Brijesh Kumar vs State
2010 Latest Caselaw 2603 Del

i.1 & 5
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 17th May, 2010

+      CRL.APPEAL No.453/2010 & CRL.M.B.No.563/2010

       BRIJESH KUMAR                            ..... Appellant
                 Through:       Mr.Ramesh Gupta, Sr. Advocate
                                with Mr.Mukesh Kumar Verma,
                                Mr.Sumit Arora, Mr.Ankush Saini
                                and Mr.Tarun Walia, Advocates

                                versus

       STATE                                   ..... Respondent

Through: Mr.M.N.Dudeja, Advocate

CRL.APPEAL No.583/2010 & CRL.M.B.No.682/2010

HITESH KUMAR ..... Appellant Through: Mr.Ramesh Gupta, Sr. Advocate with Mr.Mukesh Kumar Verma, Mr.Sumit Arora, Mr.Ankush Saini and Mr.Tarun Walia, Advocates

versus

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

PRADEEP NANDRAJOG, J.(Oral)

1. After hearing learned senior counsel for the

appellants and learned counsel for the State and on browsing

through the evidence led and having perused the impugned

decision dated 22.10.2009, we find that as many as 5 definite

areas of consideration, in respect whereof determinative

finding had to be rendered by the learned Trial Judge have

emerged.

2. Needless to state, at the end of a criminal trial, it is

duty of the learned Judge to distinctly identify the areas of

dispute and render a determinative finding on each one of

them. This enables the Appellate Court to have a focused look

at the impugned decision and thereafter reflect upon the

same.

3. We are noticing a most unfortunate trend of

extremely prolix decisions being penned by learned Trial

Judges. The result is a total non focused approach. As would

be highlighted in this case, one issue which arose has not even

been noted. Another has been noted but not answered. Qua

the third, a most inconclusive finding has been rendered. Only

two issues have been determinatively dealt with.

4. It is not in dispute that Vikas was fatally shot in the

intervening night of 14th and 15th October 2004 and was

removed to Sushruta Trauma Centre where he was admitted at

one hour past midnight in the intervening night of 14 th and 15th

October 2004. Though conscious, he was unfit to make any

statement, as recorded on Vikas's MLC.

5. The question arose, as to whether the appellants

were the offenders.

6. The appellants are real brothers being the sons of

Prem Singh and were charged with the offence of acting in

concert to cause bullet injuries to Vikas.

7. A perusal of the evidence shows that the wife of the

deceased i.e. Ms.Suman Chauhan who deposed as PW-5,

claimed to be an eye witness. As per her, she knew both the

accused. As per her accused Brijesh had caught her husband

from his neck and exhorted his brother to kill her husband and

at that point of time, when the exhortation was given, Hitesh

fired at her husband and both accused fled.

8. Santosh Chauhan PW-6, the mother of the

deceased, claimed that she spoke to her son from her house at

the mobile phone of her son and that her son told her that he

had been shot by the appellants and was being taken to the

hospital by the police.

9. 4 police officers PW-16, PW-20, PW-25 and PW-32

deposed to the deceased reaching the police post, J.J.Colony,

Wazir Pur at 11:00 PM and collapsing after saying that the

appellants have shot him.

10. The wife of the deceased as also two brothers-in-

law of the deceased; namely, Rajesh Chauhan PW-7 and

Chander Prakash PW-31 claimed that when they reached the

hospital and met the deceased, he made a dying declaration

before them inculpating the appellants.

11. It is apparent that 4 issues requiring a

determinative finding on each, arose for consideration; being

that: (i) whether PW-5 was an eye witness and has deposed

truthfully, (ii) whether the deceased made a dying declaration

to his mother over the telephone when he was being removed

to the hospital by the police, (iii) whether deceased made a

dying declaration to the police at the police post and (iv)

whether the deceased made a third dying declaration at the

hospital before his wife and two brothers-in-law.

12. Another issue arose for consideration in view of the

testimony of an independent witness Atul Mittal PW-9, as per

whom he had gone to the market to purchase goods and saw a

commotion in the market. He saw 3-4 boys running away. He

also saw the deceased in his Indica car and when he reached

the car, the deceased told him that he had been fired upon.

Police officials reached there and removed the deceased in an

auto rickshaw to the hospital.

13. From the testimony of Atul Mittal, a 5th issue arose,

whether the assailants were 3 or 4.

14. Needless to state, the testimony of Atul Mittal had

to be considered while discussing the claim of the wife of being

an eye witness as also the claim of PW-16, PW-20, PW-25 and

PW-32 that the deceased reached the police post and at the

police post made the stated dying declaration as claimed by

them.

15. A perusal of the impugned decision shows that the

learned Trial Judge has returned no finding whether the Trial

Judge has accepted claim of PW-5 i.e. the wife of the deceased

to be an eye witness.

16. The learned Trial Judge, without discussing the

testimony of Atul Mittal has returned a definite finding that the

deceased reached the police post and indeed made the dying

declaration as deposed to by PW-16, PW-20, PW-25 and PW-

32. In respect of the stated conversation between the

deceased and his mother, as claimed by the mother, a definite

determinative finding has been returned believing the mother.

17. Whether the deceased made a dying declaration at

the hospital to his wife and two brothers-in-law, we find no

determinative decision being taken. Midway between the

discussion, the learned Trial Judge has, using the expression

'even if it is assumed that the deceased did not make any

dying declaration' held that it does not demolish the

prosecution case.

18. There is just no highlighting of the 5th issue which

emerges from the testimony of Atul Mittal and hence the said

issue has not even been touched.

19. In our opinion, this is not the way decisions have to

be penned by the Court of first instance pertaining to a murder

trial. Each and every issue has to be dealt with and

determinative findings have to be rendered. It is of no use

being verbose and inchoate and inconclusive. One pitfall of

verbosity is that half way down the sermon, the mind loses

track of what has to be focused and considered.

20. Under the circumstances, without expressing any

opinion on the merit of the case, we dispose of both appeals

setting aside the impugned judgment and order dated

22.10.2009 convicting the appellants for the offence they were

charged of. The order on sentence dated 23.10.2009 is also

set aside.

21. The matter is remanded back to the learned Trial

Judge with a direction that clear cut findings be returned by

the learned Trial Judge pertaining to the issue, whether wife of

the deceased was an eye witness as also to whether the

deceased made a dying declaration at the hospital to his wife

and two brothers-in-law. The learned Trial Judge would

specifically deal with the issue whether Atul Mittal is to be

believed or disbelieved and reasons in support of the

conclusion would be given. If the learned Trial Judge hold that

Atul Mittal is to be believed, the effect of his testimony vis-à-

vis the claim of the wife of the deceased of she being an eye

witness as also the claim of the police officers that the

deceased reached the police post would be discussed.

22. We make it clear that we are rendering no opinion

whatsoever on the merits of the finding returned by the

learned Trial Judge on the two issues qua which we find

determinative findings. But, we clarify that at the remanded

stage, said issues would be dealt with afresh in light of the

arguments advanced and with respect to the finding to be

returned qua the testimony of Atul Mittal.

23. At the remanded stage, it is hoped and expected,

that the learned Trial Judge would expeditiously rehear

arguments and render fresh opinion latest by 13th August,

2010.

24. Learned senior counsel for the appellants prays that

since the trial is over and considering the fact that the

appellants have remained in custody for 5 years and 7 months,

they be admitted to bail especially for the reason the

appellants have no history of being involved in any crime.

25. We accordingly direct that pending fresh decision,

on the appellants furnishing a personal bond in sum of

Rs.10,000/- each with two sureties each in the like amount to

the satisfaction of the learned Trial Judge, the appellants would

be released on bail till the matter is finally re-decided by the

learned Trial Judge.

26. We direct the Registry to forthwith return the TCR

and ensure that it is made available to the learned Trial Judge

latest by 19th May, 2010.

27. We direct the matter to be listed before the learned

Trial Judge on 21st May, 2010. The said date has been noted

by learned counsel for the appellants and learned counsel for

the State, who submits that he would intimate the same to his

counterpart before the learned Trial Court.

28. The learned Trial Judge would fix a date of

arguments not beyond 5th July, 2010 and after completing

rehearing of the matter would pronounce fresh decision.

29. Dasti to parties under signatures of the Court

Master.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

MAY 17, 2010 mm