Delhi High Court

Ram @ Ram Dass vs State Of Delhi on 26 July, 2010

Author: V. K. Jain

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 26.07.2010


+             Crl.A.917/2009

Ram @ Ram Dass                                                .....Appellant

                                     - versus -
State of Delhi                                                .....Respondent



Advocates who appeared in this case:
For the Appellant       : Mr K.B.Andley, Senior Advocate, with Mr.M.L.Yadav
For the Respondent      : Mr Pawan Sharma, Standing Counsel

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

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

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

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

V.K. JAIN, J.

1. This appeal is directed against the judgment dated

28.10.2009 and Order on Sentence dated 5.11.2009, whereby

the appellant was convicted under Section 302 of IPC and was

sentenced to undergo imprisonment for life and to pay fine of

Rs.20,000/- or to undergo RI for one year in default.

2. The case of the prosecution, as disclosed in the FIR

registered at the statement of Shyam @ Sudama, brother of

the appellant, is that on 12th March, 2008 at about 7.45 pm,

he went to the house of the appellant at RZS-160 (near 50'

wide Road), Nihal Vihar, to discuss a financial matter. When

he reached the house of the appellant, he found him holding a

knife in his right hand and telling his wife deceased Guddo

that he was aware of her affair and he would finished her that

day. The appellant, according to the informant, then gave a

number of knife blows to deceased Guddo saying

simultaneously that he would kill her. On account of the knife

injuries sustained by her, the deceased fell down in the street.

When the informant tried to save her, the appellant asked him

to move away and also threatened to kill him in case he did

not do so. The appellant then ran away holding the knife in

his hand. The informant informed Police Control Room and

the police took the deceased Guddo to hospital. It is also the

case of the prosecution that the appellant was arrested near a

drain in Paschim Vihar at about 6.00 pm on 13th March, 2008

and while in police custody, he got recovered a bloodstained

knife from a vacant plot near his house, where it was lying

under pieces of stones and bricks. The clothes and slippers

which the appellant was wearing at the time of his arrest were

also found to have bloodstains.

3. Besides occular evidence in the form of statements

given by the informant Shyam @ Sudama and PW-4

Smt.Rajesh, the case of the prosecution against the appellant

was also based upon the following circumstantial evidence:

(i) The appellant was found absconding from his

house after the murder of his wife.

(ii) While in police custody, the appellant disclosed

that a knife had been thrown by him in a plot near his house

and the appellant led the police party to that plot and took out

a knife from beneath the pieces bricks and stones lying in that

plot.

(iii) The clothes and a slipper which the appellant

was wearing at the time of his arrest were found to be stained

with human blood.

Occular Evidence

4. The informant Shyam @ Sudama, who is the brother

of the appellant came in the witness box as PW-1 but did not

support the prosecution and stated that he had no knowledge

about this case and was taken to the police post from his

house where the appellant was also present. Next day, he

along with the appellant was taken to Police Station Nangloi

where his signatures were obtained on already written

documents and he was allowed to leave the police station,

whereas the appellant was made to stay there. He admitted

his signature on his statement Ex.PW-1/A but claimed no

knowledge about the person who stabbed deceased Guddo.

He, however, offered no reason for signing the statement

Ex.PW-1/A, on the basis of which the formal FIR was

registered.

5. Smt.Rajesh, who came in the witness box as PW-4

also did not support the prosecution. Though she admitted

that she had informed the police from the telephone installed

at her house, she denied having seen the appellant stabbing

his wife and then running away from the spot along with a

knife. She claimed that she had seen a crowd gathered in the

street and someone had asked her to inform the Police Control

Room.

Circumstance Nos.(ii) & (iii)

6. PW-7, Ct.Surender stated that on 13th March, 2008

when he was on patrol along with Inspector Rajender Singh

Malik and Ct.Sribhagwan, they saw the appellant Ram Dass

coming from the opposite direction. He recognized the

appellant and apprehended him. When he was interrogated,

the appellant disclosed that he had thrown the knife in the

plot near his house. The appellant then led the police party to

a plot and took out an open knife from under the bricks lying

in the plot. He further stated that bloodstains were found on

the left slipper which the appellant was wearing and,

therefore, the slipper was seized. Bloodstains were also found

on the T-shirt and Pyjama, which the appellant was wearing

and those clothes were also seized.

7. PW-20 Insp.Rajender Singh Malik is the Investigating

Officer of the case. He has corroborated the deposition of PW-

12 Ct.Sribhagwan regarding seizure of the slipper and clothes

of the appellant and recovery of a bloodstained knife at his

instance.

8. We see no reason to disbelieve the testimony of PW-7

Ct.Surender and PW-20 Insp.Rajender Malik regarding the

disclosure statement made by the appellant while in police

custody, production of the knife Ex.P-1 by him from under

stone and brick pieces lying in the plot near his house and

seizure of bloodstained clothes from him. The appellant does

not claim any enmity or ill-will between him and either of

these two witnesses. The testimonies of these witnesses could

not be assailed during cross-examination and no material

discrepancy in their testimonies has been brought to our

notice. Their testimonies cannot be rejected merely because

they happen to be police officers. As observed by the Hon'ble

Supreme Court in Tahir Vs. State : (1996) 3 SCC 338, no

infirmity attaches to the testimony of police officials merely

because they belong to the police force. It was observed in

Aner Raja Khima Vs. The State of Saurashtra : AIR 1956 SC

217 that the presumption that a person acts honestly and

legally applies as much in favour of police officers as of others.

It is not proper and permissible to doubt the evidence of police

officers. Judicial approach must not be to distrust and suspect

their evidence on oath without good and sufficient ground

thereof.

9. It is true that no public witness was joined in the

police party before the bloodstained knife was recovered. We

can't be oblivious to the reluctance of a common man to join

such raiding parties organized by the police, lest they are

compelled to attend Police Station and Courts umpteen times

at the cost of considerable inconvenience to them, without any

commensurate benefit. Hence, no adverse inference on

account of non-joining of public witnesses in such raids can

be drawn in the instant case. Since the knife was found

lying under pieces of bricks and stones, it cannot be said that

it was found at a place which was visible to every passerby.

In State of NCT of Delhi Vs. Sunil & Another :

2000 VIII AD (SC) 613, a plea was taken that there was no

independent witness of the recovery made by the police

pursuant to the statement of the accused while in police

custody. The following observations made by the Hon'ble

Supreme Court in this regard are pertinent:

"Hence, it is a fallacious impression that when recovery is effected pursuant to any statement

made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witness. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signatures of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."

In State of Maharashtra Vs. Suresh : 1999 X AD

(SC) 29, the accused made a disclosure statement that dead

body was kept concealed in the fields and he would take out

and produce the same. The following observations made by

the Hon'ble Supreme Court regarding the implication of

such a statement are relevant:

"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But, if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how

else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

Therefore, in this case also there are three

possibilities. The first possibility is that the appellant himself

had kept the bloodstained knife under the pieces of bricks and

stones. The second possibility is that someone had told him

that the knife had been kept there and the third possibility is

that the appellant had seen someone keeping the knife at that

place. The appellant has not told the court as to how he came

to know that the knife Ex.P-1 was lying under the pieces of

bricks and stones from where it was produced by him. The

plea taken by him is that he did not at all take the police to

that plot and did not produce any knife from there. Therefore,

it can be safely presumed that it was the appellant himself

who had kept the knife Ex.P-1 at the place from where it was

produced by him and, therefore, he had come into possession

of this knife before it was produced by him.

10. PW-13 Dr.Vinay Kumar who examined deceased

Guddo when she was taken to Sanjay Gandhi Memorial

Hospital, found the following injuries on her person:

"1. Fresh incised punctured wound of approx. 2 cm X .5 cm X 8 over medial aspect of left thigh

2. Fresh incised punctured wound of approx. 3 cm X .5 cm X 8 over medial aspect of right thigh

3. Fresh incised punctured wound of approx. 2 cm X .5 cm over right arterial aspect of chest

4. Fresh incised wound of approx. 1 cm X .5 cm X 4 cm over left superior elliac spine."

PW-14 Dr.Manoj Dhingra conducted the post mortem

examination on the dead body of the deceased and opined that

cause of her death was hemorrhagic shock as a result of

laceration of liver. He also stated that on 14th March, 2008,

the knife Ex.P-1 was brought to him in a sealed parcel and he

took out the knife, drew its sketch and gave the opinion

Ex.PW-14/A to the effect that the injuries to the deceased

could have been caused by that knife or some other knife

similar to that knife.

11. A perusal of the report of FSL shows that human

blood was found on the knife which the appellant had

produced from under the stone and brick pieces, as also on

the shirt, lower and a slipper which he was wearing at the time

of his arrest. As noted earlier, it has been opined by PW-14

Dr.Manoj Dhingra that the injuries found on the person of the

deceased could have been caused by the knife Ex.P-1. These

circumstances, therefore, stand duly established during trial.

Circumstance No.(i)

12. The deposition of PW-7 Ct.Surender and PW-20

Insp.Rajender Malik shows that the appellant was

apprehended on 50' wide road in Nihal Vihar on 13th March,

2008. The appellant has produced some witnesses in his

defence to prove that, in fact, he was not arrested by the police

but was taken to police station by his relatives. In his

statement under Section 313 Cr.P.C., the appellant claimed

that he was not present when his wife was stabbed. He stated

that he was in Paschim Vihar and was coming towards the

drain when this information was given to him by his brother

Dharmender who was accompanied by his uncle. He also

claimed that he was barefoot and someone had taken away his

slippers while he was sitting in the park.

13. DW-1 Dharmender, brother of the appellant, stated

that on the day of this incident, he received a telephone call

from Kamlesh, wife of the informant Shyam @ Sudama, who

told him that her husband had been taken to police post and

the police was asking to produce the appellant Ram.

According to the witness, he went to the house of his Mausa

(uncle) Raj Kumar and narrated all the facts to him. Raj

Kumar accompanied him. They noticed the appellant sleeping

in the park near a drain in Paschim Vihar. They woke him up

and told him that police was searching him. They then took

the appellant to police post Nihal Vihar.

DW-4 Raj Kumar stated that on 12th March, 2008

Dharmender, brother of the appellant, came to him and

informed him that his brother Shyam @ Sudama had been

taken to police post and the police were asking him to produce

the appellant Ram. Both of them left in search of the

appellant. When they were going from the side of the drain in

Paschim Vihar, they noticed the appellant going towards Nihal

Vihar by crossing the drain and narrated the facts to him. The

appellant told them that he had not done anything and

accompanied them to Nihal Vihar police post. During cross-

examination, this witness admitted that he was working as a

Munshi with Shri C.B. Arora, Advocate. It would be worthwhile

to note here that Shri C.B. Arora, Advocate, was defending the

appellant during trial.

14. Thus, there is material contradiction in the testimony

of DW-1 and DW-4 as to where the appellant had met them in

the night of 12th March, 2008. According to DW-1, he was

found sleeping in a park and was woken up by them, whereas

according to DW-4, the appellant was going towards Nihal

Park by crossing the drain when he met them. Neither the

appellant nor any of the defence witnesses told the court as to

why the appellant, instead of going to his house, had gone to

the park in the night of 12th March, 2008. It is difficult to

believe that the appellant instead of returning to his house

would have gone to a park and would have slept there during

night. In fact, during night, one is in a hurry to return to

one's house and be with one's family. In our view, he was

unlikely to go to a park and rest there without there being any

particular reason for doing so. There is no proof of the

appellant having been taken to police post in the night of 12th

March, 2008. Had the appellant been illegally detained in

police post in the night of 12th March, 2008, his family

members and friends would definitely have complained to the

superior police officer regarding his unlawful detention,

particularly when DW-4 was working as clerk with the counsel

who defended the appellant during trial. We, therefore, find it

difficult to believe the deposition of DW-1 and DW-4 who are

related to the appellant and, therefore, accept the deposition of

PW-7 and PW-20 that he was found by them on 13th March,

2008. The consequential finding is that the appellant was

absconding from his house, till the time, he was arrested.

CONCLUSION

15. The prosecution has been able to prove that (i) the

appellant was absconding from his house after murder of his

wife and he has not been able to give an plausible explanation

for his not being found in his house before he was arrested by

the police. In Virender Kumar Gara Vs. State : 2001 III AD

(Delhi) 319, a Division Bench of this court was of the view that

the fact that the accused absconding immediately after the

incident was a strong factor to prove his guilt. In Amrit Lal

Someshwra Joshi Vs State of Maharashtra : AIR 1994 SC

2516, the appellant who was employed as a domestic servant

was found absconding after murder of his employer. It was

held to be an incriminating circumstance against him. In

State of UP Vs. Deoman Upadhyay : 1960 Cri.L.J. 1504, the

appellant, who had also threatened the accused, was found

absconding after her death. It was held that his having

threatened the deceased and his absconding immediately after

the death of the deceased by violence, lent very strong support

to the case of the prosecution.

16. It has also been proved that the appellant's clothes

and one of the slippers which he was wearing, at the time, he

was arrested, were stained with human blood. There is no

explanation from the appellant for the human blood found on

his clothes and his slippers. It also stands proved that the

appellant had come into possession of the knife Ex.P-1 before

it was produced by him to the police and not only was the

knife stained with human blood, it could also have been used

for causing the injuries found on the person of the deceased.

17. It was contended by the learned counsel for the

appellant that since blood group of the human blood found on

the knife and the clothes could not be ascertained, it cannot

be said that the human blood found on these articles was of

the deceased. The fact remains that there is no explanation

from the appellant as to how blood came on his clothes and on

one of his slippers. The appellant was not found having any

injury at the time he was arrested. He does not claim that the

blood found on his clothes and slippers was his own blood or

the blood of a human being other than his deceased wife.

Similarly, he does not claim that the knife Ex.P-1 had blood of

a human being other than his deceased wife.

In Gura Singh Vs. The State of Rajasthan : 2000 IX

AD (SC) 299, Supreme Court rejected the contention that in

the absence of report regarding origin of the blood, the trial

court could not have been convicted the appellant.

In State of Rajasthan Vs. Teja Ram & Others :

1999 (3) SCC 507, Supreme Court held that failure of the

Serologist to detect the origin of the blood due to disintegration

of the serum in the meanwhile does not mean that the blood

stock on the axe would not have been human blood at all. It

was observed that sometimes it happens, either because the

stain is insufficient or due to haematological changes and

plasmatic coagulation that a serologist might fail to detect the

origin of the blood. In Moti Ram Vs. State of Maharashtra :

JT 2002 (2) SC 637, the report of the Forensic Science

Laboratory indicated that the clothes of the appellant and the

knife recovered at his instance were having human blood, the

group of which could not be ascertained on account of

disintegration of the blood spots. It was held that merely

because the blood group on the clothes and the blood on the

knife was not ascertained, could not be a reason to hold that

any chain of circumstances was missing, as argued on behalf

of the appellant.

18. The aforesaid circumstances lead to the irresitable

conclusion that the murder of deceased Guddo was committed

by no one other than the appellant. These circumstances are

wholly incompatible with the innocence of the appellant and

unerringly point out towards him as the person responsible for

the murder of his wife. If taken singly, these circumstances

may not be sufficient to prove the guilt attributed to the

appellant. But, when considered cumulatively in the facts and

circumstances of the case, there is no escape from the

conclusion that the appellant is guilty of the murder of his

wife. In taking this view, we can draw some support from the

fact that the FIR inculpating the appellant in murder of his

wife was lodged by none other than PW-1 Shyam @ Sudama,

who is brother of the appellant. Though he did not support the

prosecution when he came in the witness box, he specifically

admitted his signature on the statement Ex.PW-1/A on the

basis of which the FIR was registered and no explanation at all

was given by him for signing this document in case he did not

make this statement to the police. Considering the fact that

he is the brother of the appellant, the prosecution is not

justified in contending that it was because of his relationship

with the appellant, that he did not support the prosecution

during trial, despite having given a signed statement to the

police.

19. The learned counsel for the appellant has referred to

decision of this Court in Jitender Kumar Vs. State NCT of

Delhi : 2009 (1) JCC 491, the dying declaration alleged to have

been made by the deceased was ignored for the reason that

the appellant was not questioned with reference to that dying

declaration when he was examined under Section 313 of

Cr.P.C. The deceased had claimed in her dying declaration

that her mother-in-law had poured kerosene over her.

However, kerosene residues were not detected in her clothes.

The used matchsticks, the unused matchsticks and the match

box lifted from the place of occurrence also did not show test

of kerosene residues. Even in the MLC of the deceased, the

doctor had not recorded that he had noted a smell of kerosene

from the person of the deceased. It was also noted that PW-11

who had taken the deceased to the hospital, had stated that

the deceased herself had told her that her mother-in-law had

not come back from duty. The court, therefore, ruled out the

use of kerosene to burn the deceased and felt that this fact

discredited the dying declaration made by the deceased. It

was in these circumstances that the court did not place much

reliance upon the fact that the appellant was found

absconding after the occurrence, and observed that many-a-

times an innocent person runs away fearing false arrest.

However, the facts of the present case are altogether different

and the appellant having been found absconding from his

house is not the only circumstance appearing in evidence

against him. This judgment, therefore, does not help the

appellant.

20. In this case, Soni, son of the appellant and the

deceased Guddo, was examined as a court witness. During

initial questioning by the learned trial Judge, he stated that he

was 3 year old and was studying in nursery. But, while

recording his statement, the Trial Judge noted his age as ten

years. Considering the discrepancies in the age given by the

child during initial questioning and the age recorded by the

learned trial Judge while recording his statement and also

taking note of the fact that a child aged about ten years is

ordinarily not expected to be studying in nursery, we directed

the child to be produced before us. The child was,

accordingly, produced before us on 15th July, 2010 and on

questioning by us, he stated that he was 4 years old and was

studying in lower KG. In his deposition before the Trial Court

he stated that the deceased was asking the appellant to fix

zero watt bulb which the appellant did not fix and gradually a

quarrel ensued between his parents. He also pointed to the

right side of the stomach as the place where the appellant hit

his mother with a knife. In Suryanarayana Vs. State of

Karnataka : AIR 2001 SC 482, the Supreme Court, believing

the testimony of a witness aged about four years at the time of

occurrence, she being the solitary eye-witness of the case,

inter alia, observed that:

"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground

of her being of Teen age. The fact of being PW2 a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross- examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not immaterial particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child be tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."

21. In Panchhi & Others Vs. State of UP : 1998 Cri.L.J.

4044, the Supreme court held that:

"The evidence of the child witness must evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law."

However, considering the age of the child which

would be less than two years at the time of occurrence , we are

not taking his deposition into consideration, though it was

vehemently contended by the learned counsel for the

respondent that despite the child being only about 2 years old

at the time of this incident, he was in a position to recall the

incident of stabbing of his mother by his father in his presence

particularly when there was no scope for tutoring of the child

since he was not cited as a prosecution witness and he

happened to be present in the court when the learned Trial

Judge decided to examine him as a court witness.

22. For the reasons given in the preceding paragraphs we