Jagmender @ Happy vs State
2010 Latest Caselaw 1780 Del

R-10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision:6th April, 2010

+                           CRL.APPEAL NO.51/2008

       JAGMENDER @ HAPPY              ..... Appellant
               Through: Ms.Shraddha Bhargava, Advocate

                                   versus

       STATE                                      ..... Respondent
                        Through:   Ms.Richa Kapoor, Advocate

       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. Vide impugned judgment and order dated

15.10.2007 the appellant has been convicted for the offence of

having murdered Gurmeet Singh on 4.6.2001 at the midnight

at around 12:15. The learned Trial Judge has held that the

prosecution has successfully established that at around 12:15

AM i.e. midnight of 4.6.2001, when the deceased along with

his family members came out of Celebration Gardens at

National Highway No.8, the appellant suddenly put a pistol at

the neck of the deceased and fire a shot.

2. In returning the finding of guilt, the learned Trial

Judge has held that the ocular testimony of Amandeep PW-2 as

per which Amandeep identified the appellant as the assassin of

his father coupled with the fact that apart from Amandeep,

Manmohan Singh PW-3 stated that the assailant was wearing a

gray coloured T-shirt and the fact that a gray coloured T-shirt

was recovered from hotel Love Palace, Paharganj at the

instance of the accused on 10.7.2001 and at the TIP

proceedings was successfully identified by Amandeep as the

one which he saw his father's assassin wearing when he fired

the shot, were sufficient evidence wherefrom guilt of the

appellant could be inferred. Learned Trial Judge has also held

that the appellant failing to give a satisfactory reason of his

visiting Delhi and staying at a hotel and then abandoning the

hotel wherefrom the packet of clothes belonging to the

appellant were recovered was also an incriminating

circumstance against the appellant.

3. We need not pen a very lengthy judgment for the

reason, the learned Trial Judge has chosen to parrot the song

of the prosecution and has ignored most vital evidence which

we shall soon be noting.

4. The appellant was arrested on 22.6.2001 in another

FIR at P.S. New Ashok Nagar and as claimed by the

prosecution he disclosed to the investigating officer of said

case that he was involved in the murder of Gurmeet Singh.

Said information was passed on to the investigating officer of

this case. The prosecution claims that the custody of the

appellant was taken over by the investigating officer of the

instant case and that appellant made a disclosure statement

stating that he had stayed at hotel Love Palace and had left a

bag with clothes which included the T-shirt which he was

wearing when he committed the murder and that he could

lead the investigating officer to said hotel and get recovered

the bag containing his clothes as also his T-shirt. As per the

prosecution, the appellant led the investigating officer to hotel

Love Palace and pointed out the same. Thereafter, the man at

the counter of the hotel handed over a bag which contained

the clothes belonging to the appellant. One article of was a

gray coloured T-shirt.

5. Who was the investigating officer?

6. SI Prabhu Dayal PW-20 has deposed that he was

posted at PS Vasant Kunj on 4.6.2001 and on receipt of DD

No.5A went to Celebration Gardens. He learnt that the injured

was removed to the hospital. He left Const.Manoj at the place

of the incident and went to Safdarjung Hospital where he

found Gurmeet Singh being brought dead. He found

Manmohan Singh injured and unfit for statement. He met

Amandeep Singh PW-2 who statement Ex.PW-2/A was recorded

and pursuant thereto he got the FIR registered. He went to

the place of incident and prepared the site plan Ex.PW-20/B

with the assistance of Amandeep and lifted blood stained earth

and control earth vide memo Ex.PW-20/C. He deposed that on

4.7.2001 custody of the appellant was handed over to him for

TIP proceedings. He stated that during police custody, the

pointing out memo Ex.PW-7/A dated 10.7.2001 as also the

pointing out memo Ex.PW-20/D was prepared by him. The

seizure memo Ex.PW-19/A dated 10.7.2001 was also prepared

by him.

7. Interestingly, on being cross-examined he

categorically stated: 'I had conducted the investigation only on

4.6.2001 and thereafter it was transferred and handed over to

Insp.Mahesh Sharma'.

8. If this be so, we are surprised how come SI Prabhu

Dayal authored the two pointing out memos Ex.PW-7/A and

Ex.PW-20/D. We are also surprised as to how come he

authored the seizure memo Ex.PW-19/A.

9. But, what is of extreme surprise to us is the fact

that the disclosure statement Ex.PW-20A /of the appellant is

dated 11.7.2001.

10. If this be so, we fail to understand as to how come

the recoveries as shown in the memo Ex.PW-19/A could relate

to a disclosure by the appellant.

11. According to SI Prabhu Dayal after conducting the

spot investigation on 4.6.2001 he had handed over the

investigation to Insp.Mahesh Sharma.

12. What does Insp.Mahesh Sharma PW-16 has to say?

13. He deposed that he took over the investigation

after FIR was registered on 4.6.2001 and prepared the brief

facts Ex.PW-16/A and filled up the inquest papers Ex.PW-16/B

and recorded the statements of Harvinder Singh and

Amandeep Singh and after sending the body to the mortuary

for post-mortem did no further and transferred the case to

some other IO.

14. No other IO has been examined by the prosecution.

15. It is unfortunate that the learned Trial Judge has

failed to note the aforesaid serious lacuna. The learned Trial

Judge has chosen to give a go by to Section 27 of the Evidence

Act as per which only such part of a statement made by an

accused to a police officer is admissible in evidence where an

object is recovered and a fact is discovered pursuant to the

said statement. In the instant case the recoveries precede the

statement made by the accused to the police.

16. That apart, there are further serious infirmities

which have been ignored by the learned Trial Judge.

17. The gray coloured T-shirt which the appellant was

stated to be wearing when he committed the crime has been

put up for test identification. The learned Trial Judge has

heavily relied on the fact that the witness at the test

identification namely Amandeep successfully identified the T-

shirt in question. Surprisingly, the learned Trial Judge ignored

the admission of SI Prabhu Dayal PW-20 who stated during

cross-examination: 'The TIP proceedings of the clothes were

conducted only after the opening of the bag and no other

clothes, or pant or trouser were brought in order to mix the

same'.

18. What is the value of such a TIP, we need not

comment any further.

19. Amandeep PW-2, the son of the deceased,

Manmohan Singh PW-3, the younger brother of the deceased,

Smt.Manmohan Kaur PW-5, the wife of the deceased,

Smt.Bhupinder Kaur, wife of PW-3 and Sh.Gagan Singh PW-14,

the son of Manmohan Singh was cited as eye witnesses.

20. Only Amandeep categorically deposed that he saw

the appellant fire at his father. All other witnesses stated that

being dark they could not say with certainty that it was

appellant who fired at the deceased.

21. After he was arrested, TIP proceedings for

identification of the appellant were got fixed, but the appellant

refused to participate in the same alleging that he was shown

to the witness at PS R.K.Puram.

22. Now, one wonders as to how come PS R.K.Puram

got involved. The appellant was not arrested pursuant to any

FIR registered at the said police station. As noted above, the

appellant was arrested on 22.6.2001 in another FIR which

pertained to PS New Ashok Nagar. The instant FIR was

registered at PS Vasant Kunj.

23. But, the fact of the matter remains that for

unexplainable reasons the appellant was taken to PS

R.K.Puram where the witness to the test identification

proceedings were summoned. SI Prabhu Dayal PW-20 has

admitted that Amandeep, Gagan and Kuldeep were called to

PS R.K.Puram, but claim that they were called to make the

portrait of the assailant.

24. Gagandeep Singh PW-14 admitted that the accused

was shown to him after 4-5 days but claims not having

identified the accused because he had not seen the face of the

accused. Even Amandeep PW-2 has admitted that he was

taken to PS R.K.Puram, but claim the purpose was to prepare

the computer photograph of the accused.

25. Under the circumstances one is only left with the

ocular eye witness account of Amandeep PW-2 which is highly

tainted.

26. All other witnesses of the prosecution claim that on

account of darkness they did not have an opportunity to see

the features of the assailant and this renders its suspect as to

how come Amandeep PW-2 could see the features of the

assailant with such clarity that he could identify the assailant

in Court on 15.2.2002.

27. But, what has weighed with us the most, is the fact

that the prosecution has resorted to fabrication of various

memos with impunity. That has totally tainted the

investigation.

28. Under the circumstances the appellant would

certainly be entitled to the benefit of doubt.

29. The appeal is allowed. The impugned judgment

and order dated 15.10.2007 is set aside. The order on

sentence dated 17.10.2007 is quashed. The appellant is

acquitted of the charge framed against him.

30. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar

with a direction that the appellant shall be set free forthwith

unless required in custody in some other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

April 06, 2010 mm