Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 1 of 24 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 12th October, 2009 Judgment Delivered on: 21stOctober, 2009 CRL.REV.P.581/2000 VINOD SOLANKI ..... Petitioner Through: None. Versus DALEL SINGH & ORS. ..... Respondents Through: Mr.Mohit Mathur with Mr.Vishwajit Singh and Mr.Shikhar Jain, Advocates for Respondent Nos. 1 to 6. Ms.Fizani Husain, APP for the State/Respondent No.7. CRL.A.576/2000 RAKESH KUMAR ..... Appellant Through: Mr.Mohit Mathur with Mr.Vishwajit Singh and Mr.Shikhar Jain, Advocates. Versus STATE OF N.C.T. OF DELHI ..... Respondent Through: Ms.Fizani Husain, APP. CRL.A.671/2000 DALEL SINGH ..... Appellant Through: Mr.Mohit Mathur with Mr.Vishwajit Singh and Mr.Shikhar Jain, Advocates. Versus STATE OF N.C.T. OF DELHI ..... Respondent Through: Ms.Fizani Husain, APP. AND Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 2 of 24 CRL.A.360/2004 PREM WATI ..... Appellant Through: Mr.Mohit Mathur with Mr.Vishwajit Singh and Mr.Shikhar Jain, Advocates. Versus STATE ..... Respondent Through: Ms.Fizani Husain, APP. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 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 reported in the Digest? Yes INDERMEET KAUR, J. 1. This judgment will dispose of the aforementioned appeals which have arisen out of a common incident dated 14.7.1997 which had become the subject matter of FIR No.447/1997 registered under Sections 304/452/34 IPC P.S. Dabri. 2. Accused Dalel Singh, Ved Parkash, Khazan Singh, Mam Chand, Ramesh, Rakesh Kumar and Ram Dass i.e. seven persons had been set up for trial in the first instance. Vide judgment dated 26.8.2000, all the accused persons except accused Ram Dass had been convicted for the offence punishable under Section 147/148/452/149/304-II/149/501-I/149 of the IPC. They had been sentenced to undergo RI for one year for the offence punishable under Section 147 of the IPC; RI for two years for the offence Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 3 of 24 punishable under Section 148 of the IPC; RI for three years and a fine of Rs.500/- in default of payment of fine RI for three months for the offence punishable under Section 452/149 of the IPC; for the offence punishable under Section 506-I/149 of the IPC the aforestated convicts have been awarded RI for one year; for the offence punishable under Section 304-II/149 of the IPC Accused Dalel Singh, Khazan Singh, Ramesh, Mam Chand and Ved Prakash were awarded the substantive sentence of the imprisonment already undergone by them besides a fine of Rs.10,000/-; in default of payment of fine to undergo RI for two years. Out of the total fine deposited Rs.45,000/- was to be paid to the widow of the deceased by way of compensation. Accused Rakesh Kumar had been sentenced for the offence punishable under Section 304-II/149 of the IPC to undergo RI for a period of five years and to pay a fine of Rs.10,000/-; in default of payment of fine RI for two years, out of which an amount Rs.9000/- was to be paid to the share of the widow of the deceased. Accused Ram Dass had been acquitted of all the charges leveled against him. 3. Accused Rakesh Kumar has challenged this order of conviction and sentence vide Crl.A.No.576/2000. Dalel Singh had challenged the order of conviction and sentence vide Crl.A.No.671/2000. 4. Accused Prem Wati had not been arrested in the first instance. She had been evading arrest and a supplementary charge-sheet had been filed against her. Vide impugned Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 4 of 24 judgment dated 15.4.2000, she had been convicted for the offence punishable under Sections 147/148/149/304-II/501-I/452 of the IPC vide order of sentence dated 19.4.2004. She had been sentenced to undergo RI for one year for each of the offence punishable under Section 147/148/149 of the IPC. She had been sentenced to undergo RI for three years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo RI for 10 months for the offence punishable under Section 304-II of the IPC. She had further been sentenced to undergo RI for one year and to pay a fine of Rs.1000; in default of payment of fine to undergo RI for one month for the offence punishable under Section 452 of the IPC. For the offence punishable under Section 506 Part I of the IPC she had been sentenced to undergo RI for one year. This judgment and order of sentence was challenged by Prem Wati vide Crl.A.No.360/2004. 5. Vinod Solanki was the complainant in this case. Vide Crl.Rev.P.No.581/2000 he had challenged the order of sentence dated 30.8.2000 inflicted upon Dalel Singh, Ved Prakash, Khazan Singh, Mam Chand, Ramesh and Rakesh Kumar and had sought enhancement of their sentence. 6. The facts as culled out by the prosecution are as follows: (i) On 14.7.1997 between 9 to 10 PM Dalel Singh along with his wife Prem Wati, his four sons Khajan Singh, Ramesh, Rakesh Kumar and Ved Prakash along with Mam Chand and Ram Dass had trespassed into the house of deceased Shri Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 5 of 24 Krishan i.e. house no. QZ 791, Palam Village, New Delhi. Dalel Singh along his family was living in the house opposite the house of the deceased Shri Krishan. The accused persons were armed with dandas, lathis, iron rods and a brick. At that time, the house of the victim was locked; hearing noises and cries, Shri Krishan unbolted the entrance door. Dalel Singh, Rakesh, Khazan Singh, Ramesh, Ved Prakash & Mam Chand along with the wife of Dalel Singh i.e. Prem Wati came inside the house; Ved Prakash and Rakesh were holding dandas and Mam Chand and Ramesh were having iron rods. Dalel Singh was holding a lathi and wife of Dalel was having a piece of brick in her hand. Ramesh was exalting the other co-accused ‘Mar Do Salon Ko Taki Roz Ka Jhagda Khatam Ho’. Khazan Singh had caught hold of Shri Krishan; Prem Wati threw a piece of brick upon him which hit him on his nose; efforts to save the victim by his son Vinod were frustrated when Dalel Singh and Ved Prakash pushed Vinod with a force pursuant to which he fell down. Rakesh holding a danda struck Shri Krishan on his head as a result of which Shri Krishan fell down. The injured was removed to DDU hospital, where he was declared brought dead. (ii) Statement of Vinod the son of deceased Shri Krishan Ex.PW-2/A was recorded in the hospital whereupon this investigation was set into motion. The rukka was Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 6 of 24 dispatched at 1.05 AM in the early morning hours of 15.7.1997 pursuant to which the present FIR was registered. (iii) Two sons of the victim Shri Krishan have been examined. Vinod PW-2 was an eye-witness to the incident; the second son of the victim Nitu who had reached the spot immediately after the incident and saw his father lying in an unconscious condition has been examined as PW-1; wife Sheela Devi was also a an eye-witness and she has been examined as PW-3. Shukhbir PW-6 was the elder brother of the victim. Another brother of the victim Jai Bhagwan has been examined as PW-4. Injured had been removed to the DDU hospital where he was examined by Dr.Vijay Kumar PW-12 vide MLC Ex.PW-12/A noting that the patient had been brought dead in the casualty. Dr.Komal Singh PW-7 had conducted the post-mortem on the deceased and the cause of death was opined as death due to comma caused by head injury; head injury was sustained by a blunt impact on the head sufficient to cause death in the ordinary course of nature. His report had been proved as Ex.PW-7/A. Vide Ex.PW-7/C a subsequent opinion had been given by Dr.Komal Singh on the weapon of offence i.e. the bamboo danda which had been produced before him. His opinion was to the effect that the swelling on the occipital region of scalp could have been caused by this weapon. The Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 7 of 24 investigating officer SI Rakesh Giri had come into the witness box as PW-14. 7. On behalf of the accused it has been argued that the judgment of the trial court suffers from several infirmities. (i) Testimony of the eye-witnesses PW-2 and PW-3 is liable to be disbelieved as they are close relations of the victim being the son and the wife of the deceased and being interested witnesses. Their testimony has to pass the test of a strict scrutiny and they have failed to pass this test. Their conduct is highly unnatural; they had made no efforts to save the victim and this is evident from the fact that neither of them have received any injuries; reliance has been placed upon AIR 1993 SC 1462 Anil Phukan vs. State of Assam to support this submission. Attention has been drawn to the cross-examination of PW-2; when confronted with his earlier statement made before the police Ex.PW-2/A wherein improvements made by the witness on oath in court have been pointed out. It is submitted that in his first statement before the investigating officer PW-2 had not stated that when he was returning back along with his mother to the house, Dalel Singh and his four sons were standing in the lane. The details of the arms carried by the accused persons had also not been mentioned in his first statement. PW-3 had also been confronted with his statement Ex.PW-3/DA made before the investigating officer. It is submitted that in Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 8 of 24 her first statement PW-3 had not mentioned that Dalel Singh, Mam Cand and Rakesh were talking outside the house of Dalel Singh when she bolted the entrance gate of her house. The omissions in this statement had also been pointed out qua her version on oath in court. It is submitted that in her statement before the investigating officer she had not mentioned that Ram Das had also accompanied the accused persons or that he was holding a danda and this had found mentioned for the first time in her version on oath in court. (ii) The weapon of offence i.e. the danda has a length of 116.4 cms i.e. approximately 4 feet. The incident had taken place in the gallery of the house. On this score, attention has been drawn to the version of PW-1 who has admitted that the gallery in the house is 15 to 20 feet in length and the width is about 3 to 3 ¼ feet. Investigating Officer PW-14 has stated that the height of the gallery his 7 feet. Attention has also been drawn to the site plan Ex.PW-14/B; Mark A being the place where the victim was found lying in an unconscious state. In these circumstances, it would not have been possible to swing this weapon of offence which is four feet in length in a circumference of a gallery having a height of only seven feet and being not more than three feet wide. Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 9 of 24 (iii) Medical report is inconsistent with the oral version of the eye-witnesses, namely, PW-2 and PW-3. It is submitted that as per the version of PW-2, Khazan Singh had caught hold of the deceased by putting his arms from behind whereupon accused Rakesh holding a danda struck him on the head; since this injury was inflicted while the deceased was being held from the back, the injury suffered by the victim should have been on the nape of his neck. Attention has been drawn to the post-mortem report Ex.PW-7/A where swelling had been noted on the occipital region and a linear fracture had been noted on the occipital bone. It is submitted that the occipital region being the front portion of the head; this medical evidence is contrary to the oral version of the eye-witnesses. (iv) There is no explanation as to why material witnesses i.e. Rishi Prakash and Kavita have not been examined. (v) Role attributed to each accused has not been defined; reliance has been placed upon 1977 SCC (Crl.) 538 Hiralal Mallick vs. State of Bihar in support of this argument. (vi) Recovery of the danda was effected pursuant to the disclosure statement of Rakesh which was recorded on 24.9.1997 i.e. after a lapse of more than two months; the danda as per the version of Jai Bhagwan PW-4 who was a witness to the recovery was admittedly from an open place Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 10 of 24 which was accessible to all; such a recovery has no sanctity in the eye of law. (vii) Unequal sentences for identical offences is also not permitted; Rakesh, Dalel and Prem Wati have all been awarded separate sentences; Rameshwar Dayal vs. State of U.P. 1971 (3) SCC 924 prohibits such a policy. 8. For all the aforestated reasons, it is clear that the investigation is tainted and benefit of doubt has to accrue in favour of the appellants entitling them to an acquittal. 9. The record has been perused and the submissions and the counter-submissions made by the respective parties have been appreciated. 10. The incident is dated 14.7.1997. Occurrence is between 9 to 10 PM. Before this incident at about 8.50 PM as per the version of Sukhbir Singh PW-6 while he was returning home, near the Shiv Mandir on the road of the Dharamshala, he noted that Mam Chand, Rakesh and Dalel were standing. Mam Chand was hurling abuses at him at the behest of Rakesh and Dalel; Mam Chand was under the influence of liquor. His sister-in-law i.e. Sheela PW-3 and his nephew i.e. Vinod PW-2 joined him there; they i.e. PW-2 and PW-3 accompanied PW-6 back to his residence; after about 15 minutes PW-6 noticed PW-3 coming to his house; she was crying and informed him that Rakesh, Dalel, Ved Prakash, Ramesh, Khazan Singh and Mam Chand and wife of Dalel had entered their house and attacked her husband; the said persons were armed Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 11 of 24 with dandas, rods and brick pieces; Shri Krishan had become unconscious. PW-6 accompanied PW-3 to the spot where he found that his nephew Vinod PW-2, Nitu PW-1 and Rishi Prakash had removed the injured to the hospital; on reaching the hospital PW-6 learnt that Shri Krishan had been brought dead. In his cross- examination PW-6 has admitted that when he reached the house of his brother, he found Kavita his daughter present in the house; none of the other family members was present; two or three tenants were present; he reached the DDU hospital in his car; there was no blood in the house when he reached his brother’s house; the gallery was empty. He denied the suggestion that he is deposing falsely. 11. PW-1 Nitu, the elder son of the deceased was returning back to his house on the fateful evening at about 9.15 PM when he noticed that all the accused persons namely Dalel Singh, Khazan Singh, Ramesh, Rakesh Kumar, Ved Prakash, Prem Wati and Mam Chand beating the door of his house; some were having dandas and others were having iron rods; Ved Prakash shouted ‘Pakad Lo Sale Ko Jaan Se Mar Do Jane Na Paye’; on hearing this exaltation PW-1 rushed back towards the Shiv Mandir situated near the lane of his house and hid himself behind the temple. He remained there for three to four minutes. He saw his mother PW-3 coming out from the house. She was weeping and was shouting ‘Maar Diya-Maar Diya’. PW-1 came out of the temple and went towards his house and saw his father lying in the gallery of the house; his Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 12 of 24 younger brother PW-2 was massaging his feet. On enquiry from PW-2 he was told that all the accused had come inside his house and Rakesh had given a danda blow on the head of his father; his mother went to call his uncle Sukhbir Singh. PW-1 along with his cousin Rishi Kumar and another uncle Jai Bhagwan removed their father to the Sunil Nursing Home; doctor in the nursing home advised them to take the injured to a big hospital i.e. the DDU hospital, in the casualty his father was reported declared dead. Police reached the hospital. In his cross-examination, PW-1 has stated that his father was aged about 48 years; the gallery in his house is about 15 to 20 feet in length; the width being 3 to 3 ¼ feet; he did not notice any blood in the gallery; he noted abrasions over the nose of his father. He has admitted that from the temple where he had hidden himself, his house was visible. He denied the suggestion that he is deposing falsely because of enmity with the accused persons. He also denied the suggestion that his father had suffered a heart attack or a stroke prior to this incident or that his father was a chronic epilepsy patient. 12. Eye-witnesses to the incident have been examined as Vinod PW-2 and Sheela PW-3, the son and wife of the deceased. 13. PW-2 has deposed that on 14.7.1997 when was returning to his house at about 9 PM, near the corner of the lane he noticed that accused Mam Chand was abusing his uncle Sukhbir; his mother Sheela also reached there. He i.e. PW-2 and his mother requested his uncle Sukhbir not to enter into any argument with Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 13 of 24 Mam Chand as Mam Chand had consumed liquor; he i.e. PW-2 and PW-3 accompanied Sukhbir back to his house; PW-2 and his mother returned back to the house; after sometime Dalel Singh and his sons namely Rakesh, Khazan Singh, Ved Prakash, Ramesh along with Mam Chand started shouting absuses outside their house. PW-2 heard Ved Prakash shout that Nitu had come and ‘Pakar Lo Sale Ko Jan Say Mar Do, Bach Kar Na Jaye’. PW-2 thought that Dalel Singh might have caught hold of Nitu; door of the house was opened; at that time Dalel Singh, Rakesh, Kazan Singh, Ramesh, Ved Prakash, Mam Chand along with the wife of Dalel Singh came inside their house. Ved Prakash and Rakesh were holding dandas, Mam Chand and Ramesh were having iron rods. Dalel was holding lathi and wife of Dalel was having pieces of brick in her hand. Ramesh shouted ‘Maar Do Salo Ko Takee Roz Ka Jhagra Khatam Ho’; Khazan Singh caught hold of Shri Krishan by putting his arms behind him; wife of Dalel threw pieces of brick on Shri Krishan which hit him on his nose. PW-2 ran to save his father; Dalel Sigh and Ved Prakash pushed him Krishan as a result of which he fell down. Rakesh was having a danda in his hand. He struck the danda on the head of his father; his father fell down; accused persons ran away from the house; while running Ramesh and Khazan Singh were shouting ‘Sudhar Jao Sao Warna Sabhi Ka Yahi Haal Karenge’; Nitu and his cousin brother Rishi Kumar came to the house; PW-2 disclosed the said incident to them. Thereafter the injured was removed in the emergency ward of the DDU Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 14 of 24 hospital where he was declared dead. His statement Ex.PW-2/A was recorded in the hospital; PW-2 along with Nitu and Rishi Kumar returned back to the house. At about 1.30 AM; the pieces of brick were seized by the police from the spot. In his cross- examination, PW-2 has admitted that he was a 10th Class student at the time of the incident; his house is situated at a distance of 40-45 yards away from the place where his uncle Sukhbir was being abused; the house of accused Mam Chand is situated at the corner of the lane. PW-2 has admitted that there is a gallery in their house which is about 20 feet in length and rooms are situated on either side of the gallery. There is a courtyard at the end of the gallery from where there is access to the first floor. PW-2 has further stated that the door of the house was opened by his father and he and his mother were just behind their father. He has admitted that the accused had entered upto a distance of about 2-3 feet in the gallery and they surrounded the three of them i.e. his deceased father, his mother PW-3 and himself in the gallery. He denied the suggestion that he is deposing falsely because of enmity with the accused persons and this was a chance to implicate them in a false case. 14. The second eye-witness is Sheela Devi examined as PW-3. She was the widow of deceased Shri Krishan. She has corroborated the version of PW-3. She has deposed that on 14.7.1997 at about 9-9.15 PM she was present inside the house when she heard a noise coming from outside; the noise was Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 15 of 24 coming from near Shiv Mandir Dharamshala; she went to the said spot and found Mam Chand filthily abusing Sukhbir her younger brother-in-law, her son Vinod also joined them; they i.e. PW-2 and PW-3 requested Sukhbir not to talk with Mam Chand; they i.e. PW- 2 and PW-3 accompanied Sukhbir back to his house and thereafter they returned back to their own home; the house of accused Dalel Singh is situated in front of their house; she went inside the room and bolted the door; just after one or two minutes there was a banging on the door; she i.e. PW-3 heard shouts of ‘Salo Darwaja Khol Do Har Roz Ka Ragra Mita Denge’; PW-3 heard Ved Prakash shouting that Nitu had come and he should be caught. Shri Krishan opened the door of their house to protect Nitu; when Shri Krishan opened the door Dalel, his wife Pram Wati, his four sons Ved Prakash, Rakesh, Ramesh and Khazan Singh along with Mam Chand came inside their house; Rakesh was holding a danda; Dalel was having lathi; Khazan was carrying danda; Ved Prakash was also having a danda; Mam Chand and Ramesh were having iron rods in their hands and Prem Wati was holding piece of brick. Khazan caught hold of Shri Krishan; Prem Wati threw piece of brick on his nose; Rakesh hit danda blow forcefully on the head of Shri Krishan; Shri Krishan fell down; Vinod intervened to rescue his father; Dalel and Ved Prakash pushed him; all the accused persons ran way; while running they threatened that ‘Salo Sudhar Jao Warna Tum Sab Ka Yahi Hal Karenge’. PW-3 went to call her brother-in-law Sukhbir and related the incident to him. In her Crl.Rev.P.581/2000 and Crl.A.Nos.576/2000,671/2000 & 360/2004 Page 16 of 24 cross-examination, she had admitted that the width of gallery in their house is about 20 feet; the height being about 10 feet. She has categorically deposed that her husband was never ill in his lifetime and he did not suffer from epilepsy; he was a healthy man. She admitted that the incident had occurred inside the gallery which was at a distance of about 2 feet from the entrance door; no blood had fallen in the gallery. She denied the suggestion that because of enmity the accused persons have been falsely implicated. She denied the suggestion that she did not witness the incident. 15. PW-2 and PW-3 are the eye-witnesses. Their versions are consistent, cohesive and cogent. No discrepancies have been noted which could assail their versions in any manner. They have in graphic detail described the first incident i.e. the verbal altercation which had taken place between Sukhbir and Mam Chand whereupon PW-2 and PW-3 had intervened and requested Sukhir not to enter into any argument with Mam Chand as Mam Chand was in an intoxicated stage.