Satnam Singh @ Harjeet Singh vs State
2012 Latest Caselaw 2201 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 07th February, 2012
                                  DECIDED ON : 30th March, 2012
+                           CRL.A.NO.398/1997
       SATNAM SINGH @ HARJEET SINGH                 ....Appellant.
                Through : Mr.D.C.Mathur, Sr.Advocate with
                          Mr.Riyaz A.Bhat and Mr.Ritvij A.Vats,
                          Advocates.
                           versus
       STATE                                .....Respondent.
                Through: Ms.Richa Kapoor, Advocate
       CORAM:
       MR. JUSTICE S. RAVINDRA BHAT
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The present appeal is directed against the judgment dated 05.09.1997 and order on sentence dated 10.09.1997 of the learned Additional Sessions Judge in Sessions Case No.396/96 by which he was convicted for committing offences punishable under Section 302/307 IPC and sentenced to undergo imprisonment for life and a fine of `2,000/- under Section 302 IPC and rigorous imprisonment for 10 years with a fine of ` 1,000/- under Section 307 IPC. Both these sentences were to operate concurrently.

2. The prosecution alleges that on 20.09.1990 Daily Diary (DD) Entry No.66 (Ex.3/DC) was recorded at 10.05 P.M. by Head Const. Balbir Singh on getting telephonic information from duty Constable Ranga Rao, DDU hospital, that one Gurvinder Singh injured in a quarrel at Tilak Nagar Chowk, was admitted by one Tejinder at DDU hospital.

The investigation was assigned to ASI Amar Pal Singh who with Ct.Jagdish reached the DDU hospital. At 10.55 P.M. Const.Ranga Rao informed Duty Officer of PS Tilak Nagar on phone that Head Const.Dalveer Singh had brought the dead body of an unknown person at the DDU hospital from Water Tank, Tilak Nagar, Nazafgarh Road. He recorded Daily Dairy (DD) No.72-B (Ex.PW3/DD) and assigned the investigation to SI Anil Kumar Bhardwaj who with Const.Raj Kumar reached the DDU hospital.

3. Inspt. S.S.Rathi (PW-34) with ASI A.Abbas, Const.Ajit Singh and Const.Darshan Singh were on patrolling duty in the area on the night intervening 20-21/9/1990. At about 11:15 P.M. after receiving information on the wireless that an individual who was injured at Tilak Nagar crossing, water tank was 'brought dead' in the DDU hospital, he went to the spot and saw one motorcycle bearing No. DNE-7527, a black turban cloth and a plastic chappal lying there. Inspt.Rathi (PW-34) (IO) proceeded to the DDU hospital and met ASI Amar Pal Singh and SI Anil Kumar (already present there) and collected two MLCs i.e. one of Gurvinder and the other of an 'unknown' person 'brought dead' in the hospital from them. Gurvinder (PW-6) was declared fit to make statement and the I.O. recorded his statement. He stated that on that day at about 8:30 P.M. when he was present at his shop, Iqbal (PW-5), his friend informed him that one 'Satnam' had inflicted knife blows to his maternal aunt and she was in the hospital. He further stated that since they were planning to open a weight lifting club at Janakpuri, they left on the motorcycle. (PW-5) Iqbal took his friend Devinder @ Tinku (since deaceased) to accompany them to Janakpuri. Thereafter, they went to

Tejinder Singh's house, borrowed his motorcycle and left for Janakpuri. The complainant further stated that on the way to Janakpuri Iqbal (PW-5) noticed 'Satnam' sitting in a shop (PAMS). He (Iqbal) went to inform the police instructing them to keep a watch on 'Satnam' so that he could not escape. Gurvinder Singh (PW-6) further stated that when Iqbal failed to return after 15/20 minutes, he and Devinder @ Tinku proceeded towards PS Tialk Nagar to search him. The accused 'Satnam' with a Sikh boy followed them on LML-Vespa Scooter and after stopping them inquired where they were going to. When Devinder @ Tinku informed Satnam that they were going to the police station to lodge a report against him, an altercation took place and the accused Satnam and his friend caught hold of Devinder @ Tinku. Satnam inflicted several knife blows on Devinder @ Tinku. When he intervened to save Devinder @ Tinku, the accused Satnam also inflicted knife blows on his left arm, chest and back. Both Satnam and his associate fled the spot. He took a lift from a stranger on his motorcycle, and reached the DDU hospital, where Tajinder Singh met him and got him admitted. Gurvinder claimed that he could identify Satnam's associate, if he were shown to him.

4. Inspt. S.S.Rathi made an endorsement on the statement and sent the rukka (Ex.PW-3/A) through Const. Darshan Singh for registering the case under Section 302/307/34 IPC. On reaching the spot, he lifted the exhibits i.e. blood sample, earth control sample, black turban, plastic chappal, sua and the motorcycle along with key and prepared necessary seizure memos. The Crime team was summoned and the scene of incident was photographed. He also prepared an unscaled site plan. Efforts were made to find out other eye-witnesses but in vain.

5. Since Gurvinder Singh had implicated Satnam Singh, the police set out to arrest him and reached his residence in Gali No.13, Krishan Park, Tilak Nagar but he was not found there. On cursory search of the house one letter written in Hindi lying on a 'Diwan' under a pillow was seized. During the course of investigations. The IO conducted the inquest proceedings; prepared brief facts and moved an application for conducting post-mortem of the dead body. Dr.L.K.Baruah (PW-23) conducted the post-mortem and the dead body was released to the paternal uncle of the deceased.

6. On 30.09.1990 the accused was arrested from the crossing of Najafgarh Road and Ring Road on the pointing out of a secret informer. The I.O. interrogated, and recorded his disclosure statement. Pursuant to his disclosures, he took the police to a hotel at Kashmiri Gate where he had stayed after the crime and the I.O. seized the relevant registers from there. The accused Gurpreet @ Bobby, was arrested on 30.09.1990 at the pointing out of the accused-Satnam and his disclosure statement was recorded. The IO moved an application for conducting the Test Identification Parade but he declined to join the TIP proceedings. On 01.10.1990, one registered letter written by PW-7 (Mahinder Singh) in Gurmukhi was received at PS Tilak Nagar. During the course of investigation, the IO prepared the scaled site plan; sent the exhibits to the FSL and collected the report; he also recorded the statements of witnesses conversant with the facts. After completion of the investigations, both Satnam Singh and Gurpreet Singh were charge-sheeted for committing the offences and brought to trial.

7. To prove the charges, the prosecution examined 35 witnesses. Statements of accused were recorded under Section 313 Cr.P.C. to afford them an opportunity to explain the incriminating circumstances. They denied their hand in the crime and pleaded falsely implication.

8. After considering the testimonies of witnesses and rival contentions of the parties, Satnam Singh was convicted and sentenced for the aforesaid offences. However the accused Gurpeet @ Bobby was acquitted of the charges. Aggrieved by the said orders, the appellant has filed the present appeal.

9. Learned counsel for the appellant challenged the findings of the Trial Court and vehemently urged that it did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the ocular testimonies of PW-5 (Iqbal Singh), PW-6 (Gurvinder Singh) and PW-7 (Mohinder Singh) who were closely related to the deceased and whose presence at the spot was highly doubtful. Counsel highly criticized the unnatural conduct of PW-7 (Mohinder Singh) the alleged eye witness who did not bother to intervene and save his nephew. There was no urgency for him to go to Jullunder (Punjab) for such a long period and not to rush to Delhi even after coming to know that his nephew was not alive any longer. No reliance could be placed on the letter (Ex.PW-7/A) allegedly written by him from Punjab as the prosecution failed to establish when it was written and dispatched. The conduct of PW-5 (Iqbal Singh), leaving the spot on the pretext for lodging FIR instructing PW-6 and the deceased to keep watch on the accused was unreasonable. The accused had no ulterior motive to inflict fatal injuries

to Devinder with whom he had no prior acquaintance. Counsel contended that from inception, the accused had pleaded that it was a case of mistaken identity but the Trial Court ignored this vital aspect and the prosecution did not bring on record convincing evidence that Satnam @ Harjit Singh named in the rukka (Ex.PW-3/A) was in fact the 'accused' facing trial before the court. Counsel further argued that a false case registered under Section 307 IPC (attempt to murder) of PW-5 (Iqbal Singh)'s maternal aunt resulted in his acquittal and the complainant/injured in the said case failed to identify the culprit and did not allege the accused before the Court to be the perpetrator of the crime. The story was concocted by the witnesses in connivance with the police to falsely implicate him and no witness deposed against the co-accused Gurpreet @ Boby.

10. Learned APP justified and supported the judgment of the Trial Court by which, upon analysis of the evidence, only the accused (Satnam) was convicted and the co-accused Gurpreet @ Boby was acquitted. APP further contended that the accused had a strong motive to murder Devinder @ Tinku and assault PW-6 (Gurvinder) to prevent them from going to the police station to lodge complaint against him for causing injuries to Iqbal Singh's (PW-5) maternal aunt. The extra judicial confession made by the accused before PW-11 (Surjan Singh) is material to prove his complicity in the crime. The ocular testimonies of the witnesses cannot be disbelieved because of their acquaintance with the deceased/injured. The testimony of PW-6 (Gurvinder Singh) an injured witness stands on higher footing and cannot be rejected on flimsy grounds. An injured witness cannot be expected to let the real offender go scot free and to implicate an innocent man. No adverse inference can be

drawn against PW-7 (Mohinder Singh) for omission to inform the police as he had to rush to Punjab and was forced to stay there for long due to suicide of a relative. Since there were disturbances in Punjab in those days, it was difficult for him to travel back to Delhi. To show genuine concern, he sent registered letter to the police giving details of the occurrence witnessed by him.

11. We have considered the arguments and have scrutinised the Trial Court records.

12. Before we proceed on merits, it is desirable to highlight that the homicidal death of Devinder @ Tinku is not under challenge. The prosecution had charge-sheeted Satnam Singh and Gurpreet Singh. The accused Gurpeet Gingh was acquitted of the charges and the State did not prefer any appeal against his acquittal. The prosecution's reliance on the circumstance of extra-judicial confession to PW-11 (Surjan Singh) turned futile as the Trial Court disbelieved his testimony. It is also a matter of record that recovery of the letter Ex.PW28/A-2 allegedly written by accused (Satnam) was also disbelieved in the impugned judgment with the observation that it had no evidentiary value. The recovery of Register Ex.P-5 and Ex.PW-28/A-2 was also not considered incriminating as PW- 33 (Insp.Anil Kumar) and PW-34 (ACP S.S.Rathi) did not admit the fact that the questioned entry in the register in two different inks showed fabrication. The recovery of accused's blood stained clothes i.e.pant Ex.P-5 and shirt Ex.P-6 from Tera hotel was also not believed by the Trial Court. The prosecution case is solely based upon eye-witnesses testimony. We would consider the evidence of prosecution threadbare.

(A) Testimony of PW-7 (Mahinder Singh)

13. PW-7 (Mahinder Singh) claimed that on 20.09.1990 at about 9:30 P.M. when he and with his daughter had gone to purchase some goods in the market, he saw the accused (Satnam) stabbing an 'individual' and that accused Gurpreet Singh had caught hold of the victim. On seeing the incident, her daughter panicked and they went home.

14. The record reveals that the deceased Devinder @ Tinku was PW-7's nephew but curiously he was unable to identify him. The presence of this witness at the spot is highly doubtful as he did not intervene to save the victims; did not raise an alarm; he did not bother to inform the police about the incident. The conduct of the witnesses is highly unnatural, as instead of informing any relation or the police or other authorities, he conveniently went to Jullunder (Punjab) the next morning and stayed there for about eight to ten days. PW-5 (Iqbal) in his cross-examination said that he had seen PW-7 in the police station after three/four days of the incident, thus contradicting his (PW-7) version that he remained in Punjab for more than seven/eight days and could not return due to the riots breaking out there. In the examination-in-chief, he introduced a new version regarding his arrival in Delhi on 15/16 October, 1990 allegedly staying there for about twenty five days. PW-7 who lost his nephew was not expected to remain in Punjab for so long and not rush back to console the bereaved family; or assist them in lodging the report to bring the offender to justice. He failed to explain the omission in reporting the occurrence to the police on telephone. It did not emerge that there were riots in Punjab which would have prevented PW-7 to return to

Delhi. The police did not ascertain with whom PW-7 had allegedly stayed in Punjab or for that matter did not examine him.

15. PW-7 in the letter assigned a specific role to the accused Gurpreet but PW-6 the injured witness altogether denied his presence. PW-7 did not explain why he did not note down the scooter number used by the accused to flee the spot and the number of the motorcycle on which Gurvinder Singh was taken to the DDU hospital. The letter (Ex.PW-7/A) was allegedly addressed after a gap of more than ten days to the concerned police station and not the deceased's father. It is unbelievable that PW-7 would not send his condolence to the deceased's family. The natural instinct of such a witness would have been to put the police machinery into motion soon after the incident. It was also his legal duty to report the crime, being a Special Police Officer of P.S.Tilak Nagar.

16. PW-7 also made vital improvements in his deposition and in the cross-examination changed his earlier version regarding the identity of Gurpreet Singh. Initially, he deposed that the accused was the culprit who had caught hold of the victim. However, in cross-examination he implicated him and came up with the plea that the culprit 'appeared' to be similar. Considering all these facts, i.e., his unnatural conduct, his omission to intervene or to inform the police or any of his close relations about the incident that he allegedly witnessed in-ordinate delay to return to Delhi; the testimony of the witness deserves outright rejection. (B) Testimony of PW-2 (Tejinder Singh)

17. The recovery of PW-2's Motorcycle bearing No. DNE-7527 (Ex.PW-25/A) was prima facie sufficient to infer his presence at the spot. The prosecution claimed to the contrary and stated that PW-2 was not

present at the spot but had gone to the DDU hospital to admit his maternal grand-mother and in his absence, PW-5 (Iqbal) took his motorcycle from his father to go to Janakpuri. This version seems unconvincing as there was no urgency to go in the opposite direction to fetch the motorcycle. In the MLC (Ex.PW18/A) injured (PW-6 Gurvinder Singh) is shown to have been brought by PW-2 (Tejinder) to the hospital. PW-2 was already at the DDU Hospital for admission of his grandmother, as alleged. The prosecution did not collect any document to prove this aspect. It could not be a coincidence that injured Gurmeet would meet PW-2 Tejinder Singh at the DDU hospital to get him admitted. PW-2 failed to explain why he did not inform the police or the relatives of the deceased soon after coming to know about the incident from PW-6. He also failed to state who brought the injured to DDU hospital and what the registration number of the said motorcycle was. The deceased had been PW-2's classmate; yet he did not rush to the spot to ascertain his condition. These circumstances reflect unnatural conduct and rule out his presence at the DDU hospital in the manner alleged. He is not a creditworthy witness and no reliance can be placed on his deposition.

(C) Testimony of PW-5 (Iqbal)

18. PW-5 (Iqbal) is not a witness to the incident. It seems that he has concealed material facts. This witness claimed that on the fateful day, he and PW-6 (Gurvinder Singh) were to go to Janakpuri to inspect the place to start a health club and the deceased Devinder Singh @ Tinku was waiting to show them that place. In the meantime, on the asking of Devinder to verify if any FIR had been lodged against accused (Satnam Singh) for stabbing his maternal aunt (Karan Kaur) and also on seeing him

(Satnam) sitting in the PAMS garment shop, he left the spot to lodge the report with the police instructing both PW-6 (Gurvinder) and the deceased Devinder to keep a watch on Satnam Singh. The incident allegedly occurred after his departure from the spot. Again no reliance can be placed on the story told by the witness. It cannot believed that after coming to know about the stabbing incident with her aunt, this witness (PW-5) would not rush to her residence to take her to the hospital or to lodge report with the police. It is again unbelievable that while proceeding towards Janakpuri on motorcylce, on the way, suddenly they would find the accused (Satnam Singh) sitting in a shop (PAMS) and PW- 5 would slip away on the pretext of lodging a report without confronting him. The deceased (Devinder) had no reason to go to the police station to lodge a report against the accused with whom he had no enmity or acquaintance. PW-5 had left the spot, to lodge the FIR with the police. No evidence was collected at which place PWs-5 and 6 were to start a health club at Janakpuri and how the deceased (Devinder) was in a position to find that place for them. The prosecution failed to examine any witness from the readymade garment shop (PAMS) to corroborate PWs-5 and 6 on whether the accused along with his associate Gurpreet visited the shop and if so till what time they stayed there on the day of the incident. Adverse inference is to be drawn against the prosecution for withholding material witnesses.

19. PW-5 also did not alert the police or the relatives of the deceased. The police did not collect documents of the case registered under Section 307 IPC for attempt to murder Karan Kaur. During the course of arguments we were informed that the accused Satnam was

acquitted in the said FIR as the injured (PW-5's maternal aunt) did not identify him as the assailant. In the presence of wavering circumstances, no reliance can be placed on the testimony of this witness. (D) Testimony of PW-6 (Gurvinder Singh)

20. The Trial Court heavily relied upon the testimony of this star injured witness of the prosecution on the basis of whose statement the FIR was registered. In his deposition before the Court, he corroborated PW-5 regarding the genesis of the incident and implicated the accused for causing injuries to him and the deceased.

21. Undoubtedly, the rukka (Ex.PW-3/A) was prepared by PW- 34 Insp.S.S.Rathi on the statement made by PW-6, and in the statement he gave a detailed account of the incident and named accused Satnam Singh who with the help of his associate caused injuries. The police recorded the statement at about 01.10 A.M. on the night intervening 20/21.09.1990 though the occurrence took place at about 9.30 P.M. Neither PW-6 nor the IO explained the inordinate delay in sending the rukka to the police station. Ex.PW-3/B reveals that the FIR was delivered to the area Magistrate in the Court on 21.09.1990 at 11.00 A.M. though allegedly sent through special messenger. Thus the possibility of the FIR having been recorded after due deliberation and being ante-timed cannot be ruled out. MLC Ex.PW-17/A shows that PW-6 was conscious and oriented at the time of his admission and had suffered simple injuries. PW-6 did not explain why despite fatal blow given to the deceased and injuries caused to him, he did not report the incident to the police at the earliest. PW-6 did not inform his relatives and Devinder's relatives about the injuries caused to them. In the MLC Ex.PW-17/A, he did not disclose the name of the

assailant(s). Omission of the witness to disclose name of the assailant known to him casts serious doubt on his testimony. Again the conduct of this injured witness is inconsistent and makes his version highly doubtful. He did not reveal who had taken him to the DDU Hospital from the spot and what the number of the motorcycle was by which he was taken to the hospital. The person who had allegedly taken PW-6 to the hospital was not examined. The deceased Devinder fell down after the stabbing incident but PW-6 did not take him to the hospital. The conduct of the witness (who suffered simple injuries) in leaving the spot on the pretext of his treatment in the DDU Hospital thus abandoning Devinder to his fate makes him an unreliable witness. The inability of the witness to disclose the scooter number (Vespa) driven by the accused Manjeet while chasing them is also material. It is unbelievable that the injured witness would not note the registration number of the scooter despite staying for a sufficiently long duration at place of incident. According to the prosecution, PW-5 Iqbal had deputed PW-6 and the deceased Devinder to keep an eye over the accused (Manjeet), who was sitting in the shop (Pams), to prevent his escape from there PW-6 did not give sound reason to leave that place before his (PW-5) arrival. In cross-examination, PW-6 admitted that accused (Satnam) was not known to him and he saw him for the first time at the time of occurrence. The deceased was also not known to the accused (Satnam). Thus, there was no possibility of the accused giving chase to both PW-6 and deceased Devinder to prevent them from going to the police station to lodge report against him. The prosecution got this witness declared hostile and with the Court's permission learned SPP cross-examined him regarding Gurpreet's identity, the one who had

allegedly caught hold of the deceased at the time of stabbing incident. He was confronted with his statements Ex.PW-3/A and Ex.PW-6/A made to the police.

(E) Testimony of PW-4 (Balwant Singh)

22. PW-4 (Balwant Singh) uncle of deceased reached the DDU Hospital during the night intervening 20/21.09.1990 at 12 or 12.30A.M. on getting information about the incident from Gurmit @ Meeta. PW-5, PW-6 or PW-7, the star witnesses of the prosecution for the reasons known to them did not inform him about the crime.

(F) Other Circumstances

23. None of the material prosecution witnesses intimated the PCR/police about the incident. Only by DD No.66, recorded at 10.05 P.M. on 20.09.1990 (Ex.PW-3/DC), duty constable Ranga Rao informed PS Tilak Nagar about the admission of PW-6 (Gurvinder Singh). ASI Amar Pal Singh to whom Ex.PB/DC was assigned for investigation did not reveal what inquiry was carried out by him on reaching the DDU Hospital. No explanation has been given why ASI Amar Pal Singh did not record the statement of PW-6 and why he did not inform his senior officers. Again DD No.72-B dated 20.09.1990 was recorded at 10.55 P.M. on the information of duty constable Ranga Rao that one unknown person was brought dead at the hospital. This daily diary (Ex.PW-3/DD) was assigned for investigation to PW-35 (SI Anil Bhardwaj). In his testimony, he gave a lame excuse for not making any enquiry stating that by the time, the SHO, PS Tilak Nagar had already reached the DDU Hospital. PW-34 (SS Rathi) the then SHO, PS Tilak Nagar contradicted him and stated about getting information on the wireless at 11.15 P.M. and stated that he

found ASI Amar Pal and SI Anil Kumar at the DDU Hospital on reaching there. Recording of PW-6's statement Ex.PW-3/A at about 1.00 A.M. (even when all police officers were present at about 11.30 P.M. in the hospital) shows that they were not deposing the true facts. It is well settled that if the prosecution fails to satisfactorily explain the delay in registering the case and there is possibility of embellishment in the prosecution version on account of such delay, such delay would be fatal. Delay affords opportunity to the complainant to deliberate upon the complaint and to make fabrications. It vastly reduces the possibility of an untarnished and true version of the case being presented before the court at the earliest.

24. The dead body was brought at the DDU Hospital at about 10.35 P.M., whereas PW-6 Gurvinder who had sustained only simple injuries managed to reach at about 9.55 P.M. This reflects the callousness of the police officials allowing the dead body to lie abandoned/unattended at the spot for such a long period. Earlier, DD No.50-B (Ex.PW-22/C) was recorded at the same police station at 8.05 A.M. on receipt of telephonic information regarding stabbing of a lady at D-63, Gali No.6, Krishna Park from Ajit Singh. The investigation was assigned to SI Ram Rattan, who with Const.Shiv Narain reached the spot. The Trial Court record contains FIR recorded under Section 307 IPC at PS Tilak Nagar on the statement of injured Karam Kaur recorded at about 9.30 P.M. by SI Ram Rattan. In DD No.50B (Ex.PW22/C) the informer did not name the accused as the assailant. All these DD entries were recorded at PS Tilak Nagar itself. In the FIR under Section 307 IPC, only the accused (Satnam) was named as assailant. The proposition that after a

few minutes of the stabbing incident, the accused with his associate Gurpreet would inflict injuries to the deceased and PW-6, who happened to go Janakpuri without prior planning, is highly improbable.

(E) Conclusion

25. The prosecution failed to establish the accused's motive to inflict the fatal stab blow to Devinder with whom he had no prior acquaintance. The Trial Court was not justified in relying upon the ocular testimony of PW-5, PW-6 and PW-7 without independent corroboration, to base its conviction. The prosecution failed to prove any circumstantial evidence to connect the accused with the crime. On account of the aforesaid shortcomings, irregularities and improvements on part of the prosecution, in our considered opinion, it will not be safe to convict the appellant.

26. In the light of above discussion, the impugned judgment of the Trial Court cannot be sustained. The appeal is allowed. His conviction and sentence is set aside. The accused is acquitted. The bail bonds/surety bonds furnished by him are discharged.

(S.P.GARG) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 30, 2012 sa/tr