Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 1 of 33 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 11thSeptember, 2009 Judgment Delivered On: 24th September, 2009 + CRL.A. 616/2001 KEHAR SINGH & ANR. ..... Appellants Through: Ms. Nilofar Qureshi, Advocate versus STATE ..... Respondent Through: Mr. M.N.Dudeja, Advocate CRL.A. 119/2002 UDAI VEER SINGH ..... Appellant Through: Ms. Nilofar Qureshi, Advocate versus STATE ..... Respondent Through: Mr. M.N.Dudeja, Advocate CRL.A. 643/2001 KEHAR SINGH ..... Appellant Through: Ms. Nilofar Qureshi, Advocate versus STATE ..... Respondent Through: Mr. M.N.Dudeja, Advocate CRL.A. 644/2001 VIMAL KUMAR @ PINTO ..... Appellant Through: Ms. Nilofar Qureshi, Advocate versus STATE ..... Respondent Through: Mr. M.N.Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 2 of 33 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 PRADEEP NANDRAJOG, J. 1. Criminal Appeals Nos.616/2001 and 119/2002 have been preferred by appellants; Udaiveer Singh, Kehar Singh and Vimal Kumar challenging the judgment and order dated 16.07.2001 passed by the learned Trial Judge in Sessions Trial pertaining to FIR No.658/97 registered against them. By virtue of the impugned judgment and order, appellant Udaiveer Singh has been convicted for the offences punishable under Sections 302/34 IPC and 392/34 IPC; appellants Kehar Singh and Vimal Kumar have been convicted for the offences punishable under Sections 392/34 IPC, 302/34 IPC, 392/397/34 IPC and 307/34 IPC. The appellants have been sentenced for each offence. Appellant Udaiveer Singh has been sentenced to undergo rigorous imprisonment for 7 years and pay a fine in sum of Rs.5,000/-; in default to undergo simple imprisonment for 6 months for the offence punishable under Section 392/34 IPC; imprisonment for life and a fine in sum of Rs.10,000/, in default to undergo simple imprisonment for 1 year for the Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 3 of 33 offence punishable under Section 302/34 IPC. Appellants Kehar Singh and Vimal Kumar have been sentenced to undergo rigorous imprisonment for 7 years and a fine in sum of Rs.5,000/- each, in default to undergo simple imprisonment for 6 months for the offence punishable under Section 392/34 IPC; imprisonment for life and a fine in sum of Rs.10,000/- each, in default to undergo simple imprisonment for 1 year for the offence punishable under Section 302/34 IPC; rigorous imprisonment for 7 years and a fine in sum of Rs.5,000/- each, in default to undergo simple imprisonment for 6 months for the offence punishable under Section 392/397/34 IPC and rigorous imprisonment for 7 years and a fine in sum of Rs.5,000/- each, in default to undergo simple imprisonment for 6 months for the offence punishable under Section 307/34 IPC. Benefit of Section 428 Cr.P.C. has been granted to the appellants. The sentences awarded to the appellants have been directed to run concurrently. 2. Criminal Appeal No.643/2001 has been preferred by appellant Kehar Singh challenging the judgment and order dated 16.07.2001 passed by the learned Trial Judge in Sessions Trial pertaining to FIR No.659/1997 registered against appellant Kehar Singh. By virtue of the impugned judgment and order, appellant Kehar Singh has been convicted for the Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 4 of 33 offence punishable under Section 25 Arms Act, for which offence he has been sentenced to undergo rigorous imprisonment for 4 years and pay a fine in sum of Rs.5,000/-; in default to undergo simple imprisonment for 6 months. 3. Criminal Appeal No.644/2001 has been preferred by appellant Vimal Kumar challenging the judgment and order dated 16.07.2001 passed by the learned Trial Judge in Sessions Trial pertaining to FIR No.660/1997 registered against appellant Vimal Kumar. By virtue of the impugned judgment and order, appellant Vimal Kumar has been convicted for the offence punishable under Section 25 Arms Act, for which offence he has been sentenced to undergo rigorous imprisonment for 4 years and a fine in sum of Rs.5,000/-; in default to undergo simple imprisonment for 6 months. 4. The facts as culled out by the prosecution are that on 22.01.1997 armed with country made pistols and a knife, the appellants entered into house bearing Municipal No.M-240, Guru Harkishan Nagar, Paschim Vihar, New Delhi owned by Ramesh Chander PW-19, and robbed Ramesh Chander PW-19 and his brother Subash Chand PW-17, who were present in the said house. After committing the robbery using the country made pistols and the knife, the appellants locked Ramesh Chander and Subash Chand in the said house by bolting the Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 5 of 33 entrance door of the said house from outside and fled from there. On hearing the shouts of Ramesh Chander and Subash Chand for help, the persons from the public started chasing the appellants. 5. The appellants continued to run and reached the road outside Richie Rich Restaurant, where Shamsher Singh PW-2, Randeep PW-16 and Vijay PW-18 and Mandeep (herein after referred to as the “Deceased”) were standing. Seeing the appellants being chased by the public persons, the aforesaid four persons also started chasing the appellants. After running some distance, the deceased caught hold of appellant Vimal at the road near National Market. Appellant Vimal shouted for help, upon which appellant Udaiveer Singh took out a knife and got freed Vimal from the clutches of the deceased by pointing the said knife at the deceased. Thereafter Udaiveer Singh told the other appellants that they should shoot the deceased in order to escape, upon which appellants Kehar Singh and Vimal Kumar fired shots at the deceased and the other three persons. A bullet hit the deceased and he fell down on the ground. Vijay PW-18, removed the deceased to the hospital whereas Shamsher Singh PW-2 and Randeep PW-16, continued to chase the appellants. Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 6 of 33 6. Thereafter, appellant Udaiveer Singh separated from the other appellants and ran in a lane towards Paschim Vihar whereas Kehar Singh and Vimal Kumar ran in the direction of National Market. After running some distance, Kehar Singh and Vimal Kumar stopped Anil Kohli PW-3, who was travelling on a two-wheeler scooter. They snatched the scooter from Anil Kohli by threatening him with country made pistols and started travelling on the said scooter. After travelling for some distance, Kehar Singh and Vimal Kumar abandoned the scooter at the road near District Park and ran in the direction of the bushes situated near District Park, Peera Garhi. 7. In the meantime, Anil Kohli PW-3 rang up the police informing that firing has taken place near Bhairon Enclave and that the persons who were firing has snatched a white colored Bajaj scooter bearing registration No.DL 4F 0244. The information was received at the Police Control Room, pursuant to which Lady Const.Anju PW-7, recorded the said information in the PCR Form Ex.PW-7/A. The aforesaid information was further transmitted through wireless to Police Station Paschim Vihar where Lady Const.Santra Devi PW-8, recorded the DD Entry Ex.PW-8/A; noting the aforesaid information. 8. On receipt of the information recorded in the PCR Form, Ex.PW-7/A, and the DD Entry Ex.PW-8/A, a police team Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 7 of 33 consisting of SI Ghanshyam PW-9, HC Sanwar Mal PW-21, SI Ashok Kumar PW-22, Inspector Jai Singh PW-22 and Inspector Avtar Singh Parmar PW-24, reached the place where appellants Kehar Singh and Vimal Kumar were hiding viz.; the area around the bushes situated near District Park, Peera Garhi, where they were met by Randeep PW-16 and Shamsher Singh PW-2. The aforesaid police officers saw appellants Kehar Singh and Vimal Kumar hiding in the bushes. The police officers asked the said appellants to surrender. On hearing the same, Kehar Singh and Vimal Kumar opened fire at the police officers upon which the police officers also opened fire at the said appellants. After sometime, the said appellants came out of the bushes and surrendered themselves to the police. 9. In the meantime, Const.Balwan, Duty Constable at DDU Hospital, informed Lady Const.Santra Devi PW-8, that the deceased has been declared as brought dead at the hospital pursuant to which Santra Devi recorded the DD Entry Ex.PW- 8/B; noting the aforesaid information. On learning the information recorded in the DD Entry Ex.PW-8/B, SI Ghanshyam PW-9, proceeded to DDU Hospital to collect the MLC of the deceased. 10. Thereafter Inspector Avtar Singh Parmar PW-24, recorded the statement Ex.PW-16/A of Randeep and made an Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 8 of 33 endorsement Ex.PW-24/A thereon, and at around 8.15 P.M. forwarded the same through HC Sanwar Mal PW-21, for registration of an FIR. HC Sanwar Mal took Ex.PW-24/A to the police station and handed over the same to HC Daljeet Singh PW-10, who recorded the FIR No.658/97 Ex.PW-10/A at 9.35 P.M. on 22.01.1997. 11. Reverting back to the scene at the District Park, Peera Garhi, appellants Kehar Singh and Vimal Kumar were arrested by the police. They were disarmed i.e. the country made pistols were taken possession of by the police. Both pistols were found loaded with a live cartridge each. The said country made pistols and the cartridges were seized vide memos Ex.PW-22/D and Ex.PW-16/M. A personal search of the said appellants was conducted. Two gold rings and a sum of Rs.2,000/- were recovered from the possession of appellant Kehar Singh and the same were seized vide memo Ex.PW- 24/B. A gold chain with locket, a wrist watch and a sum of Rs.7.025/- were recovered from the possession of appellant Vimal Kumar and the same were seized vide memo Ex.PW- 24/C. Inspector Avtar Singh Parmar PW-24, prepared the rough site plan of the place where appellants Kehar Singh and Vimal Kumar were hiding; being Ex.PW-16/Q. Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 9 of 33 12. SI Ashok Kumar PW-22, prepared the endorsement Ex.PW-22/B in respect of the recovery of a country made pistol from the possession of appellant Kehar Singh whereas Inspector Jai Chand PW-23, prepared the endorsement Ex.PW- 23/A in respect of the recovery of a country made pistol from the possession of appellant Vimal Kumar. Pertaining to the recovery of the country made pistol from the possession of appellant Kehar Singh, FIR No.659/97 under Sections 25/27 of Arms Act was registered against Kehar Singh. Pertaining to the recovery of the country made pistol from the possession of appellant Vimal Kumar, FIR No.660/97 under Sections 25/27 of Arms Act was registered against Vimal Kumar. 13. Thereafter Inspector Avtar Singh Parmar PW-24, proceeded to the place where Kehar Singh and Vimal Kumar fired shots at the deceased and the other three persons. Inspector Avtar Singh Parmar found that the ground at the said place was stained with blood and that two empty cartridge cases were lying therein. He lifted the blood, blood stained earth from the place of the murder of the deceased and seized the said materials as also the earth control and the two empty cartridge cases vide memo Ex.PW-16/D. Const.Dharambir PW- 5, photographer, was summoned to the place of the murder of the deceased. He took six photographs Ex.PW-5/A-1 to Ex.PW- Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 10 of 33 5/A-6 of the place of the murder of the deceased; negatives whereof are Ex.PW-5/B-1 to Ex.PW-5/B-6. 14. After conducting investigation at the place where the deceased was murdered, Inspector Avtar Singh Parmar returned to the place where Kehar Singh and Vimal Kumar were apprehended and interrogated them. We need not note the contents of their confessional statements inasmuch as the same are completely inadmissible in evidence as they admit of guilt. We note that no recovery was effected nor was a fact discovered by the police pursuant to the said statements made by appellant Kehar Singh and Vimal Kumar. Thereafter Kehar Singh and Vimal Kumar pointed out the place where the deceased was murdered; the place where the scooter of Anil Kumar was snatched as also the place where robbery was committed i.e. the house of Ramesh Chander vide memos Ex.PW-16/G, PW-16/H and PW-16/T respectively. 15. Inspector Avtar Singh Parmar accompanied by SI Ashok Kumar PW-22, Inspector Jai Chand PW-23, Kehar Singh and Vimal Kumar proceeded to Kapasehra where he arrested appellant Udaiveer Singh from outside a house. The personal search of appellant Udaiveer Singh was conducted. Two wrist watches and a sum of Rs.5,300/- was recovered from the Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 11 of 33 possession of Udaiveer Singh and the same were seized vide memo Ex.PW-24/D. 16. On being interrogated by Inspector Avtar Singh Parmar PW-24, in the presence of SI Ashok Kumar PW-22 and Inspector Jai Chand PW-23, appellant Udaiveer Singh made a disclosure statement Ex.PW-16/I wherein he confessed to the offences being committed by him along with the other two co- accused and stated that he can get recovered the knife used by him. Pursuant thereto, he led the aforesaid police officers to a park and got recovered a knife lying hidden in the grass. The said knife was seized vide memo Ex.PW-16/C. Inspector Avtar Singh Parmar PW-24, prepared the sketch of the said knife; being Ex.PW-16/O. Thereafter appellant Udaiveer Singh pointed out the place where the deceased was murdered as also the place where the robbery was committed i.e. the house of Ramesh Chander, vide memos Ex.PW-16/J and Ex.PW-16/L respectively. 17. On the next day i.e 23.01.1997 the appellants led the police to the residence of one Om Parkash and pointed out towards Om Parkash as the person who conspired with them for commission of the offence of robbery at the residence of Ramesh Chander. The police arrested accused Om Parkash. Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 12 of 33 18. Since the deceased was declared brought dead at the hospital, his body was transferred to the mortuary of DDU Hospital at 2.45 P.M. at 23.01.1997 where Dr.Komal Singh PW- 11, conducted the post-mortem and gave his report Ex.PW- 11/A which records following injuries on the person of the deceased:- “1. A stellate shape (elliptical) entry wound of bullet about 2.4 cm X 3 cm present over 6th ICS of ant. chest 8.8 cm from R nipple & 2.4 cm from mid line. Margin inverted. Blackening around the wound present. Clotted blood present over it. 2. An exit wound of above bullet present on post side of chest (back) 4.5 cm from mid line at the level of T4-T5. Wound on 1.5 cm X 1 cm margins inverted. No blackening around it.” 19. The doctor further opined that the afore-noted injuries found on the person of the deceased are caused by firearm. Injury found on the heart of the deceased was sufficient to cause immediate death. The injuries found on the person of the deceased were ante-mortem in nature and of same duration. 20. After the post-mortem, the doctor handed over the blood stained clothes and blood sample of the deceased on a gauze to Const.Mahinder Singh PW-6, who seized the same vide memo Ex.PW-24/E. Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 13 of 33 21. On 24.09.1997 SI Mukesh PW-12, a draftsman, prepared the site plan to scale Ex.PW-12/A where the deceased was murdered. 22. The seized materials; namely, the clothes and blood sample of the deceased and the earth and blood lifted from the place of the murder of the deceased were sent to CFSL for serological examination. Likewise, the country made pistols recovered from the possession of appellants Kehar Singh and Vimal Kumar and the empty cartridge cases recovered from the place of the murder of the deceased were sent to CFSL for ballistic examination. Vide CFSL report Ex.PW-24/F, it was opined that the blood lifted from the place of the murder of the deceased was human blood; that human blood was detected on the clothes of the deceased; that earth lifted from the place of the murder of the deceased was stained with blood, origin whereof could not be determined and that blood group of the deceased was A. Vide CFSL report Ex.PW-24/G it was opined that the country made pistols recovered from the possession of appellants Kehar Singh and Vimal Kumar were found in working order and were capable of firing; that two of the empty cartridge cases sent to the CFSL were fired from the country made pistol recovered from the possession of Vimal Kumar and one of the empty cartridge case sent to the CFSL Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 14 of 33 was fired from the country made pistol recovered from the possession of Kehar Singh. 23. Armed with the aforesaid materials, a challan was filed against the appellants. It be noted here that vide order dated 22.04.1998 learned Trial Judge discharged accused Om Parkash. Needless to state, charges were framed against the appellants, which read as under:- CHARGE “I, R.L.Chugh, Addl. Sessions Judge, Delhi do hereby charge you:- 1. Udai Veer Singh S/o Sadhu Singh 2. Kehar Singh S/o Prahlad Singh 3. Vimal Kumar @ Pintoo S/o Jangir Singh as under:- Firstly, that on 22.7.97 at about 5: 30 PM at Main Road, opposite, National Market, Meera Enclave, peera garhi chowk within the jurisdiction of PS Paschim vihar in furtherance of your common intention you. (Kehar Singh) and your (Vimal Kumar) fired at and killed Mandeep and thereby committed an offence punishable u/s 302/34 IPC and within the cognizance of this court. Secondly, that on the aforesaid, date, time and place, in furtherance of your common intention you (Kehar Singh) and you (Vimal Kumar) fired at Mandeep with the intention to kill and thereby committed an offence punishable u/s 307/34 IPC and within the cognizance of this court. Thirdly, that on the aforesaid date, time and place, in furtherance of your common intention near National Market on outer ring road you (Kehar Singh) and you (Vimal Kumar) showed deshi kattat to Anil Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 15 of 33 Kumar s/o O.P. Kohli and robbed him of his scooter No.DL 4S F 0244 and you all thereby committed an offence punishable u/s 392/34 IPC and with you (Kehar Singh) and you (Vimal Kumar) also committed an offence punishable u/s 397 IPC as you were armed with deshi katta when committed the robber of the scooter. Fourthly, on the aforesaid date, time and place in furtherance of your common intention you (Kehar Singh) and you (Vimal Kumar ( wrongfully confined mandeep who were pursuing you and thereby committed and offence punishable u/s 342/34 IPC and within the cognizance of this court. Further on the aforesaid date, time and place you all were party to criminal conspiracy to commit an offence murder, attempt to murder, robbery and thereby committed an offence punishable u/s 120 (b) IPC and within the cognizance of this court. Further on the aforesaid date, time and place you all in furtherance of your common intention robbed Ramesh Chand and Subash of gold chain and cash and other gold articles mentioned in the police report., and thereby committed an offence punishable u/s 392/34 IPC and within the cognizance of this court. Further on the aforesaid date, time and place time and place you all in furtherance of your common intention in the jungle of Paschim Vihar you (Kehar Singh) and you (Vimal Kumar) fired with katta at the police party which had surrounded you and wanted to apprehend you with the intention of killing them and thereby committed an offence punishable u/s 307/34 IPC and within the cognizance of this court. And I hereby direct that you be tried by this court for the aforesaid charge” 24. Charges under Sections 25/27 Arms Act were also framed against appellants Kehar Singh and Vimal Kumar in respect of FIR’s Nos.659/97 and 660/97 registered against them. Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 16 of 33 25. For convenience, learned Trial Court could have tried all the charges framed against the appellants jointly in terms of Section 220 of the Code of Criminal Procedure. However, three separate trials were instituted. The first trial was with respect to the FIR No.658/97; the second trial was with respect to the FIR No.659/97 and the third trial was with respect to the FIR No.660/97. Since the evidence recorded in three trials was similar, we consider it appropriate the note the evidence recorded in the trial pertaining to the FIR No.658/97. 26. At the trial pertaining to the FIR No.658/97, the prosecution examined 24 witnesses. 27. We need not note the testimony of the various police officers for the reason they have parroted the facts noted herein above by us pertaining to the seizures effected, the arrest of the appellants, the disclosure statements made by them and the recovery effected pursuant to the disclosure statement of Udaiveer Singh. 28. Anil Kohli PW-3, deposed that on 22.01.1997 appellants Kehar Singh and Vimal Kumar snatched his scooter from him after threatening him with country made pistols. 29. Subash Chand PW-17 and Ramesh Chander PW-19, deposed that on 22.01.1997 the appellants unlawfully entered Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 17 of 33 the house of Ramesh Chander and robbed them of their valuable possessions after threatening them with the country made pistols and a knife. They further deposed that the articles seized vide memos Ex.PW-24/B, Ex.PW-24/C and Ex.PW-24/D were the articles which were robbed by the appellants from them on 22.01.1997. 30. Randeep PW-16, deposed in harmony with his statement Ex.PW-16/A. He deposed that on 20.1.1997 at about 5:45 PM he along with the deceased who was his brother, Shamsher Singh and Vijay was standing on the road outside Richie Rich restaurant when he saw that the appellants were being chased by the public persons. On seeing the same, they also started to chase the appellants. After running some distance, the deceased caught hold of appellant Vimal Kumar upon which Vimal Kumar called the other two appellants for help. Appellant Udaiveer Singh pointed a knife towards the deceased and got freed Vimal Kumar from the clutches of the deceased. Udaiveer Singh caught hold of the deceased and told the other appellants that they should shoot the deceased in order to escape upon which Kehar Singh and Vimal Kumar fired shots at him and the deceased. He managed to duck the bullets but one bullet hit the deceased due to which the deceased fell down on the ground. Vijay stopped near the Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 18 of 33 deceased whereas he and Shamsher Singh continued to chase the appellants. After some distance, Kehar Singh and Vimal Kumar snatched a scooter from Anil Kohli and started travelling on the said scooter whereas Udaiveer Singh in the direction of National Market. Thereafter he and Shamsher Singh continued to chase Kehar Singh and Vimal Kumar by taking lift in a car. Kehar Singh and Vimal Kumar abandoned the scooter and hid in the bushes near DTC Depot at Peera Garhi. Thereafter a police team came at the said place. Kehar Singh and Vimal Kumar opened fire at the police officers upon which the police officers also fired a shot at the said appellants. The said appellants were overpowered by the police officers namely Inspector Avtar Singh Parmar, SI Ashok Kumar, Inspector Jai Singh and HC Malkiat Singh. 31. Shamsher Singh PW-2, deposed in harmony with the testimony of Randeep PW-16. 32. Vijay PW-18, deposed that on the fateful day he along with the deceased, Randeep and Shamsher Singh was standing on the road opposite Richie Rich restaurant when he saw that the public persons were chasing the appellants. On seeing the same, they also started chasing the appellants. After some distance, they apprehended the appellants upon which the appellants took out country made pistols and a Crl.A.Nos.616/2001, 119/2002, 643/2001 & 644/2001 Page 19 of 33 knife. On seeing the arms in the hands of the appellants, he and Shamsher Singh left, while the deceased and his brother Randeep continued to chase the appellants. The accused hid in a slum dwelling. A lady