Evidence; Hari Bahadur Vs. State [Delhi High Court, 18-02-2016]

Penal Code, 1860 – Ss. 304 Part II, 302 – Evidence Act, 1872 – Ss. 8, 21 & 25 – Culpable homicide not amounting to murder – Circumstantial evidence – Extra-judicial confession.


IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MR. JUSTICE G.S.SISTANI HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

CRL.A. 47/2004

Date of Judgment: 18th February, 2016

HARI BAHADUR @ HARI ….. Appellant Through: Mr. Braham Singh, Advocate Versus STATE ….. Respondent Through: Ms. Aashaa Tiwari, APP for State.

G.S.SISTANI, J, (ORAL).

1. The matter was passed over once as none was present on behalf of the appellant and taken up post lunch.

2. Mr. Braham Singh, Advocate who is present in court is appointed as Amicus Curiae in the matter.

3. The present appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure against the judgment dated 12.11.2003 and order on sentence dated 15.11.2003 passed by the Additional Sessions Judge by which the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life.

4. The brief facts of the case, as noticed by the Trial Court are as under:

“On 27.8.99 when SHO Inspector R.S. Nehra was to move for the VVIP route duty, Hari Bahadur @ Hari resident of WZ-113, Naraina village, Delhi met him in the police station and disclosed that he has killed his sister (Muhboli) Vishnu in his room at his house no. WZ-113, village Naraina by strangulating her throat. On this disclosure vide DD no.18A SI Sunil Kumar along with const. Yogender Kumar went for inquiry to WZ-113 village Naraina. In the meantime Nar Bahadur and landlord Prem Singh also arrived at the spot. In their presence the key of the room was taken from Hari Bahadur and lock of the room was got opened and they went inside the room. There a dead body of the deceased Vishnu W/o Nar Bahadur was found lying by the side of a wall. There was silky chord around the neck of the deceased tied twice which was having a strong knot, back side. The inspector through wireless called Additional SHO Inspector Sudhir Kumar for taking over the inquiry who along with const. Phool Kumar reached at the spot where ASI Hukam Singh with const. Balwan Singh also reached. Inspector Sudhir Kumar recorded the statement of Nar Bahadur, husband of deceased Vishnu. Nar Bahadur in his statement disclosed that for one month she was living with his brother Hari Bahadur as she had quarrelled with him (Nar Bahadur) and living separately with Hari Bahadur who is a resident of Nepal and presently living at WZ-113, Village Naraina. He also disclosed that Hari Bahadur came to him around at 5:30 AM .on that day at his house informed that he was fed up with the activities Of Vishnu, therefore, he was going to finish himself also. He tried to stop Hari Bahadur but Hari Bahadur ran away. Thereafter he was coming in search of Hari Bahadur and his wife and found the police at the spot i.e. WZ-113, Village Naraina. In view of this statement, a case of offence u/s. 302 IPC was made out. The Inspector prepared a Tahrir and through constable Rajinder Singh got recorded the FIR. The crime team was called at the spot for examination. Photographs were taken through photographers. After the examination of the spot, the site plan was prepared. The notebook was lying near the dead body. In this notebook on the rear cover it was written that he could not bear his insult, therefore, he has killed her and he will also not live. The notebook was seized. The dead body was sent for post mortem to Safdarjang hospital. The statements of witnesses were recorded. During the investigation Hari Bahudur confessed that due to activities of his sister (Muhboli Behan) has murdered her by strangulating her throat. The disclosure statement was recorded and accused was arrested. In the post mortem report Doctor gave the cause of death strangulation by ligature. Scaled site plan was got prepared through Draftsmen. The notebook and specimen hand writing was sent to FSL Malviya Nagar for examination and the accused was committed for trial. The formal charge against the accused was framed on 2.8.2000 under section 302 of IPC which was read over and explained to the accused and the accused Hari Bahadur pleaded not guilty and claimed trial.”

5. The prosecution in all examined 13 witnesses. One witness was examined by the defence. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure wherein the appellant denied the allegations made against him and alleged false implication and claimed to be tried.

6. Mr. Braham Singh learned counsel appearing on behalf of the appellant submits that the impugned order is contrary to the facts and is based upon conjectures and surmises.

7. Counsel for the appellant argued that the First Information Report Ex.PW11/A cannot be relied upon in view of the provisions of Section 25 of the Evidence Act and was kept out of the consideration by the trial court.

8. The counsel for the appellant submits that the testimony of Nar Bahadur PW2 is not a reliable or truthful piece of evidence and is contradictory to the version given by S.I. Sunil Kumar PW5 and Insp. R. S. Mehra PW6. It is further clarified that PW2 in his testimony categorically deposed that appellant Hari Bahadur gave him the keys of jhuggi and he is the one who opened the lock. However, PW5 and PW6 had testified that appellant gave keys to PW5 and he opened the same.

9. The counsel further submits that it is a settled law that no credence can be placed on the extra judicial confession of the appellant Hari Bahadur and the trial court committed gross error in relying on such a confession.

10. Counsel for the appellant strongly urged that the case of the prosecution is based on circumstantial evidence; there is no direct evidence available on record. The counsel for the appellant submitted that there are material contradictions and improvements in the statement made to the police which cast a serious doubt in the case projected by the prosecution.

11. The learned counsel for the appellant also contended that the alleged recoveries made in the present case did not connect the appellant Hari Bahadur with the crime. The presence of the appellant at the place of occurrence is highly doubtful which is further corroborated by the testimony of PW1 Prem Singh and DW1 Ashok Kumar.

12. Lastly, counsel for the appellant urged that even if the allegations against the appellant are believed to be true, the case falls under Section 304 Part II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. The incident took place at the spur of the moment and the appellant had not acted in a cruel and unusual manner therefore, the appellant should be convicted under Section 304 Part-II of the Indian Penal Code on the period already undergone.

13. Per contra, Ms. Aashaa Tiwari learned APP for the State submits that the prosecution has been able to establish its case beyond any shadow of doubt. The counsel for the State vehemently supported the case of the prosecution and submitted that the testimony of all the prosecution witnesses unerringly point towards the guilt of the appellant herein.

14. The counsel for the State further submitted that the alleged incident is corroborated by the testimony of PW2 Nar Bahadur in which he categorically deposed that on the fateful day he saw the dead body lying by the side wall of the room.

15. Lastly, learned counsel for the State submits that the evidence produced on record clearly establishes the guilt of the appellant and the learned trial court has rightly convicted the appellant for the offence punishable under section 302 of the Indian Penal Code, hence the impugned judgement does not call for any interference.

16. We heard the learned counsel for the parties and perused the record and also examined in detail the judgment rendered by the trial court.

17. Before we deal with the rival submissions of the parties, we deem it appropriate to refer the testimonies of the material witnesses in detail. The case of the prosecution rests on the testimonies of PW2 Nar Bahadur and PW6 Insp. R. S. Nehra.

18. PW2 Nar Bahadur in his testimony deposed as under: