Crl.A.No.456/2008 Page 1 of 114 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 02.04.2009 Judgment delivered on: 15.05.2009 + CRL.A. 456/2008 S.J.CHAUDHARY …Appellant Through: Mr. Ram Jethmalani, Sr. Advocate with Mr. Arunabh Chaudhary, Mr. Abhishek Singh, Mr. Ankur Chawla, Mr. Sarvesh Singh, Mr. Abhinav Lohia, Mr. Rajdeep Banerjee, Ms. Joyeeta Banerjee, Mr. Saurabh Gupta, Ms. P.R.Mala and Ms. Lataa Krishnamurti, Advocates versus CBI …Respondent Through: Mr. P.P.Malhotra, ASJ with Mr. V.S.Shukla, SPP, CBI and Mr. Chetan Chawla, Mr. Gaurav Sharma, Mr. Pratap Singh Panwar and Mr. Shanker Chabbra, Advocates for CBI Mr. K.T.S.Tulsi, Senior Advocate with Mr. Karan Singh, Mr. Abhyuday Rathore and Ms. Neha Gupta, Advocates for the complainant 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. Crl.A.No.456/2008 Page 2 of 114 1. In a nutshell, case of the prosecution is, that having lost in his endeavour to win back his wife Rani Chaudhary, decree for divorce in whose favour attained finality when Petition For Special Leave to Appeal filed by the appellant before the Supreme Court was dismissed on 24.8.1982, the appellant made up his mind to murder Kishan Sikand, with whom Rani Chaudhary was residing and had decided to get married to. Being an ex-serviceman; having knowledge of ammunition, the appellant procured the raw ingredients to manufacture a bobby trap bomb, and using parts of a hand- grenade, managed to manufacture a bobby trap bomb, which was converted into a parcel, and on 25.9.1982, at around 7.30 – 7.45 PM, the appellant left the parcel containing the bomb at the staircase leading to the first floor of 98, Sunder Nagar, New Delhi, in the rear portion whereof the deceased Kishan Sikand was residing along with Rani Chaudhary. The bomb reached the deceased on 2.10.1982 and since the parcel containing the bomb was addressed to the deceased, he opened the same and while so doing, triggered of the contraption, resulting in an explosion. The sharpnells inside the bomb pierced the body of the deceased who died at the spot due to the resultant injuries. Crl.A.No.456/2008 Page 3 of 114 2. The FIR was registered on the day of the incident itself on 2.10.1982. Rani Chaudhary was at Sanawar (H.P.) on the day of the incident and returned to Delhi the next day. Her statement under Section 161 Cr.P.C. was recorded on 3.10.1982. She informed the police therein about her turbulent marriage with the appellant and the divorce. She informed the police that the appellant had been extending threats to her to compel her to return to him and that had even been threatening Kishan Sikand. Apart from other persons whose statements were recorded during investigation, the statement of one Suresh Gopal, a close friend of the deceased and Rani Chaudhary was recorded on 5.10.1982. Needless to state, the appellant was a suspect from the very beginning but nothing incriminating against him could be gathered by the police in spite of the fact that the investigation was handed over to the Crime Branch of Delhi Police. On 19.3.1983 investigation of the case was entrusted to CBI. 3. On the day of the crime, after police received information thereof, from the room on the first floor of 98, Sunder Nagar where the deceased died a huge quantity of debris was lifted and as noted in the seizure memo Ex.PW-69/C was converted into 9 packets. It was noted in the seizure Crl.A.No.456/2008 Page 4 of 114 memo that torn and burnt pieces of paper were a part of the debris lifted. Three days later i.e. on 4.10.1982, some more material was lifted from the room and converted into 4 packets. Unfortunately, the seizure memo pertaining to the material lifted on 4.10.1982 was not made a part of the charge-sheet and could not be proved at the trial. 4. The thirteen packets were sent to the Central Forensic Science Laboratory on 7.10.1982 for a forensic analysis, which as per Ex.PW-62/F commenced on 12.10.1982. Needless to state, the first and the foremost thing required was to segregate the debris and thereafter subject the constituents thereof to a forensic analysis as also to try and put together the burnt pieces of paper, as if a jigsaw is being solved, for the reason, the said pieces of paper may have contained a valuable information. It may be noted that according to Rani Chaudhary and Suresh Gopal they had seen the sender‟s address on a slip of paper stuck to the parcel as also had seen the name and address of the recipient on a slip of paper stuck to the parcel. 5. According to the prosecution, from the remnants i.e. the debris, on being segregated and reconstructed, Dr.G.R.Prasad (PW-62) could reconstruct two slips recording as under:- Crl.A.No.456/2008 Page 5 of 114 Slip 1 Slip 2 PA …………..OST Shiri Krishan …….. 98, Sunde……….agar From: Delhi Met……….e, 290, Hauz Qu….i Delhi ….0006 6. The typescript of the two slips, as per the prosecution, was got typed by the appellant from an institute imparting typing training at Lajpat Nagar belonging to Shri N.D.Sethi PW-27 where the appellant had visited and got typed, on an envelope, the name of the addressee and the name of the sender. As per opinion of S.K.Gupta PW-75, an examiner of questioned documents, the transcript of the two slips matched the sample transcript S-7, obtained from one out of the thirteen typewriters kept at the typing institute of Shri N.D.Sethi. As per the prosecution, it was able to track the typewriter used for typing the name and address of the addressee and the name and address of the sender pursuant to the disclosure statement Ex.PW-28/A made by the appellant. Crl.A.No.456/2008 Page 6 of 114 7. Seventy five witnesses were examined by the prosecution. Apart from the police witnesses, the doctor who conducted the post-mortem of the deceased and the forensic experts who had analyzed the debris and the typescript on the two slips, witnesses were examined to prove the motive; to prove that the appellant was seen coming out of the house of the deceased at around 7.30 – 7.45 PM on 25.9.1982; that the appellant had got typed the name and address of the sender as well as the addressee on paper which was pasted on the parcel in question; that the appellant was an ex-armyman; that the bobby trap bomb was created by using hand-grenades of Pakistani origin; that the conduct of the appellant after 25.9.1982 was suspicious and suggestive of his being the author of the crime. 8. We propose to briefly note the deposition of the witnesses, other than formal witnesses, before analyzing the impugned decision dated 28.4.2008, under which the appellant has been convicted for the offence of murdering Kishan Sikand and for the offences punishable under Section 3 & 4 of the Explosive Substance Act 1908. 9. Rani Chaudhary PW-1 deposed that she was earlier married to Sqn. Leader Pritam Singh and out of said wedlock two daughters, Mini and Maitri were born. On death of her Crl.A.No.456/2008 Page 7 of 114 husband on 31.3.1971 she married the appellant S.J.Chaudhary. Out of said wedlock one daughter named Sonal was born on 24.8.1972. Her matrimonial life was turbulent as the appellant treated her with cruelty. She lodged a report Ex.PW-1/B with the army authorities in February – March 1979. The appellant confined her in the house on 5.8.1979 and she had to jump out of the house. While so doing, she sprained her ankle and had to be treated by a homeopath as per prescription Ex.PW-1/D. On 1.9.1979 she sued for divorce in the Court of an Additional District Judge, Delhi by filing a petition Ex.PW-1/E. On 6.12.1979 an ex-parte divorce was granted by the Court in her favour. She knew deceased Krishan Sikand since 1969 – 71 and over a period of time they grew fond of each other. On 12.9.1980 Krishan Sikand proposed marriage to her which she accepted. That on 20th September, 1980 her birthday was celebrated by Krishan Sikand at a restaurant in „Oberoi Intercontinental‟ and Krishan Sikand had ordered a birthday cake on which her name was put as „Rani Sikand‟. After dinner, as they went to the parking where their car was parked, she saw appellant sitting in a car in the parking area and the appellant trailed their car. On the way, she lost track of the car of the appellant, but saw the same parked outside her residence, at which, on the Crl.A.No.456/2008 Page 8 of 114 suggestion of Krishan Sikand, she decided to spend the night at the house of Krishan Sikand i.e. 98, Sunder Nagar. Appellant met her in her house the next day and she informed him that she and Krishan Sikand were planning to marry. On 23.9.1980 she met the appellant at the shop of M/s. Bhagwan Dass Khanna and the appellant enquired from her whether a ring which she was getting repaired from said shop was gifted to her by Krishan Sikand. Since the appellant had been trailing her, Krishan Sikand expressed concern about her safety and requested her to stay with him at his house and that she agreed. The appellant continued to keep a watch on her movements and in July 1981 met her at Chungwa Restaurant and told her that he would kill her and himself. She received a telephone call on 31.7.1981 from the appellant requesting her to meet him. She refused, but at his persistence agreed to meet him. At the meeting, the appellant requested that she should leave Krishan Sikand. She refused to do so. The appellant used to constantly ring her, virtually compelling her to leave the house of Krishan Sikand as the appellant would threaten that unless he did so, he would kill Krishan Sikand. That on 15.9.1981, Krishan Sikand told her that the appellant had threatened to kill him and his father, unless she left his house. The appellant met her once again at Chungwa Crl.A.No.456/2008 Page 9 of 114 Restaurant on 24.9.1981 and reiterated his resolve to kill Krishan Sikand, unless she left his company. On 6.10.1981 she rang up the mother of the appellant and informed her of the conversations she had with the appellant. That the appellant had made a complaint to the police regarding her stay at 98, Sunder Nagar and in response, on 14.10.1981, the police came to said house and made inquires from her; she informed them that she was staying with Krishan Sikand with her own free will as her marriage with the appellant had been dissolved. On 25.9.1982 Suresh Gopal, his wife Sushma Gopal visited Krishan Sikand and herself at 7.30 PM at 98 Sunder Nagar. Around 9:00 PM all of them headed towards Pandara Road Market for dinner. While descending from the first floor of 98 Sunder Nagar, Krishan Sikand and Suresh Gopal were a little ahead of her and Sushma Gopal. Krishan saw a brownish coloured parcel ad-measuring 5” x 3” x 2” lying on the second lower most landing of the stairs. Krishan picked it up and proceeded towards the car. Krishan‟s address on the parcel was written on a white patch of paper, which was pasted on it. On 2.10.1982, she left to attend Founder‟s Day Function of her children‟s school at Sanawar. Krishan Sikand could not accompany her due to some important matter. On 2.10.1982, at around 9:15 PM, at Sanawar School she received telephonic Crl.A.No.456/2008 Page 10 of 114 information that there was an emergency and she must return to Delhi. She took the Kalka Mail and reached Delhi the next morning, and at the station, Anil Sikand and his wife; the elder brother and sister-in-law of Krishan Sikand, informed her that Krishan was no more. That the tape Ex.PW-1/P2 contained her voice and the voice of the mother of the appellant. That the tape Ex.PW-1/P1 contained her voice and the voice of the appellant. That the letters Ex.PW-1/FF to Ex.PW-1/GG were written to her by the appellant. That envelopes Ex.PW-1/001 to Ex.PW-1/14 were received by her from the appellant in which various letters were posted by the appellant to her. 10. Dr.H.Lal PW-33 a medical officer deposed that the prescription Ex.PW-1/D was written by him, but he could not identify the patient. 11. Sudhir Khanna PW-10 deposed that somewhere in July or August 1981, both Krishan Sikand and Rani Chaudhary had told him that the appellant was threatening Rani to leave the house of Krishan Sikand, on which he had suggested them to report the matter to the police as well as to tape the threats of the appellant, for which he gave them a Sony make walkman tape recorder. Crl.A.No.456/2008 Page 11 of 114 12. Kailash Nath Dwivedi PW-11 deposed that in 1981 I.J.S. Chatwal had visited him in the month of September with his wife and daughter. His daughter Rani was mentally upset as she wanted to re-marry but her ex-husband was threatening her on that score, for which he suggested some puja. 13. H.D.Sikand PW-19, father of the deceased Krishan Sikand deposed that in mid September 1981, the appellant had telephoned him at his office and told him that if Krishan Sikand fails to throw Rani Chaudhary out of his house, the appellant would cripple him i.e. Krishan Sikand and break his bones. 14. Smt.Davinder Singh PW-32 (mother-in-law of Rani from her previous marriage to Pritam Singh) deposed that somewhere in 1975–76, Rani Chaudhary requested her to permit her and her two daughters to stay with her as she was facing problems with the appellant who was maltreating her. After a year, she came back again and made a similar request at which she kept her in her house for six months. The appellant came to her house and requested her to advise Rani Chaudhary to live with him. On 31.7.1979 she and Rani went to see off Rani‟s daughters at the railway station, where the appellant was also present. While returning from the railway Crl.A.No.456/2008 Page 12 of 114 station, the appellant followed them to their house. The appellant kept knocking the door and wanted to get inside the house and insisted that he would take Rani with him. She informed the police, upon which the police came and spoke to the appellant and went away, but the appellant remained there and left in the morning. She had to lodge a complaint Ex.PW-31/A with the police. 15. Shri M.M.Thapar PW-37 (brother-in-law of Krishan Sikand) deposed that he knew the appellant since his school days and knew Rani after her marriage with the appellant. After a few years of their marriage, differences arose between them, which could not be resolved even though he tried to reconcile them. Rani Chaudhary used to complain about her being un-happy on account of maltreatment and that she wanted to separate from the appellant. The appellant and Rani used to argue in his presence and quarrel with each other. On one occasion, the appellant even slapped Rani in his presence. 16. Neelu Moolchandani PW-39 deposed that he knew Krishan Sikand and Ashok Sikand as they were in the same school and that he met Rani Chaudhary in 1980. On a couple of occasions Krishan Sikand had mentioned to him about Crl.A.No.456/2008 Page 13 of 114 threats received from the appellant to compel Krishan Sikand to throw out Rani from his house. 17. Brig. Ashok Nath Luthra PW-42 (family friend of Rani Chaudhary) deposed that Rani Chaudhary had introduced him to Krishan Sikand. Thereafter, they started visiting each other‟s house. Rani had once mentioned to him that her relations with the appellant were strained and that she planned to marry Krishan Sikand. Rani had also told him that the appellant did not like her staying with Krishan Sikand and wanted her to leave his house and that the appellant had been harassing Krishan Sikand to compel him to leave Rani. 18. Shri Gajbir Singh PW-44 deposed that he knew Krishan Sikand since 1970 as he had been participating with him in the Himalayan Car Rally. He knew Rani Chaudhary since 1979 whom he met for the first time at 98 Sunder Nagar. Around Diwali 1981, Krishan Sikand told him that he was receiving telephone calls from the appellant insisting upon him to turn Rani Chaudhary out of his house, otherwise the appellant would kill Krishan Sikand. 19. Insp.Om Sagar PW-48 deposed that complaint Ex.PW-1/MM was assigned to him for necessary inquiry vide endorsement Ex.PW-48/A. He contacted complainant Crl.A.No.456/2008 Page 14 of 114 S.J.Chaudhary who had come to the police station on 1.10.1981. On 13.10.1981 he came to him in afternoon and informed that Smt.Rani Chaudhary was present at 98, Sunder Nagar with Krishan Sikand. He went to the said place. On his enquiry they gave explanation Ex.PW-1/KK. He submitted his inquiry report Ex.PW-48/B. 20. It is apparent that aforenoted witnesses were cited to establish motive on the part of the appellant. Motive being to avenge the loss of his wife to the deceased. Through the testimony of aforenoted witnesses, obviously, the prosecution intended to prove that the appellant was having an obsession with Rani and was desiring her company at all cost. 21. We need not note the cross examination of the various aforenoted witnesses, save and except the cross examination of Rani PW-1, who was confronted with her statement recorded by the police under Section 161 Cr.P.C. in which she stated that she had seen the parcel with address thereupon written in hand and that when Krishan picked up the parcel she warned him to leave it, lest it might be containing a bomb and that on return from the dinner she was anxious to know where had the parcel been kept by Krishan. We may note that at portions marked „B‟ to „B‟, „F‟ to „F‟, „J‟ to Crl.A.No.456/2008 Page 15 of 114 „J‟ and „K‟ to „K‟ aforesaid statements find mention in Rani‟s statement recorded under Section 161 Cr.P.C. 22. Shri Anil Sikand PW-13, brother of the deceased, deposed that on 27.9.1982 he had gone to Naldhera Golf Course (in Shimla, Himachal Pradesh) with Bili, Shri H.S.Nath and another person whose name he does not remember. He saw the appellant there in a golf hut, with one Jagat Ram, a caddy master. The next day he again saw the appellant who sought his permission to join him and his friends for a game, which he initially declined, but at the persistence of the appellant made him join the game and while playing, the appellant enquired about the well being of Krishan Sikand. 23. Birender Singh PW-43 deposed that he had gone to Naldera Golf Club to practice for the annual match due to be held on 2.10.1982. Besides himself, his cousin Harinder Singh Nath and Anil Sikand and a fourth person were present. He found the appellant practicing there and exchanged greetings with him. The appellant enquired if he could play with them, which offer was accepted. During the play, appellant enquired about Krishan Sikand being fine. 24. Dalip Suri PW-60, deposed that in September 1982 he was posted in the office of Himachal Tourism. That on Crl.A.No.456/2008 Page 16 of 114 22.9.1982, booking of a log hut was made in the name of Col.S.J.Chaudhary for the period 26.9.1982 to 29.9.1982, in tourist bungalow Naldera Complex. He was allotted hut No.6 vide permit no.Ex.PW-60/A. 25. From the evidence of the aforenoted witnesses, the prosecution intended to establish the inquisitive conduct of the appellant in enquiring about the well being of Krishan Sikand, when the appellant had met Anil Sikand and Birender Singh at the Golf Course at Naldhera Himachal Pradesh on 27.9.1982. 26. Shri Suresh Gopal PW-3 deposed that he knew the deceased and Rani Chaudhary and he and his wife had been visiting them at 98 Sunder Nagar, when Rani Chaudhary was staying with Krishan Sikand. On 25.9.1982, he and his wife visited Krishan Sikand. At that time he had seen a mechanic working on the car of Krishan Sikand. While going up, he did not notice any parcel lying on the stairs. He and his wife stayed in Krishan Sikand‟s apartment for about an hour and a half and then the four i.e. Krishan Sikand, Rani Chaudhary, his wife Sushma Gopal and himself went out for dinner at about 9.00 PM. While going down the first floor apartment of Krishan Sikand, Krishan Sikand was leading them, followed by him and thereafter by his wife and Rani. On the second last landing of the steps, Krishan Sikand saw a parcel of brownish colour with Crl.A.No.456/2008 Page 17 of 114 a white paper slip marked „A1‟ pasted on it on which name and address of Krishan Sikand was typed. The parcel was 5” x 3” x 3” in size. While going towards the car, Krishan opened the mesh door of the electric meter and placed the parcel there, in a window sill, parallel to the driveway near the entrance door. 27. Vijay Ram PW-5 deposed that he was living in the servant quarters of 98 Sunder Nagar since 1968-69. He was working part-time for Mr.Kock who was living in the front portion of the first floor of 98 Sunder Nagar. Deceased Krishan Sikand was living in the remaining portion of the first floor. The man staircase was used by both families for going to the first floor. Letters were left by the postman near the stairs on the first or the second landing, and he used to pick up the letters and deliver, those belonging to Mr.Kock to him, and those belonging to Krishan Sikand to him. On 2.10.1982, he was going to Sunder Nagar Market to fetch a crate of soda water bottles for Mr.Kock and when he reached near the meters on the landing of the staircase, he noted a brown colour parcel lying inside the iron jali door of the meter enclosure. The said parcel had a paper pasted on it on which address of Krishan Sikand was written. At that time a party was going on in the house of Ashok Sikand, the elder brother of Krishan Sikand who was residing on the front side of the Crl.A.No.456/2008 Page 18 of 114 ground floor. He gave that parcel to Shyam Lal and directed him to deliver it to deceased Krishan Sikand. But, Shyam Lal expressed his inability, due to his preoccupation with the party. Thereupon, he went upstairs to the kitchen of Krishan Sikand and delivered the parcel to him, informing that the said parcel was found lying in the window sill of the enclosure of the meters. After about half an hour he returned from Sunder Nagar Market and heard an explosion when he was near the first landing of the stairs to the servant quarter. When he reached the room of Krishan Sikand where the explosion had taken place, he found him lying on the floor, bleeding in the drawing room. 28. Shyam Lal PW-6 deposed that he was working as a sweeper in 98 Sunder Nagar with Sikand for the last 12 years. He was working with them even for the period between 25.9.1982 – 2.10.1982. On 2.10.1982 he was going towards the front side park through the driveway, when Vijay PW-5 an employee of Kock met him, where the car was parked. He told him that he had found a parcel in the window sill near the meter and he wanted the same to be delivered to Krishan Sikand, to whom it was addressed. The parcel was about 5” in length. He expressed his inability to do so and told Vijay Ram to deliver it himself. After about half an hour, he heard an Crl.A.No.456/2008 Page 19 of 114 explosion on the first floor occupied by Krishan Sikand. He along with other persons went upstairs where they found Krishan Sikand lying injured and