Dheeraj vs State
2010 Latest Caselaw 111 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 7th January, 2010
                    Judgment Delivered on: 12th January, 2010

+                  CRL.APPEAL NO.971/2008

       DHEERAJ                                 ......Appellant
           Through:        Mr.Ajay Verma, Advocate
                           Mr.Gaurav Bhattachraya, 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. Vide impugned judgment and order dated 03.07.2008,

the appellant stands convicted for the offence of having

murdered Sampada (hereinafter referred to as the

"Deceased") as also for the offence of having committed

robbery in the house of the deceased.

2. The case of the prosecution was that on 05.08.2004

Alisher PW-5, an acquaintance of the husband of the deceased,

employed the appellant as a labourer on a temporary basis. On

the same day i.e. 05.08.2004 Alisher PW-5, accompanied by

the appellant went to the house of the deceased and both

Alisher and the appellant stayed there in the night. In the

afternoon of 09.08.2004 the deceased was found dead in her

house. Soon before the death of the deceased, SI Ranbir Singh

PW-3, a neighbour of the deceased, had seen the appellant

coming out from the house of the deceased. The presence of

the appellant in the house of the deceased soon before the

death of the deceased is further confirmed from the fact that

in the morning hours of 09.08.2004 the deceased had

telephonic conversations with her husband and brother HC

Savinder Singh PW-3 and Mukesh Rana PW-7, respectively

wherein she informed them that the boy who had come with

Alisher to her house on 05.08.2004 had again come to her

house and is waiting there for Alisher. On being apprehended,

the appellant made a disclosure statement in the presence of

a public person namely Ramesh Kumar PW-7, wherein he

stated that he can get recovered the things he had stolen from

the house of the deceased. Pursuant thereto, the appellant led

the police and Ramesh Kumar to a room which was let out by

Shanti PW-11, to the appellant and got recovered certain

things he had stolen from the house of the deceased including

a licensed revolver belonging to Savinder Singh and the

jewellery articles of the deceased. The said jewellery articles

except the toe rings were duly identified in court by HC

Savinder Singh PW-2, the husband of the deceased.

3. To put it in a nutshell to sustain the case of the

prosecution, the incriminating evidence would be:

I The deceased was present in the company of the

appellant around the time of her death.

II Recovery of the articles belonging to the deceased and

her husband from the possession of the appellant.

4. Vide impugned judgment and order dated 03.07.2008,

convicting the appellant, the learned Trial Judge has held that

the testimony of Alisher PW-5, HC Savinder Singh PW-2, SI

Ranbir Singh PW-3 and Mukesh Rana PW-6, establishes that

the deceased was present in the company of the appellant

around the time of the her death; that the testimony of

Ramesh Kumar PW-7, HC Savinder Singh PW-2 and Savitri PW-

11, establishes that the fruits of the crime were recovered at

the instance of the appellant and that aforesaid two

circumstances when linked together lead to an inference that

the appellant is the perpetrator of the crime (s) with which he

is charged.

5. As per the prosecution, the events which led to the filing

of the charge sheet against the appellant in the present case

was that on 09.08.2004 HC Savinder Singh PW-2, the husband

of the deceased, was present on his duty when at around

12.45 P.M. the teacher of his son informed him over phone

that the deceased had not come to the school to pick up his

son. Fearing that something untoward has happened to the

deceased, HC Savinder Singh called up his neighbour and told

him to visit his house. Pursuant thereto, Babu Ram PW-4,

visited the house of the deceased where he found that the

house was ransacked and that the deceased was lying dead.

HC Babu Ram PW-4, immediately informed the police about

the incident. Const. Pushpa PW-1, prepared DD entry Ex.PW-

1/A recording therein the information given by HC Babu Ram.

6. On receiving the information about the incident,

Inspector K.C. Negi PW-24, SI Sudhir Kumar PW-22 and Const.

Ram Pal PW-23, reached the house in question. Inspector K.C.

Negi PW-24, made an endorsement Ex.PW-24/A on the DD

entry Ex.PW-1/A and sent the same to the police station

through Const.Ram Pal PW-23, for the purposes of registration

of an FIR. Relevant would it be to note that the endorsement

Ex.PW-24/A records that two almirahs kept in the house were

found open and that goods were lying scattered in the house.

7. Crime team reached the house in question; on being

summoned. HC Sajjan Kumar PW-14, took 16 photographs

Ex.PW-14/A1 to Ex.PW-14/A16 of the house in question;

negatives whereof are Ex.PW-14/B1 to Ex.PW-14/B16.

8. The body of the deceased was seized and sent to the

mortuary of BJRM hospital for post-mortem. On 09.08.2004 at

about 04.00 P.M. Dr.Anil Shandil PW-12, conducted the post-

mortem of the deceased and prepared the report Ex.PW-12/A.

The post-mortem report Ex.PW-12/A of the deceased records

that 13 bullet entry wounds were found on the person of the

deceased; that the death of the deceased was caused due to

projectile firearm injuries and that the death of the deceased

had taken place about 6 hours before the conduct of the post-

mortem.

9. On 16.08.2004 Inspector K.C. Negi PW-24 and SI Sudhir

Kumar PW-22, arrested the appellant in the presence of a

public person Ramesh Kumar PW-7. On being interrogated by

Inspector K.C. Negi PW-24, in the presence of SI Sudhir Kumar

PW-22 and Ramesh Kumar PW-7, the appellant made a

disclosure statement Ex.PW-7/A wherein he stated that he can

get recover the articles stolen by him from the house of the

deceased and a knife used by him in the commission of the

crime. Pursuant thereto, the appellant led the aforesaid police

officers and Ramesh Kumar to village Kherha and got

recovered two gold rings, one gold chain, five pairs of silver

anklets, two artificial necklaces, one artificial chain, five pairs

of toe rings, three passbooks, one credit card, one cheque

book, one suitcase, one ladies purse, one handbag, cash of

Rs.500/-, one licensed revolver, fourteen live cartridges of .22

bore, seven empty cartridges of .22 bore, 13 empty cartridges

of .32 bore, 5 five live cartridges of .32 bore and one scout

knife from a suitcase lying in a room.

10. Inspector K.C. Negi moved an application before

Metropolitan Magistrate for conduct of test identification

proceedings of the appellant. On 15.09.2004 Archana Sinha

PW-18, Metropolitan Magistrate, conducted TIP of the appellant

and prepared the record Ex.PW-18/C in said regard. The record

Ex.PW-18/C notes that the appellant refused to participate in

the TIP on the ground that he was already shown to the

witnesses.

11. On 03.11.2004 Vinod Yadav PW-15, Metropolitan

Magistrate, conducted test identification proceedings of the

jewellery articles recovered at the instance of the appellant

and prepared the record Ex.PW-15/B in said regard. The record

Ex.PW-15/B notes that save and except one pair of anklet and

five pairs of toe rings HC Savinder Singh PW-2, the husband of

the deceased, identified the jewellery articles recovered at the

instance of the appellant as that of the deceased.

12. Needless to state, the appellant was sent for trial.

Charges were framed against the appellant for having

committed offence punishable under Section 302 IPC and

Section 394 IPC read with Section 397 IPC.

13. At the trial, the prosecution examined 24 witnesses. We

eschew reference to all and sundry evidence for the reason the

learned Trial Judge has convicted the appellant on the basis of

the testimony of HC Savinder Singh PW-2, SI Ranbir Singh PW-

3, Alisher PW-5, Mukesh Rana PW-6, Ramesh Kumar PW-7 and

Shanti PW-11.

14. HC Savinder Singh PW-2, the husband of the deceased,

deposed that one Alisher was known to him since last 10-12

years. In the evening of 05.08.2004 Alisher accompanied by

the appellant came to his house and that Alisher and the

appellant stayed in his house in the night. On 06.08.2004 at

about 07.30 A.M. Alisher and the appellant left his house with

him. On 09.08.2004 he was present in his house when at

around 11.30 A.M. he received a telephonic call from the

deceased. The deceased told him that the boy who had come

with Alisher to their house on 05.08.2004 had again come to

their house. The deceased further told him that the said boy

had told her that Alisher would come to their house shortly and

that he wanted to wait for Alisher in their house. He told the

deceased that she should allow the said boy to sit outside their

house and that she should call him when Alisher would come

to their house. At about 12.45 P.M. the teacher of his son

informed him over phone that the deceased had not come to

the school to pick up his son. Thereafter he rang up at his

house but no one answered the call. Fearing that something

untoward has happened to the deceased, he called his

neighbour and told him to visit his house. Sometime thereafter

HC Babu Ram informed him that a robbery had been

committed at his house whereupon he proceeded to his house.

On reaching there he saw that the deceased was lying dead

and that his house was ransacked. On searching the house he

found that his licensed revolver and some jewellery articles of

the deceased were missing. Save and except scout knife, all

the articles recovered at the instance of the appellant

belonged to him and the deceased. It may be noted here that

no suggestions were given to the witness in his cross-

examination that he did not receive a telephonic call from the

deceased on 09.08.2004. It may be noted that in Court,

Savinder Singh identified the revolver got recovered by the

appellant pursuant to his disclosure statement as also the

jewellery belonging to his wife which was recovered pursuant

to the disclosure statement of the appellant.

15. Ranbir Singh PW-3, a neighbour of the deceased,

deposed that on 09.08.2004 at about 11.30 A.M. or 11.45 A.M.

he had seen the appellant leaving the house of the deceased

and that the appellant was carrying a suitcase in his hand at

that time. On 16.08.2004 the police had shown him the

photograph of the appellant.

16. Alisher PW-5, deposed that he knows the husband of the

deceased since childhood. On 05.08.2004 he employed the

appellant as a labourer on a temporary basis. On the same day

i.e. 05.08.2004 he along with the appellant went to the house

of the deceased and that he and the appellant stayed there in

the night. On the next morning the husband of the deceased

dropped him and the appellant at ISBT. The appellant stayed

with him till the night of 06.08.2004. In the night of 06.08.2004

he fired the appellant as he was not satisfied with his work.

17. Mukesh Rana PW-6, the brother of the deceased deposed

that on 09.08.2004 at about 12.45 A.M. he rang up at the

house of the deceased but no one answered his call. Sometime

thereafter he again rang up at his house and the call was

answered by an unknown person. In the meantime the

deceased picked up the receiver of the phone from the parallel

line and chided the unknown person for answering the call.

When he inquired from the deceased about the said unknown

person the deceased told him that the said person is the boy

who had come with Alisher to their house on 05.08.2004. The

deceased further told him that the said boy had told her that

Alisher would come to their house shortly.

18. Ramesh Kumar PW-7, deposed that the police had

arrested the appellant in his presence. On being apprehended,

the appellant led the police to the house of one Savitri Devi in

his presence and got recovered jewellery and a revolver from

a suitcase kept in a room. Shanti PW-11, deposed that the

room from where the things were recovered at the instance of

the appellant was let out by her to the appellant.

19. Relevant would it be to note that pertaining to the

ransacking of the house in question witnesses, HC Babu Ram

PW-4, SI Sudhir Kumar PW-22 and Inspector K.C. Negi PW-24,

who had visited the house in question on the day of the

incident, deposed that they had found the house in question

ransacked on the day of the incident. It may also be noted

here that pertaining to the articles found on the dead body of

the deceased Inspector K.C. Negi PW-24, deposed that

(Quote): 'The dead body was wearing earring in her right ear, a

gold chain around her neck, four gold bangles in her right hand

and three glass bangles in her left hand.'

20. In his examination under Section 313 Cr.P.C. the

appellant denied everything and pleaded false implication.

21. As already noted hereinabove, the learned Trial Judge

has convicted the appellant.

22. In support of the appellant, the counsel for the appellant

advanced under-noted three submissions:-

A The first submission advanced by the learned

counsel pertained to the identification of the

appellant by the witness SI Ranbir Singh PW-3.

Counsel urged that it is well settled that where a

witness identifies an accused who is not known to

him in the court for the first time, his evidence is

absolutely valueless in the absence of conduct of a

prior test identification parade. Counsel urged that

the appellant was fully justified in refusing to

participate in his test identification parade inasmuch

as a close perusal of the testimony of HC Ranbir

Singh would go to show that he was shown the

photograph of the appellant prior to the conduct of

the test identification parade of the appellant and

therefore in such circumstances, no reliance can be

placed upon the identification of the appellant by SI

Ranbir Singh in the court.

B The second submission advanced by the

learned counsel was predicated upon the deposition

of Inspector K.C. Negi PW-24, that a gold chain and

four gold bangles were found on the dead body of

the deceased. Counsel urged that the fact that

valuable articles were found on the dead body of the

deceased falsifies the case of the prosecution that

the appellant had committed robbery for the reason

had the appellant committed robbery he would have

in all probability removed the gold chain and bangles

from the body of the deceased.

C The third submission advanced by the learned

counsel is predicated upon the test identification

proceedings of the jewellery articles recovered at the

instance of the appellant. Counsel urged that a

perusal of the record Ex.PW-15/B of the said test

identification proceedings shows that HC Savinder

Singh PW-2, the husband of the deceased, was not

able to correctly identify one pair of anklet and five

pairs of toe rings recovered at the instance of the

appellant. As per the counsel, said discrepancy in the

evidence of HC Savinder Singh strongly probablizes

that the jewellery articles recovered at the instance

of the appellant did not belong to the deceased and

that the same were planted by the police upon the

appellant to implicate him in the present case.

23. The facts, which establish the identity of an accused, are

relevant under Section 9 of the Evidence Act. As a general

rule, the substantive evidence of a witness is the statement

made by him in the Court. The evidence of identification of an

accused for the first time in the Court is from its very nature

inherently of a weak character. The purpose of a prior test

identification, therefore, is to test and strengthen the

trustworthiness of that evidence. It is accordingly considered a

safe rule of prudence to generally look for corroboration of the

sworn testimony of witnesses in Court as to the identity of the

accused who are strangers to them, in the form of earlier

identification proceedings. This rule of prudence, however, is

subject to exceptions, when, for example, the Court is

impressed by a particular witness on whose testimony it can

safely rely, without such or other corroboration. There is no

provision in the Code of Criminal Procedure which requires the

investigating agency to hold or confers a right upon the

accused to claim, a test identification parade. The

identification made in a test identification parade do not

constitute substantive evidence and can only be used as

corroborative of the statement in court. (See the decision of

Supreme Court reported as Santosh Devidas Behade v State of

Maharashtra (2009) 3 SCALE 727)

24. In the decision reported as Jadunath Singh v State of UP

1971 CriLJ 305, the submission that absence of test

identification parade is fatal in all cases, was repelled by

Supreme Court after exhaustive consideration of the

authorities on the point. It was held that absence of test

identification is not necessarily fatal and it would be a waste of

time to put up an accused for identification parade when is he

is well-known to the witness.

25. In the decision reported as State of UP v Boota Singh

(1979) 1 SCR 298 the Supreme Court observed that greater

value should be attached to the evidence of identification of a

witness who had an opportunity of seeing the accused not for

few minutes but for some length of time, in broad daylight for

the reason the witness would be able to note the features of

the accused carefully.

26. In the decisions reported as Ramanbhai Naranbhai Patel

v State of Gujarat 1999 CriLJ 5013, Malkhansingh v State of

MPI 2003 CriLJ 3535 and Munshi Ram Gautam v State of MP

2005 CriLJ 320 it was observed by Supreme Court that the

failure of test identification parade would be of no

consequence where the features of the case are such that the

appearance and identity of an accused is imprinted in the mind

of witness.

27. From the afore-noted judicial decisions, the legal norm

which can be culled out is that:-

I Failure to hold test identification parade would be fatal

where the witness is a total stranger or the witness had just a

fleeting glimpse of the accused or the witness had no

particular reason to remember the accused.

II Failure to hold test identification parade would not be

fatal where the accused was known to the witness or the

identity of the accused was imprinted in the mind of the

witness.

28. The first submission advanced by the counsel needs to

be tested on the aforesaid anvil of law.

29. As noted above, SI Ranbir Singh PW-3, deposed that on

16.08.2004 the police had shown him the photograph of the

appellant. A perusal of the record Ex.PW-18/C shows that the

test identification parade of the appellant was conducted on

15.09.2004. It is thus clear that the photograph of the

appellant was shown to SI Ranbir Singh before the conduct of

test identification parade of the appellant. It is well settled that

it is most improper to show photograph of the accused to the

witness before the conduct of test identification parade.

30. A reading of the testimony of SI Ranbir Singh PW-3,

shows that the appellant was total stranger to SI Ranbir Singh

and that Ranbir Singh had no particular reason to remember

the appellant. In such circumstances, the failure to hold

„proper‟ test identification parade is fatal to the case of the

prosecution and no reliance could be placed upon the

identification of the appellant by SI Ranbir Singh in the court.

But, that would be of no benefit to the appellant for the reason

from the testimony of other witnesses which shall be discussed

later, we have evidence on record that the appellant was

present in the house around the time the deceased was

murdered.

31. The second submission advanced by the learned counsel

for the appellant needs to be dealt, with reference to the

endorsement Ex.PW-24/A; the testimony of the witnesses

namely HC Savinder Kumar PW-2, HC Babu Ram PW-4, SI

Sudhir Kumar PW-22 and Inspector K.C. Negi PW-24 and the

photographs of the scene of the crime.

32. As already noted hereinabove, the endorsement Ex.PW-

24/A clearly records that two almirahs kept in the house in

question were found to be open and that the goods were lying

scattered in the house. The witnesses; HC Savinder Kumar PW-

2, HC Babu Ram PW-4, SI Sudhir Kumar PW-22 and Inspector

K.C. Negi PW-24 have clearly deposed that they had found the

house in question ransacked on the day of the incident. The

aforesaid recording and the depositions stand corroborated

from the photographs taken at the spot which show that the

almirahs kept in the house were open and that the goods were

lying scattered in the house. It is quite possible that the

appellant panicked after committing the murder of the

deceased and forgot to remove jewellery articles from the

body of the deceased in his haste to flee from the place of

occurrence. In that view of the matter, we find no force in the

submission of the counsel that presence of jewellery articles

rules out that the appellant had committed robbery.

33. In dealing with third submission advanced by the learned

counsel for the appellant, we deem it appropriate to quote

following pertinent observations made by Lahore High Court in

the decision reported as Shera v Emperor AIR 1934 NULL 5:-

"........When the evidence of recovery of stolen property is attacked, the Court has to examine the evidence in the light of following alternative hypothesis: (1) The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused persons. This assumes a conspiracy between informant and the police from

the very start. (2) The police might have obtained property similar to the stolen property from the complainant or some one else and used it for the purpose of fabricating the recoveries. (3) The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another person. (4) The property might have been recovered from a third party and used by the police in one of the impugned recoveries."

"........In considering the possibility of the second hypothesis, regard must necessarily be had to the nature and value of the property recovered. It should be borne in mind that when a person hands over to the police valuable property with a view to enable the police to fabricate a false recovery of this property from someone else, there is always a possibility of the accused being acquitted and the owner of the property being deprived of such property. In the present case the property recovered consists of valuable ornaments of gold and silver and I do not consider that the police procured this property from someone else with the object of inventing false recoveries from innocent persons......"

34. The ground of attack taken in the instant case to assail

the recovery of the jewellery articles of the deceased effected

at the instance of the appellant is ground no. (ii) pointed out in

Shera‟s case (supra) namely, that the police might have

procured the jewellery articles similar to the jewellery articles

possessed by the deceased and has planted the same upon

the appellant. The extent of jewellery articles; the nature

thereof and the value thereof are of a magnitude where it

would be difficult to believe that to fabricate evidence said

quantity would be planted by the police. Indeed, if something

had to be planted, there was no necessity of duplicating the

jewellery items; a bangle or two; a ring or two would have

been enough. Be that at it may, the licensed revolver of the

husband of the deceased and that no suggestion was given to

husband of the deceased in his cross-examination that he had

handed over his licensed revolver to the police rules that the

police had planted anything upon the appellant. Insofar as

failure of the husband of the deceased to correctly identify

certain jewellery articles recovered at the instance of the

appellant during test identification proceedings suffice would

be to state that a husband cannot be expected to be familiar

with all the jewellery items possessed by his wife.

35. Having repelled the submissions advanced by the

counsel for the appellant, we proceed to consider that whether

the prosecution has been successful in establishing the guilt of

the appellant.

36. The testimony of HC Savinder Singh PW-2, the husband

of the deceased, and Mukesh Rana PW-6, the brother of the

deceased, establishes that on 09.08.2004 the boy who had

come with Alisher to the house of the deceased on 05.08.2004

was present in the house of the deceased between the hours

11.30 A.M. to about 12.45 P.M. The testimony of HC Savinder

Singh PW-2 and Alisher establishes that the appellant was the

boy who had come with Alisher to the house of the deceased

on 05.08.2004. HC Savinder Singh PW-2, Alisher PW-5 and

Mukesh Rana PW-6, had no axe to grind against the appellant.

There is no reason for the said persons to give false evidence

against the appellant. It is not in dispute that the deceased

was murdered at her house. The post-mortem report Ex.PW-

12/A establishes that the death of the deceased had taken

place around the time the appellant was present in the house

of the deceased. From the above conspectus of facts, it is

established that the deceased was present in the company of

the deceased around the time of her death. (It may be noted

here that exclusion of the evidence of SI Ranbir Singh PW-3,

from the arena of the evidence has made no difference to the

circumstance that the deceased was present in the company

of the deceased around the time of her death)

37. We concur with the learned Trial Judge that the

testimony of HC Savinder Singh PW-2, Ramesh Kumar PW-7

and Shanti PW-11, establishes that the articles belonging to

the deceased and her husband were recovered at the instance

of the appellant. The aforesaid witnesses were cross-examined

at length but nothing could be elicited therefrom which could

cast a doubt on the truthfulness of their testimony. In view of

the facts that the articles belonging to the deceased and her

husband were recovered from the possession of the appellant

soon after the robbery of the said articles and murder of the

deceased; that the appellants failed to explain his possession

of the said articles and that the robbery of the said articles and

the murder of the deceased form part of the same transaction,

this court is fully entitled to raise a presumption against the

appellant that it was he who murdered the deceased and

committed robbery at her house in terms of illustration (a) of

Section 114 of Evidence Act against the appellant.

38. The twin effect of the circumstances that the deceased

was present in the company of the appellant soon before her

death and that the articles belonging to the deceased and her

husband were recovered from the possession of the appellant

is that the appellant and no one else murdered the deceased

and committed robbery at her house.

39. For the reasons stated above, the appeal is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 12, 2010 mm