Delhi High Court
Prithipal Singh vs State on 12 March, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 24th February, 2010
Judgment Pronounced on: 12th March, 2010
+ CRL APPEAL NO.75/2004
PRITHIPAL SINGH ..... Appellant
Through: Ms.Anita Abrahim, Advocate.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, A.P.P.
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 Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
PRADEEP NANDRAJOG, J.
1. An error which is being repeatedly noticed by us in
various decisions has occurred in the instant case. In criminal
trials this can create problems as indeed, a few days ago it
was brought to our notice that a typographic error by the Trial
Court has resulted in a convict set free on his appeal being
allowed gained his freedom a week later when it was brought
to our notice that the Trial Judge had wrongly typed the name
of the accused and had not bothered to cross-check the same
with reference to the challan filed. In the instant case the
memo of parties of the impugned decision types the name of
accused No.1 as Prithipal Singh, which name actually is 'Prithvi
Pal Singh'. This is the name recorded by the investigating
officer in the charge-sheet and indeed is the name signed by
the accused on all the recovery memos signed by Prithvi Pal
Singh as also his arrest memo and the disclosure statement.
2. We shall be issuing necessary directions in the
concluding para so that in future such kind of mistakes do not
occur. We would also highlight that while depositions are
being recorded by learned Trial Judges, we are noting incorrect
typing of the names of accused, victims and witnesses. The
same is creating problem in appreciating the facts.
3. Computerization does not mean that the Trial Judge has
not to cross-check the nouns in the transcripts.
4. The instant decision shall set to rest the fate of
Crl.Appeal No.75/2004 filed by accused No.1 Prithvi Pal Singh
who has assailed the impugned judgment and order dated
13.12.2003 passed by the learned Trial Judge convicting him
and other co-accused Kailash Singh Bist, Rajiv [email protected] Raju
and Sonu for various offences under Sections 365/302/120-B
IPC pertaining to the kidnapping and murder of Hemant Kumar
(hereinafter referred to as the deceased). Vide order on
sentence dated 22.12.2003, all the accused have been
sentenced to undergo imprisonment for life and have been
directed to pay a fine in sum of Rs.5000/- each for the offence
under Section 302 IPC. In default of payment of fine the
accused have been directed to suffer rigorous imprisonment
for a period of one year. For the offence punishable under
Section 365 IPC, the accused have been sentenced to undergo
rigorous imprisonment for four years and pay fine in sum of
Rs.1000/- each, in default of payment of fine to undergo
simple imprisonment for four months. For the offence
punishable under Section 120-B the accused have been
sentenced to undergo imprisonment for a period of seven
years and pay fine in sum of Rs.2,000/-, in default to undergo
imprisonment for six months.
5. At the outset it may be noted that in view of the decision
reported as 2009 (6) SCALE 697 Hari Ram vs. State of
Rajasthan since co-accused Kailash Singh Bist, Rajiv Kumar
and Sonu were less than 18 years of age when they committed
the offence, appeals filed by them were disposed of setting
aside the sentence imposed on them and releasing them from
prison for the reason the three had remained in jail for a period
in excess of three years, the maximum prescribed, for keeping
a juvenile in custody. Thus, we have to decide the appeal filed
by Prithvi Pal Singh who was aged 19 years when the crime
was committed.
6. As per the prosecution the accused and the deceased
were known to each other and residents of the same locality
i.e. R.K.Puram. The accused entered into a conspiracy to
kidnap the deceased and extract ransom from his father and in
furtherance of the conspiracy they enticed the deceased on
the pretext of discussing some important matter when they
met the deceased in the market of Sector-6 R.K.Puram in the
evening time of 27.10.1999. Prithvi Pal Singh took the
deceased on his scooter to the playground of M.C.Primary
School, Sector-6 R.K.Puram where all accused jointly brutally
murdered the deceased inflicting 41 stab wounds on his body.
They stripped the body of the clothes and after sprinkling salt
and hydrochloric acid on the body, on a pit dug in the
playground with a spade, they buried the body and walked
away.
7. Probably being first timers, the accused did not muster
any courage to demand ransom and let the crime rest as it is.
8. That Hemant Kumar was missing since the evening of
27.10.1999 was reported at PS R.K.Puram when on 28.10.1999
at 6:45 PM his father Veer Kumar PW-1 got recorded his
complaint vide DD No.8-A, Ex.PW-17/DX, that his son had not
reported back home since the evening of 27.10.1999. The
complaint was marked to ASI Brahm Prakash PW-17 for
necessary action.
9. Hemant Kumar could not be found and on 30.10.1999
Veer Kumar the father of Hemant Kumar reported back at the
police station at around 10:00 AM and got recorded his
statement Ex.PW-1/A as per which he informed that he got
information that his son was seen in the evening of 27.10.1999
in the market of Sector-6, R.K.Puram in the company of his
friend Prithvi Pal Singh and two other boys Kailash Singh Bist
and Rajiv Kumar @Raju. He i.e. Veer Kumar made personal
inquiries from the three but got no satisfactory reply from the
three boys. He suspects that these three boys have a hand in
his son being missing and that they have some ulterior motive.
10. Upon receipt of the statement Ex.PW-1/A an FIR Ex.PW-
17/B was registered on 30.10.1999 for the offence punishable
under Section 365 IPC.
11. ASI Brahm Prakash PW-17 accompanied by either Manoj
Kumar Singh PW-2 or Veer Kumar PW-1 left the police station
to contact Prithvi Pal Singh, Kailash Singh Bist and Rajiv Kumar
so that he could make inquiry from them. There is some
confusion as to who accompanied ASI Brahm Prakash, who
while deposing in Court stated that Veer Kumar accompanied
him so as to identify the three accused but Veer Kumar has
deposed that he stayed back at the police station and Manoj
Kumar Singh a friend of Veer Kumar accompanied ASI Brahm
Prakash. Manoj Kumar Singh has also so stated.
12. The three accused Prithvi Pal Singh, Kailash Singh Bist
and Rajiv Kumar were brought to the police station at around
4:00 PM and as recorded in the arrest memos of the three they
were arrested at 4:40 PM.
13. Insp.Rajender Bakshi PW-15, the SHO of PS R.K.Puram
interrogated the three and recorded their disclosure
statements Ex.PW-1/B, Ex.PW-1/C and Ex.PW-1/D as per which
all the three admitted having kidnapped the deceased and
having murdered him. Each one of the three disclosed that
they can lead the police to the spot where the dead body was
buried. They disclosed that Kailash Singh Bist had inflicted
stab wounds on the deceased who was held on to by Prithvi
Pal Singh and Rajiv. They further disclosed that the body was
stripped of the clothes before it was buried. They disclosed
that Sonu had brought a spade (phaavda) using which a pit
was dug in which the body was buried and when the three
were burying the body, Sonu stood on watch. They further
disclosed that Rajiv had brought Phenyl and Sonu had
purchased salt, both of which were sprinkled on the body.
They further disclosed that they could lead the police to the
spot where the body was buried. All of them additionally
disclosed that while committing the crime, the clothes of
Kailash Singh Bist and Prithvi Pal Singh got stained with the
blood of the deceased and the two changed their clothes.
They disclosed that they can point out the spots where the
knife, the empty bottle of phenyl and the clothes of the
deceased were thrown. Additionally, Prithvi Pal Singh stated
that he can point out the spot where he threw his blood
stained clothes and can also get recovered the scooter on
which he and the deceased were seen. Kailash Singh Bist
additionally stated that he can point out the spot where he
threw his shirt which got stained with blood.
14. Thereafter Prithvi Pal Singh, Kailash Singh Bist and Rajiv
led the investigating Officer and jointly pointed out the spot
where the dead body was buried and as entered in the
pointing out cum seizure memo Ex.PW-2/B the dead body of
the deceased was recovered after removing the soil. The
sample of the soil where the body was recovered was seized
as recorded in the memo Ex.PW-2/A. Thereafter, as recorded
in the memo Ex.PW-2/F which is a pointing out cum recovery
memo the clothes (stated to be those of the deceased) and an
empty bottle (not of phenyl but acid) was recovered at the
instance of Prithvi Pal Singh. No knife could be recovered.
Thereafter Prithvi Pal Singh took the Investigating Officer to his
house and as recorded in the pointing out cum recovery memo
Ex.PW-2/D got recovered a blood stained black pant. From
outside his house, as recorded in the recovery memo Ex.PW-
2/C he got recovered a scooter bearing No.DIZ 7022.
Thereafter Kailash Singh Bist took the Investigating Officer to
his house and got recovered a pant as recorded in the pointing
out cum recovery memo Ex.PW-2/E.
15. Sonu was apprehended the same day and as recorded in
his disclosure statement Ex.PW-1/E stated that he can lead the
Investigating Officer to the spot where he hid the spade and
can point out the shop from where he purchased salt.
16. The next day Sonu led the Investigating Officer to a
water tank behind his house and got recovered from the tank a
spade which was seized as recorded in the memo Ex.PW-2/G.
Thereafter Sonu led the Investigating Officer to Indira Market
and pointed out the shop of K.L.Anthony PW-5 and stated that
he had purchased salt from said shop. The Investigating
Officer recorded the statement of K.L.Anthony confirming that
Sonu had purchased salt from him. Rajiv led the Investigating
Officer to the shop of Ram Kishan PW-6 and pointed out the
same informing that he had purchased acid from said shop, a
fact confirmed by Ram Kishan in his statement recorded by the
Investigating Officer. The pointing out memos of Sonu and
Rajiv which were drawn are Ex.PW-9/A and Ex.PW-6/A.
17. The dead body of the deceased was sent for post-
mortem. Dr.Chander Kant PW-14 conducted the post-mortem
on 31.10.1999 and prepared the post-mortem report Ex.PW-
14/A listing 41 stab wounds as the injuries noted by him. He
recorded that the hair had soil and white fine salt. He opined
that the death was 86 to 90 hours prior to the time when he
conducted the post-mortem. He opined that all injuries were
caused by a sharp edged weapon and were collectively
sufficient in the ordinary course to cause death.
18. The various exhibits lifted during investigation and the
blood sample of the deceased were sent for serological
examination and as per report Ex.PW-16/A the blood group of
the deceased was B. Human blood of the same group was
detected on the soil from where the dead body was recovered,
the pant which was got recovered by appellant Prithvi Pal
Singh from his house, the white full sleeve shirt stated to be
that of the deceased which was got recovered by three
accused. No blood was detected on the pant got recovered by
Kailash Singh Bist.
19. At the trial the various police officers and Manoj Kumar
PW-2 a private person but a friend of the father of the
deceased had joined in the investigation and proved the
disclosure statement made by the accused and the various
recoveries pursuant thereto.
20. Mr.K.L.Anthony PW-5 confirmed that the police had
brought to his shop a person who had purchased salt from him
and at that time he had confirmed to the police that the boy
they had brought had purchased salt from his shop but in
court he could not verify the said boy. We note that PW-5
appeared in court on 04.07.2001 i.e. after nearly one year and
nine months of the crime.
21. Ram Kishan PW-6 deposed that Rajiv had purchased a
bottle of acid from his shop but he could not identify which
bottle was purchased as the bottles did not have distinct
identification marks.
22. ASI Brahm Prakash PW-17 deposed that on 28.10.1999
he received DD No.8A of the deceased being missing and that
on 30.10.1999 Veer Kumar the father of the deceased met him
and told him that he had got information that his son was seen
in the evening of 27.10.1999 in the company of Prithvi Pal
Singh, Kailash Singh Bist and Rajiv which information he noted
in the form of statement of Veer Kumar and accompanied by
Veer Kumar went to the house of Prithivi Pal Singh, Kailash
Singh Bist and then Rajiv and got them to the police station
where the SHO interrogated them and recorded their
disclosure statement. He deposed to the recoveries effected
thereafter.
23. During cross-examination ASI Brahm Prakash admitted
that before the SHO interrogated the accused they had told
him about their involvement in the commission of the crime
and that they had buried the body in a pit at a ground.
Additionally, he admitted that Prithvi Pal Singh, Kailash Singh
Bist and Rajiv informed him that even Sonu had acted in
tandem with them.
24. Veer Kumar PW-1 the father of the deceased deposed
that the missing persons complaint was lodged by him and
that on 30.10.1999 he had informed the police that as told to
him by his friend Rajeshwar Pandey PW-3 in the late evening
of 29.10.1999, his son was seen in the company of Prithvi Pal
Singh, Kailash Singh Bist and Rajiv. He stated that on
30.10.1999 when he went to the police station his friend Manoj
Kumar PW-2 had accompanied him and that Manoj Kumar
went with ASI Brahm Prakash to bring the said three boys to
the police station. He deposed that in front of him, on being
interrogated by the SHO the three admitted their guilt and
their disclosure statements were recorded. He thereafter
deposed to the recoveries made in his presence on
30.10.1999. He deposed that all accused were the friends of
his son. But, stated that Rajiv never came to his house.
25. During cross-examination Veer Kumar admitted that in
his statement Ex.PW-1/A which was recorded on 30.10.1999 he
did not disclose that his friend Rajeshwar Pandey PW-3 had
given him the information which he passed on to the
Investigating Officer.
26. Rajeshwar Pandey PW-3 deposed that he was residing in
Qrt.No.415, Sector-6, R.K.Puram for about one and a half year
prior to the year 1997 and had shifted to Chatterpur in the
year 1997. That Veer Kumar was his friend and he knew his
son and had seen Prithvi Pal Singh, Kailash Singh Bist and Rajiv
with the son of Veer Kumar. Thus, he knew them. Just as
friends do, he rang up Veer Kumar on 29.10.1999 to enquire
about his well being and when Veer Kumar told him that his
son was missing since 27.10.1999 he told Veer Kumar that he
had seen his son in the company of the three accused at
around 7:30 PM in the market at Sector-6 R.K.Puram and that
he saw Pritivi Pal Singh drive a scooter on the pillion seat
whereof the deceased was sitting. He saw Rajiv and Kailash
Singh Bist move in the same direction on foot.
27. During cross-examination he stated that he had seen the
three accused in the house of the deceased.
28. Insp. Rajinder Bakshi PW-15, the SHO of the police
station deposed that after interrogating the accused he
recorded their disclosure statements and got effected various
recoveries.
29. It is apparent that the learned trial Judge has convicted
Prithvi Pal Singh, Kailash Singh Bist and Rajiv on the testimony
of Rajeshwar Pandey PW-3 by holding that his testimony
establishes that the deceased was last seen in their company
on 27.10.1999 in the late evening, which was the time when
the deceased was last seen alive. The post-mortem report of
the deceased probabilizes the time of death to be late evening
or early night of 27.10.1999. The dead body being got
recovered at the instance of the accused has been held to be
further incriminating evidence. Sonu being identified as the
person who purchased salt and got recovered the spade has
been used as incriminating evidence. Salt being detected on
the body of the deceased by Dr.Chander Kant and human
blood of the same group as that of the deceased being
detected on the white shirt of the deceased got recovered by
the accused as also human blood of the same group as that of
the deceased being detected on the pant got recovered by
Prithvi Pal Singh have been used as further incriminating
evidence.
30. The impugned judgment proceeds as if even Sonu was
the person who jointly participated in the recovery of the dead
body and further recoveries which were made on 30.10.1999.
This is incorrect. But, we need not deal with the said issue
since Sonu has already earned his freedom being a juvenile
and his appeal is not before us.
31. As noted in para 5 above, Kailash Singh Bist, Rajiv Kumar
and Sonu were less than 18 years of age when the crime was
committed and hence were set free since they remained in jail
for a period in excess of three years the maximum prescribed
for keeping a juvenile in custody.
32. Thus, we will be dealing with the case only against Prithvi
Pal Singh.
33. Joint pointing out memos and recoveries have been held
to be legal and valid as per the decision reported as AIR 2005
SC 3820 Sate NCT of Delhi Vs. Navjot Sandhu.
34. It was urged that ASI Brahm Prakash PW-17 admitted
that before the SHO interrogated Kailash Singh Bist, Pritivi Pal
Singh and Rajiv the three had confessed their guilt to him and
had told him that Sonu was their accomplice and that after
murdering the deceased they had buried him in a pit in a
ground. Thus, counsel submitted that since there cannot be a
re-discovery of a fact, nothing becomes admissible against
Prithvi Pal Singh pursuant to his disclosure statement recorded
by the SHO. Learned counsel relied upon the decision
reported as State of Haryana Vs. Jagbir Singh 2003 CriLJ 5054.
35. The argument has to be rejected for the simple reason
ASI Brahm Prakash has simply stated that before the SHO
interrogated the three accused they admitted their guilt to him
and further told him that even Sonu had participated in the
crime and that they had only told him that after digging a pit
in a ground they had buried the dead body therein. Relevant
would it be to note that the place where the crime was
committed, the place where the dead body was buried, the
manner in which death was caused, that the dead body was
stripped and salt as also phenyl sprinkled thereon were facts
not told to the said police officer. Further, other details of the
disclosure statements pertaining to the spot where the knife,
the clothes of the deceased and the bottle were thrown were
not disclosed. It was not disclosed that the clothes of the
appellant and Kailash Singh Bist got stained with the blood of
the deceased. It was not disclosed that the same could be got
recovered.
36. Thus, the facts which were disclosed for the first time
were in the disclosure statements, the same related to that the
pit was dug in the playground of a municipal school, that the
death was caused by stabbing, that the dead body was
stripped of the clothes, that salt and phenyl was thrown in the
soil where the dead body was buried, that the spot where the
clothes of the deceased and the knife was thrown were known
to the accused, that two accused could get recovered their
clothes which were stained with the blood of the deceased.
37. Recoveries of objects and dead bodies lying hidden in the
soil at the instance of a person have always been treated as
highly incriminating evidence for the reason save and except a
person telling the police its whereabouts, the police can never
reach out to the same. The same has been reiterated in the
decision of a Division Bench of this Court decided on
01.02.2010 in Crl.A.No.385/2008 Dost.Mohd. & Anr. Vs. State.
Thus, we hold that Section 27 of the Evidence Act stands
attracted and makes admissible the disclosure statement of
the appellant pertaining to the spot wherefrom the dead body
of Hemant Kumar was recovered. Further, the part of his
statement which gives the description of the dead body i.e.
that the same has stab wounds as also its condition i.e. being
stripped of the clothes is also admissible as the dead body is a
thing and the state of the thing is a matter of fact.
38. Whether Veer Kumar accompanied ASI Brahm Prakash or
Manoj Kumar accompanied ASI Brahm Prakash to the house of
the appellant, Kailash Singh Bist and Rajiv is immaterial for the
reason what matters who pointed out the house of the three
persons to ASI Brahm Prakash. That apart, while deposing in
Court after nearly one and a half year of the crime if Veer
Kumar thinks that not he but his friend Manoj Kumar
accompanied ASI Brahm Prakash and the fact being otherwise
is immaterial. Further, Veer Kumar who had his son missing
since 27.10.1999 would obviously be very tense and this has
to be factored. But, what we hold is that both Manoj Kumar
and Veer Kumar speak in unison that it was Manoj Kumar who
accompanied ASI Brahm Prakash and the greater probability is
that ASI Brahm Prakash has mixed up the two.
39. The controversy that Veer Kumar, in his statement
Ex.PW-1/A did not disclose the source of his information as to
who saw his son in the company of Prithvi Pal Singh, Kailash
Singh Bist and Rajiv Kumar is immaterial and irrelevant for the
reason the need to pass on the information to ASI Brahm
Prakash was to give a lead to ASI Brahm Prakash and no more.
As held in the decision reported as 2000 (4) SCC 484 Jaswant
Singh v. State of Haryana the informant remains satisfied with
only giving such information as he thinks is relevant and
further information volunteered by him i.e. the informant
would depend upon the skill and the desire of the person
receiving the information, whether the recipient desire further
information.
40. The authority cited by the learned counsel, namely AIR
1975 SC 1026 Ram Kumar Pandey Vs. State of MP has no
application inasmuch as the said decision relates to a material
information not given by the informant and not finding
mention in the FIR but later on, while deposing in Court the
gaps being filled up.
41. We see no reason why Rajeshwar Pandey PW-3 would go
about falsely implicating three innocent young boys against
whom he has no ill will. Similarly, why would Veer Kumar PW-1
falsely implicate the friends of his son.
42. Holding in favour of the credibility of the testimony of the
witnesses of the prosecution we find that the prosecution has
successfully established that through the mouth of the
appellant the police learnt that the deceased was stabbed to
death, a fact which was confirmed subsequently when the
dead body was recovered. Through his mouth the police
learnt that the dead body would be without any clothes on it, a
fact which was confirmed subsequently when the dead body
was recovered. Through his mouth the police learnt that salt
was sprinkled on the dead body, a fact which was
subsequently confirmed when the dead body was recovered;
Dr.Chanderkant has deposed that he saw fine salt on the dead
body. Through his mouth the police learnt that the soil in the
compound of a school was dug and in the pit the dead body
was dumped and buried, a fact which was subsequently
confirmed when the appellant and two of his accomplices
jointly pointed out a spot in the playground of a municipal
school and after removing the top soil, the dead body was
recovered. We note that the Headmaster of the School
Raghubir Singh PW-4 has joined the recovery of the dead body
and thus there is great credibility attaching to the evidence of
said recovery. That the clothes stated to be those of the
deceased were got recovered by the appellant on which the
blood of human origin of the same group as that of the
deceased was detected is further incriminating evidence. That
the appellant was last seen in the company of the deceased on
27.10.1999 and the probable time of the death of the
deceased is late evening or early night of 27.10.1999, a fact
established through the post-mortem report, is additional
incriminating evidence. All of which form a complete chain
wherefrom guilt of the appellant can be inferred.
43. The appeal is dismissed.
44. Since the appellant is still in jail we direct that a copy of
the decision be sent to the Superintendent Central Jail Tihar to
be made available to the appellant.
45. As noted in para 2 above, we have to issue certain
directions.
46. We direct that a copy of this decision would be sent to
the District and Sessions Judge Delhi who would circulate the
same to all Judges in the various District Courts highlighting
that typographic errors in the names of the witnesses, accused
or other persons should not occur with the frequency with
which we are noticing the errors. It would be treated in future,
if this happens that the Judge is callous, warranting an adverse
remark or entry in the service record. Especially when the trial
pertains to a criminal offence for the reason incorrect
recording of names creates problems with the Jail Authorities
on the issue of the identity of the accused.
(PRADEEP NANDRAJOG)
JUDGE
March 12, 2010 (SURESH KAIT)
mr/mm JUDGE
