Kashmir Singh vs State
2011 Latest Caselaw 4069 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 23.08.2011

+      CRL.A. No. 363/1997

KASHMIR SINGH                                            ..... Appellant

                      versus

STATE                                                    ..... Respondent

AND

+ CRL.A. No. 127/1998

KULDEEP KUMAR ..... Appellant

versus

STATE ..... Respondent

Advocates who appeared in this case:-

For the Appellant : Mr Sumer Kumar Sethi in CRL.A. No. 363/1997.

Mr Ajay Verma in CRL.A. No. 127/1998.

For the Respondent : Ms Richa Kapoor

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL

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 the Digest? Yes

BADAR DURREZ AHMED, J (ORAL)

1. The appellants Kuldeep Kumar and Kashmir Singh have been

convicted for having committed the murder of one Jatinder Singh by

virtue of the impugned judgment dated 27.05.1997 in Sessions Case

No. 225/1995 arising out of FIR No. 565/1994 registered at Police

Station Kashmiri Gate under Section 302/34 IPC. The appellants have

also impugned the order on the point of sentence dated 31.05.1997

whereby the appellants were sentenced to undergo imprisonment for

life. They were also required to pay a fine of `1,000/- each and in

default of payment of the said fine, to further undergo simple

imprisonment for three months.

2. The case of the prosecution is that the appellants as also the

deceased Jatinder Singh were residents of Mukatsar, Punjab. Jatinder

Singh had a spare parts shop. On 17.10.1994, the appellants along

with Jatinder Singh boarded a bus at Mukatsar, Punjab at 5.30 a.m.

which was bound for Delhi. The three persons came to Delhi with the

object of purchasing spare parts. It is the case of the prosecution that

PW4 Harbans Lal, who is the father of the deceased Jatinder Singh

gave him a sum of ` 15,000/- for the said purpose. It is also the case

of the prosecution that PW8 Parveen Kumar had also given a sum of

`2,000/- to Jatinder Singh for the purpose of purchasing spare parts for

him. The said spare parts were to be purchased from PW2 Sanjay

Khanna whose address was allegedly supplied by PW8 Parveen

Kumar. It is the further case of the prosecution that Jatinder Singh on

his arrival in Delhi went to his cousin PW6 Neelam‟s house in the

evening of 17.10.1994 at about 5.00 p.m. It is also the case of the

prosecution that Jatinder Singh stayed in the house of Neelam in the

night intervening 17/18.10.1994 and that he had left Neelam‟s house

in the morning of 18.10.1994. According to the prosecution, at about

8 or 9 p.m. on 17.10.1994, two „friends‟ of Jatinder Singh had gone to

meet him at Neelam‟s house. Jatinder Singh had gone out of the

house at that point of time to meet his said friends but he returned

thereafter and spent the night at Neelam‟s house.

3. It is also the case of the prosecution that the appellants Kuldeep

Kumar and Kashmir Singh stayed at Hotel Shish Mahal, Fatehpuri on

17/18.10.1994. According to the prosecution, the appellants stayed

there under the assumed names of Raj Kumar and Gurnam Singh and

entered the same in the Register Ex.P19 maintained by the said Hotel.

As per the prosecution, at about 12.00 noon, all the three persons went

to PW2 Sanjay Khanna‟s house at Kashmiri Gate with the object of

purchasing spare parts. PW2 Sanjay Khanna had seen the three of

them at his shop.

4. On the next day i.e., 19.10.1994, DD No. 6A was recorded by

Police Station Kashmiri Gate at 11.40 a.m. which indicated that the

Principal of St. Stephen‟s College had telephoned that a dead body

had been discovered at the playing ground of St. Stephen‟s College.

Thereafter, a police party went to the spot and discovered that a dead

body was lying there. As per the prosecution, dead body of a Sikh

man aged about 28-30 years was lying in the bushes. There were

injuries on the right side of the head. The same was depressed and it

appeared that it was the result of an impact from a hard object. The

dead body had a white kurta and a brown underwear. Some parts of

the bushes and grass were found clasped in the hands of the dead

body. Four big stones stained with blood were lying near the head and

one small stone was lying between the legs. A broken bottle of acid

was lying near the dead body and acid burn marks were noted on the

dead body. One orange patka was lying at a distance of about 15-20

yards from the dead body towards the west. A pair of shoes of the

make - "Power" - and one printed yellow shirt was also found to be

lying near the dead body. One blue vest and white pyjama were also

found lying at the spot. All these articles were seized. The crime

team and the photographer were summoned. Thereafter, the FIR was

registered.

5. The Police had taken out hue and cry notices inasmuch as the

body was unidentified. The same came to be identified on 24.10.1994

by PW4 Harbans Lal and PW6 Neelam. The said dead body was

identified to be that of Jatinder Singh who was the son of PW4

Harbans Lal and cousin of PW6 Neelam. In the meanwhile, the post

mortem examination had been conducted on 21.10.1994 by PW25 Dr

L.K. Baruwa who gave his opinion to the effect that all bruises,

abrasions and lacerations were ante-mortem in nature and acid burns

appeared to be post-mortem in nature. He also opined that injuries to

the head as also to the neck were caused by a heavy rough object and

were caused simultaneously. Pressure on the neck area had caused the

abrasions/contusions to the neck skin and fracture of the hyoid bone

and thyroid cartilage and showed signs of asphyxia. In the opinion of

PW2 Dr L.K. Baruwa, injury to the neck as well as to the head were

individually sufficient to cause death in the ordinary course of nature

and that the time since death was 2 ½ days. Since the post-mortem

examination was conducted on 21.10.1994 at 2.00 p.m., the time of

death would work out to be 2.00 a.m. on 19.10.1994.

6. The appellants were arrested at Mukatsar, Punjab on

13.11.1994. Thereafter, they are said to have made disclosure

statements and on the basis of the disclosure statements certain

recoveries are said to have been made. It is alleged that at the instance

of appellant Kashmir Singh, one attache case (Ex.P9) was recovered

and at the instance of appellant Kuldeep Singh, one pant (Ex.P8), one

shirt (Ex.P6) and one pagri (Ex.P7) are said to have been recovered. It

is the case of the prosecution that the attache case as well as the pant,

shirt and pagri belonged to deceased Jatinder Singh. It is also the case

of the prosecution that the light yellow printed shirt recovered from

the spot where the dead body was found belonged to Kashmir Singh.

7. During investigation, the police had seized the register Ex.P19

from Hotel Shish Mahal where the appellants allegedly stayed while

they were in Delhi. The handwriting specimens of Kashmir Singh

being S1 to S5 were taken and the questioned writing being Q1 and

Q2 which was in the register Ex.P19 was sent to the Central Forensic

Science Laboratory (CFSL) for the purposes of comparison. The

CFSL report Ex.PX indicated that the handwriting in the questioned

document, namely, Q1 and Q2, were matched with the specimen

handwriting S1 to S5 of Kuldeep Kumar. Of course, the defence did

not make any application for cross-examining the handwriting expert

Mr S.N. Mukhi, Sr Scientific Officer, Grade-I, Documents, CFSL,

CBI, New Delhi. So, the report has gone unchallenged.

8. The appellants were charged of having committed the offence

under Section 302/34 IPC. The prosecution examined as many as 25

witnesses in support of its case. Section 313 Cr.P.C. statements of the

appellants were recorded wherein all the incriminating evidence was

put to the appellants. They did not seek to produce any evidence in

their favour.

9. The learned Addl Sessions Judge set out the circumstances

which, according to him, were required to be established by the

prosecution in order to return a finding of guilt insofar as the

appellants are concerned. The eight circumstances noted by the

learned Addl Sessions Judge are as under:-

"(1) There is homicidal death of the accused Jatinder Singh.

(2) The deceased Jatinder Singh was last seen with the accused persons. The prosecution has relied upon the evidence of last seen.

(3) The disclosure statement of the accused persons and the recovery of articles.

(4) Purchase of acid by accused Kuldip Kumar from PW Manohar Lal.

               (5)    Purpose of visit of deceased to Delhi with
                     the accused persons.

              (6)    Motive of both the accused persons to rob
                     the deceased.

              (7)    CFSL reports and report of handwriting
                     expert.

              (8)    Conduct of both the accused persons."

10. Insofar as the first circumstance is concerned, there is no

dispute that the death of Jatinder Singh was homicidal. With regard to

the second circumstance that the deceased Jatinder Singh was last seen

with the accused persons, the learned Addl Sessions Judge relied upon

the testimonies of PW5 Narinder Singh and PW7 Surinder Singh to

come to the conclusion that the deceased Jatinder Singh was last seen

with both the accused persons on 17.10.1994 at 5.30 a.m. at the bus

stand at Mukatsar, Punjab. While considering this circumstance, the

learned Addl Sessions Judge also referred to the testimony of PW6

Neelam who was regarded as a hostile witness by the prosecution.

However, the learned Addl Sessions Judge was of the view that even

though PW6 Neelam was a hostile witness, this much has been

established by her that Jatinder Singh had come to her house in Delhi

on 17.10.1994 at 5 or 6 p.m. and had stayed overnight. It was also

established that somebody had called Jatinder Singh at 8.00 p.m. or

9.00 p.m. and that he went outside Neelam‟s house to meet his

„friends‟ on 17.10.1994. It has also been noted by the learned Addl

Sessions Judge that as per PW6 Neelam, Jatinder Singh left her house

in the morning of 18.10.1994.

11. The learned Addl Sessions Judge also noted that PW2 Sanjay

Khanna had seen the three boys, namely, the appellants and the

deceased Jatinder Singh at his shop at 12.00 noon on 18.10.1994.

Considering the testimonies of PW5 and PW7 as also PW2 Sanjay

Khanna and the testimonies of PW14 and 16, namely, Gopal Krishan

and Mahender Pratap, who were the previous and present owners of

Shish Mahal Hotel as also the register Ex.P19, the learned Addl

Sessions Judge concluded that the deceased Jatinder Singh was last

seen in the company of the appellants on 17/18.10.1994.

12. We are, however, unable to agree with the learned Addl

Sessions Judge that the testimonies of PW5 and PW7 as also of PW6

would amount to evidence which is normally categorised as "last seen

evidence". We must note that the deceased Jatinder Singh, as per the

post-mortem report, died at 2.00 a.m. on 19.10.1994. Thus, the

testimony of PW5 Narinder Singh, who is the brother of the deceased

and PW7 Surinder Singh, who is also a cousin of the deceased, to the

effect that they had seen Jatinder Singh leaving for Delhi along with

the appellants at 5.30 a.m. on 17.10.1994 is too remote in time to

connect it with the murder of Jatinder Singh which took place almost 2

days later. Insofar as PW6 Neelam is concerned, she has first of all,

not identified the „friends‟ who had come to meet Jatinder Singh at

about 8 or 9 p.m. on 17.10.1994. Secondly, she has stated that

Jatinder Singh left the house in the morning of 18.10.1994. It is

obvious that he had left the house alone and was not in the company of

anybody when he left Neelam‟s house. Therefore, PW6 Neelam

would also not provide us with any clue as to with whom Jatinder

Singh had interacted on 17.10.1994 or whom he was going to meet on

18.10.1994.

13. Insofar as PW2 Sanjay Khanna is concerned, if one carefully

examines his testimony, one finds that he has in the first portion of his

examination-in-chief indicated that on 18.10.1994 at about 12.00

noon, three boys had come to his shop from Mukatsar, Punjab. Two

of them were Sikhs and one was a Mona (clean shaven Sikh). He had

also stated that those three boys had inquired about the rates of spare

parts but had not purchased anything. In the second part of his

testimony he stated that on 16.11.1994, two boys of the name of

Kuldeep Kumar and Kashmir Singh had pointed out his shop. The said

boys were accompanied by the police. The said boys who had come

to his shop on 16.11.1994 were the persons who were present in court.

The third boy, according to PW2 Sanjay Khanna, was identified from

the photograph shown to him by the police and that was stated to be of

the deceased Jatinder Singh. At this juncture, we may point out that

the photograph which was shown to PW2 Sanjay Khanna was of such

a nature that it would be difficult for anybody to identify as to whose

photograph it was. This is absolutely clear from the testimony of PW4

Harbans Lal who is the father of the deceased Jatinder Singh who

stated, with reference to the photograph of Jatinder Singh, that it was

not very clear and that it was only after the police asked him if he was

wearing Power shoes that he recognized that the photograph was that

of his son Jatinder Singh. When it was so difficult for the father of the

deceased Jatinder Singh to identify him on the basis of the photograph,

it is difficult to believe that PW2 Sanjay Khanna could have identified

the deceased Jatinder Singh on the basis of the very same photograph

when deceased Jatinder Singh was not known to him and had only

seen him for a short while when he had allegedly come to his shop to

make inquiries about the rates of spare parts.

14. Returning to the testimony of PW2 Sanjay Khanna, it is obvious

that the said witness had not identified the appellants as two of the

three boys who had come to his shop on 18.10.1994. All that PW2

Sanjay Khanna had stated was that the appellants were the two boys

who had accompanied the police on 16.11.1994. This is entirely

different from stating that PW2 Sanjay Khanna had identified the

appellants as two of the three boys who had come to his shop on

18.10.1994. This is also clear from the suggestion given by the

learned APP to the effect that PW2 Sanjay Khanna had intentionally

not identified the accused persons present in court as the boys who had

come on 18.10.1994 along with Jatinder Singh. The suggestion had

been made to the said witness after he had been treated as hostile by

the learned APP.

15. Thus, even the testimony of PW2 Sanjay Khanna cannot be

regarded in the category of "last seen evidence". The evidence of

PW14 Gopal Krishan and PW16 Mahender Pratap who were the

owners of the Hotel Shish Mahal where the appellants are alleged to

have stayed on 17/18.10.1994 also does not fall in the category of last

seen evidence. These two witnesses have indicated that the register

Ex.P19 was being maintained at the said Hotel on the relevant dates.

As per the said register Ex.P19, there is an entry made on 17.10.1994

indicating that persons by the names of Raj Kumar and Gurnam Singh

had stayed in the Hotel and that they had checked in at 10.20 p.m. on

17.10.1994 and had checked out on 18.10.1994 at 9.45 p.m. There is

no identification of the persons who made this entry in the register by

either PW14 or PW16 or by any other staff member of the Hotel. The

only evidence that has come on record is that the handwriting in the

register with regard to this entry has been compared with the specimen

handwriting of appellant Kuldeep Kumar and the handwriting expert

Mr S.L. Mukhi has given his opinion that the specimen writing

matches the questioned writing and, therefore, he has concluded that

the handwriting in the register is that of Kuldeep Kumar. The only

thing that is established on the basis of the evidence of the handwriting

expert is that the entry in the register is that of Kuldeep Kumar. There

is nothing to link Kashmir Singh with the said entry. In any event, this

evidence does not indicate that either Kuldeep Kumar or Kashmir

Singh were in the company of the deceased Jatinder Singh.

16. Insofar as the motive is concerned, the trial court came to the

conclusion that the motive stood established. According to the learned

Addl Sessions Judge, the motive on the part of the appellants was to

rob Jatinder Singh of the ` 17,000/- that he had on his person. The

logic employed by the learned Addl Sessions Judge was that since

PW4 Harbans Lal had given ` 15,000/- to his son Jatinder Singh and

PW8 Parveen Kumar had given ` 2,000/- to Jatinder Singh, the said

amount ought to have been found on the person of Jatinder Singh

when his body was discovered. Since the said amount of money was

not found on the body of Jatinder Singh nor had any spare parts been

purchased by Jatinder Singh, therefore, according to the learned Addl

Sessions Judge, the said sum of ` 17,000/- had been taken by the

appellants. And, consequently, according the learned Addl Sessions

Judge, the motive stood established. We do not subscribe to this logic.

Even if we believe the testimony of PW4 and PW8 with regard to the

supply of money to Jatinder Singh, it cannot be said that merely

because the said sum was not found on the body of Jatinder Singh nor

had Jatinder Singh purchased any spare parts, therefore, it could be

concluded that it is the appellants alone who could have taken the sum

of ` 17,000/- from Jatinder Singh. There is also no recovery of the

said amount of `17,000/- or any part thereof from either Kuldeep

Kumar or Kashmir Singh. Therefore, we do not agree with the

conclusion of the learned Addl Sessions Judge that the motive stood

established.

17. Insofar as the issue with regard to the purchase of acid is

concerned, since the learned Addl Sessions Judge himself disbelieved

the theory that the acid purchased by Kuldeep Kumar at Mukatsar,

Punjab on 13.10.1994 was used for the commission of the crime in

Delhi on 19.10.1994, we are not discussing this aspect of the matter.

It is sufficient to record that the learned Addl Sessions Judge has

correctly concluded that it has not been proved that the acid purchased

by Kuldeep Kumar at Mukatsar was used for the commission of the

offence.

18. Insofar as the recoveries of articles are concerned, we find that

the same do not inspire confidence. The attache case Ex.19 is said to

have been recovered from the house of Kashmir Singh from Mukatsar

on 13.11.1994 i.e., 24 days after the commission of the alleged

offence. It would be difficult to believe that the appellant Kashmir

Singh would have carried this attache case with him from Delhi to

Mukatsar and would have retained it for so many days when he knew

that the police were on the look out for him and that the family of the

deceased were also residents of Mukatsar. Insofar as the recoveries at

the instance of Kuldeep Kumar are concerned, we find it difficult to

believe that Kuldeep Kumar would carry the pant, shirt and pagri Ex.

P8, 6 and 7 belonging to Jatinder Singh all the way from Delhi to

Mukatsar and that he would retain the same in his house for 24 days.

The prosecution case with regard to recoveries is highly unnatural and

cannot be believed.

19. We now come to the issue of Ex.P14 which is the yellow

printed shirt which was allegedly found at the spot where the dead

body was discovered. It is alleged on the part of the prosecution that

this yellow shirt Ex.P14 belonged to Kashmir Singh. The prosecution

case is based on the testimonies of PW5 Narinder Singh and PW7

Surinder Singh who had stated that on 17.10.1994 when the three

persons were at the bus stand at Mukatsar, they had seen Kashmir

Singh wearing this yellow printed shirt. There are several difficulties

with this piece of so-called evidence. The first difficulty is that it

would be highly unnatural on the part of Kashmir Singh to have

committed the offence and then taken off his shirt and left it next to

the dead body. Secondly, we find that on 27.10.1994, PW5 Narinder

Singh in his statement to the police had indicated that Kashmir Singh

was wearing a yellow printed shirt. However, the said yellow printed

shirt Ex.P14 was not shown to PW5 Narinder Singh on 27.10.1994 for

the purposes of identification. On the other hand, it was shown to PW7

Surinder Singh on 17.11.1994 when he allegedly identified it to be the

same shirt which Kashmir Singh was wearing when they were

departing on 17.10.1994. This also creates a significant amount of

doubt with regard to this piece of evidence.

20. In view of the foregoing, we find that the only circumstances

that the prosecution has been able to establish are that:-

       (i)     Jatinder Singh‟s death was homicidal;

       (ii)    The appellants and deceased Jatinder Singh left Mukatsar

together on 17.10.1994 at 5.30 a.m. by bus which was

bound for Delhi;

(iii) That Jatinder Singh stayed overnight at PW6 Neelam‟s

house in Delhi in the night intervening 17/18.10.1994.

That two „unidentified friends‟ had come to meet him on

17.10.1994 at Neelam‟s house at about 8 or 9 p.m. and

that Jatinder Singh had left Neelam‟s house alone on

18.10.1994 in the morning;

(iv) The handwriting in the register of the Hotel indicating the

entries of Raj Kumar and Gurnam Singh matched the

specimen handwriting of Kuldeep Kumar; and

(v) The appellants were arrested on 13.11.1994.

21. The other circumstances which were set out by the learned Addl

Sessions Judge have not been established as indicated above. The

appellants cannot be held to be guilty merely on the basis of the

circumstances which have been established by the prosecution,

inasmuch as the chain is not complete. There are many missing links

which has resulted in creating serious doubts with regard to the

prosecution case. As a consequence, giving the benefit of doubt to the

appellants, we acquit them of all charges. The impugned judgment

and order on sentence are set aside. Both the appellants are on bail.

Consequently, their bail bonds are cancelled and the sureties stand

discharged.

22. The appeals are allowed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J AUGUST 23, 2011 kks