Delhi High Court
Kehar Singh & Anr. vs State on 24 September, 2009
Author: Pradeep Nandrajog
* 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 1 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
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
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
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.
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
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
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.
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-
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
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.
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.
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
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
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.
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
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
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
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 told them the accused are hiding in a
slum dwelling. Thereafter he, the deceased, Randeep and
Shamsher demolished the slum dwelling in which the
appellants were hiding whereupon the appellants came out
and opened firing at them. He, the deceased, Randeep and
Shamsher ran to save their lives. After sometime he found out
that the deceased has been shot. He removed the deceased to
the hospital where he was declared as brought dead.
33. In their examination under Section 313 CrPC, the
appellants denied everything and pleaded innocence. They
stated that they have been falsely implicated by the police.
34. In defence, the appellants examined 5 witnesses. We
need not note the testimony of the said witnesses as nothing
much turns thereon.
35. Holding that the testimonies of Anil Kohli PW-3, Subash
Chand PW-17, Ramesh Chander PW-18, Shamsher Singh PW-2,
Randeep PW-16 and Vijay PW-18 duly corroborates the case
set up by the prosecution against the appellants, vide three
separate judgments, the learned Trial Judge has convicted the
appellants for the offences of having committed robbery at the
residence of Ramesh Chander and having murdered the
deceased. Additionally, appellants Kehar Singh and Vimal
Kumar have been convicted for the offences of having robbed
Anil Kohli of his scooter; attempted to murder the police
officers who had come to arrest them and possessing firearms.
However, the learned Trial Judge acquitted them of the charge
of wrongfully confining the deceased and entering into a
criminal conspiracy to commit murder of the deceased and
robbery on the ground that the prosecution has not led any
evidence to show that the deceased was wrongfully confined
by the appellants and that the appellants entered into a
criminal conspiracy.
36. It be noted here that the learned Trial Judge has not used
the findings recorded in the CFSL reports Ex.PW-24/F and
Ex.PW-24/G as an incriminating circumstance against the
appellants as per which the firearms recovered from Kehar
Singh and Vimal Singh were opined to be the ones from which
the bullets were fired pertaining to which bullets used
cartridges were apparently picked up by the police from the
place where the deceased was murdered and the place where
the exchange of fire took place.
37. At the hearing of the appeals, learned counsel for the
appellants advanced under-noted three submissions in support
of the appeals.
A That the case of the prosecution against the
appellants has fallen like a house of cards, inasmuch as
the evidence of Vijay PW-18, who was the key witness of
the prosecution is at complete variance with the case set
up by the prosecution against the appellants.
B That the sanctity of the CFSL report Ex.PW-24/G is
in serious doubt. The counsel drew attention of the court
to the seizure memos Ex.PW-16/D, the entry Ex.PW-13/A
and the testimony of Inspector Avtar Singh Parmar PW-24,
to show that two empty cartridge cases were seized from
the place of the murder of the deceased and that no other
empty cartridge cases were seized in the present case.
Thereafter the counsel drew attention of the court to CFSL
report Ex.PW-24/G which records that four empty cartridge
cases marked as C1, C2, C3 and C4 respectively were sent
to CFSL in the present case. As per the counsel, when only
two empty cartridge cases were seized in the present case
then how come four empty cartridge cases were sent to
CFSL is a mystery. Counsel urged that the said
discrepancy between the number of empty cartridge cases
seized in the present case and number of empty cartridge
cases sent to CFSL shows that the police tampered with
the case property and therefore, in such circumstances no
reliance should be placed upon CFSL report Ex.PW-24/G.
C That the charges framed against appellants,
particularly appellant Udaiveer Singh, were most defective
and that the said serious infirmity in the trial of the
appellants has vitiated the conviction and sentence
awarded to them.
38. As already noted herein above, Vijay PW-18, has deposed
at variance to the testimony of the other eye witnesses as to
what actually transpired and how the accused were arrested.
But, he has inculpated the accused in the murder of the
deceased. We may note that Vijay deposed at variance with
his statement recorded under Section 161 Cr.P.C. and was
declared hostile.
39. In the decision reported as Sheikh Zakir v. State of Bihar
AIR 1983 SC 911, the Supreme Court observed as under:-
"It is not quite strange that some witnesses do turn
hostile but that by itself would not prevent a Court
from finding an accused guilty if there is otherwise
acceptable evidence in support of the prosecution. In
the instant case, both the Trial Court and the High
Court have believed evidence of the prosecutrix and
the evidence of the other prosecution witnesses who
had been examined at the trial."
40. In the decision reported as Bhola Ram Khushwaha v.
State of M.P. AIR 2001 SC 229, the Supreme Court held that
the fact of an independent witness turning hostile is not in
itself a ground to acquit the accused.
41. In view of the dictum laid down by the Supreme Court in
the afore-noted two decisions, we have no hesitation in
holding that merely because Vijay PW-18, had turned hostile
and deposed at variance with the case set up by the
prosecution against the appellants, when there is
overwhelming material on the record establishing the guilt of
the appellants, the case of the prosecution cannot be thrown
to the winds because of one witness turning hostile. As already
noted herein above, the witnesses; namely, Anil Kohli PW-3,
Subash Chand PW-17, Ramesh Chander PW-19, Randeep PW-
16, Shamsher Singh PW-2 and the police officers associated
with the investigation and the apprehension of the appellants
have fully supported the case of the prosecution. The aforesaid
witnesses have impeccable character inasmuch as they have
withstood the test of cross-examination. Nothing could be
elicited from the cross-examination of the said witnesses
which could cast a doubt on their veracity.
42. We agree with the submissions made by learned counsel
for the appellants that the sanctity of CFSL report Ex.PW-24/G
is in serious doubt inasmuch as there is discrepancy between
the number of empty cartridge cases seized in the present
case and the number of the empty cartridge cases sent to
CFSL. Therefore, we do not consider it appropriate to rely upon
the said report as an incriminating piece of evidence against
the appellants.
43. What is the effect of the exclusion of CFSL report Ex.PW-
24/G from the list of incriminating pieces of evidence against
the appellants on the finding of guilt of the appellants returned
by the learned Trial Judge?
44. None whatsoever. The learned Trial Judge has also not
used the report against the appellants. The testimony of the
eye witnesses who have withstood the test of cross
examination is sufficient to convict the appellants. Subhash
Chand PW-17 and Ramesh Chander PW-19 have identified the
appellants as the ones who entered their house and after
threatening them with firearms committed robbery of the
articles which were seized from the appellants as per seizure
memos Ex.PW-24/B, Ex.PW-24/C and Ex.PW-24/D. They
identified the valuables which were recovered. Anil Kohli PW-3
deposed against appellants Kehar Singh and Vimal Kumar and
inculpated them of having snatched his scooter after
threatening him with country made pistols. Randeep PW-16
and Shamsher Singh PW-2 implicated the appellants in the
murder of the deceased.
45. This takes us to the submission predicated upon the
language of the charge framed and in particular against
appellant Udaiveer Singh.
46. It is apparent that the charge has been framed in a
casual manner. What has surprised us is the fact that qua the
deceased Mandeep who died as a result of firearm injury, a
charge for the offence punishable under Section 307/34 IPC
has been framed. We fail to understand said charge being
framed for the reason, pertaining to the death of Mandeep, the
charge punishable with the offence of murder has been framed
against the accused.
47. A perusal of the charge shows that all the three
appellants have been put to notice of the charge; the defect in
the charge is of not naming Udaiveer Singh with reference to
the acts constituting the offence of which the accused were
charged of.
48. One basic requirement of a fair trial in criminal cases is
to give precise information to the accused as to the accusation
against him. This is vitally important to the accused in the
preparation of his defence. In all trials under the Code of
Criminal Procedure, the accused is informed of the accusation
against him in the beginning itself. In case of serious offences
the Code requires that the accusations are to be formulated
and reduced to writing with great precision and clarity. This
"charge" is then to be read and explained to the accused.
49. Charge serves the purpose of notice or intimation to the
accused, drawn up according to specific language of law,
giving clear and unambiguous or precise notice of the nature
of accusation that the accused is called upon to meet in the
course of a trial. In simple words, the object of a charge is to
warn an accused of the case he is to answer. Framing of
charge against an accused is not a mere ritualistic formality.
Courts have to be most vigilant while framing charges against
the accused. As observed by Supreme Court in the decision
reported as Willie (William) Slaney v State of MP AIR 1956 SC
116:-
"Now there is no doubt that a charge forms the
foundation of a sessions trial and is a most important
step in it. The accused must know and understand
what he is being tried for and must be told in clear
and unambiguous terms: Section 271(1). There can be
no shirking that or slurring over it, and this must
appear on the face of the record...."
50. Having stated the importance of framing a charge
against an accused, we proceed to examine the correctness of
the charges framed against the appellants and the effect of
the deficiencies pointed out.
51. A perusal of the charges framed against the appellants;
contents whereof has been noted in para 23 above, goes to
show that the same suffers from the following four defects:-
I Name of appellant Udaiveer Singh does not find a
mention in the substance of the charges framed against him.
While framing the charge the acts of co-accused constituting
the offence have been brought out, omitting reference to
Udaiveer Singh.
II Charges have been framed against the appellants for
murdering the deceased as also for attempting to murder the
deceased. When the appellants murdered the deceased,
where was the occasion for framing a charge against the
appellants for attempting to murder the deceased?
III The gist of offence of criminal conspiracy is an
agreement between the accused to break the law. In the
instant case, by no stretch of imagination, it can be said that
there was an agreement between the appellants to murder the
deceased inasmuch as they could not have anticipated that
they would be chased and apprehended by the deceased after
they had committed the offence of robbery at the residence of
Ramesh Chander. Therefore, the appellants have wrongly been
charged under Section 120-B IPC.
IV The fifth charge against the appellants that they entered
into a criminal conspiracy to commit "robbery". It is apparent
from the narrative of the investigation as also from the
evidence of the witnesses of the prosecution that two
robberies were committed in the present case. The first
robbery was committed at the residence of Ramesh Chander
by all the appellants whereas the second robbery was
committed by appellant Kehar Singh and Vimal Kumar in
respect of the scooter of Anil Kohli. In such circumstances, it
was incumbent upon the learned Trial Judge to state the
details of the robbery in the substance of the charge.
52. What is the effect of framing of defective charges on the
conviction and sentence awarded to the appellants?
53. The answer to the afore-noted question lies in the
decision of Supreme Court reported as Willie Slaney (supra).
After examining the scheme of Code of Criminal Procedure
with respect to framing of a charge against an accused person,
Supreme Court observed as under:-
"41. We do not mean to imply that laxness of
procedure should be encouraged in the matter of the
charge any more than this Court encourages it in
matters relating to Section 342; nor do we mean to
suggest that a trial can be regarded as good when the
accused does not know what he is being tried for and
is not told and the matter is not explained to him as
Section 271 requires. Of course, the rules should and
ought to be punctually observed. But Judges and
Magistrates are fallible and make mistakes and the
question is what is to be done in the exceptional class
of case in which there has been a disregard of some
express provision.
42. As an illustration, we give a case in which a
Sessions Judge in a sessions trial having no charge
before him from the committal court omits to frame
one himself but instead, carefully and painstakingly,
explains the particulars and the substance of the
offence as in Section 242 and complies with the spirit
and object of Section 271 but omits to observe its
technical form. Then, when the witnesses are
examined, the accused shows by his cross-
examination that he knows just what he is being tried
for. He is examined fully and fairly under Section 342
and his answers show that he is under no delusion. He
calls witnesses in defence to meet the very point or
points the prosecution seek to make out against him.
He puts in a written statement and is defended by an
able lawyer who raises no objection from start to
finish. Will a technical defect in a case like that vitiate
the trial? If the Code says Yes, then there is an end of
the matter. But, in our opinion, the Code very
emphatically says No; but even if that is not the case
and even if the very plain and clear words of Sections
232 and 535 are susceptible of two meanings, surely
they should be construed so as to accord with what
will best serve the ends of justice. We have put a case
in which there neither is, nor can be, prejudice.
Surely, it would be a travesty of justice to brand a
conviction in a case like that as illegal. And yet that
must be done if these words that are otherwise plain
are construed in a strained and unnatural manner. On
the other hand, there is nothing in the view we take to
imperil or harass an accused however innocent he
may be. How does the technical formula of a charge
afford greater protection than the "explaining" under
Section 271(1) and the examination under Section
342? And yet, on the argument before us, an omission
to observe these other rules that are of the substance
is curable when there is no prejudice but not the
sacred ritual of the framing of the charge; once that is
there, the accused cannot be heard to say that he did
not understand however much that may be the fact.
Surely, this cannot be right.
43. Now, as we have said, Sections 225, 232, 535 and
537(a) between them, cover every conceivable type
of error and irregularity referable to a charge that can
possibly arise, ranging from cases in which there is a
conviction with no charge at all from start to finish
down to cases in which there is a charge but with
errors, irregularities and omissions in it. The Code is
emphatic that whatever the irregularity it is not to be
regarded as fatal unless there is prejudice. It is the
substance that we must seek. Courts have to
administer justice and justice includes the punishment
of guilt just as much as the protection of innocence.
Neither can be done if the shadow is mistaken for the
substance and the goal is lost in a labyrinth of
unsubstantial technicalities. Broad vision is required, a
nice balancing of the rights of the State and the
protection of society in general against protection
from harassment to the individual and the risks of
unjust conviction. Every reasonable presumption must
be made in favour of an accused person; he must be
given the benefit of every reasonable doubt. The
same broad principles of justice and fair play must be
brought to bear when determining a matter of
prejudice as in adjudging guilt. But when all is said
and done, what we are concerned to see is whether
the accused had a fair trial, whether he knew what he
was being tried for, whether the main facts sought to
be established against him were explained to him
fairly and clearly and whether he was given a full and
fair chance to defend himself. If all these elements are
there and no prejudice is shown, the conviction must
stand whatever the irregularities whether traceable to
the charge or to a want of one.
44. In adjudging the question of prejudice the fact
that the absence of a charge, or a substantial mistake
in it, is a serious lacuna will naturally operate to the
benefit of the accused and if there is any reasonable
and substantial doubt about whether he was, or was
reasonably likely to have been, misled in the
circumstances of any particular case, he is as much
entitled to the benefit of it here as elsewhere; but if,
on a careful consideration of all the facts, prejudice, or
a reasonable and substantial likelihood of it, is not
disclosed the conviction must stand; also it will always
be material to consider whether objection to the
nature of the charge, or a total want of one, was taken
at an early stage. If it was not, and particularly where
the accused is defended by counsel (Atta Mohammad
v. King-Emperor 15) it may in a given case be proper
to conclude that the accused was satisfied and knew
just what he was being tried for and knew what was
being alleged against him and wanted no further
particulars, provided it is always borne in mind that
"no serious defect in the mode of conducting a
criminal trial can be justified or cured by the consent
of the advocate of the accused" (Abdul Rahman v.
King-Emperor 16). But these are matters of fact which
will be special to each different case and no
conclusion on these questions of fact in any one case
can ever be regarded as a precedent or a guide for a
conclusion of fact in another, because the facts can
never be alike in any two cases "however" alike they
may seem. There is no such thing as a judicial
precedent on facts though counsel, and even Judges,
are sometimes prone to argue and to act as if there
were." (Emphasis Supplied)
54. The afore-noted judicial decision has consistently been
followed by Supreme Court. Some of the notable decisions of
Supreme Court which have followed the dictum laid down in
Willie Slaney's case (supra) are State of AP v Thakkidiram
Reddy (1998) 6 SCC 554, Gurpreet Singh v State of Punjab
(2005) 12 SCC 615, Ramji Singh v State of Bihar (2001) 9 SCC
528 and Sanichar Sahni v State of Bihar 2009 (8) SCALE 680.
55. The law on the issue can be summarized to the effect
that unless the convict is able to establish that the defect in
framing the charges has caused "real" prejudice to him, in that
he was not informed as what was the real case against him
due to which he could not defend himself properly, no
interference is called in the conviction and sentence awarded
to the said convict.
56. In the instant case, learned counsel for the appellants
could not point as to what prejudice has been caused to the
appellants due to framing of defective charges. The appellants
have never raised any grievance against the same at the time
of framing of the charge or during the course of trial. The
appellants were represented by counsel throughout the trial.
When the witnesses of the prosecution were examined, the
appellants shown by cross-examination of the witnesses, that
they know just what they are being tried for. The appellants
were examined fully and fairly under Section 313 Cr.P.C. and
their answers show that they were under no delusion.
Therefore, it cannot be held even by any stretch of imagination
that any prejudice has been caused to the appellants on this
very score. It may be noted that the appellants had engaged
separate counsel and each counsel cross examined all the
witnesses. The witnesses detailed the role of Udaiveer Singh
while deposing and his counsel cross examined them. It is
apparent that Udaiveer Singh understood the charges against
him relatable to the robbery committed in the house of PW-17
and PW-19 as also the murder of the deceased.
57. We thus reject the third submission advanced by the
learned counsel for the appellants.
58. However, as a note of caution, we add that the learned
Trial Judges should be vigilant while framing charges against
an accused. It is unfortunate, but we are noticing defective
charges being framed in a large number of matters. To the
good fortune of the prosecution, in no case, save and except
the instant case, have learned counsel for the accused raised
grievance with respect to the language of the charge. It
appears that ignorance of the counsel is neutralizing the
deficiency in the charges which are being framed in a large
number of matters or may be people have become used to
defective language and comprehend what is being conveyed.
59. In view of the above discussion, we dismiss the above
captioned appeals.
60. The appellants are on bail. We cancel the bail bond and
the surety bonds furnished by the appellants and directed
them to surrender and suffer the remaining sentence.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
September 24, 2009
mm
