Babloo vs State
2010 Latest Caselaw 239 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 18th January, 2010

+                   CRL.APPEAL NO.107/2007

       BABLOO                                     ......Appellant
                    Through:   Ms.Charu Verma, 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. (Oral)

1. Four persons were sent for trial. Two out of them;

namely the appellant and co-accused Veer Pal Singh were

charged for the offence of having murdered Nisha. All four

accused; namely Babloo (appellant), Manoj Kumar, Tikam Singh

and Veer Pal Singh were charged for the offence punishable

under Section 201/34 IPC.

2. No incriminating legally admissible evidence

emanating against Tikam Singh and Veer Pal Singh, they have

been acquitted. The only incriminating evidence emerging

against Manoj Kumar is the recovery of the personal effects of

deceased Nisha from his house pursuant to the disclosure

statement of co-accused Babloo i.e. the appellant. The said

incriminating evidence has obviously been found to be

insufficient wherefrom the guilt of Manoj Kumar could be

inferred.

3. The incriminating evidence held established against

the appellant is his last seen in the company of the deceased at

around 2:30 PM. His conduct when the young girl did not return

home; the recovery of the dead body of the girl pursuant to the

disclosure statement of the appellant and his pointing out the

spot wherefrom the dead body was recovered as also his

disclosure statement and his leading the police to the house of

Manoj Kumar wherefrom the personal effects of the young girl

were recovered.

4. At 8:30 PM on 25.1.2001, Raju PW-3 went to the

police station and made a statement before the duty officer to

the effect that he resides at House No.E-72B, Gali No.3, Ashok

Nagar. That he was married to Sapna daughter of Santosh on

3.10.2000 and that his wife's brother Babloo i.e. the appellant

was against the marriage. Today i.e. 25.1.2001 was his

birthday and it was decided that he would cut cake in the

evening. Babloo came to his house on a cycle and said that his

mother had desired to know as to what gift he would prefer and

that the desired gift would be sent through Nisha. Nisha left

with Babloo on cycle. He i.e. appellant returned at 5:00 PM and

on being asked where was Nisha, informed that he had left

Nisha at the corner of the street. All left to search for Nisha.

Babloo accompanied them but suddenly disappeared. They had

searched for Nisha who could not been traced. Her age is 9

years. She is 3'6". She is fair complexion and has a round face.

5. The duty constable made an endorsement Ex.PW-5/A

under the statement afore-noted and got registered an FIR

under Section 363 IPC.

6. ASI Yogender Singh PW-6 was entrusted with the job

of locating Babloo. HC Umed Singh PW-5 also joined him. Both

of them accompanied by Raju PW-3 i.e. Nisha's brother, went

about searching for Babloo. The search took them to the house

of co-accused Manoj who was Babloo's friend, and as claimed by

the prosecution, Babloo i.e. the appellant was found in the

vicinity of the house of Manoj and as recorded in the arrest

memo Ex.PW-3/K was arrested at 1:30 in the night.

7. Brought to the police station, as claimed by the

prosecution, he was interrogated by the SHO, Inspector Om Vir

Singh PW-14, who recorded his disclosure statement Ex.PW-5/B

in which the appellant admitted having killed Nisha and having

thrown her dead body in bushes in Anand Vihar, Loni Border and

hidden her personal effects in a room in the house of Manoj. He

also disclosed that using a nylon rope he had strangulated Nisha

to death.

8. He took the police to a spot disclosed in his

disclosure statement wherefrom Nisha's dead body was

recovered. He took the police to the house of Manoj wherefrom

the chappals, skirt, blouse as also a nylon rope were recovered.

9. At the trial Sapna PW-1, sister of the appellant, whom

we note is the step sister, as also her husband Raju Goel PW-3,

deposed that on 25.1.2001 the appellant came to their house

and said that his mother had desired a gift to be given to Raju

Goel as per wish of Raju Goel since it was Raju Goel's birthday.

The appellant left their house with Nisha at around 1:30 PM

stating that the gift would be sent through her. Nisha never

returned home. Appellant came to their house in the evening at

around 4:35 PM and on being questioned as to where Nisha was

said that he had left Nisha at the corner of the street. All family

members proceeded to search for Nisha. Appellant proceeded

in one direction with father of Raju Goel but disappeared. This

roused the suspicion and hence Raju went to the police station

and got recorded his statement Ex.PW-3/A.

10. Raju Goel PW-3 deposed same facts afore-noted and

additionally deposed that the appellant was spotted near the

house of Manoj and was apprehended and thereafter

interrogated. The appellant made a disclosure statement

pursuant whereto he led the police to a spot wherefrom the

dead body of his sister was recovered. That he led the police to

the house of Manoj from whose house a maroon coloured skirt

Ex.P-1, a pair of chappals Ex.P-7 belonging to his sister were

recovered, a khes Ex.P-2, a gadda Ex.P-3, a dari Ex.P-4, a bed-

sheet Ex.P-5 and a blanket Ex.P-5 were recovered and that the

seizure was noted in the seizure memo Ex.PW-3/D and Ex.PW-

3/E.

11. ASI Yogender Singh PW-6 deposed that after FIR was

registered, he with the assistance of Raju Goel PW-3 searched

and apprehended the appellant near the house of Manoj and on

interrogation he i.e. appellant disclosed that he was against

Raju marrying his sister and to take revenge he killed Nisha. He

deposed that he took the appellant to the police station where

the SHO recorded the statement Ex.PW-5/B of the appellant

wherein it was disclosed that the appellant can take the police

to the spot where dead body of Nisha was thrown and personal

effects of Nisha were hidden, pursuant whereto he led the police

to bushes near a vacant spot near Saraswati Vihar wherefrom

the dead body of Nisha was recovered as recorded in the

pointing out-cum-recovery memo Ex.PW-3/B. Thereafter,

appellant took the police to Manoj's house wherefrom the

exhibits referred to by PW-3 and as noted above were recovered

as recorded in seizure memo Ex.PW-3/D and Ex.PW-3/E. He also

deposed that a nylon rope Ex.P-9 was recovered along with the

other exhibits at the spot.

12. Inspector Om Vir Singh PW-14 stated that after he

recorded the statement Ex.PW-5/B of Babloo he sent ASI

Yogender along with Babloo to verify the facts and after some

time ASI Yogender informed him that the facts were correct and

thereafter he went to the spot along with the crime team and

photographer and prepared the pointing out as also the

recovery memos.

13. Before proceeding ahead, suffice would it be to state

that Om Vir Singh who is the SHO is expected to know the law.

We are pained to note his testimony that after recording the

disclosure statement of the appellant he sent ASI Yogender

Singh with the appellant to verify the facts and thereafter went

to effect the seizures, as the veracity of the facts disclosed in

the disclosure statement of the appellant were reported to be

true. He ought to know that once a recovery is made of a dead

body or any article, the same cannot be re-recovered. He ought

to know the rules of investigation. He ought to have known that

being the scribe of the recovery memos Ex.PW-3/B, Ex.PW-3/D

and Ex.PW-3/E he had to be the person who seized the articles

recorded in the said memos.

14. Two things may have happened. Either Om Vir Singh

has taken bribe to help the appellant or he is too lazy a man and

does not know how to do his job. In any case, Om Vir Singh's

conduct is not worthy of that of an SHO.

15. Be that as it may, proceeding ahead, we may note

that the dead body of the young girl was sent to the mortuary of

GTB Hospital where Dr.Anil Kohli PW-4, conducted the post-

mortem and prepared the report Ex.PW-4/A, as per which the

young girl was strangulated to death with the use of an object

which was tightened around her neck. There were abrasion

marks on her legs and foot. We note that there is no evidence

of the young girl being sexually assaulted, but abrasions over

her lips, nose, legs and foot do suggest a struggle when the

young girl was pinned down. It is thus not in doubt that Nisha

died a homicidal death as the injuries on her person could not

be self-inflicted i.e. Nisha has not committed suicide.

16. Having perused the testimony of Santosh PW-1 and

Raju Goel PW-3, we note that except for such embellishments

and variations as are usually found when two witnesses depose

on the same facts after two years of an incident, no material

contradiction, improvement or embellishment has been noted

by us in the testimony of Sapna and Raju who deposed after a

little over two years of the incident. The testimony of the two

witnesses conclusively establishes that Nisha was taken by the

appellant under the pretext of sending a gift for Raju who was to

celebrate his birthday on 25.1.2001. Nisha was last seen alive

in the company of the appellant at around 2:30 PM on

25.1.2001.

17. Under the circumstances, we are of the opinion, that

the appellant has to satisfactorily explain what happened to the

young girl and if he does not do so, it has to be under the pain

of admitting guilt.

18. Recoveries of dead bodies pursuant to the disclosure

statement have always been held to be highly incriminating

evidence. Save and except the embellishments in the

testimony of the SHO, we find that the recovery of the dead

body of Nisha has been satisfactorily proved through the

testimony of PW-3 and PW-6; the recovery being pursuant to the

disclosure statement of the appellant and his leading the police

to the place wherefrom the dead body was recovered. We note

that the seizure memo pertaining to the recovery of the dead

body has been prepared by the SHO. Merely because the SHO

is either a corrupt man or an incompetent police officer would

be no ground for us to disbelieve the testimony of PW-3 and PW-

6. Similar would be position to the recovery of the personal

effects of Nisha from the room in the house of Manoj to which

place the appellant took the police officers after his disclosure

statement. Thus, facts not in the knowledge of the police were

discovered for the first time pursuant to the disclosure

statement of the appellant and the said facts directly take the

appellant to the crime.

19. It assumes significance that the appellant had

knowledge that Nisha was strangulated to death. He disclosed

said fact to the police which was subsequently found to be true

after Nisha's dead body was recovered. This is also

incriminating evidence against the appellant.

20. We are not impressed with the submissions made by

learned counsel for the appellant that since Manoj has been

acquitted, recovery of the personal effects of Nisha from the

house of Manoj gets trivialized. The reason is obvious. One

piece of incriminating evidence being the only piece of

evidence, in a case of circumstantial evidence, may be

insufficient wherefrom the guilt of one accused can be inferred.

But, along with other evidence which is incriminating, qua

another co-accused, the said evidence along with the other may

be sufficient wherefrom the guilt can be inferred.

21. It assumes importance that the police effected

recoveries of the personal effects of Nisha from a room in the

house of Manoj pursuant to the disclosure statement made by

the appellant Babloo.

22. We are equally not impressed with the argument that

the testimony of SHO Om Vir Singh has rendered suspect the

pointing out of the place by the appellant wherefrom the dead

body of Nisha was recovered as also from where the person

effects of Nisha were recovered.

23. We note that the dead body of Nisha was recovered

somewhere in the late night of the intervening night of 25 th and

26th January 2001. The photographs of the spot where the dead

body is lying, show with reference to the background, that it is

night time.

24. In our opinion, the fact that Nisha was last seen in

the company of the appellant who took Nisha stating that he

would sent a gift for PW-3 through the hand of Nisha and that

Nisha never came back alive; that the body of Nisha was

recovered from a spot pointed out by the appellant and that

personal effects of Nisha were recovered from a room,

particulars whereof were disclosed by the appellant and upon

the appellant leading the police to the said spot, forms a chain

of circumstances wherefrom the guilt of the appellant can be

inferred.

25. That no motive has been proved is neither here nor

there. But we note, that there are traces of motive i.e. rancor

against PW-3 which has emerged during the testimony of PW-1

who has stated that the appellant was annoyed with her

marriage with PW-3.

26. It is settled law that the prosecution need not prove

each and every facet of its case. If some facets of a case of the

prosecution is left unproved, it would not dent the credibility of

the other evidence.

27. It is often difficult for the prosecution to prove its

case in the minutest details and for the said reason it has been

held that the task of a Court, while ascertaining the truth, is to

look to the broad probabilities of the case and if the prosecution

has proved its case in the broad probabilities, that would be

enough.

28. The appeal is dismissed.

29. We direct that a copy of this judgment would be sent

to the Commissioner Police who would place the same in the

service file of SHO Om Vir Singh. We further direct that the

Commissioner Police would call for the explanation from SHO

Om Vir Singh and would pass such appropriate orders or

directions as he feels are required, keeping in view the conduct

of SHO Om Vir Singh.

30. Copy of this order be sent to Superintendent, Central

Jail, Tihar to be made available to the appellant who is still in

jail.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 18, 2010 dk