Crl.A.No.136/2001 Page 1 of 38 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 1st September, 2009 Judgment Delivered On: 7th September, 2009 + CRL.A. 136/2001 SUBHASH CHAND ..... Appellant Through: Mr. K.K.Sud, Sr. Adv. with Mr. Kunal Malhotra, Adv. versus STATE ..... Respondent Through: Ms. Richa Kapoor, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. The deceased Krishan Kumar @ Kukku, resident of Municipal Number 653 Sector-37 Faridabad, Haryana, along with his father Shri Ram Lal PW-16 used to run a tyre shop under the name and style of M/s Ram Lal & Sons, at Shop No.56-A Bankey Lal Market, Badarpur. At around 11.30 AM on 17.9.1990, Krishan Kumar went to deposit Rs.20,000/- in cash at the Badarpur branch of Central Bank. When he did not return till late evening, Ram Lal PW-16, father of Krishan Crl.A.No.136/2001 Page 2 of 38 Kumar went to PS Badarpur, and at about 10.50 PM got recorded DD No.16A Ex.PW-16/1, that Krishan Kumar aged 30 years, height 5‟4”, of wheatish complexion wearing a sky blue coloured shirt, a dark blue coloured pant and a pair of hawai slippers had not returned ever since he went to Central Bank at 11.30 AM to deposit cash. 2. Since Krishan Kumar could not be traced till the next few days, at about 10.40 AM on 20.9.1990, Smt.Shobha PW-22, wife of Krishan Kumar visited PS Badarpur, where, at her instance, HC Naresh Kumar PW-1 registered FIR No.274/1990 Ex.PW-1/A for an offence punishable under Section 364 IPC, noting therein, that Krishan Kumar was seen on the day he went missing in the company of appellant Subhash Chand and another person on a scooter which was being driven by Subhash Chand towards Delhi; and that Subhash Chand owed some money to Krishan Kumar. Copy of the FIR was handed over to SI Shanker Singh PW-25 who was entrusted with the investigation. 3. Accompanied by Const.Raj Pal and Const.Anil Kumar as also Ram Lal PW-16, Ramesh Kumar PW-15 and Anil Kumar PW-8 (father and brothers-in-law of Krishan Kumar) who had accompanied Smt.Shobha to the police station for registration of the FIR, SI Shanker Singh went to Badarpur Crl.A.No.136/2001 Page 3 of 38 Mathura Road and apprehended Subhash Chand from his shop. He i.e. SI Shankar Singh interrogated Subhash Chand and recorded his disclosure statement Ex.PW-8/A wherein Subhash disclosed his involvement, as also the involvement of co- accused Sukhbir and Sudesh, in the murder of Krishan Kumar. It stands recorded in the disclosure statement that the deceased was murdered in flat No.339A, Janta Flats, Sarita Vihar where the body was still lying and that the key of the flat was with co-accused Sukhbir. SI Shanker Singh seized a scooter bearing registration No.DNW-0906 which was parked in front of the shop of Subhash, as recorded in seizure memo Ex.PW-8/E. Thereafter Subhash led SI Shanker Singh and others to the house of Sukhbir and Sudesh where SI Shanker Singh arrested them and interrogated them and recorded their disclosure statements Ex.PW-15/1 and Ex.PW-15/2. Accused Sukhbir handed over a key Ex.P-21 which was seized as recorded in memo Ex.PW-8/D and accused Sudesh Kumari handed over a bunch of six keys Ex.P-20 stating that they belong to the deceased, which were seized as recorded in memo Ex.PW-8/C. All the three co-accused led SI Shankar Singh and as recorded in the pointing out memos Ex.PW-6/A, Ex.PW-6/B and Ex.PW-6/C, pointed out Flat No. 339-A, Janta Flats, Sarita Vihar, New Delhi. Crl.A.No.136/2001 Page 4 of 38 4. Unfortunately, the arrest memos of the appellant as also the co-accused have not been filed along with the charge sheet and hence have not been proved. Had this been done, an important evidence pertaining to the time the appellant and the co-accused were arrested would have come on the judicial record and as would be evident from further facts noted by us, the same would have resolved a controversy as to whether the dead body of the deceased was recovered by the police from Flat No.339A, Janta Flats, Sarita Vihar, New Delhi at the instance of the appellant and his co-accused or whether the police recovered the same on independent information available. 5. Independent of the afore-mentioned events, at 1.25 PM on 20.9.1990, Const.Gulshan PW-26, the duty officer in the Police Control Room received information from an unknown person about Flat No.339-A Janta Flats, Sarita Vihar being locked from outside for the last three days and a foul smell emanating therefrom. HC Hari Chand PW-21 and two other constables, who were stationed in a PCR van in the area, were the ones to whom said information was sent over the wireless and they rushed to the spot. The information about the foul smell was also forwarded to PS Badarpur, within jurisdiction whereof the said Flat No.339-A fell, and at 1.30 PM DD No.4-A Crl.A.No.136/2001 Page 5 of 38 was recorded at PS Badarpur that it was reported that foul smell was emanating from the flat in question. Pursuant thereto, SI Dinesh Singh and Const.Mehak Singh from PS Badarpur also reached the spot. 6. Unfortunately, SI Dinesh Singh and Const.Mehak Singh have also not been examined and thus through their mouth we have no evidence on record as to what they did and found when they reached the flat in question. 7. Thus, there is considerable confusion as to how access was made by the police to Flat No.339A, Janta Flats, Sarita Vihar, New Delhi. Whereas according to the testimony of the HC Hari Chand PW-21, he along with SI Dinesh Singh and Const.Mehak Singh who had also reached the flat and were posted at PS Badarpur, broke open the wire gauze of the house and found a dead body inside and thereafter SI Shankar Singh also came there, SI Shankar Singh PW-25, Ram Lal PW- 16, Ramesh Kumar PW-15 and Anil Kumar PW-8 deposed that when they reached the flat it was found locked and the door of the flat was opened with the key Ex.P-21 which had been handed over by co-accused Sukhbir and upon entering the flat, the dead body of the deceased was found. It is relevant to note that SI Shankar Singh PW-25, when cross examined on the issue, admitted that HC Hari Chand PW-21, SI Dinesh and Crl.A.No.136/2001 Page 6 of 38 Const.Mehak Singh were already present when they reached the flat. Thus, the evidence probablizes that access was made to the flat by the police personnel of PS Badarpur on getting independent information of foul smell emanating from the flat. We shall be discussing at the relevant stage whether there is a possibility of the prosecution trying to falsely link the recovery of the dead body at the instance of the accused and that the body was discovered independently and since the appellant was last stated to have been seen in the company of the deceased and the key of the flat was with co-accused Sukhbir, some manipulation has possibly been resorted to, to show the facts as projected by the prosecution. 8. It appears that for security purposes an iron grill on a frame was installed at the main door and hence HC Hari Chand has deposed about breaking the wire mesh to gain entry into the flat. He has used a lose phrase while describing the iron grill door. 9. SI Shankar Singh summoned the crime team as well as a photographer Const.Gajinder Singh PW-12 who took photographs (positives whereof got washed away due to a defect in the camera; negatives whereof are Ex.PW-12/1 to Ex.PW-12/12) of the dead body. Another photographer HC Vikram Singh PW-9 who had accompanied the crime team also Crl.A.No.136/2001 Page 7 of 38 took photographs being Ex.PW-9/4 to Ex.PW-9/6; negatives whereof are Ex.PW-9/1 to Ex.PW-9/3, of the dead body. SI Shankar Singh seized the dead body and the gunny bag in which the dead body was found, as recorded in the memo Ex.PW-6/D. He lifted blood from the spot, blood control concrete and a blood stained saree Ex.P-9 (allegedly belonging to accused Sudesh) and a blood stained pyjama Ex.P-8 (allegedly belonging to accused Sukhbir) from the spot, as recorded in memo Ex.PW-6/E and seized the same. One khes Ex.P-15, one folding bed Ex.P-19, one pink coloured bed sheet Ex.P-10, one towel Ex.P-16, one steel jug Ex.P-12, two glasses Ex.P-13/1 and Ex.P-13/2, one kurta Ex.P-18, one mattress Ex.P- 11, one empty bottle of liquor Ex.P-14 and a pair of hawai slippers Ex.P-17/1-2 lying at the spot were also seized as recorded in memo Ex.PW-6/F. He prepared site plan Ex.PW- 25/3 of the flat. 10. Filling up the relevant forms for inquest proceedings i.e. Ex.PW-25/1, SI Shankar Singh sent the body to All India Institute of Medical Sciences for post-mortem examination. 11. With the recovery of the dead body and the circumstance of its recovery and the nature of injuries seen on the body, it became apparent that Krishan Kumar was Crl.A.No.136/2001 Page 8 of 38 murdered and therefore, SI Shankar Singh, got the FIR, earlier registered only for the offence punishable under Section 364 IPC, amended and got added Sections 302/ 201/120B IPC to the same. 12. On the next day, i.e. 21.9.1990, at around 12.40 PM, Dr.D.N.Bhardawaj PW-7 conducted the post-mortem on the body of the deceased and prepared his report Ex.PW-7/A. He opined that the cause of death was asphyxia as a result of strangulation, and that the time of death was about 4 days prior to the time of conduct of the post-mortem i.e. the deceased probably died on 17.9.1990 at about 1.00 PM. After the post-mortem examination, he handed over a vest Ex.P-1, a pant Ex.P-2 and a shirt Ex.P-3 worn by the deceased and a curtain cloth Ex.P-4, a bed sheet Ex.P-5, a nylon rope Ex.P-6 and a white string (narra) Ex.P-7 which were tied around the ankles, hands and neck of the deceased as also a blood sample of the deceased on a piece of gauze which were taken possession of by SI Shankar Singh. 13. On 3.10.1990, Inspector Kulwant Sharma PW-27, from the special staff, South District, was handed over the investigation. He sent the articles seized during investigation to CFSL Lodhi Road, New Delhi. As recorded in the FSL report Ex.PW-28/3 human blood was detected on the saree, pyjama, Crl.A.No.136/2001 Page 9 of 38 bed sheet, vest, shirt, synthetic and cotton strings; and human blood of group „A‟ was detected on the pyjama and the bed sheet seized from the spot. The blood group of the deceased could not be detected as the gauze/cotton on which it was lifted, on reaction gave no result. 14. On 7.10.1990 the investigation was transferred to SI Om Prakash PW-28. He summoned a draftsman Inspector Davinder Singh PW-5 who prepared site plan to scale Ex.PW- 5/A, of the flat at the instance of Ramesh Kumar PW-15. On 21.10.1990, Ram Lal PW-16 father of deceased handed over to SI Om Prakash a diary Ex.PW-19/1 recording details of money transactions of Krishan Kumar with Subhash Chand and others and bearing the signatures of Subhash Chand on few pages; as also a piece of paper Ex.PW-16/2 recording the details of money transactions of Subhash Chand in relation to a Chit Fund Committee, who seized the same as recorded in the memo Ex.PW-16/3. 15. On 28.10.1990, Ram Prakash PW-11 handed over a possession letter Ex.PW-11/C dated 20.11.1989 of the Flat No. 339-A, Janta Flats, Sarita Vihar issued in his favour by Delhi Development Authority to SI Om Prakash who seized the same, as recorded in memo Ex.PW-11/B. His statement under Section 161 Cr.P.C. was recorded. Statement of one Ved Crl.A.No.136/2001 Page 10 of 38 Prakash PW-6, brother of Ram Prakash and statement of Baldev Raj PW-13, were recorded throwing light on flat No.339A, Janta Flats, Sarita Vihar, New Delhi being let out to the accused. Statement of Mahender Kumar PW-14, Uday Singh PW-17, Munni Lal PW-23 and Uday Bhan PW-24 pertaining to the deceased being last seen in the company of appellant Subhash and co-accused Sukhbir and his wife Sudesh were recorded. Statements of a few other persons which ultimately turned out to be inconsequential were also recorded. 16. Appellant Subhash Chand and accused Sukhbir and Sudesh were put to trial. The prosecution examined 28 witnesses in support of its case. Eschewing reference to the formal and procedural witnesses, we note the deposition of only those witnesses who are relevant for the purposes of disposal of the instant appeal and whose testimony has brought out the incriminating evidence against not only the appellant, but also the two co accused who have been acquitted. 17. We may note that as per the prosecution, the appellant and Sukhbir were indebted to the deceased and the motive for the crime was to do away with the deceased who would then be in no position to demand money from them. Crl.A.No.136/2001 Page 11 of 38 Sudesh was the wife of Sukhbir and even she lent a helping hand. All three conspired to entice the deceased to flat No.339A, Janta Flats, Sarita Vihar, New Delhi which was taken on rent from Ved Prakash PW-6 through Baldev Raj PW-13 who was a broker. On 17.9.1990 all co-accused were seen in the company of the deceased by Mahender Kumar PW-14, Uday Singh PW-17, Munni Lal PW-23 and Uday Bhan PW-24. 18. Mahender Kumar PW-14 and Munni Lal PW-23 turned hostile and did not support the case of the prosecution. 19. Ved Prakash PW-6 deposed that flat No.339-A, Janta Flats, Sarita Vihar, New Delhi belonged to his brother Ram Prakash PW-11 and in July 1990, it was given on rent by him to Subhash and Sudesh through a neighbour Baldev Raj PW-13. That when the flat was let out, Sudesh told him that the flat was being taken on rent for her brother-in-law (Devar) who would come after a month. He deposed that on one occasion, when he visited the flat, he met Subhash and Sudesh there, but when he went there again on a later occasion, he found the flat locked. He deposed that on 26.8.1990 Baldev Raj PW- 13 had handed over to him a sum of Rs. 550/- stating that it was given by Sudesh towards part rent, which was fixed at Rs.600/- per month, pertaining to the month of August. That, the balance sum of Rs.50/-, was paid by Sudesh on 17.9.1990 Crl.A.No.136/2001 Page 12 of 38 to Baldev Raj. On 20.9.1990 when he went to Okhla Bus depot for duty, his colleagues informed him that a foul smell was emanating from Flat No.339-A and that he should immediately go to the said flat since something appeared to be wrong there. When he reached the flat, police along with the three accused namely Subhash, Sukhbir and Sudesh, were already present there, investigating the matter. 20. Ram Prakash PW-11 deposed that the Flat No.339- A, Janta Flats, Sarita Vihar was allotted to him by Delhi Development Authority and that his brother Ved Prakash looked after all the affairs of the said flat. That he had handed over the possession slip Ex.PW-11/C of the said flat to the police. 21. Baldev Raj PW-13 turned hostile and disclaimed having been instrumental in letting out on rent Flat No.339A, Janta Flats, Sarita Vihar, New Delhi to appellant Subhash and Sudesh. 22. Uday Singh PW-17 deposed that he knew the deceased Krishan Kumar as he used to get his tyres repaired from the shop of the deceased. That he knew accused Subhash Chand whose shop was adjoining the shop of the deceased Krishan Kumar. That on 17.9.1990, at about 1.00 PM, Crl.A.No.136/2001 Page 13 of 38 when he was driving a truck and was coming from Madan Pur Khadar bridge, he saw accused Subhash Chand and the deceased on a scooter driven by Subhash Chand at Sarita Vihar Corner. Another person was also on the pillion seat but he could not recognize him. He went to his village the day he saw the deceased and another person on the pillion seat of the scooter being driven by Subhash Chand and a month later when he returned, he learnt about the murder of Krishan. 23. On being cross-examined, he admitted that the road on which he claimed to have seen the deceased and the accused Subhash on a motorcycle had a divider. He stated that: ‘the place where I parked the truck was at a distance of about 100 yards from the shop of accused Subhash. It is correct that when one goes from Sarita Vihar corner to the place where I parked the truck, the shop of Kuku lies at the left hand side on the way…… When I was coming driving my truck in order to park the same at the owner’s house, I saw that accused Subhash, deceased Kukoo and one other person were going on the scooter. It is correct that there is a divider at Madanpur Khadar Road.‟ He also admitted that his statement under Section 161 Cr.P.C. was recorded after about 5 or 6 days of his returning to Delhi after a month of his having last seen the deceased in the company of appellant Subhash. Crl.A.No.136/2001 Page 14 of 38 24. It is apparent that as per PW-17 the truck being driven by him and the scooter being driven by Subhash were travelling in the opposite direction and the road was bisected by a divider. It may also be noted that the statement of PW-17 under Section 161 Cr.P.C. was recorded on 22.10.1990 as per the testimony of SI Om Prakash PW-28. We note that the said statement is not on the judicial record. 25. Uday Bhan PW-24 deposed that he knows accused Subhash Chand as he used to purchase electric appliances from the shop of Subhash Chand at Bankey Market, Badarpur, New Delhi. He also knew deceased Krishan Kumar as he was the son of his maternal uncle. On 17.9.1990 he went to Sarita Vihar in search for a shop to be taken on rent. At about 1.00 PM, he saw Subhash Chand, Krishan Kumar and another person on a two wheeler scooter. The scooter driven by Subhash was stopped near Janta Flats and Subhash, Krishan and said third person along with a lady went inside the flat. That accused Sukhbir was the third person on the scooter and accused Sudesh was the lady accompanying Subhash, Krishan and Sukhbir inside the flat. That he learnt about the murder of Krishan after many days. 26. On being cross-examined he stated that he attended the funeral ceremony of the deceased although he Crl.A.No.136/2001 Page 15 of 38 did not attend the kriya ceremony. That he could not remember the date on which the body was consigned to flames. He learnt about the death of Krishan 3 or 4 days after 17.9.1990. We note that the statement of Uday Bhan under Section 161 Cr.P.C. was firstly recorded on 6.10.1990 by Insp.Kulwant Sharma PW-27 as deposed to by Insp.Kulwant Sharma and his supplementary statement was recorded on 21.10.1990 as deposed to by SI Om Prakash PW-28. 27. Ram Lal PW-16 deposed that he conducts business under the name and style M/s Ram Lal & Sons, at shop No.56- A Bankey Lal Market, Badarpur, Mathura Road. The deceased Krishan Kumar was his son and used to sit in the said shop with him. On 17.9.1990, Krishan Kumar @ Kuku went to the Badarpur Branch of Central Bank to deposit Rs.20,000/- in cash, but did not return thereafter. At around 7:00 PM on the same day, accompanied by accused Subhash Chand and his father, he visited the police station where Subhash Chand and his father went inside the room of the SHO while he i.e. Ram Lal stood outside. At 10.30 PM he was given a copy of the DD Entry No.16-A and the same bears his signatures. He deposed that he again visited the police station on 18.9.1990, but the SHO did not entertain him. On 19.9.1990 he again visited the police station where SI Shanker Singh told him to get Munni Lal Crl.A.No.136/2001 Page 16 of 38 (who allegedly had seen the deceased with Subhash Chand when he went missing) to the police station. Finally on 20.9.1990, due to the intervention of the ACP, a report was lodged. Thereafter, the police accompanied him to his shop. Accused Subhash who was then present in his shop, which was adjoining the shop of Ram Lal, was apprehended. Subhash disclosed that he murdered Krishan Kumar and got the dead body recovered from a flat in Sarita Vihar. Ram Lal deposed that Subhash Chand had some money dealings with his son Krishan Kumar and that the diary Ex.PW-19/1 containing the record of financial dealings of his son was handed over by him to the police. In all, Subhash Chand owed Rs. 12.50 lacs to Krishan. 28. Ramesh Chand Chawla PW-19 deposed that he runs an electronic appliances shop at Bankey Lal Market, Badarpur, New Delhi. In 1989/1990 he floated a committee of which deceased Krishan and Subhash were also members. He paid Rs.65,000/- to Subhash on behalf of Krishan @ Kuku. Subhash and Krishan had some business dealings inter se. He deposed that the signatures on page 48 of diary Ex.PW-19/1 seem to be those of Subhash. 29. Smt.Shobha PW-22 deposed that the deceased Krishan Kumar was her husband and used to run a tyre shop Crl.A.No.136/2001 Page 17 of 38 under the name of M/s Ram Lal & Sons at Badarpur. On 17.9.1990 at about 11.30 AM Krishan went to Central Bank of India to deposit Rs. 20,000/-, but he did not return. Her father- in-law and she made enquiries from various friends and acquaintances of Krishan and learnt that Krishan was with Subhash Chand. Subhash Chand resided in their neighbourhood and had his shop adjacent to the shop of Krishan Kumar. Subhash owed a huge sum of money to her husband, but refused to repay the same. In the evening of 17.9.1990, her father-in-law was informed by someone that Subhash Chand and another person took Krishan on a two wheeler scooter towards Delhi. She lodged an FIR Ex.PW-1/A with the police. About a month later, she identified a bunch of six keys shown to her by the police as those belonging to the deceased. That Krishan Kumar had advanced Rs.50,000/- to accused Sukhbir, but Sukhbir refused to repay the same. 30. In cross-examination she stated that on 17.9.1990, when her father-in-law informed her that Krishan was seen with Subhash Chand, she suspected that Subhash had taken Krishan along, with the intention of killing him. On being questioned that since she suspected Subhash Chand of having abducted Krishan with the intention to kill him, why did she not express her apprehension to the police on the same day, she Crl.A.No.136/2001 Page 18 of 38 replied that her father-in-law went to the police station but the police officer refused to register any report against Subhash and merely recorded a missing person‟s report. 31. HC Hari Chand PW-21 deposed that on 20.9.1990, he was posted in the PCR Van patrolling in the area of Sarita Vihar, when information regarding foul smell emanating from flat No.339-A, Sarita Vihar was received by him. Accompanied by two other constables, he reached the spot. SI Dinesh Singh along with Const.Mehak Singh from PS Badarpur also reached the spot and broke open the wire gauge of the main door of the flat and on entering, found a dead body lying there. In the meantime SI Shanker Singh of PS Badarpur also reached. 32. On being cross-examined he stated that after he along with the other two constables reached the flat, they informed PS Badarpur and pursuant thereto, within 15/20 minutes SI Dinesh and Const. Mehak Singh from PS