Hari Kishan Mandal vs State
2013 Latest Caselaw 3430 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                         Judgment Reserved on: July 25, 2013
%                      Judgment Delivered on: August 05, 2013

+                        CRL.APPEAL NO.306/1998

      HARI KISHAN MANDAL                               ..... Appellant
               Represented by:        Ms.Saahila Lamba, Advocate
                                      versus
      STATE                                           ..... Respondent
                    Represented by:   Mr.Pawan Sharma, Standing Counsel
                                      (Crl.)
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO

PRADEEP NANDRAJOG, J.

1. Appellant Hari Kishan Mandal alongwith co-accused Ram Kishan Mandal and Jai Prakash Mehto were sent to trial in FIR No.82/1993 P.S. Chitranjan Park; and the fate of the three was decided in Sessions Trial No.30/1996. Whereas Hari Kishan Mandal was charged for the offence punishable under Section 302/392/394 IPC, the other two were charged for the offence punishable under Section 411 IPC i.e. dishonestly receiving stolen property. Vide impugned judgment and order dated September 09, 1997, Hari Kishan Mandal has been convicted for the offence of murder and voluntarily causing hurt during robbery the other two have been acquitted. The State has not challenged the acquittal of Ram Kishan Mandal and Jai Prakash Mehto and thus qua them it would be sufficient for us to note that the reason for the acquittal was unsatisfactory evidence led pertaining to alleged recovery of the stolen property from them. As regards Hari Kishan Mandal the conviction is based upon the last seen theory which is based upon the testimony of Smt.Santra PW-1, Ms.Rita Khosla PW-2, Rajesh

Kohli PW-4 and Roshan Lal Kohli PW-22 who were the part-time domestic help in the family of the deceased and the daughter, son and husband respectively of the deceased; and the recovery of stolen property from the person of Hari Kishan Mandal and on his disclosure statement keys of the house where the murder took place being recovered.

2. It is the case of the prosecution that Hari Kishan Mandal was employed as a full time domestic help by Roshan Lal Kohli and his wife Vidya Rani (the deceased), who were residing on the ground floor of House No.M-23, Greater Kailash, Part-II, New Delhi and Smt.Santra PW-1 was a part-time domestic help who used to wash the utensils and clean and mop the floor of the house. On the unfortunate day when Vidya Rani was found dead and her body tied with a rope i.e. on April 29, 1993, the house was found ransacked and Hari Kishan Mandal was found absconding. At the time of his arrest the personal search of Hari Kishan Mandal yielded a gold necklace with a pendent (Ex.P-12) which was identified to be the necklace and the pendent of the deceased by her daughter Ms.Rita Khosla PW-2. As per the prosecution Hari Kishan Mandal got recovered a bunch of keys (Ex.P-13) pursuant to his disclosure statement which were identified by Ms.Rita Khosla as the keys of the family household. We need not note the case of the prosecution vis-a-vis the two co-accused who were charged for the offence punishable under Section 411 IPC on account of the fact that both have been acquitted by learned Trial Judge, disbelieving evidence led against them.

3. It all commenced when DD 13-A, Ex.PW6/A, was recorded at P.S.Chitranjan Park on an informant informing that the family members of the residents of House No.M-23, Greater Kailash, Part-II, New Delhi were standing outside the house which was locked and the lady of the house was

missing. SI Anil Kumar PW-19 accompanied by Ct.Jag Ram PW-14 left the police station and reached the house which was locked. They broke open the lock in the presence of Rajesh Kohli PW-4, the son of the deceased, Rita Khosla PW-2, the daughter of the deceased and Roshal Lal Kohli PW-22, the husband of the deceased and found the deceased in the box of the double bed, tied with a rope and with ligature marks on the neck. The house had been ransacked. Recording the statement Ex.PW-4/A made by Rajesh Kohli PW-4 at 9.30 PM and making an endorsement Ex.PW-19/A thereunder SI Anil Kumar PW-19 sent the rukka through Ct.Jag Ram PW-14 for FIR to be registered and HC Surinder Pal PW-6 registered the FIR for offence of murder and robbery.

4. In the statement Ex.PW-4/A Rajesh Kohli informed that Hari Kishan Mandal was a domestic help and since Hari Kishan Mandal was found absconding the finger of suspicion pointed towards him, but what happened the next day after would be noted by us after noting the investigation at the scene of the crime on the day when the crime was detected and proceedings conducted in the house.

5. Inspector Baljeet Singh PW-20 took over the investigation after the FIR was registered and summoned a finger print expert who lifted three chance prints from the spot as deposed by Inspector Baljeet Singh. Immediately thereafter Inspector Ajeet Singh PW-23 took over the investigation and seized the dead body and prepared the rough site plan Ex.PW-23/A and prepared the inquest papers Ex.PW-23/B and sent the body to the mortuary of AIIMS for post mortem. Statements of the husband of the deceased and part-time domestic help Santra under Section 161 Cr.P.C. were recorded.

6. Post mortem was conducted by Dr.Rajesh Kumar PW-12 who prepared the report Ex.PW-12/A as per which ligature marks were detected on the neck of the deceased and cause of death was asphyxia.

7. Hari Kishan Mandal could not be apprehended for over four and a half months. It was only on September 22, 1993 (date of offence being April 29, 1993) that appellant was apprehended at Muzaffarpur Bus Stand by Inspector Raj Singh PW-24 who claims that from the personal search of Hari Kishan Mandal the gold chain and pendent Ex.P-12 was recovered from the pocket, and which pendent was identified during Test Identification Proceedings conducted before P.K.Saxena PW-17, then posted as a Metropolitan Magistrate at Patiala House Courts as recorded in Ex.PW-17/B and Ex.PW-17/C. Hari Kishan Mandal made a disclosure statement to SI Rai Singh in the presence of Inspector Aqil Ahmed PW-18 and pursuant thereto got recovered the bunch of keys Ex.P-13 from a wooden box where the meter box was affixed at the ground floor of House No.M-23, Greater Kailash, Part-II, New Delhi which were identified as the keys of the household by Rita Khosla the daughter of the deceased.

8. The learned Trial Judge has held that the incriminating circumstance of Ex.P-12, belonging to the deceased, being recovered from Hari Kishan Mandal and he having got recovered the bunch of keys Ex.P-13 which were identified as the keys of the household by Rita Khosla PW-2 were relevant and material evidence to nail the guilt of Hari Kishan Mandal, in conjunction with the evidence of Hari Kishan Mandal being last seen in the house with the lady of the house and Hari Kishan Mandal absconding from the house.

9. Before we note the evidence pertaining to last seen, we would like to note that the learned Trial Judge has acted mechanically in believing

recovery of Ex.P-12 from the person of Hari Kishan Mandal when he was apprehended, as also recovery of Ex.P-13 pursuant to Hari Kishan Mantal disclosure statement. The learned Trial Judge has overlooked the fact that the date of the crime is April 29, 1993 and Hari Kishan Mandal was apprehended on September 22, 1993 i.e. after four months and twenty four days. It is difficult to believe that even after such long interval of time Hari Kishan Mandal would be carrying a gold chain and a pendent in his pocket, more so when the prosecution attempted to prove recoveries of Ex.P-5 to Ex.P-11 being two gold bangles, broken gold bracelet, two gold rings, one pair of gold ear rings and one pair of gold tops from the two co-accused, alleging the same to be the stolen property. Now, it does not stand to reason or logic that Hari Kishan Mandal could manage to dispose of all the jewellery except a gold chain and a pendent. The fact that this recovery is shown from the person of Hari Kishan Mandal after four months and twenty four days of the incident itself lends suspicion to the recovery and makes it the likely result of a plant. Similarly, with respect to the keys Ex.P-13 we find that the recovery is from a wooden box housing the electricity meter from where electricity was supplied to the ground floor of property No.M- 23, Greater Kailash, Part-II, and surely the electricity meter reader had been visiting the house to note down the consumption of electricity by reading the electricity meter, for normal course of conduct and events which normally take place are presumed to have taken place or occurred; and did not notice the bunch of keys.

10. The said two recoveries being planted and hence evidence relating thereto being tainted looms large in the realm of the real and hence we hold that the learned Trial Judge has committed a serious irregularity in ignoring the aforenoted circumstances and enwombing the recoveries.

11. But we are left with the most critical part of the evidence, and would highlight that if said evidence emerges with creditability, the guilt of Hari Kishan Mandal would be writ large for the reason the theory of last seen evidence guides us that if it is proved that when members of the family left, with the lady of the house alone with a male domestic help who is found absconding and the lady of the house is found murdered and the house is found ransacked, unless the domestic help speaks and tells what happened in the house and why he absconded, the guilt would stand proved even at the high standard of evidence being measured as beyond doubt.

12. That takes us to the testimony of Santra PW-1 who deposed that she used to work in 12-13 kothis and used to sweep the house of the deceased for the last 18 years where appellant was working as a servant and that on the day of the incident she came to work at 12.00 Noon and upon completing the chores left the house at 12.30 PM when deceased and Hari Kishan Mandal were present in the house. On being cross-examined she admitted that sometimes she had differences with respect to the work between her and Hari Kishan Mandal. She admitted that Hari Kishan Mandal used to take leave to visit his village but added that she could not remember how many times in a year. She admitted that when she reached the house Mr.Roshan Lal was present but volunteered that by the time she left he had left the house. She denied the suggestion that Hari Kishan Mandal used to tease her and misbehave with her and this was the reason why she was deposing falsely. She stated on being cross-examined that Vidya Rani had told her to wash the courtyard and was confronted with her statement made to the police where said fact was not recorded.

13. Roshan Lal Kohli PW-22 deposed that he along with his wife was residing at M-23, Greater Kailash, Part-II and appellant was their domestic

help for the last about 16 years. On the day of the incident he left his house at around 11.45 AM leaving behind his wife and Hari Kishan Mandal in the house. He returned home at 6.00 PM and found the entrance door locked. Hari Kishan Mandal was not present. Since his wife used to go for prayers he made enquiry from the lady at H.No.M-17 who also used to go to satsang with his wife and learnt that his wife had not gone to satsang. He became upset and rang up his daughter who in turn informed other relatives. The police came to the house and broke the lock. His wife was lying dead and upon seeing her in such condition he became unconscious. On being cross- examined he stated that in January 1993 Hari Kishan Mandal had gone to his village and that he had told him not to come back.

14. Rajesh Kohli PW-4 the son of the deceased deposed that Hari Kishan Mandal was a domestic help working in the house of his parents and that on the day of the incident at 7.30 PM he got information that his father was sitting outside H.No.M-27, Greater Kailash because the door was locked. His sister had been called by his father and even he went to the house. When somebody informed the police, they reached the house and broke the lock and inside he saw his mother lying dead. PW-4 went on to depose regarding recovery of Ex.P-13 in his presence and with respect to the cross- examination of the witness we would simply highlight that his testimony that Hari Kishan Mandal was engaged as a domestic help by his parents was not even challenged.

15. Rita Khosla PW-2 apart from deposing regarding the Test Identification which she had conducted of the stolen property, deposed that Hari Kishan Mandal was working as a domestic servant in the house of her parents since 1977-78 and further deposed in sync with what her brother deposed as having witnessed by them in the house of her parents in the late

evening of the date of the incident, and with respect to her cross- examination we find no serious effort made to challenge her testimony that Hari Kishan Mandal was working as a domestic help in the house of her parents. Of course the usual suggestion that she was incorrectly deposing to said effect was given to her, and we highlight that such a suggestion was not even given to her brother.

16. As we have noted in paragraph 11 above, if there is credible evidence that Hari Kishan Mandal was employed as a domestic help by Roshan Lal Kohli and his wife Vidya Rani and he was present in the house with Vidya Rani and nobody else was present in the house on the day of the incident, the said fact would be sufficient to nail the guilt of Hari Kishan Mandal for the reason it is not in dispute that appellant's whereabouts were not known to the police and he could not be apprehended for four months and twenty four days. Unless of course, Hari Kishan Mandal would explain as to what happened in the house when he was present for that would be a fact within his personal knowledge which can never be accessed by the police and Section 106 of the Evidence Act would come into play.

17. On the fact in issue i.e. Hari Kishan Mandal being employed as a domestic help by Roshan Lal Kohli and Vidya Rani we have the testimony of Santra PW-1, the part time domestic help, Rita Khosla, Rajesh Kohli and Roshan Lal Kohli the daughter, son and husband of the deceased who appeared as PW-2, PW-4 and PW-22. When said incriminating circumstance was put to him, Hari Kishan Mandal stated that he had left the service as a domestic help in January, 1993 and was not in employment on April 29, 1993 i.e. when the incident took place.

18. With reference to the cross-examination of PW-2 we find that the suggestion given to her was that Hari Kishan Mandal went on long leave in

the month of February, 1993, a fact which PW-2 admitted; and not that Hari Kishan Mandal had permanently left employment in the month of January, 1993. She denied the suggestion that after availing leave in February, 1993 Hari Kishan Mandal did not join back. As regards PW-4 we find that the only suggestion given to him, which he admitted, was that Hari Kishan Mandal had gone on long leave prior to the incident. We have already noted above that no suggestion was given to PW-4 that he was deposing falsely that Hari Kishan Mandal was present in the house on the day of the incident. PW-22 Roshan Lal Kohli was only suggested that when Hari Kishan Mandal went on long leave in January, 1993 he had told him not to return, a suggestion which PW-22 admitted.

19. From the suggestion referred to in the preceding paragraph which was admitted by PW-22 it was sought to be urged that a doubt would arise whether Hari Kishan Mandal was present in the house on the day of the incident.

20. The benefit of doubt which law recognizes is not that of a weak and a wavering mind incapable of taking decisions, but of a firm and a determined mind capable of taking decisions. Now, if a witness admits that (probably on being annoyed with a domestic help repeatedly taking leave) when the domestic help last took long leave and was told not to return, it would not mean that a doubt would arise whether the domestic help returned. It does happen in life that annoyed with a subordinate, at the heat of the moment the superior tells the subordinate to get lost, but as tempers soothe and the employee returns, the employer welcomes him with warm hands.

21. With reference to the testimony of Santra, the domestic help, it was urged that she admitted to have reported for work at 12:00 Noon and further that at said point of time Roshan Lal Kohli was present in the house. As per

Roshan Lal Kohli he left the house at 11:45 AM; and picking thereon it was urged that there is a material contradiction in that Roshan Lal Kohli claims to have left the house at 11:45 AM but as per Santra when she reported for work at 12:00 Noon Roshan Lal Kohli was in the house.

22. The purpose of the argument obviously is to bring home the point that if the witnesses have to be believed that Hari Kishan Mandal was present in the house then it has also to be believed that Roshan Lal Kohli was present in the house. But if this is the purpose of the argument it would obviously mean that the finger of suspicion is sought to be directed against Roshan Lal Kohli as well. Apart from the fact that no suggestions were given to Roshan Lal Kohli or his children of their being strained relationship between the husband and wife, the argument overlooks the fact that when people depose to incidents in the past and make a reference to time, they do so by approximations and not by looking at a watch. Besides, as noted above, Santra has categorically deposed that when she left the house after performing the chores at 12:30 Noon Roshan Lal Kohli had left for work and only Hari Kishan Mandal was present in the house.

23. It would assume importance to note that in the statement Ex.PW-4/A based whereon the FIR was registered, at the very first opportunity Rajesh Kohli told the police that Hari Kishan Mandal, the domestic help engaged by his parents, was absconding from the house. With reference to the testimony of Roshan Lal Kohli we find proof of the fact that on seeing his wife murdered Roshan Lal Kohli became unconscious. The evidence of the trauma faced by the family on seeing the lady of the house murdered is apparent. It is difficult to believe that Rajesh Kohli would contrive a false story i.e. if indeed Hari Kishan Mandal had left employment in February,

1993 he would not have told the police that Hari Kishan Mandal was absconding.

24. Attempt was made to discredit Santra with reference to the fact that in her statement made to the police it was not recorded that Vidya Rani told her to wash the courtyard but she so admitted on oath in Court. The argument is nothing but a grasp at straws for the reason this is only a minor variation on account of the fact that nothing pertaining to the courtyard or it being washed or not is material as a fact or a circumstance in the instant case.

25. It was sought to be urged that as admitted by Insp.Baljeet Singh PW- 20 he had summoned a finger print expert who lifted three chance prints and in said context the prosecution not having obtained the finger prints of Hari Kishan Mandal, Roshan Lal Kohli and the two children of the deceased becomes relevant for the reason if the chance prints did not match those of either family member and Hari Kishan Mandal, it would be apparent that an outsider had accessed the house.

26. We are not saying that the argument is worthless, but in the facts and circumstances of the instant case its weight is minimal. The rule of law is that lapses by the investigation, unless they are material and could shift the effect of the evidence produced, alone then they assume importance. If the weight of the credible evidence led, leans towards the guilt on the standard of proof required at a criminal trial i.e. beyond reasonable doubt, such lapses have to be ignored.

27. In the teeth of the overwhelming evidence through the testimony of four witnesses which we have already discussed above, unimpeachable evidence has surfaced of Hari Kishan Mandal being engaged as a domestic help by Roshan Lal Kohli and Vidya Rani and on April 29, 1993 he alone was present in the house in the company of the lady of the house Vidya Rani

who was strangulated to death in the house and the house was ransacked; Hari Kishan Mandal absconded and could only be apprehended after four months and twenty four days, the verdict of guilt against Hari Kishan Mandal has to be sustained because Hari Kishan Mandal was obliged to speak and Section 106 of the Evidence Act is clearly attracted.

28. The appeal is dismissed. The bail bond and surety bonds are cancelled. Hari Kishan Mandal is directed to surrender and undergo the sentence imposed upon him by the learned Trial Judge.

29. LCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE AUGUST 05, 2013 skb/mamta