Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 1 of 26 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: April 06, 2010 Judgment delivered on: April 23, 2010 + CRIMINAL APPEAL NO.303/2000 GUDDU ....APPELLANT Through: Mr. Sumeet Verma, Amicus Curiae/ Advocate Versus STATE .....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel with Ms. Laxmi Chauhan, Advocate WITH CRIMINAL APPEAL NO.55/2000 SANJU ....APPELLANT Through: Mr. Sumeet Verma, Amicus Curiae/ Advocate Versus STATE .....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel with Ms. Laxmi Chauhan, Advocate WITH CRIMINAL APPEAL NO.119/2000 TARA CHAND ....APPELLANT Through: Mr. Rajesh Mahajan, Advocate Versus STATE .....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel with Ms. Laxmi Chauhan, Advocate AND Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 2 of 26 CRIMINAL APPEAL NO.498/2001 MUKESH ....APPELLANT Through: Ms. Ritu Gauba, Amicus Curiae/Advocate Versus STATE .....RESPONDENT Through: Mr. Pawan Sharma, Standing Counsel with Ms. Laxmi Chauhan, Advocate CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J. 1. Above appeals have been preferred against the impugned judgment dated 23.12.1999 in Sessions Case No.7/98, FIR No.240/98, P.S. Mangol Puri. In terms of the judgment, the appellants Sanju and Mukesh have been convicted under Sections 392 IPC read with Section 397 IPC. Appellant Tara Chand has been convicted under Section 392 IPC read with Section 397 IPC as also under Section 302 IPC read with Section 34 IPC. The appellant Guddu has been convicted under Section 392 IPC read with Section 397 IPC, Section 302 IPC read with Section 34 IPC and also under Section 25/27 of the Arms Act. The appellants were sentenced accordingly in terms of the order on sentence dated 04.01.2000. Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 3 of 26 2. Briefly stated, case of the prosecution is that in the morning of 13.03.1998 at 7:45 am on the receipt of information from PCR Constable Geeta No.3700/PCR, DD No.7A was recorded at P.S. Mangol Puri (Ex.PW13/A) that a dead body was found lying behind DESU Office, Railway Line, Mangol Puri. Copy of the DD report was sent to SI Sanjay Singh through Constable Mohd Illyas for necessary action. SI Sanjay Singh along with Constable Mohd Illyas reached at the spot where he found the dead body of a male person having stab injuries on the thighs. In the meanwhile, Inspector Rejeshwar Prasad, SHO P.S. Mangol Puri also reached at the spot. While the efforts were being made to identify the dead body, complainant Sirajuddin (PW20) reached at the spot and identified the dead body as that of Insaf Ali. Inspector Rajeshwar Prasad recorded the statement (Ex.PW20/A) of Sirajuddin wherein he stated that he was an employee of a company at K-61, Udyog Nagar, Peera Garhi, Nangloi. The deceased Insaf Ali was his co-employee. On 12.03.98 at about 7:00 am, they left the factory. When they crossed the railway line to go towards Mangol Puri Industrial area, two boys suddenly caught hold of him, one of them placed a knife on the left side of his waist and they removed Rs.1080/- from his back pocket. They also threatened him to go away. Their two other associates caught hold of Insaf Ali (deceased) and one of them inflicted knife blows on his respective feet (“Dono Pairo Par”). Insaf Ali raised an alarm bachao bachao. He (complainant Sirajuddin) because of fear ran away from the spot. The complainant claimed that Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 4 of 26 aforesaid boys were aged about 20 to 25 years and he would be able to identify them if shown to him. He further stated that when Insaf Ali did not come back during the night, he thought that the deceased might have gone to the house of his brother-in-law at Samaipur Badli. Thus, in the morning, he went to Samaipur Badli and from there he came to the spot in search of the deceased Insaf Ali where he was found dead. On the basis of said complaint, formal FIR was registered at P.S. Mangol Puri. 3. The Investigating Officer, Inspector Rajeshwar Prasad (PW28) inspected the spot and lifted blood-stained earth as well as control earth from two different places, which samples were seized vide seizure memo Ex.PW17/A. The Investigating Officer also conducted inquest proceedings and sent the dead body for post mortem through Constable Mohd Illyas and one other Constable. Dr. K.L. Sharma (PW26) conducted post mortem examination on the dead body of the deceased and found following injuries on the body: ON EXTERNAL EXAMINATION: Dried vegetations were found over the clothes and the body. INJURIES : 1. Multiple abrasions over-lying bruise over above the outer part of right eyebrow 2 X 2 cm. 2. Bruise 2 X 2 cm over front of right elbow. 3. Bruise 2 X 2 cm over upper part of right eye. 4.(a) Perporated incised penetrating wound 5 X 1.5 cm. Blood was oozing vertical and the lower angle was acute upper rounded over inner back of lower part of right thigh (entry wound). Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 5 of 26 (b) Incised wound margins everted 1 X 0.5 cm over lower inner middle part of right thigh. Blood was oozing from the wound. (Exit) 5. Incised punctured wound 3 X 1 cm over outer middle part of left thigh. Upper angle acute lower rounded. The wound was muscle deep only. On Internal Examination: Injury No. 4 after cutting skin fascia showed extensive haematoma of muscles. It further entered and severed profundafemosis artery. The head and brain were normal. neck tissues were also normal. The chest visceras were intact and normal. The abdominal visceral were pale and the stomach contained semi digested semi solid food. The urinary bladder and rectum were empty. 4. In the opinion of Dr. K.L. Sharma, the cause of death was due to haemorrhagic shock consequent to injury No.4 which was sufficient to cause death in the ordinary course of nature within half an hour. He also opined that injury nos. 4(a & b) and 5 were caused by a sharp/penetrating slender and flat weapon like dagger or knife or the blade of a big cutting scissor and injury nos. 1, 2 and 3 were caused by blows and kicks during scuffle. He fixed the time of death forty hours prior to the conducting of post mortem examination. He also preserved the blood-stained clothes as well as the blood sample of the deceased and handed them over to the police. On 02.06.98, the Investigating Officer submitted an application to Dr. K.L. Sharma with a request to examine the weapon of offence contained in a sealed packet and give opinion as to whether the injury nos. 4 to 5 found on the person of the deceased could have been caused by the said knife. After examination, Dr. K.L. Sharma opined that the aforesaid injuries could have been caused by the said knife Ex.P1. Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 6 of 26 5. On 25.03.98, SI Rishipal Singh (PW22) arrested appellant Tara Chand in case FIR No.67/98 of P.S. Sultan Puri. On interrogation in that case, appellant Tara Chand made a disclosure statement wherein he confessed about his involvement in this case also. He also disclosed the names of his associates, i.e., the appellants Guddu, Sanju and Mukesh as his accomplices. 6. On the night intervening 29.03.98 and 30.03.98 at around mid night, SI Rajesh Rathi arrested appellant Mukesh on the basis of secret information. On interrogation, appellant Mukesh made a disclosure statement about this case and said that after robbing the deceased of his money, they removed his shoes also which he had thrown in the fields near Sonepat. Pursuant to the said disclosure statement, appellant Mukesh is stated to have led the police party to the fields near Sonepat from where he got recovered the pair of shoes belonging to the deceased. 7. On 02.04.98 at around 11:30 pm, SI Rajesh Rathi apprehended appellant Sanju on the basis of secret information. At the time of his arrest, Sanju resisted the police party and even threatened them with a knife, for that a separate case FIR No.308/98 under Section 25/27 Arms Act was registered against him at P.S. Mangol Puri. On interrogation, he also made a disclosure statement and pursuant to that, he got recovered a sum of Rs.100/- stated to be the part of his share of the robbed money, which was seized by the police. Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 7 of 26 8. Appellant Guddu was arrested by the police in case FIR No.191/98 under Section 302 IPC pertaining to P.S. Sultan Puri. After the arrest of appellant Guddu, the Investigating Officer obtained his police custody remand. On interrogation, he made a disclosure statement that he could get recovered the knife used for stabbing the deceased from a park near Sarai Rohilla. Pursuant to the disclosure statement, appellant Guddu led the police party to the said park and from there, he got recovered the knife Ex.P1 claimed to be the weapon of offence, which knife was thereafter sent to Dr. K.L. Sharma for seeking his opinion whether the injuries found on the person of the deceased were possible with that knife. 9. During investigation, the Investigating Officer moved applications for conducting Test Identification Parade for fixing the identity of the appellants as the culprits who had robbed PW20 Sirajuddin and the deceased Insaf Ali. All the appellants declined to participate in the Test Identification Parade on the respective dates fixed by Shri Bharat Parashar, M.M. On 25.04.98, at the instance of the police, complainant Sirajuddin visited Tis Hazari Courts where the appellants were to be produced for the extension of their remand and he identified all the four accused persons outside the court room. 10. The Investigating Officer also sent the clothes of the deceased and his blood sample preserved at the time of the post mortem as also the knife Ex.P1 recovered at the instance of the appellant to CFSL for Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 8 of 26 examination. He collected the report of CFSL, completed other formalities of investigation and on completion of investigation, filed challan against the appellants. 11. The learned Additional Sessions Judge, on consideration of the charge sheet and the accompanying material, charged all the appellants under Section 302 IPC read with Section 34 IPC as also Section 392 IPC read with Section 397 IPC. Besides, a separate charge under Section 27 of the Arms Act was framed against the appellant Guddu. All the appellants pleaded not guilty to the charge and claimed to be tried. 12. In order to bring home the guilt of the appellants, prosecution has examined 27 witnesses, including the star witness, namely, the complainant Sirajuddin (PW20). 13. The appellants were examined under Section 313 Cr.P.C. to afford them an opportunity to explain incriminating circumstances appearing against them in evidence. They all denied the prosecution version and claimed that they have been falsely implicated to solve the blind case. 14. Appellant Sanju examined DW1 Balbir Singh in his defence who stated that on the occasion of Holi about a year before his statement dated 28.05.99, appellant Sanju visited their village Palla, District Bullandshahar three days prior to Holi and he left the village ten days after Holi. He also examined DW2 Rajender of Village Palla, District Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 9 of 26 Bullandshahar who also deposed on the lines similar to that of DW1 Balbir Singh. The appellant Mukesh examined DW Sham Lal in his defence who stated in the court that on the day of Holi i.e. 12.03.98, the appellant Mukesh remained with him from morning till evening and he had even taken dinner at his residence at around 7:00 or 7:30 pm. He further stated on 28.03.98, two/three persons in civil dress visited his residence and inquired about the appellant Mukesh and thereafter took him along at around 9:00 or 9:30 pm. 15. Case of the prosecution rests mainly on the eye witness account of the occurrence given by the solitary witness i.e. the complainant Sirajuddin (PW20). He testified in the court that on 12.03.98 at around 7:00 pm, while he and the deceased were returning home after duty and going towards Mangolpuri, four persons waylaid them. Accused Sanju caught hold of him and accused Mukesh snatched Rs.1080/- from him on the point of knife. Appellant Tara Chand and Guddu caught hold of the deceased Insaf Ali and appellant Guddu stabbed the deceased Insaf Ali on both his feet while Tara Chand was holding him. He further stated that when the accused persons again pounced upon him, he ran away due to fear and on reaching home, he informed the neighbours about the incident but no neighbour was ready to accompany him to the spot of occurrence. He also deposed that Insaf Ali did not return in the night. On the next morning, he went to village Badli to inform relatives of Insaf Ali. Thereafter, he along with Raju Ali and others came to the spot of incident and found the dead body of Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 10 of 26 Insaf Ali lying there. Police reached at the spot and recorded his statement Ex.PW20/A. 16. PW25 SI Randhir Singh, who conducted part investigation of the case, is another important witness. He testified that after the formal arrest of the appellant Guddu on 24.04.98, he was interrogated at the police station and he made a disclosure statement Ex.PW8/A confessing his complicity in the offence in question and he also made a disclosure that he could get the weapon of offence i.e. the knife Ex.P1 recovered and pursuant to the disclosure statement, he led the police party to a park at Sarai Rohilla from where he got recovered the knife Ex.P1 lying in the grass from underneath a bench near a tree in Darbar Khan Park. He deposed that he prepared the sketch of the knife Ex.PW15/B, converted it into a sealed packet with the seal of ‘RS’ and sealed it vide seizure memo Ex.PW15/C and the seal after use was handed over to Raju Ali (PW24). Raju Ali (PW24), SI Rajesh Rathi (PW27) and Constable Sunil Kasana (PW15) are the witnesses of the seizure memo of the knife and they, in their testimony have corroborated the version of SI Randhir Singh (PW25). 17. On consideration of evidence, learned Additional Sessions Judge found all the appellants guilty of robbing on the point of knife and convicted them on the charge under Section 392 IPC read with Section 397 IPC. Besides, he found the appellant Guddu and Tara Chand guilty of committing murder of the deceased Insaf Ali in furtherance of their Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 11 of 26 common intention and convicted both of them under Sections 302 IPC read with Section 34 IPC. He also found the appellant Guddu guilty of offence punishable under Section 25/27 Arms Act and convicted him accordingly. Appellants Mukesh and Sanju were acquitted of charge under Section 302/34 IPC. The State has not preferred any appeal against their acquittal. 18. Learned Sh. Rajesh Mahajan, Advocate for the appellant Tara Chand, learned Sh. Sumeet Verma, advocate/amicus curiae for the appellants Guddu and Sanju and learned Ms. Ritu Gauba, advocate/amicus curiae for the appellant Mukesh have argued on almost similar lines so far as the merits of the case are concerned. 19. Learned counsels for the appellants submitted that from the record, it is obvious that the prosecution case rests mainly on sole testimony of PW20 Sirajuddin, whose presence at the spot of occurrence is highly doubtful and who is not a reliable witness because of various reasons. 20. The first criticism to the testimony of PW20 Sirajuddin is that his conduct during the occurrence as well as post occurrence in not making any effort to save the deceased and in not reporting the matter to the police for almost 15 hours is highly unnatural. Elaborating on the arguments, learned counsels submitted that had the version of PW20 Sirajuddin been true, under the natural course of circumstances, he was expected to report the matter to the police with a view to Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 12 of 26 initiate action against the appellants and to seek their help in ensuring medical treatment for his friend Insaf Ali (deceased). Learned counsels submitted that the doubt against the presence of PW20 Sirajuddin at the time of occurrence is further compounded by the fact that his version is not corroborated, rather contradicted by the medical evidence i.e. the post-mortem report Ex.PW26/A. Learned counsels submitted that as per the version of PW20 Sirajuddin, appellant Guddu had stabbed the deceased with a knife on both his feet, whereas the post-mortem report tells a different story, wherein it is mentioned that there were three incised wounds on the person of the deceased, two on the right thigh and one on the left thigh and no injury was found on the feet of the deceased. Learned counsels also drew our attention to the fact that as per the complainant, he sustained minor injury on his abdomen and he was also sent for medical examination, which version is not supported by any medical evidence as no MLC of the witness is placed on record. From the above, learned counsels have urged us to infer that PW20 is not a truthful witness and he perhaps has been introduced by the police to solve a blind case. 21. We do not find merit in this contention. It is well settled law that conviction of an accused can be recorded on the strength of the testimony of a sole eye witness provided his version is found to be reliable and consistent with the prosecution case. This is not a case in which investigation was long pending since the registration of the case, which might have prompted the police to introduce fake witness. In Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 13 of 26 the instant case, the incident took place in the evening of 12.03.98 around 7:30 pm. The complaint Ex.PW20/A of Sirajuddin (PW20) was recorded by the police in the next morning i.e. 13.03.98 at the spot where the dead body was found. In the said complaint, PW20 Sirajuddin narrated the incident and claimed that he was with the deceased at the time of occurrence and he was also robbed on the point of knife. This indicates that statement of PW20 Sirajuddin detailing the facts of occurrence was recorded by the police almost contemporaneously on reaching the spot where the dead body was found. Therefore, any possibility of Sirajuddin being a witness falsely introduced by the police to solve a blind case is ruled out. As regards the delay in reporting the matter to the police, Sirajuddin (PW20) explained that on being robbed on the point of the knife and seeing his friend Insaf Ali (deceased) being stabbed by the robbers, he ran away from the spot for fear of his life and safety. On reaching home, he narrated the incident to the neighbours but no one was ready to accompany him to the spot of occurrence, as such, due to fear, he did not go anywhere during night and stayed at home. We find nothing unnatural in this conduct of the witness to suspect his version or doubt his presence at the spot of occurrence. As regards the variance pointed out by learned counsels for the appellants in the ocular version of PW20 and the post mortem report Ex.PW26/A pertaining to the site of knife injuries, the aforesaid contradiction is not so material to doubt the truthfulness of the otherwise reliable testimony of the complainant Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 14 of 26 Sirajuddin (PW20). We cannot ignore the fact that the witness belongs to the illiterate and poor strata of society. It is not uncommon in illiterate and poor people to use the language loosely. Therefore, just because instead of thighs the witness has described the site of injuries as feet of the deceased, his version cannot be suspected. This contradiction can easily be attributed to loose use of language by the witness. On careful reading of the testimony of PW20 in the background of other evidence, we find his version natural and consistent with the prosecution story. PW20 Sirajuddin has been cross-examined at length by counsels for the appellants, but nothing material so as to discredit his testimony could be elicited in his cross- examination. Thus, we do not find any reason to doubt the truthfulness of the version of the complainant. 22. Another criticism to the testimony of Sirajjudin (PW20) is in relation to the identification of the appellants. Learned counsels for the appellants have submitted that neither of the appellants was arrested at the spot. It was also dark at the time of occurrence, therefore, in all probabilities, witness Sirajjudin (PW20) could not have got sufficient opportunity to see the faces of the accused persons. As such, his identification of the appellants in the court almost one year after the occurrence cannot be taken as reliable evidence. 23. We are not convinced with the above contention. On perusal of record, it transpires that during investigation, on the arrest of the Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 15 of 26 respective accused persons, the Investigating Officer moved applications Exhibits PW19/B, PW19/E, PW19/J and PW19/H in the court of Metropolitan Magistrate for holding Test Identification Parade to verify the identity of the appellants as the persons involved in this case. On these applications, we find that the learned M.M. has recorded that respective appellants were produced in his court in muffled face. This implies that the Investigating Officer had taken care to advise the appellants to keep their faces covered till the identification parade was held. From the evidence of Shri Bharat Parashar, M.M. (PW19), it is evident that learned M.M. scheduled holding of TIP in respect of appellants Sanju, Guddu as well as Tara Chand and Mukesh at Central Jail, Tihar on 17.04.98, 24.04.98 and 02.04.98 respectively. All the appellants refused to participate in the Test Identification Parade despite of the warning that their refusal to participate might be taken as a circumstance against them during trial. The explanation given by the appellant Sanju was that the police had taken his photograph, appellant Guddu claimed that he was shown to some persons while in the Tis Hazari lockup and appellants Tara Chand and Mukesh claimed that they were shown to the witness by the police at the police station. We are not convinced with the aforesaid explanations, particularly when as per the record, precautions were taken and the appellants were produced in the court in muffled faces when the applications for fixing of TIP were moved. Once the appellants had declined to participate in the Test Identification Parade, Crl.A. Nos.303/2000, 55/2000, 119/2000 & 498/2001 Page 16 of 26 now they cannot take shelter of the plea that dock identification of theirs by the complainant after a lapse of one year during trial is doubtful. Otherwise also, the Investigating Officer, SI Randhir Singh (PW25) as well as PW20 Sirajuddin have stated that subsequent to the refusal of the appellants to participate in the Test Identification Parade, PW20 Sirajuddin was called to Tis Hazari Courts on 25.04.98 when he identified the appellants as the persons involved in the crime outside the court room when the appellants were to be produced for extension of their judicial custody remand. This means that the first identification of the appellants after the occurrence was done by the complainant Sirajuddin within a period of less than two months since the incident, which is not such a long period in which the complainant