Crl.A.No.283/2001, 670/2001 & 932/2001 Page 1 of 35 * HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 27.05.2009 Judgment delivered on: 03.07.2009 + Crl. Appeal No.283/2001 RAJINDER @ LALA ..... Appellant Through : Mr.Lekhraj Rehalir, Advocate VERSUS STATE .....Respondent Through : Mr.Pawan Sharma, Advocate Crl. Appeal No.670/2001 BAIJ NATH ..... Appellant Through : Mr.Lekhraj Rehalir, Advocate VERSUS STATE .....Respondent Through : Mr.Pawan Sharma, Advocate Crl. Appeal No.932/2001 RAMESH @ VINOD MANGAL ..... Appellant Through : Ms.Meera Kaura Patel, Advocate Mr.Sulaiman Khan, Advocate VERSUS STATE .....Respondent Through : Mr.Pawan Sharma, Advocate CORAM :- HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR (1) Whether reporters of local paper 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 ? Crl.A.No.283/2001, 670/2001 & 932/2001 Page 2 of 35 PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 22.03.2001, the appellants, Baijnath @ Baiju, Ramesh @ Ramesh @ Vinod and Rajinder @ Lala have been convicted for the offence of having murdered Roshan Lal @ Chian (herein after referred to as the “Deceased”), for which offence they have been sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- each; in default to undergo simple imprisonment for two months. 2. In a nutshell, case of the prosecution was that in the night of 24.10.1997 the deceased along with one Hemraj PW-1 and Kamal PW-2, were going to a market for purchasing pigs. On their way to the market, the aforesaid persons were met by the appellants who were gambling at that time; that the deceased also joined in the gambling while Hemraj and Kamal stood outside the slum-dwelling where the deceased and the appellants were gambling. After having won the entire stake money, the deceased was leaving the slum- dwelling in question when the appellants asked him to lend some money to them. On refusal by the deceased to do so, the appellants indiscriminately stabbed him and fled from the place of occurrence after causing the death of the deceased. Hemraj PW-1 and Kamal PW-2, had witnessed the incident. 3. Needless to state, the case of the prosecution hinged upon the veracity and credibility of the testimony of Hemraj PW-1 and Kamal PW-2. Crl.A.No.283/2001, 670/2001 & 932/2001 Page 3 of 35 4. Machinery of law was put into motion when at around 11.21 P.M. on 24.10.1997, a PCR Form Ex.PW-9/A, was filled by HC Verina PW-9, noting therein that a person named G.Lal has informed that a person has been stabbed near A-Block, Sangam Park, Kanjar Jhuggis. Few minutes thereafter, second information regarding the incident was received by HC Usha PW-14, pursuant whereto she filled PCR Form Ex.PW-14/A, noting therein that one person had been murdered near Railway Crossing, Beriwala Bagh, Sangam Park. HC Verina and HC Usha transmitted the aforesaid information to Police Post Sangam Park where Const.Satpal PW-6, recorded DD Entries Ex.PW-6/A and Ex.PW-6/B, at 11.32 P.M. and 11.35 P.M. respectively. 5. On receiving the information about the incident, Inspector Vipin Kumar PW-16, accompanied by SI Manvinder Singh PW-4, proceeded to the spot. Simultaneously, other police officers namely Const.Jaipal Singh PW-5, and HC Bhagat Ram PW-12, also reached the spot. On reaching the spot, the aforesaid police officers saw the deceased lying dead on the ground. Two persons namely, Hemraj PW-1 and Kamal PW-2, who claimed to have witnessed the incident of murder of the deceased were also found present at the spot. Inspector Vipin Kumar PW-16, recorded the statement Ex.PW-1/A of Hemraj and made an endorsement Ex.PW-4/A thereon, and at around 1.10 A.M. forwarded the same through SI Manvinder Singh PW-4, for registration of an FIR. SI Manvinder Singh took Ex.PW-4/A to the police station and handed over the same to HC Garib Ram Crl.A.No.283/2001, 670/2001 & 932/2001 Page 4 of 35 PW-11, who recorded the FIR No.698/97, Ex.PW-11/B, at 1.20 A.M. on 25.10.1997. 6. In his statement Ex.PW-1/A, Hemraj stated that he resides with his family in a house bearing Municipal No.16, Kharid Basti, Gurmandi, Delhi and is engaged in the business of selling pork. Tonight, at around 10.30 P.M., he along with the deceased, who was his brother by relation, and Kamal had gone to Sangam Park for purchasing pigs. When they reached near a shop of scrap dealer situated at Kanjar Basti slum-dwellings, the appellants who were quite familiar to him stopped them and demanded money from the deceased. Upon the refusal of the deceased to lend money to the appellants, they forced him to do so. Thereafter the appellants started demanding the chain, ring and bracelet from the deceased and when the deceased refused to do so, the appellants took out their knives and exhorted saying that „they would kill him‟. Appellants Ramesh and Rajinder caught hold of the deceased while appellant Baijnath inflicted knife blows on the various parts of his body. Thereafter the appellants ran towards him and Kamal upon which they fled from the spot in order to save their lives and reached Gurmandi where they raised an alarm that the deceased has been murdered by the appellants. On reaching Gurmandi, he along with one Kuldip, Jaswinder, Ashok and some other persons went to the spot where they found that the deceased was lying dead on the ground and that the appellants had fled from there. In the meantime, the police was telephonically informed about the said incident and reached the spot. The appellants who had fled Crl.A.No.283/2001, 670/2001 & 932/2001 Page 5 of 35 from the spot have caused the death of the deceased, who was his brother by relation. 7. Soon after the registration of the FIR, Inspector Vipin Kumar PW-16, recorded a supplementary statement Ex.PW-1/E under Section 161 Cr.P.C. of Hemraj PW-1, wherein Hemraj ostensibly gave further details of the incident. Hemraj stated that the deceased gambled with the appellants on the day of the incident just prior to being attacked by them. 8. Kamal PW-2, also made a statement Ex.PW-2/DA under Section 161 Cr.P.C. in complete sync with the statements Ex.PW-1/A and Ex.PW-1/E of Hemraj and also indicted the appellants as the assailants of the deceased. 9. At the spot, Inspector Vipin Kumar PW-16, prepared the rough site plan Ex.PW-16/E of the place of offence; recording therein, at points „A‟ and „B‟, the spots where the body of the deceased was found and wherefrom Hemraj and Kamal witnessed the incident, respectively. On thorough search of the body of the deceased, three gold ornaments namely, a chain, ring and bracelet and cash in sum of Rs.4,701/- was recovered were recovered and the same were seized vide memo Ex.PW-1/C. Inspector Vipin Kumar lifted the portion of the earth which was found to be stained with blood and the earth control from the place of occurrence and seized the same vide memo Ex.PW-1/C. Sat Pal PW-3, a photographer, reached the spot, on being summoned. 11 photographs, negatives whereof are Ex.PW-3/5 to Ex.PW-3/15, were taken. However, out of said 11 Crl.A.No.283/2001, 670/2001 & 932/2001 Page 6 of 35 photographs, only 4 photographs Ex.PW-3/1 to Ex.PW-3/4 could be developed. 10. Since the deceased was found dead, his body was sent to the mortuary of Civil Hospital, Sabzi Mandi, where Dr.K.L. Sharma PW-7, conducted the post-mortem at about 12.00 noon on 25.10.1997 and gave his report Ex.PW-7/A, which records the following external ante-mortem injuries on the person of the deceased:- “1) Abrasion 4 x 3 cm over right angle of right eye. 2) Abrasion over right angle of mouth 2 x 2 cm. 3) Partial skin cut transverse, incised wound 7 cm long over right front base of neck. 4) Incised penetrating wound 4.5 x 2 cm vertically oblique over right upper front of chest, right margin being 10 cm obliquely above right nipple. 5) Incised penetrating wound 3.5 cm x 2 cm over upper front of left chest, right angle being 4 cm above left nipple. 6) Incised penetrating wound, intestinal loops coming out of wound, with stool matter, 3 x 2 cm over right iliac fossa, oblique, right margin being 6 cm above anterior superior iliac spine. 7) 3 partial skin cuts each of 1 x 1 cm over right axilliary fold, one below other. 8) Incised penetrating wound over 3.5 x 2 cm over right upper back below inferior border of scapula. (Muscle deep only). 9) Incised penetrating wound upper margin shelved, lower margin inverted. Transverse 3.5 x 2 cm over back of abdomen in vertebral line. Muscle deep only). 10) 2 incised penetrating wound each of 4.5 x 2 cm and 3 x 2 cm, transverse in the midline of the back of middle part of abdomen.” Crl.A.No.283/2001, 670/2001 & 932/2001 Page 7 of 35 10. The doctor opined that the cause of the death of the deceased was asphyxia and pneumothorax as a result of external injuries nos. (4) and (5). That the external injuries nos. (4), (5) and (6) were collectively sufficient to cause death in the ordinary course of nature. That the injuries nos. (1) and (2) were caused during a scuffle whereas all the remaining injuries were caused by a sharp, penetrating, straight and flat weapon like knife or dagger. That the possibility of the use of two weapons for causing said injuries on the person of the deceased cannot be ruled out. 11. After the post-mortem, the doctor handed over the clothes and blood sample of the deceased on a gauze to Const.Jaipal Singh PW-5, who in turn handed over the same to Inspector Vipin Kumar PW-16, as recorded in the memo Ex.PW-5/A. 12. Since the two eye-witnesses; namely Hemraj PW-1 and Kamal PW-2, had indicted the appellants of having murdered the deceased, the police set out to apprehend them. The appellants surrendered before the court of Metropolitan Magistrate on 28.10.1997 and were arrested by the police at about 3.30 P.M. on the same day as recorded in the arrest memos Ex.PW-16/F to Ex.PW-16/H. 13. The appellants were interrogated and their confessional statements were recorded. We need not note the contents of the confessional statements inasmuch as the same are completely inadmissible as they admit of guilt. We note that no recovery was affected nor was a fact discovered by the police pursuant to the said statements made by the appellants. Crl.A.No.283/2001, 670/2001 & 932/2001 Page 8 of 35 14. On 07.11.1997 ASI Manohar Lal PW-10, a draftsman, was taken to the place of occurrence where at the instance of Inspector Vipin Kumar PW-16, he prepared the site plan to scale Ex.PW10/A; recording therein, points „A‟ to „D‟, the spots where the appellants attacked the deceased, the deceased fell on the ground and the blood was found, the spots wherefrom Hemraj and Kamal witnessed the incident, the spots where the electric pole and lighted electric bulb were found, respectively. 15. The seized materials viz; the blood sample and clothes of the deceased, blood stained earth and earth control lifted from the place of occurrence were sent to a serologist for serological examination. Vide FSL reports Ex.PX and Ex.PY it was opined that the blood group of the deceased was „B‟; that the earth lifted from the place of occurrence was stained with human blood of „B‟ group and that human blood of „B‟ group was found on the clothes of the deceased. 16. Needless to state, the appellants were sent for trial. Charges were framed against them for having committed offences punishable under Section 302 read with Section 34 IPC. 17. At the trial, HC Verina PW-9 and HC Usha PW-14, deposed that the recording pertaining to information of the incident in the PCR forms Ex.PW-9/A and Ex.PW-14/A, were made by them. Const.Satpal PW-6, deposed that DD Entries Ex.PW-6/A and Ex.PW-6/B were recorded by him. Const.Jaipal Singh PW-5, deposed having handed over the clothes and blood sample of the deceased to Inspector Vipin Kumar vide memo Ex.PW-5/A. ASI Manohar Lal PW-10, Crl.A.No.283/2001, 670/2001 & 932/2001 Page 9 of 35 deposed having prepared the site plan to scale on 07.11.1997 at the instance of Inspector Vipin Kumar. Sat Pal PW-3, deposed that 11 photographs were taken by him out of which only four photographs could be developed. Const Shiv Kumar PW-13, deposed having delivered copies of the FIR to the Ilaqa Magistrate and the senior police officials. Dr.K.L. Sharma PW-7, deposed having prepared the post-mortem report Ex.PW-7/A. 18. Eschewing the reference to the testimonies of few formal police witnesses who deposed to the receipt of various articles in Malkhana and further movement thereof to FSL, we note the testimonies of the material witnesses of the prosecution. 19. Hemraj PW-1, deposed that on 24.10.1997 at around 9.30 P.M. he along with Kamal was standing outside his house situated at Gurmandi when the deceased asked him and Kamal to accompany him to Sangam Park for purchasing pigs. On reaching the slum- dwellings situated at Sangam Park, they saw that the appellants were gambling in a slum-dwelling pursuant whereto the deceased also started to gamble with the appellants and won the entire stake money in thirty minutes. Thereafter appellant Baijnath asked the deceased to lend him some money which was refused by the deceased whereupon the other two appellants also started demanding money from him. When the deceased refused to lend money to the appellants despite their repeated insistence, they started demanding the gold chain and bracelet worn by the deceased. Upon the refusal of the deceased to do so, the appellants took out their knives and gave an exhortation that they would kill Crl.A.No.283/2001, 670/2001 & 932/2001 Page 10 of 35 him (Saale tere ko upar pahucha dehenge‟). Thereafter the appellants inflicted various knife blows on the person of the deceased and also gave threats to him and Kamal upon which they got scared and fled from the place of occurrence. On reaching their neighbourhood at Gurmandi, he and Kamal raised an alarm pursuant to which a crowd gathered there and then they along with some persons from the crowd namely Kuldip, Ashok and Jaswinder went to the place of occurrence where they found that the deceased was lying dead. Thereafter the police arrived at the spot and conducted investigation. The seizure memos Ex.PW-1/B and Ex.PW- 1/C were prepared by the police in his presence. He identified the dead body of the deceased at the mortuary as recorded in the memo Ex.PW-1/D. n being cross-examined about the non-mention of the fact that the deceased gambled with the appellants just prior to being attacked by them in his statement Ex.PW-1/S, Hemraj stated that ‘since I was perturbed due to the incident, I made another statement the next day explaining the circumstances.’ On being cross-examined about the manner of the assault of the deceased by the appellants, Hemraj stated that ‘I did not see where Ramesh and Lala and Baij Nath hit the knife on which portion of the body of the Chian……’ 20. Kamal PW-2, also deposed on the same lines as Hemraj but with the difference that he deposed that appellants Ramesh and Rajinder caught hold of the deceased while appellant Baijnath Crl.A.No.283/2001, 670/2001 & 932/2001 Page 11 of 35 inflicted knife blows on his person. Rest of the deposition of the witness is same as that of Hemraj. 21. Kuldip PW-8, deposed that on 24.10.1997 at around 11.00 P.M. he along with Jaswinder and Ashok was standing outside his shop when he saw Hemraj and Kamal running and shouting that the deceased has been stabbed by the appellants pursuant whereto a crowd gathered there. He along with Hemraj, Kamal, Jaswinder and Ashok and some other persons from the crowd proceeded to the place of occurrence where they found that the deceased was lying dead. After sometime, the police arrived at the spot and started conducting the investigation. The search of the body of the deceased resulted in recovery of three gold ornaments namely a gold chain, ring and bracelet and a sum of Rs.4,701/- from his possession. The seizure memos Ex.PW-1/B and Ex.PW-1/C were prepared by the police in his presence. 22. In their examination under Section 313 Cr.P.C., the appellants pleaded innocence and false implication. They stated that witnesses Hemraj and Kamal are interested witnesses and have deposed falsely at the instance of the police. That the investigation conducted by the police is not fair and forthright. That the deceased used to steal pigs in his lifetime and was killed by the owners of the pigs. 23. In defence, appellant Baijnath examined Const.Vinod DW-1, to establish that the police arrested him in connection with another case and subjected him to torture in the custody due to which he was forced to surrender before the court in the present case. The Crl.A.No.283/2001, 670/2001 & 932/2001 Page 12 of 35 witness produced one Kalandra Ex.DW-1/A and a DD Entry Ex.DW- 1/B, both of which record that appellant Baijnath was arrested on 25.10.1997 in connection with a case registered against him under Sections 92, 93 and 97 of Delhi Police Act. 24. Believing the testimony of Hemraj PW-1 and Kamal PW-2, to be creditworthy, the learned Trial Judge convicted the appellants. 25. At the hearing of the appeals, learned counsel for the appellants advanced under-noted submissions:- A. That appellants Rajinder and Ramesh were not represented by any counsel during a considerable period in the trial and therefore, it was incumbent upon the learned Trial Judge to provide legal aid to said appellants and to appoint a counsel for counsel for conducting their defence. The learned Trial Judge failed to do so and continued to conduct the trial in the absence of any counsel for said appellants. During the said period, material witnesses of the prosecution including the alleged eye-witness Kamal were examined and appellants Ramesh and Rajinder did not get an opportunity to cross-examine the said witnesses. According to the counsel, the right to free legal services is an essential ingredient of „reasonable, fair and just‟ procedure for a person accused of an offence and is fundamental right of every accused person who is unable to engage a lawyer under Article 21 of Constitution of India. Counsel argued that the failure of Crl.A.No.283/2001, 670/2001 & 932/2001 Page 13 of 35 Trial Judge to provide legal assistance to appellants Rajinder and Ramesh is clearly a violation of the fundamental right of said appellants and the trial must accordingly be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the said appellants must be set aside. In support of the said argument, learned counsel placed reliance upon the decisions of Supreme Court reported as Hussainara Khatoon v State of Bihar (1980) 1 SCC 98, Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 90 and Khatri v State of Bihar AIR 1981 SC 928, decision of Bombay High Court reported as Hiraman v State of Maharashtra 2000 Cri LJ 1485 and decision of this Court reported as and decision of this Court reported as State (Delhi Admn) v Balroop Singh 49 (1993) DLT 644 (DB). B. The second submission advanced was predicated upon the timing of dispatch of the rukka from the place of occurrence to the police station for registration of an FIR. Learned counsel for the appellant first drew attention of the court to the PCR form Ex.PW-9/A, to contend that the first information about the incident was received by the police at 11.21 P.M. on 24.10.1997 and therefore, it could logically be assumed that the police would have reached the spot within few minutes of receiving the said information. Counsel submitted Crl.A.No.283/2001, 670/2001 & 932/2001 Page 14 of 35 that as per the case of the prosecution the alleged eye- witnesses Hemraj and Kamal were found present when the police arrived at the spot and therefore, it would not have taken much time for the police to record their statements and prepare rukka on the basis of the said statement. Therefore, as per the counsel, it can reasonably be taken that the police would have prepared the rukka by 00.20 A.M. on 25.10.1997. In the backdrop of said contentions, learned counsel then drew attention of the court to the recording contained in the rukka Ex.PW-4/A that the same was dispatched on 01.10 A.M. on 25.10.1997. Culminating the argument, the counsel contended that delay of nearly 1 hour and 40 minutes in dispatching the rukka shows that there was a delay in recording the statement of Hemraj PW-1, which as per the counsel leads to a very strong inference that the said witness was a procured witness and falsely deposed at the instance of the police. C. The third submission advanced pertained to genesis of the occurrence. Counsel submitted that case projected by the prosecution was that the incident in question occurred when the deceased along with the alleged eye-witnesses Hemraj and Kamal were going to a market situated at Sangam Park for purchasing pigs. In said regards, counsel drew attention of the court to the Crl.A.No.283/2001, 670/2001 & 932/2001 Page 15 of 35 statement of Hemraj in his cross-examination that ‘it is correct that in Gurmandi, there is business of sale and purchase of the pigs’. According to the counsel, when the deceased could have purchased pigs from Gurmandi itself, where was the occasion for the deceased and the two so-called eye-witnesses to go from Gurmandi to Sangam Park for purchasing pigs. Counsel therefore argued that the genesis of occurrence set up by the prosecution fails which in turn casts a serious doubt on the truthfulness of the case of the prosecution. D. The fourth submission advanced was predicated upon the veracity of the evidence of Hemraj PW-1. Counsel argued that the omission of Hemraj to mention about the fact that the deceased gambled with the appellants just prior to being attacked by them in his statement Ex.PW-1/A, which statement formed the basis of the registration in the present case, raises a big question mark on the truthfulness of the said witness. E. The fifth submission advanced by the learned counsel was again predicated upon the evidence of Hemraj PW- 1. Counsel pointed out that Hemraj in his statement Ex.PW-1/A stated that appellants Ramesh and Rajinder caught hold of the deceased while appellant Baijnath stabbed him whereas in his testimony before the court he deposed that all the appellants stabbed the Crl.A.No.283/2001, 670/2001 & 932/2001 Page 16 of 35 deceased and that the said witness did not furnish an adequate explanation for said discrepancy when confronted with the necessary portion of the statement Ex.PW-1/A in his cross-examination. Counsel argued that the said material contradiction when coupled with inability of the said witness to explain the manner of assault on the deceased by the appellants establishes that Hemraj did not witness the appellants attacking the deceased. F. The sixth submission advanced by the learned counsel for the appellants was that though the locality where the incident occurred was a thickly populated one yet no person from the locality was examined by the prosecution, which circumstance lends credence to the defence of the appellants that the police contrived evidence against the appellants and falsely implicated them. In support of the said contention, counsel placed reliance upon the decisions of Supreme Court reported as State of UP v Madan Mohan AIR 1989 SC 1519, State of Haryana v Ram Singh 2001 Cri LJ 987, Megha Singh v State of Haryanai (1996) 11 SCC 709 and State of Punjab v Sarup Singh 1998 SCC (Cri) 711. G. The seventh submission advanced by the learned counsel for the appellants was predicated upon the conduct of the witnesses Hemraj and Kamal after having witnessed the incident. Counsel argued that the Crl.A.No.283/2001, 670/2001 & 932/2001 Page 17 of 35 conduct of the so-called eye-witnesses in running from the place of occurrence without raising an alarm particularly when the locality where the incident occurred was a thickly populated one is most unnatural which in turn seriously dents the credibility of the said witnesses. H.