Sudhir vs State

Sanjiv Khanna, J.—Sudhir Kumar impugns his conviction u/s 302 of the Indian Penal Code, 1860 (IPC) vide the judgment dated 27th October, 2009, for murder of Pawan @ Pummi in the night intervening between 13th and 14th July, 2006 on the First Floor of the House No. 62, Gali No. 1, Rumal Singh Gate, Saboli Extension, Delhi. By the order on sentence dated 29th October, 2009, the appellant has been sentenced to undergo life imprisonment and fine of Rs. 3,000/- has been imposed. In default of payment of fine, the appellant has to undergo Simple Imprisonment of six months. Learned counsel appearing for the appellant has contested the impugned judgment on the ground that Than Singh (PW-5) is not a credible witness and his conduct was suspicious as he or his family members did not see the dead body. In fact, the police had initially suspected him as the culprit of the crime and had detained him for 4/5 days. It is submitted that the prosecution has not been able to prove the "alleged motive" as Sekhar (PW-16) had turned hostile. There was no recovery of any document or belongings of the appellant from the room in question and, therefore, there is no evidence to show and establish that the appellant was residing as a tenant in the room, where the dead body of Pawan was found. He has submitted that finger prints/chance prints of the appellant were not lifted from the crime spot and sent for examination. It is submitted that the neighbours and residents of the locality did not join the investigation and their statements were not recorded. It is urged that Shri Pal was an important witness, but he was not examined in the Court.

Death of Pawan @ Pummi under unnatural circumstances in the intervening night of 13th and 14th July, 2006 is not under challenge. The factum that the dead body of the deceased Pawan was found in the room on the First Floor of House No. 62, Gali No. 1, Rumal Singh Gate, Saboli Extension, Delhi, is proved beyond doubt. The post mortem report (Ex.PW-19/A) has been proved by Dr. Barkha Gupta (PW-19). She has deposed that she had conducted the autopsy on 15th July, 2006 between 11:30 am to 1:00 p.m. According to PW-19, dead body was of an adult male, aged about 30 years, who was wearing a white vest, brown underwear and a blue pyjama. Serosangunous fluid was oozing from the mouth and the nostril. Changes consequent upon decomposition were present on the face. The face was bloated up with greenish discolouration. Marbling was present on upper part of the chest and both arms. Rigor mortis was in a passing stage. Ligature mark was present on the neck, but no ligature material was available. The post mortem report (Ex.PW-19/A) records the following external ante-mortem injuries:-

1) Ligature mark present all around the neck horizontally placed in middle portion of neck, faint, 5 cms in thickness. In center it was situated 7 cms below the chin and from here it was going to right side backward situated 5.5 cms below right ear and 4 cms below right angle of mandible. On left side it was going backward 5.5 cms below left ear and 4 cms below left angle of mandible and going to back and situated 12 cms below occipital protruberance. Ligature mark was more prominate in front and at lower portion where it was present as reddish abrasion 2 cms in thickness. Total circumference of neck was 40 cms. On dissection the subcutaneous tissue was pale with extensive hemorrhage of the neck structures. Marked congestion of internal organs of neck present.

The cause of death was opined to be asphyxia due to compression of neck by ligature. The injury No. 1 mentioned above was ante-mortem in nature and recent in origin. Time of death was about 1 and 1/2 day before the conduction of autopsy. In the cross-examination, PW-19 clarified that there could be a variation of six hours on either side about the time of death.

Anand Kumar (PW-3) is the brother of the deceased Pawan @ Pummi. He has testified that the deceased used to do welding work along with one Sanjay(PW-17). The deceased came to his house on 13th July, 2006 in the noon time and at about 5.30 p.m., the deceased had left with the appellant-Sudhir, whom he identified in the court. The deceased Pawan had informed him that he would not be coming back to the house at night and would be staying with the appellant in his rented accommodation at Sobti Extension. On the next date i.e. 14th July, 2006, when his brother did not return, he went to the house in question at about 2 p.m. and met Than Singh (PW-5), the landlord, who informed him that the deceased and the appellant had come to the said place at about 10:00 p.m. and spent the night in the room. Sudhir, the appellant had left the room at about 5.00 a.m. on the morning of 14th July, 2006. PW-3 thereafter went to the first floor and found that the door of the room in question was slightly open. He opened the door and found that his brother Pawan @ Pummi was lying dead on the ground. There were marks on the neck of the dead body. He raised noise, whereupon Than Singh (PW-5) also came there. He asked PW-5 to lodge a report with the police and came back to his house to inform his relatives about the death of Pawan. Thereafter, he went back to the spot along with his relatives and his statement (Ex.PW-3/A), which bears his signature at point A, was recorded by police official. Post mortem of the dead body was conducted and the same was handed over to him for cremation. On 17th July, 2006, police officers came to him and informed that they had received information that the appellant would come to meet Sanjay (PW-17) at Saboli Industrial Area. On identification by PW-3, the appellant was arrested. PW-3 proved the arrest memo of the appellant, Ex.PW-3/B, which was signed by him at point A and personal search memo of the appellant, Ex.PW-3/C. The examination-in-chief of PW-3 was recorded on 17th September, 2007, but his cross-examination was deferred. The cross-examination was closed on 21st November, 2007, after recording "NIL (Opportunity given)". However, it appears that subsequently an application u/s 311 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was filed and thereafter PW-3 was cross-examined on 15th February, 2008 on behalf of the appellant. In his cross-examination PW-3 has deposed that he had come to know the appellant-Sudhir about 15 days prior to death of his brother Pawan. The deceased while leaving the house on 13th July 2007 was wearing a pyjama with "checkdar" matching shirt. He has deposed that before 14th July, 2006, he had not gone to the house of Than Singh (PW-5) and one Pal, who was a friend of the appellant, had told him the address of the place where the Appellant resided. The said Pal had accompanied him to the house of Than Singh (PW-5), where he met Than Singh. The room on the first floor was not locked or bolted and his brother was wearing the same Pyjama and vest, which he was wearing on 13th July, 2006. Shirt of deceased was lying outside the room on a rope. Than Singh (PW-5) initially had not come with him to the first floor, but came there after PW-3 raised an alarm. Near the dead body, two empty bottles of beer and one empty half bottle of whisky (English) were lying. He did not notice whether any glass or eating material was lying there or not. He had reached the house of Than Singh (PW-5) at about 2.00 p.m. and after 10/15 minutes; he left the place to inform his relatives after asking PW-5 to lodge a report with the police. PW-3''s village was in district Ghaziabad. He had reached the house of the appellant on his motorcycle and it took him about 10-15 minutes to reach there. After seeing the dead body of his brother, he came back to the room of the appellant along with Pal and some other neighbours. PW-3 identified the said Pal as Shri Pal whose statement was recorded by the police in his presence. Blood was not lying on the floor of the room, but mouth of Pawan was slightly open and his teeth were visible. PW-3 signed some documents, but he did not remember whether Shri Pal had signed any document. On 17th July, 2006, at about 7/7.30 p.m., 4-5 police officials had come to his house in Gypsy, but no police from U.P. Police had come there. Thereafter, the police brought him to Saboli Industrial Area where the appellant was found standing near Shivani Dharam Kanta and he was arrested. He deposed that he had last seen the deceased with the appellant leaving his house on foot. He voluntarily deposed that the appellant was on visiting terms with Shri Pal. The police had sealed the room but before that they had taken photographs of the dead body. He did not remember whether fingerprints/chance prints were lifted from the spot. From the search of the appellant, Voter''s Identity Card of his brother i.e. the deceased was recovered in his presence and the police had kept the said card with them.

The next important witness is Than Singh (PW-5), the landlord of the property in question. He has stated that he had let out a room on the First Floor of the premises to the appellant-Sudhir on the asking of one Sanjay (PW-17), who used to do welding work in the locality. On 13th July, 2006 at about 10/10.30 p.m. he was present outside his house when the appellant and the deceased had come to the house. Both of them went upstairs. On the next morning i.e. 14th July, 2006, the appellant came and knocked at the main door of the house from inside as he (PW-5) had bolted the said door from outside. He opened the door and the appellant had informed him that the deceased was sleeping in the room upstairs. At about 2.00 p.m., Anand (PW-3), brother of the deceased came to the house and inquired about him. PW-5 informed him that the deceased was sleeping in the room. PW-3 went inside the room and thereafter cried. On hearing noise, PW-5 also went into the room and found that Pawan was lying dead on the floor of the room. There were visible marks on his neck. PW-5 went to PP Harsh Vihar and informed the police about the incident. The In-charge along with police officials came to the spot and they started the investigation. PW-5 identified the appellant, who was present in the Court. He deposed that his statement u/s 164 Cr.P.C. was recorded. The same was marked Ex.PW-5/A. In his cross-examination, PW-5 has deposed that he used to sometimes work on rehari and on other occasion work as a mason. He had also worked at khoka of pan biri, but at the time of incident he was unemployed. He further deposed that he remained at police station for 6/7 days and for four days he was not allowed to go to his house. He deposed that his house was situated on a 25 sq. yards'' plot and there were two rooms on the ground floor and one room on the first floor. The WC/latrine was situated on the first floor. He has stated that on 14th July, 2006, he had gone to latrine on the first floor at about 8/9 a.m. The room on the first floor had a small window of about 2 to 2 1/2 feet which was open. When he had gone to latrine on the first floor, the door of the room was closed but was not locked from outside. When Anand (PW-3) had come to his house, he had brought 2-3 persons with him and after hearing noise of Anand (PW-3) and the said persons, he (PW-5) rushed to the room upstairs. Sanjay (PW-17) and Anand (PW-3) accompanied him to the PP Harsh Vihar. Police reached the spot at about 2:00/ 2:30 PM. Police officials had made inquiries from neighbours, but he could not tell their names. PW-5 was residing in the property in question along with his family. He had a married daughter, who at that time of the incident, had come to her parental house but was not well. His son and second daughter aged about 17 and 18 years respectively were also residing with him. In summer days the entire family used to sleep in the street outside the house and on the night intervening between 13 and 14th July, 2006, they had slept outside their house in the gali. PW-5 deposed that he had asked the appellant to vacate the room on 15th July, 2004 as PW-5''s daughter was of young age and he did not want to let out the room to a bachelor. Initially he had agreed to let out the room to the Appellant on being informed that the appellant was married and would bring his wife to reside in the room. He denied the suggestion that he had been detained for 4 days as police suspected him as a perpetrator and /or was released after he had bribed the police. PW-5 admitted that in the intervening night of 13th and 14th July, 2006, he had consumed one peg of liquor along with the deceased and the appellant. He was called to the room upstairs by the appellant for drinking.

We do not doubt the veracity of PW-5''s statement. PW-5 has been candid and has truthfully stated the facts. He did not try to hide the fact that he was detained by the police for some days. The murder was committed on the first floor of his property, but he had not noticed the same and was not an eye-witness as per his version and statement made by him before the police. It was natural for the police to initially suspect him and thoroughly interrogate him before accepting his version and statement. PW-5 had implicated and had raised a finger at the appellant, which is clear from his first statement recorded at 2.20 p.m. on 14th July, 2006 in the form of DD No. 16 (Ex.PW-1/A). The Ex PW-1/A reads:

Time 2.20 pm, At this time it is entered that the aforesaid person (Than Singh) mentioned in column no. 2 came present to the Police Chowki and stated that a person namely Sudhir lives as a tenant at the first floor of my abovesaid house for about one month and sometimes a person namely Pawan @ Pammi also used to come at my house with him. Yesterday dated 13.10.06 both Sudhir and Pawan @ Pammi had come at the room. Sudhir is missing since 5 am and Pawan @ Pammi is lying dead in the room. I have come to report the incident. Legal action may be taken. The information so received was entered in Daily Diary and the copy of the report was separated and handed over to SI Ajab Singh Negi I/C PP Harsh Vihar. I, Const. Krishan Pal No. 811/NE, alongwith Mr. Than Singh, person mentioned in aforesaid column no. 2, departed on receipt of the information to take the appropriate action.

The appellant had absconded and was arrested on 17th July, 2006 vide arrest memo Ex.PW-3/B at about 9 p.m. Till the arrest and interrogation of the appellant, the police had no means/basis to accept the statement made by PW-5 Than Singh and his family members. It was, therefore, normal and natural that PW-5 though not formally arrested, had continued to remain in the custody of the police officials. This was contrary to law and should not have happened but we do not think that the factum of said detention, merits/justifies rejecting the testimony of PW-5. In fact it lends further assurance that PW-5''s statement is reliable as he had stated true and correct facts as they happened/occurred. We may note that FIR was not registered on the basis of the statement of PW-5 in DD Entry No. 16 (Ex.PW-1/A). FIR No. 559/2006 (Ex.PW-2/A) dated 14th July, 2006 was recorded at 5.50 PM vide DD Entry No. 22/A recorded on the basis of statement (Ex PW-3/A) made by Anand Kumar (PW-3). This shows that the police did not, at the initial stage, consider the statement of PW-5 as a gospel truth. They did not immediately and without verification rule out the possibility of involvement of PW-5. PW-3 in his statement, Ex.PW-3/A had stated that his brother Pawan, aged 30 years used to reside in Loni Colony, Ghaziabad, U.P. and performed the work of a welder. On 13th July, 2006, in the evening at about 5.30 p.m. the appellant had come to their house and both of them i.e., the deceased and the appellant had left the house at about 6.00 p.m. The deceased had told him that he would spend the night with the appellant and would not come back. However, when the deceased did not return till about 2 p.m., Anand (PW-3) to look for him and at about 2 p.m. reached the property in question where he met Than Singh (PW-5). He has narrated thereafter what PW-5 has stated including the fact that the appellant-Sudhir and the deceased Pawan had come to the house in question at about 10 p.m. In the morning at about 5 a.m., the appellant had left the house. PW-3 has stated that he had gone to the room in question and on opening the door, he found that the dead body of his brother was lying on the floor of the house. Ligature marks were present on the neck. Thereafter he made a telephone call and called his relatives. It is thus noticed that testimony of PW-3 Anand and PW-5 Than Singh are fully supported in the form of statements made in DD Entry No. 16 (Ex.PW-1/A) and the statement (Ex.PW-3/A), which became the ''rukka''.

Sanjay (PW-17) has supported the prosecution version. He has stated that the appellant-Sudhir had taken a room on rent in the house of Than Singh (PW-5) through him. Sometimes the deceased Pawan also used to come to the room of the appellant to stay there. He was picked up by the police for interrogation and asked about the address of the appellant. He identified the appellant correctly in the Court. In cross examination, PW-17 has stated that he had known deceased Pawan for last 4-5 years as their houses were situated in the same village i.e. village Behata. However, the appellant and the deceased had worked with him for only 30/45 days prior to the death of deceased Pawan. We may note that the trial court has recorded that when testimony of PW-17 was being recorded, the appellant slapped with his free hand making a loud noise and remarked that the said witness was deposing falsely. At that stage, PW-17 was being cross-examined and questioned by the Amicus Curiae on behalf of the appellant on the aspect whether the deceased and the appellant had left the factory at 1.30 p.m. and whether they had signed the visitors'' register before leaving the factory where they were employed.

In view of the statement of Than Singh (PW-5), which is fully corroborated by the statement of Anand Kumar (PW-3) and Sanjay (PW-17), it is not possible to accept the contention of the learned counsel for the appellant that the prosecution has not been able to establish that the appellant-Sudhir was a tenant of the room in question. The statement of the said witnesses is in seriatim and corroborates the testimony made by others. The cross-examination of PW-17 reveals that the appellant had accepted and admitted that he was working as a Welder. The deceased was also a Welder and was working with PW-17. There is no evidence on record to suggest that PW-3 Anand, PW-5 Than Singh and PW-17 Sanjay had any prior enmity, ill-will or animosity qua the appellant. The said witnesses were not cross-examined on the said lines. There is nothing to suggest that PW-3, brother of the deceased, had ill-will or desire to get rid or kill deceased Pawan or to save and protect PW-5 Than Singh by falsely implicating the appellant herein.

The appellant had been missing since the dead body of the deceased was found by PW-3 Anand on the 14th July, 2006. The appellant was thereafter arrested in presence of PW-3 Anand on 17th July, 2006 vide arrest memo, Ex PW-3/B. SI Ajay Singh Negi (PW-20) has deposed that on 14th July, 2006, he was posted at PP Harsh Vihar and at about 2.30 p.m. he was handed over DD No. 16 to make inquiries. He interrogated Than Singh (PW-5), who told him that on the first floor of his house B-62, Saboli Extension, Delhi, dead body of Pawan was lying. He went to the first floor and found that the dead body of deceased Pawan was lying on the floor of the room. On inspection, there were injury marks present on the neck of the body. He also found an empty bottle of Kalyani beer and one empty half bottle of liquor. Crime Team was called and photographs were taken. PW-20 recorded statement of PW-3 Anand, brother of the deceased, who had stated that the deceased and the appellant-Sudhir were working together. The appellant had come to their house a day prior to the incident and both of them had left the house at about 6.00 p.m. Deceased Pawan was to stay with the appellant at night. A raiding party was prepared and they had gone to the native village of the appellant i.e. village Mukteshwara, Tehsil Hapur, District Ghaziabad, but the appellant-Sudhir could not be found at the house and statement of PW-20 in this regard was recorded by the PW-18 Veer Singh Tyagi, the Investigating Officer. On 17th July, 2006, they came to know that the appellant would be coming to Mandoli Industrial Area, Delhi and thereafter the appellant was arrested from there. Head Constable Vijay Kumar (PW-10) has made an analogous statement.

The contention of the learned counsel for the appellant that independent witnesses i.e., next door neighbours etc. should have been examined, is meritless and deserves to be rejected. The appellant had about a month back taken one room on rent on the first floor and was working as a Welder. The property in question is located on a small plot of 25 sq. yards. It is difficult to believe that the appellant could have interacted with neighbours. Further, this cannot be a ground to disbelieve the testimonies of PW-3 Anand, PW-5 Than Singh and PW-17 Sanjay.

As regards the appellant''s contention that Pal being a witness has not been examined as a prosecution witness by the police, suffice it is to note that it does not destruct or create doubt about the testimony made by PW-3 Anand. PW-3''s deposition is honest and truthful. He deposed that how he went out looking for his brother Pawan and with the help of Pal he was able to reach the property in question. This fact is corroborated by the statement made by Than Singh (PW-5), the landlord of the property. We do not think that the statement of PW-3 Anand and PW-5 Than Singh can be ignored on the ground that Pal has not been examined and has not testified before the Court. The statement made by PW-3 Anand and PW-5 Than Singh corroborate each other and when read carefully, show that the two witnesses are credible, trustworthy and reliable. The testimony of PW-3 Anand and PW-5 Than Singh can stand on their own and do not require clutches.

The Counsel for the appellant has contended that PW-5 Than Singh while using the WC/latrine in the morning of 14th July, 2007 located on the open terrace of the first floor should have noticed the dead body inside the room in question. The Investigating Officer, Inspector Veer Singh Tyagi (PW-18) has stated that he reached the crime spot and found the dead body of deceased Pawan on the first floor of the room in question. Crime Team was called and photographs were taken. Site Plan (Ex.PW-18/A) was prepared and application for post mortem (Ex.PW-18/B) was moved. Inquest proceedings were also conducted by PW-18. Dead body was identified by Vijay Pal (PW-8) and Ravi Kant (PW-7). On 17th July, 2006, the appellant was arrested from Sewa Dham Road near Shivani Dharam Kanta vide arrest memo Ex.PW-3/B. Personal search of the appellant was conducted vide memo Ex.PW-3/C. In the cross-examination PW-18 accepted that Than Singh (PW-5) and Anand Kumar (PW-3) along with Sanjay (PW-17) had met them at the spot. Beer bottle and half bottle of liquor were seized. Statement (Ex.PW-5/A) of Than Singh u/s 164 Cr.P.C. was recorded before a Magistrate. The site plan Ex.PW-18/A and the scaled site plan Ex.PW-9/A show that the room in question on the first floor was located at one end i.e. the back end of the property. There was a staircase in the open portion and the WC/latrine was located on the open terrace at the other end. The room in question had a door. A bare perusal of the two site plans would indicate that it is possible that a person coming up and going down by the staircase would not have noticed or seen what was lying inside the room. We do not, therefore, accept the contention of the appellant that Than Singh (PW-5) and his family members must and should have noticed the dead body in the morning of 14th July, 2006. We have also examined the photographs taken by Crime Team marked Ex.PW-4/A to A-7. The photographs Ex.PW-4/A to A-7 show that the deceased body was found lying on a well spread out bed sheet with two pillows. There was another pillow lying on the side. It appears that as if the deceased was sleeping. Alcohol bottles are visible along with glass and few belongings like utensils, bucket, mug etc. A newly fitted ceiling fan is also visible.

The FSL report Ex.PW-18/G indicates that human blood was found on the vest, underwear and pyjama worn by the deceased. The blood detected was of Group A, but there was no reaction as far as the blood found of Pyjama is concerned. The aforesaid facts may be indicative of some other act, but they have not been proved or established. We record that semen was not found or detected on the anal swab or perianal swab. This does not dent and destroy the prosecution case u/s 302 IPC.

During the course of arguments before us learned counsel for the appellant has produced before us photocopy of a judgment dated 23rd August, 2012, passed by the District Court, Ghaziabad. It is stated that the appellant was acquitted in a murder case arising out of FIR No. 1179/2005, Police Station Loni, Ghaziabad. Photocopy of the said judgment has been kept on record and has been given mark ''X''. The said judgment is not of any relevance in the present case. We notice that none of the witnesses including PW-3 Anand, PW-5 Than Singh and PW-17 Sanjay have been cross-examined or questioned on FIR No. 1179/2005 nor is there any connection between the present case and the aforesaid FIR. It is not the case of the appellant that the aforesaid witnesses i.e. PW-3, PW-5 and PW-17 were witnesses or in any way connected with the said case.

The appellant in his statement u/s 313 Cr.P.C. has denied and stated that it was incorrect that he knew PW-3 Anand, PW-5 Than Singh and PW-17 Sanjay. He has also denied that he was acquainted and known to the deceased. It is a case of complete denial. He has stated that he had been arrested in this case from his native village Mukteshwara, Tehsil Hapur, District Ghaziabad.

The contention urged by the Counsel for the appellant that the prosecution has been able to establish motive in the present case does not merit acceptance. Even in cases of circumstantial evidence, conviction can be sustained when chain of evidence is complete even if the prosecution is not able to fully establish and prove the motive. (See Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police, and 2009 (1) SCC (Crl.) 272). To establish motive, the prosecution has relied upon statement of Sekhar (PW-16) and Manoj (PW-6). PW-16 Sekhar has deposed that he knew the appellant, who was a resident of their village. PW-16 had given Rs. 9,000/- to the appellant as advance for cost of milk, which was not supplied. The appellant did not return the money, therefore, PW-16 asked him for a second-hand motorcycle which the appellant wanted to acquire. He further deposed that he had not visited the appellant at his tenanted room in Saboli village and had not been introduced to the deceased or shown any motorcycle. PW-6 Manoj has deposed that the deceased Pawan wanted to purchase a second motor cycle from him. As per the prosecution, the appellant wanted a second hand motor cycle with the help of the deceased. The deceased had rejected the said request of the appellant and this was sought to be established as the motive behind the said crime. The witness PW-16, however, turned hostile. However, the statement of PW-16 reveals that the appellant had borrowed money and was in debt. Beyond that nothing has been proved, but this does not, as noticed above, dent the prosecution case or demolish it.

The last contention raised by the appellant relates to non-lifting of chance prints. In the present case in view of the testimony of PW-3 Anand, PW-5 Than Singh and PW-17 Sanjay it is established beyond doubt that the appellant was residing as a tenant in the room in question, and therefore, the question of lifting of chance prints is immaterial as far as the appellant is concerned. In view of the aforesaid position, we find the prosecution has been able to establish and prove the case against the appellant beyond reasonable doubt. The conviction and sentence of the appellant are, therefore, maintained. The appeal is dismissed.