Jagjit Singh vs State
1990 Latest Caselaw 173 Del

JUDGMENT

M.K. Chawla, J.

(1) By order dated 22-8-83, the Additional Sessions Judge, Delhi, framed a charge against the accused Jagjit Singh alias Jaggi and Brij Mohan u/s. 302 read with Section 34 of the Indian Penal Code, for having committed the murder of Mohan Singh in furtherance of their common intention at about 1 .M. on the night between 27th and 28th of February. 1983 at G.B Road. Delhi. Accused Jagjit Singh was further charged for the offence punishable u/s. 27 or the Indian Arms Act for having been found in possession of a knife which he used for unlawful purposes.

(2) After trial, accused Brij Mohan was let off by giving him benefit of doubt as one of the eye-witnesses (Public Witness -4) Ramesh Kumar failed to identify him, even though Public Witness -2 Kishan Singh and Public Witness -3 Manjit Singh identified him to be the person who had held the deceased from behind while accused Jagjit Singh stabbed him. On the same set of evidence, Jagjit Singh was convicted of the offences charged with and sentenced to rigorous imprisonment for life and a fine of Rs. 10.000.00 , in default of payment of fine, to undergo R.I. for two months u/s. 302 I P.C. He was further sentenced to undergo R.I for 3 ears and a fine of Rs. 100.00 for the offence u/s 27 of the Indian Arms Act by order dated 13-2-87. The present appeal of Jagjit Singh is directed against his conviction and the order of sentence passed by the Additional Sessions Judge Delhi on 13 2 1987.

(3) The facts of the prosecution case are that on 28th February, 1983, the deceased Along with his three wheeler scooter no. Dhr 1677 came to his house bearing no. 28, G.B. Road, as oval at about 12 mid-night. He took his meals and thereafter came downstairs. His two brothers Kishan Siagh and Manjit Singh, Public Witness s, were standing on the second floor balcony of their house, As soon as Mohan Singh reached near his scooter, they saw two persons out of whom one Sikh gentleman was driving the motorcycle and the other a clean shaven sitting on the pillion. They stopped their motorcycle near the scooter and started an altercation with the deceased. On seeing this, Kishan Singh and Manjit Singh came downstairs and found that the Sikh gentleman whose name was disclosed later on as Jagjit Singh u/s.Mehar Singh. F-173, Laxmi Nagar Delhi, was armed with a knife. He gave two/three knife blows. to Mohan Singh, while his companion, later on identified as Brij Mohan caught hold of the deceased from behind. One Ramesh Kumar was trying to rescue the deceased. On seeing this Kishan Singh and Manjit Singh raised an alarm and tried to apprehend the accused. Jagjit Singh, however, brandished the knife at them and called his accomplice by the name Surinder and asked him to escape on the motorcycle.

(4) In the meantime, S.I. Harbans Lal Along with Constable Sri Kishan who were on patrolling duty on Enfield motorcycle came from Ajmeri Gate side. They heard the noise and stopped the motorcycle nearby and they then saw Jagjit Singh holding a blood-stained knife in his band. He was overpowered by the police officers. Brij Mohan, however, succeeded in escaping. The injured was immediately sent to J.P.N. Hospital with his brother M;injit Singh in a three-wheeler scooter, where on examination he was declared dead by Dr. Ravinder K. Gupta at 1.45 AM.

(5) S.I. Harbans Lal then recorded the statement of Kishan Singh. PW-2/A, underneath which he made his endorsement on the basis of which the formal F.I.R Ex Public Witness -12/A was recorded. From the spot, S.I. took into possession the blood-stained shirt of the deceased, blood-stained pieces concrete and the knife after its sketch was prepared. The site was got photographed from Constable Baljit Singh. The motorcycle and the three-wheeler scooter were seized by different recovery memos. Accused Jagjit Singh was arrested there and then.

(6) Subsequently, investigation was taken over by S.I. Om Prakash and on 16th March, 1983, he came to know that Brij Moban had been arrested in case relating to, P. S. Roshnara, He was formally taken into custody in this case, and put up for the test identification parade but accused Brij Mohan refused to take part in the same.

(7) The case property was deposited in the Malkhana and thereafter sent to the office of the C F.S L. The report Ex. P/Y and P/Z indicated human blood on the shirt, knife, blood-stained earth and blood-stained gauze and cotton, but 'O' group blood was detected on the shirt and gauze only, while the other articles gave no reaction to any blood grouping. On these facts, the challan was filed and the trial proceeded.

(8) Even though the prosecution examined as many as 17 witnesses, but Kishan Singh, Public Witness -2, Manjit Singh, Public Witness -3 and Ramesh Kumar, Public Witness -4 are the only eye-witnesses, of the occurrence. In addition to that Shri Kishan Constable Public Witness -16 and S 1. Harbans Lal, Public Witness -17 are the witnesses who apprehend the accused Jagjit Singh at the spot while he was holding the knife in his hand The remaining witnesses are formal in nature, except Dr. G K. Sharma, who conducted the post-mortem examination, on the dead body of the deceased.

(9) The accused Jagjit Singh in his statement under Section 313 Criminal Procedure Code . denied his involvement and stated that on the night between 27th and 28th February, 1983 at about 1 A.M,, he was coming on his motorcycle Dlp 8839. When he reached near house no. 38, G.B. Road, he found one injured person lying near the pavement bleeding profusely. He also saw a blood- stained knife lying nearby. He stopped his motorcycle and came to see as to what had happened like other persons who were standing nearby. In the meantime, some Police officials came there, and they started interrogating him, while the other persons present there slipped away As he was drunk and started arguing with the Police officers, he was taken to Police Station under suspicion and then falsely implicated in this case. His co accused Brij Mohan denied his presence at the scene of occurrence. According to him, he bad refused to join the test identification parade because he had already been shown to the witnesses.

(10) Shri D C. Mathur, learned counsel for the appellant has challenged the evidence' of the so-called eye-witnesses whose statements have been relied upon by the learned lower court to base the conviction. The submission is that Public Witness -2 Kishan Singh and Public Witness 3 Manjit Singh could not and in fact had not seen the incident. Let us examine this aspect carefully in its right perspective.

(11) It is an old saying but true, that parsons/witnesses may lie but the circumstances/documents will not. This ancient proverb is full applicable to this case. It is like this. To start with, the case ofthe prosecution is that both the brothers were standing on the balcony of their house on the second floor of the building no. 38, G B Road, when they saw their brother Mohan Singh standing near his scooter. According to the learned counsel, it was not possible to see anything and in our opinion, rightly so. It was near about 1 A.M. on a wintry night of the month of February. In the photographs, the scooter is shown parked just touching the footpath. According to Public Witness -3 Manjit Singh there was no electric light in the street at that time inasmuch as his statement was recorded by the S.I. in the torch-light flashed by another police-man. No shop nearby was open. This is also evident from the site plan Ex-PW-l/A, where no electric pole is shown to have been installed near that place. While standing on the second floor of the house, prima facie, it was not possible for them to see the movements of their brother in this darkness. Otherwise also the position of scene of occurrence is such that it was not possible to observe the actual assault On the ground floor of the entire G.B. Road, there are shop In front of the shops, there is footpath of 15 ft. wide and is covered by a colonnade. The first floor and second floor above the shops are residential premises. The space over the colonnade is open to sky. The position of the shops, residential houses and the colonnade is shown in the site plan Public Witness -1/A. While standing on the balcony of the second floor, it was not possible to see the scooter parked by the side of the footpath. Both these brothers in our view could not and must not have seen their brother and two of the assailants converging with each other. It is for that reason that they have not been able to depose as to what transpired between the assailants and Mohan Singh inasmuch as they could not bear anything.

(12) The next circumstance relied upon by the prosecution is that after hearing the altercation, both the brothers came downstairs and saw the accused giving 2/3 knife blows to their brother Thereafter, Mohan Singh was removed to the hospital by Public Witness -3 Manjit Singh. after his (deceased) blood- stained shirt was removed. In that process, Manjit Singh's clothes got blood- stained. The prosecution record is otherwise. The presence of both the brothers at the spot has been proved doubtful inasmuch as at one stage, Manjit Singh stated that by the time, he came down from the second floor, bids brother had already been stabbed. Further more, neither of them tried to remove their brother Mohan Singh to the hospital. Admittedly, the bloodstained clothes of Manjit Singh have not been taken into possession by the Police. Otherwise, also. the name of Manjit Singh is not mentioned in the M.L.C. as the person who brought or got his brother admitted in the J.P.N. Hospital.

(13) In order to overcome this lacuna, the prosecution produced Duty Constable at J.P.N. Hospital Shri Hoshiar Singh (Public Witness -9), to depose that at about 1.45 A.M. Moban Singh was brought to the hospital by his brother Manjit Singh, but in his cross-examination, he failed to substantiate this part of his statement inasmuch as be did not record the fact in the Daily Diary. maintained at the hospital which is a must. On the other hand, the prosecution's own case is that the deceased was taken to the hospital by Constable Ram Prasad (Public Witness -7). According to this witness, he had taken the dead body from below the Kotha in G B. Road to the hospital Along with another Constable and the Investigating Officer Om Prakash where the deceased on examination was declared "brought dead". He does not name Manjit Singh, who accompanied him to the hospital, Thai appears to be the reason of the non-mentioning of the name of Manjit Singh in the M L.C. It is strange that no neighbour came there even though there was lot of commotion. The parents who are living on the second floor of the house Along with their sons did not come to know of this incident or came downstairs to join the investigation. According to Harbans Lal, Public Witness -17, the parents of the deceased and other relations came there after about 2/3 hours. The cumulative effect of the evidence discussed above leaves no doubt in our mind that neither of the brothers of the deceased was in a position to ice the incident and in fact had not been the occurrence. They appear to have been called later on to the scene of occurrence. None of them in fact removed the injured to the hospital.

(14) The other circumstances which support the defense version and belie the presence of Public Witness -2 and 3 on the spot is the position of the scooter and the motorcycle of the accused parked close to each other. It is the case of the prosecution that the accused along with his companion came from the side of Lahori Gate and stopped their motorcycle by the side of the scooter. both facing Ajmeri Gate. According to Kishan Singh. Public Witness -2, the position of these vehicles remained intact and nobody tampered with the same till their removal by the Police. Similar is the statement of Manjit Singh, Public Witness -3. His version is that when he came down from the balcony, the motorcycle of the accused as also the scooter was facing towards Ajmeri Gate, and when he returned from the hospital, after getting his brother admitted, both the motorcycle and the three-wheeler scooter of his brother were still in the same position. These were removed to the Police Station within 5 minutes of the departure of the Police after completing the formalities at the spot. According to Harbans Lal, Public Witness -17, also, the three-wheeler scooter and the motorcycle where taken to the Police Station from the spot at about 5 or 6 A.M, and till then their directions had not been changed or tampered with.

(15) To rebut the statement of these two witnesses learned counsel for the appellant drew our attention to the statement of photographer Constable Baljit Singh, Public Witness -11 According to this witness. he had taken the photograph (PW-11/1 to 10) of the place of occurrence and that of the vehicles at about 2.30 a.m. or 2.45 a,m. on 28-2-1983. Learned counsel has shown us one of the photographs which were given to the accused before the start of the trial, Ex. Public Witness 11/7 is the photograph which appears to have been taken in day time showing the motorcycle and the scooter parked side by side bui facing opposite directions He has also shown us another photograph taken from a different angle showing the same position of these two vehicles. All other photographs have been taken during the night time with a flash camera, in which the motorcycle is not shown at all though three-wheeler scooter is very much there. Learned counsel for the State has not been able to furnish any plausible explanation as to why two photographs were taken later on and by whom. This evidence, in our opinion, falsifies the case of the prosecution as laid before the Court. It appears that these two photographs were taken at day time, to show that the accused had come on his motorcycle. In this attempt, they have miserably failed.

(16) At this stage, it will be relevant to scrutinise the evidence of Ramesh Kumar, Public Witness -4, who also claims to be an eye-witness of the occurrence. He is the resident of Shahganj, Ajmeri Gate. According to him at about I am. on the night between 27th and 28th February, 1983, he was returning home after enjoying the night-show. He heard the exchange of abuses between one sikh gentleman and another on one side and the deceased on the other. He has also seen the accused Jagjit Singh stabbing 2/3 times with his knife on the front portion of the deceased. In his presence, the accused wa(r) over-powered and the knife smeared with blood was snatched from his hand. He, however, failed to identify Brij Mohan as the other person accompanying the accused. Surprisingly, no cinema ticket was produced to show his bona fide presence at the spot at that hour of the night. Otherwise, the direct road to his house is through a street going parallel to G.B Road and normally, one would like to reach his house from a shorter route than taking a longer one. According to him, his statement was recorded first of all at the spot and thereafter the statement of Kishan Singh by the 1.0. These statements were recorded in the torch-light. If that be so, the Fir should have been recorded on his statement but it has not been done. He also shows his ignorance as to who removed the bloodstained, shirt from the person of the injured and as to what produced the same before the 1.0. He further stated that before accused Jagjit Singh was apprehended, he commanded his companion naming him as Surinder to run away from the spot. It is strange that the accused who according to the prosecution had given the stab wounds would exhort his companion to run away and himself would not try to escape on the motorcycle which belongs to him and is alleged to have been driven by him. His evidence prima facie does not inspire confidence and cannot be relied upon.

(17) It is the further case of the prosecution that when the accused Jagjit Singh was overpowered he was holding the knife smeared with blood in his hand. His clothes had also got blood stains. Harbans Lal, S.I first prepared the sketch plan of the knife (P-1) and converted it into a sealed parcel and ia due course of time deposited the same into the Malkhana. Surprisingly, the clothes of the accused were not taken into possession which would have definitely proved not only his presence at the spot but also having something to do with the injuries on the person of the deceased. The explanation furnished by the S.I. for this lapse is as under :- "I had not made any writing or endorsement to the effect that there was blood on the clothes of the accused Jagjit Singh or on his hands. l did not deem it necessary that it would be important evidence in this case if there was blood on the clothes of the accused or on his bands. It there was blood on the hands of the accused or on his clothes, then it is not necessary that I would have made a note about in the Zimni..................................... I had not noted anywhere in the Zimni about the blood on the clothes of Manjit Singh, Kishan Singh and Ramesh."

To a suggestion, he denied that he is giving dishonest answers to these queries. We are of the opinion that the 1.0. has failed to take possession of one of the most important peice of evidence which was readily available to him. His answers are not satisfactory.

(18) Admittedly, the knife was converted into a sealed parcel immediately after the accused is alleged to have stabbed Mohan Singh. According to Public Witness -2 and 4, some blood bad also fallen on the right hand of the accused Jagjit Singh while he was holding the knife. It comes to that not only the blade but the handle also became blood-stained. This very knife was sent to the office of the C.F.S.L. for reports Ex P/Y and P/Z are the reports. The result indicates that the knife had human blood but there was no reaction to the blood grouping while the shirt of the deceased and the blood stained gauze show 'O' group which was that of the deceased. In this way, even the prosecution has not been able to connect this very knife to the crime.

(19) In view of the discrepant evidence referred to above, the no recording of the substance of the information in the Daily Diary register and not sending the copies of the F.I.R. to the MM. of the area under Section 155/157 of the Criminal Procedure Code . assumes importance. According to the evidence of A.S.I. Sri Chand (Public Witness -12) on the receipt of the Ruqa,PW-2/A,sentby A.S.I. Harbans Lal, he not only recorded the formal F.I.R. but also entered its summary in the Register Vide D.D. Entry No. 4-A, Ex. Public Witness -12/B. In his cross-examination, he frankly admitted that this document does not contain the names of the witnesses, the assailant or the d(r)ceased. On the basis of this admission, the contention is that by the time Ex Public Witness -B was recorded, the whole of the information regarding the incident was available with the Duly Officer. If the First Information Report has been recorded as alleged by the prosecution during the night between 27th and 28th Februrary, 1983, then the subsequent entry in the Daily Diary should have contained the summary of the material facts. Similarly, the copy of the F.I.R. was not sent to the M. M. of the area We do not find the signature or the endorsement of the MM. on the F.I R. Ex Public Witness -12/A, having received its copy. On the other hand, we find that Shri G.P. Thareja A.C.MM. though cited as a witness, was given up being unnecessary. The learned lower court has taken note of this lapse by the prosecution but it was brushed aside on the short ground that if the sub-stratum of evidence brings home the guilt of the accused then in that event, the omission to record the substance of the F.I.R. need not be given undue importance. It is further observed that if the 1.0. commits a mistake, or the other Police Officer at the helm of affairs does not take due precaution despite there being a specific police rule, that by itself, cannot be a factor to give benefit to the accused if other evidence is available.

(20) We need not detain ourselves on this reasoning as it is quite contrary to the well, established rule of law. It has been repeatedly observed that the substance of the F.I.R. it not entered in the Daily Diary inasmuch as the names of the accused nor the names of the witnesses nor any other details were given in the said entry and further the failure to forward the copy of the F.I.R. to Area M.M. is indicative of the fact that when the said entry was made, full facts of the occurrence were not known. In the present case, the binding force of these observations can hardly be over-emphasized, particularly, when in the present case, the evidence of the so called eyewitnesses is not reliable.

(21) This takes us to the evidence of Dr. G.K. Sharma Public Witness -14, who conducted the post-mortem on the body of the deceased. On external examination, he found as many as 4 incised punctured wound. On internal examination, he found injury No. 4 had entered the chest cavity, through third inter-costal space cutting costal cartilages of fourth rib ; made a nick in the anterior border of lower lobe of left lung then cut the pericardium and went through and through the heart, made another cut on the pericardium and terminated by making a cut of 1x05 cm in the posterior inferior part of left lung. In his opinion, injury BO. 4 was sufficient to cause death in the ordinary course nature. His report is Ex. Public Witness 14/A. In this report, while conducting the internal examination of abdomen. Dr. G K. Sharma found: "Stomach contains about 500 ml of semi-digested food, small intestine contains gases and semi-digested food."

On the basis of this report, the contention is that there was no gap in between the taking of the meals and the incident, making it possible for the deceased to digest the food as disclosed in the report of the doctor. Within this short interval, according to the learned counsel, it has to be undigested food. In support of this submission, learned counsel has relied upon a chart giving the times, required for digestion of various food items. From this chart, we find that even the soups take not less than three hours to digest, In the normal course, the society to which the deceased belonged, would take wheat-floor chapatis, potatoes or other vegetables. There is no evidence to suggest as to which food the deceased took when he came to his house, but in the normal circumstances we expect that he must have taken the bread, one or two vegetables and the rice. According to the chart, these items will take more than three hours to get digested. Even the boiled milk of one consumes will take more than two hours for digestion. From the evidence of Public Witness -2 and 3 we find that Mohan Singh came to the house at 12.30 a m. and after taking meals, he went downstairs at about i am. It appears that immediately after taking the meals he came on the street to ply his scooter. Within this period certainly the Doctor cannot find a semi-digested food in the stomach or in the small intestine of the deceased. This fact goes a long way to demolish the prosecution version of the accused having stabbed the deceased at the time and place alleged by the prosecution.

(22) Further more, the prosecution has not alleged or proved any motive for the accused to cause the death of Moban Singh without any rhyme or reason They were not known to each other from before. Public Witness -2 and 3 have also not heard any conversation in between the two, before the stabbing. The nature of the talk is anybody's guess. There is no material on record to suggest as to what prompted the accused persons to take a revenge or in other words, to assault Mohan. Singh. It is often noticed that motive is not an essential element to prove she guilt in a criminal case. It may strengthen the evidence on recurd. However the absence of motive or the existence of an inadequate motive has repeatedly been held to be a matter of comparative unimportance where there exists absolutely cogent evidence that a crime has in fact been committed by a particular person. It is only because of this that the evidence of the prosecution has to be closely examined and scrutinized to bring home the guilt of the accused. As already observed earlier, in our opinion, the prosecution has miserably failed to connect the accused with the commission of the offence charged with. The ocular testimony of the so-called eye-witnesses is biased partisan and interested. The circumstances and the documents do not point an accusing finger towards the accused The investigation is deficient in many ways and had left gaps which are difficult to fill in. The sum total of the above discussion leads us to the only conclusion that the appellant has been proved to be associated with the crime.

(23) In the result, the appeal is accepted and the conviction and lenience of the accused Jagjit Singh is set aside. He be set at liberty if not required to be detained in any other case.