Delhi High Court
Dinesh vs State on 2 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 09.04.2019
Judgment pronounced on: 02.08.2019
+ CRL. A. 339/2004
DINESH ..... Appellant
Through: Mr. Mukesh Kalia, Mr. Manav and
Mr. M.L. Yadav, Advocates.
Versus
STATE .....Respondent
Through: Mr. Amit Gupta, APP for State with
Insp. Raman Kumar, ATO/Uttam
Nagar and SI Govind Singh, P.S.
Uttam Nagar.
+ CRL. A. 389/2004
SURENDER @ LAMBU ..... Appellant
Through: Mr. Mukesh Kalia, Mr. Manav and
Mr. M.L. Yadav, Advocates.
Versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Amit Gupta, APP for State with
Insp. Raman Kumar, ATO/Uttam
Nagar and SI Govind Singh, P.S.
Uttam Nagar.
+ CRL.A. 393/2004
JITENDER ALIAS KALA ..... Appellant
Through: Mr. Mukesh Kalia, Mr. Manav and
Mr. M.L. Yadav, Advocates.
Versus
CRL.A 339/2004 (Connected Appeals) Page 1 of 28
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Amit Gupta, APP for State with
Insp. Raman Kumar, ATO/Uttam
Nagar and SI Govind Singh, P.S.
Uttam Nagar.
+ CRL.A. 481/2004
KAMALJEET ..... Appellant
Through: Dr. Kanwal Sapra, Mr. H.R. Dhamija,
Advs.
Versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Amit Gupta, APP for State with
Insp. Raman Kumar, ATO/Uttam
Nagar and SI Govind Singh, P.S.
Uttam Nagar.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J:
1. The present criminal appeals have been filed against the
impugned judgment dated 21.04.2004 and order on sentence dated
26.04.2004 in Sessions Case 1/2001 passed by the Court of Ld.
Additional Sessions Judge, Delhi („ASJ‟) arising out of FIR
no.1086/2000 lodged at P.S. Uttam Nagar under Sections
302/201/120B/34 of the Indian Penal Code („IPC‟) and Sessions Case
2/2001 arising out of FIR no. 1107/2000 lodged against Surender @
Lambu (A-1) at P.S. Uttam Nagar under Sections 25/54/59 of the
Arms Act. The appellants were convicted for the following offences:
CRL.A 339/2004 (Connected Appeals) Page 2 of 28
Name Section Sentence
1. Surender, Dinesh Section 302 read Life imprisonment and a
and Jatinder. with 120B of the fine of Rs.1000.
IPC. Rigorous imprisonment
(„RI‟) of 3 months in
default of fine.
2. Surinder, Section 201 read RI for 4 years and a fine
Dinesh, Jatinder with 120B of the of Rs.1000/-. RI for 3
and Kamaljeet. IPC. months in default of
fine.
3. Surinder. Section 25 of the RI of one year and a fine
Arms Act. of Rs.1000/-. RI for 3
months in default of
fine.
Background
2. On 16.11.2000, an information was received at 1:38 PM by Lady
Constable Sudesh (PW-1) who was working as a telephone operator in
PCR (PHQ), New Delhi that a dead body was lying in a nalla on main
Najafgarh Road, Kakrola Mod near Vinod Motors. She transmitted the
information to the Communication net of West District for conveying
the same to the PCR Van. DD no.21A (Ex.PW-3/A) was recorded on
the basis of this information by Roznama Munshi Constable
Raj Kumar (PW-3) on 16.11.2000 at P.P. Matiala, P.S.
CRL.A 339/2004 (Connected Appeals) Page 3 of 28
Uttam Nagar. This DD was assigned by HC Bhim Singh (PW-14) to
HC Ram Vir (PW-9). Both of them proceeded to the spot. SI Rajbir
Singh (PW-23), Chowki Incharge, P.P Matiala and Constable Tejpal
(PW-16) also received this information vide DD No.21A and reached
at the spot where a dead body was found. They found that PW-14 and
PW-9 had already reached there. Photographs of the body were taken
by a private photographer and PW-23 made an endorsement on DD
no.21A for registration of the FIR under Sections 302/201 of the IPC.
3. The body was identified as one of Narender, by the parents of
the deceased, Sh. Ram Parshad (PW-13) and Smt.Savitri Devi
(PW-12). They informed the police that their son had been missing
since 13.11.2000 and expressed a suspicion against the accused,
Jitender (A-3), Surinder (A-1) and Dinesh (A-2) as the deceased was
with them at about 7:30 PM on 13.11.2000 and last seen alive with
them by PW-12 at around 8:30 PM on the same day. The police made
a search of the respective homes of the accused but all three were
found missing.
4. The post-mortem on the dead body was conducted by Dr. R.K
Sharma (PW-19) on 17.11.2000 at 3 PM and he opined in the Post
Mortem report (Ex.W19/A) that "the time since death approximately 3
days" and "the cause of death was due to compression of neck and
head injuries (intra cranial haemorrhage)" thereby establishing that
the death was homicidal in nature.
5. On 21.11.2000, enquiries were made from the deceased‟s father
and a search was made in his house. During this search, a letter
CRL.A 339/2004 (Connected Appeals) Page 4 of 28
written by the sister of A-2 namely, Smt. Suman Kumari (PW-11) to
the deceased was found in one drawer of a table. The father of the
deceased informed the police that PW-11 used to take tuitions from
the deceased at his house. The I.O., Inspector Sukhbir Singh (PW-25)
then visited PW-11‟s home where her brother, Sudesh Kumar
(PW-26) handed over a school register (Ex.CW1/A) containing PW-
11‟s handwriting. While PW-25 was interrogating PW-11, A-1 and
A-2 reached there and in their disclosure statements, Ex.PW-22/D and
Ex.PW22-E respectively, they disclosed that they had killed the
deceased, Narender in the room behind the chakki with the help of
A-3. They further disclosed that with the help of A-4, they had
wrapped the body in a bed sheet and carried it in the Van brought by
A-4 and they had dumped the body in the Nalla on Najafgarh Road
near Vinod Motors. A-1 and A-2 were arrested and they led the police
to the house of A-4 where he was apprehended and a Van bearing
registration number DNH-4256 was recovered pursuant to his
disclosure statement (Ex.PW-22/G) in which he disclosed that he
along with A-1, A-2 and A-3 had taken the body wrapped in a bed
sheet in his Van and then dumped it near the nalla on Najafgarh Road,
near Vinod Motors.
6. The motive of the murder was disclosed by A-1 in his
disclosure statement. He disclosed that Jitender (A-3) was running a
chakki in the front portion of Suman‟s (PW-11) house and used to
reside in a room built in the back portion of the chakki itself. Suman
(PW-11) used to take tuitions from the deceased and A-3 was having a
CRL.A 339/2004 (Connected Appeals) Page 5 of 28
one sided love affair with her. A-3 started suspecting that the
deceased, Narender and PW-11 were having an affair as the deceased
had started visiting her house. A-1 and A-3 called the deceased to the
Chakki, threatened and cautioned him not to have any relation with
PW-11. Subsequent to this threat, the deceased became friendly with
A-3 and also started visiting him. On 12.11.2000, when A-3 visited
PW-11‟s house on the pretext of taking water, he saw PW-11 and the
deceased in a compromising position. On the same evening, A-3 and
A-1 narrated the entire incident to Suman‟s brother Dinesh (A-2). A-1,
A-2 and A-3 decided to murder the deceased Narender and on
13.11.2000, they called the deceased to the chakki where they
murdered the deceased after beating and strangulating him.
7. A-1 further disclosed that he along with A-2 then removed the
deceased‟s purse, other papers and one ring from his finger and A-1
kept the same in his handkerchief. The dead body was wrapped in a
bed sheet which was removed by A-2 from the cot of A-3. Then A-3
along with A-4 arrived in a van bearing registration number DNH-
4256 in which they took the dead body and dumped it in the nalla near
Vinod Motors. The bed sheet in which the dead body was wrapped
was then allegedly burnt by A-3 using diesel and was thrown in a
vacant plot behind the bushes.
8. During the investigation, on 23.11.2000 A-1 led the police to a
vacant plot in Sector-17, Pappankalan from where he got recovered
the purse, ring, etc belonging to the deceased from behind some
bushes near a temple vide pointing out memo, Ex.PW22/N. He also
CRL.A 339/2004 (Connected Appeals) Page 6 of 28
got recovered one country made pistol and two live cartridges
wrapped in a handkerchief from the same plot vide pointing out
memo, Ex.PW22/M, on the basis whereof a separate FIR
No.1107/2000 was registered under Sections 25/54/59 of the Arms
Act.
9. A-3 was arrested on 23.11.2000 and subsequent to his
disclosure statement (Ex.PW22/Q), the bed sheet in which the dead
body was allegedly wrapped and carried to the nalla was recovered
pursuant to his pointing out memo Ex.PW22/Q3 from a vacant plot
behind his house.
10. On 08.06.2001, the Ld. ASJ framed charges under Sections
302/120-B/201/34 against all the accused and Charge under Sections
25/27 of the Arms Act was framed against the accused, Surender. The
prosecution examined 26 witnesses to bring home the guilt of the
accused persons whereas the accused examined two witnesses in their
defense. Ms. Shashi Aggarwal was examined as a Court witness
(CW-1).
Arguments on behalf of the appellants.
11. Mr. Mukesh Kalia, Advocate appearing on behalf of the
accused, A-1, A-2 and A-3 had argued that the impugned judgment is
not based on the settled legal principles but on conjectures and
surmises and hence deserves to be set aside. The thrust of Mr. Kalia‟s
arguments were premised on the contention that none of the recoveries
at the instance of the accused are admissible in evidence and the
motive for the alleged crime could not be proved as PW-11‟s
CRL.A 339/2004 (Connected Appeals) Page 7 of 28
handwriting could not be conclusively matched with the letter that she
had allegedly written to the deceased.
12. Dr. Kanwal Sapra, Advocate appearing on behalf of the
accused, A-4 had argued that the phone number which was allegedly
used to contact the other accused on the day of the incident could not
be connected to his client as no proof of ownership was produced by
the prosecution. He further argued that the Van recovered from the
house of A-4 could in no way be connected to the alleged crime as no
forensic or physical evidence was brought on record to connect him or
the Van with the crime.
Discussion & Analysis
13. The present case is based solely on circumstantial evidence and
therefore it would be prudent to reproduce below, the settled legal
principles to be followed while basing a conviction on circumstantial
evidence, as enunciated by the Supreme Court in Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116: -
"153..........
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
............
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused."
Last seen evidence
14. The first link that the prosecution had tried to establish was the
fact that the deceased was last seen in the company of the accused, A-
1, A-2 and A-3 through the testimony of Smt. Savitri Devi (PW-12),
mother of the deceased. PW-12 testified that her son, Narender was
running a Coaching centre at C-33, Bhagwati Garden extension,
Uttam Nagar, New Delhi for about 4 months prior to the incident. She
deposed that A-3, described as chakkiwala had started becoming
friendly with her son since 15 days prior to the incident and on
"Monday", A-2 and A-3 came to her house on a two wheeler scooter
at around 1:30 PM and asked her son, Narender to come to the chakki
on that day for a "meat party" at 7:30 PM. She further deposed that
when Narender did not go to the chakki at 7:30 PM, A-2 and A-3 came
to her house on a two wheeler and took him along with them.
15. She further deposed that at about 8:30 PM, she went to the
chakki to call Narender for dinner and there, she found A-1, A-2 and
A-3 along with her son. She became terrified after seeing A-1 there
and saw her son pleading with A-1, A-2 and A-3 with folded hands to
allow him to eat two meals a day with dignity. She deposed that she
had suspected that the accused might do something untoward with her
son and therefore, asked Narender to accompany her back to their
house but A-1 caught hold of Narender‟s hand and made him sit.
When she kept standing there, A-3 caught hold of her hand and took
her outside and assured her that they will cause no harm to her son.
She came back to her house and sat down on the stair case of the
office of her son, Narender and when her husband (PW-13) came back
home, she narrated the entire incident to him.
16. Though PW-12 made several improvements and exaggerations
in her examination-in-chief, she remained consistent and firm on one
relevant and material particular that she had seen the deceased in the
company of A-1, A-2 and A-3 on 13.11.2000 at around 8:30 PM,
which inspires confidence. In this context, it would be relevant to turn
to the decision of the Supreme Court in Sucha Singh v. State of
Punjab, (2003) 7 SCC 643 where it was held that:
"18..............Stress was laid by the accused-
appellants on the non-acceptance of evidence
tendered by some witnesses to contend about
desirability to throw out the entire prosecution case.
In essence, prayer is to apply the principle of "falsus
in uno falsus in omnibus" (false in one thing, false in
everything). This plea is clearly untenable. Even if
a major portion of evidence is found to be deficient,
in case residue is sufficient to prove the guilt of an
accused, notwithstanding acquittal of a number of
other co-accused persons, his conviction can be
maintained. It is the duty of the court to separate
the grain from the chaff. Where chaff can be
separated from grain, it would be open to the court
to convict an accused notwithstanding the fact that
evidence has been found to be deficient to prove the
guilt of other accused persons. Falsity of a
particular material witness or a material particular
would not ruin it from the beginning to the end.
The maxim "falsus in uno falsus in omnibus" has
no application in India and the witnesses cannot be
branded as liars. The maxim "falsus in uno falsus
in omnibus" has not received general acceptance
nor has this maxim come to occupy the status of a
rule of law. It is merely a rule of caution. All that it
amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded.
The doctrine merely involves the question of weight
of evidence which a court may apply in a given set of
circumstances, but it is not what may be called "a
mandatory rule of evidence........".
(emphasis supplied)
17. Following the dictum in Sucha Singh‟s case (supra), it would
not be prudent to throw out the entire testimony of PW-12 as she had
remained firm and consistent on the one material particular of having
last seen her deceased son, Narender with A-1, A-2 and A-3 on
13.11.2000 at about 8:30 PM.
18. When it is established that the deceased was last seen alive with
the accused and the time of death is so proximate to the accused
persons having been last seen with the deceased, the onus of proof
would naturally shift to A-1, A-2 and A-3 to furnish an explanation
which appears to be probable and satisfactory. This principle was
elaborated by the Supreme Court in State of Rajasthan v. Kashi Ram,
(2006) 12 SCC 254 where it was held that: -
"23. It is not necessary to multiply with authorities.
The principle is well settled. The provisions of
Section 106 of the Evidence Act itself are
unambiguous and categoric in laying down that
when any fact is especially within the knowledge of a
person, the burden of proving that fact is upon him.
Thus, if a person is last seen with the deceased, he
must offer an explanation as to how and when he
parted company. He must furnish an explanation
which appears to the court to be probable and
satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an
explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast
upon him by Section 106 of the Evidence Act. In a
case resting on circumstantial evidence if the
accused fails to offer a reasonable explanation in
discharge of the burden placed on him, that itself
provides an additional link in the chain of
circumstances proved against him. Section 106
does not shift the burden of proof in a criminal trial,
which is always upon the prosecution. It lays down
the rule that when the accused does not throw any
light upon facts which are specially within his
knowledge and which could not support any theory
or hypothesis compatible with his innocence, the
court can consider his failure to adduce any
explanation, as an additional link which completes
the chain."
(emphasis supplied)
19. In State of U.P. v. Satish, (2005) 3 SCC 114, the last seen
principle was summed up by the Supreme Court as under: -
"22. The last-seen theory comes into play where the
time-gap between the point of time when the accused
and the deceased were last seen alive and when the
deceased is found dead is so small that possibility of
any person other than the accused being the author
of the crime becomes impossible."
20. Following the ratio in Kashi Ram‟s case (supra), the Supreme
Court in Sathya Narayanan v. State, (2012) 12 SCC 627 held that: -
"34. The appellant-accused having been seen
last with the deceased, the burden of proof rests
upon them to prove what had happened
thereafter since those facts were within their
special knowledge. In the absence of any
explanation, it must be held that they failed to
discharge the burden cast upon them by Section
106 of the Evidence Act, 1872. Admittedly, none
of the appellants explained what had happened to
the deceased even in their statements under
Section 313 of the Code."
(emphasis supplied)
21. The PMR on the body of the deceased was conducted on
17.11.2000, at 2 PM and the time since was mentioned as
approximately 3 days. Even though there is a gap of more than 12
hours between the approximate time of death from the time the
accused were seen with the deceased by PW-12, the accused chose not
to give any explanation in their statement under Section 313 of the
CrPC as to when they had parted company with the deceased on the
previous day or vice versa or whether they were in his company on
13.11.2000, at around 8:30 PM. The accused have not been able to
discharge the onus of the proof cast upon them under Section 106 of
the Indian Evidence Act, 1872 („IEA‟).
Motive
22. The prosecution has alleged that the motive for murdering
Narender was because the sister of the accused, A-2 (PW-11) was
having an affair with the deceased, Narender. It is also alleged that the
accused, A-3 was having one sided feelings towards Suman (PW-11)
and on seeing both of them in a comprising position on 12.11.2000, he
could not bear the same and hatched a plan along with A-1 and A-2 to
eliminate Narender. The relevance of proving the motive in a criminal
trial has been explained by the Supreme Court in State of U.P. v. Babu
Ram, (2000) 4 SCC 515 where it was held that:-
"11. We are unable to concur with the legal
proposition adumbrated in the impugned judgment
that motive may not be very much material in cases
depending on direct evidence whereas motive is
material only when the case depends upon
circumstantial evidence. There is no legal warrant
for making such a hiatus in criminal cases as for the
motive for committing the crime. Motive is a
relevant factor in all criminal cases whether based
on the testimony of eyewitnesses or circumstantial
evidence. The question in this regard is whether the
prosecution must fail because it failed to prove the
motive or even whether inability to prove motive
would weaken the prosecution to any perceptible
limit. No doubt, if the prosecution proves the
existence of a motive it would be well and good for
it, particularly in a case depending on
circumstantial evidence, for such motive could then
be counted as one of the circumstances. However,
it cannot be forgotten that it is generally a difficult
area for any prosecution to bring on record what
was in the mind of the respondent. Even if the
investigating officer would have succeeded in
knowing it through interrogations that cannot be put
in evidence by them due to the ban imposed by law"
(emphasis supplied)
23. In Dandu Jaggaraju v. State of A.P., (2011) 14 SCC 674, the
Supreme Court elaborated on the relevance of proving the motive in a
criminal case and held that:
"9. It has to be noticed that the marriage between
PW 1 and the deceased had been performed in the
year 1996 and that it is the case of the prosecution
that an earlier attempt to hurt the deceased had been
made and a report to that effect had been lodged by
the complainant. There is, however, no documentary
evidence to that effect. We, therefore, find it
somewhat strange that the family of the deceased
had accepted the marriage for about six years, more
particularly, as even a child had been born to the
couple. In this view of the matter, the motive is
clearly suspect. In a case relating to circumstantial
evidence, motive is often a very strong
circumstance which has to be proved by the
prosecution and it is this circumstance which often
forms the fulcrum of the prosecution story."
(emphasis supplied)
24. The prosecution relied extensively on a letter, Mark „A‟ (Q1)
allegedly written by PW-11 to the deceased, Narender confessing her
love for him and asking him to beware of her brother, A-2 and A-3.
This letter was seized from the room of the deceased on 21.11.2000,
vide seizure memo, Ex.PW13/B. A register (Ex.CW1/A) in the name
of Suman containing pages S-1 to S-47 allegedly containing PW-11‟s
handwriting was handed over by Sudesh Kumar (PW-26) who is
Suman‟s brother. This register was seized vide seizure memo,
Ex.PW22/A. Specimen handwriting of PW-11 were also taken by the
IO Inspector Sukhbir Singh (PW-25). PW-11 turned hostile and
denied having written this letter or having an affair with the deceased.
She stated that she does not know in whose writing this register
(Ex.CW1/A) has been written. She admitted to giving 12 pages
containing her handwriting to the police but deposed that she did not
remember which were these papers. She further deposed in her
examination-in-chief that she does not remember whether S48 to S50,
Mark „A‟ and A-3 and A-4 form a part of the papers containing her
handwriting that were collected by the police. PW-26, who is
admittedly the brother of A-2 and PW-11 had both turned hostile.
However, PW-26 admitted his signatures on the seizure memo
(Ex.PW21/A) of the register, Ex.CW1/A.
25. Since PW-11 denied writing the letter Mark-A (Q1) or writing
in the register Ex.CW1/A, the Ld. ASJ opted to examine Mrs. Shashi
Aggarwal as CW-1. CW-1 was a Hindi Teacher at SKVK school,
Kakrola, Delhi, where PW-11 was studying. She was examined to
prove that the register did belong to PW-11. CW-1 deposed that as per
the particulars mentioned on the front of the register, it did belong to
PW-11, Suman of Class-X, having roll no.36. In her cross-
examination, she deposed that due to the large number of students, it is
not possible for her to identify each and every student‟s handwriting;
that she did not have any personal knowledge of the handwriting in the
register and that she has deposed only after seeing the name slip on the
cover of the register. She testified that the entire home-work in the
register, Ex.CW1/A is in the same handwriting. She deposed that "on
the basis of Register Ex.CW1/A, I can say that this homework has been
done by Suman herself." She admitted the suggestions of A-2 that "it
is correct that cover is put by the student on the register." So, it is
proved beyond reasonable doubt that the register, Ex.CW1/A belongs
to Suman and is in her handwriting.
26. The letter Mark „A‟ (Q1) along with handwriting sample
marked S1 to S50 were sent for examination to the Govt. Examiner of
Questioned Documents. The report of the Examiner is Ex. PW25/C. In
this report the Examiner found that "the person who wrote the blue
enclosed writings stamped and marked S1 to S50 also wrote the red
enclosed writing similarly stamped and marked Q1." The Govt.
Examiner of Questioned Documents was cited as a witness but he
could not be examined by the prosecution despite summons being sent
to him repeatedly. However, on 07.11.2003, counsel for A-2 made the
statement before the Ld. ASJ: "I do not dispute the genuineness of
report of handwriting expert which is Ex.PW25/C so far as its
admissibility in evidence in concerned. However, the effect of the
report in view of statement of alleged author made before the Court
shall be argued at the appropriate stage."
27. In view of the statement given by the counsel for A-2, the
admissibility of the report, Ex.PW25/C is not in doubt. Further, the
report unequivocally states that the disputed handwriting in letter
Mark „A‟ (Q1) and sample handwriting, S1 to S50 are written by the
same person.
28. The Ld. ASJ exercised the powers vested under Section 73 of
the IEA and herself ventured to compare the handwriting in the letter
Mark „A‟ (Q1) with the handwriting in the register, Ex.CW1/A vis-à-
vis the specimen handwriting on the papers, S-48 to S-50.
29. At this stage, it would be appropriate to turn to Section 73 of the
IEA which reads as under: -
"73. Comparison of signature, writing or seal
with others admitted or proved.--
In order to ascertain whether a signature, writing, or
seal is that of the person by whom it purports to have
been written or made, any signature, writing or seal
admitted or proved to the satisfaction of the Court to
have been written or made by that person may be
compared with the one which is to be proved,
although that signature, writing, or seal has not been
produced or proved for any other purpose.
The Court may direct any person present in Court to
write any words or figures for the purpose of
enabling the Court to compare the words or figures
so written with any words or figures alleged to have
been written by such person.
30. The scope of the power conferred under this section was
elaborated upon by the Supreme Court in Lalit Popli v. Canara Bank,
(2003) 3 SCC 583 as follows: -
13. It is to be noted that under Sections 45 and 47 of
the Evidence Act, the court has to take a view on the
opinion of others, whereas under Section 73 of the
said Act, the court by its own comparison of writings
can form its opinion. Evidence of the identity of
handwriting is dealt with in three sections of the
Evidence Act. They are Sections 45, 47 and 73. Both
under Sections 45 and 47 the evidence is an opinion.
In the former case it is by a scientific comparison
and in the latter on the basis of familiarity resulting
from frequent observations and experiences. In both
the cases, the court is required to satisfy itself by
such means as are open to conclude that the opinion
may be acted upon. Irrespective of an opinion of
the handwriting expert, the court can compare the
admitted writing with the disputed writing and
come to its own independent conclusion. Such
exercise of comparison is permissible under
Section 73 of the Evidence Act. Ordinarily,
Sections 45 and 73 are complementary to each
other. Evidence of the handwriting expert need not
be invariably corroborated. It is for the court to
decide whether to accept such an uncorroborated
evidence or not. It is clear that even when an
expert's evidence is not there, the court has power
to compare the writings and decide the matter."
(emphasis supplied)
31. After comparing the specimen writing in S-48 to S-50 with
Mark „A‟ (Q1), the learned ASJ concluded that both have similar
characteristics and peculiarities and the letter Mark „A‟ (Q1) is in
Suman‟s handwriting thus proving the motive on the part of the
accused for committing the murder of Narender.
Recovery at the instance of the accused, Surender (A-1)
32. On 23.11.2000, a country made pistol .315" and two 8mm/.315"
cartridges were recovered subsequent to the disclosure statement of A-
1 (Ex.PW22/D), vide pointing out memo, Ex.PW-22/M. A polythene
bag containing a black coloured purse (Ex.P5), one ring (Ex.P6),
currency notes of denomination 10 (Ex.P7), one photograph of the
deceased (Ex.P8) and some documents (Ex.P9/1-9) were also
recovered on the same day subsequent to this disclosure statement,
vide pointing out memo Ex.PW-22/N.
33. The recovery of the pistol and the live cartridges was effected in
the presence of SI Ram Kumar (PW-22), SI Rajbir Singh (PW-23) and
Inspector Sukhbir Singh (PW-25). PW22, PW-23 and PW- 25 deposed
in unison that the accused had taken them to Sector-17, Pappan Kalan
where there was a small Pipal tree below which was a small temple.
About 50 paces on the southern side of this temple the accused had
recovered a polythene bag from inside some bushes and in this bag
was the pistol and the cartridges. All the three witnesses deposed that
no public witness was willing to join the recovery.
34. Counsel for A-1 had argued that in their cross-examination,
PW-22, PW-23 and PW-25 had admitted that the place of recovery is
an open place which is easily accessible to all and hence this recovery
cannot be relied upon. In State of H.P. v. Jeet Singh, (1999) 4 SCC
370, the Supreme Court explained whether a recovery from an open
place which is accessible to all can be relied upon in the following
words: -
"26. There is nothing in Section 27 of the Evidence
Act which renders the statement of the accused
inadmissible if recovery of the articles was made
from any place which is "open or accessible to
others". It is a fallacious notion that when recovery
of any incriminating article was made from a place
which is open or accessible to others, it would
vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in
places which are open or accessible to others. For
example, if the article is buried in the main
roadside or if it is concealed beneath dry leaves
lying on public places or kept hidden in a public
office, the article would remain out of the visibility
of others in normal circumstances. Until such
article is disinterred, its hidden state would remain
unhampered. The person who hid it alone knows
where it is until he discloses that fact to any other
person. Hence, the crucial question is not whether
the place was accessible to others or not but
whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place is
accessible to others."
(emphasis supplied)
35. Following the ratio in Jeet Singh‟s case (supra), the factum of
the recovery from an open place which is accessible to all would be of
no consequence if the recovered articles were concealed in such a way
that only the accused would know their exact location. In the present
case, PW-22, PW-23 and PW-15 deposed in unison that the pistol,
cartridges and other belongings of the deceased were concealed
behind some bushes and A-1 himself went inside the bushes and took
out these articles. Hence the location of the recovered article at the
instance of A-1 can be said to be within the exclusive knowledge of
A-1.
36. The argument of the counsel for A-1 that the pistol and
cartridges were sent to the FSL only on 21.12.2000 i.e. after a gap of
almost 30 days and there is no explanation offered for this delay by
the IO is not of any consequence in the present case as the prosecution
has not alleged that this pistol and cartridges were used for murdering
the deceased. A separate FIR no. 1107/2000 was registered under
Sections 25/54/59 of the Arms Act against A-1 on the recovery of the
pistol and cartridges and a separate case registered as Session Case
no.2/2001 was initiated against A-1 for the offence under Section 25
of the Arms Act. Under Section 25 of the Arms Act, mere possession
of an unlicensed pistol is punishable. Hence, the factum of this pistol
and cartridges being sent to the FSL for a ballistic examination is no
consequence in the present case. These facts relating to the recovery of
the pistol and cartridges were put to the accused in his statement under
Section 313 of the CrPC to which he offered no explanation.
37. Coming next to the recovery of the alleged personal belongings
of the deceased subsequent to the disclosure statement of A-1,
Ex.PW22/D, a polythene bag containing a black coloured purse
(Ex.P5), one ring (Ex.P6), currency notes of denomination 10 (Ex.P7),
one photograph of the deceased (Ex.P8) and some documents
(Ex.P9/1-9) were recovered vide pointing out memo, Ex.PW-22/N.
PW-22, PW-23 and PW-25 who were the witnesses to this recovery
admitted in their cross examination that these articles were not put to
any Test Identification Parade (TIP) and were not even identified by
anyone in Court. Even though the purse and the ring were of such a
nature that needed identification by a person who had seen the
deceased carrying/wearing them, but the photograph of the deceased
and his personal documents (Ex.P9/1-9) need no identification as these
articles irrefutably belong to the deceased. These facts relating to the
recovery of the deceased‟s personal belongings was put to A-1 in his
statement under Section 313 of the CrPC but he chose not to offer an
explanation.
Recovery at the instance of Kamaljeet (A-4)
38. Kamaljeet (A-4) was convicted for the offences under Section
201 read with Section 120B of the IPC as the Trial Court came to the
conclusion that he had provided the Van which was used to dispose of
the dead body. He had disclosed in his disclosure statement,
Ex.PW22/G that A-3 had come to his house on 13.11.2000 and both of
them had taken his van bearing registration number DNH 4256 to A-
3‟s chakki where A-1 and A-2 were already present. He disclosed that
Narender‟s dead body was wrapped in a bed sheet which was then
taken by all of them in this vehicle to be dumped in the nalla near
Vinod Motors. This Van was recovered pursuant to the disclosure
statement of A-4 from his house at A-56, Bhagwati Garden in the
presence of PW-22, PW-23 and PW-25.
39. This Van is registered in the name of Shri Satya Dev, father of
A-4, his address is mentioned as A-57, Bhagwati Garden in the RC.
The Trial Court had rightly observed that even though A-4‟s address
in the chargesheet is mentioned as A-56 Bhagwati Garden, the RC of
the car along with the Bail Bond and Personal Bond submitted by A-4
in Court establishes that both these addresses belong to A-4.
40. However, the recovery of this van is not enough to connect the
accused with the alleged crime and the prosecution had to establish a
connection between the recovered article and the alleged crime. In the
present case the Van was recovered from A-4‟s house. Hence the
place of recovery i.e. A-4‟s house is the only knowledge that could be
attributed to the accused. The burden lies on the prosecution to
connect the recovered article i.e. Van with the alleged crime. The
prosecution did not conduct any forensic examination of the Van to
prove that the dead body was actually transported in this Van for being
dumped at the nalla near Vinod Motors. The factum of the Van being
recovered from A-4‟s house is also of no help as his house was open
and accessible to several other people and not within his exclusive
knowledge, as contemplated in Section 27 of the IEA.
41. The Trial Court arrived at the conclusion that since the dead
body was recovered from the nalla, it must have been transported in
some van and since A-4 had stated in his disclosure statement that his
Van was used to transport the dead body, this disclosure statement has
to be relied upon in entirety. We are of the opinion that the Trial Court
erred in coming to this conclusion as the information relating to past
user or history is inadmissible in evidence and only the place from
where the article is recovered, is admissible in evidence.
Consequently, the recovery of the van at the instance of A-4 is of no
consequence. A-4 is therefore acquitted of the offences under Sections
201/120-B of the IPC.
Defence Witnesses
42. A-2 examined two witnesses in his defence to prove his alibi
that he used to leave for work at 6:30 AM and return at 10:00 PM
from 13.11.2000 to 20.11.2000. DW-1, Desh Raj who was working as
a foreman with A-2 in Bakhara Bawas Management Board
Power House, Balabhgarh, Haryana deposed that the general working
hours for the technical staff is from 8 AM to 5 PM. He also brought
the attendance register of the employees for the year 2000. Photocopy
of the attendance register for the month of November 2000 is
Ex.DW1/A. As per this register, A-2‟s name is mentioned at serial
no.21 and he was reporting for duty from 13.11.2000 to 20.11.2000.
He further deposed that he does not know the time taken to travel
from Uttam Nagar to Okhla. In his cross-examination, he admitted
that A-2 was absent from duty on 20.11.2000.
43. DW-2 Rakesh Kumar is A-2‟s neighbour. He deposed that he
has accompanied A-4 several times till Palwal. In his cross-
examination he could not tell the date or time when he had
accompanied A-2 till Palwal.
44. A-2 in his statement under Section 313 of the CrPC had stated
that he was summoned at the Police Station on 20.11.2000, after he
had returned home from work and was detained there for one day. The
falsity in this statement is brought out by DW-1‟s cross-examination
where he admitted that A-2 was absent from work on 20.11.2000. The
attendance register for November 2000 (Ex.DW1/A) shows that A-2
was being marked absent on 20.11.2000 and 21.11.2000. Further,
since A-2‟s shift was only till 5 PM, as deposed by DW-1, it is very
much possible that A-2 would have reached home before 8:30 PM,
which tallies with the time when PW-12 had last seen the deceased
alive with A-1, A-2 and A-3.
45. Further, A-2 did not give any suggestion to his sister (PW-11)
and brother (PW-26) during their evidence that on the date of the
incident i.e. 13.11.2000, he had reached home from his office at 10:00
PM, as was claimed by him in his statement under Section 313 of the
CrPC or even after 8:30 PM, when he along with A-1 and A-3 was
seen by PW-12 in the company of the deceased.
46. The several inconsistencies in the statement of A-2 under
Section 313 of the CrPC, the testimony given by DW-1 and
Ex.DW1/A do not prove the alibi pleaded by A-2. Rather, it brings
out his intention to conceal the truth by stating that he was at work on
20.11.2000, when he was not.
Conclusion
47. We are thus of the opinion that A-1, A-2 and A-3 have not been
able to discharge the burden cast upon them by Section 106 of the
IEA, after they had last been seen with the deceased before he was
found dead. Further, the motive of committing the murder has also
been proved through the letter (Ex.CW1/A) written by PW-11 to the
deceased some days before he was found dead. The recovery of the
deceased‟s personal belongings after A-1‟s disclosure is also an
important link in the chain of circumstances. The recovery of the
pistol and cartridges at the instance of A-3 has also been correctly
believed by the Trial Court. In view of the facts and circumstances of
the case, the chain of circumstance in the present case is so complete
so as to be consistent with the guilt of A-1, A-2 and A-3. All the
incriminating circumstances were put to the accused in their statement
under Section 313 of the CrPC to which they chose to give no reply.
A-2 chose to plead an alibi in his statement under Section 313 but that
has not been corroborated by the defence witnesses or the documents
brought on record.
48. In view of the facts and circumstances of this case, A-4
(Kamlajeet) is acquitted for the offences under Sections 201/120-B of
the IPC in Criminal Appeal no. 481/2004. The conviction of A-1
(Surender), A-2 (Dinesh) and A-3 (Jitender), appellants in Criminal
Appeal no. 389/2004, Criminal Appeal no. 339/2004 and Criminal
Appeal no. 393/2004 respectively under Sections 302/201/120-B of
the IPC, is upheld. The conviction of A-1 under Section 25 of the
Arms Act is also upheld. The bail bonds and surety bonds furnished
by the said appellants are hereby cancelled. They shall surrender
before the Trial Court within two weeks, failing which the IO
concerned will immediately take steps to have them arrested and sent
to custody for serving out the remainder of the sentence awarded to
them in the impugned judgment.
49. We find that the Trial Court has not awarded any compensation
to the legal representative of the deceased under Section 357 of the
CrPC. Meanwhile Section 357A CrPC has been incorporated w.e.f.
31.12.2009. Pursuant thereto, the Government of NCT of Delhi has
framed the Victim Compensation Scheme. Therefore, the Delhi State
Legal Services Authority („DLSA‟) is directed in terms of Section
357A (5) of the CrPC to forthwith undertake an inquiry and award and
ensure disbursal of the appropriate compensation to the legal heirs of
the victim in terms thereof within two months. For this purpose, a
certified copy of this judgment shall be delivered forthwith to the
Secretary, DLSA with a further direction to submit a compliance
report to the Roster Bench within three months from the date of
receipt of a certified copy of this judgment. If no such compliance is
forthcoming within the stipulated time, the Registry will place a note
before the Roster bench for further directions.
50. These appeals are disposed of in the above terms. The Trial
Court record be returned together with a certified copy of this
judgment.
(VINOD GOEL)
JUDGE
(HIMA KOHLI)
JUDGE
AUGUST 02, 2019
