Pankaj Biswas vs State
2010 Latest Caselaw 2400 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment Reserved on: 3rd May, 2010
                            Judgment Pronounced on: 5th May, 2010

+                            CRL.APPEAL No.20/2010

       PANKAJ BISWAS                              ..... Appellant
                 Through:           Mr.Deepak Vohra, Advocate

                                    versus

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

                             CRL.APPEAL No.405/2010

       VISHWAJEET DASS @ NIRMAL          ..... Appellant
                Through: Mr.Avninder Singh, Advocate

                                    versus

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

                             CRL.APPEAL No.406/2010

       ZAHOOR ALAM                                 ..... Appellant
               Through:             Mr.Rajesh Mahajan, 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?

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

Crl.A.Nos.20/2010, 405/2010 & 406/2010                        Page 1 of 16
 PRADEEP NANDRAJOG, J.

1. We are commencing our judgment in an

unconventional manner, for this is requirement of the instant

case inasmuch as what we need to decide is: whether the

prosecution has successfully proved the facts mentioned in the

statement Ex.PW-16/A made by Const.Naresh Pal to

Insp.Harcharan Verma PW-26 and the facts mentioned in the

endorsement Ex.PW-26/A made by Insp.Harcharan Verma

beneath the statement Ex.PW-16/A. The statement Ex.PW-

16/A made by Const.Naresh Pal reads as under:-

"Statement of Const. Naresh Pal No. 2477/SD PIS No. 28881444 Police Station C. R. Park, New Delhi. I am posted at Police Station Chitaranjan Park as a constable. Today i.e. 30.10.2000 from 4 p.m. to 12 O'clock in the night I am on duty along with Constable Rambir Singh No. 2456/SD for patrolling the area on M/Cycle SM-5 No. DL-1S-L-5016. At about 7.45 p.m. in the evening when we reached Mandakini Enclave while patrolling, one guard told us that some ruffians had entered in House No. 55, Mandakini Enclave where upon we stopped our motorcycle and went near the aforesaid house and I cordoned off the aforesaid house from the front side whereas Const. Rambir Singh cordoned off the house from the rear portion. At that time we heard some noises from inside the house, on this I got suspicious and telephonically informed the police station and I stood there for keeping surveillance after covering the doors. In the mean time people also collected over there. 5/7 minutes thereafter you reached the spot along with S.I. Balram, S.I. Lalit Kumar, Const.Harinder No. 723/SD, Const.Ramdiya No. 1454/SD, Driver const. Prakash Masih, Operator Const.Harsahay No. 1643/SD by means of a Govt. Gypsy No. DL-1C-F-6899 where I told the

circumstances. On seeing the situation prevailing over there you cordoned off the said house with the help of staff members and then you, after opening the door entered the house along with S.I. Balram, S.I. Lalit Kumar, Const.Harinder, Const.Ramdiya and myself. As we entered the house, we found the dead bodies of two persons lying in a pool of blood on the carpet spread on the floor in the drawing room. The blood was lying on the floor in a large quantity. The carpet was smeared with blood. A blood stained knife was also found lying on the said carpet. You in a loud voice warned the persons hidden inside the house to come out saying that the house is cordoned off by the Police. When nobody came out, you and the staff members while holding revolvers and pistols and carefully checking the rooms and bathrooms etc. situated down stairs reached a room situated on the left side upstairs where after opening the right side wooden almirah built with the wall, a person was found hidden in sitting condition who was over powered by you with my help and whose name was learnt on enquiry as Zahoor Alam S/o Abdul Hamid, aged 23 years r/o Zali Mohalla, Tuglakabad, New Delhi. On conducting his personal search cursorily one country made revolver was recovered from the right dub of his wearing pants. Sub-Inspector Lalit Kumar opened the left side almirah in which a person was found hidden in sitting condition who was over powered by S.I. Lalit Kumar with the help Const.Ram diya and whose name and address was learnt on interrogation as Pankaj Biswas s/o Sunil Biswas, aged

Tuglakabad, New Delhi. On conducting his personal search cursorily, two golden coloured small sized Jayco and Kim's table clocks were recovered from the right pocket of his wearing pants. After searching the entire house S. I. Balram and Const.Harinder removed the lid of the water tank built on the floor in the gallery in which a person was found sitting therein who was taken out by S.I. with the help of Const.Harinder, who was holding a knife in his left hand and he was over powered; whose name and address were learnt on enquiry as Vishwajeet Dass alias Nirmal s/o Nagender Das r/o House No. 16, Chhuriya Mohalla, Tuglakabad, New Delhi. Blood stained pants and T-shirt were found near the bed beside the kitchen. Droplets of blood were also found

lying in the said house and household articles were found scattered. Sub-Inspector Ashok Kumar has also arrived at the spot. All the aforesaid three persons have murdered two persons after having entered the house and committed the loot in the house. Appropriate action may please be taken. I have heard the statement and the same is correct.

Sd/- Naresh Sd/- H.C.Verma S.H.O. P. S: C. R. Park Date: 30.10.2000"

2. The endorsement Ex.PW-26/A beneath the

statement Ex.PW-16/A reads as under:-

"To The Duty Officer P. S.: C. R. Park New Delhi Sir,

It is submitted on receipt of an information through DD No. 15A dated 30.10.2000, I, the Inspector along with S.I. Balram, S.I. Lalit Kumar, Const. Harinder No. 723/SD, Const. Ramdiya No. 1454/SD, Driver Const.Prakash Masih No. 1006/SD and Operator Const.Harsahay No. 1643/SD reached the spot i.e. Flat No. 55, Mandakini Enclave by means of a Govt. Gypsy no. DL-1C-F-6899 where Const.Rambir and Const.Naresh Pal who were present over there, revealed the circumstances. A crowd of people was present at the spot. I, the Inspector along with Const.Naresh Pal and the aforesaid staff carefully entered the house from the main door holding revolvers and pistols etc. Immediately on entering, we found the dead bodies of two persons lying on the carpet spread on the floor in the drawing room in a pool of blood. Blood was found lying in large quantity

on the floor. The carpet was also smeared with blood. And a blood stained knife was found lying on the said carpet. I had loudly warned the persons hidden inside to come saying that the house is cordoned off by the Police. When nobody came out, I, the Inspector with the help of the aforesaid staff members while holding the weapons carefully searched the said house. We overpowered a person namely Zahoor Alam along with a country made pistol from the right side almirah built in the right room situated on the upstairs of the house. Likewise, we overpowered Pankaj Biswas along with Jayco and Kim's clock (table) from left side almirah. We over powered Vishwajeet after taking him out from water tank along with a knife. The articles of the said rooms were found scattered. The names of deceased persons were learnt as Siddharth Mukhopadhyaya aged 58 years and Somiya Mukherjee aged 26 years. Wounds caused by knife were visible on the aforesaid dead bodies. Injuries were visible on the head and small finger of right hand of Pankaj Biswas. An Injury was found in the fore finger of Zahoor Alam. The wearing clothes of all the aforesaid three accused persons were found stained with blood. Const.Naresh Pal got his foregoing statement recorded to me, the SHO which I attested. The circumstances prevailing at the spot, Inspection of the dead bodies reveal the commission offences punishable under Sections 302/394/397 IPC. Hence, this writing is being sent through const. Rambir No.2456/SD to the Police Station for the purpose of registration of a case (FIR). After registration of the case, its number may please be intimated. Senior officers may be informed through special messenger. The crime team and photographer may be sent to the spot. Sub-Inspector Ashok Kumar has also reached the spot. Separate action is being carried out by S.I. Ashok Kumar in respect of the country made revolver recovered from Zahoor Alam. I, the Inspector am busy with the investigation at the spot.

Date and hour of the occurrence: 30.10.2000, at about 07.45p.m.

Place of occurrence: 55, Mandakini Enclave Date and hour of despatch of 30.10.2000 at 10.30 p.m. Sd/- Har Charan Verma SHO, C.R. Park 30.10.2000"

3. Suffice would it be to state that the instant case

required no further investigation qua the appellants but since

in their disclosure statements they named four other persons

namely, Mohd.Israil, Shankar, Vinod and Sunil as their

associates, the investigating officer searched them out, but we

need not note any evidence pertaining to said accused, for the

reason they are not before us since Sunil was acquitted and

the other three have been convicted for the offence

punishable under Section 411 IPC, for which offence they have

been sentenced to undergo RI for a period of 3 years and pay

fine in sum of Rs.5,000/-. Probably for the reason by the time

said sentence was imposed upon said three co-accused, they

had already undergone a sentence much in excess of what

was inflicted upon them.

4. From the statement Ex.PW-16/A made by

Const.Naresh Pal it is apparent that he and Const.Rambir were

on patrolling duty when a guard informed them of ruffians

having entered House No.55, Mandakini Enclave and the said

two officers telephonically informed the police station and

stood guard, one each on the front and the rear of House

No.55, Mandakini Enclave and continued to remain there till

Insp.Harcharan Verma, SI Balram, SI Lalit Kumar,

Const.Harender and Const.Ramdiya reached the spot. It may

be noted that though the reference is to the house, but it is

actually Flat No.55, Mandakini Enclave on the ground floor of

the cluster of buildings in Mandakini Enclave.

5. Const.Naresh Pal has been examined as PW-16.

Const.Rambir has been examined as PW-15. Both of them

have deposed in sync with each other and save and except

difference in the choice of words used have deposed facts as

aforenoted in para 4 above. The two have further deposed the

facts as disclosed in the statement Ex.PW-16/A of the events

which transpired when police reinforcement reached the

house. The two have deposed of Zahoor Alam being

apprehended from a wooden almirah towards the right in a

bedroom and a revolver recovered from his pant. Pankaj

Biswas being apprehended from an almirah on the left side of

the bedroom and a small sized jayco and a kim table clock

recovered from the right side of his pant and Vishwajeet Dass

being apprehended from the water tank on the roof with a

knife in his hand.

6. Insp.Harcharan Verma PW-26 and SI Balram PW-19

have deposed in harmony with each other and have

corroborated Const.Naresh Pal and Const.Rambir Singh

pertaining to the appellants being apprehended at the spot.

7. No blemish or an infirmity was brought to our notice

pertaining to the testimony of Const.Naresh Pal, Const.Rambir

Singh, Insp.Harcharan Verma and SI Balram and thus we hold

that the testimony of said police officers inspires confidence.

8. That apart, on being examined under Section 313

Cr.P.C. appellant Zahoor Alam and Pankaj Biswas admitted

their presence at House No.55, Mandakini Enclave but stated

that their curiosity led them there. They were onlookers in the

crowd which had gathered but were falsely arrested. The third

appellant claimed that he was a rag picker and was picked up

on 31.10.2000.

9. We have two independent witnesses to support the

case of the prosecution and disprove the claim of the

appellants. They are Pulin Nayak PW-3 and V.K.Nayyak PW-6.

Pulin Nayak has deposed that on 30.10.2000 he was in flat

No.61, Mandakini Enclave belonging to his brother-in-law

V.K.Nayyak and at 7:30/7:45 PM heard commotion from

outside and saw a crowd around Flat No.55. He saw police

personnel. People were talking that bad element had entered

Flat No.55. Police entered the house and after 15 minutes

brought out two persons and thereafter another. Accused

Zahoor Alam was one out of the three whom he could

recognize in Court out of the 7 accused. He could not identify

appellant Vishwajeet Dass and Pankaj Biswas. His brother-in-

law V.K.Nayyak deposed in harmony with Pulin Nayak but with

a difference, that he identified the appellants as the three

persons who were apprehended by the police and brought out

from the flat. It may be noted that of the two persons who

were murdered inside Flat No.55 Mandakini Enclave, one was

Sidhartho Mukhupadhaya, the owner of the flat, whose son

Sujoy PW-2 deposed that when he reached his house at around

10:00 in the night he saw the appellants in the custody of the

police.

10. It is thus apparent that three independent public

witnesses have supported the case of the prosecution of three

persons being apprehended from the flat where the crime took

place. One of them, Pulin Nayak could identify only one out of

three persons apprehended but his brother-in-law V.K.Nayyak

identified the three. Sujoy also identified all three.

11. As per the statement Ex.PW-16/A, Pankaj Biswas

had an injury on his head and the small finger of the right

hand. Zahoor Alam had an injury on his forefinger. Indeed,

the MLC Ex.PW-21/A of Pankaj Biswas evidences that he was

got examined at 1:31 AM in the intervening night of 30 th and

31st October 2000 at AIIMS and Dr.Ravi Desai who examined

him noted a 0.5 cm CLW on the scalp and a 1 cm CLW on the

distal phalynx of the right little finger. The MLC of Zahoor

Alam has unfortunately not been exhibited but is at page 389

of the Trial Court record which shows swelling on right hand

dorsum and tenderness on the left hand index finger.

12. The instant case has a checkered history for the

reason, without putting the incriminating circumstances to the

appellants, vide judgment and order dated 28.9.2004, they

were convicted. Vide order dated 5.2.2009 the said decision

was set aside and the matter was remanded after a coordinate

Division Bench of this Court recorded supplementary

statements of the appellants under Section 313 Cr.P.C. with a

direction that the appellants may be given opportunity to lead

defence evidence if any. At the remanded stage the attempt

of the appellants by examining Lal Mohan Dass DW-1 proved

futile as he disclaimed knowing the appellants.

13. There is hardly much more for us to write any

further for the reason the prosecution claims to have

apprehended the appellants at the spot, which fact has been

proved through the testimony of four police officers and three

independent witnesses.

14. It was not disputed before us that House No.55,

Mandakini Enclave, (in fact a flat on the ground floor) was the

place of a dacoity where two persons Sidhartho

Mukhupadhaya and Somiya Mukherjee were brutally

murdered. The post-mortem report Ex.PW-4/A of Somiya

Mukherjee shows 11 stab/incised wounds. The post-mortem

report Ex.PW-4/B of Sidhartho Mukhupadhaya shows that he

was inflicted multiple stab as well as incised wounds and one

on the left side of the chest was sufficient in the ordinary

course of nature to cause death.

15. During argument in the appeals it was urged that

with as many as 7 police officers at the spot, being (i)

Const.Naresh Pal, (ii) Const.Rambir Singh, (iii) SI Balram, (iv) SI

Lalit Kumar, (v) Const.Harender, (vi) Const.Ramdia and (vii)

Insp.Harcharan Verma and a crowd outside the flat, it was not

possible for four accused to flee from the spot. It was thus

urged that the defence of Zahoor Alam and Pankaj Biswas that

they were curious onlookers along with the crowd and were

falsely picked up is probablized; the reason why

Insp.Harcharan Verma did so was to save his face for if all

accused had fled he would have no face to show.

16. The argument presupposes the fact that by the

time the police arrived all those who had illegally entered the

flat continued to remain inside the flat. It is possible that

some had fled by the time the police reached. The testimony

of Const.Naresh Pal shows that before the police force

requisitioned by him reached, a crowd had gathered. It needs

to be noted that the date was 30.10.2000 and the time was

7:45 PM. In the city of Delhi it gets dark by 7:45 PM on

30.10.2000 and thus somebody escaping without being

noticed cannot be ruled out as also the fact that they fled

before Insp.Harcharan Verma and his team of police officers

reached.

17. Further, on said speculative argument it would be

difficult for us to brush aside the testimony of four police

officers which finds full corroboration through the testimony of

V.K.Nayyak and partial corroboration through the testimony of

Pulin Nayak. Though Pulin Nayak could identify only Zahoor

Alam as one out of the three persons apprehended from the

flat, but he supported the case of the prosecution that three

persons were apprehended. Thus, the question of the

appellants being planted as accused does not arise.

18. The argument that when heinous crimes are

committed, people tend to tell lies cannot be accepted by us to

disbelieve Pulin Nayak and V.K.Nayyak for the reason if this

argument is accepted, the credibility of every eye witness

would be in doubt. Of course, where there is material to

suspect the testimony of an eye witness, it may assume

importance to consider the possibility of the witness spinning

facts out of his imagination, for it does happen that heinous

crimes do attract a feeling of revenge and hatred and the

human mind, unmindful of it being poisoned, misleads itself to

the belief that what it thinks is the result of what it saw. But,

this would be in exceptional cases.

19. We do agree with the argument advanced that the

reasoning of the learned Trial Judge in para 25 of the

impugned decision is not sound. In para 25 the learned Trial

Judge has raised a presumption as under:-

"25. From the facts and after comprehending the legal position, it is clear that the said presumption that the accused had committed robbery and murdered the deceased can very well be raised and which has gone unrebutted i.e. the accused have not been able to relieve themselves from the said burden for rebutting the presumption though the initial burden by the prosecution has been discharged but it. The robbery and murder have been proved to

have been integral part of same transaction in the present case and, therefore, the presumption arising under illustration (a) of Section 114 of Evidence Act is that only the accused persons have committed the murder of the deceased but also committed the robbery of the articles as discussed above."

20. We fail to understand as to how illustration (a) to

Section 114 of the Evidence Act is attracted. The same is

attracted when the issue arises whether the person from

whom the recovery is made is the thief or recipient of stolen

property. It may be extended to cases when stolen property is

recovered and simultaneously with the theft, robbery or

dacoity being committed, a murder takes place. In the instant

case the appellants have been apprehended from the flat

which they had illegally entered into and in which flat two

persons were murdered. Since the appellants have given no

explanation as to what they were doing inside and under what

authority or permission they entered the flat, inference of guilt

is writ large and plain upon the appellants and we see no

scope to apply illustration (a) to Section 114 of the Evidence

Act. The Evidence Act requires a fact to be treated as proved

where on the material before her a prudent person would

either act on the supposition that the fact exists or would

believe that it exists. 100% proof is a myth in law. If three

persons having no concern with a flat and disclosing no

authority or permission to enter a flat are found in or at the

roof of the flat with two occupants of the flat brutally assaulted

with knives and dying due to the injuries inside the flat, any

prudent person would return the verdict that it stands proved

that the three persons who trespassed into the flat are the

offenders. Logical reasoning so requires.

21. Before concluding we may record that there is no

evidence of the FIR being ante timed. The first information

recorded at PS C.R.Park vide DD No.15A, Ex.PW-8/A is at 7:50

PM on 30.10.2000 recording telephonic information passed on

by Const.Naresh that gangsters have entered flat No.55,

Mandakini Enclave. The endorsement Ex.PW-26/A beneath

Const.Naresh Pal's statement Ex.PW-16/A shows that the

statement and the endorsement were dispatched from the

spot at 10:30 PM.

22. Receiving information at the police station at 7:50

PM; same being passed on to Insp.Harcharan Verma who left

with 5 other police officers and reached the place of the crime;

a careful entry had to be made after warning the gangsters

inside as claimed to by Insp.Harcharan Verma. Three persons

were apprehended at the spot. Time would be consumed for

said activities. Thereafter Naresh Pal's statement Ex.PW-16/A

spanning a little over 2 pages followed by the endorsement

Ex.PW-26/A spanning a little less than 2 pages being penned

would consume further time. It is thus apparent that the rukka

was dispatched most promptly from the spot ruling out

anything being manipulated at the spot.

23. We find no merit in the three appeals which are

dismissed.

24. Since the appellants are still in jail we direct that a

copy each of the instant decision in the three captioned

appeals be sent by the Registry to the Superintendent Central

Jail Tihar for being made available to the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

MAY 05, 2010 mm