Durga Prasad vs State
2009 Latest Caselaw 3665 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 10th September, 2009.


+                             CRL.A.595/2001

       DURGA PRASAD                                  ..... Appellant
                             Through:     Ms. Charu Verma, Adv.

                             versus

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

+                             CRL.A.23/2002

       LALLA                                         ..... Appellant
                             Through:     Ms. Charu Verma, Adv.

                             versus

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

+                             CRL.A.730/2002

       JHURRAI                                       ..... Appellant
                             Through:     Ms. Charu Verma, Adv.

                             versus

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


       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?

Crl. A. Nos.595/2001,23/2002 & 730/2002                    Page 1 of 15
      2. To be referred to the Reporter or not?         Yes

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

INDERMEET KAUR, J. (ORAL)

1. Vide judgment and order dated 31.3.2001 all the three

accused namely Durga Prasad, Lalla and Jhurrai have been

convicted for the offence under Sections 302/404/34 of the IPC.

They have been sentenced to undergo imprisonment for life and a

fine of Rs.5000/-, in default of payment of fine SI for two years for

the offence under Section 302 of the IPC; for the offence under

Section 404 of the IPC they have been sentenced to undergo RI for

two years and a fine of Rs.1000/-, in default of payment of fine SI for

six months.

2. On 19.5.1997 D.D.No.69B Ex.PW-15A was recorded in

Police Station Sultanpuri that a foul smell was emanating from

house no.S-2/14, Pooth Rithala, Budh Vihar. SI Sita Ram PW-14

along with Const.Rajbir reached the spot where they found an iron

gate on the house. The house was locked. On entry they found two

dead bodies lying there. The photographer HC Sajjan Kumar PW-

16 took ten photographs Exs.PW-16/A1 to A10 of the scene. The

dead bodies were of two young male persons lying in a supine

position with their intestine protruding out. Rukka was sent for

registration of the FIR under Section 302 of the IPC. Investigation

was handed over to Inspector Rajinder Singh PW-20.

3. The dead bodies were identified by Surinder PW-5 as

that of his deceased brother namely Mahender Kumar and Swarn

Kumar. The owner of the house was his elder brother Ram Samaru

PW-3 who was out of station; he returned back on 22.5.1997 when

he was examined by the Investigating Officer. Statements of other

witnesses i.e. Ram Kishore PW-1 and Jitender PW-6 were recorded,

which were to the effect that they had last seen the accused

persons together in the house where the deceased i.e. Mahender

and Swarn were living being the house of their elder brother.

4. The post mortem on the dead bodies was conducted by

Dr.K.Goyal PW-7 who had opined the cause of death as asphyxia as

a result of choking; time since death was reported to be six days

which would roughly relate back to 16.5.1997.

5. Accused Durga Prasad and Lala Ram were arrested on

23.5.1997 from House No.T-2008, First Floor, Kotla Mubarakpur.

Their personal search was conducted vide memos Ex.PW-3/A and

Ex.PW-3/B. Accused Durga Prasad made a disclosure statement

Ex.PW-3/C. The disclosure statement of accused Lala Ram is Ex.PW-

3/D. Pursuant to their disclosure statements both the accused

persons led the police party to the Nehru Park, D.D.A. where under

a stone in the park a plastic 'thailee' containing Rs.4750/-, a silver

clip, a silver 'dastband', a pair of silver ear tops, wrist watch and a

leaf of a cheque signed by Ram Samaru in the name of Mahender,

was retrieved. These articles were taken into possession vide memo

Ex.PW-3/E. The place of occurrence was pointed vide memo Ex.PW-

3/J.

6. On 25.5.1997 accused Jhurrai was arrested from the

same place i.e. the House No.T-2008, First Floor, Kotla Mubarakpur.

His personal search was conducted vide memo Ex.PW-3/L. His

disclosure statement Ex.PW-3/B was recorded. The clothes of the

accused which included his pant, shirt and underwear were seized

and taken into possession vide memo Ex.PW-3/K. He disclosed that

he had received injury and got himself medically treated. His

medical papers were taken into possession vide memo Ex.PW-20/X.

7. On the aforesaid evidence, the trial Judge had convicted

the accused persons. The testimony of PW-1, PW-6 coupled with

the version of PW-3 had been taken into account by the trial Judge

to hold that the accused persons and the deceased were last seen

in the company of one another on the late evening of 17.5.1997

which was the date of the incident i.e. the murder of Mahender and

Swarn. The recovery of cash of Rs.4750/- as also the silver

ornaments and a watch pursuant to the disclosure statement of

accused Durga Prasad and Lala Ram have been held to be the

second incriminating circumstance against the accused persons,

besides the motive of having committed the offence for the purpose

of looting the house of Ram Samaru. The absence of the accused

from their house in the intervening night of 16-17.5.1997 was also

considered by the trial Court; these cumulative circumstances read

together had sustained their conviction.

8. On behalf of the accused, it has been argued that the

circumstance of last seen which has been heavily relied upon by the

prosecution is washed out by the version of PW-1; his testimony on

oath in Court is a material improvement qua his earlier statement

which he had given to the Investigating Officer wherein he had

stated that he had not seen and nor could he recognize the persons

who had met the deceased or had gone to their house on

17.5.1997. It is submitted that this version of PW-1 on oath in Court

being substantially improved, no reliance can be placed upon such a

tainted version. The second witness of the circumstance of last seen

is PW-6 whose statement was recorded for the first time by the

Investigating Officer on 25.5.1997 i.e. after the arrest of the

accused for which there is no explanation and in the absence of any

satisfactory reason having been given by the Investigating Officer

for this delay no credence can be attached to the version of PW-6

either. It is further submitted that the trial Court had erred in

relying upon the version of PW-3 as a circumstance of last seen as,

even as per PW-3 he had been told by PW-1 and PW-6 that on

17.5.1997 they had seen the accused persons in his house; this

being a 'hear-say', the same has to be discarded. The recovery of

the cash, the silver ornaments and the wrist watch were admittedly

from an open park i.e. a DDA Park which is a place open and

accessible to all and sundry; recovery is also belied. Lastly, it is

submitted that the accused persons had admittedly been arrested

from their own house and had they been guilty, normal course of

conduct would have been for them to flee from the place and not

remain stationed there, ready for their arrest. For all the

aforestated reasons benefit of doubt has accrued in favour of the

accused; they are entitled to an acquittal.

9. We have perused the record and heard the submissions.

10. We note that the trial Judge has relied upon the versions

of PW-1 and PW-6 to establish the circumstance of the accused and

the deceased persons having been last seen together. Ram Kishore

has been examined as PW-1. He has on oath deposed that Ram

Samaru resides in his neighbourhood. Mahender and Swarn are his

brothers. On 16.5.1997 at about 4.30 PM he was present near the

tea shop; he met Ram Samaru and his family members; he told him

that he was going to his village for the 'Mundan' of his son; he met

Mahender also on the same day. On 17.5.1997 at about 9.00-915

PM Mahender told him that three persons of his village named Lalla,

Jhurrai and Durga Prasad had come to his house; after sometime

PW-1 went to the house of Mahender; he saw all the aforesaid

persons having liquor in the company of Mahender. On the

following day at about 7.00AM when he went outside to urinate he

found that the house of Ram Samaru was locked from outside. On

19.5.1997 he was told by some children that a foul smell was

coming out from the house of Ram Samaru; someone telephoned

the police; dead bodies found inside the house were identified by

PW-1 as that of Mahender and Swarn who were the brothers of Ram

Samaru. In his cross-examination this witness has been confronted

with his earlier version which he had given to the Investigating

Officer i.e. his statement recorded under Section 161 Cr.P.C. Ex.DA.

There is no mention in this version that the accused persons had

gone to the house of Mahender or that he i.e. Ram Kishore had met

them there; it, in fact, categorically recites that he had not seen the

guests of Mahender and he cannot say who they were. It is also

relevant to note that PW-1 has not whispered a word about the

presence of Swarn.

11. From this version of PW-1, it is clear that PW-1 has not

come to the court with clean hands and he has made material and

substantial improvements qua his first version which he had given

to the Investigating Officer; in Ex.DA, he had categorically stated

that the guests of Mahender were not known to him; he had not met

them and he could not recognize them. He has given a totally

changed and different version, on oath, in Court which being a core

improvement goes to the root of the matter. We are constrained to

hold that the PW-1 is not a truthful witness and no reliance can be

placed upon this doctored version. His testimony is discarded.

12. The second witness examined by the prosecution to

establish the circumstance of the accused and the deceased having

been last seen in the company of one another is Jitender PW-6.

Before adverting to his version, on oath, in Court, we would like to

note that his statement under Section 161 Cr. P.C. was recorded on

25.5.1997; the dead bodies had been recovered on 19.5.1997; they

had been duly identified on the same day; PW-6 is also a neighbour

being a resident of A-16, Budh Vihar. On oath PW-6 has stated that

on 16.5.1997 or 17.5.1997, exact date he could not remember, he

returned back to his house at 9.00-10.00PM; he saw a light

burning in the house of Ram Samaru; he rang the bell where he met

Mahender who invited him inside. His other brother Swarn was also

there. One Jhurrai who earlier used to live with Ram Samaru was

also present there with two other persons and those two other

persons were Durga Prasad and Lalla. He was invited to take food

but he declined the invitation. He returned back to his house. In his

cross-examination he has stated that when the police had come a

lot of people of the locality had collected there; on 17.5.1997 the

whole locality was interrogated including himself i.e. PW-6; he was

interrogated for about 15-20 minutes at about 8.00-9.00PM. He was

again interrogated two or three times and thereafter after about

one month he was again queried by the police. He denied the

suggestion that he has not seen the accused persons in the house

of Ram Samaru in the company of Mahender and Swaran.

13. As per the version of this witness, he had given his

statement to the police on the same day when the police had

reached the locality i.e. on 19.5.1997 when he was queried along

with other persons of the locality. The record, however, speaks

otherwise; the only statement of Jitender which was recorded by the

Investigating Officer under Section 161 of the Cr. P.C. is dated

25.5.1997; if PW-6 had been interrogated on 19.5.1995, there is no

explanation as to why that statement of PW-6 has not been placed

on record. Adverse inference that if this statement would have

been placed on record the same would have prejudiced the case of

the prosecution cannot be ruled out. Inspector Rajinder PW-20 is

the Investigating Officer. He has categorically, on oath, stated that

he had recorded the statement of Jitender PW-6 on 25.5.1997.

There appears to be a confusion; when was this statement of PW-

6 recorded; was it on 19.5.1997 as is the version of PW-6 or was it

on 25.5.1997 as is the version of PW-20. On record, we have before

us only one statement of PW-6 which is dated 25.5.1997. There is

also no explanation for this inordinate delay in recording the version

of PW-6 especially keeping in view the fact that he i.e PW-6 being a

neighbour and living in the same locality and he having

categorically stated that he had met the police on the same day,

why the Investigating Officer had penned his version only on

25.5.1997. This throws a doubt on the veracity of this version; there

is every possibility that in this intervening period of six days it has

been concocted. Version of PW-6 is also suspect.

14. In G.B.Patel v. State of Maharashtra AIR 1979 SC 135,

Supreme Court had held that an unwarranted and unexplained

delay in recording the statement of a material witness makes such

an evidence unreliable.

15. We further note that the trial Judge had erred in placing

reliance on the version of PW-3 to substantiate the circumstance of

the accused persons and the deceased being last seen in the

company of one another. PW-3 is Ram Samaru who is the owner of

the house and the elder brother of the deceased. He was

admittedly in the village at the time when the incident had occurred

and had returned back to Delhi on 22.5.1997. He was interrogated

by the Investigating Officer on three days i.e. 22.5.1997, 23.5.1997

and on 25.5.1997. His having seen the accused and the deceased

together on 17.5.1997 could not arise as he was not in station on

that day; as per his version he had been told by PW-1 and PW-6 that

they i.e.PW-1 and PW-6 had seen his brothers and the accused

persons together on 17.5.1997, which version clearly falls in the

category of 'hear-say' and thus not admissible in evidence.

16. Circumstance of last seen has failed.

17. All the accused persons had been arrested from the

place of their residence i.e. the first floor of House No.T-2008, Kotla

Mobarakpur. Accused Durga Prasad and Lalla had pursuant to their

disclosure statements vide a joint memo Ex.PW-3/J pointed out the

place of recovery; thereafter vide joint recovery memo Ex.PW-3/E

got recovered cash of Rs.4750/-, some silver ornaments which

included a silver hair clip, a 'dastband', a pair of ear tops and a titan

wrist watch besides a cheque issued by Ram Samaru in the name of

Mahender. This recovery had been effected on 23.5.1997 from the

DDA Park from underneath a stone. As per this document, the

aforestated articles were lying in a polythene bag; the document

had been attested by Ram Samaru PW-3 and Surender PW-5.

18. PW-3 in his cross-examination has stated that they had

reached the MCD Park at 4.00PM; it was a hilly and bushy area; no

person was asked to join as a witness; they stayed there for 10-15

minutes; he identified the watch as an HMT watch. PW-5 has stated

that they remained at the DDA Park for about one and a half hours;

they reached the place of recovery at about 6.30 PM. PW-20 in his

cross-examination has stated that some boys and girls were present

in the park but he did not think it proper to ask them to join

investigation; they remained in the DDA Park for about one hour.

19. From the aforestated versions it is not clear whether it

was a DDA park or an MCD park from where the recovery was

effected, whether the recovery proceedings continued for 10 to 15

minutes or for more than one hour is also not clear; admittedly

public persons were present in the park but none were asked to join

the proceedings. The articles recovered i.e. the sum of

Rs.4750/- admittedly had no special identification marks which

could connect this recovery as belonging to the deceased; they

were notes in the denomination of two notes of Rs.500/-, thirty

notes of Rs.100/- and three notes of Rs.50/-; testimony of Ram

Samaru PW-3 is relevant in this context; in his cross-examination

when confronted with his first version recorded before the

Investigating Officer Ex.PW-3/A he admitted that he had not stated

that he had while leaving Delhi given a sum of Rs.22000/- to his

deceased brother. Subsequent identification by PW-3 of these notes

as belonging to him is clearly doubtful. The silver articles i.e. a pair

of ear tops, a 'dastband', a silver hair clip and an HMT watch have

been identified by PW-3 and his wife Sanjana PW-12 as belonging to

them but in their versions before the Investigating Officer they had

not given any description of these articles; the weight of the

jewellery was not mentioned; the make of the watch was not

detailed; recovery memo has described the watch as of Titan make

but PW-3 had identified the model as an HMT model; these are also

common articles which are readily available in the market. The

cheque leaf purported to have been signed by Ram Samaru in the

name of Mahender is also suspect; why would the accused persons

be holding on to this piece of paper which is valueless for them, is

again not clear.

20. The place of recovery is admittedly a public place i.e.

the DDA Nehru Park which is miles away from the residence of the

accused which is at Kotla Mubarakpur. We also have to keep in

mind that the accused persons have been arrested from their

residence; they were not absconding; offence had allegedly been

committed on 17.5.1997; yet up to 23.5.1997 they continued to

hide all the said articles including the cash of Rs.4750/-; it is difficult

to fathom the logic for the same.

21. In Trimbak v. State of M.P. AIR 1954 SC 39 where the

articles were recovered from a field which was an open place

accessible to all and sundry; the Supreme Court had held that it is

difficult to hold that the accused was in exclusive possession of

these articles; recovery was, thus, disbelieved.

22. In Karuppa Valayan v. State of Kerala AIR 1960 Kerala

238 it was held that where the statements had been recorded from

each of the accused, but they were all on the same pattern and

referred to the same articles and all of them stated that they would

point out the place where the articles were hidden; it was held that

such statements would constitute one composite statement about

the same articles which did not serve to fasten an individual guilt as

there was no knowing on whose information the material fact had

been discovered. So also, are the facts in the instant case.

23. Testimony of the recovery witnesses even otherwise do

not inspire confidence; articles are ordinary articles which are

readily available in the market; their connectivity with the crime is

not established. We are not inclined to accept this recovery. In

these circumstances as a consequent corollary the motive of

looting/robbery also fails. We would also like to note that as per the

report of Post Mortem Doctor, the deceased had died some time on

16.5.1997; Offence is alleged to have been committed on the

intervening night of 17-18.5.1997 which again casts shadows of

doubt on the version as sought to be set up by the prosecution.

24. All the links in the chain of evidence are broken;

benefit of doubt has accrued in favour of the accused. Appeals are

allowed. Accused persons are acquitted; their bail bonds and surety

bonds are discharged.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

September 10, 2009 nandan