Crl.A.126/2001 Page 1 of 24 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 05.03.2009 Judgment delivered on: 18.03.2009 + CRL.A. No.126/2001 ANURAG & ANR. …Appellants Through : Mr. K.B.Andley, Sr. Adv. with Mr. M.L.Yadav and Mr. Mohit Mathur, Advocates 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? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. On 28.12.1995, at 9:00 PM the duty officer at PS Harsh Vihar recorded DD No.21, that a boy named Brijesh, resident of H.No.29, Mandoli Extension, near Nand Nagri had been stabbed with a knife. 2. Accompanied with Const. Siri Kishan PW-9, SI Jit Singh PW-20, reached the spot. Simultaneously, other police officers, namely, Inspector Rajbir Sharma PW-21 and Const. Raj Kumar PW-15, who had also received the information, reached the spot. On learning that the injured person has been removed to GTB Hospital, PW-21, PW-20 and Crl.A.126/2001 Page 2 of 24 PW-15 proceeded to the hospital where they were informed that the injured person whose name is Brijesh (hereinafter referred to as the “Deceased”) had been declared brought dead as noted in MLC Ex.PW- 18/A. It may be noted that the MLC records that Brijesh had been brought to the hospital by Pyare Lal. 3. At the hospital, the police officers met Jagwati PW-2, the mother of the deceased, who claimed to have witnessed the incident. Inspector Rajbir Sharma PW-21, recorded the statement Ex.PW-2/A of Jagwati and made an endorsement Ex.PW-21/A thereon, and at around 10.20 P.M. and handed over the same to Const. Raj Kumar PW-15, for registration of an FIR. PW-15 took Ex.PW-2/A to the police station and handed over the same to SI Raj Kumar PW-19, who recorded the FIR No.645/1995, Ex.PW-19/A, at 11.20 P.M. on 28.12.95. 4. In her statement Ex.PW-2/A, Jagwati stated that she resides in Mandoli Extension with her family and is a housewife. That she is the mother of three boys and one girl. That Brijesh aged 21 years is her eldest son and works as a clerk in Tis Hazari Courts. That he was having a love affair with one Rekha, daughter of Sobraj, who resides in their neighbourhood. That around 4-5 months ago, on learning about the said affair, Sobraj and his son Anurag quarreled with her family and also threatened to kill the deceased. That despite the objections raised by the family of Rekha, the deceased and Rekha kept on exchanging love letters, which infuriated the family of Rekha. That today evening i.e. on 28.12.95, the deceased had returned home Crl.A.126/2001 Page 3 of 24 from work. At around 8.40 P.M. under influence of liquor Sobraj started abusing them while standing on the street between their respective houses. The deceased requested Sobraj to stop the abuses. At that, Sobraj started hitting the deceased. That she tried to save the deceased, but Sobraj caught hold of the deceased from behind and asked his son to bring a knife. Thereafter, Anurag brought a knife from his house and inflicted a stab wound on the neck of the deceased. That blood started oozing from neck of the deceased. He became unconscious and fell on the ground. In the meantime, her husband and brother Sunil, came to the spot and removed the deceased, who was in an unconscious condition, to the hospital where he succumbed to his injuries. That Sobraj and his son Anurag had murdered the deceased. That many residents of the neighbourhood had witnessed the incident. That she had also sustained an injury in the said incident. 5. The MLC Ex.PW-16/A of Jagwati PW-2, records that one injury was noted on her left palm and that the said injury was caused by a blunt object. 6. Thereafter, the afore-noted police officers returned to the spot where the crime was committed. PW-21 prepared the site plan, Ex.PW-21/B, recording therein the place at point marked 'A' where the deceased was stated to have been stabbed. Blood sample earth and sample earth control were lifted from the spot and seized vide memos Ex.PW-9/B and Ex.PW-9/A respectively. Crl.A.126/2001 Page 4 of 24 7. Since the police photographer was not available, the services of one Sunil Kumar PW-8, were obtained. PW-8 took 5 photographs being Ex.PW-8/A1 to PW-8/A5. 8. Apart from recording the statement of Jagwati PW-2, the statements of the persons who were instrumental in removing the deceased to the hospital namely, Ganga Ram PW-2, Pyare Lal PW-3, the father of the deceased and Chandan Chakravarty PW-7, were also recorded. 9. Since the deceased was declared brought dead, his body was sent to the mortuary, where Dr.L.K. Tyagi PW-17, conducted the post- mortem at 2.15 P.M. on 29.12.95 and gave his report Ex.PW-17/A, which records that an incised wound of 11 X 4.5 X 2.5 cms was present over left side and front of the neck of the deceased; that the injury had cut the left side jugular vein carotid artery; that the cause of death was haemorrhage caused by injuries to structures of neck; that the injury was caused by a sharp-edged cutting or stabbing weapon and was sufficient to cause death in the ordinary course of nature. 10. The clothes worn by the deceased were preserved. After the post-mortem the same were handed over by PW-17, to Const. Raj Kumar PW-15, who seized the same vide memo Ex.PW-15/A. 11. Since in her statement Ex.PW-2/A, made to Inspector Rajbir Sharma PW-21, Jagwati had informed that the appellants were the assailants, the police set out to apprehend the appellants. Crl.A.126/2001 Page 5 of 24 12. Appellant Anurag (hereinafter referred to as the “Accused No.1”) was apprehended on the intervening night of 29/30.12.95. He was interrogated by Inspector Rajbir Sharma PW-21, in the presence of SI Jeet Singh PW-20 and Pyare Lal PW-3, the father of the deceased. He made a disclosure statement Ex.PW-3/A confessing to his guilt and stated that he can get recovered the knife with which he had stabbed the deceased as also the T-Shirt which he was wearing at the time of the incident. Pursuant to the disclosure statement accused No.1 led the police party which inter-alia consisted of Inspector Rajbir Sharma PW-21 and SI Jeet Singh PW-20 and were accompanied by Pyare Lal PW-3, to the house of his uncle and got recovered a knife and a red colored blood-stained t-shirt from a room of the house. The knife and t-shirt so recovered were seized vide memos Ex.PW-3/D and Ex.PW-3/E respectively. PW-21 prepared the sketch Ex.PW-21/H of the said knife. 13. Appellant Sobraj (hereinafter referred to as the “Accused No.2”) was apprehended at about 2 P.M. on 30.12.95. 14. The seized materials, namely, the clothes of the deceased, the T-shirt of accused No.1, the knife recovered at the instance of accused No.1 and the blood sample earth and sample earth control seized from the spot were sent to a serologist for a serological test. Vide CFSL Report Ex.PW-1/A it was opined that human blood of 'A' group was detected on the T-shirt of accused No.1, human blood was detected on the knife and blood sample earth, group whereof could not be determined. Crl.A.126/2001 Page 6 of 24 15. Armed with the aforesaid material, a challan was filed, accusing the appellants of having murdered the deceased. Charges were framed against them for having committed offences punishable under Sections 302/34 IPC. Additionally a charge under Section 341 IPC was framed against accused No.2 for wrongfully restraining the deceased. 16. At the trial, apart from examining the police officers who were associated with the investigation of the case, Jagwati, Ganga Ram, Pyare Lal, and Chandan was examined as PW-2, PW-3 and PW-7 respectively. (It may be noted that Jagwati and Ganga Ram have both been numbered as PW-2). 17. Jagwati PW-2, the mother of the deceased, deposed same facts as she has disclosed in her statement Ex.PW-2/A recorded soon after the incident. Pertaining to the manner in which the deceased was removed to the hospital, on being cross examined, she stated that she along with Ganga Ram and Chandan had removed the deceased to the hospital in a three-wheeler scooter. She also stated that some of the love letters exchanged between the deceased and Rekha were burnt one year prior to the incident at the asking of the mother of Rekha and that some of the letters are not traceable and that she had sustained a knife injury on her left palm while trying to save the deceased from the accused persons. 18. Ganga Ram PW-2, deposed that he along with Chandan and Sunil had removed the deceased to the hospital in a three-wheeler scooter. Regarding the presence of Jagwati at the time of the removal of the deceased to the hospital, he first deposed that she was not Crl.A.126/2001 Page 7 of 24 present at the spot but later on deposed that she might have been present at the spot and that he might not have seen her as large crowd had gathered at the spot. Regarding the time of arrival of Jagwati at the hospital, he deposed that Jagwati reached the hospital after 5-7 minutes of their (himself, Chandan and Sunil) arrival in the hospital. Regarding the presence of Pyare Lal, the father of the deceased at the time of removal of the deceased to the hospital, he deposed that he was not present at the spot at that time and had subsequently reached the hospital. 19. Pyare Lal PW-3, the father of the deceased, deposed that on 28.12.95 at about 8.30 P.M. he was returning home from his workplace when he was informed by someone that a quarrel is taking place in his street. That when he reached the corner of his street he saw accused persons running away from the street. That on walking a little ahead in the street, he found that the deceased has been stabbed. That the deceased was being lifted by his wife Jagwati, Chandan and Ganga Ram and that they were putting the deceased in a three-wheeler scooter. That Jagwati, Chandan, Ganga Ram and Sunil removed the deceased to the hospital in the said three-wheeler scooter. That he went to the hospital in a separate three-wheeler scooter. 20. Chandan Chakravarty PW-7, deposed that on 28.12.95 at around 8.30 P.M. he had come out of his house to fetch water from the hand pump when he heard a loud cry. That on turning back he saw that accused No.2 was holding the deceased from behind and Crl.A.126/2001 Page 8 of 24 that accused No.1 was holding a blood-stained knife in his hand. That on seeing him, the two accused persons ran away from the spot. That he, with the help of Ganga Ram lifted the deceased and put him in a three-wheeler scooter. That in the meanwhile Pyare Lal and Dr.Sunil also reached the spot. Regarding the manner in which the deceased was removed to the hospital, he deposed that he, Jagwati, Ganga Ram and Sunil removed the deceased to the hospital. That he sat with the driver of the scooter and Jagwati, Ganga Ram and Sunil sat in the rear portion of the scooter and that the deceased was lying in their lap. That Pyare Lal had reached the hospital in a separate three- wheeler scooter. Relevant would it be to note that on being cross- examined whether his clothes got stained with blood of the deceased, Chandan stated that they did not. 21. Accused No.1 in his examination under Section 313 Cr.P.C. pleaded false implication and denied everything. 22. Accused No.2 in his examination under Section 313 Cr.P.C. pleaded false implication and denied everything. He raised the defence of alibi by stating that he was performing his duty at FCI, Shakti Nagar at the time of the occurrence. 23. Accused No.1 did not lead any evidence in his defence. 24. On behalf of accused No.2, one Const. Chakradhari, one Baldev Singh, one M.K. Bhatnagar and one J.K.Bhatnagar were examined as DW-1, DW-2, DW-3 and DW-4 respectively. Crl.A.126/2001 Page 9 of 24 25. Const. Chakradhari DW-1, Home Guard, Delhi deposed that he was posted at gate no.8, FCI godown, Shakti Nagar on 28.12.95 and that his duty hours were from 4:00 P.M. to 12.00 midnight on that day. That accused No.2 who is a watchman employed with FCI was performing his duty at gates nos. 9 and 10 on that day. 26. Baldev Singh DW-2, a watchman with FCI deposed that he was on double duty on 28.12.95 and his duty hours were from 8.00 A.M. to 4.00 P.M. and 4.00 P.M. to 12.00 midnight on that day. That accused No.2 was also on double duty on that day and that his duty hours were the same as his. 27. M.K.Bhatnagar DW-3, Depot Manager FCI, proved the attendance/duty register Ex.DW-3/DA pertaining to attendance of accused No.2 and Baldev Singh on 28.12.95. He also proved attendance register Mark A pertaining to attendance of Const. Chakradhari on 28.12.95. Being relevant for considering the defence of alibi, his deposition in cross examination may be noted; the same is as under:- “The attendance register of watchman used to remain in the custody of Head Watchman/Shift Incharge. I cannot say the writing in register is of which Head Watchman. Vol. Baldev Singh was the Head Watchman in the shift from 4:00 PM to 12:00 PM (midnight). It is correct that during the day time in shift 8:00 AM to 4:00 PM there used to be more watchmen on duty and night shifts from 12:00 midnight to 8:00 AM and from 4:00 PM to 12:00 midnight there used to be less watchmen on duty. It is correct that in shift from 12:00 PM to 8:00 AM on 28.12.95, 4 persons including one Head Watch were deputed on duty and one of the watchman was not on duty. It is correct that after sl. No. 4 in shift from 12:00 PM (midnight) to 8:00 AM there is a line under Sl No.4 at point A in Ex.DW-3/A. It is correct that there is also foot a line below Sl. No.4 in the shift 4:00 Crl.A.126/2001 Page 10 of 24 PM to 12 midnight at point B. It is correct that the name of Sobraj is mentioned below the line of Sl. No.4. Vol. there are two more names are also mentioned below the name of Sobraj, because three persons were on off duty on that day.” (NB: Being a verbatim reproduction of the extract of the cross-examination, the grammatical and syntax errors have been recorded as they are) 28. J.K. Bhatnagar DW-4, Assistant Manager, Depot, Storage Loss Section, FCI also proved the afore-noted attendance registers. 29. Holding that the evidence of Jagwati PW-2, inspires confidence and that evidence led by accused No.2 to prove his defence of alibi is not cogent, vide judgment and order dated 08.02.01 the learned Trial Judge has convicted the accused persons and has sentenced the accused persons to undergo imprisonment for life and pay a fine of Rs.2,000/-, in default, to undergo RI for one month. Additionally, accused No.2 has been sentenced to undergo SI for one month for committing offence punishable under Section 341 IPC. 30. Discussing the defence evidence pertaining to the plea of alibi raised by Sobraj, learned Trial Judge has discussed the evidence as under:- “46. Now coming to DWs, it may be mentioned that all of them are aimed at establishing the plea of alibi by accused Sobraj. DW-1 and DW-2 have deposed that accused Sobraj was on duty at the time of incident in FCI, Shakti Nagar. DW-3 and DW-4 have been examined to prove the copy of attendance register of the employees of the FCI dated 28.12.1995. Cross examination of DW-3 washes of the value of the attendance register copy of which is Ex.DW- 3/A. He has admitted that during day time in shift 8:00 AM to 4:00 PM there used to be more watch-man on duty than in night shift from 12:00 mid night to 8:00 AM. He further stated that from 4:00 PM to 12:00 mid night there used to Crl.A.126/2001 Page 11 of 24 be less watch man on duty. In the night shift from 12:00 PM to 8:00 AM there were four persons including one head watch man and one of them was not on duty meaning thereby that practically there were three persons on duty. There was a line under Sr. No.4 at point A in Ex.DW-3/DA which pertained to night shift from 12:00 PM to 8:00 AM. A line was put below Sr. No.4 in the shift of 4:00 PM to 12:00 mid night at point B and name of accused Sobraj was mentioned below that line. There was no fun of having seven persons in the said shift in view of earlier admission that during night shift of 12:00 mid night to 8:00 AM there used to more watch man on duty. The possibility of name of accused Sobraj at Sr. No.5 having been added below line put under Sr.No.4 later on, to create evidence of alibi cannot be ruled out. It has been held in 1994 SCC (Criminal) 358 that plea of alibi must be proved by cogent evidence.” 31. In support of the appeal, learned counsel for the appellant advanced under-noted submissions:- A. There is a material discrepancy in the evidence of Jagwati vis-a- vis the evidence of the other witnesses regarding the manner in which the deceased was removed to the hospital. Learned counsel pointed out that Ganga Ram and Chandan had deposed that Sunil was also present in the three-wheeler scooter in which the deceased was removed to the hospital, whereas Jagwati did not depose about the presence of Sunil in the scooter. Likewise, Jagwati did not depose about the presence of Ganga Ram in the three-wheeler scooter in her examination-in-chief. Learned counsel further pointed out the testimony of Ganga Ram where he deposed that he, Sunil and Chandan were present in the scooter in which the deceased was removed to the hospital and that Jagwati had reached the hospital after 5 – 7 minutes of their arrival at the hospital. Learned counsel urged that aforesaid casts a serious doubt whether Jagwati was at all present at the spot. Crl.A.126/2001 Page 12 of 24 B. Learned counsel urged that the conduct of Jagwati which emerges from her version regarding the happening of the incident is most unnatural and this also casts a doubt about her presence at the spot. First instance of unnatural conduct pointed out by the learned counsel was that as per the version of Jagwati, accused No.2 had caught hold of the deceased and asked accused No.1 to bring a knife from inside the house. In such a situation, the natural conduct of a person would have been to raise an alarm and seek help from the people present around the spot argued the counsel. Second instance of unnatural conduct pointed out was that Jagwati had deposed that her brother runs a clinic situated at about 15 houses away from her house. According to the learned counsel, had Jagwati been present at the spot, she would have first taken the deceased to her brother's clinic for medical aid. C. The third submission advanced was that there is a material variation in the ocular evidence of Jagwati and medical evidence pertaining to her injury. Learned counsel pointed out that Jagwati had deposed that she had also sustained a knife injury in the process of saving the deceased from the clutches of the accused persons; whereas her MLC Ex.PW-16/A records that the injury received by her was caused by a blunt object. According to the learned counsel, said variation establishes that the version of Jagwati that she had witnesses the accused persons murdering the deceased is nothing but a cock and bull story. Crl.A.126/2001 Page 13 of 24 D. The fourth submission advanced was that the deposition of Jagwati PW-2, proved that no street light was installed in the street where her son was injured. Thus, learned counsel urged that it was not possible for Pyare Lal PW-3 to have seen the features of the accused persons whom he claimed having seen from a distance in the process of fleeing. Counsel submitted that even Chandan was a planted witness because he admitted that his clothes did not get stained with the blood of the deceased; a fact which was not possible, argued learned senior counsel for the appellants because of the fact that if the jugular vein is cut, excessive blood oozes out. E. The fifth submission advanced was that the alleged motive for the crime i.e. the anger of the accused against the deceased on account of the deceased having a love affair with the sister/daughter of the accused was not proved. Learned counsel urged that the non- production of the love letters allegedly exchanged between the deceased and sister/daughter of the accused persons and flimsy explanation given by Jagwati for non-production of the same by stating that some letters were burnt and some are untraceable, shows that the parents of the deceased were attributing a false motive. F. The sixth submission advanced was that the burden of proof upon an accused to prove his defence is no higher than that of a party to a civil proceeding, that is, a preponderance of probabilities alone is sufficient. Therefore, it was urged, that the learned Trial Court has committed an illegality in rejecting the defence of alibi Crl.A.126/2001 Page 14 of 24 taken by accused No.2 as a result of wrongly placing a higher degree of proof upon the accused No.2 for proving his plea of alibi. G. The last submission advanced was that it is not safe to sustain the conviction of the accused persons by placing reliance upon the evidence of a solitary eye-witness, more so, when such eye-witness is a close relative of the deceased. 32. The first submission predicated upon the contradictions appearing in the evidence of the witnesses of the prosecution regarding the manner in which the deceased was removed to the hospital pertains to the contradiction in the deposition of Chandan and Ganga Ram regarding the presence of the Jagwati in the three- wheeler scooter in which the claimed having removed the deceased to the hospital and the omission in the deposition of Jagwati regarding the presence of Sunil and Ganga Ram. 33. The presence of Jagwati at her house, at the time of the incident, is not doubtful, inasmuch as no suggestion to the contrary was given to her with respect to her deposition that she was present in the house and heard Sobraj hurling abuses at her family. The fact that the deceased was murdered outside his house is proved beyond any doubt. It is also relevant to note that Inspector Rajbir Sharma PW-21 has recorded Jagwati’s statement Ex.PW-2/A in the hospital and had forwarded the same at 10.20 PM for registration of an FIR. Thus, Jagwati’s presence in the hospital stands corroborated. That in her statement Ex.PW-2/A, Jagwati has implicated the appellants and has described the various acts committed by them and that Jagwati Crl.A.126/2001 Page 15 of 24 has withstood the test of cross-examination, lends credence to her testimony. The incident took place around 8.45 PM. By 10.20 PM the statement of Jagwati was recorded. It is difficult to assume that within this short span, Jagwati spun a fabricated story. Statements given to the police by witnesses immediately after the incident have an inherent strength of truth because of the fact that anything told by an eye-witness soon after the incident is presumably the correct version because the witness gets no time to fantasize or cook up facts. 34. It is natural conduct for a person to go outside his house and request the offender who is hurling abuses at his