Brij Kishore & Anr. vs State
2010 Latest Caselaw 2484 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : 10th May, 2010

+                           CRL.A. 927/2008

         BRIJ KISHORE & ANR.             ..... Appellants
                   Through: Mr.Shad Anwar, 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 Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. On 26.04.2010, noting that the appeal had reached

for hearing and learned counsel had not appeared, Court

notice was issued to learned counsel informing him that the

appeal would be listed for hearing today. The notice has been

served and learned counsel as above has appeared and

argued the appeal.

2. Vide impugned judgment and order dated

20.09.2008 the appellants have been convicted for the offence

punishable under Section 302/392/411/34 IPC.

3. At the outset we express our displeasure at the

manner in which the impugned judgment has been written. It

is prolix. As a result, the issues which arose have got blurred.

We also express our displeasure at the lack of knowledge of

the learned Trial Judge, who has ignored the mandate of

Section 65B of the Evidence Act while recording evidence and

through the testimony of Const.Rajvir PW-14 has exhibited

printout details of mobile telephone number 9899545415 as

Ex.PW-14/A and Ex.PW-14/B. The learned Trial Judge appears

to be totally unaware as to how a document in electronic form

has to be proved. It has to be proved either by means of a

certificate issued by the person/authority in whose custody the

device in which the document was stored in an electronic form

that the printout generated has been through the device and

reflects an information stored in electronic form in the ordinary

course or through the testimony of the person who generates

the printout from the device in which the same is stored. It

cannot be exhibited when a police officer tenders it saying that

he procured it.

4. It is to the knowledge of this Court that at least 10

programmes have been held at the Judicial Academy in Delhi

to impart knowledge to all judicial officers in Delhi as to how

electronic record has to be proved and yet we are surprised

that the learned Additional Sessions Judge, in the instant case

has chosen to act callously.

5. Even in respect of the judgment, we find the

judgment taking a roller coaster ride and floating all over

without focusing on the issue.

6. As per the charge-sheet filed, the prosecution

alleged that deceased Mahender was found dead at around

10:00 AM on 26.04.2006; the place being his House No.488/36,

Omkar Nagar, Tri Nagar, Delhi. His body was found when his

brother Prempal went to the house of Mahender and saw him

lying dead on the floor. As per the investigation further

conducted and as per the charge-sheet, it surfaced that the

deceased was having a matrimonial problem with his wife and

probably to pay money to her, had agreed to sell his house for

a sum of Rs.6 lacs and had received Rs.1 Lac as advanced sale

consideration. The deceased was last seen in the company of

the accused in the evening of 25.04.2006. After the accused

were apprehended, they made disclosure statements and Brij

Kishore got recovered mobile phone and a wrist watch

belonging to the deceased; Dori lal got recovered a mobile

phone belonging to the deceased. Both accused got recovered

a pant and shirt each which was found to be stained with

human blood of group 'B', which was the blood group of

deceased.

7. It is apparent that the attempt of the prosecution

would have been to prove that the deceased died somewhere

in the evening of 25.04.2006 or the intervening night

thereafter and he was last seen in the company of accused in

the evening of 25.4.2006. Further attempt would be to prove

that the two mobile phones which were got recovered, one

each from the two accused, belonged to the deceased and

that the wrist watch got recovered by one of them belonged to

the deceased. It would also have been the attempt of the

prosecution to prove that the pant and shirt got recovered by

the accused was stained with human blood of the same group

as that of the deceased.

8. If this be so, we expected the learned Trial Judge to

be focused in writing the decision whether evidence has been

led to prove as aforenoted and not to take a roller coaster ride.

9. As recognized by the learned Trial Judge himself in

the impugned decision, the prosecution has miserably failed to

prove any evidence on record that the accused were last seen

with the deceased in the evening of 25.04.2006. Thus, after

recording said fact, the learned Trial Judge was expected to

proceed to consider the evidence for proof of the recoveries

and the effect thereof.

10. That the scene of the crime is the house of the

deceased is not in dispute. That the post-mortem report of the

deceased shows a homicidal death and of the kind, making out

the offence of murder is also not in dispute. The post-mortem

report Ex.PW-21/A authored and proved by Dr.Upender Kishore

PW-21 shows that an attempt was made to strangulate the

deceased and also to smash his skull. There are extensive

injuries in the occipital region with brain oedema. There are

extensive strangulation injuries on the neck with the thyroid

cartilage fractured. Cause of death was opined to be asphyxia

as a result of ante mortem strangulation by ligature sufficient

to cause death in the ordinary course.

11. 3 police officers, Const.Surender Singh PW-24, ASI

Satya Narain PW-25 and ACP R.K.Budhiraja PW-26 then posted

as the SHO PS Keshav Puram have deposed to the arrest of the

appellants and the recoveries at their instance. Satya Narain

Aggarwal PW-15 is an additional witness to depose regarding

recoveries against accused Brij Kishore.

12. The mobile phone Ex.P-5 and the wrist watch Ex.P-6

are the recoveries attributed to accused Brij Kishore. The

mobile phone Ex.P-4 is the recovery attributed against accused

Dori Lal.

13. The shirt Ex.P-12 and the pant Ex.P-13 is the

recovery attributed to Dori Lal. The shirt Ex.P-8 and the pant

Ex.P-7 is the recovery attributed to Brij Kishore.

14. The link evidence pertaining to the recoveries of the

two mobile sets are the testimonies of Prempal PW-1, Harpal

PW-2 and Lalit PW-3.

15. Prempal and Harpal have deposed that their

brother used to keep two mobile phones and used to wear a

golden coloured watch. The two witnesses duly identified, in

Court, the two mobile phones and the wrist watch which was

produced; being Ex.P-4, Ex.P-5 and Ex.P-6.

16. We find that the testimony of the two brothers as

regards the identification of the said 3 objects has not been

challenged.

17. To satisfy our judicial conscious we have looked at

the statements recorded during investigation by the

investigating officer and find that on the day when the crime

was detected i.e. 26.4.2006, statement of Prempal as also

Harpal were recorded and in the said two statements

immediately recorded after the crime was detected they

stated that their brother used to keep two mobile phones and

had the number 9899545415 and that he used the SIM card on

2 mobile phones. They also disclosed that their brother used

to wear a Titan watch and that all three articles were missing.

The watch Ex.P-6 is a watch of Titan make.

18. Lalit PW-3 is a relation of the deceased and has also

deposed that mobile phones Ex.P-4 and Ex.P-5 belonged to the

deceased Mahender Pal, his uncle.

19. Having perused the cross-examination of the 3

witnesses, we find that cross-examination of Prempal PW-1

was on the lines that the mobile phones were not recovered in

his presence, a fact which he admitted. But no questions were

put to him as to how come he identified the said mobile

phones as that of his brother. Similarly regarding cross-

examination of Harpal we find that he has just not been cross-

examined with respect to his identifying the two mobile

phones and the wrist watch as belonging to his brother.

Similar is the position when we notice the cross-examination of

Lalit.

20. Unfortunately for the prosecution, the further link

evidence that mobile No.9899545415 belonged to the

deceased has failed for the reason the call details Ex.PW-14/A

and Ex.PW-14/B have not been proved as per law and

notwithstanding the finding returned by the learned Trial

Judge, we eschew reference thereto.

21. Had the call details been proved as per law, they

would have shown that the SIM card pertaining to the mobile

number in question was being used on two sets having IMEI

Nos.352038103418620 and 350177404181160.

22. We find that the recovery memos Ex.PW-15/A and

Ex.PW-20/G record that the mobile phones recovered bear

aforenoted IMEI numbers.

23. Const.Surender Singh PW-24 has deposed that

when Brij Kishore was arrested on 5.5.2006 he led the police to

House NO.831/51, Lekhu Nagar, Delhi and got recovered a

mobile phone and a wrist watch as also blood stained clothes

and that when Brij Kihsore was arrested on 6.5.2006 he led the

police and got recovered a mobile phone and blood stained

clothes. ASI Satya Narain PW-25 has spoken with greater

clarity. He deposed that when Brij Kishore was arrested as

recorded in the arrest memo Ex.PW-20/B he made a disclosure

statement Ex.PW-20/A and led the police to House No.831/51,

Lekhu Nagar, Tri Nagar and got recovered a mobile Ex.P-5, a

wrist watch Ex.P-6, a pant Ex.P-7 and a shirt Ex.P-8 which were

taken into possession as recorded in the memos Ex.PW-15/A

and Ex.PW-15/B respectively. He further deposed that the

next day i.e. on 6.5.2006 Dori Lal was arrested as recorded in

the arrest memo Ex.PW-20/B (it appears that the same is a

typographic mistake) and that he made a disclosure statement

Ex.PW-20/B (another typing mistake) and thereafter he took

them to House No.2792/207 Vishram Nagar and got recovered

a mobile phone Ex.P-4 as also a shirt Ex.P-12 and a pant Ex.P-

13 which were taken into possession vide memo Ex.PW-20/G.

24. Once again we have noticed a callous manner in

which the learned Trial Judge has recorded the testimony. Dori

Lal's disclosure statement has been referred to as Ex.PW-20/B.

Brij Kishore's arrest memo has also been recorded as Ex.PW-

20/B. Dori Lal's arrest memo has also been recorded as

Ex.PW-20/B.

25. ACP R.K.Budhiraja PW-26 working as the SHO and

the investigating officer, has deposed that Brij Kishore was

apprehended on 5.5.2006 as recorded in the memo Ex.PW-

20/B and he made a disclosure statement Ex.PW-20/A. He led

the police to House No.831/51, Lekhu Nagar, Tri Nagar and got

recovered a mobile phone, a wrist watch, a pant and a shirt

which were seized as per memos Ex.PW-15/A and Ex.PW-15/B.

He also deposed that on 6.5.2006 Dori Lal was arrested vide

memo Ex.PW-20/B and he made a disclosure statement Ex.PW-

20/B and got recovered a mobile phone, a shirt and a pant as

entered in the seizure memos Ex.PW-20/G and Ex.PW-20/H

respectively. All exhibits have been duly identified by him in

Court.

26. Satya Narain Aggarwal PW-15 has corroborated the

recoveries against accused Brij Kishore and has successfully

withstood the test of cross-examination.

27. We find that Const.Surender Singh PW-24 has just

not been cross-examined with respect to the recoveries proved

by him. ASI Satya Narain and ACP R.K.Budhiraja have been

cross-examined in a most lackadaisical manner.

28. It is apparent that the recoveries attributable at the

instance of the two accused have been duly proved.

29. The two mobile phones and the wrist watch were

subjected to test identification proceedings on 6.6.2006 and

were successfully identified by Prempal PW-1 as also by Harpal

PW-2. The said TIP proceedings have been proved during trial

by Sh.D.K.Jangala PW-22, the learned Metropolitan Magistrate

who conducted the test identification proceedings.

30. FSL Report Ex.PW-26/H1 shows that the pant and

the shirt each got recovered by the appellants was found to be

stained with human blood of group 'B' and that the blood

group of the deceased was also 'B'.

31. Learned counsel for the appellants, who we note

defended the appellants at the trial, has cut a very sorry figure

while arguing the appeal and has conceded that in the

absence of any meaningful cross-examination by him on the

issues of recovery, the inevitable conclusion has to be that the

prosecution has successfully proved that the two mobile

phones and the wrist watch of the deceased were recovered at

the instance of the appellants and after they made the

disclosure statements and led the police to their respective

houses and got the exhibits recovered. However, learned

counsel argues that since the call record details Ex.PW-14/A

and Ex.PW-14/B have been held to be not proved there is no

proof that the two handsets recovered having IMEI

Nos.352038103418620 and 350177404181160 respectively

pertained to mobile No.9899545415 and since nobody

deposed that this was the mobile number of the deceased, it

hardly matters that the two mobile phones Ex.P-5 and Ex.P-6

were recovered from appellant No.1 and appellant No.2

respectively.

32. We disagree for the reason, the mobile phones are

objects and have been proved to be belonging to the deceased

through the testimony of PW-1, PW-2 and PW-3. It has to be

kept in mind that PW-1 and PW-2 successfully identified the

two mobile phones and the wrist watch belonging to their

brother when the same were subjected to a test identification

proceedings.

33. It is urged that after the accused were examined

under Section 313 Cr.P.C. an application was filed to tender

the FSL report which could not have been done and hence the

said report has to be eschewed while considering the

incriminating evidence.

34. We disagree for the reason an application was filed

to formally tender in evidence the FSL Report stating that

inadvertently it could not be tendered in evidence though it

was filed along with the charge-sheet.

35. Vide order dated 29.7.2008 the same was allowed

to be tendered and exhibited. Thereafter, further

supplementary statement of the two accused under Section

313 Cr.P.C. was recorded with reference to the said report.

36. Having successfully proved that the two mobile

phones and the wrist watch of the deceased was got recovered

by the appellants i.e. the two were proved to be in possession

of the fruits of a robbery, the only question which further

needed to be decided is whether recovery of stolen property at

the instance of the accused requires presumption to be drawn

that the two were recipients of stolen property or that they

were the authors of the crime i.e. were the ones who stole the

property and while doing so, murdered the victim.

37. The appellants have rendered no explanation as to

wherefrom they acquired the two mobile phones and the wrist

watch belonging to the deceased.

38. Through the testimony of PW-5 we have proof of

the fact that the deceased had negotiated the sale of his

house to one Ramesh Chand and had received Rs.1 lac out of

which Rs.10,000/- was received in cash. Cheque in sum of

Rs.90,000/- was encashed by the deceased. Ramesh Chand

PW-6 has also proved the said fact.

39. It is apparent that the deceased was possessed of

some cash which appears not to have been recovered.

40. The date of the offence is 25.4.2006 and the

recoveries have been effected on 5th and 6th May 2006.

Unfortunately, the cash could not be recovered. We are of the

opinion that the recoveries are of the kind which link the

appellants to the crime and not as recipients of the fruit of the

crime. We rely upon the fact that the mobile phones and the

Titan watch had some value and could not be traded with such

ease as to change hands within 10 days of the crime.

41. There is link evidence, though of a weak nature, in

the form of a pant and a shirt each got recovered by the

accused which were found to be stained with human blood of

the group of the deceased. We are conscious of the fact that

there is no witness to deposed that the accused were wearing

said clothes. We are also conscious of the fact that the part of

their disclosure statement that when they committed the

crime they were wearing the said shirt and the pant is not

admissible under Section 27 of the Evidence Act. But, the fact

of the matter remains that the appellants did get recovered a

shirt and a pant each which were found to be stained with

human blood of the same group as that of the deceased.

42. Under the circumstances we are of the opinion that

with respect to the recoveries of the mobile phone and the

wrist watch at the instance of the appellants a permissible

presumption can certainly be drawn that the two had authored

the crime as well.

43. The appeal is dismissed.

44. We would be failing if we do not draw the attention

of the learned Trial Judge to the insensitive manner in which

the trial has been conducted. For future guidance of the

learned Trial Judge we draw his attention to Section 65B of the

Evidence Act and request him to keep himself abreast with the

law and in future not accept proof of electronic document as

has been done in the instant case. We would also request the

learned Trial Judge to be careful in assigning exhibit marks to

the document with none having repetitive exhibit marks and

for this purpose we direct the Registry to send a copy of this

decision to the District and Sessions Judge Delhi with a letter

of request that it should be transmitted to the learned Trial

Judge so that the learned Trial Judge is made known the

mistakes conducted so that in future he can be careful.

45. The learned Trial Judge is requested to be brief and

focused and not go rolling all over while writing decisions.

46. Since the appellants are in jail we further direct that

a copy of this decision be sent to the Superintendent Central

Jail Tihar to be made available to the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE May 10, 2010 mm/mr