Delhi High Court
Pradeep vs State on 6 April, 2010
Author: Pradeep Nandrajog
R-12 to 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 6th March, 2010
+ CRL.APPEAL NO.348/2008
PRADEEP ..... Appellant
Through: None.
versus
STATE ..... Respondent
Through: Mr.M.N.Dudeja, A.P.P.
+ CRL.APPEAL NO.616/2008
PRADEEP ..... Appellant
Through: None.
versus
STATE ..... Respondent
Through: Mr.M.N.Dudeja, A.P.P.
+ CRL.APPEAL NO.651/2008
ROSHAN ..... Appellant
Through: Ms.Anu Narula, Advocate.
versus
STATE ..... Respondent
Through: Mr.M.N.Dudeja, A.P.P.
+ CRL.APPEAL NO.678/2007
KAPIL ..... Appellant
Through: Mr.S.C.Buttan, Mr.Purvesh Buttan and
Mr.Himanshu Buttan, Advocates.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, A.P.P.
Crl.A.Nos.348/08, 616/08, 651/08 & 678/07 Page 1 of 10
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J. (Oral)
1. All the above captioned appeals lay a challenge to
the judgment and order dated 11.9.2007 convicting the
appellants for the offence punishable under Section 302 IPC.
2. The finding returned by the learned Trial Judge is
that the prosecution has successfully proved that acting in
concert the appellants murdered deceased Kalo Singh at
around 3:00 PM on 4.3.2007.
3. In sustaining the conviction of the appellants the
learned Trial Judge has held that the eye-witness account given
by Ajab Lal PW-6 and Shambhu Singh PW-7 needs to be
accepted as the witnesses were found to be credible.
4. Shambhu Singh PW-7 is the younger brother of the
deceased and Ajab Lal is friend of Shambhu Singh.
5. As per the prosecution, appellant Pradeep S/o
Sukhbir stabbed the deceased with a knife which we note was
not recovered. Appellant Pradeep S/o Swaran Singh, Kapil S/o
Lachhu and Roshan S/o Birbal Singh have been alleged to have
caught hold of the deceased when Pradeep S/o Sukhbir
inflicted the fatal stab wounds.
6. It is the testimony of the two witnesses that the
deceased was caught and stabbed twice on two different
places on the street. It is the case of the prosecution that
blood was lifted at two different places on two public streets.
7. Our attention has been drawn to the examination of
the four accused under Section 313 Cr.P.C. 11 identically
worded questioned followed by 4 other identically worded
questions, but without any number, have been put to the four
accused.
8. The 11 numbered questions and the 4 non-
numbered questions put to the accused are as under:-
"Q1: It is in evidence against you that on 4.3.2007 at
about 3 pm at Goel Wali gali, Shardhanand Park,
Opposite House No.E-4 and E-131/25 Bhalaswa Dairy
you along with your co-accused Pradeep S/o Sukhbir
Singh, Kapil S/o Lachhu and Roshan S/o Birbal Singh in
furtherance of your common intention stabbed one
Kalo Singh S/o Sudin Singh R/o E-72, Swami
Shardhanand Park, Delhi thereby killing him and
committed an offence of culpable homicide amounting
to murder. What have you to say?
Q2: It is in evidence against you that the PCR call
regarding murder was made which is Ex.PW-2/1 and
DD No.27-A Ex.PW-11/1 was recorded and the
statement of the complainant Shambhu Singh which is
Ex.PW-7/1 was recorded on which the endorsements
Ex.PW-11/2 and Ex.PW-12/1 were made on the basis of
which the FIR Ex.PW-12/2 was registered regarding the
DD No.30A Ex.PW-12/3 was recorded and the copies of
the FIR were sent to the learned M.M. and senior
police officers vide DD No.31A which is Ex.PW-12/4
and the DD No.9A Ex.PW-12/5 and DD No.25A Ex.PW-
12/6 were recorded. What have you to say?
Q3: It is in evidence against you that the MLC of the
deceased Kalo Singh which is Ex.PW-4/1 was obtained;
statement of the witness Ajab Singh which is Ex.PW-
6/3 was recorded; the scene of occurrence was got
photographed vide negatives Ex.PW-10/1 to Ex.PW-
10/9 and photographs Ex.PW-10/10 - PW-10/18 and
two rough site plans were prepared at the instance of
the complainant which are Ex.PW-11/3 and PW-11/4.
What have you to say?
Q4: It is in evidence against you that the exhibits
were also lifted from the spot including the chappals of
deceased, blood soaked earth samples and earth
samples vide memos Ex.PW-3/1 and Ex.PW-3/2 and
the report Ex.PW-9/1 was prepared by the Crime
Team. What have you to say?
Q5: It is in evidence against you that the inquest
proceedings of the deceased Kalo Singh were
completed and the dead body was handed over to the
brother of the deceased namely Shambhu Singh vide
receipt Ex.PW-6/1; the identifications are Ex.PW-6/2
and Ex.PW-7/2. What have you to say?
Q6: It is in evidence against you that you were
arrested on 5.3.2007 at the instance of the
complainant vide arrest memo Ex.PW3/3; your
personal search was conducted vide memo Ex.PW-
3/12; your disclosure statement Ex.PW-3/8 was
recorded and you pointed out the place of occurrence
vide pointing out memo Ex.PW-3/10 and your clothes
were changed which were taken into possession vide
memo Ex.PW-3/5. What have you to say?
Q7: It is in evidence against you that the postmortem
on the body of Kalo Singh was got conducted and
report Ex.PW-1/1 was prepared and the clothes of the
deceased, blood samples along with one sample seal
were seized vide memo Ex.PW-11/5. What have you
to say?
Q8: It is in evidence against you that the scaled site
plan Ex.PW-5/1 was prepared and the application for
extract of the PCR call was made which is Ex.PW-11/6.
What have you to say?
Q9: It is in evidence against you that the case
property has been produced in the court in 12 sealed
pulandas and the same is Ex.P-1 to Ex.P-12/A. What
have you to say?
Q10: It is in evidence against you that the sealed
pulandas were taken to the FSL vide RC No.90/21/07
and the receipt along with the RC is Ex.PW-14/A and
on 24.7.2007 the pulandas had been received back
along with the FSL result and the entries in this regard
is Ex.PW-13/1. What have you to say?
Q11: It is in evidence against you that the expert
opinion from the FSL was obtained which is Ex.PW-
16/3. What have you to say?
Q: Why this case against you?
Q: Why PWs have deposed against you?
Q: Do you wish to say anything else?
Q: Do you wish to lead defence evidence?"
9. Interestingly it may be noted that the first question
put to accused Kapil also notes that he along with his co-
accused Kapil as also co-accused Pradeep and Roshan in
furtherance of their common intention stabbed Kalo Singh.
Similarly, same mistake has been committed vis-à-vis the other
accused. Interestingly in question No.1 no reference has been
made to anything done by co-accused Pradeep S/o Swaran
Singh.
10. That apart, we find that save and except question
No.1, commencing from question No.2 and ending till question
No.11, the learned Trial Judge has simply put to the accused
the record of investigation and not the evidence which was led
against the accused and was inculpatory of the accused.
11. Reference has been made in the question to various
statements recorded by the investigating officer during
investigation of various persons who were associated in the
investigation.
12. Needless to state, statements of persons recording
during investigation by police officers are not substantive
evidence and cannot be made the basis for putting questions
to the accused when they are examined under Section 313
Cr.P.C.
13. As held in the decision reported as AIR 1972 SC 535
Parichhat vs. State of Maharashtra, Trial Judges must realize
the importance of examination of accused under Section 313
Cr.P.C. It is the duty of the Trial Judge to question the accused
properly and fairly, bringing home to the mind of the accused,
in simple and clear language, the exact case he has to meet
and each material point that is sought to be made against him
and of affording him a chance to explain it if he can and so
desires.
14. As held in the decision reported as AIR 2004 SC
5068 Parsuram Panday vs. State of Bihar, it is imperative on
the Trial Court to give opportunity to an accused to explain
every incriminating circumstance proved by the prosecution.
15. The lynchpin of Section 313 Cr.P.C. are the words
„explain any circumstances appearing in evidence against him'.
This means that every fact from which the Court would draw
the inference of guilt against the accused has to be put to the
accused. For example, as held in the decision reported as AIR
1953 SC 468 Hate Singh vs. State of Madhya Bharat, if the
Court attaches importance to the fact that the accused
absconded, the accused should have been questioned on this
point and given a change to explain.
16. In the instant case, different roles at different points
of time have been assigned against Pradeep S/o Swaran Singh,
Kapil S/o Lachhu and Roshan S/o Birbal Singh. The witnesses
of prosecution have alleged that Pradeep S/o Sukhbir stabbed
the deceased.
17. With reference to the questions put to the accused,
it is apparent that the incriminating circumstance of the eye-
witness account allegedly claimed as having been seen by Ajab
Lal PW-6 and Shambhu Singh PW-7 has just not been put to the
accused.
18. It has not been put to the accused as to what is the
claim of the two eye-witnesses of what they saw. It has not
been put to the accused the claim of the two eye-witness of
having seen the incident spanning two different spots while
standing from a spot on the street.
19. Under the circumstances, we hold that there has
been a denial of the right of all the accused in terms of Section
313 Cr.P.C.
20. This requires the impugned judgment and order
convicting the appellants as also the order on sentence to be
set aside with the matter remanded before the learned Trial
Judge to re-examine the accused by properly framing questions
under Section 313 Cr.P.C.
21. Ordered accordingly.
22. The appeals stand disposed of setting aside the
impugned judgment and order dated 6.9.2007 convicting the
appellants of the offence punishable under Section 302 IPC.
The order on sentence dated 11.9.2007 is also set aside.
23. The matter is remanded to the learned Trial Judge
with a direction that taking note of the law relatable to Section
313 Cr.P.C. and as explained herein above, all the accused
would be properly examined under Section 313 Cr.P.C. and
thereafter, should the accused desire to lead defence
evidence, an opportunity to lead defence evidence would be
granted followed by arguments being heard and matter being
decided afresh.
24. We note that Kapil S/o Lachhu is on bail. The order
admitting him to bail directed that till disposal of the appeal he
would be set free on bail. Appellants Pradeep S/o Sukhbir
Singh, Pradeep S/o Swaran Singh and Roshan S/o Birbal Singh
are in custody.
25. Since the matter is being remanded before the
learned Trial Judge, exercising our power under Section 482
Cr.P.C. we direct that on the appellants Pradeep S/o Sukhbir
Singh, Pradeep S/o Swaran Singh and Roshan S/o Birbal Singh
furnishing a personal bond in sum of Rs.10,000/- with one
surety in the like amount to the satisfaction of the learned Trial
Judge, they would be released on bail till the matter is re-
decided by the learned Trial Judge.
26. We further direct that Kapil S/o Lachhu who is
already on bail shall continue to remain on bail till the matter is
decided afresh by the learned Trial Judge and we accordingly
direct the learned Trial Judge to accept fresh bail bond and
surety bond from Kapil S/o Lachhu, the personal bond being in
sum of Rs.10,000/- and the surety bond would be in the like
amount till the matter is re-decided.
27. 3 copies of this order be sent to the Superintendent,
Central Jail, Tihar to be made available to appellants Pradeep
S/o Sukhbir, Pradeep S/o Swaran Singh and Roshan S/o Lachhu.
28. Copy of this order be handed over dasti to learned
counsel for appellant Kapil who is already on bail.
29. TCR be returned forthwith.
30. As a word of caution to the learned Trial Judge, we
direct that the Registry would sent a copy of this decision to
the District & Sessions Judge, Delhi who would ensure that it is
supplied to the learned Judge who has penned the impugned
decision, whom we note was the Judge when the accused were
examined under Section 313 Cr.P.C.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
APRIL 06, 2010
dk
