* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No.498/2004 % Date of Decision : 5th of November, 2007 # YOGENDER KUMAR .....Appellant ! Through : Mr. Mukesh Kalia, Adv. versus $ THE STATE (DELHI ADMN.) .....Respondent ^ Through : Ms. Richa Kapoor, Adv. * CORAM: HON'BLE MR. JUSTICE R.S. SODHI HON'BLE MR. JUSTICE B.N. CHATURVEDI 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 Yes reported in the Digest? : B.N.CHATURVEDI, J. 1. Convicted on a charge of committing double murder- patricide and parricide - by a judgment dated 7th May, 2004 and sentenced to imprisonment for life Crl. Appeal No.498/2004 Page 1 of 34 and a fine of Rs.5,000/-, in default further SI for six months vide order dated 27th May, 2004, the appellant is in appeal for reversal of such conviction and sentence. 2. Prosecution case traces its origin to a report registered on an information by one Jai Prakash Pandey as DD No.40 dated 21st September, 1997 at PP Inderlok, PS Sarai Rohilla, Delhi. Jai Prakash Pandey worked as a night watchman on the relevant date. In the course of his duty, at about 2.30 am, on the intervening night of 20th and 21st of September, 2007, he heard some groaning sound emanating from the first floor of House No.313/40 Inderlok, Delhi whereupon he rushed to PP Inderlok to inform the police about the same. After recording the information given by Jai Prakash Pandey, the duty officer passed on a copy of DD No.40/1997 dated 21st September, 1997 to Head Constable Azad Singh for necessary action. Head constable Azad Singh accompanied by Constable Dharmender and Jai Prakash Pandey proceeded to House No.313/40 Inderlok, Delhi. On reaching the first floor of the said Crl. Appeal No.498/2004 Page 2 of 34 house Head Constable Azad Singh and Constable Dharmender saw the appellant inflicting stab injuries on the person of Sanjiv Kumar @ Sunni, aged about 15/16 years, who happened to be the son of his elder brother Madan Lal PW-6. They also noticed body of an aged person with extensive injuries, lying in a pool of blood. He was Ram Das, deceased, father of the appellant. The appellant was overpowered and apprehended by the said two police officials and blood smeared khanjar was snatched from his hand. Head Constable Azad Singh informed on phone officer incharge, Police Post- Inderlok about the incident. On receipt of such information, S.I. Dharamvir Singh, officer incharge, Police Post- Inderlok, accompanied by Constable Naresh immediately rushed to the place of occurrence. On being informed, two PCR vans also reached the spot to remove both the injured to Hindu Rao Hospital. After a short while on receiving information about the incident, Inspector T.R. Mongia SHO PS Sarai Rohilla, Delhi accompanied by ASI Iqbal Singh, PW-19 and other police staff also reached there. Both the injured Crl. Appeal No.498/2004 Page 3 of 34 had already been removed to Hindu Rao Hospital in the PCR vans before arrival of Inspector T.R. Mongia at the scene of crime. Inspector T.R. Mongia leaving Head Constable Azad Singh, Constable Dharmender and Constable Neeraj at the spot proceeded to Hindu Rao Hospital. SI Dharamvir Singh also went alongwith him. On reaching the hospital, Inspector T.R. Mongia came to know that Ram Das was declared brought dead and Sanjiv @ Sunni was unfit to make his statement. Since he did not come across with any eye witness of the incident, Inspector T.R. Mongia returned to the spot. He recorded the statement of Head Constable Azad Singh and sent the same through Constable Dharmender to Police Station Sarai Rohilla, Delhi for registration of a FIR. Constable Dharmender, after sometime, came back to the spot with a copy of FIR and the Rukka and handed over the same to Inspector T.R. Mongia. The khanjar which was snatched from the appellant was produced by Head Constable Azad Singh before Inspector T.R. Mongia who after preparing the sketch thereof, packed and sealed it and took the same in Crl. Appeal No.498/2004 Page 4 of 34 his possession. The appellant was formally arrested and subjected to interrogation at the spot. On his disclosure, the appellant got a blood stained piece of iron rod, used as a weapon of offence, in addition to khanjar, recovered. That saria was also taken into possession by Inspector T.R. Mongia. Photographs of the scene of crime were taken by the crime team. The Investigating Officer seized blood stained T-Shirt and a pair of trousers, which the appellant was wearing at the time of commission of crime. He also completed other formalities at the spot as detailed in the impugned judgment. 3. The appellant was charged under Section 302 IPC for committing murder of Ram Das and Sanjiv @ Sunni as also under Section 27 of Arms Act. On his pleading not guilty to the charges, he was put to trial. 4. Besides documentary evidence, prosecution evidence comprises oral testimony of 21 witnesses in all. Out of the witnesses so examined, the statements of Head Constable Azad Singh (PW-7) and Constable Dharmender (PW-8) stand out inasmuch as they are the ones who are stated to have had witnessed the Crl. Appeal No.498/2004 Page 5 of 34 appellant in the process of inflicting stab injuries on the person of Sanjiv @ Sunni and had apprehended him with blood stained khanjar in his hand. The statements of S.I. Dharmvir Singh, (PW-16) Inspector T.R. Mongia, (PW-21) ASI Iqbal Singh (PW-19) and Head Constable Bal Kishan (PW-11) are of a corroborative nature. Learned Trial Court based its finding of conviction against the appellant primarily on the oral testimony of Head Constable Azad Singh (PW-7) and Constable Dharmender (PW-8). Not related to the account of incident as it took place, the deposition of Madan Lal, PW-6, elder brother of appellant, assumes relevance to prove motive on the part of the appellant in committing the murder of his father and nephew. He is also stated to have witnessed recovery/seizure at the spot of weapons of offence and appellant's blood stained clothes etc. 5. The appellant on the other hand banks upon the oral testimony of three witnesses examined by him in his defence who spoke of an oral family settlement arrived at in the course of a meeting held at the residence of Jagdish Arora DW-2 where his Crl. Appeal No.498/2004 Page 6 of 34 deceased father, Ram Das and his two brothers namely, Madan Lal, PW-6 and Sureinder Kumar, DW- 1, apart from him and some other persons were present. The appellant came out with the plea of such a family settlement being arrived at to dislodge the motive part of the prosecution case that he committed the murder of his father and nephew being peeved at denial of any share in the properties owned by his father, Ram Das deceased. The learned Trial Court of course, for the reasons recorded in its judgment, did not accept the defence plea of any such oral family settlement, as deposed by the three defence witnesses, having actually been arrived at before 15 days of commission of murder of Ram Das. 6. The appellant on his examination under Section 313 Cr.P.C. denied his presence at the spot and stated that he was falsely implicated in the case at the instance of his brother Madan Lal PW-6 when he went to the police station Sarai Rohilla in the morning. He denied that the blood stained T-shirt and a pair of trousers belonged to him. He stated that no blood stained khanjar was ever seized from Crl. Appeal No.498/2004 Page 7 of 34 him nor he made any disclosure statement leading to the recovery of iron rod. According to him property disputes with his father were compromised in the presence of Surinder Kumar DW-1, Jagdish Arora DW-2, Madan Lal PW-6 and his son Praveen Kumar. 7. Assailing the impugned conviction, learned counsel for the appellant contended that the statements of Head Constable Azad Singh-PW 7 and Constable Dharmender-PW 8 being riddled with contradictions, ocular account of the incident presented by them in the course of their statements including the factum of appellant being apprehended red handed at the scene of crime with blood smeared khanjar in his hand could not have been safely acted upon to hold the appellant guilty of the charge of murder. The learned counsel argued that inspite of alleged presence of Jai Prakash Pandey(PW-1), who was instrumental in setting the police officials in motion, at the time when Head Constable Azad singh PW-7 and Constable Dharmender PW-8 visited the scene of crime, the Investigating Officer preferred to get the FIR registered on the statement of a police Crl. Appeal No.498/2004 Page 8 of 34 official, namely, Head Constable Azad Singh, PW-7 thereby adversely impacting at the authenticity thereof. Further, referring to a part of statement of Jai Prakash Pandey (PW-1) in his cross examination that he had noticed a person fleeing the place of occurrence and disappearing in darkness, the learned counsel contended that it is not beyond the realm of possibility that instead of the appellant it was that person who would have fatally assaulted both the deceased. It was further argued that the appellant had no motive to kill Sanjiv @ Sunni as he is not shown to have had any personal grudge of any sort against him. Acceptability of the dying declaration allegedly made by Sanjiv @ Sunny was assailed on the plea that when Inspector T.R. Mongia, Investigating Officer visited the hospital, Sanjiv @ Sunni was declared by the doctor concerned as unfit to make a statement and in such a situation it was highly improbable that the deceased boy would have made any dying declaration against the appellant as deposed by Head Constable Bal Kishan (PW-11). 8. Learned Addl. Public Prosecutor replying to the Crl. Appeal No.498/2004 Page 9 of 34 arguments raised by learned defence counsel, particularly referred to the statements of Head Constable Azad Singh PW-7 and Constable Dharmender PW-8 to lay emphasis on apprehension of the appellant red handed at the spot while causing stab injuries to Sanjiv @ Sunni and recovery of the weapons of offence from him/at his instance to defend the impugned conviction and sentence recorded against the appellant by the learned Trail Court. She argued that in view of Ram Das, deceased disinheriting the appellant from his properties and the appellant going to the extent of dragging his deceased father as well as brother Madan Lal PW-6 and his two nephews into litigation, the appellant was actuated by strong motive to act in a revengeful manner, as he did. Learned Addl. Public Prosecutor contended that even though the appellant had no personal animosity towards Sanjiv @ Sunni deceased since the properties owned by Ram Das deceased had passed on to Madan Lal PW-6, father of Sanjiv @ Sunni, and his two other sons, the appellant with a view to settle his scores with Madan Lal, PW-6 Crl. Appeal No.498/2004 Page 10 of 34 proceeded to kill his son Sanjiv @ Sunni. Regarding contradictions in the statements of Head Constable Azad Singh, PW-7 and Constable Dharmender, PW-8 it was argued that the same being not of a nature which could be said to shake the basic version of the prosecution case, their entire statements would not stand discredited. It was submitted that the same very arguments as in appeal were raised before the learned Trial Court also and the learned Trial Judge having overruled such contentions for valid reasons recorded in the impugned judgment, no fault can be found with the impugned conviction and sentence warranting any interference therewith in appeal. 9. The fact that the appellant had property disputes with his father, Ram Das, deceased, is evident from the appellant's own statement under Section 313 Cr.P.C. However, according to him disputes stood amicably settled and thus no disputes survived on the day of occurrence. Madan Lal, PW-6, who was, in terms of the statement of the appellant and his defence witnesses party to such family settlement, though, denied appellant's claim in this Crl. Appeal No.498/2004 Page 11 of 34 regard. 10. A public notice in Punjab Kesari newspaper dated 10th July, 1993 vide Ex. PW-20/A was issued on behalf of Ram Das, deceased through his counsel Sh. S.P. Minocha, Advocate notifying to the general public that he had divested his sons namely Yoginder Kumar (appellant), Rajender Kumar and Surender Kumar of their right to inherit his properties and business and that he had severed all his connections with his said sons. In terms of testimony of Madan Lal PW-6, the appellant had filed some cases in the court in respect of properties owned by Ram Das, deceased and one of such civil suits was decided in favour of Ram Das, deceased. A suit for permanent injunction vide Ex. PW-18/A in respect of a portion of property No.312/48 plot No.6B Inderlok, Delhi filed by the appellant against his deceased father as also against Madan Lal, PW-6 and his two sons was still pending and it was being contested by appellant's deceased father as well as Madan Lal PW-6 and his sons vide their written statement Ex. PW 18/C. 11. The appellant examined his brother Sh. Crl. Appeal No.498/2004 Page 12 of 34 Surinder Kumar, DW-1, Sh. Jagdish Arora, DW-2 and Sh. Ram Pal, DW-3, both relatives, to prove that all property disputes stood settled and no dispute of any sort in that respect survived on the date of incident. On a close scrutiny of statements of these witnesses it would however, appear that they are simply procured ones. Like appellant, Surender Kumar DW-1 had also been disinherited from his properties and business by Ram Das, deceased. He was thus equally aggrieved as the appellant. Surender Kumar, DW-1 states that he rushed to Inderlok on a two wheeler scooter on being informed on phone at about 7.30/7.40 a.m. by the appellant that a quarrel had taken place and that he should reach Inderlok immediately. Noticeably Ram Das, deceased and Sanjiv Kumar @ Sunni had been badly injured and removed to Hindu Rao Hospital by 3.25/3.30 a.m. on 21st September, 1997 and Ram Das was declared brought dead on being taken to the hospital at 3.30 a.m. while Sanjiv Kumar @ Sunni died at about 4.55 a.m. By 7.30/7.45 a.m. thus everybody including the appellant would have known that Ram Das and Sanjiv Kumar @ Sunni had Crl. Appeal No.498/2004 Page 13 of 34 succumbed to their injuries. In that event it would sound strange that instead of informing Surinder Kumar, DW-1 about the death of Ram Das and Snajeev Kumar @ Sunni, the appellant would have simply asked him to come to Inderlok stating that a quarrel had taken place. Surender Kumar, DW-1 further states that on reaching Inderlok he came to know that his father and Sanjiv Kumar @ Sunni had been taken to Hindu Rao Hospital. He thereupon claims to have reached Hindu Rao Hospital where, according to him, his father and nephew Sanjiv @ Sunni were taken to emergency ward. When both the injured had died much before, there was really no question of their being taken to emergency ward when Surinder Kumar, DW-1 claims to have had reached the hospital sometime after 7.30 a.m. or 7.45 a.m. Surprisingly even though this witness claims to have stayed in the hospital for about 1/1.5 hours before leaving for PS Sarai Rohilla, he does not speak of having come to know about the death of the injured persons. Surely, his statement as aforesaid, is just unacceptable. Crl. Appeal No.498/2004 Page 14 of 34 12. Surinder Kumar DW-1, goes on to testify that an oral family settlement was effected during the course of a meeting with all concerned including Ram Das, deceased and Madan Lal, PW-6 about 15 days prior to the date of occurrence. All the three defence witnesses affirm in unison that such a family settlement was reached at the house of Jagdish Arora, DW-2. Jagdish Arora, DW-2 himself was, however, unsure of timing of such settlement. He in the first instance stated that it was about 7 years ago that Ram Das, deceased had requested him to get the property disputes among his family members settled. As the witness astrayed, the learned defence counsel had to seek permission to cross examine him with respect to the point of time when the family settlement was arrived at and it was only on a leading question being put that he stated that the settlement was reached only 10/15 days before the date of occurrence. Fumbling on the part of this witness regarding time of reaching such a settlement clearly makes his statement unsafe to act upon. 13. Ram Pal, DW-3, brother in law (Sadhu) of the Crl. Appeal No.498/2004 Page 15 of 34 appellant, deposed that on 21st September, 1997 at about 7/7.30 a.m. he was informed by Surinder Kumar, DW-1 that a quarrel had taken place between Ram Das and some person and that he (Surinder Kumar) was going to Hindu Rao Hospital. According to the witness he was asked by Surinder Kumar, DW- 1 to reach the hospital with Madan Lal, PW-6. He accordingly claims to have had gone on his motorcycle to the house of Madan Lal, PW-6 before proceeding to Inderlok, accompanied by Madan Lal. It may be noticed here that Madan Lal appearing as a prosecution witness deposed that he had reached Inderlok soon after being informed of the incident at 6.00 a.m. It is difficult to believe that where the incident took place around 2.40 a.m. or so and both the injured had died, Surinder Kuamar DW-1 and other relatives including Jagdish Arora, DW-2 and Ram Pal, DW-3 continued to be unaware of their death until 7/7.30 a.m. While two of the defence witnesses deposed that in the settlement second floor of the house at Inderlok and a guest house were agreed to fall to the share of the appellant, according Crl. Appeal No.498/2004 Page 16 of 34 to Ram Pal, DW-3 it was first floor of the house at Inderlok and the guest house which were decided to go to the share of the appellant. It is noteworthy here that the appellant in his statement under Section 313 Cr.P.C. does not name Ram Pal DW-3 being one of those who were present at the time of so called compromise. Thus, the statement of none of the three defence witnesses, in the light of above, would appear to be worthy of credence. It cannot be lost sight of that the suit for permanent injunction against Ram Das, deceased and others, filed by the appellant, remained pending until he was murdered, which leads to infer that the relationship between the appellant and his deceased father as well as Madan Lal PW-6 and his sons continued to be as strained as ever before. Keeping in view the history of strained relationship between the parties, had there been any family settlement, as pleaded on behalf of the appellant, in normal course the same would have either been reduced into writing or a joint application would have been made before the court in the pending suit reporting thereby such a settlement to Crl. Appeal No.498/2004 Page 17 of 34 seek disposal thereof. Absence of any such course being adopted, uninspiring statements of defence witnesses are not good enough to constitute a basis to find that property disputes between the appellant and his deceased father had come to an end in view of any oral settlement as pleaded. The learned Trial Court was thus justified in discarding the testimony of defence witnesses, though without adequately spelling out the reasons therefor, and holding against existence of any family settlement prior to the date of occurrence. In the face of clear documentary as well as oral evidence in the nature of statement of Madan Lal PW-6, the appellant, being denied any share in the properties and business owned by his deceased father had a strong motive to act in reprisal. 14. Adverting to the merits of the case, though the statements of Head Constable Azad Singh, PW-7 and Constable Dharmender, PW-8 are not free from vice of contradictions on certain aspects, the same do not lose their over all credibility content, given the nature of discripancies. Both the witnesses state that Crl. Appeal No.498/2004 Page 18 of 34 when they went upstairs to the first floor of the building they noticed the appellant inflicting stab injuries on the person of Sanjiv @ Sunni. Body of an aged person was found lying in a pool of blood in the same very room where the boy was being assaulted. The exact place in the room where body of such aged person was lying is however, testified differently by Head Constable Azad Singh, PW-7 and Constable Dharmender, PW-8. While Constable Dharmender, PW-8 states that the body of Ram Das was lying on the floor, Head Constable Azad Singh, PW-7 stated that it was partly positioned on the double bed and part thereof was in hanging state. Both these witnesses also contradict each other in regard to the manner in which both the deceased were removed from the room to the two PCR vans to take them to Hindu Rao Hospital. Head Constable Azad Singh, PW-7 stated that he or Constable Dharmender, PW- 8 did not go down stairs when both the injured were removed to the PCR vans. On the contrary Constable Dharmender, PW-8 affirmed that he, as also Head Constable Azad Singh, PW-7 helped the PCR staff in Crl. Appeal No.498/2004 Page 19 of 34 removing respective injured to the PCR vans. It is to be kept in mind that there was a gap of more than three years from the date of incident when Constable Dharmender, PW-8 appeared to depose in the case. Similarly, Head Constable Azad Singh, PW-8 appeared to testify before the court after about two years nine months of the incident. The faculty by which the mind stores and remembers something varies from person to person. It being impacted by time factor is a physiographic phenomena. Faded memory causes minute details of a past event turn blurry which may make it difficult even for genuine eye witnesses of an incident to respond in describing the same with compatible accuracy. Thus conflicting statements of aforesaid two witnesses, as pointed out by learned defence counsel, cannot be held to mean that they were actually not present at the scene of crime at the given point of time. Noticeably both the witnesses corroborate each others' statement in all material respects. The appellant being found stabbing the deceased boy with khanjar Ex. P-2 and he being apprehended by the said two police officials Crl. Appeal No.498/2004 Page 20 of 34 is very much evident from their testimonies. The learned Trial Court thus committed no mistake in accepting the testimony of Head Constable Azad Singh, PW-7 and Constable Dharmender, PW-8 to hold the appellant guilty. 15. The appellant strived hard to take advantage of a part of statement of Jai Narain Pandey, PW-1 where he in the course of cross examination affirmed that at the time he heard groaning sound from the first floor of the house, he had noticed a person running away from there. From this, learned defence counsel sought to develop an argument that instead of the appellant it was rather that unknown person who was responsible for causing fatal injuries on the person of both the deceased. While raising such an argument learned defence counsel perhaps lost sight of deposition of Head Constable Azad Singh, PW-7 and Constable Dharmender, PW-8, who affirmed that when they reached the spot they noticed the appellant still in the process of causing stab injuries on the person of deceased boy. Thus, even if another assailant had been present at the Crl. Appeal No.498/2004 Page 21 of