Gurdeep Singh vs State
2014 Latest Caselaw 1816 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRIMINAL APPEAL NO. 517/1999

                                     Reserved on: 24th January, 2014
%                                Date of Decision: 3rd April, 2014


GURDEEP SINGH                                            ..... Appellant
             Through:            Ms. Inderjeet Sidhu, Advocate.


                                 Versus

STATE                                              ..... Respondent

Through: Mr. Rajat Katyal, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J:

Appellant-Gurdeep Singh challenges his conviction under

Section 302 of the Indian Penal Code, 1860 (IPC, for short) for murder

of Baljit Singh and violation of Section 27 of the Arms Act, 1959, vide

judgment dated 15th March, 1999 in Sessions Case No. 30/98 arising

out of FIR No.946/1997, Police Station Patel Nagar. By order on the

point of sentence dated 16th March, 1999, the appellant has been

sentenced to undergo imprisonment for life and fine of Rs.500/- under

Section 302 IPC. In default of payment of fine, he has to undergo six

months‟ rigorous imprisonment. For the offence under Section 27 of

the Arms Act, he has been sentenced to undergo rigorous

imprisonment of three years and fine of Rs.200/-, in default of which,

he has to undergo rigorous imprisonment of three months. Sentences

have been ordered to run concurrently and benefit of Section 428 of the

Code of Criminal Procedure, 1973 has been directed to be given.

2. The occurrence in question had taken place on 15th October,

1997 at about 9.45 p.m. near Lal Mandir, Baljit Nagar in West Patel

Nagar. The prosecution has relied upon testimony of the eye witness

Devinder Singh (PW-12), dying declarations made by the deceased to

Parabhjeet Singh (PW-6) and Amrik Singh (PW-10) immediately after

the occurrence, recovery of knife pursuant to disclosure statement

under Section 27 of the Evidence Act, 1872, abscondence of the

appellant immediately after the occurrence and motive.

3. The testimonies of witnesses, namely, Devinder Singh (PW-12),

Parabhjeet Singh (PW-6) and Amrik Singh (PW-10), have to be read

along with the testimonies of Tejinder Singh (PW-9) and Santok Singh

(PW-11), brother and father of the deceased. While examining the said

testimonies, we have to keep in mind that the MLC Ex.PW2/A was

recorded at 10.40 p.m. on 15th October, 1997, nearly one hour after the

occurrence. The hospital in question, i.e. RML Hospital, was situated

at some distance from the place of occurrence, which as noted above,

was in West Patel Nagar.

4. Devinder Singh (PW-12) has deposed that on 15th October, 1997

at about 9.45 pm while returning from West Patel Nagar after buying

ice-cream and upon passing Lal Mandir, Baljit Nagar, he spotted the

appellant armed with a knife, chasing deceased Baljit Singh. Baljit

Singh solicited PW-12 to save him from the appellant. But when

PW-12 tried to intervene, the appellant tried to assault him. Appellant

gave 2-3 knife blows to Baljit Singh. PW-12 escaped and ran towards

the house of Baljit Singh and informed his father and brother.

Thereafter, he went to his own house and returned to the spot along

with his father. He was told that Baljit Singh had been taken to a

hospital by Amrik Singh. Thereupon, he along with his father went to

the hospital. Father of Baljit Singh had also reached the hospital. Baljit

Singh had been taken to Ward No.12, where he was declared dead after

sometime. On the basis of statement (Ex.PW1/A) made by PW-12,

rukka was prepared and the FIR in question was registered.

5. The FIR in question was registered at about 12.50 a.m. on 16 th

October, 1997 and this fact was recorded in DD No.46A. The said FIR

(Ex.PW1/B) was proved by Head Constable Rohtas Singh (PW-1), in

which name of the appellant as perpetrator stands recorded. The name

of the appellant also finds mention in DD No.40A (Ex. PW13/A),

which was recorded earlier at 11.15 pm on 15th October, 1997 as per

which the appellant had assaulted Baljit Singh with knife. The DD entry

records that as per the information provided by the PCR Van, Gurdeep

Singh had stabbed Baljit Singh at Road No.20, Janta Park, Baljit Nagar.

6. We have perused the cross-examination of Devinder Singh (PW-

12), but do not think that there is any ground or reason to disbelieve or

not to accept his testimony/version. PW-12‟s conduct cannot be

categorized as unnatural or suspicious. Trial court has rightly observed

that it was natural and normal for PW-12 to first go to the residence of

the deceased and inform relatives/parents as they would have taken

further action be it ensuring prompt and immediate medical aid or

informing the police. As noted above, DD No.40A (Ex.PW13/A) was

registered at 11.15 p.m. on 15th October, 1997, which contained name

of the appellant as the wrong doer. The said DD entry was made

within half an hour of the occurrence. PW-12 also made the

complaint, which became subject matter of the FIR being Ex.PW-1/A,

which was recorded shortly after midnight on 16th October, 1997.

7. Statement of Devinder Singh (PW12) has been fully corroborated

by the statements of Tejinder Singh (PW9) and Santok Singh (PW11),

brother and father of the deceased, Baljeet Singh. They have deposed

that their neighbour Devender Singh (PW12) had come to their house

and informed that appellant Gurdeep Singh had assaulted Baljeet Singh

with a knife near Lal Mandir. Santok Singh (PW11) had then informed

the police on telephone no. 100 and rushed to the place of occurrence

but were informed that Baljeet Singh had been taken to the hospital by

Amrik Singh/sikh boy. There cannot be any doubt about the place of

occurrence where the incident had taken place, in view of the

testimonies of PW9, PW11, PW12 and as noticed below Amrik Singh

(PW10). In addition, we also have the photographs which were taken

by Const. Kharodi Lal (PW7), which were marked P1 to P5.

Deposition of police officers SHO SK Sharma (PW18) and SI Manjer

Khan (PW20) also affirms the said factual position.

8. We shall now refer to the statement of Parabhjeet Singh (PW-6),

who has stated that at about 10 p.m. on 15 th October, 1997, he was

walking home after completing his duty. When he reached Lal Mandir

STD booth, he saw Baljit Singh lying injured on the ground. Upon

inquiry, Baljit Singh stated that the appellant had injured him with a

knife. Baljit was bleeding profusely. Baljit Singh asked PW-6 to

arrange for a vehicle to take him to hospital. He went to West Patel

Nagar to arrange for a vehicle and came back with a TSR, but did not

find Baljit Singh at the said spot. Persons gathered there informed him

that a Sikh boy had taken Baljit Singh to the hospital on a scooter.

When PW-6 reached the hospital, he was informed that Baljit Singh

had expired. In cross-examination, PW-6 has deposed that it took

about 10-15 minutes to arrive with the TSR at the spot. He accepted

that the deceased was his cousin and also the fact that he did not

inform the police but stated when he had reached the hospital; he was

informed about the death of the injured. His house was situated near

the place of incident.

9. Learned counsel for the appellant has submitted that the

testimony of Parabhjeet Singh (PW6) is suspicious and is unbelievable

as in a busy market place, he could have easily requisitioned a TSR or

otherwise contacted father and brother of the deceased. The assertion

that he took 10-15 minutes to get TSR, it is submitted, creates doubt

whether PW6 had spoken to the deceased and, therefore, he is a

planted witness, who after the occurrence had reached the hospital

along with Tejinder Singh (PW9) and Santok Singh (PW11). The

aforesaid submission creates some doubt about the testimony of

Parabhjeet Singh (PW6) as to whether he had spoken to the deceased

immediately after the occurrence or had gone to the hospital as his

house was nearby. In view of the said doubt, we are inclined to

disregard the "dying declaration‟ made by the deceased Baljeet Singh

to Parabhjeet Singh but the aforesaid reasoning or the grounds would

not apply to Amrik Singh (PW10).

10. Amrik Singh (PW10) was not related to the deceased and was

unconnected with the family of the deceased and the appellant. He

has deposed that at about 10 PM on 16 th October, 1997, when he was

going to his house from his workshop and when he reached the STD

Booth, Mandir Marg, he spotted Happy lying on the road in a pool of

blood. On enquiry, Happy informed him that Deepu had assaulted him

but he did not tell him the weapon with which he was assaulted.

Happy requested to be taken to a hospital. As Amrik Singh (PW10)

was on a two wheeler, he made him sit on the said scooter to take him

to Willingdon (also known as RML) Hospital. However, when they

reached Patel Nagar area, the injured expressed his inability to sit on

the scooter. He accepted that the family of the deceased i.e. his father,

brother etc. had come to the hospital at the same time. At the same

time, he has stated that he came to know the next day in the morning

that his father and brother were in the hospital. PW10 was cross-

examined by the Addl. Public Prosecutor. He reiterated that the injured

had not told him that the injury was caused by knife nor did PW10

make any statement to the police that the doctor had informed him

about the death of Baljeet Singh.

11. In his cross-examination, Amrik Singh (PW10) accepted that

Baljeet Singh was lying near the STD booth which used to remain

open for 24 hours, and that he had not used the booth to contact

anyone. Baljeet was semi-conscious and third persons had helped him

to sit on the scooter. His clothes were smeared with blood but he

washed them after the incident and police had not taken his clothes in

their possession. Police had not met him in the hospital. Police met

him in his house in the night when he came back to his house from the

hospital. He did not know the name of the driver of the TSR. We

believe and accept that PW10 is a credible and truthful witness. He

was a law abiding citizen and had come forward and taken the

deceased to the hospital. A factual position, PW-10 had accepted. He

had occasion to speak to the deceased who informed him that Deepu,

i.e. the appellant, had assaulted him. It is an admitted position that the

deceased Baljeet Singh was taken to the hospital. Tejinder Singh

(PW9) and Santok Singh (PW11) have categorically stated that they

had not taken Baljeet Singh to the hospital. PW9 had stated that one

Amrik Singh (PW-10) had taken his brother to the hospital and they

came to know about the fact at the spot of occurrence. PW9 had also

stated that he did not meet Amrik Singh in the hospital on 15th October,

1997. PW11 may have stated to the contrary and averred that he had

spoken to Amrik Singh in the hospital and had seen Amrik Singh for 4-

5 minutes in the hospital. But this difference in the statement of

Santok Singh (PW11) and Tejinder Singh (PW9) and the factum that

the meeting was denied by Tejinder Singh (PW9), cannot be a ground

or reason to disbelieve that Amrik Singh (PW10) had taken the

deceased Baljit Singh to RML Hospital. Santok Singh (PW11) was the

father and had stated that he had came to know that one Sikh boy had

taken his son to the Willingdon hospital and that emergency wing of

the hospital informed them that Baljeet Singh had been admitted in an

injured condition. Within few minutes he came to know that Baljeet

Singh was declared as „brought dead‟. This minor discrepancy in the

court statements does not merit discarding the police version or the

statements on material aspects by Amrik Singh (PW10) and affirmed

by Santok Singh (PW11) and Tejinder Singh (PW9).

12. It was submitted that the testimony of Amrik Singh (PW10)

should be disbelieved as his name was not indicated or mentioned as

the person who brought the deceased in the hospital in the MLC (Ex.

PW2/A). It is correct that words "father and brother" have been

mentioned under the "name of relative or friend" but some words "sikh

... singh have been scribbled and it is difficult to decipher the word

written in the middle. The MLC does not mention or state that Santok

Singh or brother of the deceased had brought the deceased to the

hospital. For this reason, we do not think it to be right or correct to

discard the deposition of Amrik Singh (PW10) and hold that he had

lied in the court on the fact that he had taken the deceased to

the hospital and that deceased had told him that Deepu i.e. the

appellant had assaulted him. PW10 had acted with virtuosity but his

hesitation to come forward and record his name in the MLC is

apparent. It would have resulted in questions being raised and PW10

being subjected to interrogation.

13. On the question of motive, there is evidence in form of Kalandra

under Section 107/151 Cr.P.C. (Ex. PW16/A) to show and establish

earlier disputes between the deceased and the appellant. This factum

was deposed to and affirmed by Tejinder Singh (PW9) and Santok

Singh (PW11). They have also stated that the appellant had demanded

money from the deceased and when denied, earlier also the appellant

had attacked the deceased. Thus, there was a past history of enmity.

Infact, PW11 had deposed that the appellant was a distant relative of

the deceased.

14. HC Rajpal (PW16) had stated in the court that SDM had

directed the appellant on 30th October, 1997 to furnish bond, in the

amount of Rs.3000/- with one surety, for one year. Appellant had been

challaned under Section 107/151 Cr.P.C. vide DD No. 13A dated 8th

March, 1996.

15. The appellant initially was not traceable and subsequently

surrendered on 5th January, 1997. On 16th November, 1997, he made a

disclosure statement (Ex. PW17/A) as deposed to by HC Anand Kumar

(PW17) and Insp. S.K. Sharma (PW18). Pursuant thereto one knife

(chhuri) was recovered behind the bushes of the hanging garden of

Shakti Mandir, West Patel Nagar. The knife was 31 cm in length.

Blade was 22 cm and dasta was 9 cm in length. The same was seized

vide Ex. PW17/B and identified by PW17 as P-1. Similar statement

has been made by Insp. S.K. Sharma (PW18). As per FSL report (Ex.

PW18/J and K) human blood was detected on the metallic dagger. The

blood group could not be ascertained as there was no reaction.

Similarly human blood was detected on the clothes of the deceased but

the blood group could not be ascertained as there was no reaction and

to this extent the result remained inconclusive. The sketch of the

dagger has been marked PW5/B and Dr. K. Goel (PW5) has deposed

that on 24th November, 1997, a sealed parcel was produced by the

police regarding opinion on the weapon of offence and on examination,

he had opined that a weapon of similar type could cause injuries No. 1

to 3 mentioned in his report. The opinion regarding the weapon was

marked Ex. PW5/B.

16. The Trial Court has rightly observed that in view of the

categorical statements made by the witnesses Devinder Singh (PW12)

and Amrik Singh (PW10), failure of the Investigating Officer to

ascertain and convince other public witnesses who may have seen the

occurrence to depose, is inconsequential and immaterial. It is possible

that other persons may have seen the occurrence but the Court cannot

be oblivious to the unwillingness and reluctance of the public to

depose, after seeing the brutal and violent attack, for fear and personal

safety. Moreover, it is not the number or quantum of witnesses, which

determines whether the case is proved or established but the quality of

the depositions and credibility and trustworthiness attached, which is

the determinative factor. Depositions of the material witnesses have to

be scrutinized to ascertain whether they are reliable and have stated the

truth. Statements of relatives cannot be discarded on the ground that

they are interested witnesses. Their statements have to be tested and

scrutinized with care and caution to rule out possibility of false

implication specially where multiple accused are described as

perpetrators. In the present case there is only one accused i.e. the

appellant and having examined the statements of Devinder Singh

(PW12) and Amrik Singh (PW10) (Amrik Singh is not a relative but a

third person), we are satisfied that their depositions should be accepted.

We are also satisfied that deposition of Tejinder Singh (PW9) and

Santok Singh (PW11) on all material aspects, supports the prosecution

version.

17. It would be appropriate to record that homicidal death of Baljit

Singh due to knife blows has been proved beyond reasonable doubt.

Dr. P.K. Dass, (PW-2) CMO, RML Hospital has deposed that on 15th

October, 1997 at about 10.40 p.m. deceased Baljit Singh was admitted

to the hospital with history of alleged assault. The patient was

unconscious, unresponsive to painful stimuli, pulse was feeble, blood

pressure was not recordable etc. He had a lacerated wound on the right

arm anteriorly, 7cmX3cm spindle spread. A clean incised wound

3cmX2cm spindles stake, right rendal region and a 3xmX1cn spindle

shape on the right side of the chest. PW-2 proved his report as

Ex.PW2/A and opined that injuries were caused by a sharp weapon.

On court question, he accepted that there could be two types of

weapons. He further opined that due to injuries in question instant

death was possible. Injury No.1 was caused by a blunt weapon,

whereas injury Nos.2 and 3 were due to sharp edged weapon.

18. The post mortem report was proved by Dr. K. Goel (PW-5). He

had conducted post mortem on the body of Baljit Singh on 16th

October, 1997 and had noticed the following external injuries:-

"1. Incised penetrating wound 3 cm × 1 cm transversally placed just below right nipple. Spindle shape with upper margin was shelved on the cost of other. There is bruising in area 5 cm × 2.5 cm from the lower margin of the wound.

2. Incised penetrating wound 3.5 cm × 1.5 cm vertically placed over right side abdomen, just below the lower costal margin at posterior auxiliary line, spindle shape.

3. Incised wound of size 9 cm × 4 cm on middle of right arm.

4. Few small abrasions over right side of forehead and more right lateral canthus in area 5 cm. × 4 cm.

5. Abrasion: 4 cm × 2 ½ cm. over right lateral aspects of abdomen about 3 cm. below injury no.2."

19. Dr. K. Goel (PW-5) had opined that all injuries were ante

mortem in nature. Injuries No.1 to 3 were caused by a sharp pointed

cutting flat weapon, but injuries No. 4 and 5 were caused by blunt

force and were possible due to scuffle by friction against hard surface.

Injury No.2 was sufficient to cause death in ordinary course of nature

and the cause of death was haemorrhagic shock consequent to the

injury to liver. PW-5 had also examined the alleged weapon of offence

and opined that injuries No.1, 2 and 3 could have been caused by the

said weapon. He has proved the post mortem report marked Ex.PW5/A

and his opinion on the weapon was marked Ex.PW5/B. He came to the

conclusion that the injuries were fresh/recent.

20. We have examined the statement of the appellant under Section

313 Cr.P.C., wherein the appellant has stated that he was falsely

implicated because of enmity between the family of the deceased and

his family. His statement under Section 313 Cr.P.C. was recorded for

the second time on the same day i.e. 23 rd December, 1998 and in

response to last question, the appellant had stated that the witnesses

Devinder Singh (PW12), Amrik Singh (PW10) and Parabhjeet Singh

(PW6) were interested witnesses and had deposed falsely at the

instance of father and brother of the deceased Baljeet Singh.

Appellant had also produced one defence witness Kulbir Singh (DW1)

who had stated that Parabhjeet Singh was nephew of Santok Singh and

claimed that Parabhjeet Singh was a man of criminal nature but he did

not know any person by the name of Davender @ Pappu. He knew

one Sardar Ram Singh Bhatti as he was also a man of criminal nature.

Relations between Santok Singh and Ram Singh were cordial as they

were member of Gurudwara Prabandhak Committee. He claimed that

the appellant was not a man of criminal nature and was not involved in

snatching and extortion of money. He was earlier with DTC and

mostly remained at home. Evidence of DW1 does not in any way help

the appellant or create doubt about the prosecution version. DW1 was

not aware whether the appellant has been challaned under Section

107/151 Cr.P.C. etc. and he had stated that he was out of station on the

date of offence.

21. In view of the aforesaid discussion, we do not find any merit in

the present appeal and the same is dismissed. We affirm the findings

of the Trial Court. We also confirm the order on sentence. Appellant

was released on bail in view of the suspension of sentence vide order

dated 6th November, 2013. The appellant will surrender within a

period of one month to undergo the remaining sentence. In case he

does not surrender within the said period, Trial Court will take steps to

detain and arrest the appellant for undergoing the remaining sentence.

The appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE APRIL 03, 2014 NA/VKR/kkb