Resham Singh vs State
2014 Latest Caselaw 451 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRIMINAL APPEAL 324/1998

                                      Reserved on: 9th January, 2014
%                                  Date of Decision: 24th January, 2014

       RESHAM SINGH                   .... Appellant
                Through Mr. Dinesh Mathur, Sr. Advocate with
                       Mr. M.L. Yadav, Advocate.

                          versus

       STATE                              .... Respondent
                   Through Ms. Rajdipa Behura, APP with
                          SI Sammarpal Singh, P.S Kalkaji.

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

SANJIV KHANNA, J.

Appellant Resham Singh by the impugned judgment dated 18 th

July, 1998 stands convicted under Sections 302 read with Section 34

and 394 of the Indian Penal Code, 1860 (IPC, for short). By

impugned order of sentence dated 20th July, 1998, he has been

convicted for imprisonment for life and fine of Rs.15,000/-, in default

he has to undergo simple imprisonment for four months for the

offence under Section 302/34 IPC and rigorous imprisonment for five

years and a fine of Rs.5,000/- and in default, he has to undergo

simple imprisonment for three months for the offence under

Section 394 IPC. Rs.15,000/- have been directed to be paid to the

widow of the deceased, Banta Singh.

2. Appellant Resham Singh was tried along with Om Prakash,

Suresh Pal and Ramesh Chand for the offences under Sections

302/392/ 397/394/398/449/460/34 IPC and Sections 25-26/54/59 of

the Arms Act, 1959 (Arms Act, for short). Co-accused Om Prakash

has died and the trial proceedings against him stand abated. Suresh

Pal absconded during the course of trial, whereas Ramesh Chand was

discharged.

3. Learned counsel for the appellant has made the following

submissions:

(i) Evidence of the two eye-witnesses Kuldeep Kaur (PW2), wife

of the deceased and Balvinder Kaur (PW4) daughter of the deceased

should be disbelieved as they were not eye-witnesses to the crime.

(ii) The appellant should be acquitted as he was not in Delhi at the

time of occurrence on 15th October, 1979 in view of the defence

evidence which has been wrongly disbelieved.

(iii) The appellant has been acquitted from the charges under

Section 449 read with Section 34 IPC and under the Arms Act, 1959.

Therefore, there is a contradiction in the impugned judgment.

Conviction under Section 302/34 and 394 therefore cannot be

sustained.

(iv) The appellant was not questioned on the alleged firing under

Section 313 of the Code of Criminal Procedure, 1973 (Code, for

short) and there were discrepancies in the questions put to the

appellant, which were contrary to the case set out in the charge-sheet.

4. We are inclined to accept the testimony of the two eye-

witnesses Kuldeep Kaur (PW2) and Balvinder Kaur (PW4), wife and

daughter of the deceased, who are natural witnesses and have deposed

in seriatim as the occurrence in which Banta Singh lost his life on 15 th

October, 1979 at his residence A-59 Chittaranjan Park, New Delhi

between 9.00 to 9.30 PM. Presence of PW2 and PW4 in the house as

deposed to by both of them at the time of the occurrence, cannot

really be challenged and has been proved beyond doubt. Kuldeep

Kaur (PW2) has stated that on 15th October, 1979, she was present in

the house along with her four children, when at 8.45 PM her husband

came back and was served with a glass of water in the drawing room,

while he was sitting on the sofa. The appellant Resham Singh came

and sat down on the same sofa in the drawing room. A third person

also came in and sat down. At that time Banta Singh took out money

consisting of two bundles of 100 rupee notes to hand them over to

Kuldeep Kaur (PW2), when Resham Singh snatched the bundles from

her husband's hands. There were exchange of words between Banta

Singh and Resham Singh. Banta Singh at that time was doing

business in the name and style of Gulf Recruiting Agency at Nehru

Place. Thereupon, Banta Singh who was carrying a revolver with

him, started taking out the same but the revolver was snatched by

Resham Singh and his companion, whom PW2 identified as Om

Prakash. At that time the third person who was standing on the door

and was armed with a revolver, pointed the same towards her

husband. Her husband looked on both sides and saw the revolvers

being pointed at him. Resham Singh then shouted at the man

standing near the door to shoot. A shot was fired by the third person

towards the chandelier and one bulb broke and fell down.

Thereafter, the person standing at the door took another shot, which

struck her husband Banta Singh on his chest. Banta Singh started

going down to a sitting posture. Resham Singh fired another shot at

Banta Singh and the man standing at the door too fired a shot. These

shots struck her husband in the chest and stomach. PW2 recognized

the third person as Suresh Pal who was present in the Court but had

subsequently absconded. The three accused including Resham Singh

fled away from the spot. Resham Singh took the money and revolver

of her husband. The revolver with which Suresh fired was also taken

away.

5. Balvinder Kaur (PW4) in respect of occurrence has deposed on

similar lines and affirmed presence of PW2 in the house. She has

stated that her father after coming back was sitting on a sofa and had

some water given in a tumbler by her mother. Her father took out

money and wanted to give the money her mother for safe custody,

when Resham Singh snatched the currency notes. Banta Singh

objected and asked why the money was snatched, as Resham Singh

already owed a large amount to Banta Singh. Resham Singh was

accompanied by another person who was sitting on the sofa and a

third person was standing at the entrance of drawing room in the

gallery. Third person fired a short at the chandelier and bulb of the

chandelier broke and fell on the floor. Resham Singh asked the said

person to fire at Banta Singh. PW4 has stated that Resham Singh

thereupon snatched the revolver from her father and fired three shots

with that revolver at Banta Singh. Thereupon three of them left the

place and had taken away with them her father's revolver and

currency notes.

6. At this stage, it may be relevant to state that Balvinder Kaur

(PW4) was a minor aged about 7 years at the time of occurrence and

about 11 years when her statement was recorded in the Court on 6th

July, 1983 and 19th August, 1983. The Trial Court had recorded

satisfaction as to the ability and competency of PW-4 to answer the

questions. There is a minor discrepancy between the testimony of

PW4 Balvinder Kaur and PW2 Kuldeep Kaur as to who had fired the

shot and which revolver was used. PW4 in her testimony had stated

that revolver of her father was used and three shots were fired by the

appellant Resham Singh, whereas PW2 Kuldeep Kaur had stated that

two shots were fired by the person standing at the door who was

identified as Suresh Pal and one shot was fired by Resham Singh

from the revolver of the deceased Banta Singh. We do not think that

the testimonies of the two witnesses in view of the said discrepancies

amounts to two different versions denting their evidence and

therefore testimonies of PW-2 and PW-4 should be disbelieved.

Kuldeep Kaur was aged about 26 years and the young wife lost her

husband and PW4 aged about 7 years at that time had seen her father

being shot dead in her own house. This minor difference can be and

should be ignored and does out dilute the prosecution's case that three

persons including Resham Singh had come and thereupon a revolver

was used to shoot down Banta Singh. It is also a fact that three

bullets were found in the body of Banta Singh, which corroborate that

Banta Singh had suffered three bullet wounds as deposed to and

stated by PW2 and PW4. The so called discrepancies pointed out by

the appellant in the present case are inconsequential and not relevant

as these do not create any doubt as to the presence of Resham Singh

at the place of occurrence and his involvement in the firing leading to

death of Banta Singh.

7. FIR No. 1499/79, P.S. Kalkaji was recorded at 11.00 PM on the

statement of PW2 (Rukka) marked as Ex. PW2/A. It is mentioned

on the rukka Ex. PW2/A that it was recorded at 10.30 PM. Rukka

reads as under:-

"To The Duty Officer, Police Station Kalkaji, New Delhi

It is officially submitted that I, the SI received the copy of report bearing No. 31 A, dated 15.10.79 regarding the information received on PCR that bullet was fired at A-59 Chittranjan Park, Near Savitri Cinema. I, alongwith Constable Sukhbir Singh No. 1273/SD reached the place of occurrence i.e. A-59 Chittranjan Park where SI Naval Singh alongwith other staff and Addl. DCP/SD and ACP/LN were present at the spot. The dead body of deceased Banta Singh (...sic...) was said to have been carried to AIIMS hospital by the Police. And SI Naval Singh was sent by ACP/LN alongwith the recoveries from the place of occurrence to Palam (...sic...). Kuldeep Kaur W/o Banta Singh who was present on the spot got her aforesaid statement recorded which was read over her and finding the same to be correct, she appended her signature on the same in English. And I attested the same. From the perusal of the aforesaid statement, prima facie, an offence punishable u/ss

302/392/34 of the IPC seems to have been committed. Therefore, this writing is being sent to the Police Station through Const. Sukhbir Singh No. 1273/SD for the registration of the case. After the registration of the case, I may please be intimated with its number and the photographers and the Crime team may be informed. I, the SI, am busy with the investigation alongwith other staff. The SHO is also present on the spot.

               Place of occurrence                : House No. A-59
               Chittranjan Park

               Date and time of occurrence       : 15.10.79 at 9.00
               P.M

Date and time of the dispatch of : 15.10.79 at 10.40 P.M the writing

Sd/- illegible (In English) SI, P.S Kalkaji 15.10.79"

8. It has also come on record that the deceased had a licenced

revolver and the same was missing after the crime. PW2 had also

deposed that soon after the occurrence she had received a telephone

call and had informed one Tyagi that her husband has been killed and

had given her address. She had gone upstairs and asked the lady of

the house to call the police as her husband was killed. Her telephone

was partially out of order, since she could not make outgoing calls but

could only receive incoming calls. Within 15 minutes the police and

the said person Tyagi along with another person arrived to their

house.

9. The said Tyagi had appeared as PW11 Varinder Kumar. He

had deposed that he had dialed telephone of Banta Singh from his

office and had spoken to PW2. At that time PW2 was crying and had

stated that she has been ruined. Thereafter, the phone got

disconnected and he went to the house of Banta Singh, where he met

Insp. Santosh Kumar who was present there. Banta Singh was lying

in an injured condition bleeding from his nose. He had taken Banta

Singh along with two police officers to AIIMS hospital, where he was

declared brought dead. Pieces of chandelier and two pieces of lead

bullets were taken into possession by the police vide seizure memo

PW11/A, which was signed by PW11. One bullet was recovered

lying outside the house and had been taken into possession.

10. Relying upon the CFSL report, it was submitted that PW2 had

wrongly deposed that one bullet was fired from the revolver of the

deceased. Similarly, it was stated that PW4 had wrongly deposed that

three bullets which hurt the deceased were fired from the revolver of

the deceased. This aspect has been discussed above in Paragraph 6.

Forensic report supports statements of PW-2 and PW-4 and the

prosecution case. The depositions of PW-2 and PW-4 cannot be

disbelieved for the said reason. CFSL report PW30/G dated 21.12.79

states that three .38 jacketted bullets were fired from a single standard

weapon. These bullets have been recovered from the body of the

deceased. No positive link for the fourth .38 fired jacket bullet could

be established. One .32 lead bullet which has been fired from .32

weapon was also recovered from the spot. Two lead pieces

belonging to .32 fired bullet were recovered. There were three holes

on the shirt and the vest worn by the deceased due to passage of the

bullets. Subsequently one .38 Smith & Wesson revolver seized in

FIR No. 724/725/726 dated 2nd November, 1979 P.S. Gate Meerut

was sent for forensic examination and report dated 24 th January, 1980

Ex. PW30/F was received. As per the said report, the three bullets

had been fired from the said .38 revolver. However, no positive link

of the fourth .38 bullet as mentioned in the earlier report, could be

established.

11. PW23 Ram Kishan, Reader to City Magistrate Rohtak,

Haryana, proved on record entry dated 18th September, 1978 for one

revolver licence issued to Banta Singh. The said revolver was NP8-

.32 bore, which was duly intimated after purchase to the office by

Banta Singh. The entry was marked PW23/A. As stated above one

.32 lead bullet was also recovered from the spot as per forensic report

Ex. PW30/G. This corroborates statements made by PW-2 and PW-4

that .32 revolver of deceased Banta Singh was fired.

12. A .38 revolver was seized on 2nd November, 1979 in the FIR

611/79 registered at P.S. Delhi Gate, Meerut from Om Prakash. As

per statement of SI L.S. Yadav, Meerut, U.P. (PW25), the said case

was under Section 307 and 25 of the Arms Act and was pending.

Recovery of the said .38 revolver was pursuant to the leads given

during interrogation of Resham Singh, resulting in formal arrest of

Om Prakash who was already confined in District Jail, Meerut, UP

and from whose custody .38 revolver was seized by the UP Police.

Subsequent forensic examination as per forensic reports Ex.PW30/G

and Ex.PW30/F, the .38 revolver which was seized from Om Prakash

was used for firing three .38 fired bullet jackets at the spot.

13. SI Mittar Sain (PW30) has deposed that he was posted as SI

Police Station Kalkaji when FIR in question was registered and had

inspected the spot and taken into custody/seized the bullets and other

evidence including glass pieces of the chandelier etc. Appellant

Resham Singh was arrested by Insp. Santosh Kumar on 13 th

November, 1979 and was interrogated by Insp. Santosh Kumar in his

presence when he made disclosure statement accepting that recovery

of cash could be made from his house at Jalota Gali, Phagwara

pursuant to which recovery of Rs.7000/- in cash in currency of

Rs.100 each was made and seized and subsequently produced in the

court and marked Ex. P10/1 to 70. Subsequently they received

information regarding arrest of Om Prakash and on 14th November,

1979 he accompanied by Insp. Santosh Kumar had gone to Meerut

and the revolver had been recovered. He had applied for transfer and

judicial custody of Om Prakash. Subsequently, on 9th January, 1980,

a sealed parcel i.e. the revolver, was received from Malkhana of P.S.

Meerut and deposited in Malkhana of P.S. Kalkaji and CFSL reports

Ex.PW30/G and F were obtained.

14. Insp. Santosh Kumar had appeared as PW31 and has deposed

on identical lines and had stated that they had gone to Meerut, Modi

Nagar in search of Om Prakash and in fact the appellant and Om

Prakash had examined Dr. Sarohi of Modi Nagar after the incident of

15th October, 1979. Further, Om Prakash had been confined in

District Jail, Meerut in another case. He had moved an application

for transfer of revolver suspecting that the same might have been used

in this case and for production of Om Prakash in this case. On

receipt of the revolver, the same was sent for CFSL examination and

reports were received. The applications etc. moved before the

Magistrate, Meerut have been proved on record.

15. PW2 and PW4 knew Resham Singh but, did not know the other

perpetrators before the date of occurrence. Om Prakash was

implicated and identified only on the basis of interrogation and leads

given by Resham Singh. Police investigation pursuant to arrest of

Resham Singh, lead to Om Prakash and recovery of .38 bore revolver

which was used to fire the bullets which took the life of deceased

Banta Singh. The said revolver was seized from Om Prakash by

Meerut police when he was arrested in connection with other case.

This corroborates and affirms the statements of PW2 and PW4. CFSL

reports Ex. PW30/G and PW30/F have been proved beyond doubt

that the said revolver was used to fire 3 bullets which took life of

Banta Singh. It is also proved on record that one bullet was fired

from .32 revolver, which went missing after the occurrence. As per

PW2 and PW4 the said revolver was taken away by Resham Singh

and others. Thus, forensic evidence proves that two revolvers were

fired or used. Thus confirming the deposition of the two eye-

witnesses.

16. Presence of PW4 Balvinder Kaur was deposed to by PW2

Kuldeep Kaur. No doubt Balvinder Kaur and her sister Harvinder

Kaur were studying in village Jawal Bachuuvan District, Punjab but

PW2 has deposed that they were in Delhi at the time of occurrence.

PW2 was repeatedly questioned and cross-examined on the said

aspect but there is no reason to disbelieve and not accept PW2's

version. PW4 has also stated to the same effect. The defence

witness DW2 Budhu Ram, JVT Teacher, Govt. Primary School had

produce school attendance record of PW4. In his cross-examination

he has admitted that Balvinder Kaur was on leave from 10th October

to 19th October, 1979. As noticed above, the date of occurrence is

15th October, 1979; hence presence of PW-4 in Delhi cannot be

doubted and disputed.

17. Defence witness DW1, who also appeared as DW3 Prem

Kumar and DW4 Const. Jai Prakash Sharma do not establish and

prove alibi of Resham Singh that he was in Phagwara, Punjab at

about 9.00 PM on 15th October, 1979 i.e. time of occurrence. DW1

Prem Kumar, Manager of Bank of Baroda, Phagwara Branch had

proved on record, debit voucher bearing signature of one Resham

Singh and marked DW1/A. The account of Resham Singh was

debited by Rs.15,000/- on 15th October, 1979 and also bears

signatures of the account holder as per Ex. DW3/A. The statement

does not show that Resham Singh did not travel and come to Delhi on

15th October, 1979 after operating the bank account or after signing

the debit voucher. As already noticed above, the occurrence had

happened at about 9.00 PM on 15th October, 1979. The Court can

take judicial notice that distance between Phagwara and Delhi is

about 350 kms and one can travel from Phagwara to Delhi in about

6/7 hours.

18. The contention of the appellant that his questioning under

Section 313 Cr.P.C. is defective and the relevant questions were not

put to him or the case of the prosecution in the charge-sheet and the

final judgment is drastically altered, has to be rejected. We have gone

through the questions 4, 7, 8, 9 and 10 but do not find any ground or

reason to upset the judgment of the conviction on the said reason.

PW2 and PW4 had seen their husband/father being shot dead in front

of their eyes. Two revolvers were used and four shots were fired. In

such circumstances, a child witness such as PW4 and young wife in

her 20s may not have been able to fully recollect and recapitulate, the

revolver actually used in the firing and who had revolver in their

hands at the time of firing. Their evidence has to be read as a whole

to understand and decide whether or not to accept their version.

Some variation and differences are bound to arise and do not reflect

or adversely impact their testimonies but rather disclose an honest

deposition and statement. The appellant was represented by leading

criminal counsels and the cross-examination of PW2 and PW4 and

other witnesses show that they were grilled and thoroughly

questioned. No prejudice has been caused or even highlighted during

the arguments.

19. Similarly, the contention that the appellant has been acquitted

for the offence under Section 449 IPC, does not justify an order of

acquittal for offences under Section 302/34 and 394 IPC. There is

ample evidence to show that the appellant knew the deceased and that

they were associated in business. PW2 had stated that both of them

were partners. PW29 S.P. Singh had stated that he knew the

appellant Resham Singh who used to work in Abu Dhabi and also had

an office in Delhi and used to send manpower to Abu Dhabi. He also

knew deceased Banta Singh who was supplying manpower to Abu

Dhabi but he did not accept that he was aware of the relationship or

link between Resham Singh and Banta Singh. However, the

statement of PW29 shows that Resham Singh and Banta Singh were

involved in similar business/trade. Charge under the Arms Act was

not framed by the trial court as .32 bore revolver, which was snatched

and taken away was not seized or could not be recovered. Discharge

was, therefore, for technical reasons and this cannot be a ground to

acquit the appellant.

20. In view of the above, we do not find any merit in the appeal

against conviction and the same is dismissed. Order of sentence is

also maintained. As the appellant is on bail on suspension of

sentence, he will surrender within one month. Copy of this judgment

will be sent to trial court and in case the appellant does not surrender

within the said time, the trial court will take appropriate steps to arrest

him and to undergo the remaining sentence.

(SANJIV KHANNA) JUDGE

(G. P. MITTAL) JUDGE JANUARY 24th, 2014 kkb