Suraj @ Kishan vs State

A.K. Sikri, J.—Appellant Suraj @ Kishan alongwith co-accused Arjun Mandal, Anil Kumar Mandal and Santoshi Devi was tried for the offences of criminal conspiracy, robbery and causing death of Ms. Chandra Kalra punishable under Sections 120B IPC, 302/34 and 394/120-B IPC. The Trial Court vide impugned judgment dated 18th April, 2009 acquitted three accused persons namely Arjun Mandal, Anil Kumar Mandal and Santoshi Devi. However, the appellant Suraj @ Kishan is convicted u/s 394 read with Section 34 IPC and Section 302 read with Section 34 IPC. He is sentenced to undergo imprisonment for life for the offence punishable u/s 302/34 IPC with fine of Rs. 5000/- and in default of payment of fine, to undergo one year RI. He is also sentenced to undergo RI for seven years for the offence punishable u/s 394/34 IPC and also to pay fine of Rs. 5000/- and in default of payment of fine, to undergo RI for a further period of one year. Feeling aggrieved by the impugned judgment and order on sentence, the appellant has preferred this appeal.

Briefly stated, the case of the prosecution is that on 9th January, 2002 on receipt of DD No. 5A regarding murder at J-12/1, Rajouri Garden, SI Satish Kumar alongwith Constable Sheikh Yakub reached at H.No. J-12/1, Rajouri Garden. Inspector Ram Chander, Addl. SHO also reached there. The police found a Maruti Zen Car parked at the gate of the house. The body of a female i.e. Ms. Chandra Kalra, aged about 55-60 years was found lying in the car with a muffler tied around her neck. Subhash Kalra (since deceased), husband of the said lady was present there. His statement was recorded by the Addl. SHO.

Complainant Subhash Kalra stated to the police that on 9th January, 2002 at about 11.30 a.m. he had gone to the market with his driver Mukesh Kumar (PW-1). When they returned at about 1.00 p.m. he found the door of his house open, two hawai chappals were lying near the gate. When he entered the house he noticed that the almirah in the room opposite drawing room was open. On this, he entered the said room and found that even the other almirah was also open. In the meanwhile, PW Mukesh Kumar followed him into the said room. When he opened the door of the store room two persons came out of the store and pushed him down. PW Mukesh Kumar tried to apprehend them. But they went into the kitchen. He raised an alarm "chor chor". Both those persons then came out of the gate of kitchen and tried to escape but PW Mukesh Kumar managed to apprehend one of them with the help of public persons Kamal Mathur and Shiv Kumar who also reached there. The name of the person who was apprehended was revealed as Suraj @ Kishan. On further checking, the body of Ms. Chandra Kalra was found in the bath room. Complainant further stated that he immediately rushed Ms. Chandra Kalra to Kukreja Hospital in his car where she was declared brought dead. Then he brought the dead body back to his house. On checking, he found that a sum of Rs. 1.5 lacs and jewellery was missing from the house. Even the jewellery of Ms. Chandra Kalra was missing from her body. On the basis of said complaint Ex. PW-21/A, formal FIR u/s 302/392/34 IPC was registered at Police Station Rajouri Garden.

Two pairs of chappals which were found lying in front of the house and a vegetable cutting knife found at the spot of occurrence were seized by the Investigating officer. Custody of the appellant Suraj @ Kishan was also entrusted to the police. On interrogation, Suraj @ Kishan made a disclosure statement wherein he disclosed that on 09.01.2002 at about 10.30 am, he along with Arjun Mandal, his wife Santoshi and Anil Mandal reached at a park near bus stand No. 2. Lambu also joined them. Arjun sent his wife Santoshi for getting the door of the house opened. Anil was asked to stand outside the house to keep a vigil. Arjun followed his wife inside the house. Thereafter, he and Lambu also entered the house. Inside the house, a lady met them. Arjun and Lambu demanded the keys from her but on her refusal, Arjun tied his muffler around the neck of the lady and with the help of Lambu, dragged her in the inner room and pressed her neck with the help of muffler and put her in the bathroom. Then they took out the keys from her clothes and opened the almirahs. Santoshi, wife of Arjun Mandal, fled away from the house. Lambu and Arjun gathered the money and the goods in a plastic bag. Lambu then fled away with the said plastic bag. While Suraj and Arjun were opening the lock of the almirah of the store room, Subhash Kalra and his driver Mukesh reached there and apprehended Suraj. Suraj further disclosed that the ladies chappal lying near the gate were of Santoshi and the gents chappal were of Arjun. During investigation, accused Arjun Mandal, Anil Mandal and Santoshi Devi were arrested by the police. They also gave disclosure statements before the police. Accused Arjun Mandal and his wife Santoshi were shown the chappals lying in the Malkhana. Both of them were asked to wear the chappal. They identified that the chappals belonged to them. Accused Arjun Mandal was produced before the court for TIP but he refused to take part in the TIP. Accused Ram Chander @ Lambu could not be arrested. Post mortem of the body was conducted. On completion of investigation, charge sheet was filed against accused Suraj, Arjun Mandal, Anil Kumar and Santoshi Devi. Accused Ram Chander @ Lambu was kept in Colum No. 2. The prosecution has examined as many as 21 witnesses to prove the charge against all the four accused persons. The learned Addl. Sessions Judge has given the description of the testimony of all these witnesses. It is not necessary to revisit the statements of all of them all over again. We would, however advert to the deposition of those witnesses who have bearing on the alleged guilt of the appellant herein, on the basis of which he has been convicted, at the same time we will also take note of the statements of some other witnesses which have not been relied upon qua other accused persons leading to their statement have bearing on the conviction of the appellant.

PW-1 is Mukesh Kumar. He is the driver of the complainant. He had apprehended the accused Suraj at the spot. He identified accused Arjun Mandal as the same person who had managed to escape from the spot.

PW-2 is Kamal Mathur. He deposed that in January, 2002 at about 12.30. 1.00 pm, he was standing at the shop of Aggarwal Sweets belonging to Shiv Kumar in DDA Flats, Rajouri Garden. On hearing the noise from the house of Mr. Kalra, which was in front of the shop of Aggarwal Sweets, they saw that driver Mukesh was grappling with some person. On seeing this, he and Shiv Kumar reached there and apprehended the person, whose name came to be known as Suraj. Meanwhile, many persons gathered at the spot and someone informed the police. The police came at the spot. Suraj was handed over to the police. This witness could not identify accused Suraj. The witness was declared hostile and was cross examined by the learned Additional PP with the permission of the court.

PW-6 is Shiv Kumar. He is the owner of Aggarwal Sweets, situated in front of the house of the victim. He deposed that he was present at his shop with Kamal Mathur, when he heard the noise of Chor... Chor. from the house of Subhash Kalra. Mukesh, driver of Subhash Kalra was raising the alarm. They reached at the spot. Mukesh was trying to apprehend one person who was trying to escape from there. They helped Mukesh in apprehending that person. He deposed that he does not remember the name of the person who was apprehended by Mukesh with their help. He stated that he cannot identify the accused if shown to him. The witness was declared hostile.

PW-8 is Constable Surender Kumar. He is the witness of investigation. He accompanied Inspector Ranga, Additional SHO to the spot. He deposed that a Maruti Car was standing in which there was dead body of a lady aged about 55-60 years. One muffler was also found tied around her neck. He stated that at the pointing out of Subhash Kalra, husband of the deceased lady, IO inspected the house and it was noticed that two almirahs in room were lying open and one almirah of the store room was also found open. He deposed that one person Mukesh produced accused Suraj before the IO. Suraj was arrested and his custody was handed over to Constable Yakub. He further stated that IO had recorded the statement of Subhash Kalra and sent him to the police station for the registration of the FIR.

PW-11 is Head Constable Sube Singh, MHCM, P.S. Rajouri Garden. He proved the entries of Register No. 19 regarding the deposit of case property and sending of parcels to FSL.

PW-16 is SI Satish Kumar. He deposed that on 09.01.2002 on receipt of DD No. 5-A Exbt. PW-16/A, he along with Constable Sheikh Yakub reached at the spot J-12/1, Rajouri Garden where a Maruti Zen car was parked opposite the said house in which, the dead body of a lady aged about 55-60 years was present. There was a muffler around her neck and she was bleeding from her mouth. In the meanwhile, Additional SHO Sh. R.C. Ranga also reached at the spot. He conducted the inquest proceedings and thereafter entered the house. The household articles were found scattered. Subhash Kalra, his driver along with 2-3 persons were present inside the house. Subhash Kalra told that the body was of his wife Chandra Kalra and that she was declared dead by the doctor at the hospital. Subhash Kalra and his driver produced Suraj @ Kishan. Thereafter, the statement of Subhash Kalra was recorded and Rukka was prepared on the basis of which, FIR was registered. Crime Team was called. One pair of ladies chappals and one pair of male chappals were seized vide memo Ex. PW-1/A. One knife lying in the gallery was also lifted and its sketch was 11 prepared vide memo Ex. PW-1/C. The knife was kept in a piece of cloth and pullanda was prepared which was sealed with the seal of RC. The sealed pullanda was seized vide memo Ex. PW-1/B. On interrogation, accused Suraj @ Kishan had informed the IO that the male pair of chappals belongs to Arjun Mandal while the female pair of chappal belongs to Santoshi Devi. Thereafter, the disclosure statement of accused Suraj was recorded. The statements of witnesses were also recorded. Accused Suraj was arrested. The dead body was sent to mortuary for post mortem. Case property was deposited in Malkhana. PW-17 is Inspector Devender Singh, Draftsman. He had taken the notes and measurements of the site on the pointing out of Inspector Ram Chander, IO of this case and then prepared the scaled site plan Ex. PW-17/A. PW-18 is HC Veena Sharma, Duty officer. She had recorded the FIR Ex. PW-18/A and DD No. 9-A Ex. PW-18/B.

PW-21 Inspector Ram Chander, Additional SHO, Rajouri Garden is the Investigating officer. He, however, was wrongly numbered as PW-19 when cross-examined by the learned defence counsel on 8th August, 2005. During investigation, he had filed an application Ex. PW-21/K for seeking opinion of the doctor who had conducted the postmortem examination as to whether the ligature mark could be caused by the muffler found on the body of Chandra Kalra. Dr. Manoj Nagpal gave his opinion which is Ex. PW-20/B. He had also filed an application for the TIP of accused Arjun Mandal but accused Arjun Mandal had refused to join the TIP. On 26.03.2002, he had sent four sealed parcels containing one pair of ladies chappal and one pair of gents chappal and foot prints of Santoshi Devi and Arjun Mandal to FSL, Malviya Nagar and the report in this regard was obtained which is Ex. PX. He had also initiated proceedings u/s 82/83 Cr. PC against accused Lambu @ Ram Chander and got him declared Proclaimed offender. On completion of investigation, he prepared the charge sheet and filed the same in court for trial.

PW-20 is Dr. L.K. Barua from DDU Hospital. He deposed that on 10.01.2002, the postmortem on the body of Chandra Kalra was conducted by Dr. Manoj Nagpal, who has left the services of the hospital and his present whereabouts are not known. Doctor proved the postmortem report as Ex. PW-20/A.

It is clear from the above that as per the prosecution, the appellant herein was apprehended on the spot. In so far as other persons are concerned, they were arrested subsequently on the purported disclosure statement of the appellant that they were also involved in the said robbery and murder. It is also the case of the prosecution that after the arrest of other three accused persons, their respective statements were recorded which led to recovery of certain articles. On that basis, they were roped in. Some persons who knew them were also produced as witnesses. Main witness in this behalf was PW-3 Arjun Ram. He, however, did not support the prosecution case and was declared hostile by the prosecution. Other witnesses qua the three accused were mainly police witness who had arrested these three accused persons and/or recorded their statements and/or made recoveries pursuant thereto and/or deposited/sent the recovered articles for examination to FSL. While acquitting these three persons, the learned Addl. Sessions Judge discussed the testimony of PW-3 and found that he had not supported the prosecution case regarding the presence of accused Santoshi Devi at the spot. He also recorded the finding that recovery of ladies chappals lying outside the house could not be linked with Santoshi Devi. Qua Arjun Mandal, the learned Addl. Sessions Judge further found that he was not apprehended at the spot and the only evidence against him was of recovery of chappals and his identification which were not proved and there were even contradictions in the statements of prosecution witnesses in respect of the recovery of chappals of Santoshi Devi or Arjun Mandal. Similarly there was no evidence at all to implicate accused Anil Mandal. The learned Addl. Sessions Judge then reverts to the case set up against the appellant herein. It was noted that the complainant Subhash Kalra could not appear in the witness box because of his death.

PW-1 Mukesh Kumar has deposed that he was employed as a driver at the house of Subhash Kalra since about one month prior to the incident. Subhash Kalra was residing with his wife Smt. Chandra Kalra. On 09.01.2002 at about 11.00 am, he had gone to the market with complainant. At about 1.00 pm on their return to the house, Subhash Kalra got down from the car and went inside the house. He found the gate of the house lying open. He further deposed that on being called by the complainant when he went inside, he found that the almirahs of the room of the house were lying open. The mattresses of the bed were lying scattered and displaced. Two accused Suraj and Arjun Mandal, who were hiding themselves behind the store, suddenly came out and gave punch to Subash Kalra and tried to get inside the kitchen. PW-1 then chased them inside the kitchen to apprehend them. However, accused Arjun Mandal managed to escape but accused Suraj was apprehended and overpowered. PW-1 further deposed that accused Suraj in order to free himself from his clutches, dragged him towards the staircase. PW-1 then raised the alarm and on hearing his alarm, PWs Shiv Kumar and Kamal Mathur came to his help and with their help, accused Suraj was overpowered. PW-1 further deposed that Smt. Chandra Kalra, wife of Sh. Subash Kalra was lying dead in the bathroom with a muffler tied around her neck. He stated that after leaving the accused Suraj with Shiv Kumar and Kamal Mathur, he and Subhash Kalra along with 2-3 other persons took Smt.Chandra Kalra to Kukreja Hospital where the doctor declared her brought dead. From the hospital, they came back to the house with the body of Smt. Chandra Kalra. Thereafter, the police came and did further investigation. In cross examination, he initially stated that he had signed on blank papers but later clarified that he does not remember whether these were written or blank documents. He could not answer the question as to whether the statement of Subhash Kalra was recorded on that day or not because he had slept in the car on that day.

The learned counsel of accused Suraj has argued that the testimony of PW-1 is not believable. It is improbable that a person would go to sleep in the car in which the dead body was lying. It has come in the testimony of the IO that the body was sent to mortuary for postmortem examination. The body had thus been removed from the car. It is usual for the drivers to sleep in the car. Since the body had been removed from the car and sent to mortuary, it cannot be said that PW-1 had slept in the car while the dead body was still there. It is correct that PW- 1 could not tell as to whether the papers which were signed by him were written or blank papers but that is not the circumstance which can be regarded as sufficient to discard the testimony of PW-1 which has been found to be cogent and straight forward.

PW-1 has proved the presence of accused Suraj @ Kishan at the house at the time of his return from the market. He has also proved that accused Suraj @ Kishan was apprehended at the spot itself with the help of PW-2 Kamal Mathur and PW-6 Shiv Kumar. The argument of learned defence counsel is that PW-2 and PW-6 are hostile and have not supported PW-1 on the point of identity of accused Suraj @ Kishan. Merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. PW-2 Sh. Kamal Mathur in his testimony has deposed that he was standing at the shop of Aggarwal Sweets with its owner Shiv Kumar and that on hearing the noise from the house of Mr. Kalra, which was just in front of the shop of Aggarwal Sweets, they saw that driver Mukesh was grappling with some person. He then reached at the spot with Shiv Kumar and apprehended that person, whose name later on came to be known as Suraj, as told by him. He further deposed that Suraj was later handed over to the police. Although PW-2 could not identify the accused in court, but, he has deposed that the name of the person who was apprehended by driver Mukesh with his help, was Suraj. Similarly, PW-6 has also deposed that Mukesh was trying to apprehend one person who was trying to escape but Kamal Mathur helped him in apprehending that person. PW-2 and PW-6 could not identify accused Suraj but have supported the version of PW-1 Mukesh regarding the arrest of Suraj from the spot. The presence of accused Suraj at the spot has also been proved by the IO and other police witnesses who reached at the spot on getting the information. They identified accused Suraj as the same person who was handed over to them by PW-1 Mukesh. Hence from the testimonies of PW-1 Mukesh and the other witnesses, it is conclusively proved that accused Suraj was apprehended from J-12/1, Rajouri Garden by PW-1 Mukesh Kumar with the help of PW-2 and PW-6. It is also proved that accused Suraj had tried to fled away from the spot on the arrival of Subhash Kalra and Mukesh Kumar at the house from the market.

The other circumstances which the prosecution has proved through the testimony of PW-1 are that the door of the house was lying open, the goods were lying scattered and the almirahs in the rooms were lying open. It has also come in the evidence of PW-1 that cash amount of Rs. 1.50 lakhs, ornaments and the ornaments worn by deceased, were stolen away. Another important circumstance that has come up in the cross examination of PW-1 is that on the day of incident, Smt. Chandra Kalra was alone in the house and there was no other servant present there.

On the basis of aforesaid evidence, as analyzed by the learned trial court, complete chain was formed implicating the appellant as much as;

(a) The prosecution had proved that the deceased was all alone at the house;

(b) The accused appellant with one other was present in the home and they tried to escape on the arrival Subhash Kalra and his driver Mukesh Kumar;

(c) He was over powered by Mukesh Kumar at the spot with the help of Kamal Mathur and Shiv Kumar;

(d) Door of the house were lying open and goods were lying scattered, almirahs were also found open;

(e) It was proved that Rs. 1.5 lacs and jewellery was also missing from the house;

(f) The appellant had not offered any explanation for his presence at the house of Subhash Aggarwal at the relevant time.

The learned Addl. Sessions Judge thus concluded that the prosecution has succeeded in establishing the incriminating circumstances which taken together form a chain of evidence so complete as to lead to irrefutable conclusion of guilt of the appellant leaving no reasonable ground for conclusion consistent with the innocence of the appellant and established that in all human probability, the appellant was a party to the robbery committed at J-12/1, Rajouri Garden and the murder of Ms. Chandra Kalra.

Learned Counsel for the appellant has questioned the finding of the trial court in recording his conviction and contended that the guilt of the appellant was not proved beyond reasonable doubt because of following reason:

(i) As per the version of the prosecution, the appellant was in the custody of PW-2 and 6 for half an hour still they did not identify the appellant in the court;

(ii) Statement of PW-1 was recorded at 2.00 p.m. but the FIR was registered only at 4.30 p.m. which throws out on the veracity of the statement.

(iii) Learned Counsel pointed out that PW-1 in his deposition had stated that he knew Arjun Mandal and appellant even prior to the incident. However, no such statement was made by him when his statement was recorded by the police u/s 161 of the Cr.P.C. where he stated otherwise.

(iv) The car in which the body of the deceased found lying was not made the case property. Further as per the prosecution the driver was sleeping in the car and, therefore, his testimony was to be disbelieved.

We find no merit in any of the aforesaid arguments. In so far as PW-2 and PW-6 are concerned, they had turned hostile. At the same time, as taken note by the learned Trial Court also, PW-2 in his testimony has deposed that he was standing at the Aggarwal Sweets with its owner Shiv Kumar and on hearing the noise from the house of Subhash Kalra, which was just in front of shop of Aggarwal Sweets, they saw that driver was grappling with some person. Therefore, they have admitted regarding the incident having been taken place. They have turned hostile only to the extent that they did not identify the appellant in the Court. However, PW-1 has categorically stated that the person with whom he was grappling was none else but the appellant.

The statement of PW-1 is reliable and there is hardly anything worth the name pointed out by the learned counsel for the appellant to shake the testimony of PW-1. Therefore, merely because of PW-2 and PW-6 could not identify the appellant would be of no significance, more so, when they have supported the version of PW-1 regarding the arrest of appellant from the spot. It is also to be borne in mind that the presence of the appellant at the spot was also proved by IO and other police witnesses who reached at the spot on getting the information. It is conclusively proved that the person who was apprehended at the spot was the appellant.

Likewise, not much noise can be made on the facts of this case in respect of time gap between recording of statement of PW-1 and registration of FIR. Statement was recorded at 2.00 p.m. and FIR was registered at 4.30 p.m. Once we find that the statement of PW-1 was otherwise trustworthy and reliable and withstood the strict test of cross-examination, the difference of 2 1/2 hours in registering the FIR would not be of much consequence. Similarly, simply because PW-1 did not state in his statement recorded u/s 161 Cr.P.C. that he knew Arjun Mandal and the appellant prior to the incident, one cannot throw away his testimony as nor reliable. This aspect is not very material in proving the case of the prosecution. Even if we presume that PW-1 has made minor improvement in his testimony recorded in the Court by stating the he knew the appellant even prior to the incident, though, it was not so stated in his statement recorded u/s 161 Cr.P.C. that by itself would not be a circumstance to discard his entire testimony. It is well known that the witnesses have sometimes tendency to make improvements or do the padding. However, in order to find out whether the witness is truthful or not, the entire testimony alongwith cross examination is to be analyzed and if the witness is found truthful otherwise, such minor discrepancies in the statement are to be ignored.

Argument that car was not made the case property and that PW-1 was found sleeping in the car and, therefore, his testimony should not be believed is again of no consequence. The learned Addl. Sessions Judge has dealt with this aspect in substantial detail, as discussed above in the following manner:-

The learned counsel of accused Suraj has argued that the testimony of PW-1 is not believable. It is improbable that a person would go to sleep in the car in which the dead body was lying. It has come in the testimony of the IO that the body was sent to mortuary for postmortem examination. The body had thus been removed from the car. It is usual for the drivers to sleep in the car. Since the body had been removed from the car and sent to mortuary, it cannot be said that PW-1 had slept in the car while the dead body was still there.

Further, there was no occasion to make the car as the case property when it had no relevant to the charge framed and with the prosecution case.

We thus do not find any merit in this appeal as we are of the view that in the basis of evidence produced by the prosecution, the charge of murder u/s 302 IPC as well as charge u/s 394 IPC has been proved against the appellant beyond reasonable doubt. The appellant was, therefore, rightly held guilty for the offence punishable u/s 302/394 IPC. Appeal is accordingly dismissed.