Rajdev Kumar Yadav vs State
2010 Latest Caselaw 2142 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment Reserved on: 19th April, 2010
                           Judgment Pronounced on: 23rd April, 2010

+                           CRL.APPEAL No.304/2010

       RAJDEV KUMAR YADAV               ..... Appellant
                Through: Mr.Jitendra Kumar Singh, Advocate

                                   versus

       STATE                                      ..... Respondent
                       Through:    Mr.M.N.Dudeja, Advocate

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 the Reporter or not?

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

PRADEEP NANDRAJOG, J.

1. Discussing the evidence led, concluding the

decision in para 87 of the impugned judgment and order dated

10.9.2009, the learned Trial Judge has held as under:-

"87. Consequently, it is established from the evidence that the prosecution has successfully proved the chain of circumstances, i.e., last seen of accused in the company of deceased Ambey; motive for the accused to commit the murder of the deceased; absconding of the accused from the spot after committing the murder of deceased Ambey and recovery of body of deceased Ambey from the spot; seizure of attendance registers of the employers of the deceased and the accused; arrest of accused from his native village, his disclosure statement and recovery of weapon of offence, i.e., Gandasa at the

instance of the accused; post-mortem on the body of the deceased and the report of the autopsy surgeon and the FSL report, added by taking false defence by the accused, in which in all the probabilities, the accused committed the murder of deceased Ambey."

2. The witness to the evidence of last seen is Veer

Singh Tiwari PW-1 the landlord of the building bearing

Municipal No.E-189, New Ashok Nagar in a room whereof on

the second floor the dead body of a lady named Ambey was

found in the evening of 17.6.2006. As per Veer Singh Tiwari,

Ambey and the appellant used to reside together in the said

room and that at around 6 or 6:15 AM on 16.6.2006 he saw the

appellant going somewhere after locking the said room. The

motive for the crime has been held established through the

testimony of Veer Singh Tiwari and his son Gajraj Singh PW-3

as per whom the appellant and Ambey used to quarrel. Proof

of the fact that the appellant absconded is through the

testimony of PW-1 and PW-3 as also the testimony of

Hrishikesh Sinha PW-5 and the attendance register Ex.PW-5/A

as per which the appellant who was an employee under Shore

to Shore MIS Pvt. Ltd. did not report for duty after completing

his night duty from 9:00 PM on 16.6.2006 till 5:30 AM the next

day i.e. 17.6.2006. With reference to the police officers who

investigated the offence the appellant was apprehended on

22.6.2006 from his native village Chhapra in Bihar. The

learned Trial Judge has held that the testimony of the police

officers established that pursuant to the disclosure statement

made by the appellant he got recovered a dao (gandasa),

which was detected with human blood of the same group as

that of the deceased.

3. As deposed to by ASI Hanif PW-14 on 17.6.2006 at

about 8:15 PM, when on duty as the duty officer at PS New

Ashok Nagar on receiving information from the police control

room he recorded DD No.20A, Ex.PW-14/A that foul smell was

emanating from House No.E-189, New Ashok Nagar which was

locked. Inquiry was entrusted to SI Dharampal PW-17 who

accompanied by Const.Rambir left the police station and on

reaching the spot, as deposed to by Insp.Gajender Singh PW-

22 informed Insp.Gajender Singh about foul smell being

emitted at the spot and thus Insp.Gajender Singh reached the

spot which happened to be the second floor of the house in

question. The landlord Veer Singh PW-1 and his son Gajraj PW-

3 who resided 3 buildings away at E-186, New Ashok Nagar

from where they also carried own business of a provision store

were present. As deposed to by SI Dharampal the lock was

broken and on entry a decomposed dead body of a lady with

cut mark on the neck was recovered. SI Dharampal prepared

the rukka Ex.PW-17/A and got the FIR registered. As deposed

to by Insp.Gajender Yadav he prepared the site plan Ex.PW-

22/A without scale and lifted various blood stained clothes as

recorded in the memo Ex.PW-1/B. He seized the broken lock

as recorded in the memo Ex.PW-1/E. Calendar Ex.P-1 on which

„Shore to Shore‟ was printed was seized vide memo Ex.PW-1/A

and body was sent to the mortuary. He recorded the

statement of Veer Singh Tiwari PW-1 and Gajraj Singh PW-3

who informed that the deceased Ambey and the appellant

were residing as their tenants in the room in question and that

since 16th of the month, the appellant was not to be seen.

4. As deposed to by Insp.Gajender Singh he learnt that

deceased Ambey was working at a factory at E-25, Sector 6,

Noida and that the appellant was employed with a company

„Shore to Shore Pvt. Ltd.‟, Okhla Industrial Area.

5. Inquest papers Ex.PW-22/C and Ex.PW-22/D were

completed after relatives of Ambey identified her dead body

on 21.6.2006 and post-mortem was conducted on said day as

deposed to by Dr.Mukta Rani PW-20 who prepared the post-

mortem report Ex.PW-20/A recording 3 incised wounds at the

neck and a deep incised wound on the neck. The deep incised

wound proved to be fatal as the blood vessels were cut since

the said injury had cut through the skin and the neck muscles.

6. As deposed to by Raj Kumar Ahuja PW-4 Ambey

was employed at his Garment Fabrication Unit as a thread

cutter and as per attendance register Ex.P-5 she had last

worked at the factory on 15.6.2006 from 9:00 AM to 6:00 PM.

As deposed to by Insp.Gajender Singh he had seized the said

register during investigation.

7. As deposed to by Hrishikesh Sinha PW-5 he was the

Manager Administration of the company M/s. Shore to Shore

MIS Pvt. Ltd. and that appellant was working in the said

company and had last reported for duty in the night of

15.6.2006 and left next day morning at 5:30 AM and that

thereafter the appellant did not report for duty. He deposed

that he handed over the attendance register Ex.PW-5/A to the

police and that the calendar Ex.P-1 was printed by their

company. Insp.Gajender Singh Yadav deposed having seized

the register Ex.PW-5/A on the same being handed over to him

by the Manager Administration of the company.

8. As deposed to by Insp.Gajender Singh he learnt that

the appellant and Ambey were from around the same area in

Bihar. He deputed SI Dharampal to go to Motihari Bihar to try

and find the whereabouts of the appellant as his native village

was Chhapra where the family of Ambey also resided as per

information available with the police.

9. As deposed to by Shaikh Mohd.Idris PW-7, the

father of Ambey, Nooran Nisha PW-8, the mother of Ambey

and Shaikh Abdul Rauf PW-10 the brother of Ambey, Ambey

Khatoon was married to one Kamrudin and that no children

were born to her. Kamrudin complained to them that Ambey

did not have good character as she used to roam around with

Rajdev Kumar Yadav. This information was given by the three

to SI Gajender Singh.

10. As deposed to by SI Dharampal on 22.6.2006,

accompanied by Const.Rana Pratap and Const.Sanjeev he

went to Chhapra and with the assistance of the local police of

PS Sungauli managed to get information of the whereabouts of

the appellant whom he apprehended as recorded in the memo

Ex.PW-9/C and on interrogation recorded the disclosure

statement Ex.PW-9/A. The next day he obtained necessary

orders from the Court of the Chief Judicial Magistrate and

brought the appellant to Delhi and handed him over to

Insp.Gajender Singh. As deposed to by Insp.Gajender Singh

the appellant was produced before him on 24.6.2006 and he

recorded his supplementary disclosure statement Ex.PW-21/A

as per which he informed that the dao (Gandasa) with which

he had slit the neck of the deceased had been thrown in some

bushes at Hindon Canal and he could get the same recovered.

The next day i.e. on 25.6.2006 he produced the appellant

before the duty Metropolitan Magistrate and obtained

permission to take the appellant outside Delhi and the accused

led him to Hindon Canal in front of Dharamshila Cancer

Hospital and pointed out as recorded in the pointing out memo

Ex.PW-6/A the bushes near Hindon Canal from where the dao

Ex.P-6 was recovered as entered in the seizure memo Ex.PW-

6/C. Sketch Ex.PW-6/B was drawn by him.

11. As deposed to by Insp.Gajender Singh PW-22 all the

exhibits recovered at the spot on 17.6.2006 and the dao were

sent for forensic examination and the FSL report Ex.PW-22/F

and Ex.PW-22/G was received. The said FSL report shows that

human blood of group „A‟ i.e. that of the deceased was

detected on the dao.

12. Veer Singh Tiwari PW-1 deposed that he was

running a provision store at E-186, New Ashok Nagar and was

also the owner of house bearing No. E-189 New Ashok Nagar

consisting of 12 rooms. 4 to 5 months prior to the incident he

let-out a room on the second floor of the house to the accused

Rajdev Yadav and Ambey. On 15.6.2006 between 6:00 PM to

6:30 PM a quarrel took place between Rajdev Yadav and

Ambey and when he intervened to get the matter sorted out

the accused and Ambey told him not to interfere. Next

morning when he was in his room at about 6:00 AM or 6:15 AM

he saw accused Rajdev lock his room and go somewhere. By

the evening of 17.6.2006, when he was at his shop, some

other tenants in his house informed him about foul smell

coming from the room occupied by Rajdev Yadav and Ambey.

He went to the room and on finding it locked, peeped through

a small hole in the window of the room and saw something

lying under the bed. It appeared to be a body. He summoned

the police who arrived and on breaking open the lock went

inside the room and found the dead body of Ambey lying on

the floor. The dead body had cut marks on its throat. In his

presence, the police seized a calendar Ex.P-1, various blood

stained clothes lying in the room and the bed-sheet Ex.P-3

with which the dead body was covered, as recorded in the

memos Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C. The broken lock

was also seized in his presence as recorded in the memo

Ex.PW-1/B. Thereafter the body was sent to the mortuary.

13. What assumes importance is that on being cross-

examined by the counsel for the accused, Veer Singh Tiwari

PW-1 admitted that in his statement given to the police soon

after the incident he did not mention that on 16.6.2006 at

about 6:00 or 6:15 AM he saw the accused lock his room from

outside and go somewhere else.

14. Gajraj Singh PW-3 deposed that along with his

father he ran a grocery shop at E-186, New Ashok Nagar and

they were the owners of another house bearing No.E-189, New

Ashok Nagar having 3 floors and 12 rooms. On a room on the

second floor appellant and Ambey resided as tenants and used

to quarrel. On 17.6.2006 a tenant informed that foul smell

was emanating from the room of the accused and police was

informed. He deposed further facts of what happened when

the police came as deposed to by his father.

15. On being cross-examined he stated that he used to

open the shop at around 5:00 AM and did so, on 16.6.2006 as

well. After the shop was opened his father left saying that he

would bring milk and had to meet a tenant.

16. It is apparent that Veer Singh Tiwari and his son

carried on business from a shop on the ground floor of E-186,

New Ashok Nagar and resided on the upper floor thereof. Veer

Singh Tiwari owned the building three plots away i.e. E-189,

New Ashok Nagar let out to tenants and as per father and son,

appellant and Ambey had taken a room on the second floor of

said building on rent.

17. Having not told the police in his statement under

Section 161 Cr.P.C. that he saw the accused lock the room and

go somewhere at around 6:00 AM or 6:15 AM on 16.6.2006, it

is apparent that Veer Singh Tiwari has made an improvement

of a material nature while deposing in Court.

18. We proceed with the analysis of the evidence

excluding the evidence used by the learned Trial Judge that

the appellant was seen leaving the building after locking his

room at around 6:00 AM or 6:15 AM on 16.6.2006.

19. Thus, we need not discuss the reasoning of the

learned Trial Judge with reference to the fact brought on

record by the prosecution that the appellant had left his

factory at Okhla after completing duty at 5:00 AM on

16.6.2006 and could possibly reach the scene of the crime and

after committing the same ran away from the spot.

20. We need not also discuss the claim of the appellant

that he did overtime on 16.6.2006, but we note that there is

no evidence that the appellant worked overtime on 16.6.2006

and did not leave his factory at Okhla after completing the

duty at 5:00 AM on 16.6.2006.

21. It is apparent that Veer Singh Tyagi has over stated

the truth pertaining to having seen the appellant lock the room

and leave the house at around 6:00 AM on 16.6.2006. It is not

unknown for witnesses to exaggerate versions out of contempt

against whom they perceive as evil men. Qua such witnesses,

the duty of the Court is, to segregate the lies from the truth

and be careful in evaluating remaining testimony of the

witness.

22. We see no reason to disbelieve the testimony of

Veer Singh Tyagi and his son that the appellant and Ambey

used to reside in a room taken on rent in the building in

question, in which room the dead body of Ambey was

recovered. Through the testimony of the parents Shaikh

Mohd.Idris and Mst.Nooran Nisha as also the brother Shaikh

Abdul Rauf we find corroboration to the fact that the appellant

and Ambey were staying together. Notwithstanding the denial

by the appellant to the incriminating evidence of his knowing

Ambey and residing with her in a room on the second floor of

building bearing No.E-189, New Ashok Nagar, we hold that the

prosecution has established that the appellant was residing

with Ambey in the room in which Ambey‟s dead body was

found. It requires to be noted that the appellant has not

claimed that he was residing at a particular place. That the

calendar Ex.P-1 printed by the company in which appellant

was an employee was hanging on the wall of the room in

question reconfirms our finding.

23. That the appellant absconded is proved not only

through the testimony of the police officers but even through

the testimony of PW-5 and the attendance register Ex.PW-5/A.

Indisputably, without obtaining leave or even informing the

employer that he would not be reporting to work after

16.6.2006, the appellant simply vanished and ran away to his

village. No explanation has been rendered by the appellant as

to why he did so. The act of the appellant absconding is a

conduct of a guilty mind.

24. That a dao on which human blood of the same

group as that of the deceased was detected was got recovered

by the appellant is also incriminating evidence against him,

albeit of a very weak kind, but has to be put in the scales

against the appellant.

25. The trinity of incriminating evidence being the

appellant and Ambey residing together in the room in which

dead body of Ambey was discovered, the appellant absconding

and rendering no explanation for the same and the dao having

blood of the same group as that of the deceased being got

recovered by the appellant are sufficient wherefrom the guilt

of the appellant can be inferred.

26. We find no merit in the appeal which is dismissed.

27. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar to

be supplied to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE APRIL 23, 2010 mm