Crl. A. No.165/2001 Page 1 of 29 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 13.03.2009 Judgment delivered on: 06.04.2009 + CRL.A. No.165/2001 BISHAN @ BINNY @ BAGGA & ANR. …Appellants Through : Mr. Raman Sawhney, Advocate versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 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. Three persons were sent for trial. They are appellant No.1 Bishan @ Binny @ Bagga (hereinafter referred to as appellant No.1), Balbir @ Billu @ Mukesh (hereinafter referred to as appellant No.2) and Babli. They were charged with the offence of having murdered Satish Kumar. Bishan @ Binny @ Bagga was additionally charged for the offence of unlawful possession of a dagger; an offence punishable under Section 27 of the Arms Act. Crl. A. No.165/2001 Page 2 of 29 2. Vide impugned judgment and order dated 27.1.2001 Babli has been acquitted of the charge framed against him. Appellant No.1 has been convicted for the offence of murdering Satish Kumar as also for the offence punishable under Section 27 of the Arms Act. Appellant No.2 has been convicted for the offence of murdering Satish Kumar. 3. Case of the prosecution was that the accused had enmity with the deceased Satish Kumar and they hatched a conspiracy to kill him. The deceased had to attend a court hearing at Tis Hazari Courts on 27.7.1991. Accused Babli enticed him to have liquor and the other two accused joined and after intoxicating Satish Kumar, the appellants stabbed him with knives and all the accused ran away. That Devender Kumar PW-7 had witnessed his brother being stabbed. On being apprehended, the appellants made confessional statements admitting their guilt and disclosed to the police that they had hidden the knives used by them to murder the deceased and thereafter led the police to the place where they had hidden the knives which were recovered. They also told the police that when they were attacking the deceased their shirts got stained with his blood and that they had hidden the shirts, which were got recovered by them. That the two knives were stained with blood. The shirts, one each belonging to the Crl. A. No.165/2001 Page 3 of 29 appellants which were got recovered, were also stained with blood. The serologist reported that the blood on the knives and the shirts was of human origin and of group „B‟ i.e. the same group as that of the deceased. Further, it was the case of the prosecution that the deceased was removed from the place of occurrence to Hindu Rao Hospital in a TSR by Const.Shahji John PW-22 and on the way to the hospital, the deceased was muttering that Binny and Biloo i.e. the appellants had caused the injuries to him. 4. To put it in a nut shell, the incriminating evidence which required to be proved, to sustain the case of the prosecution, would be:- A. Enmity of the accused with the deceased. B. Eye witness account of Devender which directly would have implicated the accused. C. That the deceased was muttering the names of Binny and Biloo as the ones who had attacked him on the way to the hospital, which was heard by Const.Shahji John PW-22. D. Recovery of knives stained with blood and recovery of the shirts worn by the appellants at the time of commission of the crime which were stained with blood; the blood group on all being the same as that of the deceased. Crl. A. No.165/2001 Page 4 of 29 5. Vide impugned judgment and order dated 27.1.2001, acquitting Babli, the learned Trial Judge has held that there was no admissible evidence against Babli and that the statement of the co-accused disclosing to the police that Babli had enticed the deceased with the lure of alcohol and had thus facilitated the commission of the crime, was inadmissible evidence. 6. Against the appellants, learned Trial Judge has held that the testimony of Devender PW-7 was credible and that certain inconsistencies pointed out by the defence were immaterial and the eye witness account by Devender established that the appellants had stabbed the deceased; that the deposition of Const.Shahji John PW-22 that on the way to the hospital the deceased was muttering that Binny and Biloo had stabbed him was trustworthy and that Binny and Biloo are the appellants; that the blood stained shirts recovered pursuant to the disclosure statements of the appellants as also blood stained knives recovered pursuant to their disclosure statements, all of which were found stained with human blood of same group as that of the deceased, were incriminating evidence against them. Thus, the appellants have been convicted as aforenoted. Crl. A. No.165/2001 Page 5 of 29 7. Before analyzing the evidence on record, it becomes relevant to note the same. 8. That Satish Kumar was murdered is not in dispute. It has to be so for the reason the post-mortem report Ex.PW- 12/A pertaining to him record the following injuries:- “1) One lacerated wound size 3c.m X 2c.m. on the occipital region of the scalp. 2) One lacerated wound size 2c.m.X 1c.m. muscle deep were seen on the upper border of scapula. 3) One stitched wound size 1.2cm was seen just below the outer two third of the left collar bone. 4) One stitched wound size 2c.m. was seen 3c.m.below the middle part of the left collar bone. 5) One rubber tube was seen fixed below the injury no.2. 6) One incised wound size 3c.m.X1c.m.X? was seen placed obliquely over the left posterior auxiliary fold. 7) One rubber tube was found fixed on the left lower ankle of the chest. 8) One incised wound size 2.5c.m.X1c.m.X? was seen on the left lumber region 4c.m. above the left iliac crest. 9) One incised wound size 2c.mX0.5c.m muscle deep on the left on it‟s lower outer aspect. 10)Stitched wound size 10‟‟ in length in the middle line of abdomen was seen which was an operational wound.” 9. It was opined by the doctor conducting the post- mortem that injury Nos. 6 and 8 were sufficient to cause death Crl. A. No.165/2001 Page 6 of 29 in the ordinary course of nature. The cause of death was shock and haemorrhage resulting from the injuries. 10. It is also not in dispute that the place of occurrence is near the canteen in Tis Hazari Courts adjoining the Lawyers‟ Chamber Block and the time of the occurrence is around 8:30 PM. 11. Information was received by the police when DD Entry No.32, Ex.PW-4/A was recorded at 8:30 PM by Const. Joginder Singh PW-4 at police post Tis Hazari that an advocate had informed on the phone that a person has been stabbed near the canteen. ASI Gopal Ram PW-19, Const.Shahji John PW-22 and Const. Suresh Kumar PW-5 who were at the police post immediately left for the spot and saw a man lying injured with blood all over. At the asking of ASI Gopal Ram, Const.Shahji John brought a TSR in which he removed the injured to Hindu Rao Hospital where he was admitted, as recorded in the MLC PW-9/A at 8:50 PM. 12. Dr. M.M.Gupta PW-9 prepared the MLC Ex.PW-9/A after examining the injured and on the MLC, apart from noting the injuries which could be seen by the eye, noted as under:- “Name- Unknown, Son of- Unknown, Aged approximately 30 years, brought by Const. Shahji John Crl. A. No.165/2001 Page 7 of 29 on 27.7.1991 at 8.50 P.M. with the alleged history of being stabbed by someone.” 13. He further recorded on the MLC that the patient was in a semi-conscious condition and his general condition was poor and smell of alcohol was present in the mouth of the injured. 14. After the injured had been removed to the hospital and whilst ASI Gopal Ram was still at the spot where the injured was found, Devender Kumar PW-7, reached the spot and told ASI Gopal Ram that he was the brother of the deceased but refused to make any statement and insisted that he would first like to meet his brother. Thereupon ASI Gopal Ram and Devender Kumar went to Hindu Rao Hospital. Devender saw his brother and thereafter made a statement Ex.PW-7/A which was recorded by ASI Gopal Ram who made an endorsement Ex.PW-19/A thereon and forwarded the same through Const.Shahji John at 10:10 PM, as recorded in the endorsement, for an FIR to be registered. At the police station the FIR Ex.PW-14/A was registered at 10:25 PM. 15. The statement Ex.PW-7/A of Devender Kumar PW-7, which has formed the basis of the FIR is in vernacular. Translated in English, it reads as follows:- Crl. A. No.165/2001 Page 8 of 29 “Statement of Shri Devender Kumar S/o Shri Laxmi Narayan R/o 196/7 CD-9 Thansingh Nagar, Anand Parbat Delhi, Age 21 years:- I reside at the abovementioned address with my parents and siblings. I make lamp shades at home for a living. My brother Satish also makes dibba at home. That today in the morning my brother Staish left the house after informing us that he was going to attend his hearing before the court. That when Satish did not return home by 7:00 PM we got worried, I left for Tis Hazari to look for him after informing my wife. While looking for my brother I reached the advocates‟ chambers near Pull Mithai at Tis Hazari. That at around 8:25 PM I saw my brother Satish quarrelling near the lawyer‟s canteen with Binny@ Bagga and Balvir@ Billu who are known to me and reside near our house at Gali no.2 and Gali no.3 Anand Parbat respectively. That while I was heading towards them both Binny@ Bagga and Balvir@ Billu stabbed Satish several times with knifes on his chest and stomach in front of my eyes they said that they were going to finish him off today. That when I tried to raise an alarm both of them started chasing me but I managed to escape. That thereafter both of them ran away towards Pull Mithai. That I returned to the spot where my brother had fallen down on the ground owing to the stab injuries and blood had started to ooze out of his wounds. I immediately ran towards the road outside the court premises to fetch a scooter to remove my brother to the hospital. That by the time I returned with the scooter you had already reached the spot with the police and my brother had already been removed to the hospital. That after searching for the accused persons for a short while I came to the Hindu Rao Hospital with you where my brother is being treated. That my brother is not fit for making a statement. Let appropriate legal action be taken against Binny and Balbir. The statement has been read over to me and it is correct.” 16. Bir Singh PW-21, SHO of PS Subzi Mandi within jurisdiction of which police station Tis Hazari Court Complex Crl. A. No.165/2001 Page 9 of 29 was situated was given the information of the crime and hence he proceeded to the place of occurrence and therefrom to Hindu Rao hospital. At the hospital, the blood stained shirt, vest, pant and the underwear of the injured were handed over by the doctor to Const.Rohtash Kumar PW-6, the duty constable at Hindu Rao Hospital, who in turn handed over the same to Inspector Bir Singh PW-21 who seized the same vide seizure memo Ex.PW-6/A. 17. From the place of the occurrence, ASI Gopal Ram lifted blood stained earth and control earth vide memo Ex.PW- 5/B and prepared the rough site plan Ex.PW-19/B at the instance of Devender PW-7. 18. Satish Kumar expired at Hindu Rao Hospital on 28.7.1991 at about 4:20 A.M. The body was seized and sent for autopsy and on 28.7.1991 at 10:40 A.M. Dr. L.K. Barua PW- 12 conducted the post-mortem and noted the injuries on the person of the deceased as noted in para 8 above and gave his opinion about the cause of death of the deceased as noted in para 9 above. 19. The police searched for the accused. As claimed by Inspector Bir Singh PW-21, he received information that appellant Bishan was seen at Old Delhi Railway Station. On Crl. A. No.165/2001 Page 10 of 29 reaching the station he claims to have seen both the appellants who were arrested on 2.8.1991 at Old Delhi Railway Station. They were interrogated. Bishan made a disclosure statement Ex.PW-16/A, inter alia, admitting his involvement in the crime, and further disclosed that he had stabbed the deceased with a knife which he had thrown in bushes in the precincts of Tis Hazari Court Complex and he volunteered to point out the spot where he had thrown it. He further disclosed that he had concealed a full sleeve shirt which he was wearing when the crime was committed and that he had also concealed a half sleeve shirt of Mukesh, which Mukesh was wearing when the crime was committed. He disclosed that both the shirts were stained with blood and that he could get both the shirts recovered. On being interrogated, Mukesh made a disclosure statement Ex.PW-16/B admitting his involvement in the crime and that he had used a knife to stab the deceased which he had thrown in bushes in the precincts of Tis Hazari Court Complex which place he volunteered to be pointed out. Thereupon, both the appellants, led the police to the respective place where they claimed to have thrown the the knives. Bishan pointed out a bush at the rear of shop No.15, Khanna Market, adjoining Tis Hazari Court Complex and from within the bush, got recovered a knife which was seized Crl. A. No.165/2001 Page 11 of 29 vide seizure memo Ex.PW-1/E. Mukesh led the police to a bush a little distance away and from within the bush, got recovered a knife which was seized vide seizure memo Ex.PW-1/B. The sketch Ex.PW-1/C of the knife got recovered by Mukesh was drawn by Inspector Bir Singh PW-21 who also prepared the sketch Ex.PW-1/A of the knife got recovered by Bishan. 20. The blood sample of the deceased as also his clothes stained with blood, which were handed over by the doctor at Hindu Rao Hospital to the police, as also the two blood stained shirts, one with full sleeves and the other with half sleeves, got recovered by Bishan as also the two knives, were sent for serological examination and as per report Ex.PW- 21/F, it was opined that all the items had presence of human blood and the group thereof was „B‟. On 7.8.1991, the two knives were sent for opinion to Dr.L.K.Barua who vide report Ex.PW-12/B gave the opinion that the injuries on the deceased could possibly be caused by either or by both the knives. 21. At the trial, Const. Joginder Singh PW-4, proved the DD Entry No.32, Ex.PW-4/A recorded by him. Const. Rohtash Kumar PW-6 proved having handed over the blood stained clothes of the deceased to the IO vide memo Ex.PW-6/A. Dr.M.M.Gupta PW-9 proved the MLC Ex.PW-9/A and deposed that the patient was brought to the hospital at 8:50 PM on Crl. A. No.165/2001 Page 12 of 29 27.7.1991 by Const.Shahji John. Inspector Devender Singh PW-10, a draftsman proved the site plan to scale Ex.PW-10/A and deposed that he prepared the same on 8.10.1991 with the assistance of Devender Kumar. Dr. L.K.Barua PW-12 proved the post-mortem report Ex.PW-12/A and his opinion Ex.PW- 12/B pertaining to the two knives which were sent to him for opinion. Const. Amrit Lal PW-13, a photographer, deposed and proved that the photographs Ex.PW-1/A/1 to 3; negatives whereof were Ex.PW-1/A/4-6 were taken and developed by him. 22. Ignoring the testimony of a few formal police witnesses who deposed to the receipt of various seized articles in the Malkhana and further movement thereof to the doctor who conducted the post-mortem and the FSL Laboratory, we note the testimony of such witnesses, in respect whereof, submissions were made during argument of the appeal on the issue, whether Devender PW-7 was at all an eye witness and whether Const.Shahji John truthfully deposed that on the way to the hospital, in an inebriated condition the deceased was muttering the names of Binny and Biloo and was saying that he would see them; if yes, the evidentiary value thereof. 23. Devender Kumar PW-7, deposed that on the day of the incident i.e 27.7.1991, his brother Satish Kumar (the Crl. A. No.165/2001 Page 13 of 29 deceased) had left the house in the morning to attend a court hearing at Tis Hazari Complex. When Satish Kumar did not return home till about 7:00 PM, he went to Tis Hazari Courts, looking for him and at about 8:00 or 8:15 PM, near the canteen at Lawyer‟s Chamber Block Criminal Wing at Tis Hazari, he saw his brother Satish being beaten by Binny @ Bishan @ Bagga and Mukesh @ Billu @ Balbir. That the first blow with a knife was inflicted by Mukesh at the back of the neck of his brother and thereafter both Binny and Mukesh indiscriminately stabbed his brother saying that they would finish him. He raised an alarm at which the said accused, with knives in hands, ran after him and he had to flee. That when he looked back to see whether the accused were after him, he saw them running in the opposite direction. To remove his brother to the hospital he took a TSR and when he returned to the spot with the TSR he found that the police had removed his brother to the hospital, so he went to Hindu Rao Hospital where his brother Satish was unable to make any statement and that the police recorded his statement Ex.PW-7/A which was signed by him at point A. That at the hospital, the clothes of Satish were seized vide memo Ex.PW-7/B which bore his signature at point A. Thereafter, he came back to the spot with the police and the blood stained earth was seized vide seizure memo Ex.PW- Crl. A. No.165/2001 Page 14 of 29 5/A which was signed by him at point B. That the police lifted blood from the spot vide seizure memo Ex.PW-5/B which was signed by him at point B. That he along with the police had gone in search of the accused persons to their house but they were not to be found. That the pointing out memo Ex.PW-7/B signed by him at point A was drawn after he took the police to the house of Billoo and that the pointing out memo Ex.PW-7/D signed by him at point A was drawn after he took the police to the house of Binny. That the pant Ex.P-1, the underwear Ex.P- 2, the bushirt Ex.P-3 and the vest Ex.P-5 belongs to his brother. On a clarificatory question being put, he clarified that the shirt Ex.P-4 was the one which was being worn by his brother at the time of the occurrence. 24. On being cross examined, Devender stated: „My statement was recorded by police first at the place of occurrence and then in the hospital. In the hospital, my statement was recorded at around 9-9:15 PM.’ On being cross examined as to after how much time he returned to the spot after he fled, when as deposed to by him he was chased by the assailants, he replied: „I took about 5-7 minutes in coming back to the spot with the scooter.’ On being questioned, whether his brother was alive when he reached the hospital, he replied: „My brother Satish was still alive when I reached Crl. A. No.165/2001 Page 15 of 29 the hospital. He was crying mildly and saying that Biloo and Bagga had stabbed him.’ On being further cross examined on what happened thereafter and did he interact with the police when he returned to the spot, he replied ‘I had given the names of culprits to the police at the spot. However, my statement was recorded in the hospital.’ On being cross examined as to how he reached Hindu Rao Hospital, he replied: „I was taken to Hindu Rao Hospital by the police in their van and not in TSR. I was not allowed to see my brother in the hospital nor I met the doctor who had attended my brother.’ On being cross examined whether he went to the hospital with the police when he met the police immediately on returning to the spot or after some time, he said: „Before I went to hospital with the police, police had searched around place of occurrence for the search of accused persons.‟ On being cross examined whether he had told the police when his statement was recorded in the hospital, that in the hospital he heard his brother crying mildly saying Biloo and Bagga had stabbed him, a statement which he made in his examination in chief, he admitted that he did not tell police the said fact. 25. Surender Kumar PW-8, brother of the deceased, deposed that he identified the dead body of his brother at the hospital. On being cross examined he stated that he came to Crl. A. No.165/2001 Page 16 of 29 know about the incident at 9/9:25 PM and reached the hospital at around 10:30 PM and that Devender was not present at the hospital when he reached and that Devender came to the hospital after about 20-25 minutes of his arrival in the hospital and that Devender told him the names of the assailants. 26. Const.Suresh Kumar PW-5, deposed that on 27.7.1991 on receipt of information that a person had been stabbed near Chamber No.279, Criminal Side, Lawyers‟ Chambers, he along with ASI Gopal Ram and Const.Shahji John went to the place of occurrence and saw a man lying in an injured condition, who was removed to the hospital by Const.Shahji John. That thereafter Devender arrived at the spot and was interrogated at the spot. They searched for accused Binny and Balbir. He was left to guard the spot and the IO went to the hospital and returned to the spot at around 10:30 PM and collected blood earth sample and blood. On being cross examined, with reference to his statement that Devender was interrogated at the spot and they had searched for accused Binny and Balbir, he stated: „Devender did not tell the IO in my presence, the names of persons, who had stabbed Satish Kumar….. IO did not record the statement of Devender in my presence at the spot.’ On being cross examined, as to in which vehicle the IO and Devender went to the hospital, he Crl. A. No.165/2001 Page 17 of 29 replied: „IO and Devender had gone in TSR to the hospital, which TSR was brought by Devender.’ 27. Const.Rohtash Kumar PW-6 deposed that on 27.7.1991 he was posted as the Duty Constable in Hindu Rao Hospital and at around 8:50 PM, a constable whose name he did not remember, brought an unknown injured in the hospital. A baniyan (vest) and a shirt was handed over by the doctor to him, which in turn, he handed over to the IO, vide memo Ex.PW-6/A. 28. ASI Gopal Ram PW-19 deposed that on 27.7.1991 he was on emergency duty at police post Tis Hazari Courts and at 8:30 PM received DD No.32 regarding the incident in question and along with Const.Shahji John and Const.Suresh Kumar he reached the place of the incident near Chamber No.279 and saw a person lying near the chamber with blood all over. He asked Const.Shahji John to bring a TSR. He immediately brought a TSR in which the injured was removed to Hindu Ram Hospital with Const.Shahji John. He deposed further: „After sending injured