CRL.A. 702/2001 Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 11th November, 2009 Judgment Delivered on: 19th November, 2009 + CRL.APPEAL NO.702/2001 SURENDER KUMAR @DIMPY & ORS. ………..Appellant Through: Mr.D.C.Mathur, Senior Advocate with Mr.Tarun Diwan, Advocate for Appellant Surender. Mr.Dilip Singh, Advocate for Appellants Ramesh Chand and Ved Rani. Versus STATE ……..…Respondent Through: Mr.M.N.Dudeja, A.P.P. Ms.Richa Kapoor, A.P.P. 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? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J 1. Vide impugned judgment and order dated 07.08.2001 the appellants have been convicted for the offence of having murdered Kishan Lal. Vide order dated 22.08.2001 they have been sentenced to undergo imprisonment for life. CRL.A. 702/2001 Page 2 of 39 2. Discussing the evidence, the finding returned by the learned Trial Judge in para 29 of the impugned decision, which also summarises the case of the prosecution is as under:- “29. The evidence on the record thus duly proves that accused Surinder used to tease and mis-behave with Usha and he again teased her on 13.1.99 and on the complaint of Usha, her mother, maternal uncle (Kishan Lal deceased) and her brothers had gone to the spot, where a quarrel had taken place and accused Ramesh Chand and Ved Rani caught hold of deceased Kishan Lal and accused Surinder @ Dimpy stabbed him with the knife on his chest and the injuries sustained by the deceased proved fatal and he expired in the hospital.” 3. The first recorded information pertaining to the death of Kishan Lal (hereinafter referred to as the deceased), is when DD No.7-A Ex. PW-18/A was recorded at the PS Patel Nagar by HC Pushpa PW-18 pertaining to information being received about a man being stabbed somewhere near H.No.T-313/8, Baljeet Nagar. The said DD entry shows that the information was logged at 12:15 noon. 4. Armed with a copy of aforenoted DD entry, SI Jagdish PW-20, accompanied by Ct.Sunil PW-11 left for the spot and on learning that the injured had been removed to Ram Manohar Lohiya Hospital proceeded straight to the hospital where SI Jagdish learnt that Kishan Lal had been CRL.A. 702/2001 Page 3 of 39 declared brought dead at 12:15 PM at the hospital, as recorded in the MLC Ex.PW-16/A. 5. SI Jagdish met Krishna PW-5, the sister of Kishan Lal whose statement Ex.PW-4/A was recorded by him. (We may note that there is a consistent mismatch in the marking of the exhibit numbers to the various proved documents, in that many numbers pertained to the previous witness. For example, the statement of Krishna PW-5 has been exhibited as Ex.PW-4/A). On the basis of said statement FIR Ex.PW-18/E was registered. As per DD No.11-A, Ex.PW-18/C, the FIR was registered at 2:05 PM. As deposed to by DW-1 Mahesh Chand, the Ahalmad attached to the court of Sh.Suraj Bhan, Metropolitan Magistrate, Delhi, the endorsement Ex.DW-1/A on the said FIR acknowledging receipt by Sh.V.K.Goyal functioning as the Metropolitan Magistrate of the area on 14.01.1999 was in the hand of Sh.V.K. Goyal and recorded the receipt of the FIR by the learned Magistrate at 7:00 AM on 14.01.1999. 6. Since the deceased was brought dead, his body was taken into possession by SI Jagdish. At that stage the investigation was taken over by Insp.Rajinder Prasad PW-21, who prepared the inquest papers Ex.PW-21/C on 14.01.1999 CRL.A. 702/2001 Page 4 of 39 i.e. the next day of the incident and sent the body of the deceased for post-mortem. 7. Dr. Ashok Jaiswal PW-12 conducted the post- mortem on the body of the deceased on 14.01.1999 and noted only one external injury as under:- “An incise stale wound obliquely placed on left side chest in front paraseternal region 3rd 4th space 9 cm. below medial angle of left clavical of size 2.7 cm. X 1 cm. with upper angle being acutely cut with margins clean, cut and everted.” 8. The injury aforenoted has been recorded in the post-mortem report Ex.PW-12/A which also records that exploring injury No.1, it was found cutting through the 3rd and 4th intercostal space; traversing inward and upward the weapon of offence pierced the right ventrical and came out from the posterior surface. The wound pierced 10 cms. deep. Needless to state, the death was instantaneous due to haemorhhagic sock since the ventrical of the heart was pierced. It is apparent that the weapon of offence was a knife. 9. In her statement Ex.PW-4/A Krishna stated that her daughter Usha used to be teased by appellant Surender Kumar @ Dimpy who resided in the neighbourhood and that at 12:00 Noon on 13.01.1999 her daughter Usha left for the CRL.A. 702/2001 Page 5 of 39 market but returned soon and informed that Surender @ Dimpy who was standing at the street corner had teased her at which her brother Kishan Lal who had come to her house to celebrate the festival of Lohri went out accompanied by her sons Rajesh and Naresh. Even she accompanied them. They saw Surender at the corner of the street. She and her brother Kishan Lal requested Surender not to tease Usha at which a verbal altercation ensued between Surender and Kishan Lal. Hearing the altercation Ramesh Chand father of Surender and Ved Rani, mother of Surender came out of their house and both of them jointly exhorted: “Let us teach them a lesson today.” So exhorting, Ramesh Chand took her brother Kishan Lal in a bear hug from behind and even Ved Rani caught hold of the hands of her brother from behind. Thereafter Ved Rani and Ramesh Chand jointly exhorted: “Dimpy finish him off today.” Before they could even realize the gravity of the situation, Surender @ Dimpy ran to his house and returned with a knife and struck a blow on the chest of her brother and while striking the blow said: “I will finish you off today.” On receiving the blow her brother fell down and they remained stunned. Sunil resident of T-318/C, Baljeet Nagar CRL.A. 702/2001 Page 6 of 39 and one Virender resident of T-342 Baljeet Nagar were standing there. They all attempted to apprehend Surender, his father and his mother, but all fled. 10. It is apparent that the witnesses of the prosecution were Usha PW-1, the young girl who was allegedly teased by Surender Krishna PW-5, the mother of Usha who claimed to be an eye-witness Naresh PW-2 and Rajesh PW-3, the sons of Krishna as also Sunil Kumar PW-7 and Virender who was not examined by the prosecution. If what was stated by Krishna to the police was correct, her sons Naresh and Rajesh as also Sunil Kumar, besides herself, had witnessed the incident. 11. Usha PW-1 deposed that she was residing with her mother Krishna Devi and brothers Rajesh, Naresh and Vikas at house bearing Municipal No.T-313/18, Baljeet Nagar, Delhi. The appellants Surender, Ved Rani and Ramesh Chand were residing at house bearing Municipal No.T-313/17, Baljeet Nagar, Delhi. Accused Surender often used to tease and misbehave with her. At about 11/11:30 AM on 13.1.1999 when her maternal uncle Kishan Lal had come over to their house for the festival of „Lohri‟, her mother asked her to bring some snacks from the market. CRL.A. 702/2001 Page 7 of 39 When she went outside her house accused Surender was standing at the corner of the street and on seeing her he passed some filthy remarks. She immediately, returned home and told her uncle Kishan Lal, her mother and her brothers about the act of accused Surender. On this, Kishan Lal, her mother and her brothers went outside to talk to Surender about said incident; she was asked to stay at home. Later on she learnt that Surender had stabbed her uncle Kishan Lal. 12. Smt.Krishna PW-5 deposed that she was working as a safai karamchari in a Government School at S-Block, West Patel Nagar. She has three sons and one daughter; namely, Rajesh, Naresh, Vikas and Usha. The accused persons resided in the house next to their house. On the day of „Lohri‟ when her brother visited them, Usha went to the market to get some eatables, however, Usha returned within some time and informed them that accused Surender @Dimpy had misbehaved with her. On hearing this, accompanied by Kishan Lal @Bholey, her sons Rajesh and Naresh, she i.e. Smt.Krishna went outside the house where accused Surender was standing and asked him why he misbehaved with Usha. Kishan Lal told Surender that he should be ashamed of his acts. As a result a CRL.A. 702/2001 Page 8 of 39 verbal duel ensued between Surender and Kishan Lal; and both started abusing each other. Due to the noise, parents of Surender i.e. accused Ramesh Chand and Ved Rani, reached the spot; Ramesh Chand caught hold of Kishan Lal from behind and Ved Rani caught hold of the hands of Kishan Lal. Ramesh @Kukku exhorted Surender by stating „aaj inko sabak sikhatey hain‟ and both Ved Rani and Ramesh then stated „aaj iska kaam tamaam karte hain‟. Resultantly, Surender @Dimpy inflicted knife blows on the left chest of her brother Kishan Lal whereupon Kishan Lal fell on the ground. With the help of her son Rajesh she took her brother to Wellingdon Hospital in a three-wheeler scooter where her brother was declared dead. After some time police arrived at the hospital and recorded her statement. 13. On being cross-examined by the counsel for the accused she stated that her brother was held by accused Ramesh Chand @Kukku from his side and not from behind and Ved Rani had held the hands of the deceased from back. That in between when Surender went to his house to fetch a chhuri she and her sons had tried to free her brother from the clutches of Ramesh Chand. That Surender did not attempt to give a second blow on the person of Kishan Lal. CRL.A. 702/2001 Page 9 of 39 14. Rajesh PW-3 deposed that the accused were his neighbours. His sister Usha had told his mother that the accused Surender used to often tease and abuse her. At around 11.15/11.30 AM on 13.01.1999, when his uncle Kishan Lal @ Bhola visited them for delivering customary articles for the festival of „Lohri‟, Usha went to the market to bring some eatables for Kishan Lal. Accused Surender who was standing at the corner of the street abused Usha and as a result Usha returned home within a few seconds. She informed them i.e. Kishan Lal, Krishna, Naresh and Rajesh about the incident. His uncle Kishan Lal asked them to stay at home while he would go and persuade Surender not to misbehave with Usha. But his mother, his brother Naresh and he followed Kishan Lal and saw accused Surender standing at the corner of the street. Kishan Lal asked Surender as to why he used to misbehave with Usha who was like his sister. In the meantime accused Ramesh Chand and Ved Rani, the parents of Surender, reached said place and both caught hold of Kishan Lal from behind. They exhorted Surender by stating “Dimpy Aaj Inka Kam Tamam Kar De”. Dimpy then stabbed Kishan Lal on his chest, whereupon Kishan Lal fell on the ground and as his mother, his brother and he attended to Kishan Lal, the three CRL.A. 702/2001 Page 10 of 39 accused managed to escape. Sunil and Vijender, who were also present at the spot, immediately brought a TSR and suggested that Kishan Lal be taken to the hospital. His mother and he took Kishan Lal to Ram Manohar Lohiya Hospital where the doctor declared Kishan Lal dead. 15. On being cross-examined by counsel for accused, he stated that the incident took place outside house bearing Municipal No.T-325 which is at the corner of the street. Accused Ramesh Chand caught hold of Kishan Lal from the left of his backside, by stretching his arms around Kishan Lal in such a manner that the arms of Kishan Lal remained free. The arms of Kishan Lal were towards the back and Ved Rani caught hold of them from behind. Surender did not open the knife in his presence, but was carrying an already opened knife. It was like a vegetable cutting knife. The house of Rajesh i.e. house bearing No.T-313/18 was about 100 feet away from the house bearing No.T-325 i.e. outside where the incident took place. 16. Naresh PW-2 deposed that he resided with his mother Krishna, brothers Rajesh and Vikas and sister Usha at house bearing Municipal No.T-313/18. The accused were their neighbours. Usha often complained to his mother about accused Surender teasing her. At about 11.30 AM on CRL.A. 702/2001 Page 11 of 39 13.01.1999, when his maternal uncle Kishan Lal visited them for „Lohri‟, his sister went to the market to bring some eatables. She returned within five minutes and informed that accused Surender @ Dimpy was standing at the corner of their lane and was teasing her. On this, his uncle Kishan Lal went outside the house and his mother, his two brothers and he followed Kishan Lal. There was an exchange of hot words between Kishan Lal and accused Surender and as a result of the noise, parents of accused Surender i.e. accused Ramesh Chand and Ved Rani also reached said spot. Ved Rani exhorted Surender by stating “Aaj Inhe Sabak Sikha Hi Do”; Ramesh Chand also stated “Aaj Inka Kam Tamam Kar Do”. As a result accused Surender inflicted a blow with a sharp object on the left side of the chest of Kishan Lal. The three accused; namely, Surender, Ramesh Chand and Ved Rani fled from the spot. Vijender and Sunil were standing at the corner of the street. His maternal uncle was removed to the hospital in a three-wheeler scooter by his mother and brother Rajesh; he stayed at home. Later on he was informed on telephone that his uncle had expired. 17. On being cross-examined by the counsel for State, he clarified that while accused Ramesh Chand caught hold of CRL.A. 702/2001 Page 12 of 39 Kishan Lal by putting his hands around the waist of Kishan Lal from behind; accused Ved Rani caught hold of the hands of Kishan Lal from front. On being cross-examined by the counsel for the accused, he stated that Kishan Lal was a little taller than him and was of medium built. Since Ramesh Chand had caught Kishan Lal only from the waist, the hands of Kishan Lal remained free, which were then, caught hold off by Ved Rani. At that time, Kishan Lal did not push Ved Rani. He was not sure whether Ved Rani was about the height of the shoulder of Kishan Lal. The three-wheeler scooter was brought by Sunil and Vijender. 18. Sunil Kumar PW-7 deposed that at about 11.45/12.00 Noon on 13.01.1999, he was standing in the street with Virender. He saw a quarrel taking place between Kukku and Ved Rani on one side and the deceased and Krishan on the other. Accused Surender @ Dimpy was also engaged in said quarrel. Kukku stated “Aaj Inka Kaam Tamam Kar Do”, on which accused Dimpy rushed back to his house and brought a knife with which he inflicted blows on the left side of the deceased. Accused Kukku and Ved Rani both had caught the deceased. CRL.A. 702/2001 Page 13 of 39 19. Some further evidence needs to be noted for the reason Shri Dinesh Mathur, learned senior counsel for the appellants, very strenuously urged that the FIR was ante timed and the result was that Krishna PW-5 got enough time to spin a fabricated version; though not expressly conceding, the underlying submission of learned counsel was that since Surender had been teasing Usha and single handedly was responsible for the injury inflicted upon the deceased, Krishna got a golden opportunity to ensnare even the parents of Surender. Learned counsel urged that the investigating officer had connived in a belated FIR being ante timed. 20. HC Pushpa PW-18 working as a duty officer at PS Patel Nagar on 13.1.1999 from 9:00 AM to 5:00 PM deposed that DD No.7A Ex.PW-18/A was registered by her at 12:15 PM and that DD No.10A Ex.PW-18/B was registered by her at 12:47 PM when SI Jagdish Rai gave telephonic information from RML Hospital that Krishan Lal had died at the hospital. She further deposed that after registering DD No.10A she informed Inspector Veer Singh the SHO of the police station and that at 2:05 PM she received Krishna‟s statement Ex.PW- 4/A as also the endorsement Ex.PW-11/A sent by SI Jagdish Rai to the police station through Const.Sunil and registered the FIR CRL.A. 702/2001 Page 14 of 39 in question in respect whereof she made DD entry No.11A Ex.PW-18/C at 2:05 PM recording the commencement of the registration of the FIR. She deposed that thereafter she had also recorded DD No.12A Ex.PW-18/D at 2:50 PM recording that the investigation had been assigned to Inspector Rajender Prasad. She joined the investigation of the present case at 5:30 PM on 13.1.1999 and went to Peeragarhi crossing in connection with the investigation. 21. During cross-examination HC Pushpa PW-18 deposed:- “It is correct that till the time I had left for Pira Garhi chowk, no case of any offence was registered in the police station and the DD entries at that time pertain to formalities of departure, arrival and a call from the PCR” 22. Const.Sunil Kumar PW-11 inter alia deposed that he took the rukka from the hospital at 12:30 noon and got the case registered at PS Patel Nagar at 1:45 PM. Const. Satish Kumar PW-14 deposed that he recorded his departure vide DD No.12-A (Ex.PW-18/D) at 2:50 PM on 13.1.1999 when he went to deliver a copy of the FIR to the Area Magistrate. Const.Satish Kumar has not been subjected to any cross- examination. Insp.Rajender Prasad PW-21 deposed that he took over the investigation on 13.1.1999 immediately after the CRL.A. 702/2001 Page 15 of 39 FIR was registered and conducted the spot proceedings i.e. got the scene of the offence photographed, lifted blood samples, earth control, blood stained earth and prepared the rough site plan. 23. DW-1 Mahesh Chand deposed that he was the Ahlmad in the Court of Shri Suraj Bhan, MM, Delhi who was the Successor Judge in the Court of Shri V.K.Goyal, MM, Delhi and that he could identify the signatures and writing of Shri V.K.Goyal and that the endorsement Ex.DW-1/A on the FIR in question was in the handwriting of Shri V.K.Goyal. It may be noted that the endorsement Ex.DW-1/A records that Shri V.K.Goyal had received the FIR at 7:00 AM on 14.1.1999. 24. Stage to note the submission urged by learned senior counsel for the appellants. 25. With reference to the cross-examination of HC Pushpa PW-18, contents whereof have been noted in para 21 above, Shri Dinesh Mathur, learned senior counsel for the appellants urged that the said admission completely demolished the version of the prosecution that the FIR was registered as claimed by HC Pushpa PW-18 at 2:05 PM on 13.1.1999. With reference to the inquest papers Ex.PW-21/C admittedly prepared on 14.1.1999 by Inspector Rajender CRL.A. 702/2001 Page 16 of 39 Prasad PW-21 and drawing attention of the Court to Section 174 Cr.P.C. counsel urged that the requirement of law being to commence the inquest proceedings immediately and in the instant case it not having been so done, it was apparent that the FIR was registered belatedly but ante timed. With reference to DD Entry No.11A, Ex.PW-18/C purporting to bear the time 2:05 PM counsel submitted that the said entry pertained to the registration of the FIR, but contained no contents, not even a brief summary of the FIR. Learned senior counsel urged that it was apparent that the DD entry was a mere ruse as the investigating officer had sent no rukka but had impressed upon a junior officer to record the DD entry and assigned the number in the register pertaining to the registration of FIRs and keep available blank space in the said register, to be filled in later on as per the convenience of the investigating officer. Learned senior counsel relied upon the decision reported as 1976 Chandigarh Law Reporter (Delhi) 41 Balwant Singh vs. State of Punjab to make good the point that where the substance of the FIR registered under Section 154 Cr.P.C. is not entered in the daily diary and where the inquest papers are not promptly sent containing the brief facts an adverse inference of the contemporaneous record being ante CRL.A. 702/2001 Page 17 of 39 timed can be reasonably inferred. Counsel urged that in said decision the twin taint of the DD entry pertaining to the registration of the FIR being found to be sans a brief summarization of the FIR and the inquest proceedings being belated, an adverse finding of the FIR being ante timed was drawn. 26. The second submission urged by learned senior counsel was that the reason why everything has been ante timed is that nobody knew what had happened and the investigation officer gave time for the complaint to be made; the reason for giving the time was to enable the family members of the deceased to spin out a plausible version. Elaborating the submission further, with reference to the language of Krishna‟s statement Ex.PW-4/A, learned senior counsel pointed out that the reading of the statement shows the well thought of statement made by Krishna to falsely implicate, if not all, at least the parents of Surender. Learned senior counsel wondered as to how, at the spur of the moment, two persons at two different points of time utter identical words. Learned counsel highlighted that in the said statement Krishna imputed two exhortations to Ramesh Chand and Ved Rani, the parents of Surender, being: „let us teach CRL.A. 702/2001 Page 18 of 39 them a lesson today‟ and „Dimpy finish him off today‟. Counsel urged that this evidence Krishna‟s statement being a thought over statement and not a contemporaneous statement. 27. An extended limb of the second submission urged was that Krishna and her sons Naresh and Rajesh had a grouse against Surender as they thought that Surender used to tease Usha, the sister of Naresh and Rajesh and daughter of Krishna. For said reason all three have deposed falsely to seek vengeance against the entire family of Surender i.e. Surender himself and his parents. Having a motive to falsely implicate the appellants, learned senior counsel urged that the testimony of the three witnesses is suspect, more so for the reason the FIR has been ante timed. 28. The third submission urged was that there are serious discrepancies with respect to the commission of the offence and the role played by the accused in the testimony of the witnesses of the prosecution. Learned senior counsel pointed out that whereas Krishna, in her cross-examination, stated that after Ramesh Chand and Ved Rani caught hold of her brother Kishan Lal and exhorted their son, Surender went home and returned with a knife and thereafter struck a blow in CRL.A. 702/2001 Page 19 of 39 the chest of Kishan Lal; to the same effect is the deposition of Sunil Kumar PW-7. The other witnesses i.e. Naresh PW-2 and Rajesh PW-3 have not deposed about Surender going to his house and bringing a knife; as per them Surender when Ramesh Chand and Ved Rani exhorted Surender: „Dimpy aaj inka kaam tamam kar de‟ Surender stabbed Kishan Lal in the chest and thereafter all of them fled. It was urged that it was apparent that there was an attempt to bring on record a false version by the witnesses of the prosecution, who were not the eye-witnesses, but came out of their house, on hearing the noise when somebody had already