Crl.A.Nos.920/2005 & 1/2005 Page 1 of 34 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 28th January, 2010 Judgment Delivered on: 8th February, 2010 + CRL.APPEAL No.920/2005 HEMRAJ @ BABA ……Appellant Through: Mr.Rajesh Mahajan, Advocate Versus STATE ……Respondent Through: Ms.Richa Kapoor, Advocate CRL.APPEAL No.1/2005 VIJAY KUMAR ……Appellant Through: Mr.Rajesh Mahajan, Advocate Versus STATE ……Respondent Through: Ms.Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 3.9.2004, appellants Vijay Kumar and Hemraj have been convicted for the offences punishable under Sections 302/120-B IPC and for Sections 201/120-B IPC. For the offence of murder, the appellants have been sentenced to undergo Rigorous Crl.A.Nos.920/2005 & 1/2005 Page 2 of 34 Imprisonment for life and to pay a fine in sum of Rupees two thousand each; in default of payment of fine, they have been sentenced to undergo rigorous imprisonment for one month each. For the offence punishable under Section 201 IPC, appellants have been sentenced to undergo rigorous imprisonment for four years and to pay a fine in sum of Rupees two thousand each. In default of payment of fine, they have been sentenced to undergo rigorous imprisonment for one month each. 2. Process of law was set into motion when at 10:10 AM on 25.6.2000, information was received at PS Sangam Vihar that a dead body was lying at a Pahari in Gupta Colony. The same was recorded vide DD No.5-A. A copy of said DD was entrusted to SI Lehna Singh PW-13 for investigation. Accompanied by Const.Dharamvir PW-9 and Const.Vijender PW-11, SI Lehna Singh reached the spot and found the middle portion (torso with arms and hands attached) of a dead body without its head and legs and without clothes. It was apparent that the body had been cut into pieces, with the head and the legs severed from the torso. SI Lehna Singh prepared endorsement Ex.PW-4/B under the copy of DD No.5-A and sent the same for registration of an FIR for the offence of murder. He summoned the crime team, a photographer and the dog squad. The photographer Const.Brij Bir Singh PW-2 took seven Crl.A.Nos.920/2005 & 1/2005 Page 3 of 34 photographs Ex.PW-2/1 to Ex.PW-2/7 of the dead body; negatives whereof are Ex.PW-2/8 to Ex.PW-2/14. The crime team could lift no clues and even the dog squad picked up no leads. The body was sent to AIIMS mortuary alongwith a request to preserve the same for the reason the body was of an unidentified person. 3. 4 days later on 29.6.2000 at 9:24 AM information was received at PS Sangam Vihar about something lying wrapped in a bed sheet in a vacant plot near a shop of furniture situated in I-Block Gali Shani Bazaar, main road Sangam Vihar. The same was recorded vide DD No.7 Ex.PW- 3/A. The investigation of the said DD was also entrusted to SI Lehna Singh and he proceeded to the spot. There, within a deserted house without a door, he found a head and two legs of a body wrapped in a bed sheet. SI Lehna Singh took three photographs Ex.PW-13/C/1 to Ex.PW-13/C/3 of the same with his personal camera. He seized and sent the head and the legs to the mortuary at AIIMS. 4. No breakthrough could be arrived as to whether the torso, head and legs were of the same person, if yes, who was the person or whether they were the body parts of two different persons, and if yes, who were they. 5. On 1.7.2000, Surender Singh PW-8 informed over the telephone at PS Sangam Vihar that he had apprehended a Crl.A.Nos.920/2005 & 1/2005 Page 4 of 34 person who had admitted to have committed a murder. On learning this, SI Lehna Singh went to H.N.285-A, Gali No.7, I Second block, Sangam Vihar the place where Surender Singh resided and recorded the statement of Surender PW-8, wherein Surender Singh stated that foul smell was coming from the house of Hemraj since some days. That day i.e. on 1.7.2000, when he saw Hemraj outside his house, he queried from Hemraj as to why smell of a dead body was coming from the house of Hemraj and why Hemraj was not seen for so many days. On this, Hemraj started stammering, but on his insistence, Hemraj disclosed that on 24.6.2000, he had committed murder of a chowkidar and after cutting the head and legs of the body, disposed of the rest of the dead body near a hillock, in a jungle near Gupta colony. On 28.6.2000, he threw the head and legs of the body in a vacant plot next to a furniture shop in I Block Sangam Vihar. On basis of this statement made by Surender Singh, SI Lehna Singh arrested Hemraj and in the presence of HC Ramesh Kumar, SI Lehna Singh interrogated Hemraj and recorded his disclosure statement Ex.PW-12/A wherein Hemraj disclosed that pursuant to a conspiracy between appellant Vijay and him, both Vijay and he committed murder of Chander Bahadur. He further stated that he could get the gandasa and the clothes of the deceased recovered from his house and could get co-accused Crl.A.Nos.920/2005 & 1/2005 Page 5 of 34 Vijay arrested. As per SI Lehna Singh, after recording said disclosure statement of Hemraj, he produced Hemraj before the concerned Magistrate and made an application for obtaining the police custody of Hemraj for two days, stating that the police custody was required so Hemraj could get the weapon of offence recovered and get his co-appellant Vijay Kumar arrested. On being granted police custody, SI Lehna Singh took Hemraj to his house bearing No.26, Gali No.7, Ratia Marg, Block I-Second Sangam Vihar, from where, Hemraj got recovered a Gandasa Ex.P-1, stating the same to be the weapon of offence; a grey coloured pant Ex.P-2, underwear Ex.P-3, shirt Ex.P-4, belt Ex.P-5, a pair of socks Ex.P-6 and a pair of shoes Ex.P-7, stating the same to be the clothes of the deceased; and a blood stained white shirt Ex.P-13, a blood stained white vest Ex.P-8, a pink coloured cloth Ex.P-9, a blood stained lungi Ex.P-10 and a blood stained bed sheet Ex.P-11. The same were seized vide memo Ex.PW-6/A. SI Lehna Singh also arrested appellant Vijay Kumar at the instance of Hemraj. 6. On 2.7.2000, Balram Singh PW-5 visited AIIMS and identified the dead body as that of his brother-in-law Chander Bahadur. After identification, SI Lehna Singh prepared the Death Report Ex.PW-13/H and made application Ex.PW-13/G requesting for the conduct of post-mortem on the dead body. As per the application, SI Lehna Singh sent the Gandasa to the Crl.A.Nos.920/2005 & 1/2005 Page 6 of 34 doctor to obtain his opinion on the same being the possible weapon of offence. Dr.S.K.Gupta PW-10 conducted the post- mortem and prepared his report Ex.PW-10/A. He noted 2 ante- mortem and 5 post-mortem injuries on the body. He opined that the cause of death was ante-mortem decapitation produced by sharp edged weapon, which was sufficient in the ordinary course of nature to cause death. He opined that the gandasa Ex.P-1 could be the possible weapon of offence. 7. On 9.9.2000, charge-sheet was prepared. It may be noted that as per the charge-sheet, items seized during the investigation had been sent to FSL before the charge-sheet was prepared. As per FSL report Ex.PW-13/M, on examination of the parcels received on 26.12.2000, blood was detected on pants, underwear and shirt of the deceased and on the clothes of appellant Hemraj. The blood group of the blood detected on the pants and shirt of deceased and banian and shirt of appellant was ‘A’ group. 8. At the trial, prosecution examined 14 witnesses, out of which the testimony of only 5 is relevant and hence we note the same. 9. Ram Rati PW-7 deposed that deceased Chander Bahadur was her husband and was employed as a chowkidar at the Blind School, Lal Kuan. Vijay Kumar along with his wife and she with her husband (the deceased) resided together in Crl.A.Nos.920/2005 & 1/2005 Page 7 of 34 one premises. Appellant Vijay and her husband used to consume liquor together. Appellant Hemraj was also known to appellant Vijay and sometimes Hemraj, Vijay and her husband used to consume liquor together. One evening in June 2000, her husband and appellant Vijay had left the house together. But only Vijay returned, her husband did not return. When she queried Vijay, he told her that her husband had left Vijay. On 2.7.2000 she learnt that her husband had been murdered. That the shirt Ex.P-4, pant Ex.P-12, the belt Ex.P-5, pair of socks Ex.P-6 and the shoes Ex.P-7 were the clothes of her husband. 10. Surender Singh PW-8 deposed that since about a year and a half prior to the incident Hemraj was residing in a tenanted premises opposite his house. Since 5 or 6 days prior to 1.7.2000, foul smell was coming from the house of Hemraj. On 1.7.2000, at about 10:00 A.M. or 10:30 A.M. he was sitting on the porch of his house when he saw Hemraj ready to go somewhere on his cycle. Hemraj was carrying a bag. He asked Hemraj as to how come Hemraj was not seen for the last so many days and why foul smell was coming. On this Hemraj started stammering. On his insistence, Hemraj disclosed to him that on 24.6.2000 Hemraj had murdered a chowkidar and after cutting his body had thrown the middle portion of the body in a jungle in the ditches in the pahari area and he had Crl.A.Nos.920/2005 & 1/2005 Page 8 of 34 thrown the head and legs of the deceased in a vacant block near Shani Bazaar. On learning this he apprehended Hemraj and informed about the confession and apprehension to the police. The police arrived and arrested Hemraj. On interrogation by the police Hemraj got recovered a gandasa and cut clothes of the deceased from his house. 11. SI Lehna Singh PW-13 deposed that at about 10:10 A.M. on 25.6.2000 he was entrusted with the investigation pertaining to DD No.5A. He went to the pahari near Gupta Colony and found the middle portion of a body lying there. The body was without clothes and had some injuries caused by a sharp edged weapon. He prepared tehrir and sent the same for registration of the FIR and summoned a photographer, crime team and dog squad. At about 9:24 A.M. on 29.6.2000 another DD was recorded and pursuant to the same he recovered the head and legs of a body wrapped in a bed sheet from a vacant plot near a furniture shop near Shani Bazaar, Sangam Vihar, Main Road. He sent the same along with the bed sheet to AIIMS. On 1.7.2000 he learnt about the apprehension of a person who had committed a murder and went to H.No.285-A Gali No.7, I Second Block, Sangam Vihar, where he met Surender who had apprehended Hemraj. He arrested Hemraj and recorded his disclosure statement. He then produced Hemraj before the concerned Magistrate and Crl.A.Nos.920/2005 & 1/2005 Page 9 of 34 obtained his police custody. Thereafter Hemraj got recovered a gandasa and clothes of the deceased from his house in Sangam Vihar which were seized vide memo Ex.PW-6/A. He also arrested appellant Vijay at the instance of Hemraj. On 2.7.2000 Trilok brother of the deceased and Balram brother-in- law of the deceased visited the police station and informed him that Chander Bahadur was missing. He showed them the dead body and they identified the same to be that of Chander Bahadur. Thereafter, on the same day the post-mortem on the body was got conducted. 12. HC Ramesh Kumar PW-12 deposed that he joined the investigation on 1.7.2000 and on that day secret information was received about the apprehension of a person who had committed a murder. On learning the same they went to I/II Block Sangam Vihar and met one Surender who informed them that Hemraj confessed to Surender about having committed murder of a chowkidar. They arrested Hemraj. SI Lehna Singh recorded his disclosure statement and effected recoveries of a gandasa and some clothes from his house. 13. Balraj Singh PW-5 deposed that deceased Chander Bahadur was his brother-in-law and on 2.7.2000 he identified the dead body of Chander Bahadur in the hospital. On being Crl.A.Nos.920/2005 & 1/2005 Page 10 of 34 cross-examined, he stated that he learnt about the death of Chander Bahadur on 1.7.2000. 14. In his examination under Section 313 Cr.P.C. appellant Hemraj denied all incriminating evidence against him but admitted that Surender Singh PW-8 was residing in a house opposite his house for about a year and a half prior to incident. 15. Vide impugned judgment and order dated 3.9.2004, appellants Vijay Kumar and Hemraj have been convicted for the offences punishable under Sections 302/120-B IPC and Sections 201/120-B IPC. The conviction of appellant Vijay Kumar is based on the testimony of Ram Rati PW-7, the wife of the deceased, which as per the learned Trial Judge held established that the deceased Chander Bahadur was last seen in the company of appellant Vijay Kumar soon before the recovery of his dead body. The conviction of appellant Hemraj is based on the extra judicial confession made by him to Surender Singh PW-8. Further, the recovery of clothes identified by the wife of deceased as the clothes of the deceased, at the instance of appellant Hemraj from his house and the recovery of Gandasa, opined by PW-10 who conducted the post-mortem to be the possible weapon of offence, at the instance of appellant Hemraj were also held to be incriminating evidence against appellant Hemraj. Crl.A.Nos.920/2005 & 1/2005 Page 11 of 34 16. At the hearing of the appeal, qua appellant Vijay, counsel urged that the only incriminating evidence that has come on record is that he was last seen with the deceased by Ram Rati PW-7, the wife of the deceased. No recoveries are alleged to have been effected from or at the instance of appellant Vijay. Counsel urged that the solitary circumstance of last seen is not sufficient to fasten guilt to the appellant Vijay for the reason that the statement of this witness regarding last seen was recorded only after the arrest of Vijay on 2.7.2000, though the deceased was missing since 24.6.2000. Counsel urged that the unexplained delay makes the statement of this witness not worthy of credence. Further, counsel urged that no motive has been proved by the prosecution for Vijay to have murdered the deceased. 17. Qua appellant Hemraj, learned counsel urged that the extra-judicial confession made to PW-8 would be admissible only if the testimony of PW-8 is found to be reliable. The credibility of the testimony of PW-8 would in turn depend upon the same being in conformity with the prosecution story as a whole and in consonance with the deposition of other witnesses. Attempting to discredit PW-8, counsel highlighted the following discrepancies:- (a) While PW-8 deposed that he was the one to have informed the police about the apprehension of Hemraj, but the Crl.A.Nos.920/2005 & 1/2005 Page 12 of 34 police officials HC Ramesh Kumar PW-12 and SI Lehna Singh PW-13 deposed that Hemraj was arrested on the basis of information received from a secret informer. (b) The deposition of PW-8 that he got suspicious as foul smell was emanating from the house of Hemraj, has not been corroborated either by the presence of any part of the dead body in the house causing the foul smell, or by the testimony of any of the police witnesses who accompanied Hemraj and recovered the gandasa and clothes from said house. Thus, counsel urged, the genesis of suspicion of Surender PW-8 being the foul smell has not been proved. (c) PW-8 deposed that Hemraj was carrying a bag with him and was on a cycle when he apprehended Hemraj. But neither any bag, nor any cycle was seized by the police from the personal search of Hemraj. (d) As per PW-8, the incident of appellant Hemraj making an extra judicial confession to him, his informing the police, arrival of the police, recording of the disclosure statement of Hemraj by the police and the effecting of recoveries were part of one transaction and took place in continuity with each other. But, as per SI Lehna Singh PW-13 after the recording of the disclosure statement, he first produced Hemraj before the concerned Magistrate and only Crl.A.Nos.920/2005 & 1/2005 Page 13 of 34 after obtaining the police custody of Hemraj he effected the recoveries of weapon and clothes at the instance of Hemraj. (e) Lastly, it was urged that though the presence of Surender PW-8 at the time of recording of disclosure statement of Hemraj has been deposed to by all the relevant witnesses being PW-8, PW-12 and PW-13, but the said disclosure statement does not bear the signatures of PW-8 as a witness to the same. Learned counsel further highlighted that the recovery memo Ex.PW-6/A pertaining to the articles recovered at the instance of appellant Hemraj from his house bears the signature of PW-8. Counsel urged that said circumstance read in conjunction with the discrepancy noted in sub-para (d) above, suggest subsequent manipulation of the disclosure statement. Counsel highlighted that the caption of the disclosure statement reads: ‘Case FIR No.240/2000 dt 25- 6-2000 u/s 302/201/120-B IPC, P.S. Sangam Vihar, New Delhi’. It was urged that the angle of conspiracy was revealed only after Hemraj made the purported disclosure statement and if at all, the offence punishable under Section 120B IPC was disclosed to the police and thus at the time of recording the disclosure statement it could not be mentioned that the same pertained to an FIR relating to, inter alia, the charge of conspiracy. Thus, counsel urged that it was apparent that the disclosure statement had been anti timed. Crl.A.Nos.920/2005 & 1/2005 Page 14 of 34 18. Further, attacking the extra-judicial confession made by the appellant, learned counsel urged that the same was made after 7 days of the offence, which delay assumes significance. Referring to the decisions reported as 1999 Cri.L.J. 4597 State of Punjab vs. Gurdeep Singh, AIR 1973 SC 343 Rahim Beg vs. State of U.P., AIR 1982 SC 1595 Heramba Brahma vs. State of Assam, 1997 SCC (Cri) 358 Jaspal Singh vs. State of Punjab and AIR 1983 SC 295 Manzoor vs. State of Punjab counsel urged that the extra judicial confession does not inspire confidence insofar as there is no evidence that Surender PW-8 was so close an acquaintance of the appellant Hemraj and that Hemraj would find it safe to repose confidence in him and confess his guilt to him. In any case, learned counsel urged that extra judicial confession was a weak piece of evidence requiring appreciation with care and caution. 19. Stating that the disclosure statement of Hemraj and the seizure of clothes of deceased and the weapon at the instance of Hemraj were manipulated, counsel urged the following points:- (a) The remand application dated 1.7.2000, filed by SI Lehna Singh does not state effecting recovery of clothes as a purpose for seeking the police custody of Hemraj, even though Crl.A.Nos.920/2005 & 1/2005 Page 15 of 34 in his disclosure Hemraj categorically stated that he could get the clothes of deceased recovered from his house. (b) Why would a person, who is sane enough to have disposed of the torso and the head and the legs at two different places to avoid being caught not dispose of the clothes of the deceased rather preserve them in his possession? (c) The photographs of the spot from where the head and legs were recovered, clearly show that a grey coloured pants was lying, hardly at a distance of a feet from the head. But, no such pants were seized from said spot. Rather a pair of grey coloured pants finds mention in the seizure memo Ex.PW-6/A, which records the seizure of articles recovered at the instance of Hemraj from his house. Counsel urged that this castes a doubt on the purity of investigation. (d) SI Lehna Singh PW-13 deposed that the head and legs were found lying wrapped in a bed sheet and he sent the body along with the bed sheet to the hospital. But, neither any doctor, nor the post-mortem report prove that the dead body was received along with a bed sheet. There is no other evidence as to where the said bed sheet went. However, the seizure memo Ex.PW-6/A of the articles recovered from the house of the appellant at his instance, records seizure of one bed sheet from said house. Crl.A.Nos.920/2005 & 1/2005 Page 16 of 34 (e) Pertaining to the weapon of offence, as per the request application Ex.PW-13/G for conducting post-mortem, the IO sent the alleged weapon of offence to the doctor for his opinion on the same being the possible weapon of offence. However, the doctor conducting the post-mortem does not give any such opinion, in the post-mortem report. It is only in his testimony in the court that he states that the Gandasa shown to him could possibly be the weapon of offence. (f) No witness from the malkhana was examined, nor was any register or record of the malkhana proved to show the safe custody of the seizures. (g) While as per the charge-sheet prepared on 9.9.2000 the articles seized during the investigation had already been sent to the FSL before the preparing of the charge-sheet, but as per the FSL report, the articles were received in the laboratory only on 26.12.2000. 20. Counsel urged that a conjoint reading of all the afore- noted points (a) to (g) show that the seizures effected at the instance of appellant Hemraj from his house have been manipulated. 21. Counsel urged that while SI Lehna Singh PW-13 deposed that on 2.7.2000, relatives of the deceased i.e. Trilok and Balraj visited the police station to report about the deceased Chander Bahadur being missing, Balraj PW-5 Crl.A.Nos.920/2005 & 1/2005 Page 17 of 34 deposed that on 1.7.2000 he had learnt about the death of Chander Bahadur. Counsel urged that this discredited the version of SI Lehna Singh. 22. Pertaining to the evidence against appellant Vijay Kumar, we note that in the extra-judicial confession made by Hemraj to PW-8, he did not state that the murder was committed by him along with appellant Vijay in pursuance of a conspiracy between them. In his statement under Section 161 Cr.P.C. and as well as his deposition in court, Surender PW-8 stated that Hemraj confessed to having committed murder of one chowkidar, but did not inculpate appellant Vijay in the extra judicial confession. Clearly, the only evidence against appellant Vijay is that of the deceased being last seen in his company by Ram Rati PW-7, wife of the deceased. The evidence of last seen is considered to be a strong piece of evidence to inculpate the appellant only if there is proximity of time and place of the appellant being last seen with the deceased and the death of the deceased. We note that as per PW-7, Vijay Kumar was seen leaving the house at Blind School, Lal Kuan, New Delhi with the deceased Chander Bahadur in the evening of 24.6.2000. But the dead body was recovered in two parts i.e. the middle portion without the legs and head on 25.6.2000 and the head and legs on 29.6.2000. We further note that while the middle portion of the body was recovered Crl.A.Nos.920/2005 & 1/2005 Page 18 of 34 from a pahari in Gupta Colony, the head and legs were recovered from a vacant plot near a shop of furniture situated in I-Block Gali Shani Bazaar, main road Sangam Vihar. There is no such proximity between the time and place of last seen