Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 22nd April, 2010 Judgment Pronounced on:12th May, 2010 + CRL.APPEAL No.710/2008 KALI RAM ..... Appellant Through: Mr.Tarun Kumar, Advocate for Mr.Jitendra Kumar, Advocate versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate CRL.APPEAL No.717/2008 JOGENDER @ PAHALWAN ..... Appellant Through: Ms.Shraddha Bhargava, Advocate versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate CRL.APPEAL No.967/2008 HARENDER SINGH & ANR. ..... Appellants Through: Mr.Ashutosh Bhardwaj, Advocate versus STATE ..... Respondent Through: Ms.Richa Kapoor, Advocate CRL.APPEAL No.995/2008 NARENDER SINGH ..... Appellant Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 2 of 35 Through: Mr.Tanveer A.Mir, 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? PRADEEP NANDRAJOG, J. 1. Criminal law was set into motion on 18.07.2000 at about 10.25 PM when Const.Ramji Lal PW-8 recorded DD No.30, Ex.PW-8/A, that at 10.05 PM a wireless information has been received that a guard on duty in a workshop at 235 Okhla Phase-III has been shot by an unknown person. 2. A copy of DD entry Ex.PW-8/A being handed over to him, Inspector Sunil Kumar PW-29, accompanied by SI Satish PW- 22, HC Krishan Pal PW-4, Const.Samarpal PW-9 and Const.Khemraj PW-19 proceeded to the workshop where he met Radhey Shyam PW-12, who was injured and informed him that one Krishanveer Rathi, employed in the workshop had Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 3 of 35 fired a shot at him. In the meantime, a PCR van reached the workshop and removed Radhey Shyam to All India Institute of Medical Sciences. 3. The premises in question was a workshop-cum-showroom from where automobiles manufactured by „Ford‟ were sold. On entering the showroom, the police officers saw Rishipal lying dead in the courtyard and Aslam Khan and Muneshwar lying dead in the power room. Leaving behind the constables to guard the place of the crime, Inspector Sunil Kumar went to AIIMS where he submitted an application Ex.PW-29/A to the doctor concerned for recording the statement of Radhey Shyam but could not do so as Radhey Shyam was not fit for statement and hence Inspector Sunil returned to the place of the crime. He made an endorsement Ex.PW-29/B beneath DD entry Ex.PW-8/A and at around 12.30 AM recording the date 19.07.2000 handed over the same to HC Krishan Pal PW-4 for FIR to be registered. At the police station HC Megh Raj PW-2 registered FIR No.401/2000, Ex.PW-2/A. 4. In the meantime, ACP V.K. Malhotra PW-33, reached the spot and took over the investigation. He summoned the crime team. 5. The crime team consisting of, amongst others, Const. Ram Avtar PW-3, a photographer and Chet Ram PW-5, a Finger Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 4 of 35 Print Expert reached the spot. Chet Ram PW-5 inspected the car found parked near the main gate of the showroom and lifted seven chance prints thereon as recorded in his report Ex.PW-5/A. Const.Ram Avtar PW-3, took the photographs Ex.P4/1 to Ex.P4/23; negatives whereof are Ex.P3/1 to Ex.P3/25. 6. Inside the Ford Ikon car parked near the main gate of the showroom from which Chet Ram PW-5 lifted the chance prints, ACP V.K.Malhotra saw a blood-stained polythene and a plastic bag containing a kurta, a pyjama and a vest were lying and he seized the same vide memo Ex.PW-10/D. He saw broken blood- stained glass pieces lying scattered on the accountant‟s room on the first floor of the showroom and he seized the same vide memo Ex.PW-10/P. He saw a blood stained handkerchief lying on the reception table kept in the hall of the showroom and seized the same vide memo Ex.PW-10/C. He saw an empty cartridge lying on the coffee counter in the showroom and an empty cartridge lying on the ground near the coffee counter and seized both vide memo Ex.PW-10/E. He saw an empty cartridge and one bullet lead lying in the courtyard where Rishi Pal was lying dead and he seized the same vide memo Ex.PW- 10/G. He saw an empty cartridge and a bullet in the power room where Aslam and Muneshwar were lying dead and he Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 5 of 35 seized the same vide memos Ex.PW-10/J and Ex.PW-10/Q respectively. He prepared the rough site plan Ex.PW-3/C of the place of occurrence. He seized the dead bodies of Rishipal, Aslam Khan and Muneshwar and sent the same to the mortuary of AIIMS for post-mortem. 7. On 19.07.2000 Const.Khem Raj PW-14 went to AIIMS and collected the clothes worn by Radhey Shyam at the time of the occurrence and handed over the same to ACP V.K.Malhotra vide memo Ex.PW-14/A. 8. On 20.07.2000 at about 12.25 PM Dr.T.Millo PW-6, conducted the post-mortem on the dead body of Aslam and prepared his report Ex.PW-6/A which records that a firearm injury was found on the occipital region of skull of Aslam and that the said wound was sufficient to cause death of Aslam in the ordinary course of nature. After the post-mortem, the doctor handed over the clothes and the blood sample of Aslam on a gauze, by making separate parcels of the clothes and the blood sample, to Const.Samarpal Singh PW-9, who in turn handed over the same to ACP V.K.Malhotra vide memo Ex.PW- 9/A. 9. On 20.07.2000 at about 12.30 PM Dr.Chitranjan Behra PW-25 conducted the post-mortem on the dead body of Rishipal and prepared his report Ex.PW-25/A which records Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 6 of 35 that a firearm injury was found on the occipital region of the skull of Rishipal; that the said injury was sufficient to cause death of Rishipal in ordinary course of nature and that bullet and pieces of bullet were found in the body of Rishipal. After the post-mortem, the doctor handed over the clothes and the blood sample of Rishipal on a gauze as also the bullet and pieces of bullet found in the body of Rishipal, by making separate parcels of the clothes, the bullet pieces and the blood sample, to Const.Khemraj PW-14, who in turn handed over the same to ACP V.K.Malhotra vide memo Ex.PW-14/B. 10. On 21.07.2000 at about 12.10 P.M. Dr.Sudhir Gupta PW- 27, conducted the post-mortem of Muneshwar and prepared his report Ex.PW-27/A which records that a firearm injury was found near the right ear of Muneshwar and that the said injury was sufficient to cause death of Muneshwar in the ordinary course of nature. After the post-mortem, the doctor handed over the clothes and the blood sample of Muneshwar on a gauze, by making separate parcels of the clothes and the blood sample, to Const.Veer Singh. 11. In view of the fact that Radhey Shyam had told Inspector Sunil Kumar that Krishanveer Rathi who was employed in the showroom had fired, it was apparent that further breakthrough Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 7 of 35 could be achieved only after Krishanveer Rathi was in the police net. 12. On 23.07.2000 a police team consisting of Inspector Sunil Kumar PW-29, HC Krishan Pal PW-4 and ASI Vijender PW-21 arrested accused Krishnaveer Singh from village Tikri, Uttar Pradesh as recorded in the arrest memo Ex.PW-21/A. On being interrogated by Inspector Sunil Kumar PW-29, in the presence of HC Krishan Pal PW-4 and ASI Vijender PW-21, accused Krishnaveer Singh made a disclosure statement Ex.PW-21/C wherein he stated that he, Sunil, Harender and Narender hatched a conspiracy to commit robbery in the showroom in question pursuant to which he and his aforesaid associates committed robbery in the showroom in the night of 18.07.2000 and also murdered Aslam, Rishipal and Muneshwar during the course of commission of said robbery; that the hand of Harender got hurt by a broken glass piece during the course of commission of robbery and that Harender used a handkerchief to wipe the blood oozing out of his hand and left the said handkerchief in the showroom in question; that he and the aforesaid persons looted a cash box containing a sum of Rs.75,080/- and a Ford Ikon car bearing registration No.DL-3C- Q-4257 from the showroom in question; that he had handed over a sum of Rs.30,000/- looted by him and his associates to Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 8 of 35 his father Kaliram; that he asked his cousin brother Jogender to take the country made pistol used by him and his associates in the crime from Narender as also sum of Rs.30,000/- lying in the car looted by them and that he can get recovered the country made pistol used by him in the crime and can point out the spot where the cash box looted by him and his associates from the showroom was thrown; that his three associates along with the car were at the bhatta of Sunil and he can get them arrested. Pursuant thereto, accused Krishnaveer Singh got recovered a country made pistol lying hidden in the heap of grass lying in his house which was seized vide memo Ex.PW-21/D. 13. Thereafter Inspector Sunil Kumar PW-29, HC Krishan Pal PW-4 and ASI Vijender PW-21, went to the parking at Ganesh Ghat, Haridwar and found Ford Ikon car bearing registration No.DL-3C-Q-4257 stationed there. (Why they went with accused to Haridwar is not clear for the reason, as noted above, in the disclosure statement Ex.PW-21/C Krishanveer has disclosed that the car was with the three accused and they were at the bhatta [brick kiln] of Sunil. It is not recorded that Krishanveer disclosed that the car was in Haridwar.) After sometime, accused Harender came near the car in question and was arrested by the aforesaid police officers. On being Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 9 of 35 interrogated by Inspector Sunil Kumar PW-29, in the presence of HC Krishan Pal PW-4 and ASI Vijender PW-21, accused Harender made a disclosure statement Ex.PW-21/H3 wherein he admitted his involvement in the crime in question. Inspector Sunil Kumar PW-29, seized the car in question vide memo Ex.PW-21/D. 14. On 24.07.2000 the police took accused Harender to AIIMS Hospital where Dr.Amar Natha examined him and prepared his MLC Ex.PW-20/A which records that a cut injury and abrasions were found on the right palm of accused Harender. After conduct of the medical examination, the doctor handed over the blood sample of accused Harender on a gauze kept inside a bottle to Const.Jai Kumar PW-17, who in turn handed over the same to ASI Rajbala PW-13, vide memo Ex.PW-13/A. 15. On 25.07.2000 accused Krishnaveer Singh led ACP V.K.Malhotra PW-33, Inspector Sunil Kumar PW-29 and HC Krishan Pal PW-4, to a bridge at river Krishna and got recovered a cash box from underneath the river and the same was seized vide memo Ex.PW-29/E. Thereafter accused Krishnaveer led the aforesaid police officers to his residence wherefrom accused Kaliram was arrested. On being interrogated by ACP V.K.Malhotra PW-33, in the presence of Inspector Sunil Kumar PW-29 and HC Krishan Pal PW-4, Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 10 of 35 accused Kaliram made his disclosure statement Ex.PW-4/A wherein he stated that he had taken a sum of Rs.30,000/- from his son Krishnaveer Singh despite having clear knowledge of the fact that the said money is the fruit of a crime committed by Krishnaveer Singh and his associates and that he can get recover Rs.22,000/- out of the said sum of Rs.30,000/-. Pursuant thereto, he led the aforesaid persons to a room in his house and got recovered a sum of Rs.22,000/- lying buried in the floor of the said room and the same were seized vide memo Ex.PW-4/B. 16. Thereafter accused Krishnaveer Singh led the aforesaid police officers to the residence of accused Jogender wherefrom accused Jogender was arrested. On being interrogated by ACP V.K.Malhotra PW-33, in the presence of Inspector Sunil Kumar PW-29 and HC Krishan Pal PW-4, accused Jogender made his disclosure statement Ex.PW-4/C wherein he stated that he had taken a country made pistol and a sum of Rs.30,000/- from Ford Ikon car bearing registration No.DL-3C-Q-4257 despite having clear knowledge of the facts that the said pistol was used by accused Krishnaveer Singh and his associates in commission of a crime and that the said money and car are the fruits of the crime committed by them. Pursuant thereto, accused Jogender led the aforesaid police officers to his Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 11 of 35 residence and got recovered a country made pistol, three live cartridges and a sum of Rs.10,000/- kept in an „ala‟ in a wall of a room of his house and the same were seized vide memo Ex.PW-4/D. 17. On 12.01.2001 accused Narender was arrested by the police. Upon his arrest, accused Narender made a disclosure statement Ex.PW-29/J wherein he admitted his involvement in the crime in question and stated that he can get recovered a stereo and speakers installed in Ford Ikon car bearing registration No.DL-3C-Q-4257 looted by him and his associates. Pursuant thereto, accused Narender got recovered a car stereo and two speakers from his house and the same were seized vide memo Ex.PW-29/K. 18. On 09.07.2003 Inspector Neeraj Kumar PW-32, arrested accused Sunil as recorded in the arrest memo Ex.PW-32/A. We need not note the contents of the confessional statement of accused Sunil as the same is completely inadmissible in evidence as it admits of guilt. We note that neither any recovery was effected nor was a fact discovered pursuant to the confessional statement made by accused Sunil. 19. The seven chance prints found on the Ikon car parked near the main gate of the showroom in question on the day of occurrence and the specimen finger prints of accused Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 12 of 35 Krishnaveer Singh and Harender were sent to Forensic Science Laboratory for comparison. Vide FSL report Ex.PW-5/B it was opined that two chance prints detected on the car were smudged and thus cannot be compared with the specimen finger prints of the accused; that two chance prints detected on the car are palm prints and that the specimen of the palm prints of the accused were not sent to the bureau due to which no comparison could be made with respect to said chance prints and that remaining three chance prints detected on the car do not match with the specimen finger prints of the accused. 20. The seized materials i.e. polythene and plastic bag found in the car parked near the main gate of the showroom on the day of the occurrence as also the kurta, pyjama and the vest contained in the said bag; broken glass pieces found in the accountant‟s room of the showroom in question; handkerchief found on the reception table kept in the showroom; the clothes worn by Radhey Shyam at the time of occurence; the clothes and the blood sample of Aslam, Rishipal and Muneshwar and the blood sample of Harender were sent to Forensic Science Laboratory for serological examination. Vide FSL reports dated 31.07.2001 it was opined that human blood of AB group was detected on the handkerchief found on the reception table Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 13 of 35 kept in the showroom; human blood of group A was detected on the polythene lying in the car parked near the main gate of the showroom on the day of the occurrence; that human blood of AB group was detected on the broken glass pieces kept in the accountant room of the showroom; human blood of AB group was detected on the clothes worn by Radhey Shyam at the time of occurrence; that blood group of Aslam was AB; that human blood of AB group was detected on the clothes worn by Aslam at the time of occurrence; that blood group of Rishipal and Muneshwar was A; that human blood of A group was detected on the clothes worn by Rishipal and Muneshwar at the time of the occurrence and that blood group of Harender was A. 21. Since the learned Trial Judge has held that the blood group of Harender is AB and that blood of same group was detected on the handkerchief lifted from the scene of the crime, it needs to be noted that the FSL report shows 22 exhibits being subjected to serological test. Four exhibits being sealed paper envelope Ex.14, sealed paper envelope Ex.17, sealed paper envelope Ex.19, sealed bottle Ex.22 contained blood samples. All of them were detected as having human blood. Blood of Group A was detected on the gauze piece Ex.14 and the gauze piece Ex.19. The blood group on Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 14 of 35 the gauze piece Ex.22 i.e. the gauze piece sent in the bottle was of group AB. The maalkhana register Ex.PW-24/A consisting of 12 pages shows that whereas three gauze containing blood samples of Aslam, Rishipal and Muneshwar were received in the maalkhana on the 20th and 21st of July 2000 and while making entry in the register it was recorded that they are in an envelope, the blood sample of Harender taken on a gauze and kept in a bottle by Dr.Amarnath on 24.7.2000 was shown received in the maalkhana on 24.7.2000 and the entry clearly records that the blood sample on a gauze received in the maalkhana is in a bottle. It is thus apparent that with reference to the report of the serologist the blood group of Ex.22 was group A and this exhibit pertain to the blood sample of Harender and thus Harender‟s blood could not be on the handkerchief which was in parcel 1 and was given Ex.1 in the FSL report by describing the same as a dirty handkerchief for human blood of group AB was detected on the said handkerchief. 22. The two empty cartridges found on/near the coffee counter in the showroom in question; one empty cartridge and bullet lead found in the courtyard of the showroom where dead body of Rishipal was found; one empty cartridge and bullet found in the power room of the showroom in question where Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 15 of 35 dead bodies of Aslam and Muneshwar were found; bullet and bullet pieces found in the body of Rishipal; one country made pistol recovered at the instance of accused Krishnaveer Singh and one country made pistol and three live cartridges recovered at the instance of accused Jogender were sent to ballistic division of Forensic Science Laboratory. Vide FSL report Ex.PW-33/F it was opined that the country made pistol recovered at the instance of accused Krishnaveer Singh is in working order and is designed to fire a standard 8mm/.315” bore cartridge; that the country made pistol recovered at the instance of accused Jogender is in working order and is designed to fire a standard 7.65 mm cartridge; that the three live cartridges recovered at the instance of accused Jogender are live ones and can be fired through 7.65 mm calibre firearm; that the bullets found in the power room and the body of Rishipal respectively correspond to bullet of 8mm/.315” bore cartridge and has been fired through a country made pistol; that the empty cartridge found on the coffee table and the bullet lead found in the courtyard of the showroom has been fired through the country made pistol recovered at the instance of accused Jogender; that the empty cartridges found near the coffee table and courtyard of the showroom were not fired through the country made pistol recovered at the instance of accused Krishnaveer Singh and that no opinion Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 16 of 35 could be given regarding the fact that whether the bullets found in the power room and the body of Rishipal were fired through the country made pistol recovered at the instance of accused Krishnaveer Singh. 23. Six persons were sent for trial being Sunil, Narender Singh, Krishanveer Singh, Harender Singh, Jogender and Kaliram. Charges under Sections 120-B, 302, 307 and 397 and 120-B IPC were framed against accused Krishnaveer Singh, Harender, Narender and Sunil for having hatched a conspiracy to commit a robbery at the showroom in question and having murdered Rishipal, Aslam and Muneshwar; attempted to murder Radhey Shyam and committed robbery by using a deadly weapon in pursuance of the said conspiracy. Charges under Section 411 IPC were framed against accused Krishnaveer Singh, Harender, Kali Ram and Jogender for having dishonestly retained stolen property. Charges under Section 27 Arms Act were framed against accused Krishnaveer Singh and Harender for having possessed a firearm in contravention of Section 5 of Arms Act. 24. At the trial, the prosecution examined 33 witnesses. 25. We need not note the testimony of the various police officials who participated in the investigation for they have deposed regarding the respective role played by them in the Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 17 of 35 investigation which has already been stated by us in the preceding paras. 26. Navin Kohli PW-7, deposed that he is the owner of the showroom in question and the workshop at 235, Okhla Phase- III, Delhi. On 19.07.2000 one police official named Sunil Mittal informed him that a robbery has been committed in his showroom. On reaching the showroom, he was informed that a cash box containing a sum of Rs.72,080/- and a car bearing registration No. DL-3C-Q-4257 has been looted by the dacoits and that three persons are lying dead inside the showroom. It is significant to note here that the cash box, car stereo and two speakers recovered at the instance of accused Krishnaveer Singh and Sunil respectively were not shown to the witness and thus he did not identify the said exhibits as either stolen from his showroom or removed from his car. 27. Anoop Singh PW-10, deposed that he is running a security agency under the name and style of A+ Security Services. In the intervening night of 18/19.07.2000 he was present in his house when Naveen Kohli, the owner of the showroom in question, rang him up and told him to immediately come to the showroom in question. On reaching the showroom, he saw that Rishipal, Muneshwar and a third person were lying dead in the showroom. Rishipal and Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 18 of 35 Muneshwar were employed as security guards in his agency, that he had deployed them at the showroom in question and that their duty hours were from 10 P.M. to 06.00 A.M. He came to know that the third person who was lying dead was the driver of the owner of the showroom. He was informed by the police that another security guard named Radhey Shyam has also received injuries. Accused Krishnaveer Singh was also employed as a security guard in his agency and was deployed by him at the showroom in question prior to the day of occurrence but he had terminated the services of Krishnaveer Singh as his conduct was not satisfactory. The forms filled by Rishipal, Radhey Shyam, Muneshwar and accused Krishnaveer Singh in connection with their employment in his agency are Ex.PW-10/B-1, Ex.PW-10/B-2, Ex.PW-10/B-3 and Ex.PW-10/B-4 respectively. 28. Radhey Shyam PW-12, deposed that on 18.07.2000 he was employed as a security guard in A+ Security Services and that his employer had deployed him at the showroom in question on the said day. At about 09.30 P.M. he was present in the showroom in question when suddenly someone fired a shot at him from his back. Thereafter he became unconscious and that someone removed him to AIIMS Hospital. He has no Crl.A.Nos.710/2008, 717/2008, 967/2008 & 995/2008 Page 19 of 35 knowledge about the identity of the person who fired a shot at him. 29. Relevant would it be to note that Radhey Shyam did not state that accused Krishanveer Singh had shot at him. 30. In