil Kumar PW-8 deposed that
when they reached the flat it was found locked and the door of
the flat was opened with the key Ex.P-21 which had been
handed over by co-accused Sukhbir and upon entering the flat,
the dead body of the deceased was found. It is relevant to
note that SI Shankar Singh PW-25, when cross examined on
the issue, admitted that HC Hari Chand PW-21, SI Dinesh and
Const.Mehak Singh were already present when they reached
the flat. Thus, the evidence probablizes that access was made
to the flat by the police personnel of PS Badarpur on getting
independent information of foul smell emanating from the flat.
We shall be discussing at the relevant stage whether there is a
possibility of the prosecution trying to falsely link the recovery
of the dead body at the instance of the accused and that the
body was discovered independently and since the appellant
was last stated to have been seen in the company of the
deceased and the key of the flat was with co-accused Sukhbir,
some manipulation has possibly been resorted to, to show the
facts as projected by the prosecution.
8. It appears that for security purposes an iron grill on
a frame was installed at the main door and hence HC Hari
Chand has deposed about breaking the wire mesh to gain
entry into the flat. He has used a lose phrase while describing
the iron grill door.
9. SI Shankar Singh summoned the crime team as well
as a photographer Const.Gajinder Singh PW-12 who took
photographs (positives whereof got washed away due to a
defect in the camera; negatives whereof are Ex.PW-12/1 to
Ex.PW-12/12) of the dead body. Another photographer HC
Vikram Singh PW-9 who had accompanied the crime team also
took photographs being Ex.PW-9/4 to Ex.PW-9/6; negatives
whereof are Ex.PW-9/1 to Ex.PW-9/3, of the dead body. SI
Shankar Singh seized the dead body and the gunny bag in
which the dead body was found, as recorded in the memo
Ex.PW-6/D. He lifted blood from the spot, blood control
concrete and a blood stained saree Ex.P-9 (allegedly belonging
to accused Sudesh) and a blood stained pyjama Ex.P-8
(allegedly belonging to accused Sukhbir) from the spot, as
recorded in memo Ex.PW-6/E and seized the same. One khes
Ex.P-15, one folding bed Ex.P-19, one pink coloured bed sheet
Ex.P-10, one towel Ex.P-16, one steel jug Ex.P-12, two glasses
Ex.P-13/1 and Ex.P-13/2, one kurta Ex.P-18, one mattress Ex.P-
11, one empty bottle of liquor Ex.P-14 and a pair of hawai
slippers Ex.P-17/1-2 lying at the spot were also seized as
recorded in memo Ex.PW-6/F. He prepared site plan Ex.PW-
25/3 of the flat.
10. Filling up the relevant forms for inquest
proceedings i.e. Ex.PW-25/1, SI Shankar Singh sent the body to
All India Institute of Medical Sciences for post-mortem
examination.
11. With the recovery of the dead body and the
circumstance of its recovery and the nature of injuries seen on
the body, it became apparent that Krishan Kumar was
murdered and therefore, SI Shankar Singh, got the FIR, earlier
registered only for the offence punishable under Section 364
IPC, amended and got added Sections 302/ 201/120B IPC to
the same.
12. On the next day, i.e. 21.9.1990, at around 12.40
PM, Dr.D.N.Bhardawaj PW-7 conducted the post-mortem on the
body of the deceased and prepared his report Ex.PW-7/A. He
opined that the cause of death was asphyxia as a result of
strangulation, and that the time of death was about 4 days
prior to the time of conduct of the post-mortem i.e. the
deceased probably died on 17.9.1990 at about 1.00 PM. After
the post-mortem examination, he handed over a vest Ex.P-1, a
pant Ex.P-2 and a shirt Ex.P-3 worn by the deceased and a
curtain cloth Ex.P-4, a bed sheet Ex.P-5, a nylon rope Ex.P-6
and a white string (narra) Ex.P-7 which were tied around the
ankles, hands and neck of the deceased as also a blood
sample of the deceased on a piece of gauze which were taken
possession of by SI Shankar Singh.
13. On 3.10.1990, Inspector Kulwant Sharma PW-27,
from the special staff, South District, was handed over the
investigation. He sent the articles seized during investigation
to CFSL Lodhi Road, New Delhi. As recorded in the FSL report
Ex.PW-28/3 human blood was detected on the saree, pyjama,
bed sheet, vest, shirt, synthetic and cotton strings; and human
blood of group „A‟ was detected on the pyjama and the bed
sheet seized from the spot. The blood group of the deceased
could not be detected as the gauze/cotton on which it was
lifted, on reaction gave no result.
14. On 7.10.1990 the investigation was transferred to
SI Om Prakash PW-28. He summoned a draftsman Inspector
Davinder Singh PW-5 who prepared site plan to scale Ex.PW-
5/A, of the flat at the instance of Ramesh Kumar PW-15. On
21.10.1990, Ram Lal PW-16 father of deceased handed over to
SI Om Prakash a diary Ex.PW-19/1 recording details of money
transactions of Krishan Kumar with Subhash Chand and others
and bearing the signatures of Subhash Chand on few pages; as
also a piece of paper Ex.PW-16/2 recording the details of
money transactions of Subhash Chand in relation to a Chit
Fund Committee, who seized the same as recorded in the
memo Ex.PW-16/3.
15. On 28.10.1990, Ram Prakash PW-11 handed over a
possession letter Ex.PW-11/C dated 20.11.1989 of the Flat No.
339-A, Janta Flats, Sarita Vihar issued in his favour by Delhi
Development Authority to SI Om Prakash who seized the same,
as recorded in memo Ex.PW-11/B. His statement under
Section 161 Cr.P.C. was recorded. Statement of one Ved
Prakash PW-6, brother of Ram Prakash and statement of
Baldev Raj PW-13, were recorded throwing light on flat
No.339A, Janta Flats, Sarita Vihar, New Delhi being let out to
the accused. Statement of Mahender Kumar PW-14, Uday
Singh PW-17, Munni Lal PW-23 and Uday Bhan PW-24
pertaining to the deceased being last seen in the company of
appellant Subhash and co-accused Sukhbir and his wife
Sudesh were recorded. Statements of a few other persons
which ultimately turned out to be inconsequential were also
recorded.
16. Appellant Subhash Chand and accused Sukhbir and
Sudesh were put to trial. The prosecution examined 28
witnesses in support of its case. Eschewing reference to the
formal and procedural witnesses, we note the deposition of
only those witnesses who are relevant for the purposes of
disposal of the instant appeal and whose testimony has
brought out the incriminating evidence against not only the
appellant, but also the two co accused who have been
acquitted.
17. We may note that as per the prosecution, the
appellant and Sukhbir were indebted to the deceased and the
motive for the crime was to do away with the deceased who
would then be in no position to demand money from them.
Sudesh was the wife of Sukhbir and even she lent a helping
hand. All three conspired to entice the deceased to flat
No.339A, Janta Flats, Sarita Vihar, New Delhi which was taken
on rent from Ved Prakash PW-6 through Baldev Raj PW-13 who
was a broker. On 17.9.1990 all co-accused were seen in the
company of the deceased by Mahender Kumar PW-14, Uday
Singh PW-17, Munni Lal PW-23 and Uday Bhan PW-24.
18. Mahender Kumar PW-14 and Munni Lal PW-23
turned hostile and did not support the case of the prosecution.
19. Ved Prakash PW-6 deposed that flat No.339-A, Janta
Flats, Sarita Vihar, New Delhi belonged to his brother Ram
Prakash PW-11 and in July 1990, it was given on rent by him to
Subhash and Sudesh through a neighbour Baldev Raj PW-13.
That when the flat was let out, Sudesh told him that the flat
was being taken on rent for her brother-in-law (Devar) who
would come after a month. He deposed that on one occasion,
when he visited the flat, he met Subhash and Sudesh there,
but when he went there again on a later occasion, he found
the flat locked. He deposed that on 26.8.1990 Baldev Raj PW-
13 had handed over to him a sum of Rs. 550/- stating that it
was given by Sudesh towards part rent, which was fixed at
Rs.600/- per month, pertaining to the month of August. That,
the balance sum of Rs.50/-, was paid by Sudesh on 17.9.1990
to Baldev Raj. On 20.9.1990 when he went to Okhla Bus depot
for duty, his colleagues informed him that a foul smell was
emanating from Flat No.339-A and that he should immediately
go to the said flat since something appeared to be wrong
there. When he reached the flat, police along with the three
accused namely Subhash, Sukhbir and Sudesh, were already
present there, investigating the matter.
20. Ram Prakash PW-11 deposed that the Flat No.339-
A, Janta Flats, Sarita Vihar was allotted to him by Delhi
Development Authority and that his brother Ved Prakash
looked after all the affairs of the said flat. That he had handed
over the possession slip Ex.PW-11/C of the said flat to the
police.
21. Baldev Raj PW-13 turned hostile and disclaimed
having been instrumental in letting out on rent Flat No.339A,
Janta Flats, Sarita Vihar, New Delhi to appellant Subhash and
Sudesh.
22. Uday Singh PW-17 deposed that he knew the
deceased Krishan Kumar as he used to get his tyres repaired
from the shop of the deceased. That he knew accused
Subhash Chand whose shop was adjoining the shop of the
deceased Krishan Kumar. That on 17.9.1990, at about 1.00 PM,
when he was driving a truck and was coming from Madan Pur
Khadar bridge, he saw accused Subhash Chand and the
deceased on a scooter driven by Subhash Chand at Sarita
Vihar Corner. Another person was also on the pillion seat but
he could not recognize him. He went to his village the day he
saw the deceased and another person on the pillion seat of the
scooter being driven by Subhash Chand and a month later
when he returned, he learnt about the murder of Krishan.
23. On being cross-examined, he admitted that the
road on which he claimed to have seen the deceased and the
accused Subhash on a motorcycle had a divider. He stated
that: 'the place where I parked the truck was at a distance of
about 100 yards from the shop of accused Subhash. It is
correct that when one goes from Sarita Vihar corner to the
place where I parked the truck, the shop of Kuku lies at the left
hand side on the way...... When I was coming driving my truck
in order to park the same at the owner's house, I saw that
accused Subhash, deceased Kukoo and one other person were
going on the scooter. It is correct that there is a divider at
Madanpur Khadar Road.‟ He also admitted that his statement
under Section 161 Cr.P.C. was recorded after about 5 or 6 days
of his returning to Delhi after a month of his having last seen
the deceased in the company of appellant Subhash.
24. It is apparent that as per PW-17 the truck being
driven by him and the scooter being driven by Subhash were
travelling in the opposite direction and the road was bisected
by a divider. It may also be noted that the statement of PW-17
under Section 161 Cr.P.C. was recorded on 22.10.1990 as per
the testimony of SI Om Prakash PW-28. We note that the said
statement is not on the judicial record.
25. Uday Bhan PW-24 deposed that he knows accused
Subhash Chand as he used to purchase electric appliances
from the shop of Subhash Chand at Bankey Market, Badarpur,
New Delhi. He also knew deceased Krishan Kumar as he was
the son of his maternal uncle. On 17.9.1990 he went to Sarita
Vihar in search for a shop to be taken on rent. At about 1.00
PM, he saw Subhash Chand, Krishan Kumar and another
person on a two wheeler scooter. The scooter driven by
Subhash was stopped near Janta Flats and Subhash, Krishan
and said third person along with a lady went inside the flat.
That accused Sukhbir was the third person on the scooter and
accused Sudesh was the lady accompanying Subhash, Krishan
and Sukhbir inside the flat. That he learnt about the murder of
Krishan after many days.
26. On being cross-examined he stated that he
attended the funeral ceremony of the deceased although he
did not attend the kriya ceremony. That he could not
remember the date on which the body was consigned to
flames. He learnt about the death of Krishan 3 or 4 days after
17.9.1990. We note that the statement of Uday Bhan under
Section 161 Cr.P.C. was firstly recorded on 6.10.1990 by
Insp.Kulwant Sharma PW-27 as deposed to by Insp.Kulwant
Sharma and his supplementary statement was recorded on
21.10.1990 as deposed to by SI Om Prakash PW-28.
27. Ram Lal PW-16 deposed that he conducts business
under the name and style M/s Ram Lal & Sons, at shop No.56-
A Bankey Lal Market, Badarpur, Mathura Road. The deceased
Krishan Kumar was his son and used to sit in the said shop
with him. On 17.9.1990, Krishan Kumar @ Kuku went to the
Badarpur Branch of Central Bank to deposit Rs.20,000/- in
cash, but did not return thereafter. At around 7:00 PM on the
same day, accompanied by accused Subhash Chand and his
father, he visited the police station where Subhash Chand and
his father went inside the room of the SHO while he i.e. Ram
Lal stood outside. At 10.30 PM he was given a copy of the DD
Entry No.16-A and the same bears his signatures. He deposed
that he again visited the police station on 18.9.1990, but the
SHO did not entertain him. On 19.9.1990 he again visited the
police station where SI Shanker Singh told him to get Munni Lal
(who allegedly had seen the deceased with Subhash Chand
when he went missing) to the police station. Finally on
20.9.1990, due to the intervention of the ACP, a report was
lodged. Thereafter, the police accompanied him to his shop.
Accused Subhash who was then present in his shop, which was
adjoining the shop of Ram Lal, was apprehended. Subhash
disclosed that he murdered Krishan Kumar and got the dead
body recovered from a flat in Sarita Vihar. Ram Lal deposed
that Subhash Chand had some money dealings with his son
Krishan Kumar and that the diary Ex.PW-19/1 containing the
record of financial dealings of his son was handed over by him
to the police. In all, Subhash Chand owed Rs. 12.50 lacs to
Krishan.
28. Ramesh Chand Chawla PW-19 deposed that he runs
an electronic appliances shop at Bankey Lal Market, Badarpur,
New Delhi. In 1989/1990 he floated a committee of which
deceased Krishan and Subhash were also members. He paid
Rs.65,000/- to Subhash on behalf of Krishan @ Kuku. Subhash
and Krishan had some business dealings inter se. He deposed
that the signatures on page 48 of diary Ex.PW-19/1 seem to be
those of Subhash.
29. Smt.Shobha PW-22 deposed that the deceased
Krishan Kumar was her husband and used to run a tyre shop
under the name of M/s Ram Lal & Sons at Badarpur. On
17.9.1990 at about 11.30 AM Krishan went to Central Bank of
India to deposit Rs. 20,000/-, but he did not return. Her father-
in-law and she made enquiries from various friends and
acquaintances of Krishan and learnt that Krishan was with
Subhash Chand. Subhash Chand resided in their
neighbourhood and had his shop adjacent to the shop of
Krishan Kumar. Subhash owed a huge sum of money to her
husband, but refused to repay the same. In the evening of
17.9.1990, her father-in-law was informed by someone that
Subhash Chand and another person took Krishan on a two
wheeler scooter towards Delhi. She lodged an FIR Ex.PW-1/A
with the police. About a month later, she identified a bunch of
six keys shown to her by the police as those belonging to the
deceased. That Krishan Kumar had advanced Rs.50,000/- to
accused Sukhbir, but Sukhbir refused to repay the same.
30. In cross-examination she stated that on 17.9.1990,
when her father-in-law informed her that Krishan was seen
with Subhash Chand, she suspected that Subhash had taken
Krishan along, with the intention of killing him. On being
questioned that since she suspected Subhash Chand of having
abducted Krishan with the intention to kill him, why did she not
express her apprehension to the police on the same day, she
replied that her father-in-law went to the police station but the
police officer refused to register any report against Subhash
and merely recorded a missing person‟s report.
31. HC Hari Chand PW-21 deposed that on 20.9.1990,
he was posted in the PCR Van patrolling in the area of Sarita
Vihar, when information regarding foul smell emanating from
flat No.339-A, Sarita Vihar was received by him. Accompanied
by two other constables, he reached the spot. SI Dinesh Singh
along with Const.Mehak Singh from PS Badarpur also reached
the spot and broke open the wire gauge of the main door of
the flat and on entering, found a dead body lying there. In the
meantime SI Shanker Singh of PS Badarpur also reached.
32. On being cross-examined he stated that after he
along with the other two constables reached the flat, they
informed PS Badarpur and pursuant thereto, within 15/20
minutes SI Dinesh and Const. Mehak Singh from PS Badarpur
also arrived.
33. SI Shanker Singh PW-25 deposed that on 20.9.1990,
at about 10.40 AM he was handed over investigation of this
case, and accompanied by Ct. Raj Pal, Ct. Anil Kumar, Ram Lal,
Ramesh Kumar and one more person, he went to the shop of
the accused Subhash Chand and apprehended him. He
recorded the disclosure statement Ex.PW-8/A of Subhash and
seized a two-wheeler scooter having registration number
DNW-0906 vide memo Ex.PW-8/E. Accused then led them to
Chandermal Colony, Badarpur and got accused Sukhbir and
Sudesh apprehended. He i.e. SI Shanker Singh recorded their
disclosure statements Ex.PW-15/1 and Ex.PW-15/2 and seized
a key handed over by Sukhbir vide memo Ex.PW-8/D and a
bunch of six keys handed by accused Sudesh vide memo
Ex.PW-8/C. He then arrested the three accused who led them
to Flat number 339-A Janta Flats, Sarita Vihar, New Delhi. The
lock of said flat was opened using the key recovered from
Sukhbir and inside, a dead body wrapped in a gunny bag was
found. The dead body was identified by Ram Lal, Ramesh
Kumar and Anil Kumar as that of Krishan Kumar. He
summoned the crime team and a photographer. He took
possession of the dead body and gunny bag vide memo
Ex.PW-6/D. He lifted blood, blood stained earth, earth control,
blood sample, a blood stained saree and a blood stained
pyjama from the spot and seized them vide memo Ex.PW-6/E.
He also seized a khes, a folding bed, a pink coloured bed
sheet, a towel, a steel jug, two glasses, a kurta, a mattress, an
empty bottle of liquor and a pair of hawai slippers lying at the
spot vide memo Ex.PW-6/F. He sent the body for post-mortem
examination; prepared site plan Ex.PW-25/3; recorded
statements of the witnesses present there.
34. On being cross-examined he admitted that when he
reached the flat on 20.9.1990, SI Dinesh Singh with other staff
was already present there and that he did not record their
statements. He denied that the FIR was ante-timed. He denied
that the dead body was recovered after the wire gauge of the
main door was broken open. He also denied that the dead
body had already been recovered when he recorded the
disclosure statement of Subhash.
35. Insp.Kulwant PW-27 deposed that the investigation
of the case was handed over to him on 3.10.1990 and that he
recorded the statements of Mahender Kumar and Ram Lal on
5.10.1990. That he recorded the statement of Uday Bhan on
6.10.1990.
36. SI Om Prakash PW-28 deposed that the
investigation was transferred to him on 7.10.1990. He got
prepared the site plan to scale. He recorded the statements of
Ram Lal PW-16, Uday Bhan PW-24 and Smt. Shobha PW-22. He
seized 13 papers and a diary, handed over to him by Ram Lal,
recording various money transactions of the deceased vide
memo Ex.PW-16/3. He recorded the statement of Uday Singh
PW-17 on 22.10.1990. A possession letter handed over to him
by Ram Prakash PW-11 of Flat number 339-A Janta Flats, Sarita
Vihar was also seized by him vide memo Ex.PW-11/B. He also
recorded the statement of HC Hari Chand PW-21.
37. Vide impugned judgment and order dated
25.1.2001, the learned Trial Court has acquitted accused
Sukhbir Singh and Sudesh Kumari of the charges framed
against them. In returning the said finding, the learned Judge
has discredited the testimony of Uday Bhan PW-24, who
deposed having seen the three accused, namely Subhash,
Sukhbir and Sudesh with the deceased in Sarita Vihar at
around 1.00 PM on 17.9.1990, for the reason, he being a
cousin of the deceased was expected to convey the said fact
to the family of the deceased as soon as he learnt about
Krishan being missing. His failure to do so evidenced an
unnatural conduct leading to a doubt whether at all he was
truthful. The motive against Sukhbir and Sudesh of Sukhbir
being indebted to the deceased and hence the two gaining by
killing the deceased, has been held as not established because
except for the bald testimony of Smt.Shobha PW-22 the wife of
the deceased, there was no documentary evidence to
establish that Sukhbir owed any money to the deceased.
Having rejected the evidence of last seen against both Sukhbir
and Sudesh and motive for them to murder the deceased, the
learned Judge held that the mere recovery of key of the flat
from accused Sukhbir where the dead body was recovered and
the recovery of a bunch of keys belonging to the deceased
from accused Sudesh, in absence of any other evidence, did
not sufficiently connect them to the offence and hence they
deserve the benefit of doubt.
38. The learned Judge has convicted appellant Subhash
Chand on the basis of circumstantial evidence. The
circumstances, noted by the learned Trial Judge, as forming a
complete chain pointing towards his guilt and ruling out the
innocence of Subhash Chand, are as follows:-
a) LAST SEEN EVIDENCE: The learned Trial Judge has
believed the testimony of Uday Singh PW-17 who
deposed of having seen accused Subhash with the
deceased and has noted the proximity of the time when
the deceased was last seen alive with Subhash at
around 1:00 PM on 17.9.1990 and the time of death as
opined in the post-mortem report as around 1.00 PM on
17.9.1990; as also the proximity of place where the
deceased was last seen with accused i.e. at Sarita Vihar
Corner and the place where dead body of deceased was
found i.e. in Flat No.339-A Janta Flats, Sarita Vihar.
b) MOTIVE: The fact that Subhash owed money to
deceased was held established from the diary Ex.PW-
19/1 and paper slip Ex.PW-16/2, maintained by the
deceased, recording therein the details of his money
transactions, i.e. advancing of loans and collection of
money. Some entries in the said diary proved that
deceased Krishan Kumar advanced money to Subhash
Chand on a number of occasions. At two places in the
diary, the signatures of Subhash Chand were also
appended, which were similar to his signatures on
11.9.2000 when he was examined under Section 313
Cr.P.C. Besides the said evidence, the learned Trial
Judge also placed reliance on the testimonies of Ram Lal
PW-16 and Ramesh Chand Chawla PW-19 in order to
establish the debt and hence the motive.
c) RECOVERY OF DEAD BODY: The dead body of Krishan
Kumar was recovered at the pointing out by Subhash
Chand, as recorded in memo Ex.PW-6/A.
d) PLACE OF RECOVERY OF DEAD BODY: The dead body of
Krishan Kumar was recovered from Flat No. 339-A, Janta
Flats, Sarita Vihar. The testimony of Ved Prakash PW-6
proved that the said flat was taken on rent by Subhash
and Sudesh in July 1990 i.e. two months prior to the
incident.
39. The first and the foremost submission urged during
argument in the appeal was that the appellant was not
charged with the offence punishable under Section 302 IPC.
He was charged with the offence of having entered into a
conspiracy with the co-accused to kill the deceased. The
charge of conspiracy having failed, learned counsel urged that
the appellant could not be convicted for the offence of murder
because he was not charged for having committed an offence
punishable under Section 302 IPC.
40. The argument is without any merit for the reason
three charges were framed against the appellant; the third
charge being as under:-
"That you all on 17.9.1990 at Sarita Vihar in
pursuance of the criminal conspiracy entered
amongst you all, you all committed the murder
of Krishan Kumar @ Kuku by intentionally
causing his death by strangulation and thereby
committed an offence punishable under Section
302 read with Section 120-B IPC and within the
cognizance of this Court."
41. Though in conjunction with others, the appellant
was aware that he was charged of committing acts pertaining
to the actual murder of the deceased. The charge sheet filed
against the accused clearly evidenced to the appellant that
according to the prosecution he along with Sukhbir had taken
the deceased to Flat No.339A, Janta Flats, Sarita Vihar, New
Delhi and this took place on 17.9.1990. The charge sheet also
evidenced to the appellant that according to the prosecution,
the appellant and co-accused Sudesh had taken the flat on
rent. The witnesses of last seen i.e. PW-17 and PW-24 spoke
about the role of the appellant. The witness to the letting of
the flat namely PW-6 spoke about the role of the appellant.
Counsel for the appellant extensively cross examined both
witnesses. In a somewhat similar situation where more than
one person were accused of the offence punishable under
Section 302/149 IPC and there was no charge for the offence
punishable under Section 302 IPC against any of the persons
accused and only one namely Ishwar Singh was convicted for
the offence punishable under Section 302 IPC, in the decision
reported as 1976 (4) SCC 355 Ishwar Singh Vs. State of UP, the
Supreme Court held that there was no infirmity in the
conviction for the reason notwithstanding the charge framed
for the offence punishable under Section 302/149 IPC and no
charge being framed against Ishwar Singh for the offence
punishable under Section 302 IPC, Ishwar Singh was fully
aware of the factual matrix alleged against him and had cross
examined the witnesses, who, while deposing, attributed
specific role to Ishwar Singh.
42. Learned senior counsel for appellant Subhash,
urged that the circumstance of recovery of dead body at the
instance of Subhash was wrongly held against the appellant
for the reason evidence probablized that a dead body being in
the flat had come in the knowledge of the police prior to the
appellant being apprehended and prior to the appellant being
shown as taking the investigating officer to the flat. Learned
senior counsel urged that such a prior knowledge of the police
rules out the discovery of any fact pursuant to the disclosure
of the accused and hence makes the evidence of recovery of
dead body inadmissible under Section 27 of Evidence Act.
43. With reference to the claim of Uday Singh PW-17 of
having seen the appellant and the deceased on a scooter on
17.9.1990, counsel urged that the admission of Uday Singh
that the road on which he saw the appellant and the deceased
was a double carriageway having a divider in between and
that his truck and the scooter were being driven in opposite
directions, makes it highly improbable that Uday Singh could
have recognized the driver and the pillion rider. The fact that
Uday Singh‟s statement under Section 161 Cr.P.C. was
recorded on 22.10.1990 i.e. after 1 month and 5 days of the
incident, as per the learned counsel, made suspect whether at
all Uday Singh was a truthful witness. Counsel urged that
under the circumstances it has to be held that Uday Singh, a
humble truck driver was planted by the prosecution.
44. Counsel urged that the diary Ex.PW-19/1 and the
piece of paper Ex.PW-16/2 purportedly in the hand of the
deceased have not been proved to be in the writing of the
deceased and the signatures of the appellant at a page in the
diary have not been proved to be the signatures of the
appellant.
45. Last submission urged was that meaningfully read,
testimony of Ved Prakash PW-6 was to the effect that tenancy
of Flat No.339A, Janta Flats, Sarita Vihar, New Delhi was for the
benefit of the devar of Sudesh who even paid the rent for the
same. That the key of the flat was recovered from the
possession of Sukhbir, husband of Sudesh, further established
that Sudesh had retained the key of the flat till her devar
came. That the dead body of the deceased was inside the flat
and the key of the lock thereof was with Sukhbir meant that
before the lock was affixed on the door of the flat, the body
was already inside. Counsel further urged that the keys
belonging to the deceased were recovered from Sudesh. It
was urged that there is no eye witness. Since the case of the
prosecution is based on circumstantial evidence, counsel
urged that with the acquittal of Sudesh and Sukhbir the
appellant would be entitled to a benefit of doubt as there is no
evidence that the appellant acted alone and by himself.
46. Pertaining to the diary Ex.PW-19/1 and the slip of
paper Ex.PW-16/2 we note that Ram Lal PW-16 the father of
the deceased who was managing the business along with the
deceased has deposed that he had personally obtained the
signatures of Subhash on the same. Thus, we reject the plea
of learned counsel that the signatures have not been proved
as those of Subhash.
47. Pertaining to the recovery of the dead body of the
deceased, having perused the record, we find that there is an
obvious ambiguity on the point, i.e. whether the dead body
was recovered on the basis of the disclosure of the appellant
and on the appellant and the co-accused jointly pointing out
the flat from where the dead body was recovered, or prior and
independent thereto. The testimony of HC Hari Chand PW-21
coupled with a reading of DD No.4-A suggests, that the dead
body was recovered by SI Dinesh, Const.Mehak Singh and HC
Hari Chand, at about 2.00 PM, when pursuant to the receipt of
information at police control room at 1.25 PM and recording of
DD No.4-A at PS Badarpur at 1.30 PM, about Flat No.339-A
emitting foul smell, the said police officials reached the flat
and after breaking open the wire gauge of the main door,
entered therein. Contrary to this, the testimonies of PW-8, PW-
15, PW-16 and PW-25 suggest that the dead body was
recovered at the instance of the appellant Subhash and co-
accused Sukhbir and Sudesh, when, they on being arrested by
SI Shanker Singh, led the police team to flat No.339-A, Janta
Flats, Sarita Vihar, and with a key handed over by Sukhbir got
the same unlocked.
48. In resolving the afore-mentioned ambiguity, we
face a handicap, as there is no evidence of the time when the
three accused were arrested; no arrest memos have been
placed on record. Had the time of arrest of the accused come
on record, one could have approximated the time when the
police team led by the three accused would have reached the
flat and if the same suggested a time prior to 1.30 PM i.e. prior
to SI Dinesh, Const.Mehak and HC Hari Chand reaching the
flat, one could have considered whether HC Hari Chand has
misstated the correct facts. In absence of such evidence, it
would be difficult to return a conclusive finding that the dead
body was got recovered pursuant to the disclosure statement
of the appellant. It is settled law that a fact already in the
knowledge of the police cannot be rediscovered. It is true that
SI Dinesh, Const.Mehak and HC Hari Chand proceeded to the
flat independent of SI Shankar Singh as per the case of the
prosecution, but in view of the discrepancies in the testimonies
of the witnesses whether the door of the flat was broken to
gain access or whether the key provided by co-accused
Sukhbir was used to open the lock, there is a possibility
emerging that SI Shankar Singh has prepared the pointing out
memos and the recovery memo of the body as if everything
happened pursuant to the disclosure statement of the
appellant. So closely and yet so divergently are the facts
stated by the witnesses of the prosecution that it renders it
virtually impossible to conclusively break the deadlock.
49. Clearly therefore, two divergent views are surfacing
from the evidence on record. The law is settled on the point:
that whenever two contrary views emerge, the one favourable
to the accused must be adopted. Besides, PW-8, PW-15 and
PW-16, being the brothers-in-law and the father of the
deceased, the possibility of their deposing falsely to
incriminate the accused cannot be ruled out. We may also
note that SI Shanker Singh, in his cross-examination, has
admitted that when he reached the said flat, SI Dinesh, HC
Hari Chand and Const.Mehak were already present there. In
light of the above, we give the benefit of the discrepancy to
Subhash and disregard the evidence of recovery of dead body
at his instance.
50. Challenge to Uday Singh PW-17 being a truthful
witness and there being a possibility of his being planted was
the submission made. Since the other witness of last seen,
namely Uday Bhan PW-24 has been disbelieved by the learned
Trial Judge, and for good reasons, it would be vital for the
prosecution as well as the defence as to what is the credibility
of Uday Singh PW-17. It has to be noted that Uday Singh is a
truck driver and could possibly be influenced by the police.
The fact that his statement under Section 161 Cr.P.C. was
recorded on 22.10.1990 i.e. after 1 month and 5 days of the
deceased being found missing and 1 month and 2 days on the
dead body of the deceased being recovered has also to be
kept in mind. Uday Singh has justified his volunteering
information to the police after more than 1 month by saying
that he went to his village, but there is no evidence to support
said assertion of Uday Singh. With this backdrop, was it
possible for Uday Singh to have seen the appellant as the
driver of the scooter and the deceased as the pillion rider
thereon with a third person sitting at the rear. The relevant
portions of the examination-in-chief and cross-examination of
Uday Singh PW-17 read as under:-
"On 17/9/1990, when I was coming driving my vehicle
from Madan Pur Khadar bridge at about 1:00 PM, Kuku
and accused Subhash present in the Court today had
met me at Sarita Vihra corner. They were on two
wheeler scooter.....
Cross-examination:-
The place where I parked the truck was at a distance
of about 100 yards from the shop of accused Subhash.
It is correct that when one goes from Sarita Vihar
corner to the place where I parked the truck, the shop
of Kuku lies at the left hand side on the way...... When
I was coming driving my truck in order to park the
same at the owner‟s house, I saw that accused
Subhash, deceased Kukoo and one other person were
going on the scooter. It is correct that there is a
divider at Madanpur Khadar Road."
51. On a perusal of the above extracted portions, we
can safely conclude that when PW-17 saw the deceased with
the appellant on a two-wheeler scooter at Sarita Vihar Corner,
he i.e. PW-17 was driving a truck from Sarita Vihar Corner in
the direction of the shop of Krishan, while Krishan and Subhash
were travelling in the opposite direction i.e. from the direction
of the shop of Krishan Kumar towards Sarita Vihar Corner.
Thus, the two vehicles were plying in the opposite directions
i.e. were approaching each other till the point they crossed
over. PW-17 has admitted that the road on which the vehicles
were plying had a divider in between. It is apparent that the
road is a double carriageway; the two carriageways being
separated by a divider. It is thus obvious, that when PW-17
saw the appellant and the deceased, they were on the other
carriageway. Unfortunately, we do not have the width of the
carriageways; but being residents of Delhi and having
travelled often in that part of the city, we take judicial notice of
the fact that wherever roads in Delhi have two separate
carriageways, the divider separating the carriageways have a
width between 4 feet to 6 feet. This obviously rules out the
possibility of PW-17 in his truck and the deceased and
appellant in their scooter, coming in a straight line of direction
against each other i.e. having a direct eye contact in the
straight line, thereby not enabling PW-17 to have anything
more but a fleeting glance of the passengers in the vehicles
coming from the opposite direction. On a momentary and a
fleeting glance of three persons on a scooter coming from the
opposite direction on the other side of the carriageway, the
witness himself driving a truck and in motion; the oncoming
scooter also being in motion, it is doubtful whether Uday Singh
could have recognized the driver as also the pillion rider on a
scooter. The cumulative effect of the circumstances under
which Uday Singh has surfaced, the topology of the road on
which he claims to have seen the deceased and the appellant
on a scooter and our reasoning in the preceding part of the
instant para compels us to hold that it would be unsafe to
accept the testimony of Uday Singh that he had seen the
appellant and the accused as claimed by him. In this
connection it is important to note that as per Smt.Shobha PW-
22, the wife of the deceased she learnt from friends of her
husband that her husband was in the company of Subhash.
Shobha has not disclosed the names of said persons. In any
case, Shobha has not said that Uday Singh had told her that he
had seen her husband in the company of Subhash on
17.9.1990. The possibility of the investigating officer filling in
the blanks and hence planting Uday Singh as a witness cannot
be ruled out.
52. Out of the 28 prosecution witnesses examined at
the trial, 4 were cited as having last seen the deceased with
the appellant. 2 of them, namely Mahender Kumar PW-14 and
Munni Lal PW-23 resiled from their statements recorded under
section 161 Cr.P.C. and were declared hostile. Out of the
remaining 2, as noted in para 37 above (where the reasoning
of the learned Trial Judge has been briefly noted), Uday Bhan
PW-24 was disbelieved by the Trial Judge. The reasoning given
was that being a cousin of the deceased, PW-24 is expected to
have learnt about Krishan being missing soon after the missing
persons report was lodged on 17.9.1990 and if he were a
genuine last seen witness, he ought to have conveyed the
incident of his having seen the deceased with Subhash to the
family of the deceased soon thereafter; his failure to do so
does not inspire confidence, and gives an impression of his
being a planted witness. Concurring with the reasoning given
by the learned Trial Judge, we also discard the testimony of
PW-24. Since we have found serious improbabilities in the
version of the other witness of last seen and the fact that he
has surfaced after 1 month and 5 days of the incident, we are
left with no evidence of the appellant being last seen in the
company of the deceased on 17.9.1990.
53. The remaining evidence against the appellant
would be the testimony of Ved Prakash PW-6 and proof of the
fact that the appellant owed money to the deceased i.e. had a
motive for the crime.
54. Let us note the testimony of Ved Prakash PW-6.
Relevant portions of his examination-in-chief are as under:-
"My brother‟s name is Ram Prakash. Flat No.339A,
Janta Flats, Sarita Vihar stands in my brother‟s name.
The said house was let out to accused Subhash and
Sudesh both present in Court in July, 1990. Said house
was given on rent to the said two persons through
Baldev Raj who resides in the neighbourhood. Sudesh
accused present in Court had represented at the time
of taking the house on rent that the said house is
being taken on rent for the residence of her Devar who
will come to Delhi after about month...... On 26.8.1990
Baldev Raj aforesaid gave me a sum of Rs.550/- saying
that said amount had been given to him by accused
Sudesh for being handed over to me as rent for the
month of August 1990. Agreed rent was Rs.600/- per
month. Later on, on 17.9.1990 accused Sudesh gave
the balance amount of Rs.50/- to Baldev Raj."
55. For unexplainable reasons, in India, witnesses
speak in a round-about manner. Unfortunately, the counsels
engaged at the trial do not help the witnesses to speak with
precision. The manner in which a question is posed to a
person, more often than not, elicits the response thereto.
Vague and directionless questions elicit vague replies. This
compels the Courts to give meaning to the deposition of
witnesses. Meaningfully read, the testimony of PW-6
establishes that the flat No.339A, Janta Flats, Sarita Vihar, New
Delhi was let out for the residents of the devar of Sudesh. She
had paid the rent for the flat. When the flat was let out,
Sudesh and Subhash had come to him. Thus, it was Sudesh
who had a concern with the flat i.e. the possessory rights
thereof and not the appellant. The fact that the key of the flat
was with Sukhbir, the husband of Sudesh also shows that the
possession of the flat was with Sudesh and Sukhbir. That the
bunch of keys of the deceased was with Sudesh also shows
that the deceased was with Sudesh, for how else would Sudesh
be in possession of the keys belonging to the deceased. Thus,
to single out the appellant on the basis of the testimony of PW-
6; noting that the acquittal of Sudesh and Sukhbir has attained
finality, would require the testimony of PW-6 to be read as if
the appellant was in possession of the flat where the dead
body of the deceased was found; a finding which cannot be
returned.
56. Motive as an incriminating evidence is premised on
the reasoning that because somebody has a motive it can be
presumed that he did the act. This line of reasoning is what is
known as presumptive reasoning. The reasoning is based on a
presumption and not a fact. Thus, by its very nature,
presumptive reasoning has always been treated as weak logic
compelling the Courts to use motive as link evidence and not
substantive evidence i.e. not to convict accused on basis of
motive being the sole incriminatory evidence.
57. We conclude by holding that the prosecution has
failed to list the chain of circumstances so complete that the
only inference which can be drawn is the guilt of the appellant.
Noting once again that the acquittal of Sudesh and Sukhbir has
attained finality we give the benefit of doubt to the appellant
and acquit him of the charge framed against him.
58. The appeal is allowed. The impugned judgment
and order dated 25.1.2001 is set aside.
59. The appellant is on bail. The bail bond and the
surety bonds furnished by him are discharged.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
September 07, 2009
mm
