THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.08.2011
+ CRL.A. No. 363/1997
KASHMIR SINGH ..... Appellant
versus
STATE ..... Respondent
AND + CRL.A. No. 127/1998 KULDEEP KUMAR ..... Appellant versus STATE ..... Respondent Advocates who appeared in this case:-
For the Appellant : Mr Sumer Kumar Sethi in CRL.A. No. 363/1997.
Mr Ajay Verma in CRL.A. No. 127/1998.
For the Respondent : Ms Richa Kapoor CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes BADAR DURREZ AHMED, J (ORAL) CRL.A. Nos.363/1997 & 127/1998 Page 1 of 18
1. The appellants Kuldeep Kumar and Kashmir Singh have been convicted for having committed the murder of one Jatinder Singh by virtue of the impugned judgment dated 27.05.1997 in Sessions Case No. 225/1995 arising out of FIR No. 565/1994 registered at Police Station Kashmiri Gate under Section 302/34 IPC. The appellants have also impugned the order on the point of sentence dated 31.05.1997 whereby the appellants were sentenced to undergo imprisonment for life. They were also required to pay a fine of `1,000/- each and in default of payment of the said fine, to further undergo simple imprisonment for three months.
2. The case of the prosecution is that the appellants as also the deceased Jatinder Singh were residents of Mukatsar, Punjab. Jatinder Singh had a spare parts shop. On 17.10.1994, the appellants along with Jatinder Singh boarded a bus at Mukatsar, Punjab at 5.30 a.m. which was bound for Delhi. The three persons came to Delhi with the object of purchasing spare parts. It is the case of the prosecution that PW4 Harbans Lal, who is the father of the deceased Jatinder Singh gave him a sum of ` 15,000/- for the said purpose. It is also the case of the prosecution that PW8 Parveen Kumar had also given a sum of `2,000/- to Jatinder Singh for the purpose of purchasing spare parts for CRL.A. Nos.363/1997 & 127/1998 Page 2 of 18 him. The said spare parts were to be purchased from PW2 Sanjay Khanna whose address was allegedly supplied by PW8 Parveen Kumar. It is the further case of the prosecution that Jatinder Singh on his arrival in Delhi went to his cousin PW6 Neelam‟s house in the evening of 17.10.1994 at about 5.00 p.m. It is also the case of the prosecution that Jatinder Singh stayed in the house of Neelam in the night intervening 17/18.10.1994 and that he had left Neelam‟s house in the morning of 18.10.1994. According to the prosecution, at about 8 or 9 p.m. on 17.10.1994, two „friends‟ of Jatinder Singh had gone to meet him at Neelam‟s house. Jatinder Singh had gone out of the house at that point of time to meet his said friends but he returned thereafter and spent the night at Neelam‟s house.
3. It is also the case of the prosecution that the appellants Kuldeep Kumar and Kashmir Singh stayed at Hotel Shish Mahal, Fatehpuri on 17/18.10.1994. According to the prosecution, the appellants stayed there under the assumed names of Raj Kumar and Gurnam Singh and entered the same in the Register Ex.P19 maintained by the said Hotel. As per the prosecution, at about 12.00 noon, all the three persons went to PW2 Sanjay Khanna‟s house at Kashmiri Gate with the object of purchasing spare parts. PW2 Sanjay Khanna had seen the three of CRL.A. Nos.363/1997 & 127/1998 Page 3 of 18 them at his shop.
4. On the next day i.e., 19.10.1994, DD No. 6A was recorded by Police Station Kashmiri Gate at 11.40 a.m. which indicated that the Principal of St. Stephen‟s College had telephoned that a dead body had been discovered at the playing ground of St. Stephen‟s College. Thereafter, a police party went to the spot and discovered that a dead body was lying there. As per the prosecution, dead body of a Sikh man aged about 28-30 years was lying in the bushes. There were injuries on the right side of the head. The same was depressed and it appeared that it was the result of an impact from a hard object. The dead body had a white kurta and a brown underwear. Some parts of the bushes and grass were found clasped in the hands of the dead body. Four big stones stained with blood were lying near the head and one small stone was lying between the legs. A broken bottle of acid was lying near the dead body and acid burn marks were noted on the dead body. One orange patka was lying at a distance of about 15-20 yards from the dead body towards the west. A pair of shoes of the make - "Power" - and one printed yellow shirt was also found to be lying near the dead body. One blue vest and white pyjama were also found lying at the spot. All these articles were seized. The crime CRL.A. Nos.363/1997 & 127/1998 Page 4 of 18 team and the photographer were summoned. Thereafter, the FIR was registered.
5. The Police had taken out hue and cry notices inasmuch as the body was unidentified. The same came to be identified on 24.10.1994 by PW4 Harbans Lal and PW6 Neelam. The said dead body was identified to be that of Jatinder Singh who was the son of PW4 Harbans Lal and cousin of PW6 Neelam. In the meanwhile, the post mortem examination had been conducted on 21.10.1994 by PW25 Dr L.K. Baruwa who gave his opinion to the effect that all bruises, abrasions and lacerations were ante-mortem in nature and acid burns appeared to be post-mortem in nature. He also opined that injuries to the head as also to the neck were caused by a heavy rough object and were caused simultaneously. Pressure on the neck area had caused the abrasions/contusions to the neck skin and fracture of the hyoid bone and thyroid cartilage and showed signs of asphyxia. In the opinion of PW2 Dr L.K. Baruwa, injury to the neck as well as to the head were individually sufficient to cause death in the ordinary course of nature and that the time since death was 2 ½ days. Since the post-mortem examination was conducted on 21.10.1994 at 2.00 p.m., the time of death would work out to be 2.00 a.m. on 19.10.1994. CRL.A. Nos.363/1997 & 127/1998 Page 5 of 18
6. The appellants were arrested at Mukatsar, Punjab on 13.11.1994. Thereafter, they are said to have made disclosure statements and on the basis of the disclosure statements certain recoveries are said to have been made. It is alleged that at the instance of appellant Kashmir Singh, one attache case (Ex.P9) was recovered and at the instance of appellant Kuldeep Singh, one pant (Ex.P8), one shirt (Ex.P6) and one pagri (Ex.P7) are said to have been recovered. It is the case of the prosecution that the attache case as well as the pant, shirt and pagri belonged to deceased Jatinder Singh. It is also the case of the prosecution that the light yellow printed shirt recovered from the spot where the dead body was found belonged to Kashmir Singh.
7. During investigation, the police had seized the register Ex.P19 from Hotel Shish Mahal where the appellants allegedly stayed while they were in Delhi. The handwriting specimens of Kashmir Singh being S1 to S5 were taken and the questioned writing being Q1 and Q2 which was in the register Ex.P19 was sent to the Central Forensic Science Laboratory (CFSL) for the purposes of comparison. The CFSL report Ex.PX indicated that the handwriting in the questioned document, namely, Q1 and Q2, were matched with the specimen handwriting S1 to S5 of Kuldeep Kumar. Of course, the defence did CRL.A. Nos.363/1997 & 127/1998 Page 6 of 18 not make any application for cross-examining the handwriting expert Mr S.N. Mukhi, Sr Scientific Officer, Grade-I, Documents, CFSL, CBI, New Delhi. So, the report has gone unchallenged.
8. The appellants were charged of having committed the offence under Section 302/34 IPC. The prosecution examined as many as 25 witnesses in support of its case. Section 313 Cr.P.C. statements of the appellants were recorded wherein all the incriminating evidence was put to the appellants. They did not seek to produce any evidence in their favour.
9. The learned Addl Sessions Judge set out the circumstances which, according to him, were required to be established by the prosecution in order to return a finding of guilt insofar as the appellants are concerned. The eight circumstances noted by the learned Addl Sessions Judge are as under:-
"(1) There is homicidal death of the accused Jatinder Singh.
(2) The deceased Jatinder Singh was last seen with the accused persons. The prosecution has relied upon the evidence of last seen.
(3) The disclosure statement of the accused persons and the recovery of articles.
(4) Purchase of acid by accused Kuldip Kumar from PW Manohar Lal.
CRL.A. Nos.363/1997 & 127/1998 Page 7 of 18
(5) Purpose of visit of deceased to Delhi with
the accused persons.
(6) Motive of both the accused persons to rob
the deceased.
(7) CFSL reports and report of handwriting
expert.
(8) Conduct of both the accused persons."
10. Insofar as the first circumstance is concerned, there is no dispute that the death of Jatinder Singh was homicidal. With regard to the second circumstance that the deceased Jatinder Singh was last seen with the accused persons, the learned Addl Sessions Judge relied upon the testimonies of PW5 Narinder Singh and PW7 Surinder Singh to come to the conclusion that the deceased Jatinder Singh was last seen with both the accused persons on 17.10.1994 at 5.30 a.m. at the bus stand at Mukatsar, Punjab. While considering this circumstance, the learned Addl Sessions Judge also referred to the testimony of PW6 Neelam who was regarded as a hostile witness by the prosecution.
However, the learned Addl Sessions Judge was of the view that even though PW6 Neelam was a hostile witness, this much has been established by her that Jatinder Singh had come to her house in Delhi on 17.10.1994 at 5 or 6 p.m. and had stayed overnight. It was also CRL.A. Nos.363/1997 & 127/1998 Page 8 of 18 established that somebody had called Jatinder Singh at 8.00 p.m. or 9.00 p.m. and that he went outside Neelam‟s house to meet his „friends‟ on 17.10.1994. It has also been noted by the learned Addl Sessions Judge that as per PW6 Neelam, Jatinder Singh left her house in the morning of 18.10.1994.
11. The learned Addl Sessions Judge also noted that PW2 Sanjay Khanna had seen the three boys, namely, the appellants and the deceased Jatinder Singh at his shop at 12.00 noon on 18.10.1994. Considering the testimonies of PW5 and PW7 as also PW2 Sanjay Khanna and the testimonies of PW14 and 16, namely, Gopal Krishan and Mahender Pratap, who were the previous and present owners of Shish Mahal Hotel as also the register Ex.P19, the learned Addl Sessions Judge concluded that the deceased Jatinder Singh was last seen in the company of the appellants on 17/18.10.1994.
12. We are, however, unable to agree with the learned Addl Sessions Judge that the testimonies of PW5 and PW7 as also of PW6 would amount to evidence which is normally categorised as "last seen evidence". We must note that the deceased Jatinder Singh, as per the post-mortem report, died at 2.00 a.m. on 19.10.1994. Thus, the testimony of PW5 Narinder Singh, who is the brother of the deceased CRL.A. Nos.363/1997 & 127/1998 Page 9 of 18 and PW7 Surinder Singh, who is also a cousin of the deceased, to the effect that they had seen Jatinder Singh leaving for Delhi along with the appellants at 5.30 a.m. on 17.10.1994 is too remote in time to connect it with the murder of Jatinder Singh which took place almost 2 days later. Insofar as PW6 Neelam is concerned, she has first of all, not identified the „friends‟ who had come to meet Jatinder Singh at about 8 or 9 p.m. on 17.10.1994. Secondly, she has stated that Jatinder Singh left the house in the morning of 18.10.1994. It is obvious that he had left the house alone and was not in the company of anybody when he left Neelam‟s house. Therefore, PW6 Neelam would also not provide us with any clue as to with whom Jatinder Singh had interacted on 17.10.1994 or whom he was going to meet on 18.10.1994.
13. Insofar as PW2 Sanjay Khanna is concerned, if one carefully examines his testimony, one finds that he has in the first portion of his examination-in-chief indicated that on 18.10.1994 at about 12.00 noon, three boys had come to his shop from Mukatsar, Punjab. Two of them were Sikhs and one was a Mona (clean shaven Sikh). He had also stated that those three boys had inquired about the rates of spare parts but had not purchased anything. In the second part of his CRL.A. Nos.363/1997 & 127/1998 Page 10 of 18 testimony he stated that on 16.11.1994, two boys of the name of Kuldeep Kumar and Kashmir Singh had pointed out his shop. The said boys were accompanied by the police. The said boys who had come to his shop on 16.11.1994 were the persons who were present in court. The third boy, according to PW2 Sanjay Khanna, was identified from the photograph shown to him by the police and that was stated to be of the deceased Jatinder Singh. At this juncture, we may point out that the photograph which was shown to PW2 Sanjay Khanna was of such a nature that it would be difficult for anybody to identify as to whose photograph it was. This is absolutely clear from the testimony of PW4 Harbans Lal who is the father of the deceased Jatinder Singh who stated, with reference to the photograph of Jatinder Singh, that it was not very clear and that it was only after the police asked him if he was wearing Power shoes that he recognized that the photograph was that of his son Jatinder Singh. When it was so difficult for the father of the deceased Jatinder Singh to identify him on the basis of the photograph, it is difficult to believe that PW2 Sanjay Khanna could have identified the deceased Jatinder Singh on the basis of the very same photograph when deceased Jatinder Singh was not known to him and had only seen him for a short while when he had allegedly come to his shop to CRL.A. Nos.363/1997 & 127/1998 Page 11 of 18 make inquiries about the rates of spare parts.
14. Returning to the testimony of PW2 Sanjay Khanna, it is obvious that the said witness had not identified the appellants as two of the three boys who had come to his shop on 18.10.1994. All that PW2 Sanjay Khanna had stated was that the appellants were the two boys who had accompanied the police on 16.11.1994. This is entirely different from stating that PW2 Sanjay Khanna had identified the appellants as two of the three boys who had come to his shop on 18.10.1994. This is also clear from the suggestion given by the learned APP to the effect that PW2 Sanjay Khanna had intentionally not identified the accused persons present in court as the boys who had come on 18.10.1994 along with Jatinder Singh. The suggestion had been made to the said witness after he had been treated as hostile by the learned APP.
15. Thus, even the testimony of PW2 Sanjay Khanna cannot be regarded in the category of "last seen evidence". The evidence of PW14 Gopal Krishan and PW16 Mahender Pratap who were the owners of the Hotel Shish Mahal where the appellants are alleged to have stayed on 17/18.10.1994 also does not fall in the category of last seen evidence. These two witnesses have indicated that the register CRL.A. Nos.363/1997 & 127/1998 Page 12 of 18 Ex.P19 was being maintained at the said Hotel on the relevant dates. As per the said register Ex.P19, there is an entry made on 17.10.1994 indicating that persons by the names of Raj Kumar and Gurnam Singh had stayed in the Hotel and that they had checked in at 10.20 p.m. on 17.10.1994 and had checked out on 18.10.1994 at 9.45 p.m. There is no identification of the persons who made this entry in the register by either PW14 or PW16 or by any other staff member of the Hotel. The only evidence that has come on record is that the handwriting in the register with regard to this entry has been compared with the specimen handwriting of appellant Kuldeep Kumar and the handwriting expert Mr S.L. Mukhi has given his opinion that the specimen writing matches the questioned writing and, therefore, he has concluded that the handwriting in the register is that of Kuldeep Kumar. The only thing that is established on the basis of the evidence of the handwriting expert is that the entry in the register is that of Kuldeep Kumar. There is nothing to link Kashmir Singh with the said entry. In any event, this evidence does not indicate that either Kuldeep Kumar or Kashmir Singh were in the company of the deceased Jatinder Singh.
16. Insofar as the motive is concerned, the trial court came to the conclusion that the motive stood established. According to the learned CRL.A. Nos.363/1997 & 127/1998 Page 13 of 18 Addl Sessions Judge, the motive on the part of the appellants was to rob Jatinder Singh of the ` 17,000/- that he had on his person. The logic employed by the learned Addl Sessions Judge was that since PW4 Harbans Lal had given ` 15,000/- to his son Jatinder Singh and PW8 Parveen Kumar had given ` 2,000/- to Jatinder Singh, the said amount ought to have been found on the person of Jatinder Singh when his body was discovered. Since the said amount of money was not found on the body of Jatinder Singh nor had any spare parts been purchased by Jatinder Singh, therefore, according to the learned Addl Sessions Judge, the said sum of ` 17,000/- had been taken by the appellants. And, consequently, according the learned Addl Sessions Judge, the motive stood established. We do not subscribe to this logic. Even if we believe the testimony of PW4 and PW8 with regard to the supply of money to Jatinder Singh, it cannot be said that merely because the said sum was not found on the body of Jatinder Singh nor had Jatinder Singh purchased any spare parts, therefore, it could be concluded that it is the appellants alone who could have taken the sum of ` 17,000/- from Jatinder Singh. There is also no recovery of the said amount of `17,000/- or any part thereof from either Kuldeep Kumar or Kashmir Singh. Therefore, we do not agree with the CRL.A. Nos.363/1997 & 127/1998 Page 14 of 18 conclusion of the learned Addl Sessions Judge that the motive stood established.
17. Insofar as the issue with regard to the purchase of acid is concerned, since the learned Addl Sessions Judge himself disbelieved the theory that the acid purchased by Kuldeep Kumar at Mukatsar, Punjab on 13.10.1994 was used for the commission of the crime in Delhi on 19.10.1994, we are not discussing this aspect of the matter. It is sufficient to record that the learned Addl Sessions Judge has correctly concluded that it has not been proved that the acid purchased by Kuldeep Kumar at Mukatsar was used for the commission of the offence.
18. Insofar as the recoveries of articles are concerned, we find that the same do not inspire confidence. The attache case Ex.19 is said to have been recovered from the house of Kashmir Singh from Mukatsar on 13.11.1994 i.e., 24 days after the commission of the alleged offence. It would be difficult to believe that the appellant Kashmir Singh would have carried this attache case with him from Delhi to Mukatsar and would have retained it for so many days when he knew that the police were on the look out for him and that the family of the deceased were also residents of Mukatsar. Insofar as the recoveries at CRL.A. Nos.363/1997 & 127/1998 Page 15 of 18 the instance of Kuldeep Kumar are concerned, we find it difficult to believe that Kuldeep Kumar would carry the pant, shirt and pagri Ex. P8, 6 and 7 belonging to Jatinder Singh all the way from Delhi to Mukatsar and that he would retain the same in his house for 24 days. The prosecution case with regard to recoveries is highly unnatural and cannot be believed.
19. We now come to the issue of Ex.P14 which is the yellow printed shirt which was allegedly found at the spot where the dead body was discovered. It is alleged on the part of the prosecution that this yellow shirt Ex.P14 belonged to Kashmir Singh. The prosecution case is based on the testimonies of PW5 Narinder Singh and PW7 Surinder Singh who had stated that on 17.10.1994 when the three persons were at the bus stand at Mukatsar, they had seen Kashmir Singh wearing this yellow printed shirt. There are several difficulties with this piece of so-called evidence. The first difficulty is that it would be highly unnatural on the part of Kashmir Singh to have committed the offence and then taken off his shirt and left it next to the dead body. Secondly, we find that on 27.10.1994, PW5 Narinder Singh in his statement to the police had indicated that Kashmir Singh was wearing a yellow printed shirt. However, the said yellow printed CRL.A. Nos.363/1997 & 127/1998 Page 16 of 18 shirt Ex.P14 was not shown to PW5 Narinder Singh on 27.10.1994 for the purposes of identification. On the other hand, it was shown to PW7 Surinder Singh on 17.11.1994 when he allegedly identified it to be the same shirt which Kashmir Singh was wearing when they were departing on 17.10.1994. This also creates a significant amount of doubt with regard to this piece of evidence.
20. In view of the foregoing, we find that the only circumstances that the prosecution has been able to establish are that:-
(i) Jatinder Singh‟s death was homicidal;
(ii) The appellants and deceased Jatinder Singh left Mukatsar
together on 17.10.1994 at 5.30 a.m. by bus which was bound for Delhi;
(iii) That Jatinder Singh stayed overnight at PW6 Neelam‟s house in Delhi in the night intervening 17/18.10.1994. That two „unidentified friends‟ had come to meet him on 17.10.1994 at Neelam‟s house at about 8 or 9 p.m. and that Jatinder Singh had left Neelam‟s house alone on 18.10.1994 in the morning;
(iv) The handwriting in the register of the Hotel indicating the entries of Raj Kumar and Gurnam Singh matched the CRL.A. Nos.363/1997 & 127/1998 Page 17 of 18 specimen handwriting of Kuldeep Kumar; and
(v) The appellants were arrested on 13.11.1994.
21. The other circumstances which were set out by the learned Addl Sessions Judge have not been established as indicated above. The appellants cannot be held to be guilty merely on the basis of the circumstances which have been established by the prosecution, inasmuch as the chain is not complete. There are many missing links which has resulted in creating serious doubts with regard to the prosecution case. As a consequence, giving the benefit of doubt to the appellants, we acquit them of all charges. The impugned judgment and order on sentence are set aside. Both the appellants are on bail. Consequently, their bail bonds are cancelled and the sureties stand discharged.
22. The appeals are allowed.
BADAR DURREZ AHMED, J VEENA BIRBAL, J AUGUST 23, 2011 kks CRL.A. Nos.363/1997 & 127/1998 Page 18 of 18