Rajinder & Ors. vs State
2016 Latest Caselaw 406 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Judgment Reserved on: January 14, 2016
%                                 Judgment Delivered on: January 19, 2016
+                        CRL.A. 253/2000
      RAJINDER & ORS.                                    ..... Appellant
                   Represented by:           Mr.Jitender Singh and
                                             Mr.R.K.Singh, Advocates.

                         versus

      STATE                                               ..... Respondent
                         Represented by:     Mr.Varun Goswami, APP for
                                             the State with Inspector
                                             Jitender Kumar, PS DBG Road.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.

1. A missing report was lodged by Sita Ram, S/o Bal Kishan on January 08, 1993 stating that his father who had gone in the morning to open the shop at East Park Road after opening shop has not returned and is missing. He has made search in all the hospitals. On January 10, 1993 Sita Ram lodged a further report Ex.PW-4/B stating that his father was missing since January 08, 1993 and that while searching him he went to the first floor of the place of his business and on opening the room he found some blood and two broken teeth which appeared to be that of his father, and he suspected his servant Rajinder, his brother Lallan and their relative Suraj Lal in the kidnapping of his father for extorting money. He further stated that Rajinder, Lallan and Suraj Lal were also missing since January 08, 1993.

He stated that the room on the first floor was provided by his father to Rajinder where his brother Lallan and friend were also sleeping at night and in the other room his father used to keep belonging of the shop. On a thorough search of room on the first floor in occupation of Rajinder, Lallan and Suraj two broken teeth of human being, one button of pant, two broken card board boxes which were blood stained, one match box, blood on the almirah and floor was found. On searching the almirah in the shop `20,000/- kept there were found missing. On January 13, 1993 Rajinder was arrested who pointed out the place where they had thrown the body of the deceased in Yamuna river. He also disclosed about the involvements of Lallan and Suraj along with him and that the body was brought in rickshaw enveloped in a black polythene sheet and thrown in river Yamuna. On moving towards the direction of the flow of water in the river at a short distance they found the black polythene sheet belonging to their shop entangled in bushes and also the dead body of his father.

2. Dr.L.T.Ramani PW-11 who conducted the post-mortem found the following:

"The clothes worn by deceased were wet and soiled with mud the shirt collar showed blood stains. The P.M. revealed the following external injuries:-

1. Cut throat incised wound 15 cm x 3 x 4 cm gapping on the upper part front and right side of neck from left sterno mastoid muscle to the right angle of mendibal cutting upper part of thyroid cartilages. Skin margins showed clean cut edges and left end of the wound showed three distinct splitting cuts.

2. An incised wound 5 x 1.5 cm transversally present on the left side front of neck.

3. Four finger tip bruises of 2 cm diameter each on the

middle of left arm, anterior-lateral side. ON INTERNAL EXAMINATION:

Scalp tissues, skull bone and brain were normal. There was bruising of 3 x 2 cm size on the upper lip of left side with mucus surface showing laceration of 2 cm x muscle deep. Two upper central incisor teeth appeared freshly broken, socket showed clotted blood. Neck tissues showed massive extravasation of blood on the front and right side and also around injury No.1 on the left side of the neck. All major blood vessels of the neck were cut on the right side and there was fracture of right cornua of hyoid bone with clotted blood around. Trachea contained blood. There was effusion of blood in sub cutaneous tissues of right clavicular area and upper part front of the chest of the right side. Second to 8 th rib were fracture on the right side and second to 7th ribs were fracture on the left. Both lungs were bruised. Heart was normal. Stomach was emptied and other abdominal organs were normal."

3. PW-11 opined that injuries No.1&2 were caused by sharp-edged weapon and were ante-mortem whereas injury No.3 to the lip, teeth and chest were ante-mortem caused by blunt force application. The cut throat injury was sufficient to cause death in the ordinary course of nature and the death was due to shock and haemorrhage consequent to the cut throat injuries. Time since death was about 6 days, the post-mortem having been conducted on January 14, 1993. He also opined that injury Nos.1&2 were possible by the knife Ex.P-16. In cross-examination he reiterated that the skin of the sole and palm showed marked soddening suggesting that the body remained in water for couple of days.

4. Rajinder Singh also pointed out the cycle-rickshaw and the part of the same which was blood stained was seized. Pursuant to the arrest of Rajinder

he disclosed that he was accompanied by two other associates who were about to leave New Delhi Railway Station for their native place and on reaching New Delhi Railway Station Suraj and Lallan were arrested. Lallan was carrying a bag, which had another bag containing cash, 2 kurtas, 3 dhoties and some slips. From the personal search of Suraj 3 tickets for Allahabad, one wrist watch make Citizen and a gold ring was recovered. At the instance of Lallan a knife and the kurta of the deceased which was blood stained were recovered. Suraj got recovered his pant which was blood- stained whereas Lallan got recovered his shirt which was blood-stained.

5. As per CFSL report blood found on the card board, kurta, pant tallied with that of the deceased being 'B' group. In the TIP proceedings conducted by PW-12 the learned Metropolitan Magistrate, Sita Ram correctly identified the wrist watch, ring, bag, 2 kurtas and 3 dhoties from amongst the articles recovered to be the belongings to his father. The prosecution also relied upon the extra judicial confession made to Om Prakash PW-7 and Ved Prakash PW-9 by Rajinder.

6. On the basis of evidence led by the prosecution and considering the defence evidence, the learned ASJ convicted Rajinder for offence punishable under Sections 302/201/381 IPC read with Section 34 whereas Lallan and Suraj under Sections 302/201/380 read with Section 34 IPC and awarded life imprisonment.

7. Learned counsel for the appellants contends that there is no material to show that the room on the first floor from where alleged recovery was made was in the occupation of the appellants. The dead body entangled in the black polythene cannot be said to be recovered at the instance of appellant No.1 Rajinder. There are material contradictions in the testimony

of the material witnesses with regard to the recovery of dead body which was from an open place and after six days of the alleged incident hence the same was not admissible under Section 27 of the Evidence Act. There are material improvements in the statements of the witnesses and the witnesses were interested and concocted. The extra judicial confessional cannot be relied upon, there is contradiction in the alleged confessional statements made by the two witnesses.

8. Sita Ram PW-4 in his deposition before the Court stated that he was residing with his father and his father used to deal with threads at shop No.10125, East Park Road, Karol Bagh, New Delhi. Appellant Rajinder was working as servant under him for whom a room on the first floor of the shop had been provided by his father where his brother Lallan and Suraj also stayed. All three used to sleep in the night in the said room. Besides the room in which Rajinder, Lallan and Suraj were staying there was another room where goods were stored and a kitchen. His father used to leave home daily at about 6.30 AM and go to his shop, get it cleaned whereafter he used to go to Ajmal Khan Park to teach Yoga. On January 08, 1993 as usual he left the house after taking bath for his daily work but he did not come back on that day. Some of the customers who visited the shop also informed that his father had not opened the shop. When his father did not return till 6.00 PM he lodged a missing report Ex.PW-4/A. Even on January 09, 1993 his father did not turn up and they made search for him. Ultimately on January 10, 1993 he opened the shop of his father at about 11.00 AM to clean the same. When he went to the rear room of the first floor and started cleaning the room he found drop of blood on the floor of the room besides two teeth which he recognised to be that of his father. He immediately rushed to the

police post and lodged the report Ex.PW-4/B. On inspection police found a match box, one button of pant having thread, two card boxes in broken condition having drops of blood etc. All these things were seized and seizure memo was prepared. He also found that `20,000/- lying in the almirah along with dhoti kurta which his father used to keep in his shop were also missing. He mentioned about the arrest of Rajinder and the recovery of the dead body wrapped in a black polythene sheet entangled at the bushes at the instance of Rajinder. The blood stained rickshaw which was used to transport the dead body of his father was also recovered at his instance and part of the rickshaw which was blood stained was seized. He also deposed about the recoveries made at the instance of Lallan and Suraj who were arrested from the railway station as noted above.

9. To dislodge the version of Sita Ram as noted above learned counsel contends that there is no material to show that Rajinder, Lallan and Suraj were residing in the rear room of the first floor of the shop. As noted above Sita Ram in his deposition has clearly stated the said fact and in cross- examination there is no suggestion to Sita Ram that Rajinder, Lallan and Suraj were not residing on the first floor. In cross-examination Sita Ram clarified that though Rajinder was working earlier Lallan and Suraj had also joined the services of his father 1-1½ months prior to the incident.

10. Pursuant to the disclosure and on the pointing out of Rajinder the dead body wrapped in polythene sheet was recovered from Yamuna Bank. While enroute the search for the dead body merely because Sita Ram first spotted the polythene sheet made of Dana from his shop it cannot be said that the recovery was not at the instance of Rajinder. It is neither the requirement of the Section 27 of the Evidence Act, 1872 that the declarant should actually

lead to the place from where the recovery is effected nor that he should personally take out some object. All that is necessary is that there should be information about the fact and recovery pursuant thereto. In case the declarant personally leads the police party to the place from where the recovery is effected or takes out the promised object, evidence in this regard would be relevant as conduct under Section 8 of the Evidence Act. (See: 1980 Crl.L.J NOC 100 (Delhi) State vs. Ram Avtar and AIR 2005 SC 3820 State (N.C.T. of Delhi) vs.Navjot Sandhu.

11. The contention of learned counsel for the appellants that the recovery of the dead body being from open and accessible place was not admissible under Section 27 of the Evidence Act deserves to be rejected. In the present case having thrown the body in the Yamuna it would have obviously travelled some distance and on moving with the flow of the river, the same was found entangled in the bushes wrapped in the black polythene sheet. Such a recovery cannot be said to be from an open space accessible to all. It was in the special knowledge of Rajinder that the dead body was thrown in the Yamuna and along its flow the same was recovered. This fact is corroborated by the post-mortem report which showed saddening of the skin of sole and palm.

12. The weapon of offence and the articles of the deceased were recovered at the instance of Lallan and Suraj as noted above and have been duly identified by Sita Ram in TIP proceedings. Though the arrest from the New Delhi Railway Station is stated to be concocted and imaginary however, no material has been shown in relation to the contradictions with regard to the recovery of weapon of offence or the articles of the deceased at the instance of Lallan and Suraj. Sita Ram PW-4 correctly identified the

articles recovered in the TIP proceedings. No explanation whatsoever of the recoveries except the money has been rendered.

13. As regards the extra judicial confession PW-9 Ved Prakash stated that on January 13, 1993 at about 1.00/1.15 PM he had gone to his in-laws near Filmistan Cinema and parked his scooter outside their house and was going to Model Basti where he saw Rajinder standing. On seeking Ved Prakash, Rajinder started running and then slowed his speed and walked towards Sadar Bazar. Ved Prakash chased him and in the meantime Om Prakash also came there by chance. Ved Prakash made inquiries from Rajinder about his father-in-law who was missing and since that day Rajinder was also missing. After some hesitation he disclosed about the murder of Bal Kishan and of throwing the dead body in the Yamuna river. He also disclosed about the involvement of his brother Lallan and Suraj who was from his village.

14. PW-7 Om Prakash stated that on January 13, 1993 when he was coming from Sadar Bazar towards his house via Filmistan at about 1.00 PM he saw Rajinder Kumar coming from opposite direction and being chased by Ved Prakash PW-9. Ved Prakash and Om Prakash apprehended him and from him they inquired as to how deceased Bal Kishan was murdered when Rajinder disclosed all the facts and whereafter a telephone call was made to SI Mohan Lal who along with the staff reached the spot besides Sita Ram who also joined them.

15. Though Om Prakash corroborates the version of Ved Prakash however, from the prosecution case it is evident that till Rajinder was apprehended the family was not aware of the murder of Bal Kishan but of his missing only. In such a situation Om Prakash could not have inquired about the murder of Bal Kishan from Rajinder on his apprehension. Thus

we are not inclined to rely upon the two extra judicial confessions proved by the prosecution.

16. Even ignoring the extra judicial confessions, the prosecution by the circumstantial evidence, as noted above, of the appellants staying in the room at the first floor of the shop run by deceased Bal Kishan, two teeth of the deceased, blood stains having been found there, recovery of dead body wrapped in the black polythene belonging to the shop of Bal Kishan pursuant to the disclosure and at the instance of Rajinder, recovery of knife and articles of the deceased and the conduct of the appellants absconding from the place of habitat from the day Bal Kishan was missing has proved beyond reasonable doubt the offence charged against them.

17. Finding no merit in the appeal the same is dismissed. The bail bonds and the surety bonds of the appellants are cancelled. They would surrender to custody and undergo the remaining sentence.

18. Copy of this order be sent to Superintendent Central Jail Tihar for updation of the Jail record.

19. TCR be returned.

(MUKTA GUPTA) JUDGE

(PRADEEP NANDRAJOG) JUDGE JANUARY 19, 2016 'ga/vn'