Crl.A.Nos.75, 543, 151 & 214/2001 Page 1 of 53 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 17thAugust, 2009 Judgment Delivered On: 16th September, 2009 + CRL.A. 75/2001 JOGINDER ..... Appellant Through: Ms. Anu Narula, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 543/2001 VIJAY ..... Appellant Through: Mr. Sumeet Verma, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 151/2001 SHAMIM ..... Appellant Through: Ms. Anu Narula, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 214/2001 SURJIT SINGH ..... Appellant Through: Ms. Anu Narula, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate Crl.A.Nos.75, 543, 151 & 214/2001 Page 2 of 53 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. Vide impugned judgment and order dated 19.01.2001 the appellants; Vijay, Shamim @ Munna, Surjit Singh and Joginder have been convicted for the offence of having murdered Devender (hereinafter referred to as the “Deceased”). For which offence, vide order dated 22.1.2001 they have been sentenced to undergo imprisonment for life and pay fine in sum of Rs.1,000/- each; in default to undergo simple imprisonment for 2 months. Additionally, appellants Joginder and Vijay, have been convicted for the offence of having attempted to cause culpable homicide not amounting to murder qua Durgpal, the father of the deceased, for which offence they have been sentenced to undergo rigorous imprisonment for three months and pay a fine in sum of Rs.1,000/- each; in default to undergo simple imprisonment for 2 months. Appellant Surjit Singh has also been convicted for the offence of having unlawfully possessed a knife, for which Crl.A.Nos.75, 543, 151 & 214/2001 Page 3 of 53 offence he has been sentenced to undergo rigorous imprisonment for three months and pay a fine in sum of Rs.1,000/- each; in default to undergo simple imprisonment for 2 months. 2. Criminal law was set into motion when police received an information that a person has been stabbed with a knife at a house bearing Municipal No.B-I/34, Raghubir Nagar, New Delhi. 3. On receiving the aforesaid information, ASI Gangaram PW-12, reached the spot where he saw appellant Vijay in an injured condition. ASI Gangaram PW-12, removed appellant Vijay to DDU Hospital where his MLC was prepared. We note that on MLC Ex.DW-1/1 of appellant Vijay, following was recorded:- “....Name of relative or friend ASI Gangaram PCR .... Date and hour of arrival 7/11/97 (10pm) ..... L/E CLW (4 cm long) just above occipital region, in the centre, vertically placed Swelling (7x6 cm) in rt paritetal region Swelling and tenderness of latnasal wall Sign of old blood clot present in both nostril No sign of active bleeding.....” Crl.A.Nos.75, 543, 151 & 214/2001 Page 4 of 53 4. In the meantime, SI Swadesh Prakash PW-14, accompanied by Const.Vinod Kumar PW-1, reached the spot and on learning that Devender who was stabbed with a knife has been removed to DDU Hospital, proceeded to DDU Hospital where they were informed that the deceased is unfit for making a statement as noted in the MLC Ex.PW-10/A of the deceased. We note that on MLC Ex.PW-10/A of the deceased, following is recorded:- “...Name of relative or friend...B/by Ravinder Kumar Brother .... Date and hour of arrival...7/11/97....9.30 PM......” 5. At the hospital, SI Swadesh Prakash PW-14 and Const.Vinod Kumar PW-1, met Durgpal PW-6, the father of the deceased, who claimed to have witnessed the incident in question. Durgpal PW-6, was also medically examined at DDU Hospital. We note that on MLC Ex.PW-10/B of Durgpal, following is recorded:- “Name of relative or friend...Self.....Date of examination....7/11/97 at 11.40 PM Date and hour of arrival....7/11/97 11.40 PM .....ORTHO NOTES Patient (case) absconded from the casualty Crl.A.Nos.75, 543, 151 & 214/2001 Page 5 of 53 ..... L/E- 1) Swelling and tenderness of the left thumb 2) Abrasion seen on the left knee 3) Abrasion on the Rt.arm 4) Abrasion on the Rt parietal regions of scalp.....” 6. Since Durgpal claimed to have witnessed the incident in question, SI Swadesh Prakash PW-14, recorded his statement Ex.PW-6/A and made an endorsement Ex.PW-3/B thereon, and at around 10.50 PM forwarded the same through Const.Vinod Kumar PW-1, for registration of an FIR. Const.Vinod Kumar took Ex.PW-3/B to the police station and handed over the same to HC Satyavan PW-3, who recorded the FIR No.942/97, Ex.PW- 3/A. 7. In his statement Ex.PW-6/A, Durgpal stated that he resides in house bearing Municipal No.B-1/34, Raghubir Nagar, New Delhi with his family. Tonight, at around 8.15 PM he was having dinner at his house when someone informed him that his son is quarrelling with someone on the road outside his house. Along with his wife he went to the road where they met Devender. Upon making enquiries, Devender told him that Munna and his associates had threatened him with a katta on the eve of Diwali and that today also they quarrelled with him. He brought Devender to the house. After about 15-20 minutes Crl.A.Nos.75, 543, 151 & 214/2001 Page 6 of 53 when they were standing on a street outside their house, four boys, one of whom was Vijay s/o Jwala Rai r/o B-2 133/134 Raghubir Nagar village Virpur Police Station Radhopur District Vaishali Vihar and another boy Munna s/o Rafiq R/o B-I 21 Raghubir Nagar village Virla District Aligarh UP came there. That he does not know the names and residential addresses of the other two boys, but he can recognize them. The said boys were having lathis in their hands. He asked as to what is the matter, upon which Vijay and another boy started assaulting him with the lathis which they were carrying in their hands. His son Devender was standing behind his back. Munna and another boy caught hold of his son and gave knife blows in the stomach of the deceased. He cried for help upon which number of persons gathered there. The persons gathered at the spot apprehended Vijay whereas other three boys managed to escape from there. Thereafter he removed his son to DDU Hospital in a TSR. He also suffered injuries in his hand and head. Vijay, Munna and their associates have caused hurt to him and his son with knives and lathis with an intention to kill them. Vijay was beaten by the people who had gathered at the spot. An action be taken against the said persons. 8. After obtaining the MLC‟s Ex.PW-10/A and Ex.PW-10/B of the deceased and Durgpal, SI Swadesh Prakash PW-14, went to Crl.A.Nos.75, 543, 151 & 214/2001 Page 7 of 53 the place of occurrence. SI Swadesh Prakash prepared the rough site plan, Ex.PW-14/A of the place of occurrence; recording therein, at points „A‟ and „B‟, the spots where the appellants quarrelled with the deceased and his father and where the deceased was stabbed with a knife. 9. On the next day i.e. 08.11.1997 the deceased succumbed to his injuries at DDU Hospital. The body of the deceased was transferred to the mortuary of DDU Hospital where Dr.L.K.Barua PW-8, conducted the post-mortem and gave his report Ex.PW-8/A which records following injuries on the person of the deceased:- “1. Stitched wound in midline vertically and length 23 cm long. 2. Another stitched wound left side abdomen. 7 cm long. 3. Incised wound left flank abdomen. Size 2.6 cm 4. One rubber drainage tube left flank abdomen. 5. Stitched wound left lower lateral chest. Size 6.5 cms. 6. 1/ wound left forearm 3 cm x 2 cm. 7. 1/ wound left elbow back 9 cm x 3 cm 8. 1/w left thigh back 4.7 cm x 1 cm 9. Stitched wound rt ankle 3 cm. 10. Stitched wound rt para umbilical area 1.3 cm” 10. He opined that injuries No.(1), (2) and (4) were surgical insertions. He further opined that the other injuries were ante- Crl.A.Nos.75, 543, 151 & 214/2001 Page 8 of 53 mortem in nature and caused by a sharp-edged weapon. It was opined that injury No.(3) was sufficient to cause death in the ordinary course of nature; and that the other injuries were collectively sufficient to cause death in the ordinary course of nature. The cause of death was opined to be haemorrhagic shock resulting from the injuries. 11. After the post-mortem, Dr.L.K.Barua handed over the blood stained clothes of the deceased to Const.P.P.Verghese PW-11, Duty Constable, DDU Hospital, who in turn handed over the same to SI Swadesh Prakash PW-14, vide memo Ex.PW- 11/A. Dr.L.K.Barua also handed over the blood sample of the deceased on a gauze to SI Rajinder Singh PW-9, who seized the same vide memo Ex.PW-1/E. 12. On the same day i.e. 08.11.1997 the investigation of the case was taken over by Inspector Rajender Prashad PW-15. 13. The statement Mark DA of a friend of the deceased; namely, Mohan Lal PW-7, who also claimed to have witnessed the incident was recorded under Section 161 Cr.P.C. wherein he also indicted the appellants as the assailants of the deceased. Crl.A.Nos.75, 543, 151 & 214/2001 Page 9 of 53 14. Since the two eye-witnesses; namely Durgpal PW-6 and Mohan Lal PW-7, had indicted the appellants of having murdered the deceased, the police set out to apprehend them. 15. On 10.11.1997 Inspector Rajender Prasad PW-15, arrested appellants Shamim and Vijay from their residences in the presence of Durgpal PW-6 and Mohan Lal PW-7. The appellants were interrogated and their confessional statements were recorded. We need not note the contents of their confessional statements inasmuch as the same are completely inadmissible in evidence as they admit of guilt. We note that no recovery was effected nor was a fact discovered by the police pursuant to the said statements made by appellant Shamim and Vijay. 16. On the same day i.e. 10.11.1997 Inspector Devinder Singh PW-2, prepared the site plan to scale Ex.PW-2/A of the place of occurrence; at the instance of Inspector Rajinder Prasad PW-15. 17. On 12.11.1997 Inspector Rajinder Prasad PW-15, arrested appellant Surjit from his residence. On being interrogated by Inspector Rajinder Prasad PW-15, in the presence of SI Swadesh Prasad PW-14 and Const.Vinod Kumar PW-1, appellant Surjit made a disclosure statement Ex.PW-1/A Crl.A.Nos.75, 543, 151 & 214/2001 Page 10 of 53 wherein he confessed to have murdered the deceased and stated that he can get recovered the knife used by him for murdering the deceased. Pursuant thereto, he led the aforesaid police officers to a park near his residence and got recovered a knife from underneath some bricks which were lying at the said park. The said knife was seized vide memo Ex.PW-1/B. Inspector Rajinder Prasad PW-15, prepared the sketch of the said knife; being Ex.PW-1/C. 18. On the intervening night of 14/15.11.1997 Inspector Rajinder Prakash PW-15, arrested appellant Joginder from his house. Appellant Joginder took out a lathi from underneath a cot lying in a room of his house and handed over the same to Inspector Rajinder Prakash PW-15, who seized the same vide memo Ex.PW-4/C. 19. In the month of January 1998, applications were filed by the Investigating Officer before the court of Metropolitan Magistrate for conduct of Test Identification Proceedings of appellants Surjit and Joginder. S.S.Handa PW-13, Metropolitan Magistrate, conducted the TIP of the said appellants and prepared the records Ex.PW-12/A and Ex.PW-12/B in said regard. The records Ex.PW-12/A and Ex.PW-12/B notes that appellants Surjit and Joginder refused to participate in the TIP Crl.A.Nos.75, 543, 151 & 214/2001 Page 11 of 53 proceedings on the ground that they were already shown to the witnesses. 20. The seized materials; viz. the clothes and blood sample of the deceased, vest and blood sample of appellant Vijay and the knife recovered from appellant Surjit were sent to FSL for serological examination. Vide FSL reports Ex.PW-15/A, it was opined that human blood was detected on the underwear of the deceased, group whereof could not be determined; that human blood of group „A‟ was found on the vest and pant of the deceased; that blood group of the deceased was „A‟; that human blood was detected on the knife recovered at the instance of appellant Surjit, group whereof could not be determined and the blood sample of appellant Vijay had putrefied and therefore no opinion could be given about the same. 21. From the narrative of the investigation, it is apparent that the prosecution relied upon the testimony of Durgpal PW-6 and Mohan Lal PW-7, the two eye-witnesses; the disclosure statement of appellant Surjit and the recovery of the knife at his instance; the recovery of lathi from the possession of appellant Joginder; the report of the Serelogist with respect to the blood group of the deceased and that human blood of same group detected on the clothes of appellant Vijay to bring Crl.A.Nos.75, 543, 151 & 214/2001 Page 12 of 53 home the guilt of the appellants. Needless to state, the motive projected by the prosecution for the crime was the quarrel which had taken place between the deceased and appellants i.e. past enmity. 22. Charges were framed against the appellants for having committed an offence punishable under Section 302/34 IPC. Additionally, a charge was framed against appellants Vijay and Shamim for having committed offence punishable under Section 308/34 IPC. A charge was also framed against appellant Surjit for having committed offence punishable under Section 27 of Arms Act. 23. At the trial, the prosecution examined 15 witnesses. 24. Ignoring the testimony of few formal police witnesses who deposed to the receipt of various articles in the maalkhana and further movement thereof to FSL, we note the testimonies of the other witnesses of the prosecution. 25. Const.Vinod Kumar PW-1, deposed that he participated in the investigation of the present case on 07/08.11.1997. He took the endorsement Ex.PW-3/B prepared by SI Swadesh Prakash PW-14, to the police station for the purposes of registration of an FIR. A knife was recovered at the instance of appellant Surjit in his presence. Crl.A.Nos.75, 543, 151 & 214/2001 Page 13 of 53 26. ASI Gangaram PW-12, deposed that on 07.11.1997 at about 9.10 P.M. he reached the place of occurrence where he saw appellant Vijay lying in an injured condition. He removed appellant Vijay to DDU Hospital in a PCR van. 27. Inspector Devender Singh PW-2, deposed that the site plan to scale Ex.PW-2/A of the place of occurrence was prepared by him under the instructions of Inspector Ravinder Prakash. HC Satyavan PW-3, deposed that the FIR Ex.PW-3/A was recorded by him. Dr.L.K.Barua PW-8, deposed that the post-mortem report Ex.PW-8/A of the deceased was prepared by him. SI Rajinder Singh PW-9, deposed having handed over the blood sample of the deceased to Investigating Officer vide memo Ex.PW-1/E. Const.P.P.Verghese PW-11, deposed having handed over the clothes and blood sample of the deceased and the vest and the blood sample of appellant Vijay to the Investigating Officer vide memos Ex.PW-11/A and Ex.PW-11/DA respectively. JC Vashist PW-10, Record Clerk, DDU Hospital, deposed that the MLCs Ex.PW-10/A and Ex.PW-10/B were prepared by Dr.Ravindra Kumar and Dr.Sanchita respectively and that he can identify their signatures on the said MLCs. 28. Durgpal PW-6, the father of the deceased, deposed on the lines of his statement Ex.PW-6/A. He deposed that appellants Joginder and Vijay had assaulted him with the Crl.A.Nos.75, 543, 151 & 214/2001 Page 14 of 53 lathis. Appellant Shamim caught hold of the deceased and appellant Surjit had given knife blows to the deceased. Appellant Vijay was arrested by the police in his presence. In other words, the two boys whose names were not disclosed by him in his statement Ex.PW-6/A, but in respect of whom, he had described the role played and had stated that if produced before him he can identify them, he identified in Court as to who did what. 29. On being cross-examined about the presence of blood on the clothes worn by him at the time of the incident, he replied that his clothes were stained with blood and that the said clothes were not seized by the police. On being questioned about the identity of appellant Joginder, he stated: (Quote) „I came to know about name of Joginder from police paper. I knew Joginder by face...I did not know accused Joginder prior to the incident‟. On being questioned about the place and the time when his statement Ex.PW-6/A was recorded he stated that the said statement was recorded at the hospital at about 10/11 PM on 08.11.1997. On being questioned about his presence at DDU Hospital on the day of the incident, he stated: (Quote) „I was not admitted in hospital. I was only checked. My statement recorded after my check-up.....I did not abscond from hospital. I did not leave hospital on that night at Crl.A.Nos.75, 543, 151 & 214/2001 Page 15 of 53 1 am of 8/11/97.‟ On being questioned about the presence of Mohan Lal, he stated that Mohan Lal was present with him at the time when he removed the deceased to the hospital. On being questioned about the presence of his mother when the incident took place he stated that his mother was not alive at the time of the incident. On being questioned about the presence of Mohan Lal at the time of the incident he stated that Mohan Lal was present at the time of the incident and witnessed the incident in question. On being questioned as to where his wife was standing when the incident took place and where was Mohan Lal standing at the time of the incident he stated: (Quote) „My son was with Mohan Lal outside gali when I met him after hearing about previous incident....Mohan Lal was standing by side of my deceased son. My wife was standing by my side‟. On being questioned about the presence of his other sons Ashok and Ravinder at the time of the incident, he stated: (Quote) „My son Ashok was not there. It is incorrect to suggest that my son Ashok gave beatings to Vijay at that time as result of which he became unconscious. My son Ravinder might have come at the place of incident later on. I cannot say whether my son Ravinder was also there and he gave beating to Vijay.....It is incorrect to suggest that when the accused were passing through the Gali in front of our house. My son Crl.A.Nos.75, 543, 151 & 214/2001 Page 16 of 53 Devender and Ravinder quarrelled with Surjit and when Vijay intervene to pacify the dispute, Davender and Ravinder started him beating and has been falsely implicated. On being questioned about the presence of his son Ravinder at the hospital on the day of the incident, he stated: (Quote) „Ravinder also came to hospital, he did not sign in my presence any hospital paper....It is wrong that my son Ravinder was also at my house and he with me took deceased son to hospital...He came in hospital but, I can‟t tell time of arrival in hospital‟. On being questioned about the time of arrival of the police at the hospital, he stated: (Quote) „Police came at the hospital after half an hour of our reaching there. It must be 10.30/11 P.M. My statement was recorded by the police in the hospital at about 10.30 P.M./11 P.M.‟ On being questioned about the recording of the statement of Mohan Lal, he stated: (Quote) „Statement of Mohan Lal was not recorded in my presence on that day.....Statement of Mohan Lal was recorded at my house on 10.11.97 at 9.30/10 A.M.‟ On being questioned about the conduct of Mohan Lal at the time of the incident, he stated: (Quote) „I can‟t tell if Mohan Lal tried to save my son when he was caught by accused Munna.‟ On being questioned about the exhortation given by appellant Vijay to appellant Surjit to kill the deceased, he stated: (Quote) Crl.A.Nos.75, 543, 151 & 214/2001 Page 17 of 53 „I do not remember whether I stated in any of my statement made before police that Vijay extorted Surjit “Mar Saale Ko”. 30. Mohan Lal PW-7, a friend of the deceased, deposed that on 07.11.1997 at about 8.00 PM he, along with the deceased, was standing in front of a shop when appellants Surjit and Shamim came there and quarrelled with the deceased. Surjit broke a coca-cola bottle and tried to assault the deceased with the same. However, he and other persons intervened and saved the deceased. Surjit and Shamim left. After sometime, the deceased and he started proceeding to the house of the deceased. On the way he saw the appellants. When the deceased and he reached the corner of the street outside the residence of the deceased, they met the father of the deceased who made enquiries from them. The deceased told his father that appellant Shamim and his associates had threatened him with a katta on the eve of Diwali. At that point of time, the accused came. Appellants Joginder and Vijay were carrying lathis in their hands while Surjit and Shamim were concealing something in their armpits. The father of the deceased asked the appellants as to what the matter was, upon which appellants Joginder and Vijay assaulted him with lathis. Appellant Shamim caught hold of the deceased and appellant Vijay exhorted Surjit to kill the deceased by saying Crl.A.Nos.75, 543, 151 & 214/2001 Page 18 of 53 „Mar Saale Ko‟. Pursuant thereto, Surjit gave 2-3 knife blows in the stomach of the deceased. On hearing the noises, persons from the public gathered there. Along with the father of the deceased, he took the deceased to DDU hospital. Vijay was apprehended and beaten by the persons gathered at the spot. Appellants Shamim and Vijay were arrested by the police in his presence. The father of the deceased was also present at the time of arrest of appellants Shamim and Vijay. 31. On being questioned about the lathis possessed by the appellants at the time of the incident, he stated: (Quote) „One lathi was lying at place of incident. It was left by accused there. I can‟t say whether that lathi was taken into possession by police or not‟. On being questioned about the presence of blood on the clothes worn by him at the time of the incident, he stated that his clothes were stained with blood and that the said clothes were not seized by the police. On being questioned about the admission of Durgpal in DDU Hospital on the day of the incident, he stated that Durgpal was not admitted in DDU Hospital. On being questioned about the presence of brother of the deceased Ravinder at DDU hospital on the day of the incident, he stated: (Quote) „Ravinder came to hospital after 10/15 minutes of reaching there. He also remained there throughout. I alongwith Durgpal admitted Crl.A.Nos.75, 543, 151 & 214/2001 Page 19 of 53 Devender in hospital.‟ On being questioned about the identity of the appellants, he stated: (Quote) „I know all accused present in court. I know all accused before date of incident. I have seen them on road. However, I did not meet them ever. Names of accused were told by my friend Sandeep. This fact was disclosed by him after incident when Sandeep and Surjit taking liquor. This fact told by my friend Sandeep to me. This fact was told to me after ½ day of incident. I knew Munna before incident by name but names of other were revealed to me after incident.‟ On being questioned about the presence of the mother of the father of the deceased, he stated that the mother of the father of the deceased was accompanying the father of the deceased at the time when he met him and the deceased at the street outside the house of the deceased. On being questioned about the presence of the brothers of the deceased Ravinder and Ashok at the