Babu Lal @ Pappu vs State
2010 Latest Caselaw 1719 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved On: 22nd March, 2010
                    Judgment Delivered On:26th March, 2010

+                        CRL.APPEAL 627/2008

       BABU LAL @ PAPPU                       ..... Appellant
                Through:       Mr.Dileep Singh, Mr.M.P.Singh,
                               Mr.Amresh Yadav and Mr.Ajay
                               Kumar, Advocates

                               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?

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

PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 7.5.2008

the learned Trial Judge has convicted the appellant for the

offences punishable under Sections 302/364 IPC. For the

offence of murder the appellant has been sentenced to

undergo imprisonment for life and to pay a fine in sum of

Rs.5,000/- in default to undergo simple imprisonment for 2

months. For the offence punishable under Section 364 IPC he

has been sentenced to undergo rigorous imprisonment for 10

years and to pay a fine in sum of Rs.5,000/- in default to

undergo simple imprisonment for 2 months. The sentences

have been directed to run concurrently. We understand this to

mean that after undergoing the sentence for 10 years it would

be treated that the appellant has undergone the sentence for

the offence punishable under Section 364 IPC.

2. The broad contours of the case set up by the

prosecution are that the deceased Kanhiya Lal aged 11 years

along with his father Diwari Lal PW-3 and sister Rakhi PW-8

resided in a jhuggi near Hanuman Mandir, Bhama Shah Road,

Model Town, Delhi. The appellant Babu Lal and juvenile co-

accused Inder Dev also resided in the same jhuggi cluster.

Appellant Babu Lal, co-accused Inder Dev and deceased

Kanhiya Lal were all employed in a sweet shop, run by Vinod

Sharma PW-4, situated near Hanuman Mandir. Appellant Babu

Lal used to tease Rakhi PW-8, sister of the deceased, to which

Diwari Lal PW-2 and Kanhiya Lal often objected. Motivated by

this, appellant Babu Lal along with his co-accused Inder Dev

kidnapped Kanhiya Lal and murdered him in the sweet shop of

Vinod and hid the body in a trunk inside the godown of the

adjoining temple.

3. The process of criminal law was set into motion on

9.2.2005 when Diwari Lal PW-3 went to PS Model Town and

lodged a missing persons complaint Ex.PW-3/A wherein he

inter alia stated that his son Kanhiya Lal left the house at

around 7:00 am on 7.2.2005 to play near the temple and could

not be found thereafter. He further stated that he suspected

Babu Lal @ Pappu for the reason Babu Lal used to tease his

daughter and in this context often had verbal duels with Babu

Lal.

4. SI Kishan Lal PW-13 who recorded the statement

Ex.PW-3/A made an endorsement Ex.PW-13/A under said

statement of Diwari Lal and got an FIR registered for the

offence of kidnapping. He searched Babu Lal and apprehended

him near Hanuman Mandir. He interrogated Babu Lal and

recorded his disclosure statement Ex.PW-9/A wherein Babu Lal

disclosed his involvement in the murder of Kanhiya Lal. Babu

Lal further stated that he could get the dead body of Kanhiya

Lal recovered from within an iron trunk lying in a hall situated

behind the temple. He further disclosed that he had burnt the

clothes worn by the deceased and could get the remnants of

the same as well as the danda (fatta) used in the commission

of the offence recovered from the dump yard of the temple.

5. Since Babu Lal disclosed that he had murdered the

deceased, the investigation was taken over by Insp.Hira Lal

PW-15 before whom Babu Lal was produced by SI Kishan Lal.

Thereafter, Babu Lal led SI Kishan Lal and Insp.Hira Lal to the

godown adjoining the temple as also adjoining the shop of

Vinod PW-4 and pointed out an iron trunk from within which

the dead body of Kanhiya Lal was recovered in a naked

condition and was seized vide memo Ex.PW-4/A. Clothes and

other objects being costumes of characters at Ramlila in the

trunk were also seized.

6. Babu Lal disclosed the involvement of his co-

accused Inder Dev, who being a juvenile faced trial before the

Juvenile Court.

7. It is apparent that the appellant has been convicted

on the incriminating evidence of getting recovered the dead

body of the deceased Kanhiya Lal.

8. In the celebrated decision reported as AIR 1947 PC

67 Pulukuri Kottaya & Ors. Vs. Emperor (para 10) Section 27 of

the Evidence Act is wholly applicable when a person in police

custody produces from some place of concealment some

object, such as a dead body. In the decision reported as 1989

Cri.LJ (NOC) 200 (Gauhati) Chakidhar Paharia Vs. State of

Assam, 1986 Cri.LJ 220 Parimal Banerjee Vs. State and AIR

1963 SC 1074 Ram Lochan Ahir Vs. State of West Bengal the

recovery of a dead body lying concealed is a highly

incriminating evidence where it is found that the person was

murdered. Such a recovery incriminates the person at whose

instance the dead body was recovered.

9. Thus, the only thing required by us to be seen is

whether the prosecution has successfully proved that it could

lay hands on the dead body of the deceased only with the aid

of the mental knowledge of the appellant of the place

wherefrom the dead body was recovered.

10. As deposed to by SI Kishan Lal PW-13 whose

testimony stands corroborated through the testimony of

Const.Jagdish Singh PW-9 the disclosure statement Ex.PW-9/A

of the appellant was recorded by SI Kishan Lal. Not only does

it record that the appellant can get recovered the dead body

from within a trunk but also the fact pertaining to the condition

of the dead body i.e. that the same is in a nude condition, for

the reason it stands recorded that Babu Lal said that after

killing the deceased his clothes were removed and were burnt.

11. Now, as recorded in the seizure memo Ex.PW-4/B

proved by Vinod Sharma PW-4 whose testimony has been

corroborated by SI Kishan Lal and Insp.Hira Lal, the dead body

was recovered from inside a trunk in the godown adjoining the

temple in the complex whereof shop of Vinod Kumar was

situated. The trunk was pointed out by the appellant. It is

apparent that the recovery of the dead body is not from an

open place and could not have been accessed by the police

without somebody telling the police about the same.

12. Prima facie, the recovery stands proved and with

credibility. That the fact that the body was in a naked

condition also assumes importance for the reason the state of

the body was disclosed by the appellant much before it was

recovered and when it was recovered it confirmed what was

told to SI Kishan Lal.

13. We would be failing if we do not note the

submissions which were urged at the hearing of the appeal. It

was urged that Diwari Lal PW-3 admitted during cross

examination that his statement was recorded by the police for

the first time after the body of his son was recovered and that

the police arrested Vinod PW-4 but does not know the reason

why Vinod was left. It was urged that it is apparent that

everything was manipulated after the dead body of Kanhiya

Lal was recovered.

14. It is apparent that Diwari Lal PW-3, who lives in a

jhuggi and from said fact makes it evident that he is a man

with lesser means and lesser knowledge, was thoroughly

confused in Court. If he is to be believed with reference to

what he said during cross-examination, we wonder as to

wherefrom SI Kishan Lal got about investigating the missing of

Kanhiya Lal. Common sense tells us that SI Kishan Lal was

investigating Kanhiya Lal being missing and as per

documentary record it was after the FIR was registered on

9.2.2005, which was preceded by Diwari Lal PW-3 making the

statement Ex.PW-3/A. To satisfy our judicial conscious we saw

the case diary maintained by SI Kishan Lal and the same also

reconfirms the aforesaid.

15. Now, SI Kishan Lal has categorically deposed that

he commenced investigation after Diwari Lal made the

statement Ex.PW-3/A. No suggestion has been given to SI

Kishan Lal that he commenced the investigation otherwise.

16. As regards the controversy of Vinod PW-4 being

arrested and let off and his being a suspect, suffice would it be

to state that there is no record of Vinod being arrested. On the

contrary the record shows that Vinod has participated in the

recovery and has signed the recovery memos prepared when

the dead body of Kanhiya Lal was recovered and clothes inside

the iron box were seized. He has also witnessed the recovery

of ashes stated to be of burnt clothes at the instance of the

appellant.

17. We may record it incidentally, for the reason it is a

weak evidence, that a kadai and a wooden danda got

recovered at the instance of the appellant have been opined to

be the objects capable of inflicting injuries on the person of the

deceased.

18. We hold that the confused testimony of Diwari Lal

PW-3 nowhere brings out false implication and planting against

the appellant.

19. That the deceased was murdered is proved through

the post-mortem report Ex.PW-1/A and the testimony of its

author Dr.Upender Kishore PW-1. The post-mortem record

shows 10 external injuries, all caused by blunt objects. The

injuries directed towards the skull, though dangerous and

capable of causing death are not the cause of death for the

reason the deceased was asphyxiated to death as per the

post-mortem report.

20. We find no merit in the appeal which is dismissed.

21. Since the appellant is still in jail, we direct that a

copy of this decision be sent to the Superintendent Central Jail

Tihar to be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

MARCH 26, 2010 mm