Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 1 of 76 * IN THE HIGH COURT OF DELHI % Judgment reserved on :13.07.2009 Judgment delivered on: 30.07.2009 + CRL. APPEAL 688/2007 MAHAVIR SINGH …Appellant Through : Mr. D.C.Mathur, Sr. Adv. with Mr. Shishir Mathur, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 746/2007 SUBASH CHAND …Appellant Through : Mr. D.C.Mathur, Sr. Adv. with Mr. Shishir Mathur, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 107/2008 MUSTAQ …Appellant Through : Mr. Rajesh Arora, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 108/2008 JAGPAL @ RAJU …Appellant Through : Mr. Rajesh Arora, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 2 of 76 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 10.09.2007, appellants Jagpal @ Raju, Mahavir Singh, Subash Chand @ Doctor @ Pradhan and Mustaq have been convicted for the offence of having hatched a conspiracy to murder Drav Kumar (hereinafter referred to as the “Deceased”) and in pursuance of the said conspiracy having killed the deceased. Vide order dated 22.9.2007, they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.10,000/- each; in default of payment of fine to undergo RI for one year. 2. Case of the prosecution is that the appellant Mahavir Singh and the deceased were real brothers and their relations were strained on account of a dispute pertaining to inheritance of ancestral property inherited through their father. Drav Kumar was issueless and it was the desire of Mahavir that Drav Kumar should stay with him without separation so that on the death of Drav Kumar and his wife, the property inherited through their father, could in turn be inherited by the children of Mahavir Singh. Since Drav Kumar was contemplating to Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 3 of 76 adopt a son and a daughter, Mahavir desired that Drav Kumar should adopt his son. Defying the desire of Mahavir, Drav Kumar adopted a male and a female child. This infuriated Mahavir who sought revenge. He decided to kill Drav Kumar. Fearing for his life Drav Kumar left his home-town and settled in Delhi. To give effect to his illegal desire, Mahavir Singh contacted the other three appellants. The four decided to kill Drav Kumar by injecting him potassium cyanide. Subash Chand @ Doctor @ Pradhan procured potassium cyanide and gave the vial containing potassium cyanide to Mustaq and Jagpal, who on an opportune moment were to inject the same in the body of Drav Kumar. In pursuance of the said conspiracy, appellant Mustaq befriended the deceased so as to create an opportunity to execute the object of their conspiracy. On 05.04.2004, appellants Mustaq and Jagpal visited the residence of the deceased and in a friendly manner led him to Surajmal Park. Attar Singh PW-2, a bodyguard of Drav Kumar also accompanied them. All four i.e. the deceased, Attar Singh, Mustaq and Jagpal consumed a bottle of beer each in the park and when they were returning to the residence of the deceased, all of a sudden, Mustaq caught hold of the deceased and Jagpal jabbed the syringe containing potassium cyanide in the back of the deceased and fled. Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 4 of 76 2. As per the prosecution Attar Singh PW-2 and Latesh PW-6, the wife of the deceased, removed the deceased to the hospital where he was declared brought dead. 3. As per the charge-sheet filed against the appellants, the investigating officer recovered Rs.10,000/- (being the contract money paid to Jagpal for killing the deceased) pursuant to the disclosure statement of Jagpal and upon Jagpal leading the investigating officer to the place wherefrom the money was recovered. Qua Mustaq, as per the prosecution, pursuant to his disclosure statement and at his instance he got recovered a pocket diary containing the name and telephone number of Mahavir. Qua appellant Mahavir the prosecution claims that pursuant to his disclosure statement he got recovered a vial which was detected with the presence of potassium cyanide. He also got recovered a Matiz car bearing registration No.DL- 5CB-0024 in which he had transported Mustaq and Jagpal to Delhi and back to their village after the crime was committed. Qua appellant Subash Chand @ Doctor @ Pradhan the prosecution claimed that pursuant to his disclosure statement and upon his pointing out, he got recovered a paper packet containing a powdery substance which was potassium cyanide. 4. Needless to state, Attar Singh PW-2, was the lynch pin of the case of the prosecution qua its case against Mustaq and Japal. Sustenance was sought to corroborate Attar Singh with Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 5 of 76 the testimony of Latesh, the wife of the deceased, to prove that on 05.04.2004 the deceased was in the company of Mustaq and Jagpal. The involvement of Mahavir Singh in the conspiracy was sought to be proved by leading evidence that Mahavir Singh was in touch with Mustaq and Jagpal before and after the murder, and his having a motive to kill his brother. Evidence was sought to be led against Subash Chand @ Doctor to prove his being a conspirator with reference to his being seen in the company of Mahavir when the other two conspirators were present as also the recovery of a paper pudia containing potassium cyanide at his instance. Lastly, the proof of the fact that the deceased was killed due to cyanide poisoning. 5. Criminal law was set into motion when at around 9:30 PM on 05.04.2004, DD No.23A, Ex.PW-33/A, was recorded by the duty officer at Police Station Anand Vihar to the effect that the duty constable at GTB Hospital has informed that Drav Kumar has been admitted in an unconscious condition at the hospital by his wife Latesh and one Attar Singh. 6. On receiving a copy of the afore-noted DD Entry, SI Udaivir Singh PW-33, accompanied by Const.Suresh Kumar PW-31, proceeded to GTB Hospital. Simultaneously, Inspector Dharmender Kumar PW-50, who also received the information as recorded in DD No.23-A, reached GTB Hospital. On reaching Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 6 of 76 the hospital, the said police officers learnt that the patient named Drav Kumar had been declared brought dead. Inspector Dharmender Kumar obtained the MLC Ex.PW-34/A of Drav Kumar which records that the deceased was brought to the hospital at 9:13 PM by Latesh PW-6, the wife of the deceased and Attar Singh PW-2. 7. Attar Singh PW-2, met the police officers at the hospital. He claimed himself to be an eye-witness to the murder of the deceased. Inspector Dharmender Kumar PW-50, recorded the statement Ex.PW-2/A of Attar Singh wherein he stated that he is a resident of village Khabra, District Bulandshar, UP and was employed by the deceased who was a resident of village Nazimpur Mudu, District Bulandshar, UP and was engaged in the business of property dealing since last 3-4 months. That a dispute arose between the deceased and his elder brother Mahavir Singh qua a property situated in the village, on account of which dispute, the deceased left his native village and started residing in Delhi in a house bearing Municipal No.10/125, 18 Block, Vishwas Nagar, along with his wife, mother and two adopted children. He also used to reside with the deceased at the aforesaid house and that the deceased always used to keep him by his side. He used to help the deceased in his business. Around 1-1½ month ago, Mustaq who claimed to be a resident of Sunder Nagri started visiting Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 7 of 76 the residence of the deceased. The deceased told him that he had met Mustaq in a jail. Few days ago, he had gone to his village and returned today i.e. 5.4.2004 at around 1:00 PM. Latesh, wife of the deceased, told him that in the company of Mustaq and another boy the deceased had gone to Surajmal Park, pursuant whereto he proceeded to Surajmal Park. On reaching Surajmal Park, he saw that the deceased was engaged in conversation with Mustaq and another person who was aged between 20-25 years. The said person was of medium built and had wheatish complexion and told his name as Raju. Raju had a small bag in his hand. The deceased, Mustaq, Raju and he came to the house of the deceased and had lunch. All four went to see a movie at Swaran Cinema and after watching the movie they proceeded to Surajmal Park. On the way, the deceased told them to go to Surajmal Park and that he was going to his house. Thus, three of them went to the park and engaged themselves in a conversation. After sometime the deceased came there and they continued talking to each other. Around 6:00 PM Mustaq gave him money and asked him to bring beer. He refused. Mustaq and the deceased left to buy beer. Since Mustaq and the deceased did not return after a considerable time, he and Raju went to the residence of the deceased. After sometime, Mustaq came to the house of the deceased and the three i.e. Mustaq, Raju Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 8 of 76 and he went to Surajmal Park. On reaching Surajmal Park he saw that four beer bottles were lying in front of the deceased. They consumed one bottle of beer each at an open ground near the park. After consuming the beer, at around 8:30 PM, they proceeded to return to the house of the deceased, when suddenly Mustaq caught hold of the deceased from the back and Raju pierced some object in the back of the deceased. The deceased shouted that he had been stabbed. Mustaq and Raju fled. He tried to apprehend them but failed. He inspected the back of the deceased but did not find blood. Thereafter, he and the deceased started walking towards the house of the deceased, but after covering some distance the deceased expressed his inability to walk further stating that the pain was becoming unbearable. He made the deceased sit near a drain and rushed to the house of the deceased to call the wife of the deceased. He and the wife of the deceased removed the deceased to GTB Hospital where he was declared brought dead. 8. After recoding the statement Ex.PW-2/A of Attar Singh and collecting the MLC Ex.PW-34/A of the deceased, and after seizing the body of the deceased and sending it to the mortuary of GTB Hospital, the aforesaid police officers proceeded to the place of occurrence disclosed by Attar Singh and at the place of occurrence Inspector Dharmender Kumar Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 9 of 76 PW-50 made an endorsement Ex.PW-50/A beneath the statement Ex.PW-2/A of Attar Singh at around 01:00 AM and forwarded the same through Const.Suresh Kumar PW-31 for registration of an FIR. At the police station, HC Sufal Ram PW- 30, registered FIR No.137/04, Ex.PW-30/A, at 01:30 AM on 06.04.2004. HC Sufal Ram contemporaneously entered DD No.3A Ex.PW-30/B, recording the time of registration of the FIR. HC Sufal Ram also recorded DD No.4A Ex.PW-30/C, which inter-alia records that HC Sufal Ram handed over the FIR Ex.PW-30/A to Const.Satpal at 2:30 AM on 06.04.2004 for being delivered to the Area Magistrate and senior police officials. 9. Being relevant, it may be noted that FIR Ex.PW-30/A contains an endorsement that the same was received by the Area Magistrate at his residence at 09:00 AM on 06.04.2004. 10. In the meanwhile, at the spot Inspector Dharmender Kumar PW-50, seized four empty bottles of beer at CBD ground as noted in the memo Ex.PW-2/B. Inspector Dharmender Kumar prepared a rough site plan, Ex.PW-50/B, of the place of occurrence; recording therein at points „A‟ and „B‟ the spots where the deceased, Attar Singh and the appellants Mustaq and Jagpal consumed beer and the spot where empty bottles of beer were found and the deceased was attacked by appellants Mustaq and Jagpal. Const.Ompal Singh Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 10 of 76 (photographer) PW-17, reached the spot on being summoned. 7 photographs Ex.PW-17/1 to Ex.PW-17/7; negatives whereof are PW-17/8 to Ex.PW-17/14 were taken. The same show four beer bottles lying on the ground. 11. On 06.04.04 Inspector Dharmender Kumar PW-50, recorded the statement Ex.PW-6/DA under Section 161 Cr.P.C. of Latesh, the wife of the deceased. In the said statement she stated that appellants Jagpal and Mustaq had visited her residence and that after lunch all three, accompanied by Attar had left and that in the night Attar came to the house and told her that her husband had been stabbed by Jagpal and Mustaq. She and Attar took her husband to the hospital where he was declared brought dead. She further stated that her husband was having strained relations with Mahavir Singh on account of a property dispute. 12. At the mortuary of GTB Hospital, Dr.S.K.Verma PW-25, conducted the post-mortem of the deceased at around 2:30 PM on 06.04.2004 and gave his report Ex.PW-25/A, which records following external ante-mortem injuries:- “1. A one mm diameter puncture mark having a blackish discoloration around it (size 3.5 x 3.0 cms) directed anteriorly, medially and downwards, placed 3.5 cms to the right of midline and 12 cms above the right costal margin on right side back. On exploration the injury was going upto right kidney (posterior surface) 5 mm. 2. A brownish abrasion of size 1.5 x 1.0 cms present over tip of right shoulder.” Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 11 of 76 13. It was further recorded in the post-mortem report that the opinion regarding the cause of death of the deceased would be given after receiving the report of the chemical analysis of the viscera of the deceased. 14. After the post-mortem, the doctor handed over the viscera, clothes and blood sample of the deceased on a gauze, as also tissues obtained from the punctured wound found on the person of the deceased to Const.Suresh Kumar PW-31, who in turn handed over the same to Inspector Dharmender Kumar PW-50, as recorded in the memo Ex.PW-31/A. 15. Since appellants Mustaq and Jagpal were clearly named as the ones who had injected something in the body of the deceased and Mahavir Singh was named as a suspect by Attar Singh and the wife of the deceased, the police officers set out to apprehend them. 16. As per the prosecution, on the basis of a secret information, the police party consisting of Inspector Dharmender Kumar PW-50 and SI Ram Kishore Pandey PW-28, arrested Mustaq in the presence of Attar Singh PW-2, at a place near Movie Palace Cinema, Seema Puri, Delhi at 09:30 PM on 15.04.2004 as recorded in the arrest memo Ex.PW- 28/A. On being interrogated by Inspector Dharmender Kumar PW-50, in the presence of Ram Kishore Pandey PW-28 and Attar Singh PW-2, Mustaq made a disclosure statement Ex.PW- Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 12 of 76 28/C wherein he confessed to have murdered the deceased. He took the police to the spot where he claimed to have murdered the deceased and pointed out the same as recorded in the pointing out memo Ex.PW-28/D. (It may be noted here that the said spot is the same which was told by Attar Singh to the police as the spot where the deceased was stabbed with a needle i.e. the spot was already known to the police.) Thereafter, Mustaq made another disclosure statement Ex.PW- 28/C wherein he stated that he can get recovered a pocket diary in which he has written the telephones numbers of Mahavir Singh and his associates. Thereafter, he led Inspector Dharmender Kumar PW-50 and SI Ram Kishore Pandey PW-28 to a STD booth in village Mohalla Noorganj, Muradnagar, UP where one Jakir Ali produced a small diary at the instance of Mustaq. The said diary was seized vide memo Ex.PW-28/E. 17. On 07.05.2004 Const.Sonu Kaushik PW-21, prepared the site plan Ex.PW-21/A to scale of the place of occurrence at the instance of Attar Singh PW-2. 18. On 31.05.2004 Inspector Aas Mohd. PW-56, took over the investigation of the case. Being relevant to note, is the fact, that Inspector Dharmender Kumar was removed as an investigating officer because he did not arrest Mahavir Singh who had responded to his notice to appear before him. After questioning Mahavir Singh, Inspector Dharmender Kumar let Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 13 of 76 him return home. Inspector Dharmender Kumar was accused of bias. 19. The prosecution claims that pursuant to a secret information, the police party consisting of Inspector Aas Mohd. PW-56, HC Chanderpal PW-11 and Const.Vikram Singh PW-13, arrested Jagpal on 19.07.04. On being interrogated by Inspector Aas Mohd in the presence of HC Chanderpal PW-11 and Const.Vikram Singh PW-13, Jagpal made a disclosure statement Ex.PW-11/B wherein he confessed to have murdered the deceased and stated that he can get recovered the sum which he had taken from appellant Mahavir Singh. 20. On 20.07.2004 Inspector Aas Mohd. filed an application Ex.PW-7/B before Metropolitan Magistrate, Delhi for conducting Test Identification of Jagpal. Rajnish Kumar PW-7, Metropolitan Magistrate, conducted the proceedings pertaining to Test Identification of Jagpal. But, Jagpal refused to participate in the said proceedings alleging that the police had already shown him to the witnesses, as recorded in the record of proceedings Ex.PW-7/A. 21. As per the prosecution on the next day i.e. 21.07.2004 Jagpal pointed out the residence of the deceased and the places where he, Mustaq, Attar Singh and the deceased consumed beer on the day of the murder of the deceased as also the place where the deceased was stabbed. (All places Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 14 of 76 already in the knowledge of the police). Thereafter, Jagpal led Inspector Aas Mohd. PW-56 and HC Krishan Pal PW-52, to a liquor canteen, situated at Kanwali Road, Dehradun and got recovered Rs.10,000/- from a drawer at the canteen in the presence of two witnesses; namely, Dharambir Singh PW-16 and Rajesh Kumar PW-51. The said sum of Rs.10,000/- was seized vide memo Ex.PW-51/A. Inspector Aas Mohd. prepared the site plan Ex.PW-56/A of the place of recovery of said sum of Rs.10,000/-. Thereafter, Mustaq led the aforesaid police officers to Hotel Rajmahal and pointed out a room where the appellants had hatched the conspiracy to murder the deceased. Two witnesses; namely, Latesh PW-6, the wife of the deceased and Prakash Chand PW-45 had witnessed the said pointing out as recorded in the memo Ex.PW-6/A. Sometime thereafter, Jagpal led the aforesaid police officers to village Tanaja and pointed out the residence of Subash in the presence of two witnesses; namely, Kiran Pal PW-46 and Chetan Singh PW-47, as recorded in the pointing out memo Ex.PW-56/B. 22. On 08.08.2004 the police party comprising Inspector Aas Mohd. PW-56, Const.Rajpal PW-32 and HC Krishan Pal PW-52 arrested Mahavir Singh. On being interrogated by Inspector Aas Mohd. PW-56, in the presence of Const.Rajpal PW-32 and HC Krishan Pal, PW-52, Mahavir Singh made a disclosure Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 15 of 76 statement Ex.PW-32/B wherein he confessed to have hatched a conspiracy to murder the deceased along with the other appellants and stated that he can get recovered the syringe and vial used in committing the murder of the deceased. He also told that the Matiz car used by him to transport Mustaq and Jagpal could be got recovered by him. On the next day i.e. 09.08.2004 a Matiz car bearing registration no.DL-5CB- 0024 was recovered at the instance of Mahavir Singh in the presence of Khazan Singh PW-9, the father of the wife of the deceased. The said car was seized vide memo Ex.PW-9/A. 23. On 10.08.2004 the police party comprising of Inspector Aas Mohd. PW-56, Const.Rajpal PW-32 and HC Krishan Pal PW- 52, arrested Subash Chand. On being interrogated by Inspector Aas Mohd. PW-56, in the presence of Const.Rajpal PW-32 and HC Krishan Pal PW-52, Subash made a disclosure statement Ex.PW-52/B wherein he confessed to have participated in the murder of the deceased and stated that he can get recovered the syringe, the vial and potassium cyanide used in committing the murder of the deceased. On the next day, Subash made another disclosure statement Ex.PW-9/C wherein he again stated that he can get recovered the potassium cyanide used in committing the murder of the deceased. Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 16 of 76 24. As claimed by the prosecution, appellant Mahavir Singh led Inspector Aas Mohd. to a vacant plot near Sushila Park, Bulandshar, and as recorded in the pointing out memo Ex.PW- 15/B pointed out the spot from where a vial was recovered at the instance of Mahavir in the presence of three witnesses; namely, Ram Singh PW-15, Inderpal Singh PW-23 and Naresh Kumar PW-24. The said vial was seized vide memo Ex.PW- 15/A. Inspector Aas Mohd. prepared the rough site plan Ex.PW-56/C of the place of recovery of said vial. Thereafter, Subash Chand led Inspector Aas Mohd. to his house situated in village Tanaja and got recovered a paper puria containing a white coloured substance from a cupboard inside his house. Three witnesses; namely, Inderpal Singh PW-23, Naresh Kumar PW-24, the brother of the wife of the deceased and Khazan Singh PW-9, the father of the wife of the deceased witnessed the recovery. The said paper puria was seized vide memo Ex.PW-23/A. Inspector Aas Mohd. prepared the rough site plan Ex.PW-56/D of the place of recovery of the said paper puria. 25. The seized materials; namely, the clothes, viscera, tissues and blood sample of the deceased; the vial recovered at the instance of Mahavir and the paper puria recovered at the instance of Subash were sent to the Forensic Science Laboratory for serological/chemical examination. Vide FSL report Ex.P-X, it was opined that the viscera, the blood sample Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 17 of 76 and tissue sample of the deceased had tested positive for the presence of cyanide. Vide FSL report Ex.P-X1, it was opined that vial and paper puria recovered at the instance of Mahavir and Subash respectively have tested positive for the presence of potassium cyanide. Vide FSL report Ex.PW-58/A it was opined that save and except the vest of the deceased, blood was not detected on the clothes of the deceased. Vide FSL report Ex.PW-58/B it was opined that human blood of group „B‟ was detected on the vest of the deceased. Vide FSL report Ex.PW-58/D it was opined that the blood group of the deceased was „B‟. 26. The FSL reports pertaining to the chemical analysis of the viscera, blood sample and tissues of the deceased were sent to Dr.S.K.Verma PW-25, who opined that the cause of the death of the deceased was cyanide poisoning. The report containing the opinion of Dr.S.K.Verma is Ex.PW-25/B. 27. The investigating officer, Inspector Aas Mohd. PW-56 recorded statements of various persons, some of them threw light on the property dispute between Mahavir and the deceased. Some threw light on Mahavir meeting people. Some threw light on conduct of Mahavir in not attending the funeral of his brother. Some threw light on Mahavir allegedly absconding. Crl.Appeal Nos.688, 746/07 & 107, 108/08 Page 18 of 76 28. Armed with the aforesaid material and citing the persons whose statements under Section 161 Cr.P.C. as witnesses of the prosecution, a charge sheet was filed against the appellants, accusing them of committing offences punishable under Section 120-B IPC and Section 302 IPC read with Section 120-B IPC. EVIDENCE LED BY THE PROSECUTION AND DEFENCE AND THE STATEMENTS OF THE APPELLANTS