Delhi High Court
Lakhan Singh @ Pappu vs The State Of Nct Of Delhi on 16 September, 2011
Author: Sunil Gaur
Bench: Pradeep Nandrajog, Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: August 25, 2011
Judgment pronounced on: September 16, 2011
+ Crl. Appeal No. 166/1999
LAKHAN SINGH @ PAPPU ..... Appellant
Through: Mr.Salman Hashmi, Amicus
Curiae
versus
THE STATE OF NCT OF DELHI ..... Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
SUNIL GAUR, J.
1. The 5 circumstances relied upon by the trial court to convict the appellant Lakhan Singh @ Pappu, s/o Om Dutt for committing the murder of Shanti Prashad in the night of 11.9.1993 are motive, last seen, recovery of the weapon of offence, extra judicial confession, and conduct of appellant/ accused. Appellant has been sentenced to imprisonment for life vide impugned judgment/ order of 7.4.1998.
2. The factual scenario emerging from the record of this case is that in the month of August, 1993 Smt.Chanda PW-18, wife of Shanti Prashad had come to her parental house on the occasion Crl.A.No.166/1999 Page 1 of 17 of Raksha Bandhan and on 11.9.1993 her husband Shanti Prashad had come to the house of his in-laws to take back Smt.Chanda PW-18 to his house. On that day, after serving the dinner at about 8:30 p.m. to her husband at the house of her mausi Smt.Rajjo Devi PW-4, Smt.Chanda PW-18 had gone to the nearby house of her another mausi Madhu PW-5. Appellant who used to reside in the vicinity of parental house of Smt.Chanda, was known to the family of Chanda and had earlier met their son-in-law - Shanti Prashad and used to address him as Jija.
3. On 11.9.1993 at about 8:30 p.m. appellant came outside the house of Smt.Rajjo PW-4, where Shanti Prashad was present and had invited him to come with him to have tea. Shanti Prashad had gone with the appellant but did not return back. At about 10:00 p.m. on that day, Niroti PW-7, father of Chanda PW- 18 had seen the appellant roaming in the area nearby his house and enquiries made from appellant about Shanti Prashad were not satisfactorily answered. He had expressed concern to Smt.Rajjo PW-4 about Shanti Prashad not returning back. When Shanti Prashad could not be found, Niroti PW-7 had again asked the appellant about the whereabouts of Shanti Prashad and he had disclosed that Shanti Prashad was at the tea shop of Hari Chand PW-22 and on being contacted, Hari Chand told Niroti PW-7 that Shanti Prashad had not come to his shop. Kalwa step brother of the appellant was sent to Agra from where Shanti Prashad had come, to search for him. Upon learning about the disappearance of Shanti Prashad, his father and brother came to the house of Niroti PW-7.
4. On 13.9.1993 at about 6:40 p.m. DD No. 58-B was got registered at Police Station Kotwali in Delhi regarding the Crl.A.No.166/1999 Page 2 of 17 disappearance of Shanti Prashad and on the same day at about 10:00 p.m., Bahadur PW-1 a resident of the Yamuna Pushta area, from where Shanti Prashad had disappeared, had gone to the ganda nala to answer the call of nature and had spotted a dead body in the ganda nala and had informed Niroti PW-7 and others about it. Then Niroti PW-7 and others including the appellant went to the ganda nala from where the dead body was taken out and was identified to be that of Shanti Prashad. When Smt.Rajjo Devi PW-4, Niroti PW-7 etc. were talking of reporting this matter to the police, appellant stealthily slipped away from the ganda nala and had absconded.
5. On the statement of Smt.Rajjo Devi PW-4, suspecting appellant to be the culprit, FIR No.633/1993 under Section 302 of the Indian Penal Code was registered at Police Station Kotwali, Delhi. Inquest proceedings were conducted. In the post mortem examination conducted on 14.9.1993 it was found that there were as many as 14 external injuries on the dead body of Shanti Prashad, which were opined to be sufficient to cause his death. During the course of the investigation, statement of witnesses were recorded and an information was received that the appellant was confined in Agra Jail in a case under Arms Act. Upon being arrested in this case, appellant made a disclosure statement and in pursuance thereto, had got recovered the weapon of offence i.e. dagger/ knife EX.P-1 from the bushes under a peepal tree at the ganda nala in Yamuna Pushta i.e. the locality in question.
6. After completion of investigation, appellant/accused was charge-sheeted and had chosen to contest the charges under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act framed against him by the trial court.
Crl.A.No.166/1999 Page 3 of 177. 33 witnesses had deposed at trial. On the motive aspect, the evidence led was of Smt.Chanda PW-18, wife of the deceased. To prove the circumstance of last seen, the evidence relied upon was of Abdul Barik PW-3, Smt.Rajjo Devi PW-4, Smt.Madhu PW-5 and Smt.Chanda PW-18. The deposition of Smt.Rajjo Devi PW-4, Radhey Shyam PW-6, Datta Ram PW-21 and Hari Chand PW-22 is relied upon to pin point the conduct of appellant/ accused slipping away from the ganda nala when it was being resolved to report this matter to the police.
8. Trial court has relied upon the evidence of Sri Krishna PW- 12 regarding appellant/ accused making extra judicial confession to him of committing this crime. The evidence of SI Mahipal PW-26, Vinod Kumar Pandey PW-31 and ASI Avinash Tyagi PW-33 has been relied upon to establish that appellant/ accused in pursuance to the disclosure statement EX.PW15/A had got recovered the weapon of offence i.e. the dagger/ knife EX.P-1. When the aforesaid incriminating evidence was put to the appellant/ accused, he simply denied it. Strangely, appellant pleaded ignorance to the incriminating circumstance of recovery of weapon at his instance and had finally asserted as under:-
"Q. Do you want to say anything else?
Ans. I am innocent and I have been implicated falsely at the instigation of Naroti who is having inimical terms with my father and therefore we had sold the jhuggi at Yamuna Pushta and went to Agra and thereafter I don‟t know anything about the present case. I have been implicated falsely."
9. Though the plea of alibi was not taken by the appellant/accused in his statement under Section 313 of Cr.P.C., Crl.A.No.166/1999 Page 4 of 17 but he had got examined one property dealer Jai Prakash (DW-1) from his native place to project that appellant had left Delhi in the month of „Asadh‟ (July) in the year 1993 and thereafter had not come to Delhi.
10. Relying upon the evidence on record, Trial Court had held that the 5 circumstances, i.e., motive, last seen, recovery of weapon of offence, extra judicial confession and the conduct of appellant/accused, stood proved and thus vide impugned judgment and order, appellant/accused stands convicted and sentenced as afore-noted.
11. The legal position pertaining to appreciation of circumstantial evidence of last seen has been summarised in a Division Bench decision rendered by one of us, namely; Pradeep Nandrajog, J., in Crl.A.No.362/2001 titled as Arvind @ Chhotu vs. State decided on 10.08.2009 in the following words:-
(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-
seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.
Crl.A.No.166/1999 Page 5 of 17(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.
The above circumstances are illustrative and not exhaustive. At the foundation of the last- seen theory, principles of probability and cause Crl.A.No.166/1999 Page 6 of 17 and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction."
12. To dislodge the entire circumstantial evidence led against the appellant/accused, Mr.Salman Hashmi, learned Amicus Curiae counsel for the appellant strongly relied upon the plea of alibi and had drawn the attention of this Court to the evidence of Jai Prakash (DW-1) to assert that though the plea of alibi was not taken by the appellant/accused in his statement under Section 313 of Cr.P.C. but still in the face of the evidence of Jai Prakash (DW-1) appellant can very well urge this plea as it relates to the plea taken by the Appellant in his statement under Section 313 of Cr.P.C. of his father selling away his jhuggi at Yamuna Pushta, Delhi and of their going away to Agra. Learned amicus curiae counsel relied upon the two decisions reported in 2011 (2) JCC 1357 - Ram Kishan vs. State and (2002) 1 SCC 71 - Kashi Ram and Ors vs. State of M.P., to urge that such like plea of alibi or self defence can always be taken by the accused even if it is not put to the witnesses or is not taken in the statement under Section 313 of Cr.P.C.
13. It must be noted that the above cited 2 decisions pertained to the plea of self defence. The plea of alibi cannot be equated with plea of self defence and ought to be taken at the first instance and not belatedly at the stage of defence evidence. In any case, appellant/accused gives no reason or explanation for not taking this plea of alibi at the earliest opportunity. Moreover, there is no yardstick to gauge or cross-check as to whether there is any truth in the self serving statement made by the Crl.A.No.166/1999 Page 7 of 17 defence witness Jai Prakash (DW-1) of Appellant not visiting Delhi after July, 1993 except on the touchstone of „probability‟ factor. On the face of it, the evidence of defence witness Jai Prakash (DW-1) hardly inspires any confidence even when viewed in the context of the stand taken by appellant in his statement under Section 313 of Cr.P.C.
14. To say the least, the plea of alibi taken by the Appellant belatedly through the evidence of defence witness Jai Prakash (DW-1) for the first time, is not only an afterthought but is improbable for the reason that Appellant fails to disclose as to where and with whom he was on the day of this incident i.e. on 11.9.1993. In fact, the plea of alibi propounded by defence witness Jai Prakash (DW-1) is half baked as he does not claim that the Appellant was with him on the day of this incident. In this view of the matter, we find that the so-called plea of alibi taken by the Appellant cannot succeed as the same remains unsubstantiated. Even the stand taken by the Appellant in his statement under Section 313 of Cr.P.C. is bald one and has not been made plausible.
15. It needs no reiteration that to base a conviction on circumstantial evidence, it must be established that the incriminating circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused and suspicion, however grave, cannot be a substitute for the proof. Taking utmost precaution, we have re- appreciated the entire evidence on record to satisfy ourselves as to whether the circumstantial evidence of motive, last seen, recovery of weapon of offence, extra judicial confession and conduct of appellant/accused clinchingly incriminates the appellant or not?
Crl.A.No.166/1999 Page 8 of 1716. The 1st circumstance is of „Motive‟. We find that Smt.Chanda (PW-18) wife of the deceased has spelt out in her evidence that appellant/accused had a strong motive to eliminate the deceased as appellant had infatuation for this witness and wanted to desperately marry her, knowing well that she was already married and when this witness refused to marry the appellant, about a fortnight prior to this incident, he had threatened her that she would repent. Testimony of this witness remains unassailable in cross-examination and has been rightly relied upon by the Trial Court. Appellant has tried to dislodge this strong circumstance by belatedly putting forth the plea of alibi which has been found to be without any tangible basis.
17. The 2nd circumstance is of „Last Seen‟. The primary evidence is of Smt.Rajjo Devi (PW-4), at whose house the deceased was present when the Appellant had come there and had taken away the deceased with him on the pretext of having tea with him. Nothing worthwhile has emerged in the cross- examination of this witness to discredit her version and no meaningful submission was advanced at the hearing to dislodge her testimony which receives ample corroboration from the testimonies of wife of the deceased-Smt.Chanda (PW-18) and that of her mausi - Smt.Madhu (PW-5) from whose house they had last seen the deceased in the company of the Appellant at about 8.30 PM on 11.9.1993. At the hearing, it could not shown as to why the deposition of the aforesaid three witnesses ought not to be relied upon. Indeed, trial court has correctly relied upon the evidence of these three witnesses.
18. An independent witness Abdul Barik (PW-3) having a „Paan shop‟ in the locality in question had also seen the Appellant with Crl.A.No.166/1999 Page 9 of 17 the deceased at about 8.45 PM on 11.9.1993. This witness had stoutly withstood the cross-examination by the defence and nothing could be brought out in his cross-examination to discredit his testimony in any manner whatsoever.
19. Pertinently, we find that the time gap between the deceased having been last seen with the appellant/accused and the death of Shanti Prashad is quite proximate, as is evident from the Post Mortem Report of 14.9.1993 that the time since death was about 2-3 days. Thus, we are of the considered opinion that the incriminating circumstance of „last seen‟ stands firmly established from the afore-referred evidence.
20. The 3rd circumstance is of „Extra Judicial Confession‟ made by the appellant/accused before Sri Krishan (PW-12) confessing his mistake of having killed the deceased. The appellant was no stranger to this witness who knew the deceased as well as the appellant quite well. Appellant and this witness were of the same locality and as it emerges from the deposition of this witness, he presumably as a well wisher had disclosed to the appellant that his name is figuring in the murder of Shanti Prashad and spontaneously appellant while addressing this witness as Mama had blurted out that a mistake had been committed by him. Candidly, appellant had uttered that he had killed Shanti Prashad. Nothing has been brought out in the cross-examination of this witness by the defence as to why the testimony of this witness ought not to be believed, nor any infirmity was pointed out in the evidence of this witness which we find to be worthy of utmost reliance.
21. The 4th circumstance is of „Conduct‟ of appellant/accused. On 13.9.1993 at about 10.00 PM, Bahadur (PW-1) resident of the Crl.A.No.166/1999 Page 10 of 17 locality had discovered a dead body at the nearby ganda nala and had informed Niroti (PW-7) father-in-law of the deceased who alongwith Data Ram (PW-21), Pradhan of the locality, Smt.Rajjo Devi (PW-4) first informant, Radhey Shyam (PW-6) brother of the deceased had immediately gone to the ganda nala and had identified the dead body lying there as that of Shanti Prashad. Relevantly, appellant/accused had also accompanied the aforesaid witnesses to the ganda nala and it stands revealed from the evidence of the aforesaid witnesses that when they were talking about lodging a police report, regarding the death of Shanti Prashad, appellant/accused had slipped away. This has been so reiterated even by Data Ram (PW-21), Pradhan of the locality and his evidence remains unchallenged on this vital aspect.
22. Not only this, it has come in the evidence of Naroti (PW-7) father-in-law of the deceased that appellant had even tried to divert the attention of this witness at the ganda nala when they were trying to locate the deceased. As per deposition of this witness PW-7, when he had inquired from the appellant on 11.9.93 itself about the whereabouts of Shanti Prashad, Appellant became perplexed i.e. „ghabraya hua tha‟ and had uttered „Mujhe nahi pata puste pe edhar udhar dund lo‟. As per this witness - PW-7, when on the day of the incident pointed enquiries were made from the appellant about the whereabouts of the deceased, appellant had uttered that „Main usko kahi nahi le gaya, chay ki dukan pe le gaya tha, wahi chor diya tha‟.
23. Importantly, there is unchallenged testimony of Niroti (PW-
7) that after about one and half or two hours of appellant being last seen with the deceased, he had seen appellant coming from Crl.A.No.166/1999 Page 11 of 17 the side of ganda nala and he had covered his face when he had seen this witness and at that time, appellant was perplexed and on enquiry from him, it was noticed by this witness that the appellant was not listening to him properly and had come down to the hand pump and took his bath there. This post incident conduct of the appellant unerringly points a finger of guilt towards him.
24. Though no worthwhile challenge could be made by the learned amicus curiae counsel to the aforesaid incriminating testimony of Naroti (PW-7) but in order to satisfy ourselves, we have closely scrutinised the evidence of this witness and we find it to be unimpeachable. Thus, aforesaid conduct of appellant slipping away upon learning that this matter is being reported to the police and of appellant being traced out on 31.10.1993 at Agra, also sufficiently incriminates Appellant.
25. The 5th and the last circumstance of „recovery of weapon of offence‟, is seriously challenged by learned amicus curiae counsel by urging that allegedly recovered dagger/knife (Ex.P-1) is not found to be blood stained and hence this recovery is rendered doubtful and once this circumstance is excluded from consideration, the link in the chain of circumstantial evidence snaps entitling the Appellant to benefit of doubt.
26. So far as the recovery of the dagger/knife (Ex.P-1) at the instance of the appellant/accused from the bushes underneath the peepal tree from the ganda nala i.e. the spot is concerned, we find that there is unchallenged evidence of SI Ravinder Singh (PW-17) who has testified that the appellant had made the disclosure statement (Ex.PW-15/A) to the effect that he could get the weapon of offence, i.e., the dagger/knife (Ex.P-1) used Crl.A.No.166/1999 Page 12 of 17 by him, recovered from the bushes near the ganda nala. In pursuance to the aforesaid disclosure statement (Ex.PW-15/A), appellant had got recovered the dagger/knife (Ex.P-1) from the bushes near the ganda nala. To this effect is the deposition of Insp.Mahipal Singh (PW-26), who has not been subjected to any meaningful cross-examination by the defence except giving a suggestion to him that the appellant had not got recovered the dagger/knife (Ex.P-1).
27. Public witness Vinod Kumar (PW-31) claims in his deposition that he had witnessed the recovery of dagger/knife (Ex.P-1) from the bushes near the ganda nala but when he was shown the said dagger/knife (Ex.P-1) during the recording of his evidence, it was stated by him that he could not say with certainty that it was the same dagger/knife (Ex.P-1) which was recovered from the bushes of the ganda nala. It emerges from the cross-examination of this witness - PW-31 that from the bushes underneath the peepal tree, a dagger/knife was recovered. This shows that the evidence of this witness so far as the recovery of the weapon of offence i.e. dagger/knife (Ex.P-1) at the instance of the appellant/accused is concerned, is consistent and is divergent on the question of identity of the dagger/knife (Ex.P-1) shown to him at the time of his deposition.
28. To be on the safer side, even if the deposition of this witness PW-31 is excluded from consideration, still we find that there is clinching deposition of the Investigating Officer (PW-26), who had identified before the Court the dagger/knife (Ex.P-1) as the one which the appellant had got recovered from the bushes underneath the peepal tree at ganda nala, in pursuance to his disclosure statement (Ex.PW-15/A). The evidence of Crl.A.No.166/1999 Page 13 of 17 Investigating Officer (PW-26) receives material corroboration from the deposition of SI Avnish Tyagi (PW-33) in whose cross- examination by the defence nothing substantial has emerged to discredit his version, particularly, in relation to the recovery of the dagger/knife (Ex.P-1) at the instance of appellant. The aforesaid recovery of dagger/knife (Ex.P-1) is sought to be discredited by urging that it is not found to be blood stained.
29. Learned amicus curiae counsel has relied upon a decision in State of Rajasthan Vs. Naresh @ Ram Naresh (2009) 9 SCC 368, where appeal against acquittal was dismissed by holding that the discrepant evidence relating to circumstance of last seen and recovery of jewellery and weapon of offence (not blood stained) broke the chain of circumstantial evidence. In the said decision, there is only passing reference to the recovery of weapon of offence from an open place and being not blood stained and it was not a case where on this circumstance alone, the acquittal was upheld.
30. In Ravinder Parkash and Anr. Vs. State of Haryana (2002) 8 SCC 426, relied upon by the learned amicus curiae counsel, the evidence of identification of dead body, of last seen and of recovery of motor-cycle and the weapon of offence without blood stains was found to be unreliable.
31. Reliance placed upon the aforesaid two decisions by the learned amicus curiae counsel is of no avail, as there are no precedents in the cases pertaining to criminal jurisdiction. Each case is on its own facts. In the instant case, upon microscopic examination, it was opined by the CFSL vide its report (Ex.P-2) that blood could not be detected on the dagger/knife (Ex.P-1). In fact, for detecting blood, the exhibit/article, i.e., weapon of Crl.A.No.166/1999 Page 14 of 17 offence etc., ought to have been subjected to ultra violet/Infrared rays examination, which would have proved useful for locating the blood stains, as even the washed stains on the exhibit/article becomes visible if subjected to such an examination. Luminol, a chemical is used to locate the blood stains. When an article suspected to bear blood stains is sprayed with luminol, it reacts with blood to give fluorescence. The blood stains are, thus made visible. Even decomposed blood reacts with reagent.
32. The detection and evaluation of blood evidence is a delicate process. The same is interfered by external factors:
contamination, putrefaction, over-heating, bacterial growth and action of chemicals. The surface on which the blood evidence is found also affects it. Likewise, the age deteriorates the bloodstains. Thus the results are often not what they could be.
33. It is, therefore, necessary to understand what happens on drying of blood. Bacteria, fungi, heat and light may bring other changes. The process of change continues and with the passage of time the blood may lose all its identifying characteristics. Therefore, it is advisable that blood should be examined at the earliest.
34. However, in some cases where the search is started after a lapse of time it becomes a difficult task because the bloodstain may change colour so as to be indistinguishable with the substrata or the wind, rain, heat and light may wholly or partially cover or wipe it off. In the present case, there is a substantial time gap of 3 months between the incident which took place in the month of September and the recovery of Crl.A.No.166/1999 Page 15 of 17 dagger/knife (Ex.P-1) in the month of December, from the bushes under the peepal tree near the ganda nala.
35. When viewed in the aforesaid context, it cannot be said that simply because no bloodstains were found on the recovered dagger/knife (Ex.P-1), the evidentiary value of the aforesaid recovery is lost. Thus the circumstance of recovery of weapon of offence, i.e., dagger/knife (Ex.P-1) stands firmly established from the evidence on record.
36. In Hatti Singh vs. State of Haryana (2008) 3 SCC (Cri.) 246, the circumstance of last seen was found to be not conclusively proved and so it was held that the link in the chain of circumstantial evidence was broken. In Ramreddy Rajesh Khanna Reddy Vs. State of A.P. (2006) 3 SCC (Cri.) 512, the circumstantial evidence of motive, last seen was found to be not inspiring confidence and thus, benefit of doubt was extended by observing that the chain of circumstantial evidence is not complete.
37. The afore-cited 2 decisions afford no assistance to conclude that in the instant case that the chain of circumstantial evidence has broken. We have found that there is clinching and reliable evidence to prove the circumstance of motive, last seen, extra judicial confession which leads to no other conclusion than the one of guilt of the appellant/accused. The other 2 corroborative circumstantial evidence is of the conduct of the appellant/accused and the recovery of the weapon of offence at his instance.
38. Finding no substance in this appeal, we dismiss it, while upholding the impugned judgment. The bail bonds of the Crl.A.No.166/1999 Page 16 of 17 appellant are cancelled and the Trial Court is directed to ensure that the appellant/accused serves the sentence awarded to him.
(SUNIL GAUR) JUDGE (PRADEEP NANDRAJOG) JUDGE September 16, 2011 rs/pkb Crl.A.No.166/1999 Page 17 of 17