Basant Ram vs State
2010 Latest Caselaw 2218 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment Reserved on: 23rd April, 2010
                         Judgment Pronounced on: 27th April, 2010

+                        CRL.APPEAL No.282/2010

       BASANT RAM                               ..... Appellant
                Through:        Mr.K.B.Andley, Senior Advocate
                                with Mr.M.L.Yadav, Advocate

                                versus

       STATE                                   ..... Respondent
                     Through:   Mr.M.N.Dudeja, 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 the Reporter or not?

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

PRADEEP NANDRAJOG, J.

1. In a prolix and repetitive judgment spanning 47

pages, the learned Trial Judge has returned a verdict of guilt

against the appellant and has convicted him for the offences

punishable under Section 302 IPC and Section 201 IPC. Not

only is the decision prolix and repetitive, but points of

consideration which arose with respect to the evidence led

have not even been discussed. Further, the cursory manner in

which the evidence led has been noted has compelled us to

paraphrase the instant decision for guidance of the learned

Trial Judges that given the situation in which we all Judges find

ourselves i.e. hard pressed for time, it is desirable that the

Courts of Original Trial pen decisions as briefly as possible

without compromising on noting the evidence led and after

highlighting the issues, discuss the principles of law applicable

with reference to precedents if any and straightaway proceed

to give reasons for their decision. If on the same point 20

judgments are cited, it is enough to cite the principle of law

and simply record that it was so held in the decisions cited. It

is useless wastage of paper to reproduce 20 different

paragraphs from 20 different decisions; all holding to the same.

2. We highlight one issue which arose for consideration

before the learned Trial Judge, which has been most

conveniently (unfortunately) circumvented by the learned Trial

Judge. The said issue was as to what is the effect of

incriminating evidence in the form of blood of the same group

of the deceased being lifted from different places inside a room

when the prosecution has not been able to prove that the said

room was in the exclusive possession of the accused. Needless

to state, the other issue was to the credibility of the testimony

of the father of the deceased on the issue of last seen evidence

as also to the credibility of the witnesses who proved the

recoveries at the instance of the appellant. Obviously, said

issue relates to appreciation of the testimony of the witnesses.

3. We shall be dealing with the said two issues, but

before noting the relevant evidence giving birth to the said two

issues as also other relevant evidence, we propose to pen a

few lines for the benefit of the learned Trial Judges as to the

desirability of the manner in which reports by serologists have

to be reflected in the decision.

4. In the instant case, various blood stained exhibits were

lifted from different places and on different dates by different

officers. Needless to state, as and when a blood stained

exhibit was lifted, it was converted into a parcel and seal of the

concerned officer was affixed thereon, to maintain the purity of

the seizure. All these exhibits were sent for serological

examination. Record shows that the exhibits were as per 5

memos having seal of 3 different persons for the reason 3

memos pertaining to exhibits lifted from 3 different places

were by the same officers. Seal of „AS‟, „AJ‟ and „NK‟ were

affixed on these parcels which were 15 in number containing

15 exhibits. The FSL report Ex.PW-16/C and Ex.PW-16/D is by

the serologist and the same refers to the seal on 15 different

parcels containing 15 exhibits which were received in the

laboratory and thereafter records the findings of the serologist

after subjecting each exhibit to a serological examination.

Pertaining to 6 exhibits which were seized on 20.4.2006 by Shri

Naresh Kumar, a serologist from the Forensic Science

Laboratory, from a room on the ground floor of House No.H-499

Mangolpuri as recorded in the seizure memo Ex.PW-15/A

having a corresponding confirmation in the form Ex.PW-16/A

penned by Shri Naresh Kumar, the same have been assigned

parcel No.8 to 13 by the serologist in the report Ex.PW-16/C

evidenced by the fact that against parcels 8 to 13 and the

exhibits retrieved from the said 6 parcels, it has been recorded

that seal of „NK‟ was found affixed on said 6 parcels. The

report Ex.PW-16/D records that only human blood could be

detected on Ex.8 and Ex.13 retrieved from parcel No.8 and 13

and that on the other exhibits being Ex.9 to Ex.12 retrieved

from parcels 9 to 12, human blood of group „A‟ was detected.

With reference to the clothes which were retrieved from the

dead body of the deceased and handed over to the

investigating officer by the doctor who conducted the post-

mortem as also the blood sample of the deceased taken on a

gauge, it was recorded, with reference to the parcels received

at the laboratory having seal of the investigating officer, that

human blood of group „A‟ was detected; meaning thereby that

the blood group of the deceased was „A‟. Similarly, with

respect to a knife and a pipe wrench which were received with

the seal of „AJ‟ affixed thereon to which parcel No.14 and 15

was assigned at the laboratory and Ex.14 and Ex.15 to the

contents thereof i.e. the pipe wrench and the knife

respectively, it was indicated that only human blood could be

detected on the pipe wrench and that human blood of the

same group as that of the deceased was detected on the knife.

5. The learned Trial Judge has simply stated that blood

was detected on the exhibits which were lifted from the room

on the ground floor of House No.H-499 Mangolpuri and

therefrom concluded that it was apparent that the crime was

committed at the said place. Similarly, in respect of the

recovery of the pipe wrench and the knife it has been opined

that blood has been detected thereon and hence they are

incriminating articles qua the appellant since the recovery is

pursuant to the disclosure statement of the appellant and at

his instance.

6. This is not the way to refer to and render finding

with reference to the report of the serologist. It is expected

that with reference to the seizure memos recording purity of

the seizure with reference to the seal affixed on the parcel and

as recorded in the report be noted, followed by it being listed

as to which parcel has been given what serial number in the

laboratory and then in the context of each exhibit subjected to

analysis, such of which becomes incriminating, it be clearly

listed whether only blood was detected without origin of

species being detected or both being detected with or without

group thereof. Surely, it is commonsense that where on an

exhibit, human blood of the same group as that of the

deceased is detected said evidence is more incriminating than

evidence of only human blood being detected and least

incriminating would be evidence of only blood being detected

without origin of species being detected.

7. A decision as afore-noted written leaves no scope

for hypothesis and conjectures to be urged at the appellate

stage and helps the Appellate Court in exactly pin-pointing the

exact worth of a seizure memo and the report of the serologist

with crystal clear linkages between the two.

8. Having said that, we proceed to note the

incriminating evidence which has surfaced at the trial against

the appellant.

9. As deposed to by Aas Mohd. PW-2 the father of the

deceased Nazar, appellant nicknamed „Goose‟ was a friend of

his son and on 17.4.2006 had come to his house at 9:30 PM

and called for his son who was then on the terrace and on

being called by the appellant came down and left. This was

the last time he saw his son. Next day morning on 18.4.2006

he learnt that a dead body was lying near a khatta (Municipal

Garbage Dump) of Y-Block Mangolpuri. He reached the spot

and identified the dead body as that of his son. The police

came and recorded his statement Ex.PW-2/A.

10. The dead body was noticed near the Municipal

Garbage Bin in Y-Block Mangolpuri at 6:00 AM by Shiv Narayan

PW-7 as deposed to by him, who passed on the information at

the police station when DD entry Ex.PW-6/A was recorded at

6:55 AM as deposed to by SI Yograj PW-6 and Insp.Azad Singh

PW-19 who reached the spot accompanied by Const.Jogender

and Const.Sanjeev Kumar and saw the dead body and hence

Insp.Azad Singh made an endorsement beneath DD entry

Ex.PW-6/A as indeed they saw a dead body at the spot. FIR

Ex.PW-10/B was got registered. Insp.Azad Singh lifted blood

stained earth control and blood stained leaves from the spot as

per memo Ex.PW-4/M and affixed the seal „AS‟ on the parcel.

He prepared the inquest papers and sent the body to the

mortuary after getting the body identified from the father and

the uncle of the deceased. Before that, the crime team was

summoned which could detect nothing incriminating and hence

photographs of the dead body were taken before removing the

same.

11. Dr.Ashish Jain PW-20 conducted the post-mortem on

18.4.2006 noting following external injuries on the person of

the deceased:-

"1. Multiple incised wound over palmer aspect of left hand fingers, proximal phalynx of medial two fingers, muscle deep and middle phalynx of lateral two fingers, subcutaneous deep and incised wound also present over distal phalynx of right thumb with clean cut margins and clotted blood.

2. Incised wound of size 4 cm x .3 cm over left side and mid of forehead subcutaneous deep with clean cut margins and clotted blood.

3. Incised wounds of size 4.5 cm x 0.4 cm, 6 cm x .5 cm and 3 cm x .2 cm over left side of chest, directed downwards and medially, subcutaneous deep with multiple old linear scar mark, 8 cm from mid line with clotted blood.

4. Stab incised wound of size 4 cm x 2 cm over epigastric region 1 cm right to midline and 12 cm from right and 15 cm from left nipple, going into left lobe of liver. One end acute and one blunt.

5. Stab incised wound of size 3 cm x 1 cm, 14 cm below and lateral to right nipple into seventh inter costal space going upwards and medial of right lung through and through after piercing pleura with one end acute and one blunt.

6. Incised wound of size 9 cm x .2 cm subcutaneous deep over lumber region right side laterally with clotted blood.

7. Stab incised wound of size 3 cm x 1 cm at level of L 2 vertebra going into retroperitoneal space unto renal capsule 9 cm from mid line.

8. Lacerated wound of size 7 cm x 5 cm over mid occipital region with depressed fracture over occipital bone.

9. Stab penetrating injury triangular in shape of size 2 cm x 1.5 cm over right lateral side of neck going into trachea cutting right cornua hyoid bone.

10. Linear abrasion of size 5 cm x .2 cm to 2 cm x .1 cm over left scapular region."

12. He prepared the post-mortem report Ex.PW-20/A

noting internal injuries in the form of sub scalp hematoma

present over occipital region with fracture of occipital bone

extending to left posterior cranial fossa to left middle crania

fossa and over temporal region having contusions of brain

matter. He opined that all injuries were ante mortem and were

of fresh duration with time since death being 15 hours when

post-mortem was conducted being in the afternoon. He

preserved the clothes of the deceased and took a blood sample

on a gauze piece which were handed over to Insp.Azad Singh

PW-19 who affixed the seal „AJ‟ thereon. With reference to the

knife and the pipe wrench, as deposed to by him, he

subsequently gave opinion Ex.PW-20/C opining that injury No.1

to 7 could be possible with the knife or similar such weapon

and injuries No.8 to 10 were possible with the pipe wrench or

such similar weapon.

13. As deposed to by Insp.Jogender Singh PW-15 he

took over the investigation on 20.4.2006 and accompanied by

Insp.Azad Singh PW-19, a fact corroborated by Insp.Azad Singh,

they went searching for the appellant and reached House

No.499, H-Block Mangolpuri which was found locked. Aas

Mohd. PW-2, as deposed to by him was also with them. Ratan,

brother of the appellant opened the house as he possessed the

key. All saw blood stains on the wall, floor and sofa which

seemed to have been washed with water. Insp.Jogender Singh,

as deposed to by him, a fact confirmed by Insp.Azad Singh,

summoned FSL team and as deposed to by Naresh Kumar PW-

16, Senior Scientific Assistant (Biology), FSL, Delhi he reached

the house and from the ground floor thereof lifted 6 exhibits as

he detected blood thereon i.e. scrapings from the door of the

refrigerator, right side wall of the room, floor of the room, left

side wall of the room, piece of sofa sheet and foam (which

were cut from the sofa) and scrapings from a pair of sandals in

the room which were seized by the investigating officer as

recorded in the memo Ex.PW-15/A after Naresh Kumar affixed

his seal „NK‟ thereon.

14. Thereafter, as deposed to by Insp.Jogender Singh

and Insp.Azad Singh, after the appellant was apprehended on

23.4.2006 and he made a disclosure statement Ex.PW-4/C

confessing to the crime and stating that he had inflicted the

incised wounds on the deceased with a knife and had hit him

on the head with a pipe wrench which he could get recovered.

He further informed that after committing the crime inside the

room on the ground floor of House No.H-499, Mangolpuri he

removed the dead body in a cycle rehri and dumped it at the

garbage dump where it was recovered and that he hid the

knife and the pipe wrench and that he could lead the police to

the place where he had hid the two as also could point out the

cycle rehri used by him to dispose of the dead body.

Thereafter he led them to the first floor of House No.H-23

Mangolpuri and took them to the roof of the first floor and took

out a polythene bag lying concealed under wood pieces, from

which a knife Ex.P-3 and a pipe wrench Ex.P-2 were seized as

recorded in the seizure memos Ex.PW-4/G and Ex.PW-4/F

respectively followed by the sketch Ex.PW-4/E of the pipe

wrench and the sketch Ex.PW-4/D of the knife being drawn by

Insp.Azad Singh PW-19. The seal „AS‟ was affixed on the two

parcels. As deposed to by the police officers, thereafter,

appellant led them to House No.H-393 and between the gali

adjoining the house and a park pointed out a cycle rehri which

was seized as per memo Ex.PW-4/H. A coloured cloth was tied

on the rehri and the seal „AS‟ was affixed thereon.

15. It is apparent that the incriminating evidence

against the appellant is of his being last seen in the company

of the deceased when the deceased left his i.e. the house of

the deceased, at around 9:30 PM on 17.4.2006, as deposed to

by Aas Mohd. The dead body being found next day morning at

around 6:00 AM on 18.4.2006 as deposed to by Shiv Narain

PW-7, a rag picker. It is obvious that the deceased was dead

by 6:00 AM. The likely time of death of the deceased comes to

around 11:30 PM in the intervening night of 17th and 18th April

2006 for the reason in the post-mortem report Ex.PW-20/A it

has been recorded that the post-mortem commenced at 2:30

PM and the proximate time since death was 15 hours.

16. Suffice would it be to state that the last seen theory

comes into play when the time gap of the deceased being last

seen, when alive, in the company of the accused and the time

of his death as also the place where the two were seen and the

dead body was recovered are so proximate that unless the

accused explains when and how he parted company with the

deceased, the inference of guilt against the accused is plain.

17. Nothing has been shown to us to discredit the

testimony of Aas Mohd. that his son left his house in the

company of the accused at around 9:30 PM on 17.4.2006.

Indeed, he had disclosed this fact at the very instant to the

investigating officer when his statement Ex.PW-2/A was

recorded on 18.4.1006 itself in the morning hours after the

dead body of the deceased was discovered near the garbage

municipal bin at Y-Block, Mangolpuri. It may be noted that Aas

Mohd. resides at House No.1597, Y Block, Mangolpuri i.e. the

deceased was seen in the company of the accused in Y Block,

Mangolpuri, in which block dead body of the deceased was

recovered.

18. That a crime involving a human being the victim

took place on the ground floor of House No.H-499, Mangolpuri

is evidenced by the testimony of Insp.Jogender Singh PW-15,

Sh.Naresh Kumar PW-16, Insp.Rajaq Singh PW-19 and Aas

Mohd. PW-2 all of whom have proved, as recorded in the

seizure memo Ex.PW-15/A and as entered in Ex.PW-16/A by

Naresh Kumar PW-16, that notwithstanding the room being

washed with water, blood could be detected at 6 spots in the

room and blood scraping was lifted and sofa cloth was cut and

taken into possession as noted in para 13 above. The report

Ex.PW-16/C and Ex.PW-16/D proved by its author Sh.Naresh

Kumar PW-16, Senior Scientific Assistant, establishes that

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

detected on 4 out of 6 exhibits lifted from the room and on 2

exhibits only human blood could be detected.

19. The legal question which we need to answer is

whether this incriminating evidence links the appellant to the

crime and can be used as a piece of circumstantial evidence

against him?

20. It is true that the key to the ground floor of the

house in the room whereof, afore-noted incriminating exhibits

were lifted on 20.4.2006, was provided by the brother of the

appellant and the appellant was no-where to be seen and the

only evidence we have on record linking the appellant to the

house in question i.e. ground of House No.H-499, Mangolpuri is

the testimony of Rakesh PW-8 who has stated that the

appellant used to reside in the said house. We note that he

has not stated that „only the appellant used to reside in the

said house‟. But that would only mean that apart from the

appellant somebody else was also possibly in joint possession

of the ground floor. It would only mean that the incriminating

worth of said evidence would be reduced in weightage to be

given and not that the same has to be excluded while

considering the chain or web of incriminating evidence brought

against the appellant. We may only note that a single

suggestion given by way of cross-examination to Rakesh PW-8

is that he has deposed falsely. No suggestion has been given

to him about anybody else residing with the appellant.

21. We had retained the police case diary to peruse the

same and find that pertaining to the investigation conducted

on 20.4.2006, Insp.Jogender Singh has written that on reaching

House No.H-499 Mangolpuri and on finding the same locked

the police party was informed that the brother of the appellant

named Ratan resided two houses away and on Ratan being

summoned he brought the key of House No.H-499 Mangolpuri

and using the key, the house was opened.

22. It is unfortunate that the prosecution was not

conscious of the fact that the key of the house was with Ratan

and the prosecution was intending to link the incriminating

evidence pertaining to the scene inside the house with the

appellant and hence evidence had to be brought on record that

the said place was in the exclusive possession of the appellant.

Either Rakesh PW-8 could have been made to depose that the

house in question was the exclusive residence of the appellant

or the brother of the appellant could have been examined to

prove said fact.

23. It is settled law that a case diary can be perused by

a Court to satisfy itself qua the purity of the investigation and

to remove doubts if any which creep into the judicial mind.

Besides, in this connection we note that when the incriminating

circumstances were put to the appellant, question No.5 was: "It

is in evidence against you that after about 3 - 4 days of the

incident, PW-2 Aas Mohd. along with IO went to your house and

inside the house there were blood stains on the floor, walls and

sofa which seemed to have been washed with water. What

have you to say?" The appellant responded "I do not know".

Now, the appellant did not deny that the house wherein blood

stains on the floor, walls and sofa were seen was not his house.

His response „I do not know‟ obviously is to the claim of the

prosecution as to what was seen in the house.

24. But, notwithstanding legal position being as

aforesaid, we give benefit to the appellant of the fact that it

stands only proved that the appellant was residing on the

ground floor of House No.H-499 Mangolpuri and not the fact

that only the appellant was residing there. Noting that the key

of the ground floor of the house was provided by the brother of

the appellant, on this issue we conclude by recording that the

prosecution has successfully proved that a human being whose

blood group was „A‟ was fatally beaten in a room on the ground

floor of the house resulting in his blood splashing on the walls

of the room, the floor of the room, a refrigerator inside the

room as also the sofa inside the room and since the room has

not been proved to be in the exclusive possession of the

appellant we hold that the incriminating value to be attached

to said incriminating evidence is lower than the incriminating

value to be attached had it been proved that the room was in

the exclusive possession of the appellant. But noting the fact

that the deceased was with the appellant when he i.e. the

deceased left his house at 9:30 PM and the probable time of

death of the deceased is 11:30 PM noting further that the

deceased resided in Y-Block and the house in question is in H-

Block Mangolpuri and the appellant has not explained when did

he part company with the deceased, the incriminating worth of

said evidence of crime being committed on the ground floor of

House No.H-499 Mangolpuri is not minimal but somewhere in

the middle segment.

25. That a knife and a pipe wrench which have been

opined to be the possible weapons of offence with the knife

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

and the pipe wrench being detected only with human blood

were recovered from a spot not accessible to the public and

certainly not within the knowledge of the police till the

appellant was apprehended and made a disclosure statement

and led the police to the place wherefrom it was recovered is

another piece of incriminating evidence against the appellant.

Unfortunately, the learned Trial Judge has not put the

incriminating circumstance of the appellant of his absconding

till he was apprehended on 23.4.2006 and hence we eschew

said incriminating conduct of absconding while considering the

incriminating evidence against the appellant.

26. The submission that no motive for the crime was

established and hence proves the innocence of the accused is

noted and rejected for the reason so mundane are the reasons

for 19 out of 20 crimes in Delhi that it is impossible to prove

any motive. But, from that very fact we find credibility to the

testimony of Aas Mohd. PW-2 who has deposed to the last-seen

evidence, not only for the reason he stated said fact before the

police immediately after the dead body of his son was found in

the morning of 18.4.2006 but even the fact that Aas Mohd. has

no possible motive to falsely implicate a friend of his deceased

son against whom even he has no motive.

27. The trinity of circumstances; being (i) the appellant

and the deceased having left the house of the deceased in Y

Block, Mangolpuri at 9:30 PM on 17.4.2006 and the deceased

dying the same night at around 11:30 PM as also the fact that

a crime involving a human having blood group „A‟ was

committed in a house in Block H, Mangolpuri and dead body

was found next day morning at 6:00 AM in Block Y Mangolpuri;

(ii) the recovery of a pipe wrench and a knife on which human

blood of group „A‟ i.e. the same group as that of the deceased

was detected (the recovery being at the instance of the

appellant) which two objects were opined to be the possible

weapons of offence and lastly (iii) crime involving a human

having blood group „A‟ i.e. the same as that of the deceased

being committed in a house proved to be if not in the exclusive

at least in the joint possession of the appellant are sufficient

circumstances wherefrom the guilt of the appellant can be

inferred.

28. With reference to the injuries caused on the

deceased as per the post-mortem report Ex.PW-20/A there is

hardly any scope for an argument that the intention of the

assailant was not to murder the deceased.

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

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

this decision be sent to the Superintendent, Central Jail Tihar

for being made available to the appellant.

31. We direct the Registry to send a copy of this

decision to the District & Session Judge, Delhi along with a

covering letter containing a direction that the same be

forwarded to the learned Trial Judge who has penned the

impugned decision so that in future the learned Trial Judge is

careful in not being prolix and writing a rolled-over judgment

ignoring the legal issues which arise for consideration and

finally not to be verbose on what is useless and ignore to pen

down the essentials. As in the instant case the essentials

pertaining to the various exhibits and their linkages as done by

us have been totally ignored by the learned Trial Judge who

has simply blogged the issue by stating that there was blood

on various exhibits. We invite the attention of the learned Trial

Judge to paragraphs 1 to 7 of the instant decision and hope

that in future we shall be seeing better written decisions from

the learned Judge.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

APRIL 27, 2010 dk