Ram Avtar vs State
2010 Latest Caselaw 2311 Del

                                    REPORTABLE
               IN THE HIGH COURT OF DELHI AT NEW DELHI
                         CRIMINAL APPEAL NO. 165 OF 1997

                                           Judgment Reserved on: March 10, 2010
%                                          Date of Decision: April 30, 2010

RAM AVTAR                                                            . . . Appellant

                             through :          Ms. Anita Abraham, Advocate

                                   VERSUS

STATE                                                          . . .Respondent

                             through:           Mr.Pawan Sharma, Standing Counsel
                                                for Govt. of NCT of Delhi.
CORAM :-

       THE HON'BLE MR. JUSTICE A.K. SIKRI
       THE HON'BLE MR. JUSTICE AJIT BHARIHOKE

       1.     Whether Reporters of Local newspapers 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?

A.K. SIKRI, J.

1. This appeal arises out of the conviction of the appellant Ram Avtar under

sections 302 and 404 Indian Penal Code, 1860 vide judgment dated 10.01.97 passed by

Ld. Additional Session Judge. Under Section 302 of Indian Penal Code, the appellant

has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.

1000/-, and in default of payment of fine, to further undergo rigorous imprisonment for

a period of one month. The sentence imposed under Section 404 IPC is to undergo

rigorous imprisonment for a period of two years and to pay fine of Rs. 500/-, and in

default of payment of fine, to further undergo rigorous imprisonment for a period of 15

days. Both the sentences are to run concurrently.

2. Succinctly stated, the prosecution`s version of the story is that on 31.08.93 one

PCR van received the information that one lady had committed suicide by hanging

herself in Sonia Vihar. HC Subhash Kumar, the in-charge of the PCR van R-31,

forwarded this information to the Police Station, Gokal Puri where it was received by

the PW-6 Constable Jaswant Singh at 8:47 a.m. On receipt, this information was

entered into Roznamcha vide DD No.6 (Ex. PW-6/A). On the receipt of the copy of

the same, the investigating officer SI Ram Chander (PW-19) along with Constable

Naresh Kumar reached the spot at 1st Pushta, Sonia Vihar and found that the dead body

of the Smt. Roopwati Devi was hanging from the iron grill fitted over the gate by a

nylon rope. Both the hands and the feet of the dead body were tied with the help of a

cloth and blood stained bricks and iron box were lying on the floor. One ear tops was

found broken and it was appearing that someone had removed a Pajeb from the dead

body as its impression was visible on the dead body. Meanwhile the crime team also

reached the spot on being summoned and got the investigation done and photographed

the place of occurrence.

3. Investigating officer Ram Chander recorded the statement (Ex. PW-9/A) of

Sanjay Kumar Pandey (PW-9), minor son of the deceased, who was present on the

spot. He disclosed in his statement that murder of his mother is committed by Ramu

uncle (Ram Avatar), who usually visited their house. On the fateful day of 30th Aug

1993, some altercation took place between his mother and Ramu over the issue as to

why he had not got her money returned from his sister. Thereafter, when he was on

the terrace, he heard her mother souting, as coming from downstairs "go away from

here you bastard" and subsequently he found that her mother`s shouting had turned

into a cry for help "bachaao bachaao" as Ramu was tying her with the rope to kill her.

He could not help her mother due to fear and in the morning, he found that her

mother`s dead body was hanging from the grill and Ramu uncle had left the place in

the previous night itself.

4. On the basis of this statement, investigating officer SI Ram Chander (PW-19)

sent the rukka, through Constable Narest Kumar, to the Gokul Puri Police Station for

the purpose of registration of an FIR. He also seized various pieces of evidence from

the spot and prepared Site Plan (Ex. PW-19/B). Statements of other witnesses

including Rakesh Kumar (PW-13), another minor son of the deceased, were also

recorded and after the completion of inquest proceedings (PW-19/D) Constable Satya

Kumar (PW-2) took the dead body to the GTB Hospital for the purpose postmortem.

After the postmortem the same was handed over to her husband Shambhu Nath

Pandey (PW-11).

5. During the investigation it transpired that the deceased had developed illicit

relations with the accused while her husband, a CRPF employee, was posted in

Madras. She was engaged in money lending business and the accused had borrowed

some money from her for his sister. However, repayment of this money had become an

issue between them as the same was not paid in spite of consistent demands.

6. On 06.10.93, an information vide DD No. 6A ( Ex. PW16/A) was received at

the Gokul Puri Police Station regarding arrest of the accused Ram Avtar at Town Hall

Police Station, who had allegedly disclosed his involvement in the murder of

Roopwati . On the basis of his pointing out and disclosure statement (Ex. Pw-16/B)

one pair of Pajeb and one silver Pendal was recovered from Ram Kishan (PW-7), with

whom he had pledged these articles, which had been identified by Sanjay Kumar

Pandey as belonging to her mother. The same was seized vide memo Ex. PW 7/A. All

the case property was deposited with the NHCM on the same day as and when it was

seized however the CFSL refused to accepted the case property due to rush of work.

On the completion of necessary formalities of investigation, the challan was filed in

the court.

7. On the conclusion of the trial of the accused, Ld. Additional Session Judge

recorded the finding that the prosecution, after examining 19 witnesses in its support,

has proved its case beyond any reasonable doubt that the murder of Roopwati was

committed by the accused Ram Avtar and it was he who had removed, subsequent to

the murder, the Pajeb and Pendal from the dead body of Roopwati and consequently

convicted and sentenced the accused under Sections 302 and 404 IPC.

8. Against the aforesaid order of the Ld. Additional Session Judge, this appeal has

been preferred.

9. This appeal was admitted on 11th April, 1997. The appellant had also moved

application for suspension of sentence which was taken up for consideration on 20th

May, 1997 and orders were passed on that day granting bail to the appellant subject to

his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the like

amount to the satisfaction of the Trial Court. This amount of personal and surety bond

was reduced to Rs. 5000/- and thereafter to Rs. 2000/- on 25th March, 1998 subject to

the further condition that during pendency of the appeal, the appellant will continue

having his presence marked at Police Station Gokul Puri on 1st and 15th of every

calendar month between 10.30 a.m. to 11.30 a.m. and will not leave the limits of

Delhi without prior permission of the Trial Court. However, when the appeal came

up for hearing, on its turn, on 30th July, 1990, nobody appeared on behalf of the

appellant. Bailable warrants were issued for 17th September, 2009. The appellant

was, however, not found at the given address and, therefore, those warrants could not

be executed. Non-bailable warrants were issued on 17th September, 2009. These

warrants were executed, after great efforts, and the appellant was apprehended and

reminded to the custody.

10. The appellant was provided with legal aid at State expense and Ms. Anita

Abraham, Advocate (DHCLSC) argued the appeal on his behalf. Mr. Pawan Sharma,

learned Standing Counsel for the State advanced his arguments on behalf of the State.

11. First and foremost submission of the learned Counsel for the appellant was

that the information initially given to the PCR was that the deceased had committed

suicide and, therefore, benefit of doubt must go to the accused/appellant. This

information, she pointed out, is contained in D.D. No. 6. She also submitted that

Constable Jaswant Singh (PW-6) had stated in his testimony that at 8.47 a.m. on 31st

August, 1993 he had received the information that one women had committed suicide

by hanging herself in Sonia Vihar which was recorded in DD no.-6.

12. This is hardly a convincing argument. If some unknown person had informed

the police official that a lady had committed suicide, that would not mean that it is to

be treated as a gospel truth. The identity of the person who gave such an information

has not been established. It is possible that some person may try to mislead the police

by showing it a case of suicide, more so, when the dead body was found with nylon

rope around her neck. However, that would not mean that police is not to investigate

the matter. If after investigation the police suspects murder and evidence collected by

the police rules out the commission of suicide and points out towards murder, police is

duty bound to file the challan on those lines alongwith evidence collected by it, to the

court. It is ultimately for the Court to see as to whether the guilt against the accused

has been proved beyond doubt or not. Thus, mere information received by the police,

in the first instance, that a lady had committed "suicide" would not mean that any

benefit of doubt is to be given to the accused.

13. Even otherwise, when we examined the testimony of witnesses and the

evidence on record in the form of post-mortem report and the position in which the

body of the deceased was lying and recovered, the case of suicide is totally ruled out.

The general observations as well details of injuries contained in the post mortem report

are to the following effect:-

"The body of young poorly built female wearing one cream colour gown with red print and light blue colour petticoat and one yellow colour printed sari wrapped around the body with blood stains at places. The dead body was having four toe rings, one golden colour ear ring of left side, four green colour glass bangles on right hand and two green colour bangles on left hand. Both the hands were tired at the level of elbows by green coloured shawl having two knots. The body was also tied at the level of both the knee joints by quilt which is white in colour at one side and red printed on the other, torn at one place and having blood stains on one side. Yellow coloured nylon rope with slipping knot after doubling present around the neck which is moving having blood stains over it. Tattoo marks present over the front of right forearm. Rigor mortis present in the whole of body. Hypostasis is present over the

back. Tongue protruded. Dribbling of blood from mouth and nose present. Eyes swollen and black.

Ante-mortem Injuries

1. Lacerated wound of 3.5 x 0.7 cm present over the inner middle back of right side of head.

2. Multiple abrasions covering an area of 5.5x2 cm present over the left side of nose and upper part of face.

3. An abrasion of 2 x 2 cm present over the front of middle of chin.

4. Multiple abrasions covering an area of 3 x 2 cm over the lower left side of face with a bruise around it.

5. Multiple abrasions covering an area of 8.5 x 2 cm present over the middle front of neck.

6. Multiple grazed abrasion covering an area of 2 x 7 cm present over the lower outer aspect of right side of chest vertically.

7. An abrasion of 2.5 x 2 cm present over the upper, middle and inner aspect of left side chest.

8. Multiple abrasions covering an area of 2.5 x 1 cm present on the middle front of left leg.

9. Multiple abrasions covering an area of 1.5 x 1.5 cm present over the upper, outer middle or right leg.

10. Abraded bruises present over both the elbows, lower part of forearm and both knee joints.

11. Ligature mark present all around the neck above the thyroid cartilage. The mark is 6 cm below the chin in middle and is 11 cm above the manurium sterni. The mark is 8 cm below the right angle of mandible and right mastoid process. It is 2.5 cm below the occipital protuberance in the back. The mark is 2 cm below the left angle of mandible and 3 cm below the left mastoid process. The mark is faint on left side, width of mark is 1 cm in the middle front and is 1 cm at the level of right angle of mandible and is 1.2 cm at the level of left angle of mandible. Width of mark is 0.8 cm and at the level of occipital protuberance in the back. Circumference of neck is 30 cm. Extensive bruising of subcutaneous tissues and muscles underneath the mark present. Left corner of hyoid bone fractured."

These injuries cannot be sustained in the case of suicide.

14. Dr. N.K. Aggarwal, who conducted the post mortem on the body of the

deceased appeared as PW-18. He opined that death occurred about 34 hours before the

post mortem and the cause of death was due to asphyxia as a result of constrictions of

neck by ligature. He has further stated that injury no.1 is possible when the body was

struck against the bricks. He further opined that the ligature mark on the neck of the

deceased was possible with the rope/ligature when shown to the witness which is Ex.

PW-18/A. The post mortem was conducted by him on 1.9.1993 at about 1.00 a.m. As

per the aforesaid findings, death was occurred at about 1.00 a.m. which corroborates

the version of PW-9 about the quarrel between the appellant and the deceased. His

testimony further proves that the cause of death was by strangulation. The manner in

which body of the deceased was found clearly rules out any possibility of suicide

regarding which a fake attempt was made by learned counsel for the appellant. It is a

clear case of homicide.

15. Next contention of learned Counsel for the appellant was that the version of

PW-9 in his complaint, that was registered as FIR, and his testimony in the Court was

inconsistent with each other. PW-9 is Sanjay Kumar, child of the deceased. He was

approximately nine years of age at the time of incident. Learned Counsel for the

appellant submitted that in his complaint, registered as FIR, he had stated that fight

between the accused and the deceased had ensued on the terrace. On the other hand, in

his testimony before the Trial Court he had deposed that at around 1.00 a.m. the

deceased and the accused went down to the room on the ground floor when the quarrel

broke out between them.

16. When we read the initial statement recorded by the IO and the statement of PW-

9 in the court in their entirety, we do not find any such contradiction as alleged. In his

complaint, he categorically mentioned that on 30th August, 1993, at about 4.00 p.m.,

the appellant had come to their house and his mother asked the appellant that he

should ensure that his sister returns her money. Thereafter, both of them went out of

the house. At at about 11.00 p.m., they came back to the house when PW-9 was still

awake. They took meals and " thereafter we went to the terrace for sleeping. My

mother asked Ram Avtar as to why he had not got her money returned from her sister.

On that an altercation took place between them and they both went down to stairs". In

his statement before the court he had deposed almost on the similar lines. He has

categorically stated that at 1.00 a.m. appellant and deceased came down in the room on

the ground floor and there was a quarrel between them and he heard cries of his

mother. The utterances which he heard are narrated by him in the same manner as

mentioned in his complaint. One cannot lose sight of the fact that at the time of

incident, PW-9 was only nine years of age. He deposed in the court three years after

the incident. He has been consistent with statement in the court which he had given in

his complaint. The defence cannot be permitted to take undue advantage of certain

minor variations which are not even contradictions.

17. Learned Trial Court has believed the testimony of PW-9 who had given ocular

account of the events which he witnesses. The argument of the defence that his

testimony is not worthy of credence was brushed aside by the learned Trial Court in

the following manner:-

"I have also gone through the cross examination by the Ld. counsel for the accused of this witness but the counsel for the accused has not been able to impeach the credibility of this witness in the cross examination and nothing has come on record in the cross examination which can help the accused. This witness has also stated that he found pajeb and chain of his mother were missing from her person. I have also gone through the statement of PW13 Rakesh Kumar. He has fully corroborated the version given by PW9 Sanjay Kumar Pandey on all the material particulars and in the cross examination of this witness also the Ld. counsel for the accused has failed to impeach the credibility of this witness. After going through the statement of these two witnesses it has become clear that both these witnesses saw the accused came to their house at about 4 p.m. and thereafter both the accused and the deceased again came at their house at 11 p.m. and all of them went to sleep on the roof of the house. It has also come in their evidence that after some time the accused brought the deceased down stairs in the room and an altercation had taken place between both of them and the deceased was asking the accused to get her money back from his sister which was borrowed by his sister from the deceased. It has also come in the evidence of both these witnesses that the witnesses heard the shrieks of their mother and they also

heard their mother crying „bacho-bacho‟. Both these witnesses did not come down stairs out of fear. Their fear was genuine because firstly it was dead of the night and secondly both the witnesses were of very tender age at that time and they could not dare to come down and save their mother at the hands of the accused. It has also come in the statement of these two witnesses that both of them thereafter went to sleep and in the morning they found the dead body of their mother in the room down stairs. The evidence of both the witnesses is reliable and both these witnesses are natural and truthful witnesses and in my opinion such occurrence which has taken place inside the house in the late hours of the night cannot possibly be seen by anyone except the inmates of the house and the prosecution is not supposed to produce an eye witness of such an occurrence which has taken place inside the room at such an odd hours of the night and the evidence which has been produced by the prosecution is quite natural and truthful and there is no reason to disbelieve both the aforesaid witnesses. Their evidence is as good as that of an eye witness because they have vividly stated before the court the true account of the occurrence which has taken place in the room and they have also heard the shrieks of their mother and thereafter the shrieks stopped coming which means the accused killed Roopmati after a quarrel. In my opinion no other evidence is required against the accused and the evidence produced by the prosecution is sufficient against the accused and it is the accused and none else who has killed Roopmati."

18. The learned defence counsel, however, tried to demonstrate that versions of

testimonies of PW-9 & PW-13 were inconsistent with each other and were not

appreciated by the learned Trial Court, and on that basis, plea was raised that benefit

of doubt should be given to the appellant owing to the said contradictions.

19. We state at the cost of repetition that the so called contradictions pointed out by

the learned counsel for the appellant are immaterial and variations of trivial nature

which do not shake the credibility of the testimony of the witnesses in so far as

material aspects are concerned. We have also to bear in mind that the statement of

PW-9 was recorded on the spot on 31.8.1993 and rukka was sent at 11.30 a.m. FIR

on that basis was registered at 12.05 p.m. PW-9 was nine years of age at that time and

there was hardly any time for tutoring him. Admittedly, there was no adult member in

the house.

20. Learned counsel for the appellant has also referred to the judgment of the

Supreme Court in Zafar Vs. State of U.P., AIR 2003 SC 931 in support of the

proposition that rule of prudence and caution needs to be applied while appreciating

the evidence of child witness. That exercise is undertaken by the learned Trial Court

and it is found that the testimony of PW-9 is worthy of credence.

21. The learned Trial Court while holding the appellant guilty has rightly relied

upon the following observations from the Supreme Court judgment in the case of

Appabhai and another Vs. State of Gujarat, AIR 1988 SC 69:-

"The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggeration version by any witness. When a doubt arises in respect of certain facts alleged by such witnesses, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on addiging embellishments to their version perhaps for the fear of their testimony being rejected by the court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."

22. It is also relevant to point out that conviction is not based on the testimony of

PW-9 and PW-13 alone. On the arrest of the appellant under Section 41 Cr.P.C., he

made disclosure statement which led to recoveries. In view of this discussion, the

judgment of Supreme Court in State of U.P. Vs. Arun Kumar Gupta, (2003) 2 SCC

202 would have no application to the facts of this case.

23. No doubt, learned counsel for the appellant has challenged the said recoveries

and tried to argue that neither the recovery/seizure of pajeb nor the pendal had been

proved and, therefore, could not be used as incriminating circumstances against the

accused. In this behalf, she argued out that the version of the prosecution that these

recoveries were made pursuant to the disclosure statement of the appellant should not

be believed, inasmuch as, PW-7 Ram Kishan has denied that pajeb and pendal was

pawned with him against a loan of Rs. 500/- and has denied that one pair of pajeb

was handed over to him by the accused or that he handed over the same to the police.

We may however mention that PW-7 in his testimony had admitted that seizure memo

contained his signatures. He has, however, tried to scuttle the issue by alleging that

memo was not read over to him when police took his signatures. It is clear that PW-7

changed his version partly in the court in order to help the accused. Otherwise, he

categorically stated in the court as well that the appellant had come to him about 10½-

11 months back and given him a pendal. He had also told PW-7 that he was in great

difficult and needed some money. PW-7 had given him Rs. 150/- and kept the pendal.

Only in respect of pawn of pajeb that PW-7 did not support the prosecution case. In

these circumstances, that part of the testimony which supported the prosecution case

could legitimately be relied upon by the learned Trial Court in view of the following

law laid down by this Court in Sanjay Vs. State, 1996 (2) CC Cases 196:-

"It is well-established principle of law that the mere fact that a witness has turned hostile and not supported the case of the prosecution is no reason to ignore his statement in entirety. Such statements can be used and relied upon, if they find support from other evidence on record."

24. Even otherwise, disclosure of the appellant as well as recoveries are proved by

the plethora of evidence. Apart from the testimony of PW-9 who stated that he found

pajeb and chain of her mother missing from the dead body and identified the pajeb as

Ex. P-2/1-2, SI Sukhdev Singh (PW-16) has also deposed that on 4.10.1993 the

appellant made a disclosure statement in his presence that he had sold the pendal at

Murad Nagar. He took the police to Murad Nagar at different places but he could not

get the same recovered in Murad Nagar. Thereafter, he made another disclosure

statement stating that he had pawned the pajeb and pendal of the deceased with Ram

Kishan at Chara Mandi against a loan of Rs. 500/- . The appellant then led the police

to Chara Mandi to the house of Ram Kishan and Ram Kishan produced one locket and

pajeb of silver before the police. PW-19 has also corroborated this statement of PW-

16. As pointed out above, PW-7 has also in substantial part corroborated the aforesaid

statements and has turned hostile partly.

25. Last contention of the learned counsel for the appellant was that no motive has

been proved by the prosecution and hence, no case under Section 302 IPC was made

out. According to her, the allegation of the prosecution that the appellant killed the

deceased because of quarrel over money advanced by the deceased to the sister of the

appellant, which deceased was demanding has not been proved. She submitted that

Investigating Officer (PW-19) did not make any inquiry regarding the existence of

sister of the appellant. This argument hardly convinces us. PW-9 and PW-13

categorically stated that quarrel had erupted between the appellant and the deceased

when deceased had demanded money which she had advanced to the sister of the

appellant through the appellant. It was not necessary, under these circumstances, to

make inquires regarding the existence of the sister of the accused. Obviously, sister

would have helped her brother i.e. the appellant. If at all, it was for the appellant to

produce her sister as defence witness, which he failed to do.

26. Learned Counsel for the appellant relied upon the Supreme Court judgment in

the case of Sakharam Vs. State of Madhya Pradesh, AIR 1992 SC 758 in support of

the proposition that where there is no direct evidence against the accused and motive is

also lacking, there has to be overwhelming finding to record the guilt. There is no

quarrel about this proposition. However, we find that in the present case sufficient

evidence has come on record to prove the charge of murder. No doubt, PW-9 and PW-

13 had not seen the actual occurrence directly. But they were present in the house at

that time. Their testimony alongwith other evidence forms a complete chain to

establish the guilt of the appellant.

27. The defence of the appellant is that of complete denial who has even denied

having known Vijay Pandey. These two witnesses identified him in the court. It has

been established on record that the appellant was known to the deceased; he used to

visit the house of the deceased quite often; he was present in the house on that night

when incident took place; the dead body of the deceased was found in the house in the

early morning hours; the appellant had absconded and could be arrested after one

month of the incident under Section 41 of the Code of Criminal Procedure. PW-10

has even deposed that the appellant was always representing that deceased was his

wife.

28. At the end, it was sought to argue that the fight, if at all, which erupted between

the appellant and the deceased was sudden occurrence and the case would fall within

the meaning of Exception 4 of Section 300 IPC. In Sukhbir Singh Vs. State of

Haryana, (2002) 3 SCC 327, The Supreme Court has interpreted the aforesaid

provision in the following manner:-

"To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception."

29. When we apply the aforesaid principle in the backdrop of the present case, it is

difficult to accept the submissions of the learned counsel for the appellant. It has

come in the testimony of witnesses that the deceased was persistently nagging the

appellant for repaying of money advanced by her to the sister of the appellant. Even

on the day of incident, fight had occurred because of this reason at about 4.00 p.m. It

erupted again during night. The cruel manner in which the murder took place clearly

belies the contention of the appellant which is discussed above taking note of post-

mortem report.

30. The result of the aforesaid discussion would be to hold that the appellant is

rightly held guilty of the murder of deceased Roopwati and has rightly convicted him

under Section 302 IPC. Finding no merit in the present appeal, we dismiss the same.

(A.K. SIKRI) JUDGE

(AJIT BHARIHOKE) JUDGE APRIL 30, 2010.

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