JUDGMENT
Mukul Mudgal, J.
1. This is an appeal filed by the appellant challenging the judgment and order dated 02.09.2003 passed by the learned Additional Sessions Judge convicting the appellant under Section 302, 379, 201 IPC with life imprisonment and fine of Rs. 2000/- failing which further RI for two months for offence under Section 302 IPC. The appellant was directed to undergo sentence of RI for two years under Section 379 IPC. The appellant was further directed to undergo a sentence of RI for two years and and fine of Rs. 1000/- in default and further RI for one month for the offence under Section 201 IPC.
2. It is the case of the prosecution that the father of the deceased Sahil @ Munna lodged a report that his son aged about 20 years went missing on 27.3.2000. It was stated that he had gone to a house situated in Kodi Colony, Kasturba Village for sleeping. On the day of the report he tried to find out his son there but not finding him, he lodged a missing report vide DD No. 8A at P.S. Nand Nagri. He further stated that at about 8.00 p.m. someone called his neighbour Shambu, who was having telephone No. 2128987 at his house that the son of the complainant was in Nepal and was admitted in a hospital. The caller did not furnish the name of the hospital nor his address. The caller after sometime asked him to reach Kathmandu. The complainant suspected that his son had been concealed by some person and subsequently a case for an offence under Section 365 IPC was registered.
3. During investigation on 29.3.2000 Inspector Bharat Singh received secret information that the accused in the present case was available in his jhuggi. The said Inspector, SI Davinder Singh, Ct. Amar Pal and Ct. Vir Singh went to the jhuggi of the accused in Kodi Colony. The accused was arrested and was taken to the police station where he was interrogated. There he made the disclosure that he knew Munna for the last 4-5 years who was dealing in Committee and stated that he had subscribed one committee of the deceased for which he had to pay Rs. 500/- p.m. as Installment. The accused could not pay the said Installments for 4-5 months and Munna had started making demands and harrassing the accused telling him that he should not have joined the Committee if he did not have the capacity. On 27.3.2000 at 7.45 p.m., Munna had demanded money and the accused told him to come at about 11.00-11.30 p.m. When Munna reached his jhuggi at the appointed time, the accused hit on his head with a hammer, which was lying there, till he lost life. Thereafter, he removed the finger ring, watch and chain of the deceased and put the dead body of the deceased, blood stained clothes, blood-stoned gudri, 4-5 plastic bags, chappals of the deceased, his own blood stained shirt in the ditch already dug for the latrine in his jhuggi. He filled the said ditch by mud taken out in the process of digging. He used one favra, one tasla and one subble for filling the ditch. He also put the blood stained phatti in the ditch and brought the ditch at the floor level. In the morning at about 5.30 a.m. when he came out of his jhuggi, his neighbour Suleman asked him the cause of his being covered with mud and he told him that he had fallen in the ditch. Thereafter he concealed the watch, ring and chain below his bed in his house. On 28.3.2000 he called Shambhu, neighbour of the deceased, from a booth in Dilshad Garden informing him that the deceased had met with an accident and was admitted in a hospital in Nepal. After his arrest the watch, ring and chain were recovered from below his bed and he also gave the details of the place of occurrence. Permission to dig the earth was sought from the SDM and the same was got dug which led to the recovery of four plastic bags, one pair of chappal, one blood-stained gudri, one blood-stained wooden phatti, one blood-stained shirt tied around the neck of the deceased along with the dead body. The hammer used in the commission of the offence, one favra, an iron tasla and an iron sabbal were also recovered from his jhuggi. Post mortem was conducted on the body and the cause of the death was opined to be due to shock as a result of anti mortem injuries produced as a result of blunt force impact. The doctor also opined that the injuries No. 1, 2 and 3 were possible with the hammer recovered from the accused. The scene was got photographed and the clothes of the deceased and other exhibits were sent to FSL. Reports were collected, the statements of the witnesses were recorded and after completion of the investigation the challan was filed. A prima-facie case for offence under Section 302/379/201 IPC was found, the charge was framed and the accused pleaded not guilty.
4. The prosecution examined as many as 28 witnesses. PW-1 Smt. Tajjo, mother of the deceased, proved the report lodged by her husband Ram Dhani who had expired by the time the evidence had started as Ex. PW1/A. She corroborated the averments made in the report. She identified the pant Ex. P-1, T-Shirt Ex. P-2, banian Ex. P-3 and underwear Ex. P-4 as those belonging to the deceased. In her cross-examination she admitted that her neighbour had told her that the deceased might have taken Razia with whom he was having a love affair for the last three years to the said jhuggi. However, she denied the suggestion that the parents of Razia were unwilling to marry her with the deceased. She also admitted that her son was running a Committee but stated that he was not to receive any dues from any person and denied the suggestion that he had enemity with any other person.
5. PW-2 Wali Mohd. deposed that on 27.3.2000 at about 11.30 p.m. he saw the accused taking Munna to his jhuggi. The next morning he heard that Munna did not return to his house and that after two days his dead body was recovered from the ditch in the corner of jhuggi of the accused. In cross-examination he stated that he did not remember the colour of the pant and shirt which the accused was wearing. He denied the suggestion that due to darkness at the relevant time he did not see the accused taking away Munna.
6. PW-3 Maya Nand, PW-6 Ram Lakhan, PW-7 Uttam Kumar, PW-10 Babloo and PW-11 another Uttam Kumar are the persons who dug the earth in the jhuggi of the accused and are witnesses to the recovery of the dead body and other articles from the ditch. All of them deposed that on 29.3.2000 they had dug the ditch on the asking of the police. The chappal of the deceased was identified by his father. PW-3 and Ram Dhani/father of the deceased, identified the dead body. They identified favra as Ex. P-5, tasla as Ex. P-6, Sabbal as Ex. P-7, plastic bags as Ex. P-8/1 to 4, pair of chappal as Ex. P-9/1 and 2, gudri as Ex. P-10, wooden phatti as Ex. P-11, shirt wrapped on the mouth of the deceased as Ex. P-12. The cross-examination of PW-3 was closed as Nil and opportunity was given. But later on he was recalled for further cross-examination on the application of the accused. He stated that the other witnesses who had dug the ditch met him at about 6.30 p.m. The area of the jhuggi was about 25 sq. yards and the floor was kattcha. It was stated that first Uttam and Babloo dug the earth to depth of 13 feet and then he and lakhan started digging. The dead body was found at the depth of 15 feet. It was further stated that no stair was used for the purpose of removing the mud from the ditch. He and Lakhan dug the earth from 10.00 p.m. to 12.30 p.m. and the size of ditch was 4′ x 3 1/2′. The dead body was made to sit in the ditch, light was arranged through electric bulbs from neighborhood and photographs were taken.
7. PW-6, PW-7, PW-10 and PW-11 supra made statements similar to that of PW-3.
8. PW-4, Shambhu is neighbour of the deceased who received the telephone that Munna had met with an accident in Kathmandu. The telephone was attended by Tara Chand, who gave the said message to the father of the deceased. Police asked him to have a long conversation with the caller and tried to identify the voice of the caller. On the advice of SI Raj Kumar he moved an application in telephone exchange for placing a tape on his telephone. He was cross-examined by Ld. APP as he gave his telephone number as 2128984 instead of 2128987 but he stuck to the version narrated by him in his examination-in-chief. In cross-examination by the defense counsel he stated that he told the police about receiving of second telephone call but the same does not find place in his statement under Section 161 Cr.P.C. which was exhibited as Ex. PW 4/DA. PW-5 Mohd. Mauzin stated that more than 1-1 1/2 years ago at about 9.00 p.m. he was present in his jhuggi and the accused had asked him the reason for not going to sleep till 11.00 p.m. It was stated that thereafter the accused remained there but this witness went to sleep. PW-8, HC Dharambir proved the copy of DD No. 11A regarding bringing of the accused to the police station for interrogation as Ex. PW 8/A, copy of DD No. 8A regarding missing of the deceased as Ex. PW 8/B, copy of DD No. 20A regarding receipt of rukka and recording of FIR as Ex. PW 8/C. PW-9, SI Mukesh Kumar, Draftsman prepared the scaled site plan as Ex. PW 9/A. PW-12 Suleman Ashraf, saw the accused when his body was covered with mud and enquired from the him the reason for the same, for which the accused had replied that he had fallen into the ditch which was dug about 15 days before for the purpose of construction of a latrine there.
9. PW-13 Dr. Anil Kohli of the GTB Hospital conducted the post mortem and proved his report as Ex. PW 13/A. PW-14, Mohd. Mazroor is behnoi of the deceased. He identified the dead body. PW-15, Head Ct. Santosh was duty officer on 30.3.2000 and she is the witness of seizure of three pulandas sealed with the seal of AK which was containing blood sample, blood stained clothes and remaining clothes of the deceased. PW-16, Babloo was the witness who saw the accused telephoning from the booth of his father. PW-17, Mohd. Ahsan Abid, SDM had granted the permission to dig the earth on application Ex. PW 17/A. PW-18 Ct. Devender inspected the spot to detect chance print but none was available. PW-19, H.C. Maksood Ahmed is scribe of the FIR. PW-20 Ct. Niranjan Sharma proved the pointing out memo of STD booth from where the accused telephoned twice at the house of Shambu. He also witnessed the recovery memo of pant from the house of the accused and stated that 15-16 persons had assembled at the spot of digging but none agreed to join. PW-21, SI Devender Singh deposed about the secret information about hiding of the accused in his jhuggi, received by Inspector Bharat Singh. He also witnessed the arrest and disclosure of the accused. PW-24 SI Raj Kumar and PW-25 Inspector Bharat Singh witnessed and deposed to the disclosure of the accused. PW-22, HC Chander Bhan is scribe of DD No. 8A regarding missing of the deceased. PW-23 is Ct. Ram Babu who took photographs of labourers doing the digging work in the jhuggi of the accused and proved the negatives as Ex. PW 23/1 and positives as Ex. PW 23/2 to 23. PW-24, SI Raj Kumar proved rukka as Ex. PW 24/A, copy of FIR as Ex. PW 24/B, hue and cry notice as Ex. PW 24/C, personal search memo of the accused as Ex. PW 24/F, pointing out memo of place of burying dead body as Ex. PW 24/E, site plan as Ex. PW 24/G, identification memo of dead body by father of the deceased as Ex. PW 24/H, request for post mortem as Ex. PW 24/I, brief facts as Ex. PW 24/J and death report as Ex. PW 24/K, handing over memo of dead body as Ex. PW 24/L, another disclosure of the accused as Ex. PW 24/M, reports of CFSL, Calcutta as Ex. PW 24/N1 to N-5 and application sending property to FSL as Ex. PW 24/O. PW-26 Ct. Fateh Chand witnessed recovery of golden ring and wrist watch from the house of the accused at the instance of the accused. He deposed about the recovery and identified the articles. He is also the witness to recovery of hammer. He further proved the other recoveries effected from the ditch, dug in the jhuggi of the accused.
10. PW-27 Inspector Iqbal Mohd. made a statement similar to that of PW-24 SI Raj Kumar. In cross-examination he admitted that seizure memo of wrist watch, finger ring and chain, Ex. PW 11/B does not bear his signature. The light for the purpose of digging was taken from the neighbouring jhuggis and the digging which started at about 6.30 p.m. continued for about 2 1/2 to 2 3/4 hours. PW-28 HC Virender proved copies of entry No. 3025 and 3026 in the malkhana register regarding deposit of case property as Ex. PW 28/A to E. The same were sent to the FSL on 29.3.2000 through Ct. Mohd. Aslam vide RC No. 137/21 and were received back on 5.12.2000.
11. The main plea raised by Mr. Sandeep Gupta, the learned Counsel appearing for the appellant is that the appellant’s conviction is founded largely on following factors by the trial court:
(i) Dead body was recovered at the instance of the appellant.
(ii) The murder weapon, i.e., the hammer was recovered at the instance of the appellant.
(iii) Other personal articles of the deceased, i.e., ring, wrist watch, chain, etc. were recovered at the instance of the appellant.
12. The learned Counsel for the appellant has submitted that the evidence of PW-2 Wali Mohd., who deposed to the effect that the deceased was last seen with the appellant cannot be given credence because he had kept quiet for two days without any explanation. According to him it is not natural for a witness who deposed that he came to know about the appellant being missing for two days to have kept quiet for such a long time. In our view there is no merit in this plea of the learned Counsel for the appellant, as it has not been brought on record that PW 2 was such a close friend of the family of the deceased Munna @Sahil so as to immediately inform the parents of the deceased on the very next day that he had last seen the deceased with the appellant.
13. (a) The learned Counsel for the appellant has questioned that the ring, chain and wrist watch were not shown to the mother of the deceased even though garments of the deceased were shown to PW 1 Tajjo, i.e., the mother of the deceased which creates grave doubt about the veracity of the recovery of such articles. In our view, this plea is without substance because PW 1 while identifying the articles clearly stated that the father of Ram Dhani (since deceased) who lodged the missing report on 28th March 2000 had identified the articles in the presence of PW 11 Uttam Kumar, who is a social worker, working at Kasturba GramKust Ashram, Tahirpur. The said Ram Dhani, the deceased’s father had expired during the trial. Thus while it would certainly have been prudent for the prosecution to have the personal articles identified by the mother of the deceased PW 1 Smt. Tajjo also, the omission to do so is not of such significance which vitiates the identification of these objects.
(b) The learned Counsel for the appellant has further questioned the recovery on the ground that public witnesses have not joined at the time of recovery. In our view, the evidence of PW 3 Maya Nand, PW 6 Ram Lakhan, PW 7 Uttam Kumar (II), son of Guran Mehto, and PW 10 Babloo demonstrates that they dug the area where the dead body was recovered from and thus these 4 witnesses are the witnesses to the recovery of the dead body.
(c) The learned Counsel has further attempted to question the testimony of improbability of the prosecution case by submitting that when it took 4 1/2 hours in digging by four persons, it was not possible for the appellant single handedly to dig overnight, a trench to the depth of 15 feet as deposed to by the prosecution. Mr. Sharma, the learned Additional Public Prosecutor for the State, answered this plea by submitting that initially the dead body was not dug deep enough and was covered in mud and only thereafter was dug more to conceal the dead body even further. In our view, the explanation given by the prosecution particularly of PW 12 Suleman Ashraf who had questioned the accused as to why his body was covered in mud and the answer of the accused that he had fallen into the ditch dug by him 15 days ago for purposes of a latrine lends substance to the prosecution case that the ditch already stood dug and thus could not have taken the same time to bury the deceased as was taken in digging for recovery of the body.
(d) The learned Counsel for the appellant has particularly laid stress upon the Site Plan to submit that spot of recovery, i.e., Spot B, as identified by PW 9 SI Mukesh Kumar, who was Draughtsman of Delhi Police showed that Spot B was in front of passage and was open to the passers-by and it is inconceivable that any person murdering and burying the body would do it in the path of passage that could easily be viewed by passers-by. We have perused the PW 9/A, where no doubt, the passage has been shown, but nevertheless, it appears to be the part of Jhuggi which was being occupied by the appellant. Furthermore, we cannot loose sight of the fact that the incident had taken place at 11/12:00 o’clock at night and at that time of night even if the passage was visible to the passers by, there was little likelihood of any passers by at that point of time to be there and being a colony of jhuggis there were no street lights illuminating the spot when the body was buried.
(e) The learned Counsel for the appellant has further urged that there was no motive warranting the killing of the deceased. In our view the mother of the deceased PW 1 Tajjo stated in her deposition that the deceased was running the business of Chits. Even though in her cross examination she did not admit that any dues remained nevertheless the deceased could be a victim of a creditor.
14. Mr. Sunil Sharma for the State has attempted to highlight the fact that the articles like mattress and clothes which were sent for CFSL were having blood stains of Group AB and even blood stains on the appellant’s trousers and other cloths were found to be of the same group, i.e., Group AB. This clearly shows that the dead body was indeed in the house of the appellant where the presence of the blood stains of the same group AB was found on the clothes of the deceased. The learned Counsel for the appellant has further submitted that the evidence of PW 2 Wali Mohd., has remained unshaken in cross examination.
15. The report of the CFSL coupled with the evidence of the PW 2 Wali Mohd. as well as the PW 11’s presence at the time of recovery clearly shows that the prosecution has established its case beyond doubt. The Prosecution case is further buttressed by the significant recovery of the dead body and the murder weapon at the instance of the appellant. The body having been recovered in the backyard of the small jhuggi of the appellant further corroborates the prosecution case. We are satisfied that the prosecution has been fully able to establish its case beyond reasonable doubt as rightly found by the trial court. Apart from PW 2 Wali Mohd. whose evidence is convincing and who has no motive to wrongly frame the appellant, there is clear evidence of PW 11 Uttam Kumar who is a natural and neutral witness on the spot as he was a social worker in an organization namely Kasturba GramKusta Ashram, Leprosy Colony, Tahirpur. He had no enmity with the appellant so as to wrongly implicate him. In our view, PW 11’s testimony coupled with that of PW 2 clearly establishes the culpability of the appellant. This apart the recovery of the dead body testified by four witnesses who are the residents of the area clearly establishes beyond reasonable doubt the case set up by the prosecution. The recovery of the mattress and other articles from the house of the appellant bearing blood stains of Group AB which is same blood group found on the clothes of the deceased further lends substance to the prosecution case. The learned Counsel for the appellant has relied upon the judgment of the Hon’ble Supreme Court in State of West Bengal v. Mir Mohammad Omar and Ors. by submitting that the circumstances which were not put to the appellant under Section 313 Cr.P.C. cannot be relied upon. The learned Counsel for the appellant submitted that since the recovery of ring, wrist watch and the chain were not put to the appellant under Section 313 Cr.P.C., the same cannot be relied upon. Mr. Sharma, however, showed us that the recovery of the said article was put to the appellant under Section 313 though the question that these articles belonged to the deceased was not asked. In our view, the above judgment cannot be applied in the facts of the present case as recovery of the articles though not the ownership was clearly put to the accused.
16. The learned Counsel for the appellant has further relied upon the judgment of the Hon’ble Supreme Court in C.K. Raveendran v. State of Kerala , to submit that the above judgment clearly shows that if witnesses who claim to have last seen the deceased and the accused together did not agree with each other that motive of accused was not established and consequently the extra judicial confession cannot be presumed to be reliable. In our view, the above judgment is not applicable to the facts and circumstances of the present case. The testimony of PW 2 who last saw the deceased and the accused/appellant together has remained unshaken in cross examination. Therefore, in our view, the above judgment cannot be applied in the present case particularly, there is no extra judicial confession.
17. In the light of this we find no reason to interfere with the judgment of the learned trial court convicting the appellant for life imprisonment and fine of Rs. 2000/-, in default whereof further undergo to RI for two months for offence under Section 302 IPC, and also RI for two years under Section 379 IPC and the appellant was further sentenced to RI for two years and a fine of Rs. 1000/-, in default whereof further RI for one month under Section 201 IPC. All the substantive sentences are directed to run concurrently as directed by the trial court.
18. Accordingly, the appeal is dismissed.