Sushil vs State
2010 Latest Caselaw 1588 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on :18 th March, 2010
                   Judgment Pronounced on:22ndMarch, 2010

+                        CRL APPEAL NO.275/2008

       SUSHIL                            ..... Appellant
                   Through:   Mr.Mukesh Kalia and
                              Mr.V. K. Sharma, Advocates

                              versus

       STATE                               ..... Respondent
                   Through:   Mr.M.N.Dudeja, 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?

    3. Whether the judgment should be reported in the Digest?

                                                          Yes

PRADEEP NANDRAJOG, J.

1 When examined under Section 313 Cr.P.C. the appellant

responded to the last question: Why this case against you and

why the P.Ws have deposed against you? By answering:-

"It is a false case. On that day, I was going from the side. Jaswant was with me. Two boys attacked us i.e. me and Jaswant. One of them had caught hold of me. He had caused injuries on my person. In the meantime, one police official had come there. The person whom I had caught, in the mean time, had succeeded in fleeing away. The other boy had been apprehended by the police official. However, that boy had succeeded in getting himself released from the clutches of the

police officials. He had also fled away. I asked the police official to catch that boy but the police official did not catch him. Thereafter, this case was foisted on me."

2. The appellant claims that two boys attacked him

and his friend Jaswant (the deceased) and that he i.e. the

appellant received injuries. Let us note at the outset the

injuries detected on the person of the appellant. The same

stand recorded on the MLC Ex.PW-23/A. The date recorded

thereon is 5.2.2002. The time recorded is 2:35AM. The author

of the MLC is Dr.Kamna and has been proved at the trial by

Dr.Girish Shastri PW-23 who claimed to be conversant with the

handwriting and signatures of Dr.Kamna. The injuries

recorded on the MLC are: Fresh injury c¯ stitches in situ on Rt

hand dorsum in first inter digital cleft. Injury of approx. 2cm in

length. On the MLC it has been further recorded that a linear

scar mark on the forehead right side and a scar mark above

the elbow joint of left arm on medial side was detected.

3. It is apparent that the linear scar mark on the

forehead and the scar mark on the elbow, being scar marks,

were very old injuries. The fresh injury noted was on the right

hand dorsum in the first inter digital cleft. It had been stitched.

4. It assumes importance to note at the outset, with

reference to the defence of the appellant, that there is no

evidence of any doctor stitching the wound on the hand of the

appellant. It further assumes importance to note that as per

the prosecution the appellant was apprehended at the spot as

he was detected committing the crime by Ct.Pramod Tyagi

PW-8, Ct.Har Sikander Singh PW-9 and SI Babbar Bhan PW-13

at around 9PM on 4.2.2002. He remained in custody of the

police and was medically examined on 5.2.2002 at 2:35AM.

As deposed to by SI Sunder Singh PW-19, he took the appellant

to Lady Harding Hospital for examination on the direction of

Inspector Rajinder Singh PW-21, the Investigating Officer of the

case, who summoned him to Tank Road (the place where the

deceased was murdered) and that he reached the spot at

around 1:10AM on 5.2.2002 and took the appellant to the

hospital and brought the appellant back to the police station at

around 3:45AM after having him medically examined. SI

Sunder Singh PW-19 has categorically deposed when he took

custody of the appellant, blood was oozing from the right hand

of the appellant and the hand was bandaged.

5. It is apparent that the right hand of the appellant

had a bandage on it when the appellant was apprehended at

Tank Road and this means that the injury on the hand of the

appellant was not the result of something which happened at

Tank Road in the night of 4th February, 2002. The injury,

though nascent, was prior in point of time, for only then could

it be bandaged, and had started bleeding afresh. This also

suggests that the appellant had grasped something in his wrist

and had struck the said object and when force was applied by

him, the recently stitched wound gave way. Alternatively it

could be the result of somebody hitting or catching with force

the right hand of the appellant.

6. Vide impugned judgment and order dated 18 th

January, 2008 the appellant has been convicted for the offence

of having murdered his friend Jaswant.

7. In harmony with his defence aforenoted, learned

counsel for the appellant did not dispute that Jaswant was

brutally murdered at around 9PM near the parking at Tank

Road on 4.2.2002. Learned counsel for the appellant did not

dispute the postmortem report Ex.PW-1/A of the deceased as

per which as many as 19 wounds, all caused by a sharp edged

weapon, 6 of which were stab wounds and 13 were incised

wounds, showed that Jaswant was brutally assaulted and the

weapon of offence could be the knife Ex.P-1, sketch whereof

Ex.PW-9/A was drawn by Inspector Rajinder Singh PW-21 after

it was seized vide memo Ex.PW-9/B on being handed over, as

deposed to by SI Babbar Bhan PW-13 to Inspector Rajinder

Singh PW-21.

8. It is the case of the prosecution that Ct.Pramod

Tyagi, Ct.Har Sinkander and SI Babbar Bhan chanced to reach

the parking at Tank Road because SI Babbar Bhan had to meet

a secret informer on Tank Road and they noted a person lying

on the ground and another sitting on him and stabbing him.

They rushed to the rescue of the victim and before the

assailant i.e. the appellant could flee, they not only

apprehended him but even disarmed him. This happened at

around 9PM. Inspector Rajinder Singh PW-21, the SHO of the

police station who was patrolling in the area happened to

reach Tank Road and took over the investigation. He took

possession of the knife handed over to him by SI Babbar Bhan

and recorded the statement Ex.PW-13/A of SI Babbar Bhan and

making the endorsement Ex.PW21/A sent the same through

Ct.Pramod for FIR to be registered, recording the time of

dispatch of the tehrir at 10:30PM. The FIR Ex.PW-5/A was

recorded at the police station by HC Ramesh Kumar PW-5 at

10:35PM. It stands recorded on the FIR that the distance of the

police station from the place where the crime took place is

about 300 mtrs. in the north-west direction. Simultaneously,

as deposed to by HC Ramesh Kumar PW-5, he made a

corresponding entry in the daily diary vide DD No. 30-A,

Ex.PW-5/C noting therein the receipt of the statement of SI

Babbar Bhan and the tehrir dispatched by Inspector Rajinder

Singh pertaining the incident of stabbing in question and that

the crime team and the photographer were being requisitioned

to go to the spot.

9. Since the appellant has claimed the defence as

aforenoted in para 1 above, no useful purpose would be served

in noting the evidence of the witnesses who state that the

appellant and the deceased were friends and were seeing

together in the late evening of 4.2.2002.

10. What needs to be considered and answered is, as to

which of the two rival versions inspires confidence. Is it the

version of the appellant or that of Ct.Pramod Tyagi, Ct.Har

Sikander Singh and SI Babbar Bhan?

11. Ct.Pramod Tyagi and Ct.Har Sikander Singh have

deposed in harmony that they were posted at PS Prashad

Nagar and were together in the company of SI Babbar Bhan

doing patrolling in the area of their beat. At around 9PM they

were proceeding towards Jheel Park and had reached near the

parking on Tank Road where they saw a person lying on the

ground and a person sitting over him and stabbing him. SI

Babbar Bhan gave a call to the person who was stabbing who

started running. The three police officers chased him and

caught him at a distance of 10-15 paces and disarmed him. SI

Babbar Bhan interrogated the accused i.e. the appellant and in

the meanwhile Inspector Rajinder Singh, the SHO of the police

station reached to whom the knife was handed over and

custody of the accused was entrusted.

12. The difference in the testimony of the two

witnesses i.e. Ct.Pramod Tyagi and Ct.Har Sikander Singh is

that Ct.Pramod Tyagi deposed: SHO directed me to trace out if

any other person was also with the accd and on his direction I

left the spot but no other person was found present nearby the

spot. Ct.Har Sikandar Singh stated said fact but in a different

language. He stated that Ct.Pramod searched for an accused.

SI Babbar Bhan also stated that Ct.Pramod was directed to

look for another accused if any.

13. With reference to the testimony of the said three

police officers, it was urged that if the three police officers had

seen only one man stab Jaswant and had nabbed the assailant,

where was the occasion to search for another accused. It was

urged that the said conduct of Ct.Pramod and the evidence of

the three witnesses proving the said conduct was in harmony

with the defence that there was another assailant as claimed

by the appellant.

14. Insp.Rajender Singh PW-21, under whose

instructions Ct.Pramod is stated to have searched for another

accused deposed (Quote): I had not instructed Ct.Pramod to

look for any other assailants nearby. Vol. I had asked him to

see if any other person was present around or not.

15. As urged by learned counsel for the State it is

apparent that Insp.Rajender Singh was trying to associate a

public person and Ct.Pramod looked around and searched if a

public person could be associated, but while deposing in Court

the three junior police officers took flights of fancy.

16. It was urged that during cross-examination SI

Babbar Bhan admitted that as a Sub Inspector he was in-

charge of Division I and that Tank Road did not fall within his

division. He also admitted that the length of Tank Road was

1½ km. He as also Ct.Pramod and Ct.Har Sikandar admitted

that they left the police station at different points of time with

Ct.Pramod and Ct.Har Sikandar being together. Counsel urged

that it was strange that SI Babbar Bhan met the two

constables per chance and asked them to meet him at Tank

Road and the two reached Tank Road parking at the same

time when SI Babbar Bhan reached the parking. Counsel

highlighted that the three police officers have not stated that

SI Babbar Bhan told the two constables to meet him at the

parking of Tank Road. Counsel wondered as to how come on a

road which was 1½ km in length could the two constables

figure out the whereabouts of SI Babbar Bhan. Counsel

concluded the submission by urging that the defence version

as put to the three witnesses was the only probable version,

being that SI Babbar Bhan was alone near the parking at Tank

Road when two assailants attacked the appellant and his

friend Jaswant. One managed to flee and the other was

apprehended by the appellant. SI Babbar Bhan was entrusted

custody of the assailant. SI Babbar Bhan used his mobile

phone to call Ct.Pramod and Ct.Har Sikandar Singh and by the

time two constables reached Tank Road the culprit managed

to flee and the three police officers contrived to falsely

implicate the appellant.

17. SI Babbar Bhan has stated that he had to meet a

secret informer near Tank Road and that was the reason for

him to go to Tank Road. There is nothing unnatural for him to

meet Ct.Pramod and Ct.Har Sikandar who were on a beat in

Division I i.e. the Division of which SI Babbar Bhan was in-

charge. There is nothing unnatural for SI Babbar Bhan to tell

them to meet him at a spot on Tank Road. It is true that

neither police officer has stated that a spot on Tank Road was

identified as the meeting place, but it is a fact noted in various

judicial pronouncements that for unexplainable reasons,

witnesses in India do not speak with precision and clarity. It is

unfortunate that public prosecutors do not ask supplementary

and clarificatory questions. This requires the Court to evaluate

evidence as a common reasonable prudent person would so do

keeping in view the prevailing linguistic skills of the populace.

It is obvious that SI Babbar Bhan had told the two constables

to meet him near the parking of Tank Road and that is the

reason why they met him there.

18. Picking on the conduct of the three police officers,

with reference to the FIR where it was noted that the distance

of the place of the crime from the police station was 300

meters and the admission of SI Babbar Bhan, Ct.Pramod and

Ct.Har Sikandar that Insp.Rajender Singh PW-21 reached the

place of the crime after about 15 minutes as also the

admission of Insp.Rajender Singh that he chanced to reach the

spot during patrol duty, counsel urged that how come the

three police officers could ever think that Insp.Rajender Singh

who was not in touch with them and was patrolling in the area

would chance to reach the spot. Counsel urged that had the

three police officers caught the appellant while committing the

crime it was natural that at least one of them would have

rushed to the police station to fetch a vehicle and rush the

victim to the hospital who could well be alive. Counsel

highlighted that the three police officers were not doctors.

Thus, counsel urges that even this conduct shows that when

one out of the two real assailant who was caught by the

appellant and handed over to SI Babbar Bhan managed to flee,

the three police officers stood at the spot and contrived to

falsely implicate the appellant.

19. SI Babbar Bhan has stated that after the appellant

was caught he interrogated him. It is once again unfortunate

that the learned APP did not bring out by asking clarificatory

questions as to what interrogation was done. But, to a person

having even rudimentary knowledge of the procedures of the

criminal law it is apparent that when a cognizable crime is

noted or is brought to the notice of a police officer an FIR has

to be got registered and for this the minimal preliminary

inquiry within the constraints of the time and the situation is

required to be done with reference to the name and address of

the victim as also that of the assailant if any. If eye witnesses

are seen at the spot it is desirable to note down their names

and addresses. It is obvious that SI Babbar Bhan was in the

process of ascertaining the aforesaid and it is just a matter of

chance that in the meanwhile SI Rajender Singh reached the

spot. We find nothing mystic in this. As regards the

supposively strange conduct of the three junior police officers

to not rush the victim to the hospital, with reference to the

photographs of the deceased which were taken at the spot it is

evident that the neck was slit at the adams apple and even the

trachea has been cut. The wound is gapping open and has an

opening of about 2 cms. Any person who saw such a victim

would instantly form the definite opinion that the victim is

dead and thus no useful purpose would be served to rush the

victim to the hospital and hence it would be advisable to

preserve the scene of the crime.

20. Drawing our attention to DD No.30A, Ex.PW-5/C,

where the name of the accused is not mentioned, it was urged

that if the appellant was apprehended as claimed by the

prosecution, before the tehrir was sent from the spot, how is it

that the name of the accused was not mentioned in DD

No.30A.

21. The answer is to be found in the callousness of HC

Ramesh Kumar PW-5 who while complying with the

requirement of law in the Union Territory of Delhi to make a

brief entry in the daily diary when an FIR is registered, has

made the entry a little too brief by simply recording that he

had received the statement Ex.PW-13/A of SI Babbar Bhan and

had registered the FIR thereon.

22. We note that when HC Ramesh Kumar PW-5 proved

DD No.30A no suggestion has been put to him that he had not

received the statement of SI Babbar Bhan. A bald suggestion

was put to him that he had anti-timed the registration of FIR

and the DD entry, a fact which he denied. Thus, it is apparent

that the only statement with HC Ramesh Kumar when he

registered the FIR was that of SI Babbar Bhan and as recorded

by Insp.Rajender Singh.

23. It is settled law that procedural lapses and defects

during investigations cannot destroy the proof of facts by the

prosecution if there is credible and unimpeachable evidence to

prove the guilt of an accused.

24. It was submitted that Tank Road is in a thickly

populated area and as admitted by the four police officers

there are DDA flats nearby. It was urged that not joining a

public witness required an adverse inference to be drawn for

the reason the accused was pitted against the rival version

given by four police officers, whose contemporaneous conduct

was not free from doubt.

25. As regards the alleged unnaturalness in the

contemporaneous conduct of the four police officers, we have

already dealt with the same hereinabove and have found

nothing unnatural about the same. As regards not joining a

public witness, suffice would it be to note that as per

Insp.Rajender Singh he asked Ct.Pramod to see if there was

any witness around and that none could be found. No law

requires the police to go about and bring a public man to be

their witness. All what is required is and that too by way of

prudence and caution that if public persons are readily

available it would be desirable to associate them during

investigation for the reason this lends credibility to the

investigation. But, experience has shown that either public

witnesses shy away from associating themselves with

investigation and unfortunately we note, with pain and

anguish, that when public witnesses are associated during

investigation by the police, more often than not they turn

hostile. We do not think that this is the proper occasion for us

to go into the reasons as to why public witnesses are turning

hostile by the dozens, a phenomenon noted by us in case after

case being dealt with by us. We repeat, in the instant case

there is evidence that an attempt was made to look for a

public witness, but none was available.

26. It was urged that it is the case of the prosecution

that the appellant and the deceased were friends. It was

urged that the doctor who conducted the post-mortem of the

deceased ruled out any evidence of sodomy. Thus, counsel

wondered as to how come the appellant would be expected to

kill his friend.

27. Strange are the ways of urban lifestyle and strange

is the behaviour of the residents in the Metropolis city of Delhi.

Hearing criminal appeals for the last 15 months we have come

across the strangest of cases, some with such trivial motives

and many without none, yet the crime was committed.

Behavioural scientists can possibly search for some answers,

but in the absence of any research work on the point, we shy

from venturing into an answer.

28. It is settled law that motive not being proved would

be irrelevant if there is percipient evidence or a strong

circumstantial evidence before a Court.

29. Reverting back to where we commenced our

journey i.e. the defence of the appellant and the injury on his

right hand dorsum in the first inter digital cleft. The injury

existed with a bandage on it when the appellant was

apprehended (as per his claim when he was at the spot with

his friend) and this means that the injury was not inflicted

upon the appellant by any assailant as claimed by him. This

fact completely falsifies the defence of the appellant and since

we have two rival versions, one of which i.e. that projected by

the appellant has fallen flat, the other has to be accepted,

more so for the reason that the evidence brought on record

not only probablizes the version but proves it beyond all

reasonable doubts.

30. An additional link in the chain of incriminating

evidence against the appellant is the fact that his shirt Ex.P-10

which was seized at the spot when he was apprehended at the

spot has been opined, vide FSL Report Ex.PW-15/B to be

stained with human blood of the same group as that of

deceased Jaswant.

31. We find no merit in the appeal which is dismissed.

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

this decision be sent to the Superintendent Central Jail Tihar to

be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 22, 2010 sv/mm