Crl.A.No.537/2006 Page 1 of 42 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 3rd March, 2010 Judgment Delivered On: 5th April, 2010 + CRL.APPEAL 537/2006 MOHD. YUNUS ..... Appellant Through: Mr.Sumeet Verma, Advocate versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Dr.S.K.Vishwakarma (hereinafter referred to as the “Deceased”) was a Professor in University College of Medical Sciences, GTB Hospital and was heading Indian Council Medical Research Project undertaken by the said hospital. 2. On 13.04.2000 the deceased lodged a complaint Ex.PW- 10/A with PS Dilshad Garden stating therein that after forging his signatures on a cheque, on 29.02.2000 an unknown person had fraudulently withdrawn a sum of Rs.40,000/- from the Crl.A.No.537/2006 Page 2 of 42 savings account maintained by him with Canara Bank, GTB Extension Counter, New Delhi. Based thereon FIR No.62/2000, Ex.PW-2/A, for the offence of cheating was registered. 3. On 06.05.2000, SI Inderjeet PW-10 obtained the forged cheque Ex.PW-1/A dated 29.02.2000 from Ashok Shelly PW-1, Manager, Canara Bank, and seized the same vide memo Ex.PW-1/B. On 10.08.2000 SI Inderjeet met the deceased and obtained his specimen signatures and seized the same vide memo Ex.PW-10/C. On 05.10.2000 SI M.C.Pandey PW-5 and Const.Kishan Sahay PW-6, obtained the specimen signature card Ex.P-2 of the deceased in respect of account maintained by the deceased in Canara Bank from the officials of Canara Bank and seized the same vide memo Ex.PW-5/C. 4. No headway could be made in the investigation till the fateful day i.e. 4.7.2001 came into being. 5. On 04.07.2001, at about 2.15 P.M. Dr.Shardha Jain PW- 30, employed as a Research Associate in GTB Hospital and working under the supervision of the deceased, went to the cabin of the deceased situated in ward No.25 of GTB Hospital and saw the deceased lying unconscious on a chair with blood oozing from his right ear. Dr.Shardha Jain immediately apprised two nurses Nirmala PW-1 and Jagtar Kaur PW-15, of Crl.A.No.537/2006 Page 3 of 42 the aforesaid fact. Dr.Sanjay Kohli PW-5, reached the cabin of the deceased. He examined the deceased and prepared the MLC Ex.PW-5/A of the deceased. Thereafter the deceased was shifted to the Intensive Care Unit of GTB Hospital where he died. 6. Const.Devender Kumar PW-25, duty constable at GTB Hospital, passed on the information of Dr.S.K.Vishwakarma being grievously injured to PS Dilshad Garden where the duty constable noted the same vide DD No.12A Ex.PW-25/A. 7. Copy of DD Entry Ex.PW-25/A was handed over to SI Manoj Kumar PW-27 who accompanied by Const.Faruq Ahmad PW-9 went to GTB Hospital where the doctors treating the deceased informed him that the deceased had died. The doctors on duty conducted the X-ray and CT scan of the skull of the deceased but could not give any conclusive opinion regarding the cause of death of the deceased. As the cause of death of the deceased was not clear, SI Manoj Kumar chose to wait for the result of the post-mortem of the deceased before proceeding further in the matter. 8. The dead body was seized and sent to the mortuary of the hospital, where on 05.07.2001 at about 11.50 A.M. Dr.S.K. Verma PW-13 conducted the post-mortem and prepared the Crl.A.No.537/2006 Page 4 of 42 post-mortem report Ex.PW-13/A recording thereon that a lacerated firearm entry wound was found on the head of the deceased; that cause of death of the deceased was shock which resulted due to aforesaid head injury; that the said injury was produced by projectile of a firearm and was sufficient to cause death in the ordinary course of nature and that two small fragments of bullet were found in the skull of the deceased. 9. After conducting the post-mortem, Dr.S.K.Verma handed over the two fragments of bullet found in the skull of the deceased to Const.Faruq Ahmad PW-9, who in turn handed over the same to SI Manoj Kumar, vide memo Ex.PW-9/A. 10. On the receipt of the post-mortem report Ex.PW-13/A which clearly pointed towards the fact that the deceased was shot dead by somebody, SI Manoj Kumar PW-27 made an endorsement Ex.PW-27/H on the DD entry Ex.PW-25/A, and got registered FIR No.162/2001, Ex.PW-28/A for the offence of murder. 11. After the registration of the FIR, the investigation of FIR No.162/2001 was taken over by Inspector Shiv Dayal PW-31. 12. On 05.07.2001 Inspector Shiv Dayal recorded the statement of Shalini PW-11, the daughter of the deceased, Crl.A.No.537/2006 Page 5 of 42 wherein she stated that the appellant used to work as a driver with her father i.e. the deceased. When she reached GTB Hospital on learning about the incident in question, she found complaints Ex.PW-3/A, Ex.PW-3/B and Ex.PW-31/C. She further learnt that the appellant had got typed the aforesaid complaints at the asking of the deceased. On one occasion the deceased told her that someone had fraudulently withdrawn huge amount of cash from his bank account. She suspects that the appellant is involved in the murder of the deceased and that he had fraudulently withdrawn money from the bank account of the deceased. 13. Inspector Shiv Dayal PW-31, seized the three complaints Ex.PW-3/A, Ex.PW-3/B and Ex.PW-31/C from Shalini vide memo Ex.PW-31/B. It may be noted here that the complaints Ex.PW- 3/B and Ex.PW-31/C were addressed to the SHO P.S. Dilshad Garden and the complaint Ex.PW-3/A was addressed to the Senior Manager of Canara Bank and that the contents of the aforesaid complaints are verbatim the same. The complaints record that amounts of Rs.2,60,000/- and Rs.90,000/- have been fraudulently withdrawn from the bank account of the deceased by means of cheques Nos.16641 and 16442 dated 14.06.2001 and 16.06.2001 respectively. It may also be noted Crl.A.No.537/2006 Page 6 of 42 that the complaints do not bear the signatures of the deceased. 14. Thereafter Inspector Shiv Dayal contacted Vijay Kumar Narula PW-4 an officer of Canara Bank where the deceased had an account and seized 9 cheques and 9 authority letters vide memo Ex.PW-4/A. The 9 cheques and the authority letters purport to be executed by the deceased authorizing the appellant to receive money under the cheques. The details of the cheques as noted in the memo Ex.PW-4/A are as under:- S. No. Number of Cheque Amount of Cheque (in Rupees) Date of Cheque Exhibit Mark of Cheque Exhibit Mark of Corresponding Authority Letter 1. 750855 60,000 13.01.2001 PW-4/B PW-4/C 2. 750851 40,000 03.03.2001 PW-4/D PW-4/D 3. 16641 2,60,000 14.06.2001 PW-4/E PW-4/F 4. 16642 90,000 16.06.2001 PW-4/G PW-4/H 5. 19071 10,000 19.06.2001 PW-4/J PW-4/I 6. 789977 5,000 08.06.2001 PW-4/M PW-4/L 7. 750849 20,000 01.03.2001 PW-4/O PW-4/N 8. 768609 2,000 09.08.2000 PW-4/Q PW-4/P 9. 750858 20,000 23.03.2001 PW-4/S PW-4/R Crl.A.No.537/2006 Page 7 of 42 15. It is apparent that the appellant became the suspect in both FIRs. On 06.07.2001 Inspector Shiv Dayal PW-31 and SI Manoj Kumar PW-27 arrested the appellant. On being interrogated by Inspector Shiv Dayal in the presence of SI Manoj Kumar and two public persons namely Ram Babu Sharma PW-7 and Devender Sharma PW-8, the appellant made a disclosure statement Ex.PW-7/A wherein he admitted his guilt. He further disclosed that he can get recovered a sum of Rs.20,000 – 25,000/-fraudulently withdrawn by him from the account of the deceased as also a motorcycle, a Maruti van, a camera, binoculars, three gold rings and two gold chains purchased by him from the money fraudulently withdrawn by him from the account of the deceased. He also stated that he can get recovered the revolver used by him for murdering the deceased. 16. Pursuant thereto, the appellant led the aforesaid police officers and public persons to his residence and got recovered a sum of Rs.25,000/- a camera, binoculars, three gold rings and two gold chains which were seized vide memo Ex.PW-7/B. Thereafter the appellant got recovered a motorcycle and a Maruti Van parked outside his residence which were seized vide memos Ex.PW-7/C and Ex.PW-7/D respectively. The said motorcycle was made case property in FIR No.62/2000, for the Crl.A.No.537/2006 Page 8 of 42 reason the appellant stated to have purchased the same from the amount of the cheque Ex.PW-1/A, which cheque forms the subject-matter of FIR No.62/2000. After sometime, the appellant got recovered a revolver lying hidden under bushes which was seized vide memo Ex.PW-7/E. 17. On 08.07.2001 Inspector Shiv Dayal obtained the specimen signatures and handwriting of the appellant when he was in police custody as also the specimen writing of Bhagwan Das and seized the same vide memos Ex.PW-22/B and Ex.PW- 22/A respectively. Inspector Shiv Dayal handed over one of the papers containing the specimen signatures of the appellant to the investigating officer of FIR No.62/2000 vide memo Ex.PW- 11/A. 18. The revolver recovered at the instance of the appellant, the cheques and authority letters seized vide memo Ex.PW- 4/A, the fragments of the bullet found in the body of the deceased and specimen signatures and handwritings of the appellant was sent to the Forensic Science Laboratory. 19. The FSL report Ex.PW-31/H records that the revolver recovered at the instance of the appellant is designed to fire a standard .32” cartridge; that the said revolver was found in a working order and that the no opinion could be given Crl.A.No.537/2006 Page 9 of 42 regarding fragments of bullet found in the body of the deceased due to insufficient data. 20. The FSL report Ex.PW-31/G records that the suspect signatures of the deceased contained on the cheques Ex.PW- 4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G and the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H were compared with the “admitted signatures” of the deceased contained in the cheques Ex.PW-4/J, Ex.PW-4/M, Ex.PW-4/O, Ex.PW-4/Q and Ex.PW-4/S and the authority letters Ex.PW-4/I, Ex.PW-4/L, Ex.PW-4/N, Ex.PW-4/P and Ex.PW-4/R and that the signatures on the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G and the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H are not those of the deceased. The FSL report Ex.PW-31/G further records that some portion of the writings contained in the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G and the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H is that of the appellant; that some portion of the writings contained in the cheques Ex.PW-4/B, Ex.PW-4/D and Ex.PW-4/G and the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H is that of Bhagwan Das and that it has not been possible to fix the authorship of the signatures contained in the cheques Ex.PW- Crl.A.No.537/2006 Page 10 of 42 4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G and the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H. 21. In respect of FIR No.62/2000, the cheque Ex.PW-1/A, the specimen signatures of the appellant, the specimen signatures of the deceased and the specimen signature card of the deceased was sent to the FSL. Vide FSL report Ex.A1 it was opined that the cheque Ex.PW-1/A bears the signatures of the appellant. 22. Armed with the aforesaid materials, the police filed charge sheet(s) in both the FIRs namely FIR No.62/2000 and FIR No.162/2001. The appellant was made an accused in both the FIRs. 23. In respect of FIR No.62/2000, charges under Sections 420, 468 and 471 IPC were framed against the appellant for having cheated the appellant; having forged the cheque Ex.PW-1/A and having used the cheque Ex.PW-1/A as a genuine document. 24. In respect of FIR No.162/2001, charges under Sections 302, 420, 468 and 471 IPC and Section 25 Arms Act were framed against the appellant for having murdered the deceased; having cheated the deceased; having forged the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G; Crl.A.No.537/2006 Page 11 of 42 having used the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G as genuine documents and having possessed the firearm in contravention of Section 5 of Arms Act. 25. In respect of trial pertaining to FIR No.162/2001, the prosecution examined 11 witnesses. 26. Devender Sharma PW-3 and Ram Babu Sharma PW-4, public persons, deposed that the motor cycle bearing No. DL- 4S-M-9610 was got recovered by the appellant in their presence. Sunil Kumar PW-8, deposed that he is engaged in the business of sale and purchase of automobiles and that the delivery receipt Ex.PW-8/A issued by him, which receipt records that the motorcycle bearing No. DL-4S-M-9610 was delivered to the appellant, was issued by him. 27. SI Inderjeet PW-10, deposed that the investigation in respect of FIR No.62/2000 registered against the appellant was conducted by him. On being cross-examined about the investigation conducted by him in FIR No.62/2000 regarding the role of the appellant, he stated that (Quote): ‘I had met the complainant Dr.S.K.Vishwakarma and he had asked me to make inquiries from his driver also. I had thereon met the driver of the complainant i.e. Accused. At that time the complainant had not suspected the accused for the cheating Crl.A.No.537/2006 Page 12 of 42 and forgery.....I had made inquiries from the accused in this case.’ 28. In respect of trial pertaining to FIR No.162/2001, the prosecution examined 31 witnesses. 29. Nirmala J.Singh PW-1, deposed that on 04.07.2001 she was on duty as a nurse in ward No.25 of GTB Hospital. At about 2.15 P.M. Dr.Shraddha Jain came to her and told her that something untoward had happened to the deceased upon which she apprised the nurse-incharge Jagtar Kaur of the aforesaid facts. Thereafter she, Dr.Shraddha Jain and Jagtar Kaur went to the cabin of the deceased where she saw that the deceased was lying unconscious on a chair and that blood was oozing out of his right ear. After few minutes of their arrival in the cabin of the deceased, the appellant who was the driver of the deceased also came there and that the appellant was carrying a tiffin in his hand. 30. On being questioned about the presence of public in the ward in question, she stated that (Quote): ‘It is correct that patient and attendant were also available in the wards....’ 31. Kavinder Kumar PW-3, deposed that he was working a typist in N.V. Computers, GTB Enclave, Delhi in July 2001. In the afternoon of 04.07.2001 the appellant who was the driver Crl.A.No.537/2006 Page 13 of 42 of the deceased came to N.V. Computers and got typed the complaints Ex.PW-3/A and Ex.PW-3/B from him. 32. Vijay Kumar Narula PW-4, deposed that he was working as Special Assistant in Canara Bank, GTB Enclave, Delhi in the year 2001. He knew the deceased as he was maintaining a savings bank account in Canara Bank. Usually, the appellant who was the driver of the deceased used to come to the bank to deposit cheques and withdraw money etc on behalf of the deceased. On two occasions the appellant had withdrawn Rs.2,60,000/- and Rs.90,000/- from the account of the deceased. 33. Ram Babu Sharma PW-7 and Devender Sharma PW-8, public persons deposed that one camera, two gold chains, three gold rings, one maruti van and cash in sum of Rs.25,000/- was got recovered by the appellant from his residence in their presence. They further deposed that the appellant got recovered a revolver lying hidden under bushes in his presence. 34. Shalini PW-11, the daughter of the deceased, deposed that the appellant was working as a driver with her family since the year 1998. On 04.07.2001 when she went to GTB hospital on learning about the incident in question she had the Crl.A.No.537/2006 Page 14 of 42 complaint Ex.PW-3/B in her hand. On 2/3.07.2001 when she had gone to her parental house the deceased told her that a huge amount has been fraudulently withdrawn from his bank account and that he would lodge a complaint with the police and the bank authorities in said regard. She suspected that the appellant had fraudulently withdrawn the money from the bank account of the deceased and that he had committed the murder of the deceased for the expenditure used to be incurred by the appellant were far greater than his salary. 35. Aan Singh Bisht PW-12, deposed that he works as a clerk in Canara Bank. The deceased never came to the bank to operate his bank account and that the appellant who was the driver of the deceased used to operate the bank account of the deceased. The appellant had operated the bank account of the deceased in his presence. On 14.06.2001 the appellant had withdrawn a sum of Rs.2,60,000/- from the account of the deceased. He was working as cashier on 14.06.2001 and that he had made the payment of sum of Rs.2,60,000/- to the appellant. 36. Jagtar Kaur PW-15, deposed that in July 2001 she was working as nurse-incharge in Ward No.25 of GTB Hospital. On one day in July 2001 at about 2.15 P.M. two nurses namely Moli and Nirmala and Dr.Shraddha Jain came to her and Crl.A.No.537/2006 Page 15 of 42 informed her that something untoward had happened to the deceased. Thereafter they all went to the cabin of the deceased where they saw that the deceased was lying unconscious on his chair and that blood was oozing out from his right ear. After few minutes of their arrival in the cabin of the deceased, the appellant who used to come to the hospital with the deceased also came there and that the appellant was carrying a tiffin in his hand. 37. On being questioned about the presence of the public near the cabin of the deceased, she stated that (Quote): ‘No public used to go towards the room of the doctor. There was some distance between the stairs and the room of the doctor. It is correct that the toilet and bathroom fall in front of the staircase. The room of the doctor was at a distance of about 20 paces from the stairs. The room of the doctor was similarly at a distance of about 15/20 paces from the toilet/bathroom....It is correct that the stairs are used by the public. Attendants and patients also used the said staircase. There is a passage from the other side for entry to the wards also.’ 38. Bhagwan Das PW-16, deposed that the appellant was his neighbour. The cheques Ex.PW-4/B and Ex.PW-4/D were filled by him at the asking of the appellant. The authority letters Crl.A.No.537/2006 Page 16 of 42 Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H were written by him at the asking of the appellant. He denied that the cheques Ex.PW-4/E and Ex.PW-4/G were filled by him. The appellant used to tell him that he is asking him to fill/write cheques/authority letters as the deceased does not have the time to do so. 39. Arun Duggal PW-20, deposed that he works as a clerk in Canara Bank. Usually, the appellant who was the driver of the deceased used to come to the bank for withdrawing money on behalf of the deceased. On 16.06.2001 the appellant had withdrawn a sum of Rs.90,000/- from the account of the deceased. He was working as cashier on 16.06.2001 and that he had made the payment of sum of Rs.90,000/- to the appellant. 40. Kuleen Prabhakar PW-21, an employee of University College of Medical Sciences, produced the documents Ex.PW- 21/A, Ex.PW-21/B and Ex.PW-21/C and deposed that the same were issued by the said college. The said documents show that the appellant was working as lab attendant in ICMR project headed by the deceased. 41. SI Kumar Santosh PW-22, deposed that SHO of police station of Dilshad Garden had obtained the specimen Crl.A.No.537/2006 Page 17 of 42 signatures and handwriting of the appellant and specimen signature of Bhagwan Das in his presence. On being questioned about the specimen signatures and handwriting of the appellant, he stated that (Quote): ‘IO did not obtain permission from area MM to obtain the specimen of the accused in my presence.’ 42. Mohd. Kushnoor PW-26, deposed that he was employed as an orderly in GTB Hospital. On several occasions he had withdrawn cash from the bank account of the deceased. The appellant who was the driver of the deceased used to withdraw money from the bank account of the deceased in his absence. The deceased had told him that he doubted the appellant in respect of fraudulent withdrawal of money from his bank account. When he told the appellant about the aforesaid conversation between him and the deceased the appellant told him that the deceased is speaking unnecessarily as he is suffering from hypertension. 43. SI Manoj Kumar PW-27, deposed that the endorsement Ex.PW-27/H was prepared by him. On being questioned about the specimen signatures and handwriting of the appellant, he stated that (Quote): „No permission was taken from the court to take specimen handwriting and sign. of accused.’ Crl.A.No.537/2006 Page 18 of 42 44. Ashok Kumar PW-29, deposed that he is engaged in the business of sale and purchase of cars. On 16.06.2001 he had sold Maruti van bearing No.DL-4C-H-9873 to the appellant for a consideration of Rs.1,80,000/-. 45. Shardha Jain PW-30, deposed that she was working as Research Associate in ICMR project headed by the deceased. On 04.07.2001 she was present with the deceased in his cabin from 11.30 P.M. to 01.00 P.M. At about 01.00 P.M. she left from the cabin of the deceased and went to her own cabin. After having lunch she went to the toilet located outside her cabin. When she was returning to her cabin from the toilet she saw the appellant coming out of the cabin of the deceased. The appellant was carrying tiffin and some files in his hands at that time. Thereafter she went to her cabin. After sometime she suspected that someone had bolted the door of her cabin from outside. When she checked the door her doubt was confirmed. She tried to open the door of her cabin but to no vain. She climbed on the sofa kept in her cabin and tried to raise alarm through the window of her room. After about half an hour she saw a lady and a gentleman in the corridor of the floor below to the floor where her cabin was located. On hearing her voice the aforesaid persons came there and opened the door of her cabin. Thereafter she went to the room of the deceased where Crl.A.No.537/2006 Page 19 of 42 she saw that the deceased was lying in an unconscious condition on a chair and blood was oozing out of the right ear of the deceased. She immediately apprised three nurses namely Nirmla, Moli and Jagtar Kaur of the aforesaid facts. The deceased was immediately shifted to Intensive Care Unit of the hospital. At the time when the deceased was being shifted to ICU the appellant also came in the cabin of the deceased and helped in shifting the deceased to ICU. The appellant was carrying tiffin in his hands at that time. At the time when she saw the appellant coming out of the cabin of the deceased she did not notice any other person in the corridor. At the time when she went to the room of the deceased after the door of her cabin was opened she did not see any person outside the cabin of the deceased or in the corridor. 46. On being questioned about the presence of public in the wards in question, she stated that (Quote): ‘The peoples in the gallery used to walk freely as there was no restriction for using the same on the persons. It is also correct that about 100 patients used to be admitted in the same ward. It is also correct that the attendants with the patients used to stay in the hospital freely.’ Crl.A.No.537/2006 Page 20 of 42 47. Inspector Shiv Dayal PW-31, deposed that the investigation pertaining to FIR No.162/2001 was conducted by him. 48. In his examination under Section 313 Cr.P.C. save and except admitting the factum of his employment with GTB Hospital, the appellant denied everything and pleaded false implication. 49. In defence, the appellant examined Noor Mohammad DW-1, the father of the wife of the brother of