Virender Kumar vs State (Nct Of Delhi)
2010 Latest Caselaw 1126 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: February 15, 2010
                                 Judgment delivered on : February 26, 2010


+     CRIMINAL APPEAL NO. 194/1997

      VIRENDER KUMAR                                ....APPELLANT
                                   Through:   Mr. B.S.Rana, Advocate

                     Versus

      STATE(N.C.T. OF DELHI)                       .....RESPONDENT
                         Through:             Mr. Manoj Ohri, APP


                                           WITH


      CRIMINAL APPEAL NO.197/1997

      JAI KUMAR                                     ....APPELLANT
                                   Through:   Mr. B.S.Rana, Advocate

                     Versus

      STATE(N.C.T. OF DELHI)                       ..... RESPONDENT
                         Through:             Mr. Manoj Ohri, APP


                                           AND

      CRIMINAL APPEAL NO.198/1997

      KAPTAN SINGH                                  ....APPELLANT
                                   Through:   Mr. B.S.Rana, Advocate

                     Versus

      STATE(N.C.T. OF DELHI)                       ..... RESPONDENT
                         Through:             Mr. Manoj Ohri, APP


      CORAM:
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE AJIT BHARIHOKE

Crl. A.Nos.194/1997, 197/1997 & 198/1997                      Page 1 of 15
 1.    Whether Reporters of local papers
      may be allowed to see the judgment?                      Yes

2.    To be referred to the Reporter or not ?                  Yes
3.    Whether the judgment should be
      reported in Digest ?                                     Yes


AJIT BHARIHOKE, J.

1. The appellants Kaptan Singh, Virender and Jai Kumar, on being

convicted in terms of impugned judgment dated 21st April 1997 for the

offences punishable under Section 302 IPC and Section 201 IPC both

read with Section 34 IPC in Sessions Case No.143/1995, FIR

No.227/1995, Police Station Narela and sentenced in terms of order on

sentence dated 22nd April 1997, have preferred the instant appeals.

2. Briefly stated, case of the prosecution is that on 8th July 1995 at

about 9.00 p.m., the appellants Kaptan Singh, Jai Kumar and Virender

went to the house of Anup Singh (hereinafter referred to as the

`deceased‟). The deceased left with them, telling his mother Sarla

Devi (PW-1) that he was going for a bath at the tube well of Bholu. He,

however, did not return back. Around 1.00 a.m., Satpal (PW-4) father

of the deceased returned home after duty and PW-1 expressed anxiety

about her son and told her husband PW-4 that the deceased had gone

with the three appellants and not returned back. PW-4 Satpal

thereupon went to the respective houses of the appellants but none of

them was available. On 9th July 1995 at around 9.30 p.m. Satpal saw

appellant Kaptan Singh going with his father. He enquired about his

son Anup. Initially, Kaptan Singh feigned ignorance but on sustained

interrogation, he broke down and confessed that he, along with the

other two appellants had killed the deceased on the previous night. In

the meanwhile, somebody informed the police and on the receipt of

said information, which was recorded at the police station as DD

No.20-A, the police arrived in the village. On interrogation, appellant

Kaptan Singh repeated his confession and made a disclosure, pursuant

to which dead body of the deceased was recovered, found buried in

the drain near Safiyabad Road, Delhi. The recovery was effected on

the night intervening 9th and 10th July 1995.

3. The post mortem on the dead body was conducted by

Dr.L.T.Ramani, PW-14 on 10th July 1995 at 12.00 Noon. He found as

many as 9 incised wounds on the dead body, besides an abrasion on

the tip of right shoulder of the deceased. He opined that the death

was homicidal and it had occurred 40 hours earlier, which fixes the

time of death of the deceased on or about the night intervening 8th and

9th July 1995.

4. On 14th July 1995, appellants Jai Kumar and Virender were

arrested from village Bajit Pur. On interrogation, appellant Jai Kumar

got recovered the `dao‟ Ex.P-11 from a `jawar‟ field and the appellant

Virender Kumar led the police party to a bush from where he got

recovered a `kassi‟ Ex.P-12. Those weapons were shown to

Dr.L.T.Ramani during his testimony in the Court and he opined that

fatal injuries observed in the autopsy report of the deceased could

have been caused by the `dao‟ Ex.P-11. However, as regards `kassi‟

Ex.P-12, Dr.Ramani opined that the injuries in question could not have

been caused by `kassi‟ Ex.P-12.

5. On conclusion of the investigation, all the three appellants were

sent for trial. They were charged for the offences punishable under

Section 302 IPC read with Section 34 IPC and Section 201 IPC read with

Section 34 IPC. The appellants pleaded innocence and claimed to be

tried.

6. There is no eye witness to the occurrence and it is a case of

circumstantial evidence. Prosecution examined 17 witnesses to

establish following incriminating circumstances:-

"(a) Anup was last seen alive on 8.7.95 at 9.00 p.m. when he left his house in the company of accused Kaptan Singh, Virender and Jai Kumar.

(b) Anup met with homicidal death on the same night.

(c) None of the accused was found at home on that night.

(d) On 9.7.95 at about 8.30 p.m. accused Kaptan Singh made an extra judicial confession in the presence of PW 4 Sat Pal that he along with Virender and Jai Kumar had committed murder of Anup Singh on the previous night at the tubewell of Bholu.

(e) The deadbody of Anup Singh was recovered from the Naala near Safiyabad Road in pursuance of disclosure made by Kaptan Singh.

(f) Accused Jai Kumar was arrested on 14.7.95 and a Dao was recovered at his pointing. The clothes which Jai Kumar was wearing at the time of arrest, were seized.

(g) Accused Virender Kumar was also arrested on 14.7.95 and a Kassi was recovered from bushes at his instance. The clothes which Virender was wearing at the time of arrest were also seized."

7. The appellants, when examined under Section 313 Cr.P.C.,

denied the prosecution evidence and claimed to be innocent. In

defence, they examined DW-1 Ms. Prem Lata who deposed that PW1

Sarla Devi is her real sister and is married to one Satpal of village

Bakner. She also stated she and her sister were not on visiting terms.

8. On perusal of the judgment, it transpires that learned trial Judge,

on appreciation of evidence, came to the conclusion that the

prosecution has failed to establish the circumstances „c‟, „f‟ and „g‟

referred to above. Learned counsel for the State has not disputed

aforesaid conclusions of the trial Judge. The appellants also have not

disputed circumstance „b‟ referred to above to the effect that the

deceased met with homicidal death on the same night stands proved

on record. Thus, the conviction of the appellants rests solely on the

strength of following three circumstances:-

(i) The deceased was last seen alive on 08th of July, 1995 at around 9.00-9.30 p.m. in the company of the appellant Kaptan Singh, Virender and Jai Kumar.

(ii) That on 09th July, 1995 at about 8.30 p.m., the appellant Kaptan Singh made an extra judicial confession in presence of PW4 Satpal that he alongwith his co-convicts Virender and Jai Kumar had committed murder of the deceased on the previous night at the tube-well of Bholu.

(iii) The dead body of Anup Singh was recovered buried in a „'Nala'' near Safiyabad Road in pursuance of the disclosure statement made by the appellant Kaptan Singh.

9. As regards the circumstance (i), the prosecution has relied upon

the testimony of PW1 Sarla Devi, PW2 Dalel Singh and PW5 Ramphal.

PW1 Sarla Devi stated in the Court that on 08th July, 1995 at around

9.00 p.m, the appellants came to her house and the deceased Anup

Singh left with them saying that he was going to take bath at the tube-

well and thereafter, he never returned. PW2 Dalel Singh stated that on

08th July, 1995 at about 9.15 p.m., he came across the appellants and

the deceased who were going towards the field and when he asked as

to where they were going, the deceased told him that he was going to

take bath at the tube-well of Bholu. PW5 Ramphal stated in the Court

that on 08th July, 1995 at about 9.30 p.m., while he was sitting in the

„gher‟ of the village, the appellants and the deceased passed through

the „gher‟ and on his asking, the deceased told that they were going to

take bath at the tube-well of Bholu. Learned Trial Court relying upon

the aforesaid evidence has concluded that prosecution has been able

to prove that the deceased was last seen with the appellants on

08.07.1995 at around 9.00-9.30 p.m.

10. Learned counsel for the appellants has challenged the testimony

of PW1 Sarla Devi, PW2 Dalel Singh and PW5 Ramphal as unreliable on

the ground that they are all closely related to the deceased. He also

submitted that PW2 Dalel Singh and PW4 Ramphal have gone to the

extent of denying their relationship with the deceased, however PW4 in

his cross-examination was cornered to admit that Dalel Singh is the

son of his real uncle and Ramphal is the son of his father‟s sister.

Regarding PW1 Sarla, he contended that she was not in the village

Bakner on the night of 08th July, 1995. A suggestion was put to her

that she had gone to see her sister Prem Lata in village Narela and that

she returned to Bakner only after hearing about the death of her son

which she denied and also denied her relationship with Prem Lata.

Which version stands falsified by the testimony of DW1 Prem Lata who

stated that she is real sister of PW1 Sarla. It was thus argued that PW1

Sarla who did not hesitate to disown her real sister is not worthy of

credence at all. Learned counsel for the appellants thus urged us to

discard the testimony of above three witnesses as unreliable.

11. Similar arguments were raised before the learned Trial Judge and

he rejected those arguments with following observations:-

"13....I find no merit in the contention. The maxim "Falsus in Uno Falsus in Omnibus" is not to be blindly invoked in appraisal of evidence

in our courts where witnesses seldom tell the whole truth but often resort to exaggerations, embellishments and padding-up to support a story however true. (1974 SC 21 Bhagwan Tana Patil v/s State of Maharashtra.) In AIR 1973 SC 1409 Raghubir v/s State of Punjab also the same principle has been enunciated. Their Lordships highlighted the duty of the court to make efforts to find out whether in spite of the unreliable part of the evidence, the remaining evidence remains trustworthy. In the present case the medical evidence shows that Anup Singh was murdered on or about the night of 8th July, 1995. This strengthens the evidence of PW1 Sarla. She being the mother of the deceased, must have been present at the house at 9.00 p.m. on 8th July and she must have seen her son going in the company of the accused persons. She has no reason to falsely name them. She may not have lodged a missing report on 9th July but that does not efface the fact that Anup Singh was missing since the night of 8th July. There might be hundred reasons for not making the report to the police. The parents may be suspecting the accused but at the same time they might be hoping against hope that their son would return safe. They might have thought that making a police report might jeopardise the safety of their son. Merely because Dalel Singh and Ram Phal happen to be relatives of the deceased, they cannot be branded as interested witnesses. It is settled law that the testimony of a relative cannot be discarded by reason of relationship only. The merit of the evidence has to be seen and in this case the medical evidence supports the witnesses. Therefore I am convinced beyond al reasonable doubts that PW1 Sarla, PW2 Dalel Singh and PW5 Ram Phal are all telling the truth."

12. In our considered view, the learned trial Judge has gone wrong in

appreciating the last seen evidence given by PW1 Sarla, PW2 Dalel

Singh and PW5 Ramphal. He has ignored the fact that PW2 Dalel Singh

and PW5 Ramphal have deliberately tried to conceal their relationship

with the deceased. Their relationship with the complainant came to

fore only when PW4 Satpal, in his cross-examination was cornered to

admit that PW2 Dalel Singh was son of his real uncle and PW5 Ramphal

was the son of his father‟s sister. One wonders if PW2 Dalel Singh and

PW5 Ramphal were truthful about the last seen evidence, why would

they try to hide their relationship with the family of the deceased. The

fact that they have made a deliberate attempt to hide the fact of their

close relationship with the deceased make them unreliable witnesses

and castes a shadow of doubt on the prosecution case so far as the

last seen evidence is concerned.

13. The next incriminating circumstance which found favour with the

learned trial Judge is the extra judicial confession purportedly made by

the appellant Kaptan Singh in presence of the father of the deceased

Satpal, PW4. PW4 Satpal stated that on the night intervening

08/09.07.1995 at around 1:00 am when he returned back from his

duty, his wife told him that the deceased had left for taking bath along

with the appellants at about 9:00 pm and had not returned thereafter.

On this, he went in search of his son to the houses of respective

appellants, but they were not available. Next day, he kept on

searching for his son and at around 8:30 pm on 09.07.95 he saw the

appellant Kaptan Singh and his father going towards their house. He

asked the appellant about the whereabouts of his son Anup and Kaptan

Singh initially told him that Anup had accompanied him to the latrine

at about 8:00 pm on the previous night and thereafter he had not seen

him. PW4 further stated that when he refused to believe the appellant

Kaptan Singh, the appellant broke down and confessed that on the

previous night at 10:30 pm, he along with his co-convicts had

murdered Anup at the tube-well of Virender @ Bholu and buried his

dead body in the 'Nala' at some distance from the spot of occurrence.

Learned Trial Court has accepted the aforesaid testimony of PW4

relating to the extra judicial confession.

14. The law relating the extra judicial confession is well settled.

There is no legal bar on the conviction of an accused on the basis of

extra judicial confession if the evidence about extra judicial confession

comes from the mouth of a witness who appears to be unbiased and

reliable. However, the extra judicial confession is a weak type of

evidence and it has to be approached with due care and caution. In

the matter of Kavita Vs. State of Tamil Nadu, (1998) 4 Scale 246,

Supreme Court held:-

"4. There is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses".

15. On perusal of the testimony of PW4 Satpal who obviously is an

interested witness being the father of the deceased, it is seen that he

had made several material improvements upon his earlier statement

Ex.PW4/A which formed basis for the registration of the case. This

circumstance indicates a definite bias on the part of the witness

against the appellants. Further, the witness in his cross examination

has stated that the extra judicial confession was made by the appellant

Kaptan Singh in presence of several persons including Bhim Singh,

Pawan Kumar, Ishwer and Prithi Master. Despite of that, there is no

independent witness either cited or examined by the prosecution to

corroborate the version of PW4 Satpal regarding extra judicial

confession of guilt made by the appellant in his presence and also in

presence of several other persons. This circumstance, in our

considered view, adversely affects the credibility of the version of PW4

Satpal regarding the extra judicial confession. Otherwise also, it seems

unnatural that the appellant would have confessed his guilt in

presence of father of the deceased. Thus, we do not find it safe to rely

upon the evidence of extra judicial confession.

16. The next incriminating circumstance which found favour with the

learned trial Judge is the discovery of the dead body of the deceased

found buried in a „'Nala'', pursuant to the disclosure statement made

by the appellant. Perusal of the disclosure statement Ex.PW7/A and

the pointing-cum-recovery memo Ex.PW4/B reveals that these two

documents are prepared by Inspector Ramesh Malik and witnessed by

the complainant Satpal, father of the deceased, PW7 ASI Balbir Singh

and PW11, Inspector Balraj Singh. Inspector Ramesh Malik in his

testimony deposed that when he reached at the spot, the complainant

and other villagers produced appellant Kaptan Singh before him and on

interrogation the appellant made a disclosure statement Ex.PW7/A.

Thereafter, the appellant Kaptan Singh led them to the tube-well of

Sukhbir Singh and pointed out the place of crime and thereafter he led

the police party to the nearby "Jwar" field and pointed out to a „'Nala''

where the dead body was disposed off. He also stated that on digging

that place, the dead body of deceased Anup Singh was recovered.

PW4 Satpal, PW7 ASI Balbir Singh and PW11 Inspector Balraj Singh

have also deposed to more or less similar effect. If aforesaid evidence

is to be believed, then the disclosure statement was made in presence

of several villagers, despite that, there is no independent witness to

prove disclosure statement. Investigating Officer, Inspector Ramesh

Malik as also PW11, Inspector Balraj Singh have admitted that many

public persons had gathered and followed them upto the main road,

but they were not allowed to come to the spot of recovery. The

explanation given by PW11, Inspector Balraj Singh for not allowing

independent witnesses to come to the spot of recovery is that they

apprehended law and order problems. In our considered view, the

aforesaid explanation is unacceptable as neither of the witnesses have

stated that the villagers were in agitated mood which could give rise to

such an apprehension on the part of the police officers. From the

admission of the Investigating Officer as well as PW11, Inspector

Balraj, it is not only established that the Investigating Officer

deliberately did not join any independent witness to the disclosure

statement as well as the consequent recovery of dead body but he also

prevented the independent villagers to witness the recovery. This

circumstance casts a grave doubt on the fairness of the investigation

and makes the story of discovery of dead body pursuant to disclosure

made by the appellant suspect.

17. Further, it is the case of the prosecution as projected in the

testimony of PW17 Inspector Ramesh Malik, PW11 Inspector Balraj

Singh, PW4 Satpal and PW7 Inspector Balbir Singh that the dead body

of the deceased Anup Singh was recovered buried from the place

pointed out by the appellant Kaptan Singh in the „'Nala''. Inspector

Balraj Singh who is referred to as Inspector B.S.Dahiya by PW16

Constable Vijender Singh is claimed to have witnessed the recovery of

dead body after digging. The aforesaid version is belied by the

testimony of PW16 Constable Vijender Singh who deposed that on

10.07.1995, he was on patrol duty with Inspector B.S. Dahiya who

received a call that a dead body was lying in the drain near Safiyabad

Road and pursuant to the call, they reached at the aforesaid drain

where public persons were already present. He further stated that he

took the dead body of deceased Anup from the said „'Nala'' to the

dead house Sabzi Mandi. There is no whisper whatsoever in the

testimony of PW16 Constable Vijender Singh that in his presence, the

dead body was taken out after digging some place at the „'Nala''.

Thus, we find it unsafe to rely upon the prosecution story that the dead

body was discovered on the pointing out of the appellant Kaptan Singh.

18. Further perusal of Column 1 of the FIR Ex.PW17/B reveals that

date and hour of reporting the crime is mentioned therein as 1.55 AM

on 10th of July, 1995 vide DD number 23A and the name of informant is

mentioned as Inspector Ramesh Malik. It is also recorded in Column 2

that FIR is registered on the basis of a writing in Hindi prepared and

sent by Inspector Ramesh Malik. If this is to be believed, then the

statement of complainant Satpal Singh ought to have been recorded

by Investigating Officer prior to 1.55 AM. However, on perusal of the

„Rukka' sent by Inspector Ramesh Malik, SHO to the police Station, it

transpires that „Rukka' was sent to the police station on 10.07.1995 at

10.30 a.m, which time cannot be reconciled with the time of recording

of DD No. 23A pertaining to the formal registration of the FIR on the

basis of the „Rukka' Ex.PW17/A. This circumstance reflects upon the

fairness of the investigation and a possibility cannot be ruled out that

the FIR is anti-timed and has been prepared after due deliberation. It

may also be noted that as per the case of the prosecution, the

Investigating Agency was set into motion by DD No. 20A dated

09/10.07.1995 recorded at 12.12 a.m. (Ex.PW12/A). Perusal of this DD

report reveals that it was recorded on the basis of the information

conveyed by ASI Narayan Singh of PCR that one Netram had informed

him about the murder of one Atfat S/o Satpal. Therefore, Netram being

the first informant about the murder was a crucial witness in this case.

Despite that, the Investigating Officer has not cared to locate Netram

and record his version about the incident. It is also not the case of the

prosecution that Investigating Officer made any effort to trace Netram,

who could not be located. The failure of the Investigating Officer to

trace out the said Netram and examine him has left a void in the case

of the prosecution and has also caused prejudice to the defence

because Netram positively could have been the best person to throw

light upon the manner in which the deceased Anup Singh lost his life.

This circumstance also entitles the appellants to benefit of doubt.

19. In view of the above discussion, we are of the view that none of

the incriminating circumstances have been firmly established by the

prosecution to justify inference of guilt of the appellants. Thus, we find

it difficult to sustain the impugned judgment of conviction. We

accordingly set aside the impugned judgment as also the consequent

order on sentence and acquit the appellants, giving them benefit of

doubt.

20. All the appellants are on bail. Their bail-cum-surety bonds are

discharged.

21. The appeals are accordingly disposed of.

AJIT BHARIHOKE, J.

FEBRUARY 26, 2010                              A.K. SIKRI, J.
Ks/akb