Crl. A. 265/2001 Page 1 of 29 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 16.03.2009 Judgment delivered on: 26.03.2009 + CRL.A. No.265/2001 YOGINDER SINGH …Appellant Through : Mr. R.P.Luthra, Advocate versus STATE …Respondent Through : Mr.Pawan Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 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 judgment should be reported in Digest? Yes. : PRADEEP NANDRAJOG, J. 1. Criminal law was set into motion when pursuant to a telephonic call, an entry was made in the PCR Form, Ex.PW-16/A, by Const. Manju, PW-16, at 6.58 P.M. on 01.04.97 recording that a boy has been stabbed at Durga Park near Power House. PW-16 transmitted the said information to Police Station Dabri where HC Dharampal PW-24, recorded DD No.25A, Ex.PW-24/B, at 7.00 P.M. on 01.04.97. 2. SI Jagbir Singh PW-20, accompanied by Const. Rajinder Singh PW-19, reached the spot where he learnt that two persons have been Crl. A. 265/2001 Page 2 of 29 injured in the incident and that they had been removed to the hospital. 3. In the meantime, one of the injured person, named Sanjay, (hereinafter referred to as the “Deceased”) was removed to DDU Hospital by his uncle Lallan Rai PW-4, and was declared brought dead as noted in MLC Ex.PW-23/A. Const. Bhagwan Singh PW-22, posted as Duty Constable at DDU Hospital, transmitted the said information to Police Station Dabri, where HC Dharampal PW-24, recorded DD No.27A, Ex.PW-24/C, at 7.30 P.M. on 01.04.97. 4. Thereafter SI Jagbir Singh PW-20 accompanied by Const. Girdhari Lal PW-12 proceeded to DDU Hospital where PW-20 collected the MLC Ex.PW-23/A of the deceased. 5. Jeetan, the other injured person was removed to Safdarjung Hospital in a PCR van where he was provided medical aid pertaining to 3 injuries, an incised stab wound on the right hand, a stab wound on the left buttock and a blunt blow on the chest, as noted in the MLC Ex.PW-21/A. 6. The Duty Constable at Safdarjung Hospital informed PS Dabri about Jeetan’s admission in the hospital which information was passed on to SI Jagbir Singh PW-20, who proceeded to Safdarjung Hospital where he recorded the statement Ex.PW-1/A of Jeetan. 7. Making an endorsement Ex.PW-20/A on Jeetan’s statement, SI Jagbir Singh forwarded the same at around 12:20 AM to the police station for registration of an FIR and at the police station HC Dharam Crl. A. 265/2001 Page 3 of 29 Pal PW-24 registered the FIR Ex.PW-24/A at 12:45 in the midnight i.e. at 00:45 hrs on 2.4.1997. 8. At the place of the occurrence, Inspector Omvir Singh Bhati PW- 25, prepared the site plan Ex.PW-25/G recording therein the places at points 'B' and 'C' where the deceased and Jeetan respectively were stated to be stabbed. Blood control earth and sample earth were seized vide memo Ex.PW-20/B. The clothes which Jeetan was wearing at the time of the occurrence were seized vide memo Ex.PW-20/C. 9. In his statement Ex.PW-1/A, Jeetan stated that he is a permanent resident of village Sarola, Dildar Nagar, District Ghazipur, Uttar Pradesh. That at present he is residing in a rented accommodation in house bearing Municipal No.RZ-21, Gali No.11, Durga Park, New Delhi and earns his livelihood by working as an embroider. That on the eve of Holi he had gone to the residence of his relative Basant Rai situated at house No. RZ-265-A, Gali No.3, Durga Park, New Delhi. That while he was watching television at the residence of Basant Rai, a boy named Kallu who resides in the neighbourhood of Basant Rai and was in a drunk condition came there, and asked him to switch off the television and turn on the stereo (deck) as he wanted to dance. That he told him that he had to watch a movie therefore he would not turn on the stereo. That on hearing this, Kallu got angry and a quarrel ensued. Basant Rai intervened and brought peace between them, however while going Kallu threatened him saying that he would teach him a lesson some other day. Thinking that it was a minor quarrel he did not pay much Crl. A. 265/2001 Page 4 of 29 attention to it. That today around 6.15 P.M. in the evening, he and his friend Sanjay who resides with him in his room were purchasing vegetables at Durga Park when Kallu accompanied with another boy came there, gave an indication towards him and said that “he is the one who had quarreled with him on the eve of Holi and that he would teach him a lesson today.” That thereafter the boy who was accompanying Kallu caught hold of him and Kallu gave blows on his chest. That Kallu then took out a knife and inflicted a blow on his left buttock. That when Sanjay attempted to save him, the boy who was accompanying Kallu caught hold of Sanjay and Kallu inflicted a knife blow on Sanjay. That thereafter Kallu again started attacking him and while he was defending himself, the knife hurt his right hand. That on hearing noises lot of people gathered there and tied a cloth around the wound of Sanjay. That one Lallan who was the uncle of Sanjay removed him to the hospital. That the boy who was accompanying Kallu was aged 20-22 years and that he could identify him if he would come in front of him. That Kallu and his accomplice with an intention to kill him and Sanjay had attacked them with the knife. 10. Since the deceased was declared brought dead at the hospital, his body was sent to the mortuary where Dr.Komal Singh PW-2, conducted the post-mortem at 4.00 P.M. on 04.04.97 and gave his report Ex.PW-2/A wherein it was recorded that one incised wound 2.3 cm x 0.8 cm x 22 cm (depth) obliquely placed on back, was noted on the person of the deceased; that the said injury pierced the thoracic cage at sixth inter-coastal space on posterior side and further Crl. A. 265/2001 Page 5 of 29 penetrated the lower lobe of the lung of the deceased; that the cause of the death was respiratory arrest due to stab injury on the back; that the said injury was sufficient to cause death in the ordinary course of nature. 11. After conducting the post-mortem, Dr.Komal Singh PW-2, handed over the clothes and blood sample of the deceased on a gauze to Inspector Omvir Singh Bhati PW-25, who seized the same vide memo Ex.PW-20/D. 12. Since Jeetan PW-1, had named the appellant and his accomplice as the assailants, the police set out to apprehend them. Pursuant to a secret information received by the police, the appellant and one Ravinder @ Bittoo (hereinafter referred to as the “co-accused”) were arrested on 06.04.97. Inspector Omvir Singh Bhati PW-25, interrogated the accused persons in the presence of SI Jagbir Singh PW-20, Jeetan PW-1 and Chander Shekhar PW-3. The accused persons made disclosure statements Ex.PW-3/B and Ex.PW-3/C in the presence of the afore-noted persons. Pursuant to the disclosure statements, the police recovered and seized, vide seizure memo Ex.PW-3/D a knife at the pointing out of the accused persons. A sketch Ex.PW-20/G of the said knife was drawn by Inspector Omvir Singh Bhati PW-25. 13. On 04.06.97 the prosecution moved an application for conducting TIP proceedings for identification of the co-accused by Jeetan PW-1, before the court of Metropolitan Magistrate, Delhi. The Crl. A. 265/2001 Page 6 of 29 co-accused refused to join the TIP proceedings on the ground that the police had already shown him to the witness as noted in the record Ex.PW-15/A of the said proceedings. 14. The seized materials, namely, the clothes and blood sample of the deceased, the clothes of Jeetan PW-1, the sample earth control and blood sample earth seized at the spot were sent to the FSL for scientific examination. Vide FSL reports Ex.PW-25/X and Ex.PW-25/Y it was opined that blood group of the deceased was 'B'; that human blood was detected on sample earth control, blood sample earth and clothes of Jeetan, group whereof could not be determined; that human blood of 'B' group was detected on the clothes of the deceased. 15. Armed with the aforesaid material a challan was filed accusing the accused persons of having murdering the deceased Sanjay and attempting to murder Jeetan. Charges were framed against the accused persons for having committed offences punishable under Sections 302/307/34 IPC. 16. Apart from examining the police officers who were associated with the conduct of investigation of the case, the doctors who had recorded the MLCs of the deceased and Jeetan and the judicial officer who had conducted the TIP proceedings in respect of the co-accused, Jeetan, Dr.Komal Singh, Chander Shekhar, Lallan and Basant Rai were examined as PW-1, PW-2, PW-3, PW-4 and PW-14 respectively. Crl. A. 265/2001 Page 7 of 29 17. Jeetan PW-1, deposed that he had a quarrel with the appellant on the eve of Holi at the residence of his relative Basant Rai. That on 01.04.97 at about 6.25 P.M. he along with the deceased was purchasing vegetables at a market when the appellant accompanied with co-accused came there. That the accused persons called him at a corner and then the appellant gave a fist blow on his chest whereupon he fell on the ground. That the appellant then took out a knife and attempted to inflict a knife blow on his abdomen but he turned around due to which the blow landed on his left buttock. That thereafter the appellant inflicted a knife blow on his right hand. That when the deceased tried to save him, the appellant gave a knife blow to Sanjay at which Sanjay fell down and the accused ran away. That someone informed the police about the happening of the incident. That the deceased was removed to the hospital by his uncle Lallan before the arrival of the police. That he was removed to the hospital by the police. That the accused persons were not arrested by the police in his presence. That neither the accused persons had made any disclosure statement nor any knife was recovered at the instance of the accused persons in his presence. 18. Dr. Komal Singh PW-2, who had conducted the post-mortem of the deceased proved the post-mortem report Ex.PW-2/A. He deposed that the injuries found on the person of the deceased could not have been caused by the knife which was allegedly recovered at the instance of the accused persons. Crl. A. 265/2001 Page 8 of 29 19. Chander Shekhar PW-3, deposed that on 01.04.97, while he was purchasing vegetables at a market he saw that Jeetan and the deceased were talking to each other. That in the meantime the appellant along with another boy, called Jeetan to a corner and thereafter the appellant gave beating to Jeetan. That the appellant then took out a knife and inflicted injuries with the said knife on the person of Jeetan. That when the deceased tried to save Jeetan the appellant gave a knife blow to the deceased whereupon the deceased fell on the ground. That on seeing this, he rushed to call one Hira Lal who was the uncle of the deceased but he was not present at his house. That when he returned to the spot Jeetan was still present at the spot but the deceased had already been removed to the hospital. That the accused persons were not arrested in his presence. That the accused persons had made disclosure statements Ex.PW-3/B and Ex.PW-3/C in his presence. That no knife was recovered at the instance of the accused persons in his presence. 20. Lallan Rai PW-4, deposed that he had removed the deceased to DDU Hospital on the date of the incident. 21. Basant Rai PW-14, deposed that no quarrel had taken place between Jeetan and the appellant on the eve of Holi in his presence. However, he later deposed that he was watching television along with Jeetan at his residence on the eve of Holi. That when he had gone to fetch water some quarrel had taken place. That on coming back he asked Jeetan and the appellant to leave his house as they were quarreling. Yet again, the witness contradicted himself by deposing Crl. A. 265/2001 Page 9 of 29 that the accused person was not present at his house on the eve of Holi. 22. The accused persons in their respective statements under Section 313 Cr.P.C. denied everything. They stated that they have been falsely implicated in the present case; that they were present at their respective houses at the time of the occurrence. 23. The accused persons chose not to lead any evidence in their defence. 24. Holding that no witness of the prosecution had any knowledge about the identity of the co-accused Ravinder @ Bittoo till the time of the recording of the FIR Ex.PW-24/A evident from the fact that his name was not mentioned in the said FIR; that the evidence led by the prosecution to establish that Jeetan had identified the co-accused soon after the happening of the incident was that the accused persons were arrested at the pointing out of Jeetan was demolished for the reason the knife which allegedly was got recovered by the accused persons in the presence of Jeetan at the time of their arrest was not the weapon of offence; that the prosecution had sought to conduct TIP proceedings for identification of the co-accused at a belated stage and that the prosecution had ample opportunity to show the co-accused to the necessary witness before the conduct of TIP proceedings, vide judgment dated 15.02.01 the learned Trial Court acquitted the co-accused on the ground that the prosecution has not been able to establish beyond reasonable doubt that Crl. A. 265/2001 Page 10 of 29 Ravinder @ Bittoo was the person who had acted in concert with the appellant in committing the crimes. However, holding that the evidence of Jeetan PW-1, inspires confidence, the learned Trial Court had convicted the appellant. Vide order dated 26.02.01 the learned Trial Court had sentenced the appellant to undergo imprisonment for life for committing offence punishable under Section 302 IPC; imprisonment for 7 years for committing offence punishable under Section 307 IPC. Both the sentences have been directed to run concurrently. 25. At the hearing before us, learned counsel for the appellant advanced under-noted six submissions in support of the appeal:- A The first submission advanced by the learned counsel for the appellant related to the time of identification of the appellant by Jeetan PW-1. The argument of the counsel on this aspect is two-fold. The first part of the argument was predicated upon an entry recorded in the PCR Form Ex.PW-16/A while the second part was based upon a suggestion given by Additional Public Prosecutor to Chander Shekhar PW-3. (i) The translated version of the entry recorded in the PCR Form Ex.PW-16/A relied upon by the counsel reads as under:- “Removing to the hospital.....Assailant is known by face......Is resident of neighborhood......Boy has been inflicted with two knife blows.......One blow has hurt hand and the other blow has hurt hip.....Handed over to Duty Constable at Safdarjung Hospital” (Emphasis Supplied) Crl. A. 265/2001 Page 11 of 29 The counsel argued that tenor of the afore-noted entry makes it clear that it must have been recorded upon the information given by Jeetan PW-1, and since it was recorded soon after the happening of the incident it has to be treated as the first account of the incident given by Jeetan PW-1. The recording contained in the entry that 'assailants were known by face' establishes that the appellant was not known to Jeetan at the time of the happening of the incident. To further buttress his argument, the learned counsel for the appellant drew attention of this court to following deposition of Jeetan PW-1:- “It is wrong to suggest that I became unconscious after receiving injuries......I saw Kallu for the first time on the Holi prior to the date of incident and prior to that he was not known to me. On the day of Holi also I was not aware about his whereabouts. On that day of Holi Basant told me name of Holi.” (Emphasis Supplied) The counsel emphasized that the fact that Jeetan PW-1 was in a state of consciousness at the time when he gave information to the police based whereon the afore-noted entry was recorded, the admission of Jeetan that he had no knowledge about the whereabouts of the appellant on the eve of Holi and failure of the prosecution to examine Basant Rai PW-14, to the effect that he had told the name of the appellant to Jeetan strengthens the reliability of the afore-noted entry recorded in the PCR Form Ex.PW-16/A. (ii) Pertaining to the suggestion given by Additional Public Prosecutor, to Chander Shekhar PW-3,: reliance whereon has been placed by the counsel, reads as under:- Crl. A. 265/2001 Page 12 of 29 “It is wrong to suggest that I stated before police that I and Jeetan came to know that accused Kallu along with his friend gave knife blow on the person of Jeetan on 01.04.97 and committed murder of Sanjay or that on that day I.e. 6.4.97 they were present and seen in Janak Puri New Delhi......” (Emphasis Supplied) The counsel argued that the afore-noted suggestion where the prosecution had itself suggested to the witness that Jeetan came to know about the identity of the appellant only after the happening of the incident clinches the issue that the appellant was not known to Jeetan at the time of the incident and falsifies the version given by Jeetan PW-1, at subsequent stages, that the appellant was known to him prior to the incident. The counsel further argued that the conclusion which results from the conduct of Jeetan PW-1, of falsely deposing on a material aspect is, that he had falsely implicated the appellant. B The second submission advanced by the learned counsel for the appellant related to the veracity of the statement Ex.PW-1/A of Jeetan. In this regard, the counsel drew attention of this court to following deposition of Jeetan PW-1:- “I cannot read my statement Ex.PW-1/A. Police had recorded this statement on its own and my signatures were obtained on the same......Ex.PW-1/A was got signed by the police from me at about 9 or 10 p.m. but I did not read the contents of the same.” (Emphasis Supplied) Learned counsel for the appellant urged that the afore-noted deposition establish that the statement Ex.PW-1/A was not recorded at the instance of Jeetan PW-1, and therefore, the prosecution has Crl. A. 265/2001 Page 13 of 29 wrongly attributed statement Ex.PW-1/A to Jeetan. Going a step further, counsel argued that the fact that the statement Ex.PW-1/A which was the very basis of the investigation of the present case is proved to be false, strongly probablizes the defence of the appellant that the police had falsely implicated him in the present case. C The third submission advanced by the learned counsel was predicated upon the time of the recording of the FIR Ex.PW-24/A. The counsel drew attention of this court to an endorsement Mark X contained in the FIR which records that the said FIR was received by the Metropolitan Magistrate at 4.05 P.M. on 02.04.97. The counsel argued that a perusal of the FIR reveals that the time of recording of the FIR is shown as 12.45 P.M. on 02.04.97; the fact that FIR was received by the Magistrate after about 15 hours of its recording strongly suggests that the FIR was ante-timed. According to the counsel, the FIR must have been actually registered around 4.00 P.M. on 02.04.97 therefore the considerable delay in recording the FIR probablizes the defence of the appellant that he has been falsely implicated in the present case. D The fourth submission advanced by the learned counsel for the appellant was that on the same set of evidence the co-accused has been acquitted by the learned Trial Court therefore, the appellant is also entitled to get acquittal on the principle of parity. E The fifth submission advanced by the learned counsel for the appellant was that a single blow was inflicted on the deceased and at Crl. A. 265/2001 Page 14 of 29 best knowledge which can be attributed to the appellant is to cause an injury and not death. F The last submission advanced by the learned counsel for the appellant was that the appellant was less than 18 years of age on the date of the commission of the offence inasmuch as the appellant had stated in his examination under Section 313 CrPC that he was born on 13.08.1979, therefore, he had to be considered as a 'juvenile' for the purposes of sentencing in view of the provisions contained in Juvenile Justice (Care and Protection of Children) Act, 2000 read with Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. 26. Before proceeding to deal with the submissions advanced by the learned counsel for the appellant, it would be apposite to note the legal parameters within which the present case would be decided by us. 27. The case of the prosecution hinged upon the evidence of Jeetan PW-1, who claimed to have got 'injured' in the incident in question and Chander Shekhar PW-3, who claimed to have witnessed the incident in question. However, the learned Trial Court has erroneously proceeded on the basis that Jeetan PW-1, was the solitary eye- witness. The learned Trial Court has completely eschewed the deposition of Chander Shekhar PW-3. 28. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the courts are required to be kept in mind. Crl. A. 265/2001 Page 15 of 29 (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of an injured witness is always of great value to the prosecution and it cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (d) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (e) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded. 29. Dealing with the first part of the submission urged by learned counsel for the appellant which was predicated upon an entry recorded in the PCR Form Ex.PW-16/A, contents whereof have been noted in foregoing paragraphs, suffice would it be to note that no evidence was led by the defence to establish that the said entry was recorded on the basis of the information given by Jeetan PW-1. No suggestion was given to Jeetan PW-1 that he gave a telephonic call to the police at number 100. It is an admitted fact that a crowd had Crl. A. 265/2001 Page 16 of 29 gathered at the spot by the time police had arrived. It is quite possible that the said entry was recorded on the basis of the information given by someone from the crowd. 30. Jeetan PW-1, in his deposition stated that the whereabouts of the appellant were not known to him. But from that statement the inference which is sought to be drawn and as urged by learned counsel for the appellant cannot be drawn. There is a world of a difference in saying that one cannot identify a person and that one does not know the whereabouts