Hemraj @ Baba vs State
2010 Latest Caselaw 683 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 28th January, 2010
                    Judgment Delivered on: 8th February, 2010

+                  CRL.APPEAL No.920/2005

HEMRAJ @ BABA                            ......Appellant
         Through:         Mr.Rajesh Mahajan, Advocate

                                Versus

STATE                                         ......Respondent
             Through:     Ms.Richa Kapoor, Advocate

                 CRL.APPEAL No.1/2005
VIJAY KUMAR                            ......Appellant
          Through: Mr.Rajesh Mahajan, Advocate

                                Versus

STATE                                         ......Respondent
             Through:     Ms.Richa Kapoor, 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?              Yes

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

PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 3.9.2004,

appellants Vijay Kumar and Hemraj have been convicted for

the offences punishable under Sections 302/120-B IPC and for

Sections 201/120-B IPC. For the offence of murder, the

appellants have been sentenced to undergo Rigorous

Imprisonment for life and to pay a fine in sum of Rupees two

thousand each; in default of payment of fine, they have been

sentenced to undergo rigorous imprisonment for one month

each. For the offence punishable under Section 201 IPC,

appellants have been sentenced to undergo rigorous

imprisonment for four years and to pay a fine in sum of Rupees

two thousand each. In default of payment of fine, they have

been sentenced to undergo rigorous imprisonment for one

month each.

2. Process of law was set into motion when at 10:10

AM on 25.6.2000, information was received at PS Sangam

Vihar that a dead body was lying at a Pahari in Gupta Colony.

The same was recorded vide DD No.5-A. A copy of said DD

was entrusted to SI Lehna Singh PW-13 for investigation.

Accompanied by Const.Dharamvir PW-9 and Const.Vijender

PW-11, SI Lehna Singh reached the spot and found the middle

portion (torso with arms and hands attached) of a dead body

without its head and legs and without clothes. It was apparent

that the body had been cut into pieces, with the head and the

legs severed from the torso. SI Lehna Singh prepared

endorsement Ex.PW-4/B under the copy of DD No.5-A and sent

the same for registration of an FIR for the offence of murder.

He summoned the crime team, a photographer and the dog

squad. The photographer Const.Brij Bir Singh PW-2 took seven

photographs Ex.PW-2/1 to Ex.PW-2/7 of the dead body;

negatives whereof are Ex.PW-2/8 to Ex.PW-2/14. The crime

team could lift no clues and even the dog squad picked up no

leads. The body was sent to AIIMS mortuary alongwith a

request to preserve the same for the reason the body was of

an unidentified person.

3. 4 days later on 29.6.2000 at 9:24 AM information

was received at PS Sangam Vihar about something lying

wrapped in a bed sheet in a vacant plot near a shop of

furniture situated in I-Block Gali Shani Bazaar, main road

Sangam Vihar. The same was recorded vide DD No.7 Ex.PW-

3/A. The investigation of the said DD was also entrusted to SI

Lehna Singh and he proceeded to the spot. There, within a

deserted house without a door, he found a head and two legs

of a body wrapped in a bed sheet. SI Lehna Singh took three

photographs Ex.PW-13/C/1 to Ex.PW-13/C/3 of the same with

his personal camera. He seized and sent the head and the legs

to the mortuary at AIIMS.

4. No breakthrough could be arrived as to whether the

torso, head and legs were of the same person, if yes, who was

the person or whether they were the body parts of two

different persons, and if yes, who were they.

5. On 1.7.2000, Surender Singh PW-8 informed over

the telephone at PS Sangam Vihar that he had apprehended a

person who had admitted to have committed a murder. On

learning this, SI Lehna Singh went to H.N.285-A, Gali No.7, I

Second block, Sangam Vihar the place where Surender Singh

resided and recorded the statement of Surender PW-8,

wherein Surender Singh stated that foul smell was coming

from the house of Hemraj since some days. That day i.e. on

1.7.2000, when he saw Hemraj outside his house, he queried

from Hemraj as to why smell of a dead body was coming from

the house of Hemraj and why Hemraj was not seen for so

many days. On this, Hemraj started stammering, but on his

insistence, Hemraj disclosed that on 24.6.2000, he had

committed murder of a chowkidar and after cutting the head

and legs of the body, disposed of the rest of the dead body

near a hillock, in a jungle near Gupta colony. On 28.6.2000, he

threw the head and legs of the body in a vacant plot next to a

furniture shop in I Block Sangam Vihar. On basis of this

statement made by Surender Singh, SI Lehna Singh arrested

Hemraj and in the presence of HC Ramesh Kumar, SI Lehna

Singh interrogated Hemraj and recorded his disclosure

statement Ex.PW-12/A wherein Hemraj disclosed that pursuant

to a conspiracy between appellant Vijay and him, both Vijay

and he committed murder of Chander Bahadur. He further

stated that he could get the gandasa and the clothes of the

deceased recovered from his house and could get co-accused

Vijay arrested. As per SI Lehna Singh, after recording said

disclosure statement of Hemraj, he produced Hemraj before

the concerned Magistrate and made an application for

obtaining the police custody of Hemraj for two days, stating

that the police custody was required so Hemraj could get the

weapon of offence recovered and get his co-appellant Vijay

Kumar arrested. On being granted police custody, SI Lehna

Singh took Hemraj to his house bearing No.26, Gali No.7, Ratia

Marg, Block I-Second Sangam Vihar, from where, Hemraj got

recovered a Gandasa Ex.P-1, stating the same to be the

weapon of offence; a grey coloured pant Ex.P-2, underwear

Ex.P-3, shirt Ex.P-4, belt Ex.P-5, a pair of socks Ex.P-6 and a

pair of shoes Ex.P-7, stating the same to be the clothes of the

deceased; and a blood stained white shirt Ex.P-13, a blood

stained white vest Ex.P-8, a pink coloured cloth Ex.P-9, a blood

stained lungi Ex.P-10 and a blood stained bed sheet Ex.P-11.

The same were seized vide memo Ex.PW-6/A. SI Lehna Singh

also arrested appellant Vijay Kumar at the instance of Hemraj.

6. On 2.7.2000, Balram Singh PW-5 visited AIIMS and

identified the dead body as that of his brother-in-law Chander

Bahadur. After identification, SI Lehna Singh prepared the

Death Report Ex.PW-13/H and made application Ex.PW-13/G

requesting for the conduct of post-mortem on the dead body.

As per the application, SI Lehna Singh sent the Gandasa to the

doctor to obtain his opinion on the same being the possible

weapon of offence. Dr.S.K.Gupta PW-10 conducted the post-

mortem and prepared his report Ex.PW-10/A. He noted 2 ante-

mortem and 5 post-mortem injuries on the body. He opined

that the cause of death was ante-mortem decapitation

produced by sharp edged weapon, which was sufficient in the

ordinary course of nature to cause death. He opined that the

gandasa Ex.P-1 could be the possible weapon of offence.

7. On 9.9.2000, charge-sheet was prepared. It may be

noted that as per the charge-sheet, items seized during the

investigation had been sent to FSL before the charge-sheet

was prepared. As per FSL report Ex.PW-13/M, on examination

of the parcels received on 26.12.2000, blood was detected on

pants, underwear and shirt of the deceased and on the clothes

of appellant Hemraj. The blood group of the blood detected on

the pants and shirt of deceased and banian and shirt of

appellant was 'A' group.

8. At the trial, prosecution examined 14 witnesses, out

of which the testimony of only 5 is relevant and hence we note

the same.

9. Ram Rati PW-7 deposed that deceased Chander

Bahadur was her husband and was employed as a chowkidar

at the Blind School, Lal Kuan. Vijay Kumar along with his wife

and she with her husband (the deceased) resided together in

one premises. Appellant Vijay and her husband used to

consume liquor together. Appellant Hemraj was also known to

appellant Vijay and sometimes Hemraj, Vijay and her husband

used to consume liquor together. One evening in June 2000,

her husband and appellant Vijay had left the house together.

But only Vijay returned, her husband did not return. When she

queried Vijay, he told her that her husband had left Vijay. On

2.7.2000 she learnt that her husband had been murdered.

That the shirt Ex.P-4, pant Ex.P-12, the belt Ex.P-5, pair of

socks Ex.P-6 and the shoes Ex.P-7 were the clothes of her

husband.

10. Surender Singh PW-8 deposed that since about a

year and a half prior to the incident Hemraj was residing in a

tenanted premises opposite his house. Since 5 or 6 days prior

to 1.7.2000, foul smell was coming from the house of Hemraj.

On 1.7.2000, at about 10:00 A.M. or 10:30 A.M. he was sitting

on the porch of his house when he saw Hemraj ready to go

somewhere on his cycle. Hemraj was carrying a bag. He

asked Hemraj as to how come Hemraj was not seen for the last

so many days and why foul smell was coming. On this Hemraj

started stammering. On his insistence, Hemraj disclosed to

him that on 24.6.2000 Hemraj had murdered a chowkidar and

after cutting his body had thrown the middle portion of the

body in a jungle in the ditches in the pahari area and he had

thrown the head and legs of the deceased in a vacant block

near Shani Bazaar. On learning this he apprehended Hemraj

and informed about the confession and apprehension to the

police. The police arrived and arrested Hemraj. On

interrogation by the police Hemraj got recovered a gandasa

and cut clothes of the deceased from his house.

11. SI Lehna Singh PW-13 deposed that at about 10:10

A.M. on 25.6.2000 he was entrusted with the investigation

pertaining to DD No.5A. He went to the pahari near Gupta

Colony and found the middle portion of a body lying there.

The body was without clothes and had some injuries caused by

a sharp edged weapon. He prepared tehrir and sent the same

for registration of the FIR and summoned a photographer,

crime team and dog squad. At about 9:24 A.M. on 29.6.2000

another DD was recorded and pursuant to the same he

recovered the head and legs of a body wrapped in a bed sheet

from a vacant plot near a furniture shop near Shani Bazaar,

Sangam Vihar, Main Road. He sent the same along with the

bed sheet to AIIMS. On 1.7.2000 he learnt about the

apprehension of a person who had committed a murder and

went to H.No.285-A Gali No.7, I Second Block, Sangam Vihar,

where he met Surender who had apprehended Hemraj. He

arrested Hemraj and recorded his disclosure statement. He

then produced Hemraj before the concerned Magistrate and

obtained his police custody. Thereafter Hemraj got recovered

a gandasa and clothes of the deceased from his house in

Sangam Vihar which were seized vide memo Ex.PW-6/A. He

also arrested appellant Vijay at the instance of Hemraj. On

2.7.2000 Trilok brother of the deceased and Balram brother-in-

law of the deceased visited the police station and informed

him that Chander Bahadur was missing. He showed them the

dead body and they identified the same to be that of Chander

Bahadur. Thereafter, on the same day the post-mortem on the

body was got conducted.

12. HC Ramesh Kumar PW-12 deposed that he joined

the investigation on 1.7.2000 and on that day secret

information was received about the apprehension of a person

who had committed a murder. On learning the same they

went to I/II Block Sangam Vihar and met one Surender who

informed them that Hemraj confessed to Surender about

having committed murder of a chowkidar. They arrested

Hemraj. SI Lehna Singh recorded his disclosure statement and

effected recoveries of a gandasa and some clothes from his

house.

13. Balraj Singh PW-5 deposed that deceased Chander

Bahadur was his brother-in-law and on 2.7.2000 he identified

the dead body of Chander Bahadur in the hospital. On being

cross-examined, he stated that he learnt about the death of

Chander Bahadur on 1.7.2000.

14. In his examination under Section 313 Cr.P.C.

appellant Hemraj denied all incriminating evidence against him

but admitted that Surender Singh PW-8 was residing in a

house opposite his house for about a year and a half prior to

incident.

15. Vide impugned judgment and order dated 3.9.2004,

appellants Vijay Kumar and Hemraj have been convicted for

the offences punishable under Sections 302/120-B IPC and

Sections 201/120-B IPC. The conviction of appellant Vijay

Kumar is based on the testimony of Ram Rati PW-7, the wife of

the deceased, which as per the learned Trial Judge held

established that the deceased Chander Bahadur was last seen

in the company of appellant Vijay Kumar soon before the

recovery of his dead body. The conviction of appellant Hemraj

is based on the extra judicial confession made by him to

Surender Singh PW-8. Further, the recovery of clothes

identified by the wife of deceased as the clothes of the

deceased, at the instance of appellant Hemraj from his house

and the recovery of Gandasa, opined by PW-10 who conducted

the post-mortem to be the possible weapon of offence, at the

instance of appellant Hemraj were also held to be

incriminating evidence against appellant Hemraj.

16. At the hearing of the appeal, qua appellant Vijay,

counsel urged that the only incriminating evidence that has

come on record is that he was last seen with the deceased by

Ram Rati PW-7, the wife of the deceased. No recoveries are

alleged to have been effected from or at the instance of

appellant Vijay. Counsel urged that the solitary circumstance

of last seen is not sufficient to fasten guilt to the appellant

Vijay for the reason that the statement of this witness

regarding last seen was recorded only after the arrest of Vijay

on 2.7.2000, though the deceased was missing since

24.6.2000. Counsel urged that the unexplained delay makes

the statement of this witness not worthy of credence. Further,

counsel urged that no motive has been proved by the

prosecution for Vijay to have murdered the deceased.

17. Qua appellant Hemraj, learned counsel urged that

the extra-judicial confession made to PW-8 would be

admissible only if the testimony of PW-8 is found to be reliable.

The credibility of the testimony of PW-8 would in turn depend

upon the same being in conformity with the prosecution story

as a whole and in consonance with the deposition of other

witnesses. Attempting to discredit PW-8, counsel highlighted

the following discrepancies:-

(a) While PW-8 deposed that he was the one to have

informed the police about the apprehension of Hemraj, but the

police officials HC Ramesh Kumar PW-12 and SI Lehna Singh

PW-13 deposed that Hemraj was arrested on the basis of

information received from a secret informer.

(b) The deposition of PW-8 that he got suspicious as

foul smell was emanating from the house of Hemraj, has not

been corroborated either by the presence of any part of the

dead body in the house causing the foul smell, or by the

testimony of any of the police witnesses who accompanied

Hemraj and recovered the gandasa and clothes from said

house. Thus, counsel urged, the genesis of suspicion of

Surender PW-8 being the foul smell has not been proved.

(c) PW-8 deposed that Hemraj was carrying a bag with

him and was on a cycle when he apprehended Hemraj. But

neither any bag, nor any cycle was seized by the police from

the personal search of Hemraj.

(d) As per PW-8, the incident of appellant Hemraj

making an extra judicial confession to him, his informing the

police, arrival of the police, recording of the disclosure

statement of Hemraj by the police and the effecting of

recoveries were part of one transaction and took place in

continuity with each other. But, as per SI Lehna Singh PW-13

after the recording of the disclosure statement, he first

produced Hemraj before the concerned Magistrate and only

after obtaining the police custody of Hemraj he effected the

recoveries of weapon and clothes at the instance of Hemraj.

(e) Lastly, it was urged that though the presence of

Surender PW-8 at the time of recording of disclosure

statement of Hemraj has been deposed to by all the relevant

witnesses being PW-8, PW-12 and PW-13, but the said

disclosure statement does not bear the signatures of PW-8 as

a witness to the same. Learned counsel further highlighted

that the recovery memo Ex.PW-6/A pertaining to the articles

recovered at the instance of appellant Hemraj from his house

bears the signature of PW-8. Counsel urged that said

circumstance read in conjunction with the discrepancy noted

in sub-para (d) above, suggest subsequent manipulation of the

disclosure statement. Counsel highlighted that the caption of

the disclosure statement reads: 'Case FIR No.240/2000 dt 25-

6-2000 u/s 302/201/120-B IPC, P.S. Sangam Vihar, New Delhi'.

It was urged that the angle of conspiracy was revealed only

after Hemraj made the purported disclosure statement and if

at all, the offence punishable under Section 120B IPC was

disclosed to the police and thus at the time of recording the

disclosure statement it could not be mentioned that the same

pertained to an FIR relating to, inter alia, the charge of

conspiracy. Thus, counsel urged that it was apparent that the

disclosure statement had been anti timed.

18. Further, attacking the extra-judicial confession

made by the appellant, learned counsel urged that the same

was made after 7 days of the offence, which delay assumes

significance. Referring to the decisions reported as 1999

Cri.L.J. 4597 State of Punjab vs. Gurdeep Singh, AIR 1973 SC

343 Rahim Beg vs. State of U.P., AIR 1982 SC 1595 Heramba

Brahma vs. State of Assam, 1997 SCC (Cri) 358 Jaspal Singh

vs. State of Punjab and AIR 1983 SC 295 Manzoor vs. State of

Punjab counsel urged that the extra judicial confession does

not inspire confidence insofar as there is no evidence that

Surender PW-8 was so close an acquaintance of the appellant

Hemraj and that Hemraj would find it safe to repose

confidence in him and confess his guilt to him. In any case,

learned counsel urged that extra judicial confession was a

weak piece of evidence requiring appreciation with care and

caution.

19. Stating that the disclosure statement of Hemraj and

the seizure of clothes of deceased and the weapon at the

instance of Hemraj were manipulated, counsel urged the

following points:-

(a) The remand application dated 1.7.2000, filed by SI

Lehna Singh does not state effecting recovery of clothes as a

purpose for seeking the police custody of Hemraj, even though

in his disclosure Hemraj categorically stated that he could get

the clothes of deceased recovered from his house.

(b) Why would a person, who is sane enough to have

disposed of the torso and the head and the legs at two

different places to avoid being caught not dispose of the

clothes of the deceased rather preserve them in his

possession?

(c) The photographs of the spot from where the head

and legs were recovered, clearly show that a grey coloured

pants was lying, hardly at a distance of a feet from the head.

But, no such pants were seized from said spot. Rather a pair

of grey coloured pants finds mention in the seizure memo

Ex.PW-6/A, which records the seizure of articles recovered at

the instance of Hemraj from his house. Counsel urged that

this castes a doubt on the purity of investigation.

(d) SI Lehna Singh PW-13 deposed that the head and

legs were found lying wrapped in a bed sheet and he sent the

body along with the bed sheet to the hospital. But, neither

any doctor, nor the post-mortem report prove that the dead

body was received along with a bed sheet. There is no other

evidence as to where the said bed sheet went. However, the

seizure memo Ex.PW-6/A of the articles recovered from the

house of the appellant at his instance, records seizure of one

bed sheet from said house.

(e) Pertaining to the weapon of offence, as per the

request application Ex.PW-13/G for conducting post-mortem,

the IO sent the alleged weapon of offence to the doctor for his

opinion on the same being the possible weapon of offence.

However, the doctor conducting the post-mortem does not

give any such opinion, in the post-mortem report. It is only in

his testimony in the court that he states that the Gandasa

shown to him could possibly be the weapon of offence.

(f) No witness from the malkhana was examined, nor

was any register or record of the malkhana proved to show the

safe custody of the seizures.

(g) While as per the charge-sheet prepared on

9.9.2000 the articles seized during the investigation had

already been sent to the FSL before the preparing of the

charge-sheet, but as per the FSL report, the articles were

received in the laboratory only on 26.12.2000.

20. Counsel urged that a conjoint reading of all the afore-

noted points (a) to (g) show that the seizures effected at the

instance of appellant Hemraj from his house have been

manipulated.

21. Counsel urged that while SI Lehna Singh PW-13

deposed that on 2.7.2000, relatives of the deceased i.e. Trilok

and Balraj visited the police station to report about the

deceased Chander Bahadur being missing, Balraj PW-5

deposed that on 1.7.2000 he had learnt about the death of

Chander Bahadur. Counsel urged that this discredited the

version of SI Lehna Singh.

22. Pertaining to the evidence against appellant Vijay

Kumar, we note that in the extra-judicial confession made by

Hemraj to PW-8, he did not state that the murder was

committed by him along with appellant Vijay in pursuance of a

conspiracy between them. In his statement under Section 161

Cr.P.C. and as well as his deposition in court, Surender PW-8

stated that Hemraj confessed to having committed murder of

one chowkidar, but did not inculpate appellant Vijay in the

extra judicial confession. Clearly, the only evidence against

appellant Vijay is that of the deceased being last seen in his

company by Ram Rati PW-7, wife of the deceased. The

evidence of last seen is considered to be a strong piece of

evidence to inculpate the appellant only if there is proximity of

time and place of the appellant being last seen with the

deceased and the death of the deceased. We note that as per

PW-7, Vijay Kumar was seen leaving the house at Blind School,

Lal Kuan, New Delhi with the deceased Chander Bahadur in the

evening of 24.6.2000. But the dead body was recovered in

two parts i.e. the middle portion without the legs and head on

25.6.2000 and the head and legs on 29.6.2000. We further

note that while the middle portion of the body was recovered

from a pahari in Gupta Colony, the head and legs were

recovered from a vacant plot near a shop of furniture situated

in I-Block Gali Shani Bazaar, main road Sangam Vihar. There is

no such proximity between the time and place of last seen and

the time when the deceased died to reach to a definite

conclusion that appellant Vijay Kumar was one of the

offenders.

23. The probability of Vijay Kumar having parted

company with the deceased cannot be ruled out.

24. In this connection, lest there be any confusion, we

note that in the extra-judicial confession made by Hemraj to

Surender he has not stated that he killed the deceased in

conspiracy with Vijay Kumar. Said fact of a conspiracy and

participation of Vijay Kumar in the crime is disclosed in

Hemraj's confessional statement recorded by SI Lehna Singh,

which obviously is inadmissible in evidence.

25. Thus, Vijay Kumar is entitled to be acquitted of the

charge framed against him.

26. Dealing with the evidence against Hemraj and the

contentions urged by learned counsel for the appellants we

need to note certain backdrop facts. Chander Bahadur had left

his house in the evening of 24.6.2000 and he was in the

company of Vijay Kumar. Chander Bahadur, his wife, Vijay

Kumar and his wife used to live together. Vijay Kumar

returned to the house and on being questioned by the wife of

Chander Bahadur as to where Vijay was, told her that he and

Vijay had parted company. Chander Bahadur's wife did not

report Chander Bahadur being missing to the police. Why she

did not do so has not been brought out either by the

prosecution or the defence when she appeared as PW-7. A

probable reason could be that Chander Bahadur who was

working as a chowkidar and was prone to drinking may be, in

the past, indulging in not returning home for days together.

We have come across cases where wives have not reported

their husbands missing for days together or parents not

reporting their major children not returning home for days

together because of the peculiar lifestyle of the husbands or

the major children leaving and returning to their houses in

wayward manner. The torso of a dead body with arms and

hands attached was recovered at around 10:30 AM on

25.6.2000. The police had no clue as to who was murdered.

On 29.6.2000, the legs and the head i.e. the remaining part of

the body was recovered and even on that day the police had

no clue about the identity of the person who was killed. On

1.7.2000 i.e. the date on which Surender Singh claims Hemraj

having made an extra-judicial confession to him, the police

was just not aware of the fact that the dead body recovered by

them in a mutilated condition was that of Chander Bahadur.

Surender Singh never knew that Chander Bahadur was missing

or had been murdered. The first time the investigating officer

learnt about the identity of the dead body was on 1.7.2000

when he reached the house of Surender PW-8 who informed

him that Hemraj has made an extra-judicial confession to him.

The fact which was learnt through the confessional statement

of Hemraj proved to be correct with subsequent investigation

when Balram PW-5, the brother-in-law of the deceased

identified the body to be that of Chander Bahadur. The

aforesaid circumstances and facts form the backdrop of the

leads available to the prosecution and while appreciating the

evidence and the contentions urged have to be accorded their

due weight.

27. From a perusal of the arguments urged by learned

counsel for the appellants the challenge to the evidence led by

the prosecution can be clubbed into two different heads.

Firstly with reference to the caption on the confessional

statement of Hemraj and the time when recoveries pursuant

thereto were effected as also to the articles stated to be

recovered being planted and the fact that in the application

seeking police remand it was not stated that the clothes of the

deceased, reference whereto had been made in the disclosure

statement by Hemraj had to be recovered. The second being

the various submissions challenging the credibility of the claim

of Surender Singh that Hemraj made an extra judicial

confession to him.

28. At the forefront was the argument that why should

Hemraj at all make a disclosure statement to Surender. Now,

as deposed by Surender, Hemraj was his neighbour for the last

1½ years living right opposite his house. It was but natural for

Surender to question Hemraj as to where Hemraj was if he had

not seen Hemraj in his house for a few days. This is what had

happened. So has Surender deposed. As per Surender he had

not seen Hemraj in his house for the last 5 or 6 days and had

been noticing a foul odour emanating from the house of

Hemraj. When he saw Hemraj with a bag and ready to go

somewhere on his cycle at 10:00 AM or 10:30 AM it was

natural for him to walk up to Hemraj and ask him whether all

was well. As he walked up to Hemraj he further noticed

another abnormality of Hemraj smelling of alcohol in the

morning. It is not the usual habit of people to consume alcohol

in the morning. It is an activity reserved for the noon siesta or

an evening of fun. It was natural for Surender to ask Hemraj

as to why he was drunk in the morning.

29. If the mind is troubled and so many questions are

asked simultaneously, all questions being relevant to the

occasion and the circumstance, the troubled mind is bound to

search for answers and if no ready answer can be fabricated,

to stammer out the truth. It is important to note that as per

Surender when he asked all these questions to Hemraj he

started stammering before he blurted the truth.

30. And what was the truth. It was something not

known to Surender. How could Surender ever think of telling

anybody that a man had been murdered and the head and the

legs cut off from the torso; how could he tell the place where

the torso was thrown and where the head and the legs were

thrown, unless somebody told him so or he saw somebody do

so.

31. The circumstance under which Surender claims

Hemraj having confessed and made a confessional statement

to him is of a kind that credibility thereof emerges of the

highest order.

32. Confessions are received in evidence in criminal

cases upon same principle on which admissions are received in

civil cases; namely on the presumption that a person will not

make an untrue statement against his own interest.

33. A man of sound mind and full age who makes a

statement in ordinary simple language and has not been the

victim of malpractice, threat or inducement in making such

statement, must be bound by the language of the statement

and by its ordinary plain meaning and the act spoken of must

be given its legal consequence.

34. As held way back in the year 1907, in the decision

reported as Emperor vs. Narayen (1907) 9 Bom.L.R. 789 (FB),

deliberate and voluntary confessions of guilt, if clearly proved,

are among the most effectual proofs in law.

35. Nemo debet prodere se ipsum i.e. 'no one can be

required to be his own betrayer' requires it to be ensured that

before admitted in evidence and relied upon, it has to be

ensured that the confession is reliable. Thus, it has long been

established as a positive rule of criminal law that no statement

by an accused is admissible in evidence against him unless it

is shown by the prosecution to have been a voluntary

statement, in the sense that it has not been obtained from him

either by fear of prejudice or hope of advantage exercised.

36. Why people make confessions? None has been

able to exhaustively categorize various reasons or motives for

a person to make a confession. Remorse, hope that an early

admission of guilt might lead to a lighter sentence, putting the

conscience to rest, are usually the foundation for a person to

make a confession. But, it may happen that a person who is

required to explain his conduct, on finding no answer, may

blurt out the truth.

37. Since as held in the decision reported as Shankaria

vs. State of Rajasthan AIR 1978 SC 1248, confessions, if

voluntarily and truthfully made, are an efficacious proof of

guilt, therefore, when in a capital case prosecution demands a

conviction of the accused, primarily on the basis of his

confession, the Court must apply a double test: (i) Whether the

confession was perfectly voluntary? (ii) If yes, whether it was

true and trustworthy?

38. Satisfaction of the first test i.e. the confession being

completely and perfectly voluntary is a sine qua non for its

admissibility in evidence. If the first test is satisfied, the Court

must, before acting upon the confession, reach the finding that

what is stated therein is true and reliable.

39. For judging the reliability of a confession, no rigid

canon of universal application can be prescribed. While

dealing with reliability of a confession and in particular an

extra judicial confession, three factors have to be kept in mind.

Firstly: (i) to whom it is made; (ii) the time and place of making

it; and (iii) the circumstance, in which it was made. Some

decisions have highlighted a fourth factor to be kept in mind;

being, the credibility of the witness who speaks to such a

confession.

40. Tested on the anvil of law pertaining to confessions

as afore-noted, the circumstances under which Surender

claims Hemraj made the confession to him inspires confidence

of the highest degree factoring in the circumstance that

Surender has no motive to falsely implicate Hemraj. The

contours of the confession as disclosed to SI Lehna Singh soon

after the confession was made confirm the previous events

which had transpired in the form of recovery of the body parts

of the deceased from two different places on two different

dates, not only the manner in which the dead body was cut but

even the places where the body parts were thrown were

disclosed by Surender to SI Lehna Singh. These conform to

the places where the parts of the dead body were recovered

as also how the body was cut as disclosed in the seizure

memos prepared by SI Lehna Singh on 25.6.2000 and

29.6.2000.

41. That the police officer HC Ramesh Kumar PW-12

has stated that the police learnt about the accused being

apprehended by a secret informer and Surender PW-8 has

stated that he informed the police after Hemraj made a

confessional statement to him is neither here nor there for the

reason it is the usual habit of all police officers to claim that

every bit of information received by them was from a secret

informer. We just cannot understand as to why the police

officers tell petty lies and refuse to give credit to the actual

informant. May be it has its source in the fund made available

to the police to pay secret informers for the reason

surveillance and counter-surveillance have to be conducted

under cloak of secrecy and these funds are never audited.

May be to ensure that adequate money flows into the said

fund, the police officers claim to be having a lot of secret

informers and receive money to be paid to the secret

informers; some of which may be pocketed by the police

officers themselves. We highlight that SI Lehna Singh PW-13

has not claimed that he received information through a secret

informer. He has simply stated that on receiving information

that the killer had been apprehended, he left for the house of

Surender. How did SI Lehna Singh and HC Ramesh Kumar

proceed to the house of Surender PW-8? They did not know

his address. It is obvious that as claimed by Surender he

furnished his address. That no foul smell has been proved

emanating from the house of Hemraj does not mean that the

claim of Surender that he smelled foul odour from the house of

Hemraj is false. We note that the testimony of Surender to

this effect has not even been challenged during cross-

examination. Besides, how can anyone prove that on a

particular time, on a particular date foul smell was noted?

Obviously through the testimony of somebody who so claims.

That the police officers have not deposed that even they

smelled foul odour from the house of Hemraj does not mean

that no foul odour was emanating from the house. Well, they

did not say so, because nobody questioned them on the issue.

A person answers what he is questioned. It depends upon

person to person. Somebody is alive to a situation and

volunteers further information with reference to the questions

put to him as he thinks that the further information would be

relevant while considering his answer and somebody remains

lazy and satisfied to answer the question put to him without

volunteering further information.

42. Neither the bag nor the cycle of Hemraj had

anything to do with the crime and we see no reason why the

investigating officer should have seized the same. The

argument that neither the bag which Surender claims having

seen with Hemraj and the cycle of Hemraj were not seized is

meaningless. Relevant evidence is a thing or a state of thing

connected with a fact in issue and not just about everything. If

the argument of learned counsel for the appellants is to be

accepted, it would mean that if a crime is committed in a

house, every household article would be required to be seized.

It is settled law that only such article or object which is

incriminating or which possibly can be incriminating has to be

seized and no more.

43. The various documents proved at the trial

pertaining to the disclosure statement of the appellant and the

statement of Surender in which he gives the contours of the

confessional statement of Hemraj and the various recovery

memos prepared on 1.7.2000 show that when SI Lehna Singh

reached the house of Surender he recorded the statement of

Surender as also the confessional-cum-disclosure statement of

Hemraj. On the same day Hemraj was produced before the

Magistrate and an application seeking police custody was filed

and orders obtained. On the same day recovery memo Ex.PW-

6/A showing the recoveries as noted in para 5 above was

drawn.

44. Just because Surender PW-8 has deposed in a

continuous narrative and two distinct happenings on the same

day have been narrated by him in a manner as if everything

happened continuously i.e. after his i.e. Surender's statement

was recorded by SI Lehna Singh, the confessional-cum-

disclosure statement of Hemraj was recorded followed by the

recoveries does not lead to the only conclusion that SI Lehna

Singh has deposed falsely or has fabricated the record.

45. It is true that on the disclosure statement of Hemraj

the caption has been written 'Case FIR No.240/2000 dt 25-6-

2000 u/s 302/201/120-B IPC, P.S. Sangam Vihar, New Delhi',

which could not have been so written for the reason by that

time the FIR registered was only for the offences punishable

under Section 302/201 IPC. The conspiracy was disclosed for

the first time to SI Lehna Singh when Surender informed SI

Lehna Singh about the confessional statement made to him by

Hemraj. But, we find that SI Lehna Singh has not been

questioned with respect to said aspect of the caption on the

statement of Hemraj. We do not know what answer he would

have given. May be he would have said that he forgot to write

the caption and simply recorded the disclosure statement and

later on realizing that he ought to have made a mention of the

FIR to which it related, later on wrote the particulars thereof,

by which time the offence of conspiracy stood added in the

FIR. It is settled law that if an adverse inference has to be

drawn with reference to a document prepared by the witness

or on a discrepancy in something deposed by the witness, his

attention has to be drawn thereto and an opportunity granted

to the witness to give an explanation and only where he is

unable to give a satisfactory explanation can an adverse

inference be drawn. The decisions reported as AIR 1975 SC

290 Rahim Khan vs. Khurshid Ahmed, 1988 Supp. SCC 686

State of U.P. vs. Anil Singh and (2005) 9 SCC 298 Sunil Kumar

vs State of Rajasthan may be noted.

46. The applicability of the ratio of law laid down in the

aforesaid decisions is best illustrated when we consider the

argument of learned counsel for the appellants that the

various exhibits were sent to the FSL Laboratory for report of

the serologist with reference to the blood sample of the

deceased and as per the charge-sheet filed the IO claimed to

have sent the samples to the FSL Laboratory before the

charge-sheet was filed. Drawing our attention to the fact that

the charge-sheet was filed on 9.9.2000 learned counsel

referred to the report Ex.PW-13/L of the FSL Laboratory which

referred to the letter dated 26.12.2000 written by the SHO; the

covering letter to the report Ex.PW-13/L being dated

31.1.2001. Learned counsel urged that it was apparent that

the exhibits and the blood sample of the deceased was

obviously not sent to the FSL Laboratory when the charge-

sheet was filed. We note that SI Lehna Singh, the investigating

officer was not cross-examined on this issue. But had he been,

his response would have been, with reference to the record of

the learned Magistrate before whom committal proceedings

were conducted. The record of the learned Magistrate is a part

of the Trial Court Record and it shows that on 31.7.2000 SI

Lehna Singh moved an application to the Court during

investigation praying that orders be passed directing the FSL

laboratory to receive the exhibits recovered during

investigation on priority basis. The learned Magistrate not only

passed an order but directed a letter in the month of August

2000 to the Director, FSL to do the needful. SI Lehna Singh

would have explained that in the year 2000 there was only one

FSL laboratory in Delhi and being over-worked, the laboratory

was not receiving exhibits for analysis except on priority basis

if directed by the Magistrate concerned; exhibits were being

received as and when the laboratory completed the pending

work and wrote to the SHOs of the police stations to send

further exhibits for expert evaluation. SI Lehna Singh would

have explained that in the instant case the exhibits were sent

to the laboratory along with the covering letter of the learned

Metropolitan Magistrate in August 2000 and thus he correctly

wrote in the charge-sheet in September 2000 that the exhibits

had been sent to the FSL Laboratory. He would have

explained that the reference in the letter of the FSL laboratory

to the letter of the SHO was when the SHO sent a reminder for

report to be submitted. The instant illustration is an apt

application and the result thereof with reference to the

requirement of putting a discrepancy to a witness and eliciting

his response thereto.

47. That Surender has not signed as a witness on the

disclosure statement of Hemraj does not mean that his claim

of being present when Hemraj was interrogated is false. There

is no law to obtain signatures of all those who have witnessed

the recording of a disclosure statement.

48. Pertaining to the submissions that the recoveries of

the personal effects of the deceased being planted cannot be

ruled out, no doubt the sheet in which the head and legs of the

deceased were lying wrapped and which was seized has

disappeared and there may be substance that SI Lehna Singh

planted the same as also that the photographs of the head and

the legs show a grey coloured pant in the vicinity and the fact

that a grey coloured pant has been shown as recovered from

the house of Hemraj could also be a possible plant. But, what

about the other personal effects of the deceased which have

been identified by the wife of the deceased as belonging to the

deceased which find a mention in the seizure memo Ex.PW-

6/A. No suggestion has been given to the wife or the brother

of the deceased who appeared as witnesses that either they

handed over the personal effects of the deceased to SI Lehna

Singh or that SI Lehna Singh picked up some personal effects

of the deceased from the house. No suggestion has been

given to SI Lehna Singh that he picked up the grey coloured

pant seen in the photograph when he seized the head and the

legs of the dead body on 29.6.2000. No question was asked to

him as to what happened to the sheet in which he sent the

body for post-mortem. We find that the doctor who conducted

the post-mortem has not said that after the post-mortem he

handed over the sheet in which the dead body was sent to

him. It is possible that being a useless sheet, after the post-

mortem it was thrown in the garbage and then into the

incinerator. In any case, nobody being cross-examined on the

issue it would be wrong to say that the recoveries have been

planted. But, we would prefer to apply the rule of prudence

and ignore the said recoveries.

49. For the law pertaining to extra-judicial confessions

discussed by us in paras 32 to 39 above and as held in the

decision reported as 1985 SCC (Cri.) 105 State of U.P. vs.

M.K.Antony, for unexplainable reasons extra-judicial

confessions have been treated as a weak piece of evidence

but there is no rule of law nor rule of prudence that an extra-

judicial confession requires corroboration. If the evidence

about extra-judicial confession comes from the mouth of

witness who appears to be unbiased, not even remotely

inimical to the accused, and in respect of whom nothing is

brought out which may tend to indicate that he may have a

motive for attributing an untruthful statement to the accused,

the words spoken to by the witness are clear, unambiguous

and unmistakably convey that the accused is the perpetrator

of the crime and nothing is omitted by the witness which may

militate against it, then after subjecting the evidence of the

witness to a rigorous test on the touchstone of credibility, if it

passes the test, the extra-judicial confession can be accepted

and can be the basis of a conviction. In such a situation to go

in search of corroboration itself tends to cast a shadow of

doubt over the evidence.

50. We have already given our reasons as to why we

have held the evidence of Hemraj's extra-judicial confession to

Surender spoken through the mouth of Surender as passing

the test of credibility.

51. Thus, we concur with the view taken by the learned

Trial Judge that the prosecution has successfully established

the guilt of Hemraj.

52. Crl.Appeal No.920/2005 filed by Hemraj is

dismissed. Crl.Appeal No.1/2005 filed by Vijay Kumar is

allowed. Vijay Kumar is acquitted of the charge of having

murdered Chander Bahadur as also the charge punishable

under Section 201 IPC.

53. Since Vijay Kumar has been admitted to bail, in

view of his acquittal the bail bond and the surety bonds

furnished by him are discharged.

54. Since Hemraj is still in jail we direct that a copy of

our present decision be sent to the Superintendent, Central

Jail, Tihar to be made available to Hemraj.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 08, 2010 mm / dk