Bijender Singh vs State
2009 Latest Caselaw 3791 Del

R-126
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Date of Decision: 16th September, 2009

+                        CRL.A. 648/2001

        BIJENDER SINGH                             ..... Appellant
                  Through:      Ms.Charu Verma, Advocate.

                                versus

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

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. The appellant has not denied that he was married

to Anita on 8.3.2000 and the two were residing in house

No.4767-A, Gali No.1. He has also not denied that Anita was

brutally murdered in her matrimonial house on 11 th

September, 2000. But, the appellant denies that he is the one

who has murdered his wife. When examined under Section

313 Cr.P.C. the appellant stated that he was not present in his

house when his wife was murdered as he had left his house for

duty.

2. At the outset, we may note that the appellant did

not disclose the place where he reported for duty and has led

no evidence in defence to show that at around 11.24 AM on

11.9.2000 he was at his work place.

3. Information was received at PS Gandhi Nagar

through telephone No.2425601 at 11.24 AM on 11.9.2004

informing that a quarrel was taking place at street No.1, Ajeet

Nagar, Seelampur. Said information was recorded in Daily

Diary register by HC Rajender Singh PW-11 vide D.D.No.13-A,

Ex.PW-11/A. At 11.30 AM, information was received through

the police control room that a lady has been murdered at

Seelampur, which information was recorded in the Daily Diary

register by HC Rajender Singh vide D.D.No.14-A, Ex.PW-11/B.

4. Copy of D.D.No.13-A was handed over to SI

Rajender Singh PW-20 who along with Insp.Ramdal PW-21 left

for the spot.

5. HC Om Prakash PW-6 was on beat duty in Ajeet

Nagar from 9 AM to 2 PM and was near the Railway Line

between gali No.1 and 3 in Ajeet Nagar. Somebody informed

him that a person was mercilessly beating his wife in house

No.4767-A, Gali No.1, Seelampur. This information was given

to HC Om Prakash at 11.20 AM. He reached the house in

question at around 11.25 AM and found the door bolted from

inside. Peeping through a window adjoining the gate of the

house he saw appellant stabbing his wife. The door was

knocked. Appellant opened the door and ran back on seeing

HC Om Prakash. Appellant was overpowered and a blood

stained knife was taken possession of by HC Om Prakash. PCR

officials were contacted. Joginder PW-3, the brother of the

appellant and Basanti PW-5, wife of Joginder were present.

6. SI Rajender Singh and Insp.Ramdal reached the

spot and SI Rajender Singh recorded the statement Ex.PW-6/A

of HC Om Prakash in which aforenoted facts pertaining to

receipt of information by HC Om Prakash requiring him to

reach the house in question and what he saw as also his

apprehending the appellant were recorded.

7. After SI Rajender Singh PW-20 recorded the

statement Ex.PW-6/A in his hand, Insp.Ramdal made an

endorsement Ex.PW-21/A beneath the statement and

dispatched the statement and the endorsement, as recorded

in the endorsement at 11.30 AM, for FIR to be registered.

8. Crime team and a photographer were summoned.

9. Const.Naresh Kumar PW-9 took 17 photographs

Ex.PW-9/A18 to Ex.PW-9/A33; negatives whereof are Ex.PW-

9/A1 to Ex.PW-9/A17.

10. A hand of a hand pump was found at the scene of

the offence and the knife which was taken possession of by HC

Om Prakash were seized by Insp.Ramdal vide seizure memo

Ex.PW-6/B. Blood was lifted from three spots as recorded in

the memos Ex.PW-6/C, Ex.PW-6/D and Ex.PW-6/E. Earth

control was lifted as recorded in the memo Ex.PW-6/K. Certain

clothes in the house which were stained with blood were

seized vide memo Ex.PW-6/H. Broken pieces of bangles were

seized as recorded in the memo Ex.PW-6/F. The pant and shirt

worn by the appellant which were found to be stained with

blood were seized vide memo Ex.PW-6/J. Rough site plan

Ex.PW-21/C was prepared by Insp.Ramdal. The appellant was

formally arrested vide memo Ex.PW-6/L, which records the

time of arrest at 4.50 PM.

11. The dead body of the deceased was sent to Sabzi

Mandi mortuary where Dr.Ashok Jaiswal PW-13 conducted the

post-mortem and prepared the post-mortem report Ex.PW-

13/A noting therein 12 external injuries on the person of the

deceased. Injury No.1 to 4 were opined to be caused by a

blunt object and injuries No.5 to 12 were opined to be caused

by a sharp edged weapon. All injuries were opined to be ante-

mortem and cause of death was opined to be the result of

haemorrhagic shock consequent to all injuries inflicted on the

deceased. Injuries Nos.5, 7, 9, 11 and 12 were opined to be

individually and collectively sufficient to cause death in the

ordinary course of nature.

12. After the post-mortem, the clothes of the deceased

and blood sample on it were handed over to the police.

13. The various articles seized from the spot as noted

in the various seizure memos prepared at the spot as also the

clothes of the deceased and the blood sample of the deceased

were sent for serological examination. As per report Ex.PW-

21/D and Ex.PW-21/E, it was opined that the blood group of the

deceased was „A‟. Human blood of same group was detected

on the pant and shirt worn by the appellant which were seized

by the police. Human blood of group „A‟ was detected on the

knife. Human blood of group „A‟ was detected on the blood

samples lifted where the crime was committed. No blood

could be detected on the handle of hand pump which was

seized at the spot.

14. The knife and the handle of the hand pump which

were seized at the spot where the crime took place were sent

for opinion of Dr.Ashok Jaiswal, who, vide opinion Ex.PW-13/B,

opined that injuries No.1 to 4 are possible by the handle of the

hand pump and injury No.5 to 12 are possible to be caused by

the knife.

15. Listing relatives of the deceased to prove the

motive for the crime, which we note has remained unproved

and has surfaced very vaguely, the brother and the sister-in-

law of the appellant; namely, Joginder PW-3 and Basanti PW-5

were cited as the witnesses of the prosecution. Various police

officers associated in the investigation as also Rajbir Tyagi PW-

4, the person who was the first one to ring up the police

through his P.C.O. booth pertaining to the crime were cited as

the witnesses. Needless to state, the doctor who has

conducted the post-mortem was also cited as a witness.

16. As was expected, being close relatives of the

appellant, Joginder PW-3 and Basanti PW-5 turned hostile.

They did not support the case of the prosecution. They

disclaimed any knowledge as to how Anita died. However,

Rajbir Tyagi PW-4, deposed that on 11.9.2000 when he was at

the P.C.O. booth, Basanti PW-5 came to his booth at about

11.20/11.30 AM and told her to inform the police that her

Devar (brother-in-law) was mercilessly beating his wife. That

he dialled No.100 and handed over the receiver to Basanti who

gave the necessary information to the police.

17. Umed Singh PW-1, the grandfather of Anita

deposed that the brother of the appellant Banti told him that

his grand-daughter had died due to consuming sleeping pills

but neighbours told him that the appellant had murdered his

grand-daughter. That he identified the dead body of Anita.

His statement Ex.PW-1/A wherein his signatures at point „A‟

was recorded by the police.

18. Jasbir PW-2, uncle of Anita deposed that the

appellant used to harass Anita and who had complained to him

of being beaten by the accused. That on 11.9.2000, Banti a

brother of the accused came to their house and informed that

Anita had consumed sleeping pills but later on he learnt that

the accused had murdered Anita.

19. HC Om Prakash PW-6 deposed facts which we have

noted briefly hereinabove in para 5 while referring to how HC

Om Prakash reached the house; what he saw and his over

powering the appellant and disarming him i.e. taking

possession of the knife from his hand. He proved the various

seizure memos prepared at the spot, stating that the various

articles seized as recorded therein were seized in his presence

and that the memos were prepared in his presence.

20. SI Rajender Singh PW-20 and Insp.Ramdal PW-21

deposed regarding reaching the place of the offence pursuant

to D.D.No. 13-A being recorded. They deposed that HC Om

Prakash had apprehended the accused and handed him over

to them along with the knife which he had recovered. The two

also deposed of having prepared the various seizure memos

and the factum of seizing articles from the scene of the

offence. SI Rajender Singh additionally proved having

recorded the statement Ex.PW-6/A of Om Prakash.

Insp.Ramdal PW-21 proved the endorsement Ex.PW-21/A

beneath the statement Ex.PW-6/A, as also preparing the rough

site plan Ex.PW-21/C.

21. Insp.Ramdal identified Exs.P-1 to P-13. Ex.P-1 being

the handle of the hand pump and Ex.P-2 being the knife seized

at the spot. The remaining exhibits were various blood stained

articles and broken pieces of bangles which were seized at the

spot.

22. Dr.Ashok Jaiswal PW-13 proved the post-mortem

report Ex.PW-13/A and his opinion Ex.PW-13/B.

23. In respect of the offence punishable under Section

27 of the Arms Act, we may note that the relevant notification,

Ex.PW-15/A, was proved at the trial through the testimony of

Rajiv Jain PW-15, a LDC in the Home General Department.

24. The learned Trial Judge has convicted the appellant

for the offence of having murdered his wife as also for the

offence punishable under Section 27 of the Arms Act.

25. In returning a finding of guilt against the appellant,

the learned Trial Judge has held that the testimony of HC Om

Prakash established that the appellant was apprehended at

the spot and was the offender. The presence of blood on the

pant and the shirt of the appellant, the blood being of human

origin and of the same group as that of the deceased was

found to be corroborative evidence. Thus, notwithstanding

Joginder PW-3 and Basanti PW-5, turning hostile the appellant

has been convicted.

26. At the hearing of the appeal following submissions

have been made:-

(i) That the rough site plan Ex.PW-21/C and the site plan to

scale Ex.PW-12/A do not show the spot wherefrom HC

Om Prakash peeped inside the house where the crime

was committed, and as claimed by him saw the appellant

stab Anita.

(ii) The daily diary entry DD-13A and DD-14A as also the

rukka Ex.PW-21/A shows that the crime was committed

at around 11:20 - 11:30 AM. The arrest memo Ex.PW-6/L

records the time of appellant being arrested at 4:50 PM.

Thus, counsel urges that it is apparent that the appellant

was not apprehended at the spot.

(iii) Public witnesses; namely, PW-3 and PW-5 having turned

hostile. Learned counsel urges that it would be unsafe to

sustain the conviction on the testimony of the police

officers.

(iv) Drawing our attention to the testimony of PW-21 that HC

Om Prakash PW-6 was not on patrol duty on 11.9.2000,

learned counsel urges that the same completely

demolishes the version of HC Om Prakash that being on

patrol duty and being informed by somebody that a man

was beating his wife he proceeded to the house where

the crime took place. Counsel urges that if this be so,

the very foundation of the case of the prosecution

collapses.

(v) Lastly, learned counsel urges that the motive laid in the

challan against the appellant was of suspecting the

chastity of his wife Anita which has not been proved.

27. We deal with the submissions at seriatim.

28. The site plan is never treated as substantive

evidence in law. Of course, the importance of a site plan has

not to be belittled. The site plan is the only document

available before a Court which is charged of the duty to

appreciate and evaluate evidence which helps the Court in

recreating the memorabilia as to what happened at the spot.

29. But, an omission by the investigating officer would

not be an escape route for an accused, if otherwise the

prosecution has proved the case. After all, the task of a Judge

is to decide as per law and evidence before the Court.

30. The issue can be looked at, in the instant case, from

two angles. The first is the testimony of HC Om Prakash that

through a window, on peeping inside, he saw the appellant

stab his wife. The second is of apprehending the appellant

from within the house.

31. In the absence of the exact spot being shown in the

two site plans wherefrom HC Om Prakash peeped inside and

saw the appellant stab his wife, we may ignore the testimony

of HC Om Prakash that he actually saw the crime being

committed. But, both the site plans show the contours of the

house where the crime took place. They show the spot inside

the house where the appellant was apprehended. The site

plan to scale shows the spot where the appellant was

apprehended as also the spot where the body of Anita was

seized. The spots where blood was lifted have also been

shown. The spots where the blood has been lifted show that

Anita was chased all over the house by whosoever

assassinated her.

32. There is no evidence that any other person was

present in the house. The testimony of HC Om Prakash shows

that only appellant and Anita were present inside the house.

Thus, it is apparent from the testimony of HC Om Prakash that

Anita was murdered by the appellant. This takes care of the

first submission urged by learned counsel for the appellant.

33. The second submission, predicated on the hiatus

between the time of the incident i.e. 11:20 AM and the time of

arrest i.e. 4:50 PM shown in the arrest memo of the appellant,

is explainable. There is always a difference between the time

when an accused is apprehended and formally arrested.

Apprehension and arrest are distinct legal terms.

34. It is apparent that after the rukka was dispatched at

1:30 PM the investigation continued at the spot. Photographer

was summoned. Photographs were taken. Various articles

were seized and seizure memos drawn up. Thereafter the

formal arrest was shown. This explains the hiatus between the

time of the incident and the time of the arrest memo. No

conclusion can be drawn that the appellant was arrested not

as claimed by the prosecution or not within the house where

the crime was committed.

35. PW-3 and PW-5 are the brother and the sister-in-law

of the accused. Their tendency to support the appellant and

not support the prosecution is explainable with reference to

the close blood bond they share with the appellant.

36. There is no law which requires any presumption to

be drawn up, unless proved to the contrary, that police officers

are not truthful persons.

37. The rukka Ex.PW-6/A and Ex.PW-21/A have been

prepared so contemporaneously and with sufficient proximity

of time vis-à-vis the time of the incident that there is hardly

any possibility of the police fabricating the truth. The rukka

dispatched from the spot shows the apprehension of the

appellant from inside his matrimonial house with his clothes

stained with blood. The appellant has not explained how his

clothes got stained with blood.

38. Thus, notwithstanding PW-3 and PW-5 turning

hostile, in view of the testimony of HC Om Prakash PW-6; the

contents of the rukka and the report of the serologist that the

pant and the shirt worn by the appellant were stained with

human blood of the same group as that of the deceased are

sufficient evidence to draw the only inference which is possible

i.e. that the appellant has committed the crime.

39. The fourth plea pertaining to the testimony of the

investigating officer that the appellant was not on patrol duty

has to be noted and rejected for the simple reason, on being

cross-examined, Inspector Ramdal PW-21 stated as under:-

"It is correct that HC Sat Pal No.467/E was on beat duty in Old Seelampur area. It is correct that HC Om Prakash and Const.Pawan Kumar were on beat duty in Ajit Nagar."

40. The witness has not said that HC Om Prakash was

not on beat duty. What he has stated is that the area assigned

to HC Om Prakash was Ajit Nagar.

41. HC Om Prakash PW-6 has also said the same. He

deposed that he was on duty at beat in Ajit Nagar and at 11:20

AM was between Gali No.1 and 3 near the railway line when

somebody informed him of a person beating his wife

mercilessly in House No.4767A, Gali No.1, Seelampur and that

is the reason why he went to the house.

42. We note that while cross-examining HC Om Prakash

no questions had been put to him as to why he went to

Seelampur leaving behind Ajit Nagar. No questions have been

put to him as regards the distance between the two colonies.

But, it is apparent that the two colonies are adjoining colonies

and the place where HC Om Prakash was given information

and the house in question are quite near to each other

evidenced by the fact that HC Om Prakash has deposed that

he received the information at 11:20 AM and within five

minutes i.e. at 11:25 AM reached the house.

43. Thus, it cannot be said that in view of the testimony

of PW-21 it stands established that HC Om Prakash was not on

beat duty.

44. At this stage we may note another submission

which has been urged by learned counsel for the appellant

while we were dictating our order. Counsel points out that the

arrest memo Ex.PW-6/D has an overwriting. The date „06‟ has

been changed to „09‟.

45. The said date pertains to the month.

46. The crime took place on 11.9.2000. It is apparent

that while drawing up the arrest memo, inadvertently the date

11.9.2000 got incorrectly recorded as 11.6.2000 and the

author of the document immediately corrected the same.

47. At this stage, learned counsel points out that the

same thing has happened with respect to the rough site plan

prepared at the site. There also the month June i.e. „6‟ has

been corrected by overwriting „9‟.

48. Pertaining to the arrest memo Ex.PW-6/L, suffice

would it be to state that against column No.6 pertaining to the

date of arrest, the date has been shown as 11.9.2000 without

any over writing or correction. Beneath the signatures of the

arrestee i.e. the appellant, the date recorded is 11.09.2000.

The over writing is when Inspector Ramdal has attested the

same. The date recorded is 11.6.2000; immediately corrected

to 11.9.2000.

49. We have used the expression „immediately‟ for the

reason, having perused the original arrest memo we find that

with the same pen, evidenced by the ink and the nib of the

pen, the date „6‟ is overwritten by the date „9‟. The rough site

plan Ex.PW-21/C, at the caption, clearly records the date

11.9.2000. After the site plan has been prepared and marginal

notes penned down, the date 11.06.2000 has been recorded

without any correction thereon.

50. That motive has not been proved is neither here nor

there for the reason so strong is the weight of the evidence

against the appellant that it hardly matters whether he killed

his wife as he suspected her chastity or for the reason he did

not like her or she was sick as deposed to by PW-2.

51. We find no merit in the appeal. The appeal is

dismissed.

52. The appellant is on bail. The bail bond and surety

bonds furnished by the appellant are cancelled. The appellant

is directed to surrender and suffer the remaining sentence,

which we note is imprisonment for life.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 16, 2009 Dharmender