Mahender Singh vs State
2010 Latest Caselaw 2615 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment Reserved on : 04th May, 2010
%                        Judgment Pronounced on : 17thMay,2010

+                       CRL. A. No. 1025/2008


        MAHENDER SINGH                           ..... Appellant
                     Through:       Ms.Ritu Gauba, Advocate

                    versus

        STATE                                   ..... Respondent
                         Through:   Ms.Richa Kapoor, APP

         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?

SURESH KAIT, J.

1. Accepting the testimony that the deceased made a

dying declaration inculpating the appellant and the evidence

of the presence of the appellant at the place where the crime

was committed, vide judgment and order dated 16.03.2007,

the appellant has been convicted for the offences punishable

under Section 302 IPC and Section 380 IPC.

2. We shall be noting only such evidence as is

required to be discussed by us and would be eschewing

reference to the other evidence.

3. In holding that the presence of the appellant at the

house stands established, the learned Trial Judge has heavily

relied upon the report of the finger print expert as per which

one of the three chance prints lifted from the scene of the

crime matched that of the appellant. We are not noting the

evidence led on the said aspect for the reason the sample

finger print impressions from the appellant were taken without

the permission of the competent Court and without the

appellant being identified as per Section 5 of the Identificaiton

of the Prisoner's Act 1920. This evidence is clearly

inadmissible in view of the law laid down by the Supreme

Court in the decisions reported as AIR 1980 SC 791 State of

U.P. vs. Ram Babu Mishra, 1994 (5) SCC 152 Sukhwinder Singh

& Ors. vs.State of Punjab and AIR 2003 SC 4377 State of

Haryana vs. Jagbir Singh & Ors.

4. It is not in dispute that in different portions of the

same building, in one portion resided the appellant, in the

other resided his brother and the deceased and in the third

resided his parents. The deceased suffered a homicidal death

in the night of 28/29.11.2004 in a room which was in the

portion of the house occupied by the deceased and her

husband and the post-mortem report Ex.PW-11/B clearly

establishes that the homicide was murder keeping in view the

injuries on her person. Relevant would it be to note that as per

report Ex.PW-11/B, the ten incised and penetrating wounds on

the body of the deceased were opined to be the possible result

of use of the knife which was got recovered by the appellant

after he was arrested.

5. On 29.11.2004, DD No.5, Ex.PW-22/A, was recorded

at Police Post Jharodha, under jurisdiction of PS Timarpur at

3:20 hours recording that at House No.2819, Gali No.70-B,

Sant Nagar a person had been stabbed with a knife. On

receiving DD No.5, SI Arvind PW-23 accompanied by Ct.Joseph

PW-24 proceeded to the spot where they found that ASI

Ramesh Chand PW-17 and Ct.Satbir Singh PW-19 were already

there. They went to ground floor of the house where they

found a dead body of a lady on the floor having multiple sharp

edged wounds on face, neck, leg and thighs. In the same

room, one TV, one fridge and other household articles were

lying. On enquiry they learnt that the dead body was of Bharti,

wife of Diwan Singh PW-4. Diwan Singh was also present at

the spot along with his father Mohan Singh PW-6 and mother

Nandi Devi PW-7. In the meanwhile SHO Inspector Bir Singh

PW-25 also reached there.

6. Inspector Bir Singh PW-25 recorded the statement

Ex.PW-4/A of Diwan Singh who stated as under:-

"I work with Royal Palace, Vijay Nagar, Delhi as a waiter. My duty hours are mostly during night time. I normally return to my house around 2-3:00 Hrs. in the morning. On 28.11.2004 I left the house at 9:30 in the morning and returned back from the duty around 3-3:15 Hrs. I saw the gate of my portion open. My wife was lying on the floor in a pool of blood. Her salwar was downward. I put the salwar upwards and tied the string. I called my father and mother who immediately reached there. I phoned at No.100. At that time my wife was breathing. My father administered water to my wife. On his asking as to what happened, Bharti replied „Muniya had come‟, „Muniya had come‟ and thereafter she left her breath. That Muniya is the nick name of my younger brother who is 25-26 years old. He is unmarried and is unemployed for the last 3-4 months. He is habitual of liquor. Presently, he is not in the house. I suspect that this crime has been committed by my brother Mahender at about 1‟O Clock in the night. My neighbour had seen my brother entering in his portion where the dead body was found. The bangles were found in a broken condition. Near the bed cigarette butts were lying and adjacent to the room which is inner side, one tin kanastar in which my wife used to keep some money and some jewellery including one small golden chain. The above said articles were missing from the said tin kanastar."

7. Inspector Bir Singh PW-25 made an endorsement

and prepared the rukka and sent the same through Ct.Satbir

Singh PW-19 for registration of the FIR.

8. At the police station, as deposed to by ASI Chander

Pal PW-3 on 29.11.2004 at about 4:45 AM he received rukka

from Ct.Satbir PW-19 and he recorded the FIR Ex.PW-3/B.

9. Kuldeep Singh PW-2 deposed that on 29.11.2004 at

about 5:45 PM he was coming from village Jharoda. When he

reached near Nala, Adarsh Nagar by-pass, some police officials

requested him to join the investigation. One public person was

also there whose name he came to know thereafter as

Mahender @ Moni who was in custody of police. The police

told him that Mahender had committed murder of his bhabhi.

Mahender was wearing blood stained jeans pant, yellow shirt

and one black jacket. Personal search of Mahender was

conducted in his presence at which a sum of Rs.5950/-, some

jewellery articles including two pajeb pairs, one heavy and one

light, one gold chain and six small karas of child were

recovered and were seized vide memo Ex.PW-2/A. Police had

also collected the clothes of Mahender including his under

garments which he was wearing at the time of his arrest vide

memo Ex.PW-2/B. Mahender was arrested as recorded in the

memo Ex.PW-2/C and made a disclosure statement Ex.PW-2/G.

He led them to a vacant plot opposite house No.31/135 in Sant

Nagar area. From within the bushes he took out a knife which

was blood stained. The knife was taken into possession vide

memo Ex.PW-2/F. During cross-examination he admitted

staying opposite the house of the father of the deceased.

10. Diwan Singh PW-4, the brother of the appellant

resiled substantially from his statement Ex.PW-4/A

notwithstanding having admitted signed the same at point 'A'.

He stated that his wife was in no condition to speak when he

saw her. He was declared hostile and was cross-examined by

the learned A.P.P.

11. On being cross-examined by the learned APP he

admitted that the pet name of his brother Mahender is Muniya.

He further stated that the appellant was a bachelor and was

jobless for the last 3-4 months as he had met with an accident.

He admitted that the police recovered cigarette butts lying

around the Kanastar and also seized the Kanastar. He also

admitted that the piece of broken glass bangles of his wife

were also collected by the police from the spot and that his

father-in-law Manohar Lal PW-1 also reached at his house on

the same day. He further stated that the appellant was

arrested next day i.e. on 29.11.2004 from the Ring Road in the

area of Jharoda and that he called the police from his

telephone No.55365126. He also admitted that he had

identified the appellant when he was arrested and that the

appellant was interrogated by the police and his disclosure

statement is Ex.PW-2/G. He further admitted his signatures on

the sketch of knife Ex.PW-2/E. He also admitted that at the

time of arrest, the appellant was wearing check shirt, pant and

jacket and that the police seized the underwear, banyan, shirt,

pant and jacket of the appellant vide memo Ex.PW-2/B. He

further stated that his wife used to keep jewellery items in

Kanastar. He admitted that he was the first person who had

seen the dead body of his wife and also the first to inform the

police. The family members of his in-laws reached at the spot

next day morning. He denied the suggestion that at the place

of incident three glasses were lying but voluntarily he stated

that a number of tumblers made of glass and steel were there.

He denied that the jewellery shown as recovered from the

pocket of the appellant when he was apprehended and as

entered in the memo Ex.PW-2/A was recovered from the

pocket of the appellant and claimed that the police took it from

his house.

12. Smt.Murshida Begum PW-5 deposed that she was

staying in front of the house of Diwan Singh PW-4. She came

to know about the death of deceased Bharti in the morning

when she woke up after hearing the noise. As she was resiling

from her statement recorded under Section 161 Cr.P.C. she

was declared hostile and was cross-examined by the learned

APP. She denied that she woke up at midnight to go to the

toilet. She denied having seen the appellant at the door of the

house of Diwan Singh.

13. Mohan Singh PW-6, the father of the appellant

deposed that Diwan Singh PW-4 is his only married son. Bharti

was the wife of Diwan Singh. She was living with them. Diwan

Singh was employed as a waiter in marriage parties. Whereas

the appellant was employed in Taj Mahal Hotel but due to

accident in July, 2004, he was without work and was staying at

house only. Sometimes the appellant used to consume liquor

and for buying liquor he was taking money either from him or

from his wife. His son Diwan Singh returned from his work in

the night of 28/29.11.2004 and woke him up around 3:30 AM

midnight. He saw Bharti was lying in pool of blood. His son

Diwan Singh PW-4 informed the police. When he saw Bharti,

she was dead. He stated that the appellant was also present

when he came to the room of Bharti. Since he did not support

the case of the prosecution he was declared hostile and was

cross-examined.

14. Cross-examined by the learned APP he stated that

the case has been registered on the statement of his son

Diwan Singh PW-4. Police came within 15 minutes of the call.

All family members were present there except Mahender

appellant. He denied having any knowledge of Murshida

Begum making any statement to the police on the intervening

night of 28/29.11.2004 at about 1:00 AM in which she said that

she saw the appellant entering the portion of the house of

Diwan Singh PW-4, the husband of the deceased. He admitted

that the appellant is known by the pet name of Muniya but

denied that his daughter-in-law told him that Muniya had

come.

15. Nandi Devi PW-7, the mother of the appellant also

turned hostile and did not support the case of the prosecution.

16. ASI Ramesh Kumar PW-17 and Ct.Satbir Singh PW-

19 deposed of being present at the spot when Insp.Bir Singh

conducted the proceedings after they all reached on receiving

information of the crime. They proved the various exhibits

which were recovered from the spot. SI Arvind PW-23

corroborated their testimony in respect of the spot

proceedings and additionally deposed that the appellant was

apprehended at Y point, Hardev Nagar on being identified by

Diwan Singh. In his formal search, from his left pocket a sum

of Rs.5950/- was recovered along with some jewellery items

including one gold chain, two pair of pajeb, five bangles, out of

which two pair were similar and one bangle was different. On

having seen the same Diwan Singh identified the same as the

one kept in tin kanastar in the room. Cash recovered was also

the part of the amount in kanastar. These articles were sealed

in a parcel with the seal of 'AK' and were seized vide memo

Ex.PW-2/A. At the time of arrest of the appellant one public

person Kuldeep Singh PW-2 was also joined in the proceedings.

The clothes of the appellant were having blood stains. The

clothes which the appellant was wearing include black colour

jacket, one check shirt, one blue colour jean, baniyan and

underwear. All the clothes were sealed in a pullanda with the

seal of 'AK' and were seized vide memo Ex.PW-2/B. The

appellant made a disclosure statement which is Ex.PW-2/G. In

pursuance of his disclosure statement, he got recovered a

blood stained knife from the bushes at Gali No.31 near to his

house. The knife was sealed with the seal of 'AK' and taken

into possession vide memo Ex.PW-2/F.

17. Insp.Bir Singh PW-25 the IO of the case deposed

that on 29.11.2004 he received a wireless message regarding

lodging of DD No.5. He along with his staff reached at the

spot. He found SI Arvind PW-23 along with other staff over

there. He saw the dead body of a female lying on floor in a

pool of blood in the first room after entering through the Iron

Gate. The body was having multiple sharp edged wounds on

face, neck, legs and thighs. One Diwan Singh PW-4, husband

of the deceased on inquiry stated that when he returned from

his job at about 3:20 AM he saw that the gate was opened and

Bharti was in a pool of blood. The string of salwar was open

and it was under down up to her knee. Her kameez was on her

face. He corrected her clothes. Tied the string of her salwar.

He disclosed that at that time she was alive and on enquiry

she disclosed to Diwan that Muniya had come. Diwan Singh

PW-4 further disclosed that Muniya is the nick name of his

brother Mahender. He further deposed that in the first room

where the dead body was lying there was a bed having bed

sheet with blood stains. One TV, fridge and other household

articles were lying there. After crossing the said room he find

that there was one more room behind the corridor. There was

one bed lying there having a blood stained bed sheet and

blood stained mattress. He saw broken pieces of bangles of

green and orange colour scattered on the bed. One cigarette

butt was lying on the right side of the bed. One tin kanastar

having a tilted lid but lock intact was also lying in that back

room and near that one cigarette butt was lying. Diwan Singh,

husband of the deceased disclosed that they used to keep

cash and jewellery in the tin kanastar and Diwan Singh

suspected his brother Mahender for committing the offence.

He recorded the statement of PW-4 Diwan Singh. Rukka was

sent on the statement of Diwan Singh through Ct.Satbir Singh

and the FIR was registered Ex.PW-3/B. At about 4:30 AM crime

team along with photographer reached at the spot. The finger

print expert was also with the crime team. The photographer

took the photographs Ex.PW-10/A-1 to A-13. During the course

of investigation they found one glass tumbler having blood

stains on it and some finger print impressions. The said glass

was lying in between bed and wall in the back room. Chance

prints were lifted from the glass tumbler. The same was

sealed with the seal of 'BS' in a cardboard box. The report of

lifting chance prints is Ex.PW-9/A. He collected the blood

sample from the spot and also collected blood stained earth

and earth control and sealed it with the same seal. He also

sealed the bed sheet from the first room and bed sheet and

mattress from the other room. Cigarette butts were also

sealed. Tin kanastar was also taken into possession. Broken

pieces of bangles were sealed. All the above sealed articles

were seized vide memo Ex.PW-4/B. He prepared the site plan

Ex.PW-25/C. Dead body was shifted to mortuary. Ct.Abdul

Karim handed over to him one Mangal Sutra, one pair of tops,

one ring, one pair of pajeb, one nose pin, one pair of chutki

which were seized vide memo Ex.PW-21/A. He also received

three sealed parcels bearing seal of 'KLS' which were seized by

him vide memo Ex.PW-23/A. He deposited the case property

in the malkhana. The same day he along with SI Arvind and

other staff came to the place of occurrence. PW-4 Diwan

Singh joined investigation with him. When they reached Y

point, Ganda Nala, Hardev Nagar, one public person Kuldeep

Singh PW-2 also joined them voluntarily on his request. At

about 6:00 PM the appellant was seen coming from the side of

Sant Nirankari Ground. Diwan Singh PW-4 identified him.

Accordingly he was apprehended. He was wearing black

jacket, yellow check shirt, one jean, one bainyan and one

underwear. The shirt, jean pant and baniyan were also having

blood stains. Upon search of the appellant a sum of Rs.5950/-

and one gold chain, 5 silver karas of child and one pair of

pajeb were recovered from inside the pocket of the jacket.

These articles were identified by Diwan Singh PW-4 as of her

daughter and were seized vide memo Ex.PW-2/A. The clothes

which the appellant was wearing were sealed with the seal of

'AK' and seized vide memo Ex.PW-2/B. On interrogation the

appellant made disclosure statement Ex.PW-2/G. His personal

search was carried out. Opposite to the house of the

occurrence from the vacant plot, a blood stained knife was got

recovered from the bushes at the instance of the appellant.

The knife was seized vide memo Ex.PW-2/F. He sent the

various exhibits for serological examination and received the

report Ex.PW-25/E.

18. The report Ex.PW-25/E reveals that the parcel 12

contained Ex.12a one shirt, Ex.12b one jeans, Ex.12c Baniyan,

Ex.12d underwear and Ex.12e Jacket. Out of the above five

exhibits Ex.12a, Ex.12c and Ex.12d were got detected with

human blood of group 'O' which also happened to be that of

the deceased. Whereas, on Jacket Ex.12e human blood was

found but blood group could not be determined. On the

weapon of offence which is Ex.13 human blood of group 'O'

was detected. On Ex.6 tumbler, human blood was detected

but the blood group thereof could not be determined. There

was no reaction on Ex.3 cigarette butts. No blood was

detected on Ex.3 therefore no reaction was there.

19. In the statement under Section 313 Cr.P.C. which

was recorded wherein the appellant has denied all the

incriminating evidence put forth to him. But in the answer to

the question No.15 he stated as under:-

" Q.15 It is in evidence against you through the statement of PW-6 that you were present in the house with him when he came to the room of Bharti. What do you have to say ?

Ans. It is incorrect. I was not present in the house. I had gone to my village at Almoda."

20. While answering the question No.88 he stated as

under:-

"On 29.11.2004 I returned from my Village Almoda from a bus. I left the bus at Buradi Bypass and from there I was walking down to the side of my house. When I reached near Hardev Nagar I found police there. The apprehended me. They brought me to my house. I was disclosed about the killing of my bhabhi. They inquired from where I was coming. They gave me water to drink. Then they inquired from me as to who is involved in the occurrence. I expressed my ignorance. I wanted to meet my parents. I was told that all of them are at PS. I was threatened that if I accept the blame of this case they will be let off. The police persons told me that even they are not aware about the actual culprit. I was told that someone from us would have to take the blame otherwise all of us would be sent to jail. I was taken to the room of my brother where blood was lying on the floor. I was asked to dip my hands in that blood and after the impression of that blood stained was put on my cloth. This all I have to say. I am innocent. I have no role. I have been falsely implicated. No recovery has been effected at my instance. No knife was got recovered at my instance."

21. In answer to question No.63, he denied any

recovery got affected from him while in answer to question

No.66 he admitted that his wearing clothes were seized

afterwards. In answer to question No.18, he admitted that his

nick name is Muniya.

22. It was urged before us that the FIR was ante timed

inasmuch as there is no proof when copy thereof was delivered

to the Magistrate.

23. Since there is no eye-witness and the question of

ante timing the FIR to squeeze in or plant a witness does not

arise, we hold that it hardly matters even if the FIR was ante

timed; we specifically note that when we repeatedly asked

learned counsel as to in what manner she intends to show to

us prejudice caused on account of FIR being ante timed,

learned counsel could show none.

24. The plea that from the post-mortem report of the

deceased it is apparent that so badly cut was her neck that

there was no possibility for her to speak and the claim of the

prosecution that the deceased spoke shows that the case is

false, needs to be noted and rejected for the simple reason

this was what was projected by the prosecution since in the

statement Ex.PW-4/A i.e. the complaint Diwan Singh so stated,

but while deposing in Court he did not stand by said version.

The learned Trial Judge has not been very clear when we read

the impugned decision whether he has relied upon the

contents of the statement Ex.PW-4/A in their entirety for the

reason in para 23 of the decision we find an inchoate

discussion on the said issue with a finding that with passage of

time Diwan Singh may have been swayed in favour of his

brother. But noting that while putting the incriminating

circumstances to the appellant, no dying declaration has been

put as an incriminating circumstance we hold that it would be

impermissible to use the projected dying declaration made by

the deceased as indicative of the guilt of the appellant.

25. The issue has to be decided with reference to two

facts which have been projected against the appellant. The

first is his presence in the house in the night in question and

his absconding therefrom and his being arrested the next day

with the jewellery of the deceased.

26. As regards the recovery of the jewellery, since the

husband of the deceased who happens to be the brother of the

appellant has turned hostile, we have to consider the effect of

Kuldeep Singh PW-2, a witness to the recovery, who has

successfully supported the case of the prosecution, being a

person who resides in the neighbourhood of the father of the

deceased as also with reference to the fact that the police

officers associated with the recovery have stood their ground.

27. Diwan Singh resiling from his statement Ex.PW-4/A

can certainly be attributed to his relationship with the accused

who is his brother. But, Diwan Singh having accepted his

signatures at point 'A' on the statement Ex.PW-4/A, requires us

to infer that indeed some jewellery belonging to the deceased

was stolen as it is specifically recorded to said effect therein.

It is apparent that Diwan Singh's later utterance that the police

had removed the jewellery is false. We note that no

suggestion has been given to any police officer who had

reached the scene of the crime that the IO had removed any

jewellery belonging to the deceased. The projected stand of

Diwan Singh and his father that the appellant was present in

the house when the police came is contrary to their

statements recorded contemporaneously by the police. None

of the police officers who reached the house when the crime

was reported have been suggested that the appellant was

present in the house. Even the appellant has not so stated

when he was examined under Section 313 Cr.P.C. He has

taken a vacillating stand evidenced by his answers to question

No.15 and 88 and as noted above.

28. It is apparent that the appellant was found

absconding from his house and was apprehended later on. No

doubt PW-2 resides in the neighbourhood of the father of the

deceased but this could only mean that we have to carefully

weigh his testimony and which we do and find complete

corroboration through the mouth of the police witnesses. The

recovery of the jewellery from his pocket, which jewellery he

has not claimed to be his, and even his brother Diwan Singh

has not denied the jewellery not belonging to his wife (he has

only claimed that the police planted it on his brother, which we

have already opined to be a false statement) is highly

incriminating in the light of the statement Ex.PW-4/A made by

Diwan Singh which is the complaint pursuant whereto the FIR

has been registered.

29. The appellant claims to have been on his return

from Almora when he was arrested in the morning of

29.11.2004. The appellant has led no evidence to show that

he was ever in Almora. The prosecution has successfully

proved that the clothes which were seized from the person of

the appellant and which he was wearing when he was

apprehended were stained with human blood of the same

group as that of the deceased. This is further incriminating

evidence against the appellant. It has also to be factored that

the knife got recovered by the appellant was also stained with

human blood and has been opined to be the possible weapon

of offence.

30. To summarize, we hold that the appellant not

establishing the plea of alibi, notwithstanding Diwan Singh and

his father turning hostile and unfortunately the report of the

finger print expert requiring to be excluded, from the fact that

jewellery of the deceased was reported to be stolen by her

husband Diwan Singh which jewellery was recovered from the

appellant and his clothes were stained with human blood of

the same group as that of the deceased, we hold that there is

enough evidence to hold that the appellant was present in the

house where the deceased was murdered. The appellant

absconded at an unearthly hour and was arrested a few hours

later with the jewellery of the deceased in his pocket and his

clothes found to be stained with human blood of the same

group as that of the deceased are sufficient circumstances

wherefrom the guilt of the appellant can be inferred.

31. The appeal is dismissed.

32. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent, Central Jail, Tihar

for being made available to the appellant.

(SURESH KAIT) JUDGE

(PRADEEP NANDRAJOG) JUDGE

MAY 17, 2010 'nks'