Crl. Appeal 189-2009 Page 1 of 22 * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 28.07.2009 Judgment delivered on: 01.09.2009 Crl. Appeal No. 189/2009 MOHAN LAL @ TONY & ORS. ..... Appellant Vs STATE (NCT OF DELHI) ..... Respondent Crl. Appeal No. 196/2009 DAYA SHANKER @ RAJU @ CHHOTE ..... Appellant Vs STATE (NCT OF DELHI) ..... Respondent Crl. Appeal No. 204/2009 RAKESH @ PAHELWAN ..... Appellant Vs STATE (NCT OF DELHI) ..... Respondent Advocates who appeared in this case: For the Appellants : Mr B.S. Chowdhary, Ms Chitra Goswami & Mr Pradeep Sharma, Advocates For the Respondent : Mr Amit Sharma, Addl. Public Prosecutor CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? 2. To be referred to Reporters or not ? Yes 3. Whether the judgment should be reported Yes in the Digest ? RAJIV SHAKDHER, J 1. These are the appeals filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as „Cr.P.C.‟) against the common judgment and sentence dated Crl. Appeal 189-2009 Page 2 of 22 20.02.2009 passed by the Additional Session Judge (FTC)/West/Delhi (in short the „ADJ‟). 2. The case of the prosecution is: On the night of 10th & 11th August 2000, an information was received at Police Station Rajouri Garden, Delhi by ASI Jora Singh (PW9) at about 2.10 a.m. from duty constable Kamal at Deen Dayal Upadhaya (in short the „DDU‟) Hospital that one Jaswinder Kaur @ Gogi, wife of Mohan Lal, had been admitted to the hospital in an injured condition. This information was dutifully entered as DD Entry 23A (Ex. PW9/A). ASI Jora Singh (PW9) communicated this information to SI Naresh Kumar (PW19) for further inquiry. 2.1 S.I. Naresh Kumar (PW19) along with ASI Prem Singh (PW3) visited the DDU hospital. Further inquiry revealed that the injured was Jaswinder Kaur (PW8). Jaswinder Kaur (PW8) was accompanied by her friend Babbal to the DDU hospital. Babbal has since died due to burn injuries. A criminal case with respect to that was also registered. S.I. Naresh Kumar (PW19) recorded the statement of Babbal (Ex. PW19/A). Since Babbal, as indicated above, died during the course of trial, she could not be examined. 2.2 At about 3.35 a.m., constable Mukesh Kumar (PW4) brought a rukka to police station Rajouri Garden which was sent by S.I. Naresh Kumar (PW19), based on which FIR No. 818/2000 (Ex. PW9/B) was registered under Section 307/34 of the Indian Penal Code, 1860 (in short the „IPC‟). 2.3 Between 25.08.2000 and 04.09.2000, all the three appellants/ accused were arrested in the said case. They were offered an Crl. Appeal 189-2009 Page 3 of 22 opportunity of a test identification proceeding (in short „TIP‟), which the appellants/accused declined. This fact was recorded by the learned Magistrate vide order dated 09.09.2000. After completion of investigation a chargesheet was filed and all three appellants/ accused were sent up for trial. By an order dated 05.10.2001 all three appellants/accused were charged under Section 307/34 of the IPC. 2.4 All three appellants/accused pleaded „not guilty‟ and claimed trial. The prosecution in order to prove its case, cited 19 witnesses. The appellants/accused in their defence did not cite any witness. However, the statement of the appellants/accused was recorded under Section 313 of the Cr.P.C. 2.5 The case of the prosecution is largely pivoted around the testimony of its star witness, i.e., Jaswinder Kaur @ Gogi (PW8). The testimony of Jaswinder Kaur (PW8) revealed that she was a widow, whose husband had died in 1997. About 4 to 5 years prior to the date of the incident, she got acquainted with appellant/accused Mohan Lal @ tony. The wife of the appellant/accused Mohan Lal, one Lakshmi according to Jaswinder Kaur (PW8), had been murdered. Jaswinder Kaur (PW8) maintained a live-in relationship with appellant/accused Mohan Lal. The appellant/accused Mohan Lal had children from his earlier marriage with Lakshmi. 2.6 On 10.08.2000, appellant/accused Mohan Lal visited 58/59, T.C. Camp, Raghubir Nagar, Delhi (in short „T.C. Camp‟), where his children from his marriage with Lakshmi, were residing. Jaswinder Kaur (PW8) also reached T.C. Camp, in the evening hours. On reaching T.C. Camp, she found apart from appellant/accused Mohan Crl. Appeal 189-2009 Page 4 of 22 Lal, the other appellants/accused, i.e., Daya Shanker @ Raju & Rakesh @ Pahelwan, also present. At T.C. Camp, Jaswinder Kaur (PW8) entered into a conversation with the other appellants/accused which veered around the murder of Lakshmi. Jaswinder Kaur (PW8) along with the three appellants/accused left T.C. Camp at about 10 p.m. in a maruti car. While moving around in the car, Jaswinder Kaur (PW8) along with all the appellants/accused drank whisky, and also had their meals. In the course of the journey, once again, a quarrel broke out between the Jaswinder Kaur (PW8) and the appellants/ accused over the murder of Lakshmi. At this juncture, Jaswinder Kaur (PW8) who was sitting in the front passenger seat of the car along with the appellant/accused Mohan Lal, who was driving the car, with the other appellants/accused Daya Shanker @ Raju and Rakesh @ Pahelwan in the back seat, was physically assaulted. After some time, all four reached the house of Babbal, that is, the friend of Jaswinder Kaur (PW8). On reaching there, they got to know that she had gone to her aunt‟s house for the night. Thereupon, all four proceeded to the house of Babbal‟s aunt. It is at this point in time that matters became worse. When Jaswinder Kaur (PW8) entered the house of Babbal, where she was met by Babbal, she was both terrified and perplexed. The reason being that, the quarrel over the death of Lakshmi had continued between the four, through the journey, and all this while, the appellants/accused made accusation against Jaswinder Kaur (PW8) that she was involved in the murder of Lakshmi. The quarrel continued in Babbal‟s aunt‟s house. In this fracas, Rakesh @ Pahelwan hit Jaswinder Kaur (PW8) with the revolver; a bullet got fired, which hit the left side of Jaswinder Kaur‟s (PW8) leg. Immediately thereafter, the accused/Daya Shanker, Crl. Appeal 189-2009 Page 5 of 22 Babbal and her husband, Ranjeet poured liquor on Jaswinder Kaur‟s (PW8) wound. Jaswinder Kaur (PW8) was thereafter, bundled into the maruti car, in which all four had travelled to the Babbal‟s aunt‟s house and took her to DDU hospital. On reaching the DDU hospital, the appellants/ accused left Jaswinder Kaur (PW8) to fend for herself. Jaswinder Kaur (PW8) was admitted for treatment by the staff of DDU hospital. It is here that Jaswinder Kaur (PW8) was operated. 3 At the trial, the prosecution examined Dr. P.S. Sarangi (PW1), Surgical Specialist at the DDU hospital. Dr. Sarangi proved the MLC (Ex. PW1/A). Dr. Sarangi deposed that since the doctors who had examined Jaswinder Kaur (PW8), i.e., Dr. Manoj, Dr. Vivek Sharma & Dr. S.K. Bhagat were no longer in the service of the hospital and their present whereabouts were not known, he had offered to prove the MLC as he was in a position to identify their hand writing and signatures having seen them writing and signing papers in the past in the course of his official duty. The MLC (Ex. PW1/A), amongst others, referred to the following injury being inflicted on Jaswinder Kaur (PW8): “(1) CLW (app 1x1m) over medial side left leg CLW (app 4x3m) over lateral side left leg CLW (app 1x1m) over medial side right leg (2) Palpable hard substance (bullet?) over lateral side right leg.” 3.1 Dr. Dewan Seth (PW2), who was at the relevant point of time, the radiologist at the DDU hospital, had examined the x-ray no. 5514- 15 dated 25.09.2000. He further deposed that there was evidence of fracture of upper and left fibula. Crl. Appeal 189-2009 Page 6 of 22 3.2 ASI Prem Singh (PW3) deposed primarily with regard to the fact that he had accompanied S.I. Naresh Kumar (PW19), Constable Mukesh Kumar (PW4) to the DDU hospital, and thereafter, to the place of the incident. 3.3 Constable Mukesh Kumar (PW4) had in his deposition mainly stated that he alongwith SI Naresh Kumar (PW19) and ASI Prem Singh (PW3) went to the DDU hospital, and thereafter carried the rukka to the police station on the basis of which the FIR was registered. After registration of FIR, a copy of the rukka was carried by Constable Mukesh Kumar (PW4) to the place where the incident took place, i.e., 304 T.C. Camp, Raghubir Nagar, Delhi. He further deposed that at the site he was met by SI Naresh Kumar (PW19) and ASI Prem Singh (PW3). At the site, SI Naresh Kumar (PW19) prepared the site plan in the presence of Babbal, who had accompanied him. He also deposed that the IO had lifted the blood samples and stained earth from the spot where the incident took place and sealed the same with his seal NK. He further deposed that a seizure memo was prepared which bore his signature at point „A‟. In his deposition, he also stated that from the site they went back to DDU hospital where they recorded the statement of Jaswinder Kaur (PW8). At that point Jaswinder Kaur (PW8) produced the blood stained chunni which she had tied to her injured leg. The blood stained salwar and chunni were seized and sealed by the IO with the seal NK and accordingly, a seizure memo PW4/B and PW4/C were prepared for the Chunni and Salwar respectively. He proved his signatures on the said seizure memo. It is important to note that in his cross- Crl. Appeal 189-2009 Page 7 of 22 examination, PW4 has stated that when they went back to the DDU hospital, they were unable to record the statement of Jaswinder Kaur (PW8) as she was unconscious. 3.4 Bitto (PW5), who was the nephew of the appellant/accused Mohan Lal, deposed that the appellant/accused Mohan Lal had purchased the maruti car bearing no. DL4CE 5853 which was used to ferry the appellants/accused and Jaswinder Kaur (PW8) to the house of Babbal‟s aunt and thereafter, to the DDU hospital, was, on paper, owned by him, whereas the real owner was appellant/accused Mohan Lal. 3.5 Constable Kamal Singh (PW6), who was posted as duty constable at DDU hospital, reported that on the night intervening 10th and 11th August, 2000, he was handed over by the CMO of the hospital, a sealed pulanda (packet) with the seal of the CMO which contained a bullet. He handed over the same to the IO, S.I. Naresh Kumar, who seized it and prepared a seizure memo (Ex. PW6/A) which bore his signature at point „A‟. 3.6 Constable Kailash (PW7) deposed with regard to the arrest of one of the accused Rakesh @ Pahelwan. 3.7 ASI Jora Singh (PW9), as indicated above, was the police officer who in the instant case received information, in the first instance, about the incident from DDU hospital. 3.8 Constable Anil Kumar (PW10) deposed with regard to the arrest of the other appellant/accused Daya Shankar @ Raju. He also deposed that appellant/accused Daya Shanker @ Raju had taken the police party to the place where the incident occurred and also Crl. Appeal 189-2009 Page 8 of 22 disclosed that the appellant/accused Rakesh @ Pahelwan was the one who had fired the bullet at Jaswinder Kaur (PW8). 3.9 Constable Bijender singh (PW11) deposed that on 23.10.2000 he had been assigned the duty of carrying five sealed samples to FSL, Malviya Nagar vide RC No. 245/01 and that he had deposited the sample with the FSL with the seal intact. 3.10 HC Rohtash, PW(12) deposed with regard to the fact that SI Naresh Kumar (PW19) had deposited with him, at the malkhana on 11.08.2000, a sealed packet containing the blood stained chunni and salwar. He further deposed that on 25.08.2000, a motor car bearing no. DL 4CE 5853 was also brought in for custody. Similarly, he deposed that on 07.10.2000, SI Dinesh Kumar had deposited one blood sample of Jaswinder Kaur (PW8), which was, duly sealed with the seal of CMO of the DDU hospital. He proved the signatures in the register being Ex. PW12/A. He further deposed that on 23.10.2000 five sealed parcels were handed over by him to constable Bijender Singh (PW11) vide RC No. 245/21 for being deposited in FSL, Malviya Nagar, as indicated above. 3.11 S.I Narender Kumar (PW13) deposed, with respect to the arrest of appellant/accused Mohan Lal, in FIR No. 234/2000 at Police Station Welcome. He also deposed that appellant/accused Mohal Lal had made a disclosure statement which is marked as Ex A, on which he proved a signature at point „A‟. 3.12 Inspector Ramesh Yadav (PW14) deposed with respect to the fact that he had submitted a photocopy of the FIR No. 935/2000 and Crl. Appeal 189-2009 Page 9 of 22 photocopy of the postmortem report pertaining to the deceased Babbal, the friend of Jaswinder Kaur (PW8). 3.13 S.I. Gulshan Nagpal (PW15) deposed with respect to the fact that on 27.08.2000 when he was posted in Police Station Welcome, accused Mohan Lal was arrested in FIR No. 234/2000, in which case he made a disclosure statement which is marked as EX. A and bore his signature at point „B‟. 3.14 S.I. Narender Kumar (PW13), SI Gulshan Nagpal (PW15) and SI K.P. Shah (PW16) deposed the manner in which the accused Mohan Lal was arrested in the case. It is important to note that SI K.P. Shah (PW16), who is posted as special staff in North-West Distt, had received information about collection of certain bad characters in H. No. 98, Welcome. When they reached there, they were confronted by certain boys and ladies. They were shot at; and it is here that appellant/accused Mohal Lal was arrested. 3.15 ASI Sushila PW 17 deposed that on 28.08.2000 she received information from SI K.P. Shah (PW16) at about 11.00 a.m. about the arrest of appellant/accused Mohan Lal, in FIR no. 234/2000. This information was reduced by her to writing in DD No. 10A (Ex. PW16/A). 3.16 Sh. Sanjeev Aggarwal, Learned ARC, Tis Hazari, Delhi (PW18) deposed with regard to the correctness of the TIP proceedings dated 09.09.2000 with respect to the appellants/accused Rakesh @ Pahelwan and Daya Shanker @ Raju. 3.17 S.I. Naresh Kumar (PW19), who is the investigation officer (I.O.) of the case, deposed with regard to the fact that how he had Crl. Appeal 189-2009 Page 10 of 22 received information as regard the injured Jaswinder Kaur (PW8) being treated at DDU hospital; his interrogation with Jaswinder Kaur‟s (PW8) friend Babbal and the fact that he recorded her statement with regard to the events, as they transpired, which led to the injury of Jaswinder Kaur (PW8). He also deposed with regard to the fact that he had made out a rukka which was sent with Constable Mukesh Kumar (PW4) for registration of the FIR. He specifically testified that he had prepared the site plan (Ex. 19/C) of the spot where the incident had taken place. In his deposition, he specifically stated that at the spot of the incident, he had found blood and that he had lifted the blood with the help of cotton which was sealed in a packet and accordingly a seizure memo (Ex. PW4/A) was prepared. He further stated that he went back to the DDU hospital on 11.08.2000 where he met Jaswinder Kaur (PW8), who handed over a blood stained chunni and salwar which was also seized and a seizure memo (Ex. PW4/B and Ex. PW4/C respectively) was prepared by him. He also deposed that it was constable Kamal Singh (PW6) who handed over to him a sealed packed containing a bullet; which he seized and prepared a seizure memo (PW6/A). He also testified that the appellant/accused Rakesh @ Pahelwan was arrested on 28.08.2000; as also with respect to the information that was received with regard to the arrest of the appellant/accused Mohan Lal on 28.08.2000, in FIR no. 234/2000 at Police Station Welcome, North-West Distt. As regards the appellant/accused Daya Shanker @ Raju he deposed that he was arrested on 31.08.2000. He categorically deposed that in the present case the appellant/accused Mohan Lal was arrested on 01.09.2000. He also deposed with regard to the fact that Babbal, friend of Crl. Appeal 189-2009 Page 11 of 22 Jaswinder Kaur (PW8), had died in 2000, and a FIR No. 935/2000 under Section 302 was registered at Police Station Rajouri Garden. In his cross examination SI Naresh Kumar (PW19) admitted that he had neither found the empty shell nor the weapon of offence from which the bullet was alleged to have been fired. He also admitted that at the time of the incident Jaswinder Kaur (PW8) was in a drunken condition. He further volunteered that Jaswinder Kaur (PW8) was forced to consume liquor. 4. At this stage, it is important to take note of a very disturbing fact, which is that, the statement of all the three appellants/accused recorded under Section 313 of the Cr.P.C. are identical. As a matter of fact, a perusal of the statement of the appellants/accused would show that there has been a complete non-application of mind in recording the statement of the appellants/accused under Section 313 of the Cr.P.C. This is evident from one singular example. Each accused was asked the following question, which is serialized as Q.4. Both the question and the answer are identical. A bare perusal of the question and the answer, which is extracted below, would show that there is mechanical approach adopted by the court below to what is a very crucial part of the trial of a case: Statement of accused Mohan Lal @ Tony under Section 313 Cr.P.C. without oath Q.4 It is in evidence against you accused Mohan Lal that your children were residing at H. NO. 58-59, T.C. Camp, Raghubir Nagar and on 10.08.2000, during evening time, you had gone to see your children at the said house. What have you to say? Ans. It is correct. Statement of accused Rakesh @ Pahelwan under Section 313 Cr.P.C. without oath Crl. Appeal 189-2009 Page 12 of 22 Q.4 It is in evidence against you accused Mohan Lal that your children were residing at H. NO. 58-59, T.C. Camp, Raghubir Nagar and on 10.08.2000, during evening time, you had gone to see your children at the said house. What have you to say? Ans. It is correct. Statement of accused Daya Shanker @ Raju under Section 313 Cr.P.C. without oath Q.4 It is in evidence against you accused Mohan Lal that your children were residing at H. NO. 58-59, T.C. Camp, Raghubir Nagar and on 10.08.2000, during evening time, you had gone to see your children at the said house. What have you to say? Ans. It is correct. 5. Based on the aforesaid, it was submitted by the learned counsel for the appellants that there is no evidence against the appellants/accused and hence offences under Section 307/34 of the IPC were not made out. He submitted that there was no evidence of common intention to cause the death of Jaswinder Kaur (PW8). In this regard, he relied upon the testimony of Jaswinder Kaur (PW8) to show that in her cross-examination it has clearly been revealed that the bullet got fired because of an altercation and that when Jaswinder Kaur (PW8) was injured an attempt was made to help her by pouring liquor on the wound and then taking her to the hospital. He submitted that a close perusal of the statement of Jaswinder Kaur (PW8) would show that appellants/accused Mohan Lal and Daya Shankar @ Raju had not participated in the offence, in as much as, the testimony of Jaswinder Kaur (PW8) would show that both the appellants/accused Mohan Lal and Daya Shanker @ Raju had entered the room after Rakesh @ Pehalwan had allegedly fired the bullet. He submitted that Jaswinder Kaur (PW8) has further testified that accused Mohan Lal and her children had tried to save her. The Crl. Appeal 189-2009 Page 13 of 22 learned counsel for the appellants submitted that the court below had failed to appreciate that for convicting a person in respect of an offence under Section 307/34 of the IPC it was essential for the court to come to a conclusion that there was, firstly, an intention or knowledge or the necessary mens rea to commit murder and this intention was followed by an act to fulfill the intention. He submitted that the events of 10.08.2000, which have come to light by virtue of the testimony of Jaswinder Kaur (PW8), would show that she accompanied the appellants/accused willingly from the deceased Lakshmi‟s house at T.C. Camp, where the appellant/accused Mohan Lal and the other two appellants/accused Rakesh @ Pahelwan & Daya Shanker @ Raju had assembled, till the house of Babbal, a friend of Jaswinder Kaur (PW8), and thereafter to the house of Babbal‟s aunt. He submitted that there was no evidence to show that at any point in time, the appellants/accused had shared a common intention or that there was a prior meeting of mind to commit the murder of Jaswinder Kaur (PW8). The learned counsel in support of his submission relied upon the judgment of the Supreme Court in Rangaswami vs State of Tamilnadu AIR 1989 SC 1137. The learned counsel also submitted that presently the appellant/ accused Rakesh @ Pehalwan, who is alleged to have fired the bullet, has already undergone sentence of nearly six and a half years, out of the seven years awarded to him by the trial court. He submitted that the prosecution had miserably failed to prove its case. The testimony of Jaswinder Kaur (PW8) was unreliable. The forensic evidence did not support the case of the prosecution. Crl. Appeal 189-2009 Page 14 of 22 6. As against this Mr Amit Sharma, learned APP submitted that a shared common intention could easily be adduced from the testimony of the prosecution witness, in particular, that of Jaswinder Kaur (PW8). He contended that the testimony of the said witness would show that an altercation ensued between Jaswinder Kaur (PW8) and the appellants/accused over the involvement of Jaswinder Kaur (PW8) in the murder of Lakshmi, wife of appellant/accused Mohan Lal. The quarrel which erupted at the house of the deceased Lakshmi continued while Jaswinder Kaur (PW8) travelled with the appellants/accused in the car to the house of Babbal, and thereafter to the house of Babbal‟s aunt where Babbal was staying for the night. He submitted that Jaswinder Kaur (PW8) in her testimony has clearly deposed that while she was sitting in the front passenger seat of the car, which was driven by the appellant/accused Mohan Lal, the other two appellants/accused Daya Shanker @ Raju and Rakesh @ Pehalwan, assaulted her physically. This peculiar behavior of Mohan Lal @ Tony continued even when they reached Babbal‟s aunt‟s house where Jaswinder Kaur (PW8) got injured by virtue of bullet fired from the revolver of the appellant/accused Rakesh @ Pahelwan. It was the learned APP‟s submission that appellant/accused Mohan Lal allowed such assault to take place not only when they were travelling in the car which he was driving but also at Babbal‟s aunt‟s house. Mr Amit Sharma, APP submitted that for the purposes of holding that the appellants/accused shared a common intention, active participation of all appellant/accused was not necessary. In other words he submitted the fact that when the bullet was fired by the appellant/accused Rakesh @ Pahelwan, the other two appellants/ accused Mohan Lal and Daya Shanker @ Raju were not in the room Crl. Appeal 189-2009 Page 15 of 22 would in no way effect the case of the prosecution if the circumstantial evidence, as it does in this case, point to a shared common intention to murder Jaswinder Kaur (PW8). 7. I have heard the learned counsel for the appellant as well as Mr Amit Sharma, APP. In my view, in order to hold the appellants guilty of the offence