Kiran vs State
2010 Latest Caselaw 696 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on : February 26, 2010
                        Judgment Delivered on : March 08, 2010

+                              CRL.APPEAL No.672/2007

         KIRAN                                       ..... Appellant
                        Through:     Ms.Ritu Gauba, Advocate
                                     versus

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

                               CRL.APPEAL No.194/2008

         BEGHRAJ                                     ..... Appellant
                        Through:     Ms.Ritu Gauba, Advocate

                                     versus

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

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

      1. Whether the Reporters of local papers may be
         allowed to see the judgment?

      2. To be referred to the Reporter or not?              Yes

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

PRADEEP NANDRAJOG, J.

1. As per the prosecution co-accused Dharambir, who

has been acquitted, was the mastermind behind the

conspiracy. At his instance, the appellants as also the juvenile

accused Sonu son of Dharambir, contrived to kidnap Deepak

aged 8 years son of Radhey Shyam to extract ransom from

Radhey Shyam and in the process, the appellants to whom

illegal custody of Deepak was handed over by Radhey Shyam

and Sonu, murdered Deepak whose body was recovered from

the precincts of a sugarcane field on the National Highway

Khatoli towards Meerut in the State of Uttar Pradesh.

2. As deposed to by Radhey Shyam PW-2 and Usha

PW-1, the father and mother respectively of Deepak, he went

missing from his house on 03.02.2004 and since Deepak could

not be located Radhey Shyam reported his son being missing

to the police, which information was recorded in the form of

his statement Ex.PW-2/A by the Duty Officer PS Narela on

04.02.2004 and an FIR for the offence punishable under

Section 363 IPC was registered on 04.02.2004 at 12:20 in the

Noon. The child could not be located.

3. On 05.02.2004 a telephone call was received at

telephone No.27784291 installed in the house of Gopi Chand

PW-3, a neighbour of Radhey Shyam, with the caller informing

Gopi Chand to call Radhey Shyam, who was summoned by

Gopi Chand and was asked by the caller whether he wanted to

meet his son. As deposed to by Radhey Shyam, he replied in

the affirmative. The caller told him to wait for a further call at

around 12:00 Noon. But, before 12:00 Noon, at around 11 or

11:15 A.M. another call was received and Deepak spoke to

him. The person calling demanded ransom in sum of Rs.2 lacs

for release of Deepak and informed him that the place for

delivering money would be intimated later. Since the phone of

Gopi Chand had a caller ID facility, Radhey Shyam noted the

telephone numbers wherefrom the calls were made and

immediately proceeded to the police station to pass on said

information to the police. As deposed to by SI R.K. Mann PW-

17, Radhey Shyam met him on 05.02.2004 and informed him

that at the number 27784291 two calls were received from

telephone Nos.1396223082 and 139622211 and that the caller

demanded ransom in sum of Rs.2 lacs to release Deepak and

that Deepak had spoken to him. Thus, he got added in the FIR

the offence punishable under Section 364A IPC and arranged a

raiding party to go to district Muzaffar Nagar for the reason the

two telephone numbers from where the calls were made, with

reference to the area code, related to said place. Besides

himself, the raiding party consisted of Ct. Ramesh Kumar PW-

11 and Ct. Mange Ram PW-9. The father of the kidnapped child

was also taken along and they reached Muzaffar Nagar in the

State of Uttar Pradesh. They found out from the telephone

exchange that the two telephone numbers were installed at a

STD shop at bus stop village Morna and a STD booth at Behra

Sadat in Muzaffar Nagar District.

4. The police team managed to track down the two

booths which belonged to Irfan Mohd. PW-4 and Bharat

Bhushan PW-5 respectively and as deposed to by the said two

persons and SI R.K.Mann PW-17 as also Ct. Mange Ram PW-9

and Ct. Ramesh Kumar PW-11, they i.e. Irfan Mohd. and Bharat

Bhushan told that two persons along with a young boy had

visited their telephone booths to make calls. They handed

over print outs of bills Ex.PW-4/A, Ex.PW-4/B and Ex.PW-5/A by

generating the same from the machine attached to the

telephone number which evidence calls made from their

respective STD booths to the number 27784291 on

05.02.2004.

5. As deposed to by Radhey Shyam PW-2 as also Irfan

Mohd. PW-4 and Bharat Bhushan PW-5 as also the three police

officers who were a part of the raiding party, when Irfan Mohd.

and Bharat Bhushan gave the description of the two men,

Radhey Shyam immediately guessed that one was the co-

brother of Dharambir and the other was his brother-in-law i.e.

the appellants. He went to the house of the in-laws of his

brother Dharambir in village Kemada near Muzaffar Nagar

town where nobody was present. His aunt Gharvari told the

police team that the appellant Beghraj was in village Lalpur.

They went to village Lalpur and learnt that appellant Beghraj

was working in Gupta brick kiln and on reaching the said brick

kiln located the shed where Beghraj was staying and not only

found him but even found Kiran.

6. The two were interrogated and they made separate

confessional-cum-disclosure statements Ex.PW-9/A and Ex.PW-

9/B informing that Deepak had been killed by them with a

knife and body dumped in a Sugarcane field on the National

Highway Khatoli towards Meerut. The two led the police team

to a Sugarcane field and at a distance of about 250 yards from

the road, lying hidden in Sugarcane field, jointly pointed out

the spot informing that the dead body of Deepak was

concealed within the Sugarcane and indeed the body of

Deepak was found at the said spot. The body was seized vide

memo Ex.PW-9/F along with a T-Shirt, a pair of chappals of

Deepak as also blood stained earth and control-earth.

7. The recovery of the dead body of the child was

witnessed in addition by SI Dharam Pal Singh PW-16 then

posted at PS Kotwali Khatoli, a fact deposed to by him.

8. Thereafter, the appellant jointly led to a spot little

away from where the dead body of the child was recovered

and pointed out the spot wherefrom a knife was recovered.

9. The dead body was sent to the Mortuary where

Dr.B.N.Acharaya PW-14 conducted the Post Mortem on

07.02.2004 opining on the report Ex.PW-14/A, proved by him

when he appeared as a witness in court, that the child had

died 38/48 hours prior to when he conducted the post mortem;

which probablizes that the child had been killed around 10:00

P.M. on 05.02.2004.

10. The appellants told the police, as recorded in their

confessional statements, that the crime was committed at the

behest of Dharambir, the elder brother of Radhey Shyam who

was found absconding from his house and was arrested on 08th

February, 2004. Dharambir confessed to the crime as per his

disclosure statement Ex.PW-17/I informing that since his

mother had deprived him a share in the ancestral property and

Radhey Shyam was the beneficiary, he hatched the plan to

kidnap Deepak and extract money from his brother. He and

his son Sonu enticed Deepak and handed him over to the

appellants who were to carry out the remainder of their plan.

11. For the reason the confession to the police

Dharambir was inadmissible evidence, nothing further

surfacing against Dharambir, he has been rightly acquitted.

Being juvenile, Sonu was sent for trial before the juvenile

court.

12. The appellants have been convicted on account of

the dead body of Deepak being recovered pursuant to their

disclosure statements and at their jointly pointing out the

place from where the dead body was recovered. The second

incriminating evidence against the appellants is the testimony

of Dr.B.N. Acharaya PW-14 and his opinion Ex.PW-14/C that the

knife got recovered by the appellants, sketch whereof was

Ex.PW-14/B could possibly be the weapon with which Deepak

was killed. Lastly, the testimony of Irfan Mohd. PW-4 and

Bharat Bhushan PW-5, who stated in court that the appellants

were the two persons who had come to their telephone booths

with a young boy and rang up the numbers 2778419. The two

stated that the receipts Ex.PW-4/A, Ex.PW-4/B as also Ex.PW-

5/A respectively were handed over by them to the police from

Delhi.

13. Learned counsel for the appellants submitted that

having not recorded the statement of Radhey Shyam's Mausi

Gharvari, who as per Radhey Shyam told them the

whereabouts of appellant Beghraj and further having not even

examined her as a witness, testimony of Radhey Shyam that

Gharvari gave them information of the whereabouts of

appellant Beghraj was inadmissible in evidence, being

hearsay. Second submission urged was that, as deposed to by

Irfan Mohd. PW-4 and Bharat Bhushan PW-5 as also by Radhey

Shyam PW-2, the appellants were brought to the booths of the

said two persons and their face was shown to the said two

persons and thus the credibility of the testimony of Irfan Mohd.

and Radhey Shyam pertaining to the dock identification of the

appellants was tainted. As a limb of the second submission,

learned counsel urged that notwithstanding the preceding

noted taint, no TIP being conducted further rendered unsafe

the Dock Identification by the witnesses in the court for the

first time. Third submission urged was that the dead body was

recovered from an open field as deposed to by Radhey Shyam,

Ct. Mange Ram, Ct. Ramesh Kumar, SI Dharam Pal Sngh and SI

R.K. Mann and thus, urged learned counsel, that the possibility

of the police having learnt about the dead body from some

other source could not be ruled out thereby discrediting the

recovery of the dead body at the instance of the appellants.

14. We would be failing not to note that the witnesses

of the prosecution who have deposed to the recovery of the

dead body have narrated facts which tend to show as if

everything happened on 05th February, 2004; without there

being clarity as to what part of the investigation was

conducted on 05th February, 2004 and which part spilt over to

06th February, 2004. We wish to clarify on the said aspect to

clear the clouds.

15. Two times being documented and hence there can

be no scope of witnesses confusing on the said is the time 11

hours, 7 minutes and 47 seconds and the date 05.02.2004

recorded in Ex.PW-5/A which corresponds to the time 11:15

A.M. deposed to by Radhey Shyam when the second telephone

call demanding ransom was made.

16. The other is the time on the arrest memos Ex.PW-

17/C and Ex.PW-17/B which shows that the appellants were

apprehended at 5:30 P.M. and 6:00 P.M. respectively on

06.02.2004.

17. Thus, the time 11 hours, 7 minutes and 47 seconds

and the date 05.02.2004 is documented as also the time of

arrest being 5:30 P.M. and 6:00 P.M. on 06.02.2004 is

documented.

18. It is apparent that Radhey Shyam who received the

second telephone call at 11:15 A.M. on 05.02.2004 would have

consumed some time to go to PS Narela and pass on the

information of ransom being demanded. Further time would be

consumed in recording his statement and making entry in the

FIR for the offence of kidnapping for ransom. Further time

would be required to find out which police officers are

available so that raiding team would be constituted. A vehicle

had to be arranged and modalities of the raid had to be

worked upon. All this would consume time. The police party

leaving Delhi by early evening is the most probable time for

the reason after 11:15 A.M. by the time all afore-noted

activities were over at least 3 to 4 hours would be consumed.

Muzaffar Nagar is at a distance of 150 kms from Delhi and on a

rickety pot-holed narrow 30 feet wide, so called National

Highway, it takes at least 4 hours in reaching Muzaffar Nagar.

The earliest the police team could have reached there would

be not before 7:00 or 8:00 P.M. Before the STD booth owners

could be located, the location of the STD booths had to be

found out. A visit was required at the local telephone

exchange. This would have consumed further time. As

deposed to by PW-4 and PW-5 their STD booths were not in the

town of Muzaffar Nagar. The telephone booth of Irfan Mohd.

was at the bus stop of village Morna. The STD booth of Bharat

Bhushan was at Behra Sadat in District Muzaffar Nagar. PW-4

having deposed that the team from Delhi Police having met

him at around 5:30 P.M. on 05.02.2004 is obviously an error of

time stated by him.

19. The narratives of Radhey Shyam and the police

personnel from Delhi commencing from their leaving Delhi on

05.02.2004 till the dead body of the child was recovered is a

continuous narration for the obvious reason everything was

happening in continuity and 05th getting spilt over to 06th is the

most probable thing to happened keeping in view the fact that

before the appellants could be apprehended, as deposed to by

Radhey Shyam, when from the description of the two men who

had visited the telephone booths of PW-4 and PW-5, he

guessed that the two men were the appellants, he had to go to

the village of his brother co-accused Dharambir because the

appellants were the relations of Dharambir and only he could

give them information as to where the appellants were.

Further, as deposed to by Radhey Shyam, nobody being found

in the house of Dharambir, Radhey Shyam's Mausi Gharvari

was contacted who gave the whereabouts of the appellants in

village Lalpur with further information that Beghraj was

working in Gupta Brick Kiln which had to be located in the said

village, thereby consuming further time, not in minutes but in

hours.

20. On the issue whether testimony of Radhey Shyam

on the point that Gharvari gave them the particulars of the

whereabouts of appellant Beghraj is hit by the rule against

admitting hearsay evidence, suffice would it be to state that in

the illuminative book on 'THE ORIGINS OF ADVERSARY

CRIMINAL TRIAL' by John H. Langbein at page 239, there is a

reference to "Pursuit hearsay".

21. The debate pertaining to admission of evidence of

dead persons or those who could not be found or easily

brought before the court hinged upon not admitting hearsay

evidence because hearsay evidence had three deficiencies.

Firstly, the maker of the statement not being put to oath, it

lacked credit because of the belief that a person under oath

would, if nothing else, be scared of perjury. Secondly, the

opposite party would be denied the beneficial tool of cross-

examination and lastly may encourage tailor made tutored

statements to be introduced by alleging the same to be made

by the third party. The other view was that necessity

compelled the admission of such statements for the reason

why should relevant evidence be excluded in a tryst with truth.

The latter point won the debate. A man in pursuit is not

expected, due to necessity, to keep on recording whom he

met, his or her address etc. for the reason when in pursuit, any

useful information which facilitates pursuit is welcomed. A

pursuit is an onward march where speed is of utmost

importance and thus a person in pursuit is not to be tied down

with the technicalities of making a contemporaneous record of

the persons he or she met, much less requiring said person to

be cited as a witness. That apart Gharvari, if examined would

have thrown no light on the crime save and except telling the

court that she gave the whereabouts of Beghraj to the police

team and Radhey Shyam. That Radhey Shyam and the police

team have traced down Beghraj within about a little over one

day of receipt of the ransom call at around 1:15 A.M. on

05.02.2004, Beghraj being apprehended and formally arrested

at 6:00 P.M. on 06.02.2004 itself lends credibility to the

testimony of Radhey Shyam and the police officers of the

steps taken to track Beghraj and Kiran.

22. That apart, pertaining to a recovery which attracts

Section 27 of the Evidence Act, in what manner a person is

arrested looses all importance if the place of arrest is not in

dispute.

23. Now, the testimony of SI R.K.Mann PW-17 as also

the two other police officers from Delhi and Radhey Shyam

establish that the dead body of Deepak was recovered from a

spot jointly pointed out by the appellants and that the dead

body was lying concealed in a Sugarcane field at a distance of

250 yards from the main road. The date when recovery was

made is 06.02.2004. It is winter time in Northern India. Bodies

decompose slowly as the temperature drops. The post mortem

report Ex.PW-14/A probabilizes the time of death at around

10:00 P.M. on 06.02.2004. Obviously, nobody could smell any

stench; probably there was no stench emanating from the

body. Thus, there is great credibility in the testimony of the

witnesses of the prosecution who have deposed to the dead

body of Deepak being recovered at the instance of the

appellants. The answer to the question: wherefrom could the

team of police personnel zero at the place where the dead

body was recovered? brings out the credibility of the evidence.

We can think of no other answer except the knowledge of the

appellant, the place where the body was dumped, a place

which the police could not have accessed other than with the

aid of the knowledge of the appellants.

24. Recovery of dead bodies have been held to be

highly incriminating evidence as held in the decisions reported

as AIR 1947 PC 67 Pulukuri Kottaya & Ors. vs. Emperor; 1989

Crl.LJ (NOC) 200 (Gauhati) Chakidhar Paharia vs. State of

Assam; 1986 Crl.LJ 220 Parimal Banerjee vs. State; AIR 1963

SC 1074 Ram Lochan Ahir vs. State of West Bengal as also in a

decision by a Division Bench of this Court titled Dost Mohd. &

Anr. vs. State, Crl.A.No.385/2008, decided on 01st February,

2010.

25. That a knife opined to be the possible weapon of

offence was recovered by the police immediately after the

dead body of Deepak was recovered, the distance between the

spot where the knife was recovered and where the dead body

was recovered being about 15 steps coupled with the fact that

the spot where the knife was recovered was pointed out jointly

by the appellants is further incriminating evidence. In the

instant case the circumstance of the proximity of the place

where the dead body and the knife respectively were

recovered as also the proximity of the time of recovery gives

greater incriminating value to the recovery of the knife, than is

ordinarily attributed to the recovery of ordinary knives.

26. On the issue of PW-4 and PW-5 identifying the

appellants as the ones who had visited their telephone booths

along with a young boy i.e. the deceased, the controversy

raised by learned counsel for the appellants can be dealt with

on an alternative route. Radhey Shyam has stated that when

the description of the two men was given by the owners of the

telephone booth he immediately guessed that one was the co-

brother of Dharambir and the other was the brother-in-law of

Dharambir i.e. the appellants. That the appellants were

tracked down within a few hours thereafter and got recovered

the dead body of his son, is a fact which by itself lends

credibility to PW-4 and PW-5 disclosing such features of the

appellants wherefrom a person known to them could

reasonably identify them i.e. is proof of the fact that the

features of the appellants were well imprinted in the mind of

the two witnesses that the two could describe the features

with such sufficient clarify and particulars that the recipient of

the information was able to immediately identify the persons

being described.

27. The peculiar circumstances of the instant case,

features whereof we have brought out hereinabove pertaining

to the identification of the appellants with reference to their

description given by PW-4 and PW-5 to Radhey Shyam has to

be factored in by us and we thus conclude that in view of the

evidence brought before us any reasonable person would

return the finding that there is credibility of the highest degree

in the testimony of PW-4 and PW-5.

28. We may dispense an erroneous impression in the

absence of the Test Identification Proceedings, in all cases

Dock Identification has not to be acted upon. In the decision

reported as AIR 1988 SC 345 Hari Nath & Anr. vs. State of U.P.

it was observed that test identification relates to the field of

investigation and evidence is what witnesses depose in court.

As a rule of prudence and caution, courts rely upon a

successful Test Identification by the witness of the accused as

reinforcing his testimony of identifying the accused in court.

But, as held in para-11 of the decision where there are reasons

to accept that the witness gained an enduring impress of the

identity of the accused on the mind and the memory of the

witness, courts should not increase the difficulties of the

prosecution by magnifying the theoretical possibilities.

29. We find no merit in the appeals which are

dismissed.

30. Since both appellants are in jail, we direct that a

copy of this decision be sent to Superintendent, Central Jail

Tihar to be made available to the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 08, 2010 'nks'