Crl A. 821 of 2001 Page 1 of 37 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A. No.821/2001 % Date of Decision: 24.12. 2010 Jai Singh & Anr. …. Appellants Through Ms. Ritu Gauba, Advocate Versus The State (Delhi Admn) …. Respondent Through Mr.Jaideep Malik, APP CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR.JUSTICE S.L.BHAYANA 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. The appellants, Jai Singh and Smt.Savitri Devi, husband and wife, have challenged their conviction by judgement dated 11th October, 2001 under Sections 302/34 of Indian Penal Code for murdering Rakesh Kumar and their sentence to life imprisonment and a fine of Rs.1,000/- each and in default to undergo rigorous imprisonment for one year by order dated 12th October, 2001 in Sessions Case No.350 of 1996, titled as „State v. Jai Singh & Another‟ Crl A. 821 of 2001 Page 2 of 37 arising from the FIR No.434 of 1992, under Sections 307/302/342/34 of the Indian Penal Code, PS S.P. Badli. 2. According to the prosecution, a vacant piece of land at the back of the house of the appellants, which was also behind the house of Rakesh, deceased and his family members had led to disputes between the appellants and the family of Rakesh, the deceased. The disputes were going on for some time and on 27th October, 1992, appellant No.1 allegedly went to the house of Rakesh, deceased, and asked him to settle the disputes amicably. At the instance of the appellants, Rakesh, the deceased allegedly accompanied appellant No.1 to his house. 3. At about 6/6.15 pm, 10 minutes after Rakesh had left for the settlement of disputes with appellant No.1, PW-8 Sh. Mahender Singh the elder brother of Rakesh heard his voice saying “Bachaao Bachaao”. According to PW-8 Sh. Mahender Singh, he went to the house of appellant No.1 and he found the doors of the house closed from inside. He also heard the appellants shouting loudly and saying that they would eliminate Rakesh. Sh. Mahender Singh, therefore, Crl A. 821 of 2001 Page 3 of 37 pushed open the door and witnessed the appellants holding the lathies in their hands and Rakesh lying in a pool of blood. According to him, on account of fear he could not muster courage to extricate his brother from the clutches of the appellants and he went to make a call to the police station from a PCO located at a distance of about one and half kilometers on foot. When he had gone to call the police from the PCO, a PCR Van came and removed Rakesh to the hospital. Later on Mahender Singh also went to the hospital where his brother succumbed to his injuries. An FIR No.434 of 1992 was registered. 4. On 27th October, 1992 the police challaned the appellants for illegally confining Rakesh in their house and for attempt to murder him by causing injuries on him. The injuries caused to the deceased resulted into his death in the hospital on 28th October, 1992 and so the appellants were challaned under Sections 307/302/342/34 of the Indian Penal Code. 5. The appellants pleaded not guilty and claimed trial. During the trial, the prosecution examined 14 witnesses including doctor Crl A. 821 of 2001 Page 4 of 37 L.T.Ramani, PW-1 who had conducted the post mortem on 28th October, 1992 and noticed 19 external injuries as under: EXTERNAL INJURIES 1. Stitched wound 5 cm long, vertically placed on the right side of fore-head area/frontal area. 2. Stitched wound 1 cm long transversally placed on the right tempo region with abrasion around. 3. Stitched would 1 cm long just below the right eye. 4. Defused bruising over the lips. 5. Stitched wound on the muscous surface of both limbs 1 cm and 1.5 cm long. 6. Stitched wound 2.5 cm long on the right side of chin. 7. Bruise 6 cm x 5 cm with abrasion on the right temporal region. 8. Abrasion 2.5 cm x 2.5 cm on the epigastric region of abdomen. 9. Abrasion 2.05 cm x 1 cm on the right lumber region of abdomen. 10. Abrasion 3 cm x 2 cm on the top of right shoulder. 11. Abrasion 5 cm x 5 cm on the left hip region. 12. Abrasion 4 cm x 2 cm on the right knee. 13. Multiple abrasion scattered on the front of left knee. 14. Lacerated 1 cm x 0.5 cm with abrasion on the left leg shin. Crl A. 821 of 2001 Page 5 of 37 15. Defused swelling on the back of rt. Hand with abrasion 2 cm x 1 cm on the dorsem of wrist and 6 cm x 4 cm on the dorsem of hand. 16. Abrasion 1 cm x 1 cm on the right elbow. 17. Abrasion 2 cm x 1 cm on the lateral surface of left elbow. 18. Irregular ligature marks present horizontal on the right postero-lateral aspect of neck of 2 and a half x 1/2", intermittently seen on the left postero-lateral aspect of neck. 19. Small incised wound 1 cm muscle deep on the back at the level of 8th thoracic vertibra. 6. PW-1 had opined that the injuries were ante mortem and injury No.19 on the back of the chest was caused by sharp penetrating weapon and injury No.18 was possible with some rough ligature material whereas all other injuries were caused by blunt object force. The Doctor had also opined that the injury on the skull was sufficient in the ordinary course of nature to cause death. 7. The post mortem was conducted on 28th October, 1992 and the death had occurred 6 hours prior to the post mortem and was on account of coma resulting from head injury. There was one stitched wound 5 cms long. Other stitched wounds were of 1 cm and 1.5 cm and other injuries were the abrasions and lacerations. Original post Crl A. 821 of 2001 Page 6 of 37 mortem report was not traceable and, therefore, the photocopy of the post mortem was exhibited as Ex.PW1/A. The prosecution had examined Head Constable Krishan Kumar as PW-3 who was given information by PCR van about a quarrel in the village Khera Kalan and that three persons had been injured. In his statement recorded on 2nd March, 1998 he stated that he had accompanied the PCR van and had removed deceased Rakesh and appellant and one lady Natho to Hindu Rao Hospital. The said witness was not cross examined on that day and his statement was concluded. However, without any request or application by either of the parties, he was recalled for examination when he deposed that condition of Rakesh was very bad when he was taken in the PCR van and he had told HC Krishan Kumar that he was beaten up by accused Jai Singh and Savitri by lathis. This witness was cross examined on 6th July, 2000 after about four months. In his cross examination he denied that on the way to hospital Rakesh was saying that jelly of his own brother had struck him in the back. He also denied that Rakesh was unconscious and could not have given any statement. About not deposing these facts earlier when he was examined on 2nd March, 1998, he stated that he did not remember these facts at the time and, therefore, he had not deposed about the same and had deposed later on about them. Crl A. 821 of 2001 Page 7 of 37 8. Dr. Alexander of Safdarjung Hospital Forensic Science Department was examined as PW-7 who deposed that on 27th October, 1992 he was posted as casualty medical officer when he had examined Mukesh (he referred to Rakesh as Mukesh) who was admitted by Constable Krishan Kumar and at that time he was unconscious. He also opined that most of the injuries were caused by blunt objects. 9. The elder brother of the deceased Rakesh, Sh. Mahender Singh was examined as PW-8 who deposed that the disputed land was behind their house and behind the house of the appellants. He further deposed that Jai Singh had come to his house and had taken his younger brother Rakesh in order to settle the dispute about the concerned land. According to him his brother was beaten by lathis and jelly or such like object and on seeing him the appellant had moved towards him also, which had scared him. Apprehending trouble he ran away and went to PCO and informed the police. When he came back to the house of the appellant, he came to know that his brother Rakesh had already been removed to the hospital by PCR van. According to him his brother expired during the night and his death was declared in the morning. He categorically deposed that two lathis and the blood were lifted from the house of the appellant. Crl A. 821 of 2001 Page 8 of 37 According to him one lady‟s salwar suit was also seized from the spot. In his cross examination he deposed that the settlement of the land was to be arranged with his brother and not with him though he was living jointly. He also admitted that Ram Singh was his elder brother and he was living with him. He deposed that both the appellants were taken in the PCR van with the dead body of Rakesh. He also admitted that the telephone booth was at a distance of 1 or 1½ Kms from the spot and that he had gone running to the telephone booth and it had taken him about 10-15 minutes to reach there and return to the spot. According to him he had telephoned police station Samaipur Badli and he got the number of the police station Samaipur Badli from the booth owner. He disclosed that the distance between the place of incident and police station Samaipur Badli is about 6-7 kms. 10. PW-8 Mahender Singh denied that his brother Rakesh was friendly with Jai Kumar and Raj Kumar, however, he admitted that Raj Kumar was killed in an encounter with police on 6th January, 1993. He also admitted that he had read in the newspaper that Raj Kumar was accused of murdering Inspector Pratap Singh Rana of Delhi Police. He denied the suggestion that on 27th October, 1992 at about 6.30 PM his brother deceased Rakesh with Jai Kumar and Raj Crl A. 821 of 2001 Page 9 of 37 Kumar had trespassed in the house of the appellants and had tried to kill Jai Singh. However, he admitted that a cross case was pending where his deceased brother and his friends Jai Kumar and Raj Kumar were the accused persons and the appellant No.1 was the complainant. 11. SI Ramesh Narang who was under suspension was examined as PW-14, and he admitted that at the spot he had found three injured persons, the appellants and deceased Rakesh who were removed to the hospital in the police van. According to him blood samples were lifted from two places i.e room and the verandah. He also deposed about finding a blood stained rope behind the trunks in the house. He further deposed about finding two lathies and one lady‟s suit in the house which was seized and sealed vide memo Ex. PW14/G. The said police witness during cross examination admitted that he was under custody and earlier he was arrested in a case under Section 451 and 509 of IPC. At the time of his cross examination he was in custody in a case under Section 304 of IPC. He denied the suggestion that nothing was recovered from the house of the appellants and that the recoveries were planted by him. Crl A. 821 of 2001 Page 10 of 37 12. In the statement under Section 313 of the Criminal Procedure Code, the appellant No.2 stated that there is only one door in the house and so there was no question of closing the door from inside. She denied that Rakesh the deceased was tied with the rope and was beaten up by lathis. She deposed that she and her husband are innocent as the deceased and his brothers were aggressors and they wanted to kill them after trespassing in their house. Appellant no.1 Jai Singh in his statement under Section 313 of the Criminal Procedure Code also deposed that he and his wife are innocent and the deceased and his brothers were aggressors and they wanted to kill them after committing a trespass in their house. The witness examined by the appellants as defence witness brought the record of FIR No.459/1992 registered under Section 308/452/34 of IPC P.S. Samaipur Badli and proved the copy of the FIR as exhibit Ex. DW1/A. 13. On the basis of the evidence in this case and the record of FIR No.459/1992 under Section 308/452/34 which was registered against the deceased and his accomplices, Jai Kumar and Raj Kumar who were killed in police encounters, it is contended by the learned counsel, Ms. Gauba that the appellants had acted on account of their right of private defence as deceased Rakesh and his friends Raj Crl A. 821 of 2001 Page 11 of 37 Kumar and Jai Kumar had trespassed in their house with a view to kill them and even had fired at them. Relying on the copy of the case diary produced on the record she has pointed out that three blank cartridges with the inscription .8 MM were recovered and another blank cartridge of .12 bore was also recovered. She has also contended that though the allegation of the prosecution is that the appellants had attacked the deceased with a lathi and a jelly or a like substance, however, neither the jelly nor any article similar to jelly or having a sharp edge which could have caused a sharp edged injury was recovered from their house. Reliance has also been placed on the post mortem report indicating that the deceased had suffered an injury at the back which was 1 cm deep at the level of eighth thoracic vertebra caused by a sharp penetrating weapon and not by the lathis. 14. According to the learned counsel the right of self defence need not be taken by the appellants specifically and she placed reliance on Satya Narain Yadav vs. Gajanand and Anr. AIR 2008 SC 3284. According to her the right of self defence can be established on the preponderance of probabilities. To augment her argument that deceased Rakesh with his friends had been the aggressors and had come to their house, she relied on the FIR No.459/1992 which was Crl A. 821 of 2001 Page 12 of 37 registered on a later date of 15th November 1992. She contended that as Rakesh Kumar died and his two accomplices also died in police encounter, one of whom was even accused of murdering a police Inspector, the case had abated and in the circumstances she requested that this Court should exercise its power and call for the case relied on and case diary of FIR No.459/1992. 15. The learned Additional Public Prosecutor who had the record and the case diary of FIR No.459/1992 after perusing the same very fairly conceded that the case diary records the statement of Sh. Raj Kumar stating that due to anger he had attacked with jelly at Jai Singh and by chance he had injured Rakesh during attack and he succumbed to his injuries later on. He also stated that he was having enmity over a piece of land situated behind the house of Jai Singh. The FIR No.459/1992 was registered pursuant to complaint of Smt. Nathu Devi, wife of Sh. Sheo Chand under Section 308/452/34 of IPC who had disclosed that she along with her son Jai Singh and his wife Savitri Devi and children were present in her house when suddenly Rakesh son of Har Lal and his accomplices Raj Kumar and Jai Kumar both sons of Chote Lal who were also residents of the same village entered their house using abusive language and attacked her son Jai Singh with lathis and jelly as her family is Crl A. 821 of 2001 Page 13 of 37 having a dispute over a piece of land at the back of their house. She disclosed that she ran and couldn‟t save her son from getting injured. She saw deceased Rakesh having a lathi whereas Jai Kumar had a jelly and Raj Kumar was having a pistol in his hand. According to her she along with her daughter-in-law Savitri Devi sustained injuries and accidentally jelly of Jai Kumar had hit Rakesh in his back and he had fallen on the ground in the verandah of the house. 16. This Court had directed the learned Additional Public Prosecutor to file the copies of the police file and case diary of FIR No.459/1992 under Section 308/452/34 of IPC dated 15th November, 1992 P.S. Samaipur Badli, Delhi. The copies were filed, which were taken on record and perused, especially the alleged statement of Jai Kumar that on account of anger he had attacked Jai Singh with jelly and by chance during one of his attack he had injured Rakesh with the jelly. The learned counsel, Ms. Gauba also contended that the incident was reported by the appellants to police on number 100 which is substantiated from the statement of PW-10 HC Usha No.1179 regarding the receipt of information on telephone about the incident of stabbing. However on the complaint of mother of the appellants, the FIR was not registered and it was registered Crl A. 821 of 2001 Page 14 of 37 only with the intervention of the higher police officials on 15th November, 1992. 17. The learned counsel for the appellant, Ms. Gauba has also relied on the report dated 20th July, 1993 of Central Forensic Science Laboratory, Central Bureau of Investigation stipulating receipt of parcel Nos.1 to 7 containing one .12 bore fired cartridge case marked C/1 and three .315/8 mm fired cartridge cases marked C/2 to C/4 which were sent in connection with FIR No.434/1992 dated 28th October, 1992 under Section 307/342/34 P.S. Samaipur Badli to contend that the blank cartridges were recovered from the house of the appellant and could be recovered only if the guns/pistols were fired by the deceased and his friends. The learned counsel relying on the charge sheet in the case FIR No.459/1992 has also drawn our attention to MLC, X-Ray report of Jai Singh and Nathu. According to her these reports have not been produced deliberately by the respondent nor was constable Naresh examined to whom the blank cartridges were given by a boy to suppress the relevant material and implicate the appellants. 18. The learned counsel for the appellants has very emphatically contended that the version of the solitary witness PW-8 brother of Crl A. 821 of 2001 Page 15 of 37 the deceased is highly unreliable and incredulous and should not be relied on to inculpate the appellants. According to her he has made grave contradictions in his testimony and his conduct is not natural. In the first information report it was disclosed that the appellants were holding lathis in their hands whereas in the Court PW-8 had deposed that the deceased Rakesh was beaten with lathi or jelly or such like object. According to her this is a vital inconsistency and contradiction which makes his statement unreliable. According to her he had also not witnessed the incident and his version that he intimated the police from the booth after taking the phone number of the police, is also not substantiated as the information was received at police number 100 pursuant to which DD No.20 was recorded and it has not been established that a complaint was registered pursuant to the alleged call made by Mr. Mahender Singh, PW-8 brother of the deceased to the police station Samaipur Badli. According to the learned counsel as it has been established beyond all reasonable doubt that the appellants had also received injuries, consequently the appellants had a grave apprehension and if they had acted in self defence with lathis, they cannot be inculpated in the facts and circumstances. Relying on AIR 2009 SC 1262, Ravishwar Manjhi & Ors v. State of Jharkhand the learned counsel contended that if the accused had sustained injuries and they were also removed to the Crl A. 821 of 2001 Page 16 of 37 hospital and their MLCs were recorded which is apparent from the charge sheet of FIR No.459/1992 then it casts a duty on the prosecution to explain the same and in its absence the plea of the appellant for entitlement of private defence would deserve serious consideration. 19. The learned counsel, Ms. Ritu Gauba relying on AIR 2008 SC 3284, Satya Narain Yadav v. Gajanand & Anr regarding the right of private defence contended that the appellants were not required to raise a specific plea and the Court can consider its availability even in absence of a specific plea by the appellants. In any case, according to her it has even been put to the witnesses of the prosecution, with regards to what has been categorically stated by the appellants in their statement under Section 313 of the Criminal Procedure Code that the deceased and his two companions Raj Kumar and Jai Kumar who were killed in an encounter with the police were aggressors and that they had trespassed in the house of the appellants and attacked them by lathis, jelly and guns and that both the appellants had acted only in self defence. The learned counsel also asserted that though the burden of proof of self defence lies on the appellants, however, the burden of proof of self defence is not as onerous as on the prosecution to prove the guilt of the appellants Crl A. 821 of 2001 Page 17 of 37 beyond reasonable doubt as the right of self defence can be established even on the basis of the preponderance of probabilities. According to her in order to find whether right of private defence is available or not what is to be seen is whether the injuries were received by the accused; imminence of the threat to their safety and in the circumstances whether the appellants had time to take recourse to public authorities. According to her all these factors are present and have been established on the basis of record in the case of the appellants and, therefore, they are entitled to the plea of self defence and are liable to be acquitted. It is further submitted that since the aggression on the appellants was in their own house and they had used only lathis whereas the deceased and his companions Raj Kumar and Jai Kumar had come with pistols, jelly and lathis it cannot be inferred that the appellants have used the right of self defence as a weapon of retribution or aggression though there have been disputes in respect of land at the back of their houses. The learned counsel has also relied on AIR 1975 SC 1674, Puran Singh and Ors v. The State of Punjab to contend that in the facts and circumstances of the present case, appellants had not used more force than what was necessary and the deceased and his friends were the aggressors as they had come and trespassed in their house with guns and deadly weapons whereas the appellants had tried to Crl A. 821 of 2001 Page 18 of 37 defend themselves only with lathis and though the deceased died of a wound on his head which was on account of a blunt weapon, however, he was also injured by his own friend Jai Kumar, which was admitted by him and which fact has also been established from the post mortem