Research › Search › Judgment

Delhi High Court · body

2010 DIGILAW 361 (DEL)

Virender Kumar v. State (N. C. T. of Delhi)

2010-02-26

A.K.SIKRI, AJIT BHARIHOKE

body2010
Ajit Bharihoke, J. 1. The appellants Kaptan Singh, Virender and Jai Kumar, on being convicted in terms of impugned judgment dated 21st April 1997 for the offences punishable under Section 302 IPC and Section 201 IPC both read with Section 34 IPC in Sessions Case No. 143/1995, FIR No. 227/1995, Police Station Narela and sentenced in terms of order on sentence dated 22nd April 1997, have preferred the instant appeals. 2. Briefly stated, case of the prosecution is that on 8th July 1995 at about 9.00 p.m., the appellants Kaptan Singh, Jai Kumar and Virender went to the house of Anup Singh (hereinafter referred to as the `deceased'). The deceased left with them, telling his mother Sarla Devi (PW-1) that he was going for a bath at the tube well of Bholu. He, however, did not return back. Around 1.00 a.m., Satpal (PW-4) father of the deceased returned home after duty and PW-1 expressed anxiety about her son and told her husband PW-4 that the deceased had gone with the three appellants and not returned back. PW-4 Satpal thereupon went to the respective houses of the appellants but none of them was available. On 9th July 1995 at around 9.30 p.m. Satpal saw appellant Kaptan Singh going with his father. He enquired about his son Anup. Initially, Kaptan Singh feigned ignorance but on sustained interrogation, he broke down and confessed that he, along with the other two appellants had killed the deceased on the previous night. In the meanwhile, somebody informed the police and on the receipt of said information, which was recorded at the police station as DD No. 20-A, the police arrived in the village. On interrogation, appellant Kaptan Singh repeated his confession and made a disclosure, pursuant to which dead body of the deceased was recovered, found buried in the drain near Safiyabad Road, Delhi. The recovery was effected on the night intervening 9th and 10th July 1995. 3. The post mortem on the dead body was conducted by Dr.L.T.Ramani, PW-14 on 10th July 1995 at 12.00 Noon. He found as many as 9 incised wounds on the dead body, besides an abrasion on the tip of right shoulder of the deceased. He opined that the death was homicidal and it had occurred 40 hours earlier, which fixes the time of death of the deceased on or about the night intervening 8th and 9th July 1995. 4. He found as many as 9 incised wounds on the dead body, besides an abrasion on the tip of right shoulder of the deceased. He opined that the death was homicidal and it had occurred 40 hours earlier, which fixes the time of death of the deceased on or about the night intervening 8th and 9th July 1995. 4. On 14th July 1995, appellants Jai Kumar and Virender were arrested from village Bajit Pur. On interrogation, appellant Jai Kumar got recovered the `dao' Ex.P-11 from a `jawar' field and the appellant Virender Kumar led the police party to a bush from where he got recovered a `kassi' Ex.P-12. Those weapons were shown to Dr.L.T.Ramani during his testimony in the Court and he opined that fatal injuries observed in the autopsy report of the deceased could have been caused by the `dao' Ex.P-11. However, as regards `kassi' Ex.P-12, Dr.Ramani opined that the injuries in question could not have been caused by `kassi' Ex.P-12. 5. On conclusion of the investigation, all the three appellants were sent for trial. They were charged for the offences punishable under Section 302 IPC read with Section 34 IPC and Section 201 IPC read with Section 34 IPC. The appellants pleaded innocence and claimed to be tried. 6. There is no eye witness to the occurrence and it is a case of circumstantial evidence. Prosecution examined 17 witnesses to establish following incriminating circumstances:- "(a) Anup was last seen alive on 8.7.95 at 9.00 p.m. when he left his house in the company of accused Kaptan Singh, Virender and Jai Kumar. (b) Anup met with homicidal death on the same night. (c) None of the accused was found at home on that night. (d) On 9.7.95 at about 8.30 p.m. accused Kaptan Singh made an extra judicial confession in the presence of PW 4 Sat Pal that he along with Virender and Jai Kumar had committed murder of Anup Singh on the previous night at the tubewell of Bholu. (e) The deadbody of Anup Singh was recovered from the Naala near Safiyabad Road in pursuance of disclosure made by Kaptan Singh. (f) Accused Jai Kumar was arrested on 14.7.95 and a Dao was recovered at his pointing. The clothes which Jai Kumar was wearing at the time of arrest, were seized. (e) The deadbody of Anup Singh was recovered from the Naala near Safiyabad Road in pursuance of disclosure made by Kaptan Singh. (f) Accused Jai Kumar was arrested on 14.7.95 and a Dao was recovered at his pointing. The clothes which Jai Kumar was wearing at the time of arrest, were seized. (g) Accused Virender Kumar was also arrested on 14.7.95 and a Kassi was recovered from bushes at his instance. The clothes which Virender was wearing at the time of arrest were also seized." 7. The appellants, when examined under Section 313 Cr.P.C., denied the prosecution evidence and claimed to be innocent. In defence, they examined DW-1 Ms. Prem Lata who deposed that PW1 Sarla Devi is her real sister and is married to one Satpal of village Bakner. She also stated she and her sister were not on visiting terms. 8. On perusal of the judgment, it transpires that learned trial Judge, on appreciation of evidence, came to the conclusion that the prosecution has failed to establish the circumstances `c', `f' and `g' referred to above. Learned counsel for the State has not disputed aforesaid conclusions of the trial Judge. The appellants also have not disputed circumstance `b' referred to above to the effect that the deceased met with homicidal death on the same night stands proved on record. Thus, the conviction of the appellants rests solely on the strength of following three circumstances:- (i) The deceased was last seen alive on 08th of July, 1995 at around 9.00-9.30 p.m. in the company of the appellant Kaptan Singh, Virender and Jai Kumar. (ii) That on 09th July, 1995 at about 8.30 p.m., the appellant Kaptan Singh made an extra judicial confession in presence of PW4 Satpal that he alongwith his co-convicts Virender and Jai Kumar had committed murder of the deceased on the previous night at the tube-well of Bholu. (iii) The dead body of Anup Singh was recovered buried in a "Nala'' near Safiyabad Road in pursuance of the disclosure statement made by the appellant Kaptan Singh. 9. As regards the circumstance (i), the prosecution has relied upon the testimony of PW1 Sarla Devi, PW2 Dalel Singh and PW5 Ramphal. (iii) The dead body of Anup Singh was recovered buried in a "Nala'' near Safiyabad Road in pursuance of the disclosure statement made by the appellant Kaptan Singh. 9. As regards the circumstance (i), the prosecution has relied upon the testimony of PW1 Sarla Devi, PW2 Dalel Singh and PW5 Ramphal. PW1 Sarla Devi stated in the Court that on 08th July, 1995 at around 9.00 p.m, the appellants came to her house and the deceased Anup Singh left with them saying that he was going to take bath at the tube-well and thereafter, he never returned. PW2 Dalel Singh stated that on 08th July, 1995 at about 9.15 p.m., he came across the appellants and the deceased who were going towards the field and when he asked as to where they were going, the deceased told him that he was going to take bath at the tube-well of Bholu. PW5 Ramphal stated in the Court that on 08th July, 1995 at about 9.30 p.m., while he was sitting in the `gher' of the village, the appellants and the deceased passed through the `gher' and on his asking, the deceased told that they were going to take bath at the tube-well of Bholu. Learned Trial Court relying upon the aforesaid evidence has concluded that prosecution has been able to prove that the deceased was last seen with the appellants on 08.07.1995 at around 9.00-9.30 p.m. 10. Learned counsel for the appellants has challenged the testimony of PW1 Sarla Devi, PW2 Dalel Singh and PW5 Ramphal as unreliable on the ground that they are all closely related to the deceased. He also submitted that PW2 Dalel Singh and PW4 Ramphal have gone to the extent of denying their relationship with the deceased, however PW4 in his cross-examination was cornered to admit that Dalel Singh is the son of his real uncle and Ramphal is the son of his father's sister. Regarding PW1 Sarla, he contended that she was not in the village Bakner on the night of 08th July, 1995. A suggestion was put to her that she had gone to see her sister Prem Lata in village Narela and that she returned to Bakner only after hearing about the death of her son which she denied and also denied her relationship with Prem Lata. A suggestion was put to her that she had gone to see her sister Prem Lata in village Narela and that she returned to Bakner only after hearing about the death of her son which she denied and also denied her relationship with Prem Lata. Which version stands falsified by the testimony of DW1 Prem Lata who stated that she is real sister of PW1 Sarla. It was thus argued that PW1 Sarla who did not hesitate to disown her real sister is not worthy of credence at all. Learned counsel for the appellants thus urged us to discard the testimony of above three witnesses as unreliable. 11. Similar arguments were raised before the learned Trial Judge and he rejected those arguments with following observations:- "13....I find no merit in the contention. The maxim "Falsus in Uno Falsus in Omnibus" is not to be blindly invoked in appraisal of evidence in our courts where witnesses seldom tell the whole truth but often resort to exaggerations, embellishments and padding-up to support a story however true. (1974 SC 21 Bhagwan Tana Patil v/s State of Maharashtra.) In AIR 1973 SC 1409 Raghubir v/s State of Punjab also the same principle has been enunciated. Their Lordships highlighted the duty of the court to make efforts to find out whether in spite of the unreliable part of the evidence, the remaining evidence remains trustworthy. In the present case the medical evidence shows that Anup Singh was murdered on or about the night of 8th July, 1995. This strengthens the evidence of PW1 Sarla. She being the mother of the deceased, must have been present at the house at 9.00 p.m. on 8th July and she must have seen her son going in the company of the accused persons. She has no reason to falsely name them. She may not have lodged a missing report on 9th July but that does not efface the fact that Anup Singh was missing since the night of 8th July. There might be hundred reasons for not making the report to the police. The parents may be suspecting the accused but at the same time they might be hoping against hope that their son would return safe. They might have thought that making a police report might jeopardise the safety of their son. There might be hundred reasons for not making the report to the police. The parents may be suspecting the accused but at the same time they might be hoping against hope that their son would return safe. They might have thought that making a police report might jeopardise the safety of their son. Merely because Dalel Singh and Ram Phal happen to be relatives of the deceased, they cannot be branded as interested witnesses. It is settled law that the testimony of a relative cannot be discarded by reason of relationship only. The merit of the evidence has to be seen and in this case the medical evidence supports the witnesses. Therefore I am convinced beyond al reasonable doubts that PW1 Sarla, PW2 Dalel Singh and PW5 Ram Phal are all telling the truth." 12. In our considered view, the learned trial Judge has gone wrong in appreciating the last seen evidence given by PW1 Sarla, PW2 Dalel Singh and PW5 Ramphal. He has ignored the fact that PW2 Dalel Singh and PW5 Ramphal have deliberately tried to conceal their relationship with the deceased. Their relationship with the complainant came to fore only when PW4 Satpal, in his cross-examination was cornered to admit that PW2 Dalel Singh was son of his real uncle and PW5 Ramphal was the son of his father's sister. One wonders if PW2 Dalel Singh and PW5 Ramphal were truthful about the last seen evidence, why would they try to hide their relationship with the family of the deceased. The fact that they have made a deliberate attempt to hide the fact of their close relationship with the deceased make them unreliable witnesses and castes a shadow of doubt on the prosecution case so far as the last seen evidence is concerned. 13. The next incriminating circumstance which found favour with the learned trial Judge is the extra judicial confession purportedly made by the appellant Kaptan Singh in presence of the father of the deceased Satpal, PW4. PW4 Satpal stated that on the night intervening 08/09.07.1995 at around 1:00 am when he returned back from his duty, his wife told him that the deceased had left for taking bath along with the appellants at about 9:00 pm and had not returned thereafter. On this, he went in search of his son to the houses of respective appellants, but they were not available. On this, he went in search of his son to the houses of respective appellants, but they were not available. Next day, he kept on searching for his son and at around 8:30 pm on 09.07.95 he saw the appellant Kaptan Singh and his father going towards their house. He asked the appellant about the whereabouts of his son Anup and Kaptan Singh initially told him that Anup had accompanied him to the latrine at about 8:00 pm on the previous night and thereafter he had not seen him. PW4 further stated that when he refused to believe the appellant Kaptan Singh, the appellant broke down and confessed that on the previous night at 10:30 pm, he along with his co-convicts had murdered Anup at the tube-well of Virender @ Bholu and buried his dead body in the `Nala' at some distance from the spot of occurrence. Learned Trial Court has accepted the aforesaid testimony of PW4 relating to the extra judicial confession. 14. The law relating the extra judicial confession is well settled. There is no legal bar on the conviction of an accused on the basis of extra judicial confession if the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased and reliable. However, the extra judicial confession is a weak type of evidence and it has to be approached with due care and caution. In the matter of Kavita v. State of Tamil Nadu, (1998) 4 Scale 246 , Supreme Court held:- "4. There is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses". 15. On perusal of the testimony of PW4 Satpal who obviously is an interested witness being the father of the deceased, it is seen that he had made several material improvements upon his earlier statement Ex.PW4/A which formed basis for the registration of the case. 15. On perusal of the testimony of PW4 Satpal who obviously is an interested witness being the father of the deceased, it is seen that he had made several material improvements upon his earlier statement Ex.PW4/A which formed basis for the registration of the case. This circumstance indicates a definite bias on the part of the witness against the appellants. Further, the witness in his cross examination has stated that the extra judicial confession was made by the appellant Kaptan Singh in presence of several persons including Bhim Singh, Pawan Kumar, Ishwer and Prithi Master. Despite of that, there is no independent witness either cited or examined by the prosecution to corroborate the version of PW4 Satpal regarding extra judicial confession of guilt made by the appellant in his presence and also in presence of several other persons. This circumstance, in our considered view, adversely affects the credibility of the version of PW4 Satpal regarding the extra judicial confession. Otherwise also, it seems unnatural that the appellant would have confessed his guilt in presence of father of the deceased. Thus, we do not find it safe to rely upon the evidence of extra judicial confession. 16. The next incriminating circumstance which found favour with the learned trial Judge is the discovery of the dead body of the deceased found buried in a "Nala'', pursuant to the disclosure statement made by the appellant. Perusal of the disclosure statement Ex.PW7/A and the pointing-cum-recovery memo Ex.PW4/B reveals that these two documents are prepared by Inspector Ramesh Malik and witnessed by the complainant Satpal, father of the deceased, PW7 ASI Balbir Singh and PW11, Inspector Balraj Singh. Inspector Ramesh Malik in his testimony deposed that when he reached at the spot, the complainant and other villagers produced appellant Kaptan Singh before him and on interrogation the appellant made a disclosure statement Ex.PW7/A. Thereafter, the appellant Kaptan Singh led them to the tube-well of Sukhbir Singh and pointed out the place of crime and thereafter he led the police party to the nearby "Jwar" field and pointed out to a "Nala'' where the dead body was disposed off. He also stated that on digging that place, the dead body of deceased Anup Singh was recovered. PW4 Satpal, PW7 ASI Balbir Singh and PW11 Inspector Balraj Singh have also deposed to more or less similar effect. He also stated that on digging that place, the dead body of deceased Anup Singh was recovered. PW4 Satpal, PW7 ASI Balbir Singh and PW11 Inspector Balraj Singh have also deposed to more or less similar effect. If aforesaid evidence is to be believed, then the disclosure statement was made in presence of several villagers, despite that, there is no independent witness to prove disclosure statement. Investigating Officer, Inspector Ramesh Malik as also PW11, Inspector Balraj Singh have admitted that many public persons had gathered and followed them upto the main road, but they were not allowed to come to the spot of recovery. The explanation given by PW11, Inspector Balraj Singh for not allowing independent witnesses to come to the spot of recovery is that they apprehended law and order problems. In our considered view, the aforesaid explanation is unacceptable as neither of the witnesses have stated that the villagers were in agitated mood which could give rise to such an apprehension on the part of the police officers. From the admission of the Investigating Officer as well as PW11, Inspector Balraj, it is not only established that the Investigating Officer deliberately did not join any independent witness to the disclosure statement as well as the consequent recovery of dead body but he also prevented the independent villagers to witness the recovery. This circumstance casts a grave doubt on the fairness of the investigation and makes the story of discovery of dead body pursuant to disclosure made by the appellant suspect. 17. Further, it is the case of the prosecution as projected in the testimony of PW17 Inspector Ramesh Malik, PW11 Inspector Balraj Singh, PW4 Satpal and PW7 Inspector Balbir Singh that the dead body of the deceased Anup Singh was recovered buried from the place pointed out by the appellant Kaptan Singh in the "Nala''. Inspector Balraj Singh who is referred to as Inspector B.S.Dahiya by PW16 Constable Vijender Singh is claimed to have witnessed the recovery of dead body after digging. The aforesaid version is belied by the testimony of PW16 Constable Vijender Singh who deposed that on 10.07.1995, he was on patrol duty with Inspector B.S. Dahiya who received a call that a dead body was lying in the drain near Safiyabad Road and pursuant to the call, they reached at the aforesaid drain where public persons were already present. The aforesaid version is belied by the testimony of PW16 Constable Vijender Singh who deposed that on 10.07.1995, he was on patrol duty with Inspector B.S. Dahiya who received a call that a dead body was lying in the drain near Safiyabad Road and pursuant to the call, they reached at the aforesaid drain where public persons were already present. He further stated that he took the dead body of deceased Anup from the said "Nala'' to the dead house Sabzi Mandi. There is no whisper whatsoever in the testimony of PW16 Constable Vijender Singh that in his presence, the dead body was taken out after digging some place at the "Nala''. Thus, we find it unsafe to rely upon the prosecution story that the dead body was discovered on the pointing out of the appellant Kaptan Singh. 18. Further perusal of Column 1 of the FIR Ex.PW17/B reveals that date and hour of reporting the crime is mentioned therein as 1.55 AM on 10th of July, 1995 vide DD number 23A and the name of informant is mentioned as Inspector Ramesh Malik. It is also recorded in Column 2 that FIR is registered on the basis of a writing in Hindi prepared and sent by Inspector Ramesh Malik. If this is to be believed, then the statement of complainant Satpal Singh ought to have been recorded by Investigating Officer prior to 1.55 AM. However, on perusal of the `Rukka' sent by Inspector Ramesh Malik, SHO to the police Station, it transpires that `Rukka' was sent to the police station on 10.07.1995 at 10.30 a.m, which time cannot be reconciled with the time of recording of DD No. 23A pertaining to the formal registration of the FIR on the basis of the `Rukka' Ex.PW17/A. This circumstance reflects upon the fairness of the investigation and a possibility cannot be ruled out that the FIR is anti-timed and has been prepared after due deliberation. It may also be noted that as per the case of the prosecution, the Investigating Agency was set into motion by DD No. 20A dated 09/10.07.1995 recorded at 12.12 a.m. (Ex.PW12/A). Perusal of this DD report reveals that it was recorded on the basis of the information conveyed by ASI Narayan Singh of PCR that one Netram had informed him about the murder of one Atfat S/o Satpal. Perusal of this DD report reveals that it was recorded on the basis of the information conveyed by ASI Narayan Singh of PCR that one Netram had informed him about the murder of one Atfat S/o Satpal. Therefore, Netram being the first informant about the murder was a crucial witness in this case. Despite that, the Investigating Officer has not cared to locate Netram and record his version about the incident. It is also not the case of the prosecution that Investigating Officer made any effort to trace Netram, who could not be located. The failure of the Investigating Officer to trace out the said Netram and examine him has left a void in the case of the prosecution and has also caused prejudice to the defence because Netram positively could have been the best person to throw light upon the manner in which the deceased Anup Singh lost his life. This circumstance also entitles the appellants to benefit of doubt. 19. In view of the above discussion, we are of the view that none of the incriminating circumstances have been firmly established by the prosecution to justify inference of guilt of the appellants. Thus, we find it difficult to sustain the impugned judgment of conviction. We accordingly set aside the impugned judgment as also the consequent order on sentence and acquit the appellants, giving them benefit of doubt. 20. All the appellants are on bail. Their bail-cum-surety bonds are discharged. 21. The appeals are accordingly disposed of.