Ajit Kumar @ Ajju Son Of Ram Kishan vs State
2010 Latest Caselaw 2099 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment Reserved on : 12th April, 2010
%                           Judgment Pronounced on :21st April, 2010

+                           Crl. A. No. 562/2008

        AJAY KUMAR @ AJJU SON OF
        RAM KISHAN                       ..... Appellant
                      Through: Mr.S.M.Chopra, Advocate
                 versus
        STATE                            ..... Respondent
                      Through: Ms.Richa Kapoor, APP

                            Crl. A. No. 563/2008

        VIJENDER @ BIDDI SON OF
        PHOOL SINGH                      ..... Appellant
                      Through: Mr.S.M.Chopra, Advocate
                 versus
        STATE                            ..... Respondent
                      Through: Ms.Richa Kapoor, APP

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?


SURESH KAIT, J.

1. Instant appeals have been preferred against the

judgment and order dated 03.04.2008 convicting the

appellants for the offence punishable under Section 302/34 IPC

and for the offence punishable under Section 201 IPC. For the

former offence, the appellants have been sentenced to

undergo imprisonment for life and for the latter to undergo RI

for a period of 7 years. The third accused namely Manoj was

not committed to trial since he was declared a Proclaimed

Offender.

2. On 15.10.2000 Omwati PW-10 went to the police

station where HC Bhim Singh recorded her statement Ex.PW-

6/A vide DD No.27 wherein it was recorded that her son

Rajender @Marshall aged 24 years wearing black coloured

pant and grey coloured check shirt had not returned since he

left his house at 7:00 PM on 13.10.2000. No suspicion was

cast on anybody. On 17.10.2000 Omwati went to the police

station where her statement Ex.PW-2/A was recorded in which

she informed that on 13.10.2000 her son Rajender @ Marshall

had left the house at 7:00 PM on 13.10.2000 with Ajay in

respect whereof she had already lodged a complaint and since

her son had not returned she suspected Ajay. HC Baljeet

Singh who recorded the statement Ex.PW-2/A made an

endorsement Ex.PW-2/B beneath the statement and handed

over the same to HC Rajesh Kumar PW-3 who registered the

FIR Ex.PW-3/A.

3. The investigation was entrusted to SI Rajbir Singh

PW-14 who recorded the statement of Deepak Sharma PW-11,

the brother-in-law of Rajender who claimed that on 13.10.2000

he went to the house of his sister Omwati and in his presence

Ajay came to the house of his sister and took Rajender. When

Rajender did not return till around 9/9:30 PM his sister told him

to look for Rajender. He searched for Rajender and when he

was on Nazafgarh Road, near Mohan Garden he saw a DCM

Toyota belonging to Ajay. He saw Vijender and Manoj as also

Rajender and Ajay in the said DCM Toyota. All were drinking.

Ajay told him that he would leave Rajender at his house.

4. It is apparent that the further break through could

be found only after Ajay, Vijender or Manoj could be contacted.

5. All three eluded the police till 31.10.2000 when

Omwati and her son Surender PW-8 came to the police station

and informed that they had seen the appellants. They led the

police to Uttam Nagar Bus Terminal where appellants were

apprehended and on interrogation made disclosure statements

Ex.PW-8/A and Ex.PW-8/B respectively confessing to having

killed Rajender after intoxicating with liquor. Both disclosed

that after Rajender was strangulated his body was removed to

a jungle where they hit the dead body with a spade and after

collecting dry grass and twigs and pouring petrol over the

body it was set on fire. Both appellants disclosed that they

could lead the police to the place where the body of the

deceased was burnt. Thereafter, as recorded in the memo

Ex.PW-8/A both appellants led the investigating officer to a

jungle near B-Block, Sainik Nagar and pointed out the spot

where they had brought the body of Rajender and inflicted

blows on the dead body with a phawda. From the said spot

blood stained earth as also a locket Ex.P-1 having the emblem

„Om‟ and picture of Lord Hanuman, a packet of gutka Ex.P-2 of

Raj Darbar make, jaw bone Ex.P-12 with two teeth intact, three

teeth Ex.P-13 were lifted. Burnt ash as also burnt twigs Ex.P-4

and Ex.P-5 having remnants of blood thereon were lifted. All

of which were sealed. At a little distance from the said spot

burnt pieces of cloth being Ex.P-7, half-burnt belt Ex.P-8 were

lifted. At a little distance a semi burnt skull was got recovered

by the appellants. As recorded in the memo Ex.PW-8/C, the

appellant stated that since the skull did not get fully burnt,

they threw the same at the spot wherefrom it was recovered.

6. Further investigation was entrusted to

Insp.T.P.S.Tomar. Appellants led him to a vacant plot in Sainik

Nagar and lying concealed within bushes got recovered two

phawdas Ex.P-10 and Ex.P-11 which were seized as per memo

Ex.PW-8/D. Appellant Ajay led him to his house No.139, Village

Navada, Uttam Nagar and got recovered a pant Ex.P-12 and a

shirt Ex.P-13 stated to be worn by him when the crime was

committed. Appellant Vijender led the investigating officer to

his house B-84 Mansa Ram Park, Uttam Nagar and got

recovered a pant Ex.P-14 and a shirt Ex.P-15 which were

seized vide memo Ex.PW-8/E.

7. Blood samples of Omwati were taken and along

with the bones recovered as afore-noted were sent for DNA

analysis and as per report Ex.PW-17/F it was opined that the

DNA extract obtained from the skull Ex.A matched the DNA of

Omwati. It was opined that the skull was of the biological

offspring of the person whose blood sample Ex.D (Omwati‟s)

was sent for DNA analysis.

8. The bones recovered were sent for forensic

examination to DDU Hospital. Dr.R.K.Sharma prepared the

report Ex.PW-16/A, proved at the trial by Dr.Lalit Kumar PW-16,

recording as under:-

"This contained one skull bone without mandible and zygomatic bone. Offensive odour coming out from the bone which is attached with wet torned ligaments. The skull bone is of human in origin which is deduced from its shape bony prominence and other anatomical features.

Keeping in view of the odour wet texture of the ligaments I am of the opinion that the skull bone is of few weeks old.

The left temporal bone and adjoining area of bone has gap measuring 6 cm x 2 cm x Carinal cavity deep. This gap has irregular margins and could have occurred from hard and heavy blunt impact. In absence of any blood clot around the margins and

adjoining area it cannot be precisely said that it is antemortem or postmortem.

The frontal bone on its right side shows black and faint reddish area with line of redness all around suggesting exposure of front of head on head. The lower part of the burnt area of frontal bone shows irregular small holes about 0.3 cm x 0.3 cm. This impression could have been due to hard blunt piercing instrument. These could have occurred from the weapons supplied for opinion.

Further the base of the skull shows the remnants of muscle and pigment attachments. The right optic nerve shows hard projection in the orbital cavity.

The sutures of the skull bone is not showing synostosis indicating that the skull bone does not belong to old person.

The supercilliary archs, mastoid process & external occipital protuberance are intact. The prominence are well marked which suggest that the skull bone is possibly of male person.

A zygomatic process on right side is intact while on left side is found broken. No firm opinion can be given about this fracture. No brain mater in the skull cavity seen but dried meninges at places were seen attached on the inner table of the skull bone. Dried dark brown blood clot have been seen from foremen magnum on viewing in sun-light. No opinion about the age of blood clot can be given.

JAR -2 SMALL It contains (1) front part of mandible showing mental foremen which is 1 cm above the base of the mandible and 1.5 cm below the alveolar margin. Opinion: The age of the person based on the situation of the mental foreman suggests that this is of an adult person. There is dried muscle attached on both sides of this bone.

(2) Piece of maxilla of left side with five teeth namely one canine, two premolars & two molars. The socket of the third molar is separate which on assembling appears to be of same side. In other words all the permanent molars have erupted and indicate the age of the person around 25 years to 30 years. The colour of the teeth is stained dark brown at its root extending upwards & fade thereof. This suggest that the person was habitual tobacco chewer.

(3) Appears to be the remnant of mandible bone having two permanent teeth. The colour of the teeth is dark brown.

(4) One incisor teeth stained dark brown all over (adult age).

JAR - 3 (Medium) The anatomical study of the bone do not suggest that these are of human in origin. The bones are of mixed type, burnt and blackened."

9. The appellants were sent to trial. The prosecution

sought to establish the case through the testimony of Deepak

Sharma PW-11 of having seen Rajender in the company of the

appellants and co-accused Manoj in the night of 13.10.2000

and this was the last seen of Rajender. Further evidence led at

the trial was the discovery of the spot at the instance of the

appellants wherefrom the bones as afore-noted were

recovered, the skull bone being found to be that of the

biological offspring of Omwati. Thus, the knowledge of the

appellants of Rajender being murdered and burnt at the spot

as recorded in the memo Ex.PW-8/A from where bones proved

to be those of Rajender, with reference to the skull bone, was

sought to be established. Needless to state, the locket Ex.P-1,

the half-burnt belt Ex.P-8 and burnt pieces of cloth Ex.P-7

claimed to be remnants of the pant and the shirt of Rajender

recovered from the said spot were sought to be the evidence

led against the appellants.

10. The learned Trial Judge has held that Deepak

Sharma‟s testimony establishes last seen evidence. The

report Ex.PW-17/F establishes that the skull recovered as

entered in the memo Ex.PW-8/A was that of Rajender and the

locket Ex.P-1 and the burnt clothes Ex.P-7, the belt Ex.P-8

proved to be those of Rajender, being identified by Omwati in

Court, were sufficient evidence wherefrom guilt of the

appellant could be inferred.

11. We find taint in the last seen evidence for the

reason neither in her statement Ex.PW-6/A nor in her

statement Ex.PW-2/A made by Omwati on 15.10.2000 and

17.10.2000 does Omwati disclosed that her son-in-law Deepak

Sharma PW-11 saw her son in a drunken condition with the

appellants and Manoj in a DCM Toyota near Mohan Garden on

Nazafgarh Road at around 9:00 PM on 13.10.2000. Had

Deepak Sharma actually seen what he claimed to have seen,

surely, he would have told this to Omwati who would have so

stated before the police. The reasoning of the learned Trial

Judge that Omwati being a rustic person may not have so told

is not good reasoning for the reason merely because a person

is rustic would not mean that the person is stupid. That a

person is rustic would mean that the conduct and utterances

of said person would have to be evaluated giving credit of the

person being rustic, but factoring in the rustic commonsense

which a rustic person would possess. Now, certain facts are so

elementary that even a rustic person would disclose the same

in a given situation. Omwati‟s son had not returned home for

two days when she went to the police station on 15.10.2000.

If she had the wisdom to tell the police the colour of the

clothes which her son was wearing, she would have certainly

told, as claimed by her in Court that her son left in the

company of Ajay, a fact which she disclosed only on

17.10.2000. Further, when she went to the police station on

17.10.2000, she would have certainly informed that her son-in-

law had on 13.10.2000 seen her son in the company of the

appellants and Manoj.

12. Thus, we discount the last seen evidence sought to

be proved.

13. The locket Ex.P-1 was not subjected to any Test

Identification Proceedings and thus we discount the

evidentiary value of Omwati identifying the same as that of

her son while deposing in Court. Similarly, we discount the

evidentiary value of the burnt belt Ex.P-8 and burnt pieces of

cloth Ex.P-7 identified by Omwati in Court as the belt of her

son and the remnants of the pant and the shirt worn by her

son. The reason is that neither of them has any peculiar

characteristic to prove the distinct identity of any one of them.

14. But, the report Ex.PW-17/F and the fact that the

skull of the deceased which got connected with reference to

the DNA extract of the skull to that of Omwati proving that the

skull was of the biological offspring of Omwati is good enough

evidence wherefrom the guilt of the appellants can be inferred.

15. We note at the outset that the report Ex.PW-17/F

was not challenged.

16. In the decisions reported as AIR 1947 PC 67

Pulukuri Kottaya & Ors. Vs. Emperor, 1989 Crl. LJ (NOC) 200

(Gauhati); Chakidhar Paharia Vs. State of Assam, 1986 Crl. LJ

220 Parimal Banerjee Vs. State and AIR 1963 SC 1074 Ram

Lochan Ahir Vs. State of West Bengal recoveries of dead

bodies pursuant to disclosure statements were held to be not

only admissible incriminating evidence but of a very lethal

variety against the maker of the statement.

17. It is not a case where an identifiable dead body was

recovered. There is no scope for an argument that the

appellants could have possibly a knowledge that the dead

body of Rajender was lying at the spot in question and hence

told the investigating officer of said fact.

18. The body was completely burnt with remnants of

the skeleton at the place where the body was cremated. Only

he who burnt the body could have led the police to the said

spot. That the DNA extract of the skull was proved to be that

of biological offspring of Omwati is independent evidence

which links the recovery to the crime.

19. Further, it is not simply a case of recovery of the

bones of the deceased from a spot which was not in the

knowledge of the police and to which spot the police was led

by the appellants, but is also a case where a fact not in the

knowledge of the police and as told by the appellants got

independent corroboration through the testimony of Dr.Lalit

Kumar PW-16 on proof of the report Ex.PW-16/A which

establishes that the person whose bones were sent for forensic

examination was beaten. As noted herein above in the report

it has been opined that the irregular margins and irregular

small holes detected on the left temporal bone and the frontal

bone respectively show that the body was pounded with a

hard and heavy blunt impact. The knowledge of the appellants

as disclosed in their disclosure statements that before being

burnt Rajender‟s dead body was bashed up with a phawda is

important as it relates to the condition of an object i.e. the

dead body of Rajender and was disclosed to the investigating

officer much before the remnants of the body of Rajender were

recovered. To put it pithily, Section 27 of the Evidence Act is

attracted in the instant case not only with reference to the

knowledge of the appellants as to the place where remnants of

the cremated dead body of Rajender were recovered but also

to the condition of the dead body of Rajender before it was

burnt; the condition being that the dead body was inflicted

blows with a phawda, a fact proved through the report Ex.PW-

16/A.

20. Said solitary circumstance of recovery, in the facts

of the instant case, is sufficient wherefrom the guilt of the

appellants can be inferred.

21. The appeals are dismissed.

22. Since the appellants are in jail we direct that a copy

of this decision in each Appeal be sent to the Superintendent,

Central Jail, Tihar for being made available to the appellants.

(SURESH KAIT) JUDGE

(PRADEEP NANDRAJOG) JUDGE

APRIL 21, 2010 dk