Suresh Kumar @ Saiju vs State
2009 Latest Caselaw 3799 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 14th September, 2009
                      Judgment Delivered on: 16th September, 2009

+                            CRL.A.792/2007

        SURESH KUMAR @ SAIJU             ..... Appellant
                     Through : Mr.Bhupesh Narula,
                               Advocate.
                     versus

        THE STATE (GOVT. OF NCT OF DELHI) ..... 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       Yes
        Digest?

INDERMEET KAUR, J.

1. On 22.9.2004 at 10.35 AM D.D.No.31B Ex.PW-10/A was

recorded in Police Station Jahangir Puri to the effect that a lady and

a child has been attacked at House No.G-245, Jahangir Puri and the

assailants have fled away. This DD was handed over to ASI Ram

Kishan PW-16 who along with Head Constable Rishi Prakash

reached the spot. Inspector Ram Chander PW-23 also reached

there. The incident had occurred on the 3rd floor of House No.G-245,

Jahangir Puri. The victims of the offence were Sumita who had

succumbed to her injuries and her son Azad @ Samanto @ Pappu;

the injured child had already been removed to Babu Jag Jeevan Ram

Hospital. The dead body of the lady was lying on the floor in a

bloody condition and her mouth had been gagged with her own

saree, broken teeth, broken bangles, a blood stained ball pen and a

brick were lying nearby. A blood stained shirt, lungi and shawl were

also found lying. The crime team was summoned; crime team in-

charge SI Subhash Chand PW-4 directed Const.Sushil PW-17 to take

photographs of the scene i.e. PW-17/1-7; negatives of which

are Ex. PW-17/8-15. Dead body was sent to the mortuary.

2. PW-23 reached the hospital to find out the whereabouts of the

injured child. Statement Ex.PW-1/A of the child i.e. of Azad @

Samanto @ Pappu PW-1 was recorded by the Investigating Officer

after he was declared fit by the doctor. In this statement it was

revealed that PW-1 was residing with his mother Sumita and his

step-father Maiju at Jahangir Puri since the last month. His natural

father Ashok Samanto lived in their native village Balsara; his

mother had abandoned her husband and was now living with Maiju.

On 21.9.2004 his step-father Maiju and his younger brother Saiju

were drinking liquor in the presence of his mother in the house; he

i.e. PW-1 had gone to sleep. At about 1.00 AM on hearing the cries

of his mother he woke up and saw his father Maiju sitting on his

mother's chest and he was hitting her with a brick; his chacha i.e.

Saiju was trying to gag his mother by stuffing a cloth in her mouth;

on seeing this scene PW-1 started screaming for help; his step-

father hit him with a brick; Saiju pressed his neck and pulled his

legs as a result of which PW-1 lost his consciousness; in the

morning after he regained consciousness; he saw his mother lying

next to him, soaked in blood. PW-1 narrated this version to Asha

PW-2 the daughter of his landlord but because of the injuries which

he had himself sustained he could not speak very coherently; at the

time of incident he i.e. PW-1, his mother Sumita, his step-father

and his chacha i.e. the brother of his step-father were the only

persons present in the house. With the assistance of his landlord

he was taken to the hospital. His step-father and brother of his

step-father are responsible for killing his mother and causing injury

to him; action be taken against them.

3. This was the first version of PW-1 and was recorded as early

as 4.00PM on 22.9.2004 and which had formed the basis of the

rukka. Endorsement Ex.PW-23/A had been made on this statement

pursuant to which the FIR has been registered under Sections

302/307/34 of the IPC.

4. From the spot, the blood stained clothes i.e. the lungi, shawl,

a mosquito net and a blood stained brick were seized, sealed and

taken into possession vide memos Ex.PW-16/C to Ex.PW-16/E. Site

plan Ex.PW-23/B was also prepared. Inquest papers Ex.PW-7/B to

Ex.PW-7/D were also prepared. Statements of Asha PW-2 and Ram

Gulam PW-3 i.e. PW-3 being the landlord of the premises and PW-2

being his daughter were recorded. PW-2 was the first person to

whom the child victim had disclosed about the incident; it was with

the assistance of PW-3 that PW-1 had been removed to the hospital.

Version of PW-3 is also to the effect that three days prior to the

incident i.e. three days before 21.9.2004 Saiju, the younger brother

of Maiju and brother in law of the deceased Sumita had come to

stay in their house.

5. Post mortem on the deceased was conducted by Dr. B.N.

Acharya PW-7 who had opined death due to asphyxia consequent to

gagging and closure of the external air passes by a saree and hand

i.e. by a manual smothering. Time since death was reported to be

five and half days i.e. relating back to the intervening night of 21-

22.9.2004.

6. PW-1 had suffered grievous injuries and he continued to

remain in the hospital till 8.10.2004; he was discharged from the

hospital vide discharge slip Ex.PW-23/C. His MLC Ex.PW-18./A and

X- ray report Ex.PW-20/A had noted fracture of the middle phalynx

of left index finger and other abrasions. His statement Ex.PW-1/B

under Section 164 Cr.P.C. was recorded on 18.11.2004 by Sh. Vinod

Yadav PW-22 who before recording his statement had satisfied

himself that the child was fit to give rational answers to the

questions put to him and certificate to the said effect has been

penned by him in his writing from point X to X on Ex.PW-1/B.

7. Both the accused persons were absconding. On 14.10.2004

village Nangla Tara, P.S. Jahanganj, Farukhabad, U.P., the house of

the accused was raided but the accused persons were not found

there. On the same day, a secret information was received that the

accused Saiju @ Suresh Kumar had gone to Delhi and would be

returning by Kalindi Express. PW-23 along with H.C.Rajinder Singh

PW-19, Const.Kanwar Pal, Const.Naresh Kumar PW-11 reached the

railway station; on the pointing out of PW-1 accused Suresh was

arrested vide memo Ex.PW-11/B; his personal search Ex. PW-11/A

was conducted. He was interrogated and his disclosure statement

Ex.PW-19/A was recorded. Co-accused Maiju continued to abscond

and since he could not be arrested he was declared a proclaimed

offender.

8. The accused had raised a defence of alibi through the

testimony of two defence witnesses, namely Babu Ram DW-1 and

Nek Ram DW-2 to substantiate his submission that on 21.9.2004 he

was not present at the place of incident but he had gone to attend

the cremation of one Vidyawati at Aliganj, U.P. This defence has

been rejected by the Court below.

9. Trial Judge had relied upon the testimony of the eye-witness

i.e. Azad @ Samanto @ Pappu PW-1 to nail the accused; besides,

the trial Court had held that the testimony of Asha PW-2 had

corroborated the version set up by PW-1; she was the first person to

whom the victim child had related the incident being the daughter

of his landlord who had come to his room in the morning hours.

The trial Judge had also placed reliance on the version of Ram

Gulam PW-3 landlord of the house to hold that version of PW-3 had

substantiated that Suresh @ Saiju was present in the house and

had come to live there three days prior to the incident. These

pieces of evidence had been co-joined with one another by the trial

Judge to sustain the conviction of the accused under Section 302 of

the IPC; for the offence under Section 307 of the IPC, besides the

testimony of the aforenoted witnesses; medical record i.e. the MLC

of PW-1 Ex. PW-18/A and his X-ray report Ex.PW-20/A had

established that the child had suffered grievous injuries; this

evidence has been used to sustain the conviction of the accused

under Section 307 of the IPC.

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

judgment of the trial Court is infirm and it has ignored the

discrepancies which have appeared in the version of PW-1, the child

witness who was admittedly not more than eleven years of age at

the time of incident; attention has been drawn to his cross-

examination wherein he had admitted that at the time of quarrel at

1.00AM the person residing on the ground floor had come up; his

name is not known but he was a 'Behari'. It is argued that there is

no explanation as to who this person was and why he has not been

examined; there is also no explanation as to why the statement of

PW-1 under section 164 of the Cr. P.C. had been recorded after two

months of the incident i.e. on 18.11.2004 which throws doubt on its

veracity. Version of PW-1 has become suspect. It is argued that the

trial Court had summarily rejected the defence of the accused

without appreciating the version of DW-1 and DW-2 in their correct

perspective; attention has been drawn to the photographs which

has been exhibited in their testimony; it is argued that the defence

witnesses are entitled to the same weightage as that of the

prosecution witnesses. Version of prosecution is not credible;

accused Saiju is admittedly the brother-in-law of the deceased; the

husband has managed to escape and the present appellant has

been falsely roped in.

11. We have heard the learned counsel for the parties and have

perused the record.

12. The version of the prosecution is hinged largely on the

testimony of PW-1; he is a child witness and was aged about eleven

years when he had come into witness box. It was his statement

Ex.PW-1/A which had formed the basis of the rukka; the incident

had occurred in the intervening night of 21-22.9.2004 at about 1.00

AM in the morning; child victim had himself sustained grievous

injuries and had become unconscious; he had been removed to the

hospital on the following day by PW-3 at about 10.00 AM. The child

had been given medical aid; after he was declared fit for statement

at 3.00 PM his statement was recorded by Dr.Ashfaq at 4:00 PM by

the Investigating Officer PW-23 which is evidenced from the noting

in the MLC Ex.PW-18/A and proved by Dr.Seema PW-18 who had

identified the handwriting and singnatures of Dr.Ashfaq.

13. The version as given by PW-1 in this rukka is clear and

cogent; this version had been corroborated in his second version Ex.

PW-1/B which has been recorded under Section 164 of the Cr. P.C.

on 18.11.2004. The submission of learned defence counsel about

non-explanation of the recording of this version as late as

18.11.2004 is answered in the testimony of PW-22. The learned

Metropolitan Magistrate PW-22 who had recorded this statement

has on oath deposed that on 7.10.2004 an application had been

moved before him by the Investigating Officer with a prayer to

record the statement of Azad @ Samanto @ Pappu; the application

has been directed to be put up on 8.10.2004 on which date

Investigating Officer had sought extension of time and the matter

was then adjourned to 23.10.2004, 27.10.2004, 25.11.2004 and

finally on 18.11.2004 the statement Ex.PW-1/B was recorded by PW-

22. This witness has not been cross-examined. PW-23 the

Investigating Officer has also not been cross-examined on this

aspect. The discharge slip of PW-1 shows that he was discharged

on 8.10.2004. These facts clearly explain as to why this version of

PW-1 was recorded on 18.11.2004.

14. PW-1 has also been fully consistent and fully coherent on

oath. He had been put a preliminary round of questions to test his

rationality before he was permitted to enter the witness box. He

was examined without oath. He has in graphic detail recited the

incident; he has deposed that he along with his mother Sumita were

staying with his step-father Maiju at Mandi; thereafter they shifted

to Jahangir Puri; he had come to Delhi with his mother from Bengal

with Maiju who is from U.P.; they were living in the house of Asha

and Ram Gulam; a few days before the incident Suresh @ Saiju also

joined them. On the day of the incident i.e. on 21.9.2004 at 10.00

PM Maiju and Saiju were drinking liquor in the presence of his

mother; he i.e. PW-1 had finished his dinner and was lying on the

floor; at about 1.00AM he heard cries of his mother; he woke up and

saw that she was lying on the floor; his father Maiju was sitting on

her chest and hitting her on her face with a brick; Saiju was holding

his mother's hand and was stuffing a red coloured cloth into her

mouth; he was also assaulting his mother; clothes of his mother had

been removed and Saiju himself was also unclad; he was outraging

the chastity of his mother; PW-1 raised alarm; upon this his father

Maiju struck him i.e. PW-1 with a brick on his face; his two upper

teeth broke and he sustained injuries on his nose, lower lip, left

temple as also on his right index finger; his chacha Saiju pressed his

throat and pulled his legs; he became unconscious; he regained

consciousness in the morning when he was woken up by Asha

daughter of his landlord who had come after feeding the pigeons.

He i.e. PW-1 related the incident to Asha. His mother was lying next

to him and was soaked in blood. Asha informed her father i.e. Ram

Gulam PW-3 who removed him to the hospital.

15. In his cross-examination PW-1 has stuck to his version;

although he had been subjected to a lengthy four page cross-

examination, he had not steered from his initial stand. He has

admitted that he had gone to sleep by 10.00 PM and was woken up

by the cries of his mother; he has stated that when the quarrel took

place at 1.00 AM the person residing below his floor had come up;

he was a 'Behari' but he does not know his name.

16. Testimony of a witness has to be read in its entirety and stray

sentences here and there cannot be picked up to discredit an

otherwise fully reliable version; this discrepancy as has been

pointed out by learned defence counsel is too minor to otherwise

dent the version of PW-1; when an incident is narrated by the same

person on different occasions, some differences in the mode of

narration are bound to arise and such of these differences which do

not militate against the trustworthiness of the narration, unless the

variations can be held to be so abnormal and unnatural and which

would not occur if the witness would have really witnessed what

he/she was narrating.

17. In Suresh vs. State AIR 1981 SC 1122 the Supreme Court

while dealing with the testimony of a child witness had held that

children do tend to mix up what they see with what they like to

imagine to have seen; besides, a little tutoring is inevitable in their

case in order to lend coherence and consistency to their dis-joined

thoughts which tend to stray. In our view testimony of PW-1 is fully

reliable.

18. PW-1 had related this incident to PW-2 who has corroborated

this version of PW-1. She has deposed that on 22.9.2004 at 8.45

AM she had gone to the third floor to wake up her brother who was

sleeping on the terrace; while she was there she called out the

name of PW-1; there was no response; on opening the door she saw

that the mother of Pappu was lying on one side and Pappu was also

lying face down in an injured condition, blood was spattered around;

Pappu, PW-1 was woken up by her; he narrated the incident which

had taken place on the previous night i.e. about his mother being

attacked by his step-father and chacha. PW-2 related this incident

to her father. In her cross-examination this version has been

reiterated.

19. The father of PW-2 Ram Gulam has been examined as PW-3.

He had removed the injured PW-1 to the hospital at 10.00AM. On

oath he has deposed that Maiju was his tenant; he was living there

with his wife and son Pappu. Another person i.e. the devar of the

deceased , either named Saiju or Maju had come to live with them

two-three days prior to the incident. PW-3 had also informed the

police. In his cross-examination, he has stated that his house is a

three storeyed apartment and he is in occupation of the ground

floor and the first floor, the top most floor was in occupation of

Sumita. Nothing has been elicited in his cross-examination to dent

his version. Version of PW-3 has established that the present

appellant i.e. Suresh @ Saiju three days prior to 21.9.2004 had

come to reside with his brother Maiju, the deceased Sumita and the

injured child Azad @ Samanto @ Pappu.

20. We have noted the reasoning of the trial Judge while rejecting

the plea of alibi which had been taken by the defence. It would be

relevant to note that learned defence counsel has not cross-

examined any of the witnesses of the prosecution on the defence

now sought to be set up that on 21.9.2004 the accused Suresh @

Saiju was not present in the house i.e. at G-245, Jahangir Puri and

had in fact gone to attend the cremation of Vidyawati; neither does

this defence find any mention in the cross-examination of the

witnesses of the prosecution and nor had it surfaced till the time the

statement of the accused was recorded under section 313 of the Cr.

P.C.. In his statement under Section 313 of the Cr. P.C. the accused

had stated that he has been falsely implicated and he has no

relation with the deceased or the injured. Even up to this stage he

had nowhere taken up the plea of alibi. This plea found mention for

the first time when the statement of the witnesses of the defence

were recorded i.e. of DW-1 and DW-2 on 26.3.2007. DW-1 and DW-

2 have made parrot like recitations; they have exhibited five

photographs Mark D-1 to D-5 of the scene of the cremation

depicting the presence of the present appellant in one photograph

i.e. Mark D-1. DW-1 had stated that on 21.9.2004 his mother was

cremated at about 4.00 PM and accused Saiju who is the son-in-law

of his brother had come to attend her cremation. In his cross-

examination, he has admitted that his father had already expired

and no photographs had been taken at the time of his cremation.

He has admitted that the photographs proved in his version i.e.

Mark D-1 to D-5 do not depict the date; the presence of accused

Suresh has been noted in one photograph encircled at point 'A' in

Mark D-1. He has admitted the colour of the flag on the 'Jahaj'

depicted in mark D-2 is different from the colour of the flags

depicted in the other photographs i.e. mark D1, D-3 to D-5; he has

also admitted that the border of the photograph mark D-2 is in

green colour whereas the border on the other photographs is in

white colour. DW-2 has deposed on the same line as DW-1. The

deceased Vidyawati was his mother-in-law; in his cross-examination

he has stated that at the time of cremation of his father-in-law no

photographs had been taken; he has admitted that the border of

the photograph Mark D-2 is in a different colour from the other

photographs Mark D-1, D-3 to D-5 and the colours in the flags of the

'Jahaj' are also different in Mark D-2 as compared to Mark D-1, D-3

to D-5.

21. It is relevant to point out that the presence of the accused is

noted in only one photograph Mark D-1. The face of the dead body

has also been depicted in one photograph i.e. Mark D-2. Besides the

fact that the plea of alibi has been taken at a much belated stage;

even otherwise it has clearly been established that the photograph

Mark D-2 which is the photograph of the dead body was taken on a

different date as compared to the other photographs; not only is the

border of this photograph different but the colour of the flags on the

'Jahaj' are also different; photographs at a cremation are also not

taken in routine; the plea of alibi is clearly false and was rightly

rejected by the trial Court.

22. Testimony of PW-18 Dr. Seema, Medical Officer of the BJRM

Hospital has proved the MLC of Azad @ Samanto @ Pappu

evidencing the injuries on his person as grievous. As per this MLC

the victim was referred to the Surgery Ward, the Department of ENT

and also to the Orthopedic department. X- ray record of PW-1 had

been proved by Dr.Shipra Rampal PW-20 Ragiologist in the said

hospital. She had given her detailed report Ex.PW-20/A which had

evidenced a fracture of the middle phalynx of the left finger; the

injuries sustained by PW-1 were grievous.

23. In our view the judgment of the trial Judge calls for no

interference; the evidence, both ocular and documentary had been

appreciated in the correct perspective. Conviction of the appellant

under Section 302/34 of the IPC for having committed murder of

Sumita and his second conviction under Section 307/34 of the IPC

for having caused injury on the person of Azad @ Samanto @ Pappu

which was an attempt to kill him, calls for no interference. Appeal is

without any merit; it is dismissed. Appellant is on bail; his bail bond

and surety bonds are cancelled. He shall surrender forthwith to

suffer the remaining sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

16th September, 2009 nandan