Brij Mohan @ Birju vs State
2009 Latest Caselaw 3710 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                 Judgment Reserved on: 8th September, 2009
                 Judgment Delivered on: 11thSeptember, 2009

+                               CRL.A.562/2001

       BRIJ MOHAN @ BIRJU                             ..... Appellant
                      Through:             Mr.Mohit Mathur, Advocate.

                     Versus

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

                                     AND

+                               CRL.A.798/2000

       KANWAR PAL                                     ..... Appellant
                                Through:   Mr.Mohit Mathur, Advocate.

                     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?

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

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

INDERMEET KAUR, J.

1. On 7.3.1997 DD No.95B Ex.PW-4/A was recorded that at A

Block, New Seelampur near the Government Boys Middle School

an unclaimed dead body was found lying. This DD was received

in the local police station Seelampur at 6.25 AM and was handed

over to SI Ram Avtar PW-22; armed with this information PW-22

along with Const.Satish Kumar PW-20 reached the spot. The

dead body had blood on its forehead and on its left side; broken

pieces of a half bottle of whisky and one half brick were also

found lying near the body; dead body was identified by Ram

Swaroop PW-2, uncle of the deceased vide memo Ex.PW-2/D and

Ex.PW-2/E as that of one Amar Singh resident of A Block, New

Seelampur. PW-22 made the endorsement Ex.PW-22/A on

Ex.PW-4/A and through PW-20 it was sent to the local police

station for the registration of the FIR. This was at 10.00 AM on

7.3.1997. FIR was registered under Section 302 of the IPC.

2. Const.Ved Prakash PW-5, the photographer was summoned

who took eight photographs of the scene of crime Ex.PW-5/9 to

Ex.PW-5/16. From the spot earth control, the blood stained brick,

broken pieces of the whisky bottle as also some hairs lying near

the dead body were seized and sealed. Statement of witnesses

Mahinder PW-8, Mintoo PW-9 and Rajinder PW-6 had revealed

that the deceased Amar Singh had been last seen in the

company of Kanwar Pal and Brij Mohan. The police party made a

search for the aforestated persons but they were not traceable.

3. On 8.3.1997, post-mortem on the dead body was

conducted by Dr.Anil Kohli PW-15 who noted eleven ante-mortem

injuries. The cause of death was opined as ante-mortem head

injuries produced as a result of blunt force impact. The viscera

had been preserved for analysis. The time since death was

reported to be one and a half days i.e. relating back to about

10.00 PM on the intervening night of 6.3.1997-7.3.1997. Vide

report dated 11.12.1997 of the CFSL Ex.PW-27/A, the viscera of

the deceased had been examined by the Scientific Officer,

Toxicology Division who noted ethyl alcohol in its contents. This

has been duly testified on oath by Mr.Rajpal Singh PW-27, the

Assistant Chemical Examiner.

4. On the same day i.e. on 8.3.1997 secret information was

received that the accused persons would be coming towards the

jhuggis at Calcatiya gate. At the pointing out of the secret

informer the accused Kanwar Pal and Brij Mohan were

apprehended and interrogated. Personal search of accused

Kanwar Pal was conducted vide memo Ex.PW8/H; he made his

disclosure statement Ex.PW-8/E; pursuant thereto accused

Kanwar Pal got one green coloured polythene bag containing a

pant and a shirt recovered from under the dari on which the

accused persons were found sitting; the pant was of Badami

colour and printed shirt was of black and yellow collour having

blood stains on its left shoulder. The said articles were seized

vide memo Ex.PW-8/A. The personal search memo of co-accused

Brij Mohan is Ex.PW-8/G. He made a disclosure statement Ex.PW-

8/F; pursuant thereto accused Brij Mohan also got recovered a

polythene bag of yellow colour containing a black coloured pant

and a green coloured shirt which were also lying under the dari

where the accused persons had been found sitting. These

articles were taken into possession vide memo Ex.PW-8/B. These

recoveries had been effected in the presence of Smt.Sukho PW-

10. Site plan of the place of recovery Ex.PW-22/F was prepared.

The place of occurrence i.e. A Block, New Seelampur was pointed

out by the accused by respective memos; pointing out memo by

accused Kanwar Pal is Ex.PW-8/C and the pointing out memo by

accused Brij Mohan is Ex.PW-8/D.

5. This was admittedly a case of circumstantial evidence. The

Trial Court had convicted the accused primarily on the evidence

of the accused and the deceased having been last seen together

on the intervening night of 6.3.1997-7.3.1997 which had been

spelt out in the versions of Rajinder PW-6, Mahinder PW-8 and

Mintoo PW-9. Version of Raju PW-1 had been rejected on this

score. The subsequent recovery of their blood stained clothes by

the accused persons was the additional incriminating

circumstance which had been taken into account to sustain the

conviction of the accused.

6. On behalf of the accused it had been urged that the

witnesses to the theory of last seen have not supported the

version of the prosecution and all of them ie. PW-1, PW-6, PW-8

and PW-9 have resiled from their earlier statements which they

had given to the Investigating Officer. No reliance can thus be

placed on this circumstance. It is further submitted that the

recovery by the accused persons of the alleged blood stained

clothes worn by them at the time of the offence is demolished in

view of the testimony of PW-10 from whose jhuggi this recovery

had been effected; she has not supported the version of the

prosecution on this count and the testimony of the police

witnesses by themselves unsupported by the version of the

public witnesses demolishes this recovery. Benefit of doubt has

accrued to the accused persons who are entitled to an acquittal.

7. We have perused the record and noted the submissions.

8. Rajinder PW-6 has deposed that in the year 1997, he used

to work with Amar Singh; on 6.3.1997 after finishing his work he

along with Amar Singh left for the house at about 9.30 PM; both

of them i.e. PW-6 and the deceased Amar Singh had had a little

liquor; they reached the toilet of A Block, Seelampur at about

10.15 PM; they met the accused persons who told them that

since they i.e. PW-6 and the deceased had had a drink they

should also be given some drink; on this, Amar Singh retorted

that he will give them a drink but charge them money for the

same; PW-6 thereafter left leaving all three i.e. both the accused

persons and the deceased Amar Singh together. On the next

day, he found a crowd collected in the school opposite his house

and on reaching there he saw Amar Singh's body lying on the

chowk. In his cross-examination he has stated that Mahinder is

his real brother; at about 7.30 AM Mahinder and Mintoo had also

reached there; 4-5 police officials had also come there. He has

further stated that the dead body of Amar Singh was lying 15 to

20 steps away from the main gate of the school in the chowk. He

reiterated that when he left for his house he had left Amar Singh

in the company of both the accused persons and at that time

they were having talks of having a drinking session together.

Amar Singh was having a quarter bottle of liquor with him. He

has further stated that on 6.3.1997 he had been confined in the

police station for two days and had been given beatings. He,

however, denied the suggestion that he is deposing falsely at the

behest of the police.

9. Mahinder Singh PW-8 has deposed that on the fateful day

at about 8.30 PM when he was returning back from his house he

saw Kanwar Pal, Amar Singh and Briju standing near the corner

of the chowk; he did not see anybody fighting. He thereafter

returned back to his house. He admitted his signatures on the

seizure memos Ex.PW-8/A and Ex.PW-8/B both of which are dated

8.3.1997 i.e. the seizures relating to the recovery of the blood

stained clothes effected by both the accused persons i.e.

accused Kanwar Pal and accused Brij Mohan. This witness,

however, did not support the entire version of the prosecution

and he was permitted to be cross-examined by the learned public

prosecutor but nothing material has emerged therein. In his

cross-examination by the learned defence counsel he has stated

that he cannot remember as to whether in his first version

recorded under Section 161 of the Cr.P.C. he had told the

Investigating Officer that he had seen Kanwar Pal, Amar Singh

and Birju near the corner of the shop.

10. Mintoo PW-9 has deposed on the same lines as PW-8 and

has corroborated him to the extent that on the fateful day at

about 8.30 PM when he was returning back from his work he saw

Birju, Kanwar Pal and Amar Singh near the toilet of A Block,

Seelampur; thereafter he went back to his house; he did not

notice any quarrel between the said persons. PW-9 has also

admitted his signatures on seizure memo Ex.PW-8/A and Ex.PW-

8/B. This witness also did not support the entire version of the

prosecution and he was permitted to be cross-examined by the

learned public prosecutor wherein he has stated that when he

was going home he had seen the accused persons and Amar

Singh near the door of Government Boys Middle School. In his

cross-examination by the learned defence counsel he has stated

that he cannot remember where he had signed the aforesaid

memos.

11. From the aforestated versions it is borne out that on

6.3.1997 Amar Singh had been last seen together with Kanwar

Pal and Brij Mohan near the toilet of A Block, Seelampur which

was close to the gate of the Government Boys Middle School.

This had been witnessed by PW-6, PW-8 and PW-9 between 8.30

PM to 9.30 PM. On this score all the three witnesses i.e. Rajinder,

Mahinder and Mintoo are corroborative of one another; Amar

Singh had had a drink and their conversation was steered

towards a drinking session between all three of them. Amar

Singh was also holding a quarter bottle of liquor with him. The

post-mortem report Ex.PW-15/A has evidenced that death had

taken place on the intervening night of 6.3.1997-7.3.1997 at

about 10.00 PM. The CFSL after examination of the viscera vide

its report Ex.PW-27/A had opined that ethyl alcohol is contained

in its contents.

12. This scientific evidence advances the versions of the

aforenoted witnesses that the deceased Amar Singh had had

alcohol and further talks of having a drinking session were on

between the deceased and the accused persons. The medical

evidence which is the post-mortem report has evidenced that the

deceased had died at about 10.00 PM on the intervening night of

6.3.1997-7.3.1997.

13. What is the theory of last seen? It is the circumstance of

the fact of the accused and the deceased having been last seen

in the company of one another pertaining to the place, the time

and the distance between the place where the deceased was last

seen alive and the dead body was found and the time-gap of the

two events which all need to be noted.

14. The site plan Ex.PW-26/A shows that the dead body had

been found recovered at point A with blood and broken pieces of

glass lying around it; this is an open ground/chowk in front of the

Government Boys Middle School, New Seelampur. This

document corroborates the ocular versions of PW-6, PW-8 and

PW-9 that the accused persons and the deceased were last seen

together near the corner of the chowk in front of the Government

Boys Middle school at New Seelampur. This was also the place

where the dead body was found recovered on the following

morning at 6.25 AM which had been recorded in Ex.PW-4/A.

15. In Bodhraj @ Bodha & Ors. Vs. State of Jammu & Kashmir

(2002) 8 SCC 45, the last seen theory has been explicitly

explained. The last seen theory comes into play where the time-

gap between the point of time when the accused and the

deceased were last seen alive and when the deceased is found

dead is so small that possibility of any person other than the

accused being the author of the crime becomes impossible.

16. In State of W.B. vs. Mir Mohammad Omar & Ors. 2000 (8)

SCC 382, the Supreme Court while debating on the evidence on

of the theory of last seen had held that the presumption of fact is

an inference as to the existence of one fact from the existence of

some other facts, unless the truth of such inference is disproved.

17. The legislative foundation to the said rule of inference was

located in Section 114 of the Evidence Act which empowers the

court to presume the existence of any fact which is likely to have

happened having regard to the common course of natural

events, human conduct etc. in relation to the facts of the case.

There is yet another legal principle on which the aforesaid

inference can be founded and this is contained in Section 106 of

the Evidence Act. This postulates that where a fact is especially

within the knowledge of any person, the burden of proving that

fact is upon him; based on the philosophy that a knowledge of a

person rests in his brain or his mind which can never be accessed

or exposed by the opposite party.

18. In the instant case, the proximity of the time and place

between the deceased having last been seen in the company of

the accused and the death of the deceased coupled with the

distance of the place where the dead body was subsequently

recovered are what is relevant in order to justify the inference

that the time-gap between the deceased and the accused having

last been seen together and the deceased dying therein was so

small that the possibility of any person other than the accused

being the author of the crime has become impossible. It has

been proved that the accused and the deceased were last seen

together between 9.00 to 9.30 PM. The medical evidence

establishes that the deceased died at about 10.00 PM. The time-

gap between the deceased and the accused persons last being in

the company of one another and the subsequent death of the

deceased is so small that the possibility of a third person being

the offender has reasonably been ruled out. Proximity of place is

also a relevant factor. As per the testimonies of PW-6, PW-8 and

PW-9 the deceased and the accused persons were last seen

together near the corner of the chowk at New Seelampur in front

of the Government Boys Middle school. Hereafter it was for the

accused persons to have explained about what happened

thereafter; no such explanation was forthcoming in their

statements under Section 313 of the Cr.P.C. This was also the

place where the dead body was found recovered on the following

morning in the early hours at 6.25 AM; these versions are fully

corroborated by the site plan. The deceased and the accused

persons were known to one another; deceased had already had a

drink; they were debating on a further drinking session; the

deceased also had a quarter bottle of a whisky with him; broken

pieces of glass and a broken whisky bottle were also found lying

near the dead body.

19. The accused Kanwar Pal after his arrest and pursuant to his

disclosure statement had got recovered his blood stained clothes

from A 147, New Seelampur from a polythene bag lying under

the dari and were taken into possession vide memo Ex.PW-8/A.

The witnesses to this document Mahinder PW-8 and Mintoo PW-9

have not supported the recovery but they have admitted their

signatures on this document. Accused Brij Mohan had got his

blood stained clothes recovered from the same place i.e. from

the jhuggi A147, New Seelampur from under the dari and these

clothes were taken into possession vide memo Ex.PW-8/B. The

recovery witnesses Mahinder PW-8 and Mintoo PW-9 have

admitted their signatures on this document as well. The police

personnel i.e. HC Mohd.Usman PW-16, Const.Samay Singh PW-

19, Const.Puran Mal PW-21 and SI Ram Avtar PW-22 were also

witnesses to this recovery. They have all corroborated one

another on all scores and nothing has been elicited in their cross-

examination to discard their versions. Recovery of these blood

stained clothes at the hand of the accused thus stand

established.

20. We are satisfied that the judgment of the Trial Court calls

for no inference. It has been established by clear and cogent

evidence that the accused persons and the deceased were last

seen together at about 9.00 PM to 9.30 PM on intervening night

of 6.3.1997-7.3.1997; within the next one hour the deceased had

died. Dead body was recovered from the chowk in front of the

Government Boys Middle School which was also the place where

the accused persons had last been seen together with the

deceased. Accused and the deceased were having conversation

on having liquor together; deceased had already consumed

liquor; his viscera had detected alcohol in its contents. The

respective recovery of their blood stained clothes at their

instance has further incriminated them.

21. There is no merit in the appeal. It is dismissed. Accused

are on bail; their bail bonds and surety bonds stand cancelled;

they shall surrender forthwith to suffer the remaining sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

11th September, 2009 rb