Delhi High Court
Sandeep Bhandari vs State Nct Of Delhi on 2 July, 2012
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat, S.P. Garg
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 22.05.2012
PRONOUNCED ON: 02.07.2012
+
CRL.A.54/2012
SANDEEP BHANDARI ..... Appellant
Through: Mr. A.J. Bhambhani with
Ms. Lakshita and Ms. Bhavita, Advocates.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, APP along with
SI Manoj Kumar, PS Prashant Vihar.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG
MR. JUSTICE S.RAVINDRA BHAT
% 1. This appeal is directed against the judgment of the
learned Additional Sessions Judge dated 10.09.2010 and the order on
sentence dated 13.09.2010 in SC No.200/2007 whereby the appellant
was convicted for committing offences punishable under Sections 302
and 201 IPC, and sentenced to undergo imprisonment for life and five
years' rigorous imprisonment, besides payment of fine.
2. The prosecution case is that the appellant killed his mother,
Kamla, in the late morning of 03.10.2005. The police received first
intimation about this at 12.14 noon (Ex.PW-9/A). PW-5, Constable
Crl.A.54/2012 Page 1
Naresh Kumar, with the IO, PW-15, SI Sunil Kumar went to the place
of incident where PW-1, Bhupinder Singh handed-over the present
appellant. The FIR was registered upon the statement of the first
informant, PW-1, Bhupinder Singh. The informant, PW-1 was a
property broker and had his office at G-7/85, Sector-15, Rohini. He
stated that on 03.10.2005 at 12.00 noon, he was present in his office
with one Madan Lal, PW-6, who was sitting with him when there was
a commotion about 4-5 houses away from his office. He and Madan
Lal went to that place, H. No. G-6/63, on the ground floor; a large
number of people were gathered in the park beside the house. PW-1
stated that the appellant was also present outside his house with a cup
of tea in his hand. PW-1 enquired from the appellant what the matter
was and why he was standing outside his house in such condition, as
there was a fire in the house; he stated that he had killed his mother
and set fire to her body. According to PW-1, the appellant said that he
collected quilts, pulled them over his mother and lit them up with fire.
PW-1 stated that he, with members of the public tried to douse the fire
by pouring water and thereafter called the police. On the basis of this
statement, Ex.PW-1/A, the FIR, Ex.PW-2/A was registered at 01.40
PM by Police Station Prashant Vihar. The IO proceeded to collect
materials and seized articles. The crime team reached the spot and
inspected the place of incident between 01.00 and 01.30 PM the same
day; its report, Ex. PW-4/A was placed on the record during the trial.
The deceased's body was sent for Postmortem examination. During
the course of investigation, the Postmortem Report, Ex. PW-8/A was
collected.
Crl.A.54/2012 Page 2
3. On the basis of investigation, and the charge-sheet filed, the
appellant was charged with committing the murder of his mother and
disposing of her body through fire. He pleaded innocence and
claimed trial. During the proceedings before the Trial Court, the
prosecution relied upon the testimony of 17 witnesses, besides
documentary evidence and material exhibits. After considering the
submissions on behalf of the parties, the Court concluded that the
appellant's guilt had been proved beyond reasonable doubt.
4. The Trial Court's findings were based upon the testimonies of
PWs-1 and 6. It was held that these witnesses were residents of the
area and had given independent testimony, which pointed to the fact
that the accused was present outside the house immediately after the
incident occurred. The accused's strange behavior and his statement
to PW-1, according to the Court was admissible in law, during the
trial. The Trial Court rejected the appellant's contention that the
predominant relevance on extra-judicial confession could not be the
basis of conviction. The Court also held that the appellant had taken
the defense that his mother had been killed by intruders who had
broken into the house; however, among the articles recovered, from
the deceased were valuable articles and jewelry. The Trial Court also
relied upon the recovery of the blood-stained trouser and shirt as
admissible, by virtue of Section 27 of the Evidence Act. The Trial
Court further held that the injuries on the appellant were simple and in
all probability were the result of struggle and fight put up by his
mother when he was engaged in the process of killing her.
5. Learned counsel appearing on behalf of the appellant argued
Crl.A.54/2012 Page 3
that the conviction recorded by the Trial Court is unsustainable in law,
contending that since there were no eyewitnesses to the incident,
learned counsel stressed that it was incumbent upon the prosecution to
prove every circumstance as well as every link in the entire chain of
circumstances so as to unerringly and conclusively point to the
appellant's role as perpetrator of the crime. In this case, all that the
prosecution managed to do during the trial was to rely upon the
testimonies of PWs-1 and 6. These witnesses were concededly not
known to the appellant. It was highly improbable that the appellant
would have confessed to the killing of his mother to such unknown
individuals. Learned counsel submitted in this regard that
extra-judicial confessions of the kind which the prosecution relied
upon in this case were inherently weak pieces of evidence and there
had to be substantial corroboration, through other objective material, if
a conviction were to be recorded. It was urged that in this case, in fact
there was no corroborative material.
6. Learned counsel next submitted that the possibility of PWs-1
and 6 being introduced or planted as witnesses by the prosecution
could not be ruled-out. There was no evidence apart from the
testimonies of these two despite both of them deposing about a crowd
having collected by the time they reached the spot. Learned counsel
stressed the fact that these two witnesses were not part of the res
gestae in the sense that they did not observe or witness any incident
integrally connected with the murder. All that they claimed to have
seen was the appellant standing outside his home when it was ablaze.
In other words, submitted learned counsel, it was the word of the
Crl.A.54/2012 Page 4
appellant as against that of PWs-1 and 6. Therefore, the prosecution
had to necessarily adduce further convincing and corroborative
evidence and could not have rested its case on the testimony of these
two witnesses. In this context, learned counsel submitted that PW-1
admitted about his acquaintainceship and knowing the beat constable.
The possibility of his being a stock witness therefore, counsel
submitted, could not be entirely ruled-out.
7. It was submitted that so far as the recovery of knife and the
blood-stained clothes etc. are concerned, by themselves, they are not
deemed so incriminating as to lead to conviction. A kitchen knife is a
fairly commonplace article found in every home; as far as the clothes
of the appellant are concerned, they are not unusual. The reliance on
Section 27 by the Trial Court to hold that the appellant disclosed about
these articles, in these circumstances, could not be of any avail to the
prosecution.
8. It was argued that in a case of this kind where the prosecution
entirely rested its theory of circumstantial evidence, the State had to
prove existence of some motive on part of the suspect. Here, however,
motive was entirely absent and no attempt was made by the State to
lead any evidence about previous enmity or otherwise. Since the
events occurred in broad daylight, in the middle of a busy residential
area, the possibility of involvement of a third-party or parties could
not be ruled-out. Learned counsel submitted in this context that the
appellant's case that some individuals had broken into the house and
were responsible for the crime was corroborated by his suffering
injuries. According to the counsel, the Trial Court fell into error in
Crl.A.54/2012 Page 5
disbelieving this and not insisting upon any explanation by the
prosecution with regard to injuries upon the appellant.
9. Learned counsel sought to urge that even if the Court were to
take the entirety of circumstances, both PWs-1 and 6 had deposed
before the Trial Court that the appellant was behaving abnormal and
was in a "perturbed condition". Furthermore, argued counsel, the
appellant is undergoing psychiatric treatment in jail. The possibility of
his not being in his senses as to understand the consequence of his
actions could not be ruled-out. In other words, submitted counsel, the
Court could have held that the appellant was suffering from a
condition which entitled him to the defense provided under Section 84
of the IPC.
10. Learned APP submitted, on the other hand, that the Trial Court
has carefully sifted all the evidence and tested the credibility of the
witnesses before concluding that the appellant was guilty of the
offences he was charged with. It was submitted that nothing could be
elicited in the testimonies of PWs-1 and 6 to shake their credibility.
Both of them were consistent as to what they observed during the
immediate aftermath of the incident when the appellant's mother was
on fire in her house. Although a crowd had gathered when PW-1
rushed to the spot, the fact remained that his independence has not
been seriously questioned or shaken during the cross-examination.
Learned counsel emphasized that the appellant did not deny having
been in the house at the time when his mother was killed. His false
defence, however was with regard to some intruders breaking in and
killing her. Learned APP submitted that in the cross-examination of
Crl.A.54/2012 Page 6
PW-1, suggestion had been put that two persons had stopped the
appellant's mother and taken-away Rs.25,000/-. However, no
valuables were reported to have been lost; on the other hand, jewelry
and gold ornaments were found on the deceased. These pointed to the
fact that not only was the appellant aware that he was on trial, that also
he was arrayed for an offence which he was responsible for
committing, but also that he sought to concoct a story to defend
himself.
11. It was urged that apart from the testimony of PW-1, which was
corroborated in all material particulars by PW-6, who had
accompanied him to the spot, other evidence in the form of seizure of
articles, the Postmortem report as well as seizure of blood-stained
clothes and weapon of offence, made pursuant to the disclosure by the
appellant incriminated him. These read together with the evidence of
PWs-1 and 6 conclusively established the appellant's guilt beyond
reasonable doubt. Learned APP highlighted the circumstance that an
appellate Court would be slow in disturbing the findings of a criminal
court unless it disclosed substantial or compelling reasons. It was
emphasized that even if this Court were to take another view, that
itself is not a good enough ground to disturb the opinion of the Trial
Court; which was a reasonable one, having regard to all the
circumstance proved before it.
Analysis and findings:
12. The previous discussion would reveal that the incident in this
case leading to the death and burning of the appellant's mother, in
Rohini was reported at 12.14 noon time of 03.10.2005 (Ex.PW-9/A).
Crl.A.54/2012 Page 7
The incident apparently occurred around 12 noon, according to PW-1,
who also claimed that he had caught hold of the appellant. The police
reached the spot within half an hour and recorded the statement of
PW-1 (Ex.PW-1/A) at 01.15 PM. The FIR (Ex.PW-2/A) was
registered at 01.40 PM. Although the police reached the spot and the
FIR was registered apparently, the arrest was formally shown to have
taken place at 05.30 PM, EX.PW-1/J. In the testimony of PW-1, it was
claimed that he heard the commotion at 12 noon and went to the spot.
In his statement recorded under Section 161 Cr.PC, at the foot, the
approximate time is recorded as 10.30 AM; however, in the body of
the statement, the witness had claimed that the incident occurred at
12.00 noon. The witness, therefore, was consistent about the timing of
the incident. Furthermore, the Court is conscious of the fact that
PW-1's testimony was recorded in the Court in 2008, on 21.04.2008,
i.e. more than 2 ½ years after the occurrence. If there is any doubt
about the timing of the incident, that stands dispelled by the
postmortem report, Ex.PW-8/A. The postmortem was started at 11.25
AM; the opinion given by the doctor is that the time of death was
approximately one day before that. Having regard to all these
circumstances, it is immediately clear that the police were informed
almost immediately about the incident, at 12.14 PM; they reached the
spot and recorded the statement of PW-1 without any delay. This
aspect assumes significance, in the opinion of the Court, since the
prosecution has established that the FIR was lodged at the earliest
available opportunity and without any loss of time.
13. Since the deposition of PW-1 is the prosecution mainstay, it
Crl.A.54/2012 Page 8
would be necessary to closely scrutinize it. The witness was a property
broker, who deposed that around 12 noon on 03.10.2005, PW-6 was
sitting with him in the office. Both heard some alarm or commotion
about 4-5 houses away, near G-6/63. They went there and were told
that someone had set his mother on fire. The witness stated that he
found a large number of people had gathered in the park outside the
house; they enquired what the matter was. At that time, the appellant
was outside the house with a cup of tea. PW-1 enquired what the
matter was and why he was standing outside his house when there was
a fire in the house. At that stage, he told the witness that he had
committed her murder and put her on fire by putting quilts etc. PW-1
further deposed that he enquired from the appellant why he was
having tea after killing his mother, to which the latter replied, "Aur
mai kya karta". PW-1 further deposed that his mother was not
maintaining him properly and not arranging a suitable match and that
he had killed his mother since he was fed-up. The witness and others
tried to douse the fire with water and called the police. The police told
him not to allow the appellant to flee. PW-1 also witnessed the arrival
of the police, taking of the appellant into custody and seizure of
various articles, such as knife, candle, match box and burnt clothes,
lifting of blood samples and personal arrest memo and personal search
of the appellant. The witness also identified the shirt and pant, marked
as Ex.PW-P4/1-2.
14. In the cross-examination, PW-1 stated that his office was at a
distance of 400 yards from the house of the appellant and that the
entire area was residential. 100-150 people had gathered near the
Crl.A.54/2012 Page 9
house, majority of who were women and children. The house where
the occurrence took place was a three-storeyed one. He deposed to
having reached the spot at 12 noon and called the police, which
arrived within 15 minutes.
15. PW-6 deposed that he was operating an STD booth from his
shop at G-14/90, Sector-15 Rohini. He corroborated the statement of
PW-1 that he was with the latter at 12 noon when he heard the
commotion and went to the house where they found the accused in a
perturbed condition. This witness also stated that the accused
confessed to killing his mother and setting her body on fire and
attempts to douse the fire. PW-1 informed the police and handed-over
the accused to the latter. The witness further mentioned about the visit
of the crime team and a photographer; inspection of the scene of
crime, its photographing etc. In cross-examination, he stated that only
one statement under Section 161 Cr.PC was recorded by the police on
the day of the incident. He stated that PW-1's statement was also
recorded the same day. This witness too corroborated PW-1's version
that the police was informed by the latter and that they arrived at the
spot within 15 minutes. He further stated that 50-60 persons had
gathered at the spot when both reached there and that the house in
which the occurrence took place was a three-storeyed one. PW-6
remained at the spot till 02.30 PM.
16. PW-8, Dr. Upender Kishore of Safdarjung Hospital conducted
the postmortem on 04.10.2005. He deposed that burnt pieces of cloth
had stuck to the thigh, face, upper chest of the deceased Kamla's body
and her left hand was charred to the bone. PW-8 further stated that
Crl.A.54/2012 Page 10
heat rupture was present on the front of the chest, abdomen and thigh
blackening of body was present and her hair was singed and there was
no smell of kerosene. The external ante-mortem injuries in the body as
also the subsequent opinion of the doctor about the weapon of offence
and the request of the IO is extracted below:
"XXXXXX XXXXXX XXXXXX
External ante mortem injuries:-
(1) incised wound of size 6x2cms x bone deep present
in the middle of head over the forehead and extended to
the back.
(2) incised wound of size 5 cm x 1.5 cm x bone deep
present over the right side parietal region starting from
the hair line.
(3) incised wound of size 4 x 1.5 cms x bone deep
present over the right temporo parietal region parallel to
injury no.2
Internal examination:-
Extravasation of blood at the injury no.1, 2, 3 on
the scalp present. Brain oedematous and congested,
massive extravasation of blood and bruising of the
muscle seen in the neck region with fracture of hyoid
bone present. All internal organ congested, stomach was
empty, no abnormal smell was found.
Opinion:-
Cause of death in this case was Asphyxia as a
result of manual strangulation. Injury No. 1 to 3
produced by sharp cutting object/weapon. All injuries are
Antemortem in nature. The burns wound was
postmortem. I also preserved burnt piece of cloth and
hair blood in guaze piece. Time since death one day. My
detailed report is Ex.PW-8/A which bears my signature at
point A.
Crl.A.54/2012 Page 11
I also gave subsequent opinion on the weapon of
offence. On the request of IO Ram Mehar Singh PS
Prashant Vihar alongwith sealed parcel which set to
contain a knife sealed with 3 seals showing RS in white
cloth of dated 5.12.05.
XXXXXX XXXXXXX XXXXXX"
17. The account of PWs-1 and 6 about the circumstances in which
they observed the incident and what they heard from the accused is
consistent in all material particulars. As noticed earlier, the incident
was reported almost simultaneously after its being seen, by PW-1; his
statement too was recorded immediately without any loss of time.
These external factors are very material as they diminish and if not
altogether, rule-out the possibility of false implication since ordinarily
that phenomenon occurs if there is some delay in reporting the
incident and registering the FIR. There is no doubt that neither PW-1
nor PW-6 are eyewitnesses to the incident, yet, they heard a
commotion and rushed to the spot. That they were residents, or
occupants of the premises in the area has not been disputed by the
appellant. PW-1 has his office a few houses away from the appellant's
house; PW-6 manages the shop nearby. Both witnesses were known to
each other. By all accounts, they are independent. The appellant's
attempt to cast a slur on their independence, by suggesting that they
were known to the police officials, is not substantial because both
witnesses mentioned that they were acquainted with the beat
constable. That by itself cannot lead to the inference that the
Crl.A.54/2012 Page 12
statements are due or result of an afterthought. It is not unusual for
small businessmen to be aware of local police officers and Constables.
Their acquaintance with such authorities cannot be by itself lead to the
conclusion that they were stooges of police or stock witnesses. In fact
no such suggestion was made to the witnesses.
18. Even though PWs-1 and 6 were not witnesses to the incident,
the fact remains that they reached the spot immediately, upon hearing
the commotion. In a sense, they were witnesses to the events which
occurred immediately after the incident. Their testimony, therefore,
assumes significance and relevance by virtue of Section 6 of the
Evidence Act, which reads as follows:
"XXXXXX XXXXXX XXXXXX
6. Relevancy of facts forming part of same transaction -
Facts which, though not in issue are so connected with a
fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
XXXXXX XXXXXX XXXXXX"
19. Section 6 embodies the rule of admission of evidence relating to Crl.A.54/2012 Page 13 what is known as res gestae. The essence of that doctrine is that facts which though not in issue are so connected with and are part of the transaction, are as relevant as facts in issue. In this case, the consistent version of PWs-1 and 6 is that the accused/appellant told or confessed to them about having committed the crime. Though there is no corroborative material as to motive, the account narrated by these two witnesses, in their statements under Section 161 Cr.PC as well as in the deposition before the Court, is that the appellant claimed that his mother was not maintaining him appropriately and was not finding a suitable match. These led him to kill her and set her on fire after piling quilts upon her. The depositions of PWs-1 and 6 pertained not only to the confession but also to the conduct of the appellant which was abnormal; he appeared to have been behaving strangely which led them to ask him what happened. The account given by them in Court as to what led them to question the appellant appears to be entirely genuine since the appellant was sipping tea even after being aware that his mother was on fire. This underlines the fact that the witnesses did not exaggerate him or concoct a story.
20. Although an argument was made on behalf of the appellant that an extra-judicial confession by itself cannot lead to conviction, there is no thumb-rule in this regard. Yet, there are circumstances which corroborate the prosecution story about the appellant being the perpetrator of the crime. In the disclosure statement, Ex.PW-1/L, the appellant mentioned that he had strangulated his mother with his bare hand and then stabbed her. The disclosure statement was recorded on 03.10.2005. There is external corroboration of this in the postmortem Crl.A.54/2012 Page 14 report, which cites the cause of death as manual strangulation. The manner of killing and the cause of death (which was mentioned as having happened on 03.10.2005 at the time of the arrest, but was subsequently revealed during the day), stood corroborated and constituted a "fact discovered" and, therefore, admissible under Section 27 of the Evidence Act.
21. Furthermore, there is also corroboration in the postmortem report and the testimony of PW-8 about the fact that burnt pieces of cloth were adhered to the deceased's body. In his extra-judicial confession to PWs-1 and 6, the appellant had mentioned that he had pulled quilts and other such clothes on his mother before setting the body on fire. This fact was not known to the witnesses and was in fact corroborated by the postmortem report.
22. The appellant's counsel had, during the course of hearing, argued that even if the entirety of circumstances are to be taken into consideration, and the facts held to be proved, his conduct and behavior was so abnormal as to have led the Court to investigate the matter further as to his mental capability. Learned counsel had emphasized the fact that the appellant is undergoing medical treatment for his mental or psychiatric condition during the period of detention in jail. This Court is of the opinion that as the plea of insanity was not entered during the trial, there is no objective evidence apart from the witnesses' testimony about his strange and unaccountable behavior. By itself this cannot be safe to conclude that at the time of the murder, the appellant had lost his senses as to be entitled to the defense of insanity under Section 84 IPC.
Crl.A.54/2012 Page 15
23. In view of the foregoing reasons, this Court is of the opinion that the prosecution had established conclusively and beyond reasonable doubt that the appellant and none else was responsible for the commission of his mother - Kamla's murder on 03.10.2005. The Trial Court's findings are sound and do not call for interference. We would, however, at this stage, having regard to the submissions of the appellant's counsel, direct the concerned Jail Superintendent to have the appellant evaluated for psychiatric treatment. Having regard to the views and report so received, further action and proceedings in accordance with law shall be taken.
24. The appeal is without merit and is accordingly dismissed but subject to the directions given to the Jail Superintendent in the immediately preceding discussion. A copy of the judgment shall be transmitted for due compliance to the Jail Superintendent, who shall submit an Action Taken Report within six weeks. The matter shall be listed for formal compliance on 16.08.2012. The appeal is disposed of in the above terms.
S. RAVINDRA BHAT, J
S.P.GARG, J
JULY 02, 2012
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