Suraj @ Kishan vs Suraj @ Kishan
2010 Latest Caselaw 2834 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                     {CRIMINAL APPEAL NO. 527 OF 2009}


                                        Judgment reserved on:12.5.2010
%                                      Judgment delivered on:31.5.2010


SURAJ @ KISHAN                                          . . . Appellant

                              THROUGH :     Mr. Bhupesh Narula, Advocate
                                            (DHCLSC)

                                  VERSUS

STATE                                                    . . .Respondent

                              THROUGH :     Mr.Lovkesh Sawhney, APP



CORAM :-


       THE HON'BLE MR. JUSTICE A.K. SIKRI
       THE HON'BLE MR. JUSTICE AJIT BHARIHOKE

       1.      Whether Reporters of Local newspapers 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?


A.K. SIKRI, J.

1. Appellant Suraj @ Kishan alongwith co-accused Arjun Mandal, Anil

Kumar Mandal and Santoshi Devi was tried for the offences of criminal

conspiracy, robbery and causing death of Ms. Chandra Kalra punishable under

Sections 120 B IPC, 302/34 and 394/120-B IPC. The Trial Court vide

impugned judgment dated 18th April, 2009 acquitted three accused persons

namely Arjun Mandal, Anil Kumar Mandal and Santoshi Devi. However, the

appellant Suraj @ Kishan is convicted under Section 394 read with Section 34

IPC and Section 302 read with Section 34 IPC. He is sentenced to undergo

imprisonment for life for the offence punishable under Section 302/34 IPC with

fine of Rs. 5000/- and in default of payment of fine, to undergo one year RI.

He is also sentenced to undergo RI for seven years for the offence punishable

under Section 394/34 IPC and also to pay fine of Rs. 5000/- and in default of

payment of fine, to undergo RI for a further period of one year. Feeling

aggrieved by the impugned judgment and order on sentence, the appellant has

preferred this appeal.

2. Briefly stated, the case of the prosecution is that on 9th January, 2002 on

receipt of DD no. 5A regarding murder at J-12/1, Rajouri Garden, SI Satish

Kumar alongwith Constable Sheikh Yakub reached at H.No. J-12/1, Rajouri

Garden. Inspector Ram Chander, Addl. SHO also reached there. The police

found a Maruti Zen Car parked at the gate of the house. The body of a female

i.e. Ms. Chandra Kalra, aged about 55-60 years was found lying in the car with

a muffler tied around her neck. Subhash Kalra (since deceased), husband of the

said lady was present there. His statement was recorded by the Addl. SHO.

3. Complainant Subhash Kalra stated to the police that on 9th January, 2002

at about 11.30 a.m. he had gone to the market with his driver Mukesh Kumar

(PW-1). When they returned at about 1.00 p.m. he found the door of his house

open, two hawai chappals were lying near the gate. When he entered the house

he noticed that the almirah in the room opposite drawing room was open. On

this, he entered the said room and found that even the other almirah was also

open. In the meanwhile, PW Mukesh Kumar followed him into the said room.

When he opened the door of the store room two persons came out of the store

and pushed him down. PW Mukesh Kumar tried to apprehend them. But they

went into the kitchen. He raised an alarm „chor chor‟. Both those persons then

came out of the gate of kitchen and tried to escape but PW Mukesh Kumar

managed to apprehend one of them with the help of public persons Kamal

Mathur and Shiv Kumar who also reached there. The name of the person who

was apprehended was revealed as Suraj @ Kishan. On further checking, the

body of Ms. Chandra Kalra was found in the bath room. Complainant further

stated that he immediately rushed Ms. Chandra Kalra to Kukreja Hospital in

his car where she was declared brought dead. Then he brought the dead body

back to his house. On checking, he found that a sum of Rs. 1.5 lacs and

jewellery was missing from the house. Even the jewellery of Ms. Chandra

Kalra was missing from her body. On the basis of said complaint Ex. PW-

21/A, formal FIR under Section 302/392/34 IPC was registered at Police

Station Rajouri Garden.

4. Two pairs of chappals which were found lying in front of the house and

a vegetable cutting knife found at the spot of occurrence were seized by the

Investigating Officer. Custody of the appellant Suraj @ Kishan was also

entrusted to the police. On interrogation, Suraj @ Kishan made a disclosure

statement wherein he disclosed that on 09.01.2002 at about 10.30 am, he along

with Arjun Mandal, his wife Santoshi and Anil Mandal reached at a park near

bus stand No. 2. Lambu also joined them. Arjun sent his wife Santoshi for

getting the door of the house opened. Anil was asked to stand outside the house

to keep a vigil. Arjun followed his wife inside the house. Thereafter, he and

Lambu also entered the house. Inside the house, a lady met them. Arjun and

Lambu demanded the keys from her but on her refusal, Arjun tied his muffler

around the neck of the lady and with the help of Lambu, dragged her in the

inner room and pressed her neck with the help of muffler and put her in the

bathroom. Then they took out the keys from her clothes and opened the

almirahs. Santoshi, wife of Arjun Mandal, fled away from the house. Lambu

and Arjun gathered the money and the goods in a plastic bag. Lambu then fled

away with the said plastic bag. While Suraj and Arjun were opening the lock of

the almirah of the store room, Subhash Kalra and his driver Mukesh reached

there and apprehended Suraj. Suraj further disclosed that the ladies chappal

lying near the gate were of Santoshi and the gents chappal were of Arjun.

During investigation, accused Arjun Mandal, Anil Mandal and Santoshi Devi

were arrested by the police. They also gave disclosure statements before the

police. Accused Arjun Mandal and his wife Santoshi were shown the chappals

lying in the Malkhana. Both of them were asked to wear the chappal. They

identified that the chappals belonged to them. Accused Arjun Mandal was

produced before the court for TIP but he refused to take part in the TIP.

Accused Ram Chander @ Lambu could not be arrested. Post mortem of the

body was conducted. On completion of investigation, charge sheet was filed

against accused Suraj, Arjun Mandal, Anil Kumar and Santoshi Devi. Accused

Ram Chander @ Lambu was kept in Colum No. 2. The prosecution has

examined as many as 21 witnesses to prove the charge against all the four

accused persons. The learned Addl. Sessions Judge has given the description of

the testimony of all these witnesses. It is not necessary to revisit the

statements of all of them all over again. We would, however advert to the

deposition of those witnesses who have bearing on the alleged guilt of the

appellant herein, on the basis of which he has been convicted, at the same time

we will also take note of the statements of some other witnesses which have

not been relied upon qua other accused persons leading to their statement have

bearing on the conviction of the appellant.

5. PW-1 is Mukesh Kumar. He is the driver of the complainant. He had

apprehended the accused Suraj at the spot. He identified accused Arjun Mandal

as the same person who had managed to escape from the spot.

6. PW-2 is Kamal Mathur. He deposed that in January, 2002 at about

12.30 . 1.00 pm, he was standing at the shop of Aggarwal Sweets belonging to

Shiv Kumar in DDA Flats, Rajouri Garden. On hearing the noise from the

house of Mr. Kalra, which was in front of the shop of Aggarwal Sweets, they

saw that driver Mukesh was grappling with some person. On seeing this, he

and Shiv Kumar reached there and apprehended the person, whose name came

to be known as Suraj. Meanwhile, many persons gathered at the spot and

someone informed the police. The police came at the spot. Suraj was handed

over to the police. This witness could not identify accused Suraj. The witness

was declared hostile and was cross examined by the learned Additional PP

with the permission of the court.

7. PW-6 is Shiv Kumar. He is the owner of Aggarwal Sweets, situated in

front of the house of the victim. He deposed that he was present at his shop

with Kamal Mathur, when he heard the noise of Chor. .. Chor. from the house

of Subhash Kalra. Mukesh, driver of Subhash Kalra was raising the alarm.

They reached at the spot. Mukesh was trying to apprehend one person who

was trying to escape from there. They helped Mukesh in apprehending that

person. He deposed that he does not remember the name of the person who was

apprehended by Mukesh with their help. He stated that he cannot identify the

accused if shown to him. The witness was declared hostile.

8. PW-8 is Constable Surender Kumar. He is the witness of investigation.

He accompanied Inspector Ranga, Additional SHO to the spot. He deposed

that a Maruti Car was standing in which there was dead body of a lady aged

about 55-60 years. One muffler was also found tied around her neck. He stated

that at the pointing out of Subhash Kalra, husband of the deceased lady, IO

inspected the house and it was noticed that two almirahs in room were lying

open and one almirah of the store room was also found open. He deposed that

one person Mukesh produced accused Suraj before the IO. Suraj was arrested

and his custody was handed over to Constable Yakub. He further stated that

IO had recorded the statement of Subhash Kalra and sent him to the police

station for the registration of the FIR.

9. PW-11 is Head Constable Sube Singh, MHCM, P.S. Rajouri Garden. He

proved the entries of Register No. 19 regarding the deposit of case property

and sending of parcels to FSL.

10. PW-16 is SI Satish Kumar. He deposed that on 09.01.2002 on receipt of

DD No. 5-A Exbt. PW-16/A, he along with Constable Sheikh Yakub reached

at the spot J-12/1, Rajouri Garden where a Maruti Zen car was parked

opposite the said house in which, the dead body of a lady aged about 55-60

years was present. There was a muffler around her neck and she was bleeding

from her mouth. In the meanwhile, Additional SHO Sh. R.C. Ranga also

reached at the spot. He conducted the inquest proceedings and thereafter

entered the house. The household articles were found scattered. Subhash Kalra,

his driver along with 2-3 persons were present inside the house. Subhash Kalra

told that the body was of his wife Chandra Kalra and that she was declared

dead by the doctor at the hospital. Subhash Kalra and his driver produced Suraj

@ Kishan. Thereafter, the statement of Subhash Kalra was recorded and Rukka

was prepared on the basis of which, FIR was registered. Crime Team was

called. One pair of ladies chappals and one pair of male chappals were seized

vide memo Ex. PW-1/A. One knife lying in the gallery was also lifted and its

sketch was 11 prepared vide memo Ex. PW-1/C. The knife was kept in a piece

of cloth and pullanda was prepared which was sealed with the seal of RC. The

sealed pullanda was seized vide memo Ex. PW-1/B. On interrogation, accused

Suraj @ Kishan had informed the IO that the male pair of chappals belongs to

Arjun Mandal while the female pair of chappal belongs to Santoshi Devi.

Thereafter, the disclosure statement of accused Suraj was recorded. The

statements of witnesses were also recorded. Accused Suraj was arrested. The

dead body was sent to mortuary for post mortem. Case property was

deposited in Malkhana. PW-17 is Inspector Devender Singh, Draftsman. He

had taken the notes and measurements of the site on the pointing out of

Inspector Ram Chander, IO of this case and then prepared the scaled site plan

Ex. PW-17/A. PW-18 is HC Veena Sharma, Duty Officer. She had recorded

the FIR Ex. PW-18/A and DD No. 9-A Ex. PW-18/B.

11. PW-21 Inspector Ram Chander, Additional SHO, Rajouri Garden is the

Investigating Officer. He, however, was wrongly numbered as PW-19 when

cross-examined by the learned defence counsel on 8th August, 2005. During

investigation, he had filed an application Ex. PW-21/K for seeking opinion of

the doctor who had conducted the postmortem examination as to whether the

ligature mark could be caused by the muffler found on the body of Chandra

Kalra. Dr. Manoj Nagpal gave his opinion which is Ex. PW-20/B. He had also

filed an application for the TIP of accused Arjun Mandal but accused Arjun

Mandal had refused to join the TIP. On 26.03.2002, he had sent four sealed

parcels containing one pair of ladies chappal and one pair of gents chappal and

foot prints of Santoshi Devi and Arjun Mandal to FSL, Malviya Nagar and the

report in this regard was obtained which is Ex. PX. He had also initiated

proceedings under Section 82/83 Cr. PC against accused Lambu @ Ram

Chander and got him declared Proclaimed Offender. On completion of

investigation, he prepared the charge sheet and filed the same in court for trial.

12. PW-20 is Dr. L.K. Barua from DDU Hospital. He deposed that on

10.01.2002, the postmortem on the body of Chandra Kalra was conducted by

Dr. Manoj Nagpal, who has left the services of the hospital and his present

whereabouts are not known. Doctor proved the postmortem report as Ex. PW-

20/A.

13. It is clear from the above that as per the prosecution, the appellant

herein was apprehended on the spot. In so far as other persons are concerned,

they were arrested subsequently on the purported disclosure statement of the

appellant that they were also involved in the said robbery and murder. It is

also the case of the prosecution that after the arrest of other three accused

persons, their respective statements were recorded which led to recovery of

certain articles. On that basis, they were roped in. Some persons who knew

them were also produced as witnesses. Main witness in this behalf was PW-3

Arjun Ram. He, however, did not support the prosecution case and was

declared hostile by the prosecution. Other witnesses qua the three accused

were mainly police witness who had arrested these three accused persons

and/or recorded their statements and/ or made recoveries pursuant thereto

and/or deposited/sent the recovered articles for examination to FSL. While

acquitting these three persons, the learned Addl. Sessions Judge discussed the

testimony of PW-3 and found that he had not supported the prosecution case

regarding the presence of accused Santoshi Devi at the spot. He also recorded

the finding that recovery of ladies chappals lying outside the house could not

be linked with Santoshi Devi. Qua Arjun Mandal, the learned Addl. Sessions

Judge further found that he was not apprehended at the spot and the only

evidence against him was of recovery of chappals and his identification which

were not proved and there were even contradictions in the statements of

prosecution witnesses in respect of the recovery of chappals of Santoshi Devi

or Arjun Mandal. Similarly there was no evidence at all to implicate accused

Anil Mandal. The learned Addl. Sessions Judge then reverts to the case set up

against the appellant herein. It was noted that the complainant Subhash Kalra

could not appear in the witness box because of his death.

14. PW-1 Mukesh Kumar has deposed that he was employed as a driver at

the house of Subhash Kalra since about one month prior to the incident.

Subhash Kalra was residing with his wife Smt. Chandra Kalra. On 09.01.2002

at about 11.00 am, he had gone to the market with complainant. At about 1.00

pm on their return to the house, Subhash Kalra got down from the car and

went inside the house. He found the gate of the house lying open. He further

deposed that on being called by the complainant when he went inside, he found

that the almirahs of the room of the house were lying open. The mattresses of

the bed were lying scattered and displaced. Two accused Suraj and Arjun

Mandal, who were hiding themselves behind the store, suddenly came out and

gave punch to Subash Kalra and tried to get inside the kitchen. PW-1 then

chased them inside the kitchen to apprehend them. However, accused Arjun

Mandal managed to escape but accused Suraj was apprehended and

overpowered. PW-1 further deposed that accused Suraj in order to free himself

from his clutches, dragged him towards the staircase. PW-1 then raised the

alarm and on hearing his alarm, PWs Shiv Kumar and Kamal Mathur came to

his help and with their help, accused Suraj was overpowered. PW-1 further

deposed that Smt. Chandra Kalra, wife of Sh. Subash Kalra was lying dead in

the bathroom with a muffler tied around her neck. He stated that after leaving

the accused Suraj with Shiv Kumar and Kamal Mathur, he and Subhash Kalra

along with 2-3 other persons took Smt.Chandra Kalra to Kukreja Hospital

where the doctor declared her brought dead. From the hospital, they came back

to the house with the body of Smt. Chandra Kalra. Thereafter, the police came

and did further investigation. In cross examination, he initially stated that he

had signed on blank papers but later clarified that he does not remember

whether these were written or blank documents. He could not answer the

question as to whether the statement of Subhash Kalra was recorded on that

day or not because he had slept in the car on that day.

15. The learned counsel of accused Suraj has argued that the testimony of

PW-1 is not believable. It is improbable that a person would go to sleep in the

car in which the dead body was lying. It has come in the testimony of the IO

that the body was sent to mortuary for postmortem examination. The body had

thus been removed from the car. It is usual for the drivers to sleep in the car.

Since the body had been removed from the car and sent to mortuary, it cannot

be said that PW-1 had slept in the car while the dead body was still there. It is

correct that PW- 1 could not tell as to whether the papers which were signed

by him were written or blank papers but that is not the circumstance which can

be regarded as sufficient to discard the testimony of PW-1 which has been

found to be cogent and straight forward.

16. PW-1 has proved the presence of accused Suraj @ Kishan at the house at

the time of his return from the market. He has also proved that accused Suraj

@ Kishan was apprehended at the spot itself with the help of PW-2 Kamal

Mathur and PW-6 Shiv Kumar. The argument of learned defence counsel is

that PW-2 and PW-6 are hostile and have not supported PW-1 on the point of

identity of accused Suraj @ Kishan. Merely because a witness is declared

hostile, his entire evidence does not get excluded or rendered unworthy of

consideration. PW-2 Sh. Kamal Mathur in his testimony has deposed that he

was standing at the shop of Aggarwal Sweets with its owner Shiv Kumar and

that on hearing the noise from the house of Mr. Kalra, which was just in front

of the shop of Aggarwal Sweets, they saw that driver Mukesh was grappling

with some person. He then reached at the spot with Shiv Kumar and

apprehended that person, whose name later on came to be known as Suraj, as

told by him. He further deposed that Suraj was later handed over to the police.

Although PW-2 could not identify the accused in court, but, he has deposed

that the name of the person who was apprehended by driver Mukesh with his

help, was Suraj. Similarly, PW-6 has also deposed that Mukesh was trying to

apprehend one person who was trying to escape but Kamal Mathur helped him

in apprehending that person. PW-2 and PW-6 could not identify accused Suraj

but have supported the version of PW-1 Mukesh regarding the arrest of Suraj

from the spot. The presence of accused Suraj at the spot has also been proved

by the IO and other police witnesses who reached at the spot on getting the

information. They identified accused Suraj as the same person who was handed

over to them by PW-1 Mukesh. Hence from the testimonies of PW-1 Mukesh

and the other witnesses, it is conclusively proved that accused Suraj was

apprehended from J-12/1, Rajouri Garden by PW-1 Mukesh Kumar with the

help of PW-2 and PW-6. It is also proved that accused Suraj had tried to fled

away from the spot on the arrival of Subhash Kalra and Mukesh Kumar at the

house from the market.

17. The other circumstances which the prosecution has proved through the

testimony of PW-1 are that the door of the house was lying open, the goods

were lying scattered and the almirahs in the rooms were lying open. It has also

come in the evidence of PW-1 that cash amount of Rs. 1.50 lakhs, ornaments

and the ornaments worn by deceased, were stolen away. Another important

circumstance that has come up in the cross examination of PW-1 is that on the

day of incident, Smt. Chandra Kalra was alone in the house and there was no

other servant present there.

18. On the basis of aforesaid evidence, as analyzed by the learned trial court,

complete chain was formed implicating the appellant as much as;

(a) The prosecution had proved that the deceased was all alone at the house;

(b) The accused appellant with one other was present in the home and they tried to escape on the arrival Subhash Kalra and his driver Mukesh Kumar;

(c) He was over powered by Mukesh Kumar at the spot with the help of Kamal Mathur and Shiv Kumar;

(d) Door of the house were lying open and goods were lying scattered, almirahs were also found open;

(e) It was proved that Rs. 1.5 lacs and jewellery was also missing from the house;

(f) The appellant had not offered any explanation for his presence at the house of Subhash Aggarwal at the relevant time.

19. The learned Addl. Sessions Judge thus concluded that the prosecution

has succeeded in establishing the incriminating circumstances which taken

together form a chain of evidence so complete as to lead to irrefutable

conclusion of guilt of the appellant leaving no reasonable ground for conclusion

consistent with the innocence of the appellant and established that in all human

probability, the appellant was a party to the robbery committed at J-12/1,

Rajouri Garden and the murder of Ms. Chandra Kalra.

20. Learned Counsel for the appellant has questioned the finding of the trial

court in recording his conviction and contended that the guilt of the appellant

was not proved beyond reasonable doubt because of following reason:

(i) As per the version of the prosecution, the appellant was in the custody of PW-2 and 6 for half an hour still they did not identify the appellant in the court;

(ii) Statement of PW-1 was recorded at 2.00 p.m. but the FIR was registered only at 4.30 p.m. which throws out on the veracity of the statement.

(iii) Learned Counsel pointed out that PW-1 in his deposition had stated that he knew Arjun Mandal and appellant even prior to the incident. However, no such statement was made by him when his statement was recorded by the police under Section 161 of the Cr.P.C. where he stated otherwise.

(iv) The car in which the body of the deceased found lying was not made the case property. Further as per the prosecution the driver was sleeping in the car and, therefore, his testimony was to be disbelieved.

21. We find no merit in any of the aforesaid arguments. In so far as PW-2

and PW-6 are concerned, they had turned hostile. At the same time, as taken

note by the learned Trial Court also, PW-2 in his testimony has deposed that

he was standing at the Aggarwal Sweets with its owner Shiv Kumar and on

hearing the noise from the house of Subhash Kalra, which was just in front of

shop of Aggarwal Sweets, they saw that driver was grappling with some

person. Therefore, they have admitted regarding the incident having been

taken place. They have turned hostile only to the extent that they did not

identify the appellant in the Court. However, PW-1 has categorically stated

that the person with whom he was grappling was none else but the appellant.

22. The statement of PW-1 is reliable and there is hardly anything worth

the name pointed out by the learned counsel for the appellant to shake the

testimony of PW-1. Therefore, merely because of PW-2 and PW-6 could not

identify the appellant would be of no significance, more so, when they have

supported the version of PW-1 regarding the arrest of appellant from the spot.

It is also to be borne in mind that the presence of the appellant at the spot was

also proved by IO and other police witnesses who reached at the spot on

getting the information. It is conclusively proved that the person who was

apprehended at the spot was the appellant.

23. Likewise, not much noise can be made on the facts of this case in respect

of time gap between recording of statement of PW-1 and registration of FIR.

Statement was recorded at 2.00 p.m. and FIR was registered at 4.30 p.m. Once

we find that the statement of PW-1 was otherwise trustworthy and reliable

and withstood the strict test of cross-examination, the difference of 2 ½ hours

in registering the FIR would not be of much consequence. Similarly, simply

because PW-1 did not state in his statement recorded under Section 161

Cr.P.C. that he knew Arjun Mandal and the appellant prior to the incident, one

cannot throw away his testimony as nor reliable. This aspect is not very

material in proving the case of the prosecution. Even if we presume that PW-

1 has made minor improvement in his testimony recorded in the Court by

stating the he knew the appellant even prior to the incident, though, it was not

so stated in his statement recorded under Section 161 Cr.P.C. that by itself

would not be a circumstance to discard his entire testimony. It is well known

that the witnesses have sometimes tendency to make improvements or do the

padding. However, in order to find out whether the witness is truthful or not,

the entire testimony alongwith cross examination is to be analyzed and if the

witness is found truthful otherwise, such minor discrepancies in the statement

are to be ignored.

24. Argument that car was not made the case property and that PW-1 was

found sleeping in the car and, therefore, his testimony should not be believed

is again of no consequence. The learned Addl. Sessions Judge has dealt with

this aspect in substantial detail, as discussed above in the following manner:-

"The learned counsel of accused Suraj has argued that the testimony of PW-1 is not believable. It is improbable that a person would go to sleep in the car in which the dead body was lying. It has come in the testimony of the IO that the body was sent to mortuary for postmortem examination. The body had thus been removed from the car. It is usual for the drivers to sleep in the car. Since the body had been removed from the car and sent to mortuary, it cannot be said that PW-1 had slept in the car while the dead body was still there".

Further, there was no occasion to make the car as the case property

when it had no relevant to the charge framed and with the prosecution case.

25. We thus do not find any merit in this appeal as we are of the view that

in the basis of evidence produced by the prosecution, the charge of murder

under Section 302 IPC as well as charge under Section 394 IPC has been

proved against the appellant beyond reasonable doubt. The appellant was,

therefore, rightly held guilty for the offence punishable under Section 302/394

IPC. Appeal is accordingly dismissed.

(A.K.SIKRI) JUDGE

(AJIT BHARIHOKE) JUDGE May 31, 2010 skb