Sunny @ Bhola vs State
2009 Latest Caselaw 3837 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved On: 9thSeptember, 2009
                    Judgment Delivered On: 18th September, 2009

+                        CRL.A. 453/2005

      SUNNY @ BHOLA                            ..... Appellant
               Through:        Ms. Anu Narula, 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.

1. Vide impugned judgment and order dated

30.4.2005, the learned Trial Judge has convicted the appellant

Sunny @ Bhola for the offence punishable under Section 302

IPC. The victim was a young girl named Pooja.

2. The process of law was set into motion, when at

about 1.45/2.00 PM on 30.3.2004, Rakhi daughter of Munshi

Lal PW-11, informed Janki Prasad PW-4 that his daughter Pooja

was lying unconscious in jhuggi number 480, Kabeer Nagar,

Model Town belonging to her father i.e. Munshi Lal and was

bleeding. Immediately, Janki Prasad who was then at his

vegetable retail shop, reached the said jhuggi. He found his

daughter lying dead, with a white coloured handkerchief tied

around her neck. A pillow was lying beside her. He went to the

adjoining jhuggi, belonging to Ramesh, and through the

telephone installed therein, conveyed the information to the

Police Control Room. The Police Control Room transmitted said

information to PS Model Town, being the police station within

jurisdiction whereof the said jhuggi was situated. At the police

station at 2.23 PM, an entry being DD Entry No.9, Ex.PW-15/A,

was entered in the daily diary recording said information.

3. SI Pramod Gupta PW-15 was entrusted with the

investigation pertaining to said DD. Accompanied by ASI Hari

Ram, HC M. Saleem PW-17 and Const.B.A.Rao PW-14, he went

to jhuggi No. 480 Kabeer Nagar, Delhi. He found the dead body

of a girl therein. He noticed a handkerchief tied around the

neck of the girl and a blood stained pillow lying beside her. He

met Janki Prasad the father of the deceased and from him

learnt that the girl was named Pooja. He recorded statement

Ex.PW-4/A of Janki Prasad noting therein that on the day of the

incident Janki Prasad with his children was present in his

jhuggi. At around 12.30 PM his daughter Pooja left for

somewhere. She used to often visit her friend Rakhi during

daytime and assuming that she was going there, Janki Prasad

did not enquire from her as to where she was going. At around

1.45 PM, Rakhi, the 12 years old daughter of Munshi Lal,

alongwith her brother Sumit aged 6 years, came at his jhuggi

and informed that Pooja was lying unconscious in their jhuggi

and was bleeding from her mouth. Sumit further informed him

that he saw Sunny @ Bhola compress Pooja‟s face with the

help of a pillow. Sunny then took Sumit for an ice cream and

threatened him of dire consequences if he told about the

incident to anyone.

4. Proceeding further with the investigation, SI Pramod

Gupta prepared an endorsement Ex.PW-15/B under said

statement of Janki Prasad and sent it for registration of an FIR

through Const.B.A.Rao PW-14. HC Laxman Singh PW-1, the

duty officer at PS Model Town, at 4.30 PM registered FIR No.

205/04 Ex.PW-1/A under Section 302 IPC. Const.Hemant PW-16

delivered copies of the FIR to the Area Magistrate and the

senior police officials.

5. Inspector Hiral Lal PW-19, SHO PS Model Town, who

in the meantime reached the spot, was handed over the

further investigation. He prepared a rough site plan Ex.PW-

19/A of the jhuggi. He summoned a photographer who took six

photographs being Ex.PX-1 to Ex.PX-6 of the spot.

6. After filling up the necessary inquest papers,

Inspector Hira Lal sent the dead body to the mortuary of Babu

Jagjiwan Ram Memorial Hospital through HC Mohd. Saleem

PW-17. He arrested the appellant Sunny @ Bhola at 7.20 PM

on the same day i.e. 30.3.2004 from a public urinal in the

locality i.e. Kabir Nagar, as recorded in arrest memo Ex.PW-

15/C and recorded his disclosure statement Ex.PW-15/E. Since

nothing was recovered pursuant to the disclosure statement,

the contents thereof being irrelevant and inadmissible in

evidence are not being noted.

7. At around 11.40 AM on 31.3.2004, Dr. Anil Sandilya

PW-3 conducted the post-mortem and prepared his report

Ex.PW-3/A. He opined that the cause of death was asphyxia

resulting from external compression of neck by ligature and

obstruction of the air passage of the nose and mouth by a

pillow. He opined the time since death to be 22-24 hours. He

handed over the vaginal swab, the blood sample of the

deceased, the handkerchief tied around her neck and the

clothes of the deceased to HC Mohd. Saleem who handed over

the same to Inspector Hira Lal. Inspector Hira Lal seized them

as recorded in memos Ex.PW-15/F and Ex.PW-15/G. He also

collected blood sample of appellant Sunny @ Bhola and seized

it as recorded in memo Ex.PW-19/B.

8. The articles seized during the investigation were

sent to FSL for forensic examination. As recorded in FSL Report

Ex.PW-19/H1 blood was detected on the vaginal swab of

deceased, the pillow cover and the handkerchief. As recorded

in Serological report Ex.PW-19/H2 blood sample of deceased

was found to be of group „B‟. Human blood of group „B‟ was

detected on the pillow and handkerchief. No opinion could be

given regarding the blood sample of the appellant as the

sample was putrefied.

9. On 20.5.2004, SI Manohar Lal PW-10 prepared a

site plan to scale Ex.PW-10/A at the instance of Janki Prasad.

10. On 18.6.2004, the SHO Inspector Hira Lal recorded

the statements of Munshi Lal PW-11 and his wife Laxmi PW-12

under section 161 Cr.P.C. being the owners of the jhuggi

wherein the dead body was found.

11. Since appellant Sunny @ Bhola was an accused in

the case, on basis of the statement of Janki Prasad to the

effect that Sumit aged 6 years informed him of having seen

Sunny murder Pooja by compressing her face with a pillow, the

success of the prosecution case clearly depended on the

evidence of Sumit as the eye-witness. Sumit was therefore

taken to Sh.Paramjit Singh PW-18, learned MM for recording

his statement under Section 164 Cr.P.C. However, as recorded

in the report Ex.PW-18/B, in light of the answers to a number

of questions put to Sumit to ascertain whether he understands

the nature of the proceedings, the learned MM was of the view

that Sumit was not in a position to make a statement.

12. Sunny @ Bhola was put to trial. The prosecution

examined 19 witnesses. Relevant amongst those are Nand

Kishore PW-5 who is alleged to have last seen the accused

with the deceased, Ram Babu PW-7 who allegedly saw the

accused with Sumit soon after the incident, Janki Prasad PW-4,

Munshi Lal PW-11 and Laxmi PW-12 to whom, as alleged by

the prosecution, Sumit informed of having witnessed the

incident.

13. Nand Kishore PW-5 deposed that in the morning of

30.3.2004, Laxmi PW-12 had asked him to deliver spices at

their house. To deliver the same, he went to her jhuggi at

about 1.30 PM and on finding the front door half open he

asked if there was anyone inside. The accused Sunny @ Bhola

came out from the jhuggi and gestured him that nobody was

there inside. He peeped inside the jhuggi and saw Pooja

present therein. He returned to his house and at about 4.30

PM learnt that Pooja was murdered in the jhuggi of Munshi

Ram.

14. Ram Babu PW-7 deposed that at about 2.00 PM on

30.3.2004, while he was going to sell vegetables, he saw

accused Sunny and Sumit running near the railway track,

looking perplexed. He continued with his work and it was only

at about 7.00 PM that he learnt about the death of Pooja.

15. Janki Prasad PW-4 deposed that at about 1.45 or

2.00 PM on 30.3.2004, when he was at his vegetable selling

shop, Rakhi daughter of Munshi Ram informed him about Pooja

lying unconscious in their jhuggi. He immediately rushed there

and found his daughter lying dead. He went to a neighbouring

jhuggi and telephoned the police control room. When he

returned to Munshi Ram‟s jhuggi, Sumit disclosed that accused

Sunny had visited their jhuggi and he i.e. Sumit saw Sunny

compress the face of Pooja with a pillow and thereafter sit on

her thereby causing her death. He also disclosed that Sunny

took him along, bought him an ice-cream and threatened him

not to disclose the incident to anyone otherwise he would also

be killed.

16. Munshi Ram PW-11 deposed that at about 7.30 PM

on 30.3.2004 when he returned to his jhuggi and was

removing the vegetables from his hand cart, his wife informed

him that Pooja was murdered in their jhuggi by accused Sunny.

Then his son Sumit told him that he saw Sunny commit murder

of Pooja by compressing her face with a pillow. Sumit also told

him that Sunny took him out and bought him a kulfi and

threatened him not to disclose the incident to anyone, else he

would also be murdered. On being cross-examined he stated

that his daughter Rakhi and son Sumit used to go to school at

about 8.00 AM and return home by 12.30 PM.

17. Laxmi PW-12 deposed that at about 5 or 5.30 PM on

30.3.2004, when she returned home from work, her daughter

Rakhi told her that Pooja had been murdered on the bed in

their jhuggi. Her son Sumit also informed her that Sunny

murdered Pooja by compressing her face with the help of a

pillow and thereafter took him across the railway line for an

ice-cream and threatened to kill him if he disclosed about the

incident to anyone.

18. Vide impugned judgment and order dated

30.4.2005, the learned Trial Judge convicted the appellant. The

circumstantial evidence relied upon include the evidence of

last seen by PW-5. The learned Trial Judge held that the

presence of PW-5 being well explained, as he used to sell

spices and had gone to Munshi Lal‟s jhuggi to deliver the same

on the request of Laxmi to do so, he was a reliable witness.

The Trial Court relied upon the evidence of PW-4, PW-11 and

PW-12 and held that besides the three deposing unanimously

about Sumit disclosing to them that he witnessed the crime,

their testimonies also find corroboration from the post-mortem

report Ex.PW-3/A and the evidence of PW-7. The post-mortem

report records the cause of death to be asphyxia due to

blockage of air passage through nose and mouth, which fact

lends assurance to the truthfulness of PW-4, PW-11 and PW-12

insomuch as they deposed that Sumit informed them of having

seen Sunny place a pillow on Pooja‟s face and throttle her by

placing his body weight thereon. PW-7 deposed of seeing

appellant Sunny with Sumit near the railway track, looking

perplexed which corroborates with the deposition of PW-4, PW-

11 and PW-12 to the effect of Sumit having disclosed to them

that after murdering Pooja, Sunny took him near the railway

tracks for an ice-cream.

19. During argument in the appeal the blemish shown

in the testimony of the witnesses pertained to the testimony of

Janki Prasad PW-4. In his statement Ex.PW-4/A he informed

the police that Rakhi and Sumit came to his jhuggi and

informed that Pooja was lying unconscious in their jhuggi and

was bleeding from her mouth. Further, Sumit told him that he

saw Sunny compress Pooja‟s face with the help of a pillow and

that thereafter Sunny took him for an ice-cream and

threatened him with dire consequences if Sumit told said fact

to anybody. While deposing in Court, Munshi Lal gave a

changed version by deposing that Rakhi informed him of his

daughter Pooja lying in an unconscious condition in their

jhuggi and he went to the jhuggi of Rakhi. On seeing his

daughter lying dead he started weeping and went to the

adjoining jhuggi of Ramesh and requested him to inform the

police. On returning from the jhuggi of Ramesh he met Sumit

who told him that they have not committed any offence and

one Sunny had smothered to death his daughter by putting a

pillow on her mouth.

20. Though appearing to be apparently innocuous,

learned counsel urged that the witness has been made to

depose differently vis-à-vis his statement made to the police

for the reason if the witness stood by his first statement i.e.

the statement recorded by the police, there would be no scope

for the prosecution to introduce Ram Babu PW-7 who deposed

that at around 2:00 PM on 30.3.2004 he saw the accused in

the company of Sumit near the railway track and the accused

was in a perplexed condition. Counsel urged that as per Janki

Prasad he had received the information of his daughter‟s death

at about 1:45 or 2:00 PM. DD No.9 Ex.PW-15/A records the

time at 2:23 PM when information of Pooja‟s death was noted

at the police station. Counsel urged that if Sumit was enticed

away with the lure of ice-cream then Sumit could not be

present at the spot at around 2:00 PM. To account for Sumit

being seen at the railway line and also being met by Janki

Prasad, the latter changed his version by deposing that he met

Sumit when he returned to the jhuggi after visiting the jhuggi

of Ramesh and making a call to the police.

21. With reference to the testimony of Nand Kishore

PW-5 learned counsel urged that as per his testimony he saw

the appellant in the jhuggi with Pooja. Counsel urged that as

per Nand Kishore he went to sell spices to Laxmi, the mother

of Rakhi. Counsel urged that Nand Kishore has been

introduced/planted as a witness to depose falsely and to justify

his presence at the spot he claimed to be selling spices.

Firstly, counsel urged that there is no proof given by Nand

Kishore of being engaged in the business of selling spices.

Secondly, counsel urged that from the testimony of Nand

Kishore, if he deposed truthfully, it was apparent that he was

supplying spices to Laxmi at her jhuggi, and if this be so, it is

strange that he did not know the number of children born to

Laxmi. Counsel urged that the prosecution has not examined

Laxmi who would be the best person to prove whether she had

been purchasing spices from Nand Kishore.

22. Learned counsel urged that Rakhi aged 12 years

was a vital witness because as per Janki Prasad; in both his

statements i.e. the one made to the police and the one made

in Court, Rakhi had informed him of Pooja lying unconscious in

their jhuggi. Counsel submitted that since Sumit aged 6 years

was found to be not capable of understanding the questions

evidenced by Ex.PW-18/B, the record of the proceedings held

by Shri Paramjit Singh PW-18, the learned Metropolitan

Magistrate before whom Sumit was produced on 25.6.2004 for

statement to be recorded under Section 164 Cr.P.C., it was all

the more important to examine Rakhi. Counsel submitted that

since a material witness was withheld by the prosecution a

benefit of doubt needs to be extended to the appellant.

23. Lastly, counsel urged that what Sumit stated as

deposed to by Janki Prasad was hearsay evidence and the

alleged statement of Sumit was not admissible under Section 6

of the Evidence Act as it went beyond the rule of res gestae.

24. We take up for consideration, the last plea urged for

the reason if what was told by Sumit to Janki Prasad is not part

of res gestae, then testimony of Janki Prasad that Sumit told

him that the appellant smothered to death Pooja would be

hearsay evidence and hence inadmissible.

25. The principle of law embodied in Section 6 of the

Evidence Act is usually known as the rule of res gestae

recognized in English law. The essence of the doctrine is that

a fact which, though not in issue, is so connected with the fact

in issue „as to form part of the same transaction‟ that it

becomes relevant by itself. This rule is, roughly speaking, an

exception to the general rule that hearsay evidence is not

admissible. The rationale in making certain statement or fact

admissible under Section 6 of the Evidence Act is on account

of the spontaneity and immediacy of such statement or fact in

relation to the fact in issue. But it is necessary that such fact

or statement must be a part of the same transaction. In other

words, such statement must have been made

contemporaneous with the acts which constitute the offence or

at least immediately thereafter. But if there was an interval,

however slight it may be, which was sufficient enough for

fabrication then the statement is not part of res gestae. See

Gentela Vijayavardhan Rao vs. State of A.P. 1996 (6) SCC 241.

26. In the decision reported as AIR 1999 SC 3883

Sukhar vs. State of Uttar Pradesh Section 6 of the Evidence Act

was discussed as under:-

"Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is

required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore‟s Evidence Act reads thus:

"Under the present Exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the existing fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.""

27. The principles relatable to the rule of res gestae are

four in number:-

"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and by-standers. In conspiracy, riot and the declarations of all concerned in the common object are admissible.

4. Though admissible to explain or corroborate or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."

28. It is thus very important, while applying Section 6 of

the Evidence Act, that by virtue of Section 6 of the Evidence

Act declarations cannot be equated as evidence of the truth of

the matters stated.

29. Tested on the aforesaid anvil of law, as deposed to

by PW-4 in the Court, Sumit never met him in the jhuggi where

his daughter was murdered when PW-4 went to the jhuggi for

the first time. Sumit met him in the jhuggi when he returned

to the jhuggi after visiting the jhuggi of Ramesh. Thus, it is

apparent that Sumit was not at the place of the crime when

PW-4 went to the said place at the first instance. Thus,

spontaneity and immediate proximity as also continuity, the

sine qua non for applicability of principle of res gestae has

been snapped. To put it differently the statement of Sumit

cannot be the natural effusion of a state of excitement and

hence would not be admissible under Section 6 of the

Evidence Act.

30. The learned Trial Judge has principally held against

the appellant, believing and accepting as truthful Sumit‟s

statement allegedly made to Janki Prasad PW-4. We note that

same facts were deposed to by PW-11 and PW-12 and their

testimony that Sumit told them that the appellant murdered

Pooja suffers from the same fate as the testimony of Janki

Prasad because Laxmi claims to have been informed by her

son at 5:00 or 5:30 PM and Munshi Ram claims to have been

so informed by his son at 7:30 PM. It is in this connection that

withholding Rakhi aged 12 years as a witness assumes

significance. Had she been examined as a witness much light

would have been thrown as to how Pooja, Rakhi‟s friend came

to her jhuggi and stayed back, to be unfortunately done to

death.

31. The deposition of Ram Babu PW-7 has to be seen in

the context of the testimony of Janki Prasad PW-4. We find

merit in the submission urged by learned counsel for the

appellant that the possibility of PW-7 being introduced as a link

witness to fill up the gaps in the testimony of Janki Prasad and

explain Sumit‟s absence at the jhuggi and being lured with ice-

cream and returning to the jhuggi. We are of the opinion that

in a grave offence of murder where serious consequences flow

against an accused, the lurking doubt in our mind for the

reason afore-noted, compels the judicial mind to doubt the

testimony of Ram Babu. Even if we accept the testimony of

Ram Babu the same would establish that the appellant was in

a perplexed mind and was seen near the railway line. The

presence of the appellant near the railway line is natural for

even the appellant resided in the same slum cluster where the

crime took place. It is not a case where the appellant was not

expected to be seen near the slum cluster.

32. There is merit in the contentions urged by learned

counsel for the appellant with respect to the testimony of Nand

Kishore PW-5 for the reason there is no proof of Nand Kishore

being engaged in the sale of spices. Laxmi not being

examined assumes significance as her testimony would have

thrown light whether at all Nand Kishore was selling spices to

her. The fact that Nand Kishore could not even disclose the

number of children born to Laxmi is an indication that he was

not a regular visitor to Laxmi‟s house. Had he been selling

spices to Laxmi he would certainly have remembered, if not

the names, at least the number of children born to Laxmi and

Munshi Ram.

33. Before bringing the curtains down we may note that

the law pertaining to circumstantial evidence requires each

and every incriminating circumstance to be proved and further

requires that the chain of incriminating circumstances has to

be complete wherefrom the inference of guilt can be inferred

against the accused and innocence ruled out. Though not

required to be proved and if not proved, not fatal to the case

of the prosecution, we note that the prosecution has not

proved any motive for the crime. There is no evidence of

Pooja being sexually assaulted or even an attempt made to

sexually assault her. There is no evidence of the appellant

having enmity with Pooja or her family members. In the

peculiar facts and circumstances of the instant case, lack of

any motive being proved is a factor which has weighed with

us.

34. The appeal is accordingly allowed. We give the

benefit of doubt to the appellant. The impugned judgment and

order dated 30.4.2005 is set aside. The appellant is acquitted

of the charge framed against him.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 18, 2009 mm / Dharmender