Pappu Kumar vs State
2010 Latest Caselaw 1113 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Decision :25th February, 2010

+                      Crl.A.No.716/2001

        PAPPU KUMAR                       ..... Appellant
                         Through:    Mr.H.L.Aggarwal Sr.Adv. with
                                     Mr. D.P.Sharma and
                                     Mr.Rajinder Yadav, Advocates

                   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 Reporter or not?            Yes
     3. Whether the judgment should be reported in the Digest?
                                                      Yes
PRADEEP NANDRAJOG, J. (Oral)

1. Learned senior counsel appearing on behalf of the

appellant concedes that there is no blemish worthy of being

noted wherefrom Rajkumar PW-1 and Ramesh PW-2 can be

discredited.

2. In that view of the matter suffice would it be to note

that as per Raj Kumar and Ramesh they were related to each

other. Raj Kumar was the elder brother Ramesh was the

younger brother. They were owners of building bearing

municipal number A-130, Hari Nagar II, Jaitpur Road, Badarpur,

Delhi-44. The building had many rooms. One room was let

out to Hem Raj and Mahesh Kumar. The two were paying rent

to them in sum of Rs.250/- p.m.

3. In the intervening night of 6/7.01.1996, at around

2:30 AM i.e. in the middle of the night, shouts of 'Bachao-

Bachao' awoke the two brothers. They heard sound of glass

breaking. The sound was coming from the room taken on rent

by Mahesh and Hem Raj. As they went out of their respective

rooms, they saw that the light in the room occupied by Hem

Raj and Mahesh was on. They knocked the door and the light

went off. The door was opened. Appellant Pappu and Hem Raj

were standing on the door. They enquired as to what the

matter was but got no reply. They asked appellant and Hem

Raj as to why had they put off the light. They received a reply

that the bulb had got fused. When confronted with the

question as to how come the bulb was burning a little while

ago. The two switched on the light. Immediately, both i.e.

appellant and Hem Raj attempted to flee. Raj Kumar and

Ramesh saw Mahesh lying in a pool of blood. They ran after

appellant and Hem Raj but could manage to apprehend the

appellant. Hem Raj managed to run away and could never be

caught.

4. Information of the crime was recorded at the police

station i.e. P.S.Badarpur vide DD No.25A. SI Sanjay Singh PW-

4 as also Insp. Ajit Singh PW-12 along with two constables

proceeded to the place of the occurrence where Raj Kumar

and his brother handed over custody of the appellant to the

two police officers. Raj Kumar's statement was recorded and

on basis thereof FIR was registered.

5. Spot proceedings in the form of blood sample and

various blood stained articles were completed. Rough site

plan was prepared. Dead body was sent to the mortuary. Dr.

Alpana Singh conducted the post-mortem and prepared the

report Ex.PW-10-A, proved at the trial by Dr.Millo Tabin PW-10

who claimed to be working with Dr.Alpana Singh and being

familiar with her writing and signatures. As per the post-

mortem report 20 injuries most of them caused by blunt force

and one by a sharp object were noted. Most of the injuries

were directed towards scalp. But cause of death was asphyxia

due to smothering.

6. With reference to the post-mortem report none can

possibly raise an argument that with reference to the savage

assault on the deceased there is some scope for an argument

that the offence is of culpable homicide not amounting to

murder. The dead body of Mahesh tells us that he has been

brutally murdered.

7. The learned trial Judge has returned a verdict of

guilt against the appellant holding that the testimony of Raj

Kumar and Ramesh establishes the presence at the appellant

in the room along with Hem Raj (P.O.) at the point of time

Mahesh was killed. The conduct of acting in concert is

evidenced that the two switched off the light when the room

was knocked. Thereafter the moment the light was switched

on, both appellant and Hem Raj, attempted to flee, have been

held to be sufficient evidence wherefrom the guilt of the

appellant could be safely inferred.

8. It is urged by learned counsel for the appellant that

the vis-à-vis the appellant not only is there no evidence of

motive but Insp. Ajit Singh PW-12, the Investigating Officer,

has stated that during investigation it transpired that the

(Proclaimed Offender) Hem Raj was having enmity with the

deceased and the appellant was having no such enmity. It is

urged that there is no proof that the appellant had any

common intention with Hem Raj. It is urged that no finger

prints of the appellant could be detected on the weapon of

offence which was used to cause the head injuries i.e. the brick

recovered from the room. It is urged that there is no evidence

as to what acts were committed by the appellant and which

acts were committed by Hem Raj. The sum total of aforesaid

is the submission that Section 34 of the Indian Penal Code

which requires proof of sharing of a common intention and

acting in concert in furtherance of common intention to give

effect to the common intention is not made out.

9. Rules of law and procedure are not an obstacle in

courts. A criminal trial is not a steeple chase. A criminal trial

is a journey, destination whereof is to ascertain the truth and

find out who is the offender.

10. A fact is required to be treated as proved under the

Law of Evidence when after considering the matters before it,

the court either believes it to exist, or considers its existence

so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the

supposition that it exists.

11. Section 5 to Section 16 are interlinked provisions of

the Law of Evidence and guide the court that where a

transaction has been performed with a series of act preceding,

contemporaneous and succeeding a fact in issue, all have to

be considered together for the reason all are interlinked. They

enwomb a fact in issue, having an umbical relationship with

the fact in issue.

12. At the centre of evaluation of evidence before a

court is the test of how a prudent person would believe qua

the existence or non-existence of a fact in issue with reference

to the matters before it.

13. Recognizing that it is virtually impossible for an

accuser to prove each and every facet of an accusation,

Section 106 of the Evidence Act shifts the burden of proving a

fact which is especially within the knowledge of the person.

14. The law of last seen evidence developed by courts

is a combination of what flows out of the provisions of Section

6 to 16 of the Evidence Act and the burden upon the person

having special knowledge under Section 106 of the Evidence

Act.

15. Whether the deceased when alive, and the accused

are seen together and within sufficient proximity of the time

and place, the deceased is found dead, ruling out the

possibility of somebody else accessing the deceased, the court

would be justified in inferring the guilt of the accused unless

there exists a fact which breaks the foundation of the

inference or the accused renders a satisfactory explanation as

to how the deceased died.

16. In this context it is relevant to note that the

appellant, when examined under Section 313 Cr.P.C., failed to

render any explanation as to how the deceased died.

17. We highlight that the appellant claimed not to be

involved in the incident. He stated that Raj Kumar and

Ramesh has deposed falsely. He denied that they caught him

at the spot as claimed by him. Without telling as to when and

where was he arrested, he admitted his signatures on the

various memos but stated that the police obtained his

signatures on blank papers.

18. Thus, it is of importance to note that the appellant

rendered no explanation as to what happened inside the room

in the eventful night of 6th and 7th January, 1996.

19. That motive could not be proved does not mean

that possibly there was a motive. That no finger prints of the

appellant were detected in the room is meaningless for the

reason as deposed to by Inspector Rajender PW-7, a finger

print expert, he could lift some prints from the spot but on

development did not yield any chance prints as per his report

Ex.PW-7/A.

20. That there is no evidence to show as to what acts

were committed by the appellant and what acts were

committed by Hem Raj is irrelevant in the facts and

circumstances of the instant case.

21. That the Investigation Officer could find, during

investigation, no apparent motive attributable to the appellant

and some motive attributable to Hem Raj would also be an

irrelevant circumstance in the instant case.

22. Let us revisit what happened in the night when

Mahesh died. As told to us by Raj Kumar and Ramesh, the

appellant, Hem Raj and Mahesh Kumar were sleeping in the

room. There was a commotion in the room at around 2:30

A.M. in the middle of the night. The light was on inside the

room. Cries of rescue were coming from the room. Raj Kumar

and Ramesh walked up to the room and knocked the door of

the room. The light inside was switched off. The door was

opened. Raj Kumar and Ramesh inquired from the appellant

and Hem Raj as to what was going on and in particular why

was the light switched off. The two gave false answer that the

bulb was fused. The light was switched on. The bulb emitted

light. At that point of time the appellant and Hem Raj

attempted to flee. Whereas Hem Raj succeeded, the appellant

was caught.

23. The court must therefore presume from the facts,

as they do require said presumption to be drawn, that both i.e.

the appellant and Hem Raj fatedly assaulted the deceased.

The prosecution had no means to find out as to who did what.

It was the duty of the appellant to have spoken and disclosed

the facts in his special knowledge. Section 106 of the

Evidence Act is fully applicable in the facts and circumstances

of the instant case.

24. We concur with the findings of the guilt returned by

the learned trial Judge pertaining to that which stands proved

that the offence committed is that of murder.

25. The appeal is dismissed. The sentence to undergo

life imprisonment imposed upon the appellant shall be

executed.

26. The appellant is on bail. The bail bond and the

surety bonds furnished by the appellant are cancelled. Since

the appellant is present in court, he is taken in custody by Naib

Court, HC Rambir who is directed to complete the requisite

formalities to lodge the appellant in the Tihar Jail.

27. Copy of this order be supplied Dasti under the

signatures of the Court Master to learned counsel for the

appellant and also to counsel for the State today itself.

PRADEEP NANDRAJOG, J

SURESH KAIT, J FEBRUARY 25, 2010 'mr/nks'