Dilbagh Singh vs State
2014 Latest Caselaw 2422 Del

*                       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                            Crl. Appeal No. 83/2014

                                               Reserved on: 29th April, 2014
%                                           Date of Decision: 13th May, 2014

           DILBAGH SINGH                                      ....Appellant
                Through          Mr. V. Madhukar, Mr. Sachin Dev Sharma
                                 and Ms. Anita Cowshish, Advocates.

                                Versus
           STATE                                             ...Respondent
                      Through    Ms. Rajdipa Behura, APP.

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

SANJIV KHANNA, J.

The appellant stands convicted for murder of Karamjeet under

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

impugned judgment dated 8th June, 2012 in Sessions Case No. 9/11

arising out of FIR No. 339/2010, P.S. K.N.K. Marg. By order on

sentence dated 27th July, 2012, the appellant has been sentenced to

rigorous imprisonment for life, pay fine of Rs.10,000/-, and in

default/failure to pay fine undergo rigorous imprisonment for six

months. Benefit of Section 428 Cr.P.C. has been granted.

2. The impugned judgment/prosecution case primarily relies

upon extra judicial confession made by the appellant before father,

mother and brother of the deceased Karamjeet, namely Charanjeet

Singh (PW3), Surjeet Kaur (PW4) and Paramjeet (PW5). It is claimed

that Karpal Singh (PW8) and Surjeet Kaur @ Rita (PW10) were

present at that time and had heard the appellant making the

confession. Prosecution relies upon the principle of last seen and on

the said aspect reference is made to the testimony of Kulwant Singh

(PW6).

3. Surjeet Kaur @ Rita (PW10) did not substantially support the

prosecution case on the extra judicial confession. PW10 accepted

that she was/is related to the appellant and had met appellant at

about 9.00 PM on 21st October, 2010 outside the house of the

deceased after Karamjeet's body was recovered from Haiderpur

Nahar. The appellant had requested PW10 to call mother of the

deceased Karamjeet and told her that he would pay Rs.2,000/- to

them (the parents) as he had quarrelled with Karamjeet. The

appellant was in perplexed state. PW10 was cross-examined by the

Public Prosecutor but denied suggestions on the extra judicial

confession. What is apparent from the statement of PW10, is that

the appellant had told Surjeet Kaur (PW4) mother of the deceased

that he would pay Rs.2,000/- to them as he had quarrelled with the

deceased. He neither accepted nor stated that he had murdered or

injured the deceased. It is further stated by PW10 that the appellant

was in perplexed state or condition at that time i.e. at about 9.00 PM

on 21st October, 2010. On the same day at about 5 P.M. body of

Karamjeet had been recovered from Haiderpur Nahar. The

appellant knew the deceased and was a neighbour, therefore, the

assertion that the appellant was perplexed and had offered

Rs.2000/- does not appear to be incriminating circumstance

individually and by itself.

4. Charanjeet Singh (PW3), father of the deceased claimed and

testified that Karamjeet used to assist him in welding at his shop

situated at Sector 16, Rohini. On 20th October, 2010, appellant who

was residing in his neighbourhood had come to his house and had

stated that he had murdered his son Karamjeet after giving him

danda blows and then thrown his dead body in a drain. PW3 later

learnt about recovery of dead body of his son from the police. PW3

was cross-examined by the Additional Public Prosecutor wherein he

accepted as correct that the appellant had come to their house in

search of his son Karamjeet i.e. the deceased. He had a danda in his

hand and thereafter when the dead body of his son was found, the

appellant tendered apology for murdering Karamjeet. The appellant

gave them an option to either get him punished or accept Rs.2000/-

for his son's (Karamjeet) cremation. PW3 declined and did not

accept money. Trial Court has made a specific observation that PW3

appeared to be a person of low intelligence. PW3 was not cross-

examined.

5. Surjeet Kaur (PW4) mother of the deceased, on the other

hand claimed that in the morning on 18th October, 2010, the

appellant who was residing in their neighbourhood had come to

their house with a danda and enquired of Karamjeet to which PW4

had replied that Karamjeet was downstairs. On that day i.e. 18th

October, 2010, Karamjeet did not return. The very next day i.e. on

19th October, 2010, PW4 went to the house of the appellant and

enquired about her son but the appellant expressed ignorance.

When PW4 warned that she would go to the police station to lodge a

report, the appellant had advised her to lodge a missing person's

report. After two days, Karamjeet's dead body was recovered from

Haiderpur Nahar. PW4 claimed that thereafter the appellant had

come to their house with a PCR van and told them that he had come

with them for his safety. PW4 asserted that the appellant told her

that he was the culprit and he could be either punished or a

panchayat could be held and even offered to pay Rs.2000/- for the

cremation of their son, which they refused to accept. PW4 was

cross-examined but has reiterated that on 18th October, 2010 in the

morning the appellant had come to their house with a danda and

had enquired about the deceased. Thereafter deceased Karamjeet

did not return. In the cross-examination, she was confronted with

certain portions of her statement under Section 161 Cr.P.C. ( Ex.

PW4/DA). She accepted as correct that it was not mentioned in Ex.

PW4/DA that the appellant had come to their residence along with

PCR Van and stated that they had come for his safety. In the

deposition recorded on 14th November, 2011, PW4 has stated that

the appellant had called No. 100 for his safety, when he had come to

their residence. She accepted as correct that she had no knowledge

of any type of dealing/deal between her deceased son Karamjeet

and the accused. She denied that the deceased was a drug or liquor

addict. She has admitted that prior to 20th October, 2010, no

complaint was filed that her son was missing. Her statement was

recorded by the police on 1st November, 2010 and before the said

date no policeman had come to her residence for making enquiry.

As per the police version, statements of Charanjeet Singh (PW3),

Paramjeet (PW5) and Karpal Singh (PW8) under Section 161 Cr.P.C.

were recorded on 31st October, 2010.

6. Paramjeet (PW5) deposed that on 18th October, 2010 in the

morning, the appellant who was residing in the neighbourhood, had

come to their house and enquired about the deceased. Thereafter

PW5 left for his job. After two days, dead body of his brother

Karamjeet was found in Haiderpur Nahar and he had reached there

with his parents and identified body of his brother Karamjeet. On

the same night at about 12/1 AM, the appellant had come to their

house with a PCR and confessed before his mother in his presence

that he had given a danda blow on the head of the deceased, as a

result the deceased Karamjeet fell in Haiderpur Nahar. The appellant

accepted that he was responsible for the death of Karamjeet. The

appellant had stated that he could be punished or a panchayat

could be called and even offered Rs.2000/- for Karamjeet's cremation.

They refused to accept money. In the cross-examination, PW5

reiterated that the appellant had come to their house on 18th

October, 2010 with a danda and enquired about Karamjeet. He was

confronted with his statement made under Section 161 Cr.P.C. (Ex.

PW5/DA) on the said aspect as this fact was not recorded therein,

but PW5 did not change his stance. His statement that the

appellant had come at 12/1 AM with the PCR etc. was also not

specifically recorded in his statement under Section 161 Cr.P.C.

However, it was recorded that the appellant had met him and his

parents and stated "dear sister please forgive me for the wrong.

They may call panchayat or get him arrested". He reiterated that the

appellant had visited their house in the midnight on 20th October,

2010 (the date 20th October, 2010 appears to be an incorrect

recollection, of which no benefit can be given to the appellant as the

dead body was recovered on 21st October, 2010). PW5 stated that

his statements were recorded by the police on 21st October, 22nd

October and 31st October, 2010.

7. This brings us to the statement of Karpal Singh (PW8) who

claimed that he had come to the house of the deceased after being

informed about his murder/death. The appellant was standing near

the staircase of the house. PW8 had seen the appellant who looked

perplexed and confused and he was stating that he had given a

danda blow on the head of the deceased who had fallen down. The

appellant accepted his mistake and offered to call the biradari or to

hold a meeting in Gurudwara where any punishment could be given

to him. PW8, however, refused stating that he was no one to give

punishment. Appellant then offered to pay Rs.2000/- for the last

rites of the deceased, which was again refused. Appellant had

conjectured and suggested that they could implicate one Dalbir

Singh with whom there was litigation/dispute and that he would

support them. In the cross-examination, PW8 deposed that he

reached the house of the deceased Karamjeet at 6 - 6.15 PM and

parents of the deceased, their children and neighbours were

present. He noticed that the appellant was also present and had

confessed that he had given a danda blow as a result of which the

deceased fell down. Various portions of his statement under

Section 161 Cr.P.C. (Ex. PW8/A) like the appellant had not stated that

he had made a mistake, meeting of the panchayat could be held in a

Gurudwara etc. were confronted. Similarly in Ex. PW8/A, it was not

stated that the appellant wanted that Dalbir Singh to be implicated.

PW8 claimed that his statements by the police were recorded twice,

on 22nd October and 31st October, 2010.

8. Thus, in the present case, we find that Charanjeet Singh

(PW3), Surjeet Kaur (PW4), Paramjeet (PW5) - father, mother and

brother of the deceased and their relative Karpal Singh (PW8), are all

claiming that the appellant had made an extra judicial confession,

that he had killed the deceased Karamjeet. In addition, we have

testimony of Surjeet Kaur @ Rita (PW10) which is as noticed above,

different and is not referring to confession as such. In the present

case, we feel that the purported extra judicial confession made by

the appellant is unreliable, unbelieveable and not trustworthy, for it

to be taken into consideration as a substantive evidence. Our

reasons are set out below.

9. Surjeet Kaur (PW4) and Paramjeet (PW5) have testified that

the appellant had come to their house on 18th October, 2010 with a

danda and had enquired about deceased Karamjeet. As per the

prosecution version, dead body of the deceased Karamjeet was

found in Haiderpur nahar on 21st October, 2010 at about 4.43 PM.

On taking out the dead body, on the basis of the visiting card and call

made, it was ascertained that it was Karamjeet. Parents of the

deceased came and identified the body. Surjeet Kaur (PW4) and

Paramjeet (PW5) claimed that the appellant on the same day after

dead body was recovered, came to their house at night with a PCR

van for his safety and confessed and admitted his guilt. The said

version cannot be construed to be natural and normal. A murderer

or a killer would not come with police in the PCR van and confess to

the mother Surjeet Kaur (PW4) and brother Paramjeet (PW5). PW4

even testified that the appellant had called No. 100 for his safety

when he made the extra judicial confession. If this was true and

correct, the police officers present would have acted immediately

and arrested the appellant and/or informed the police station. The

said version is unbelievable and lacks credibility. We are not

persuaded to accept as alleged, the appellant's pietisticity to confess

but with "police protection" for personal safety. It sound illogical

and rather farcical to accept that the appellant had offered Rs.2000/-

to the parents/brother of the deceased to keep quiet and not

implicate the appellant, but confessed that he had committed the

murder. The version given by Charanjeet (PW3) and Karpal Singh

(PW8) on the face of it, ex-facie, is improbable and doubtful. PW5

has stated that the appellant had come to their house at 12/1 AM

(midnight). The aforesaid fact was reiterated in the cross-

examination by Paramjeet (PW5). However, Karpal Singh (PW8)

claimed that he had reached the house of the deceased at 6/6.15 PM

and at that time the appellant was present there. Surjeet Kaur

(PW10) had given the time as 9 PM. The aforesaid time difference

possibly, can be explained as a discrepancy due to imperfect

recollection, but creates doubt when read with the deposition on

presence of PCR and the call made by the appellant at No. 100, as

deposed by PW4 and PW5. If the testimony of Surjeet Kaur (PW4)

and Paramjeet (PW5) is to be believed then the appellant had made

all preparations for his security and safety and with police protection

had come to confess and redeem his guilty conscience. This is

contradictory and cannot be reconciled. It is anti-thesis and

implausible behavior. There is no explanation why police did not

take immediately action and arrest the appellant. As per the

prosecution's version the appellant was arrested nearly a month

thereafter on 17th November, 2010 [see testimony of Insp. Ram

Kishan (PW15)].

10. Insp. Ram Kishan (PW15) stated that the appellant was called

to the police station on 17th November, 2010 and interrogated and

thereafter, arrested. Disclosure statement is inadmissible and

inconsequential since there was no recovery. PW15 accepted that

money might have been a motive, but he had not investigated the

said aspect. He had called the appellant and his family members

before 17th November, 2010 once. He could not state whether the

appellant had remained in police station from the date of the

recovery of the dead body yet he went on to add that he had not

called the appellant.

11. SI Deepak Sangwan (PW17), the first Investigating Officer had

stated in his cross-examination that he had never met the appellant

during the investigation of the case and in fact stated that he had

not conducted any investigation on the basis of statement made by

the parents of the deceased that they suspected the appellant.

12. There is another factor which creates grave doubt on the extra

judicial confession. Charanjeet (PW3) had affirmed that the

appellant had confessed giving a danda blow on the head and then

the deceased was thrown in a drain. Surjeet Kaur (PW4) simply

stated that the appellant confessed that he was a culprit and he

should be punished or panchayat could be called and that he offered

Rs.2000/-. However, Karpal Singh (PW8) stated that the confession

was made before both the parents at the same time in his presence

and the appellant had given danda blow on the head as a result of

which the deceased fell down. He did not depose as to the

presence of Paramjeet (PW5). Paramjeet (PW5) stated that the

appellant had confessed having given a danda blow on the head of

his brother Karamjeet who fell in the Haiderpur Nahar. Thus PW3,

PW5 and PW8 have deposed that the appellant had confessed giving

danda blow. However, Surjeet Kaur (PW4) has not been very specific

but has stated that on 18th October, 2010 the appellant had come to

their residence with a danda. The so called confession, however, is

not corroborated and is contrary to the post mortem report as to the

cause of death. The deceased did not die due to head injury but due

to asphyxia consequent upon anti mortem throttling and smothering

by hands. The post mortem was conducted by Dr. Bhim Singh (PW9)

who has deposed that he had conducted post mortem on 22nd

October, 2010 and had found the following injuries on the body of

the deceased:

1. Multiple contused abrasions both sides of neck three

number in left side measuring 2 cm X 1.5 cm each and

contused abrasions 2.3 cm X 1.5 cm.

2. Contusion of both lips with teeth mark on inner side

present.

3. Contusion 1.8 cm X 1 cm. over the tip of nose.

4. Contusion 3 cm X 2 cm over left side of forehead.

On internal examination of the head, he noticed an extra

vasation of blood in scalp layer below injury no. 4 but the skull bones

were intact. The brain was found to be congested. The hyoid bone

was fractured on the right side with extra vasation of blood in sub-

cutaneous tissues and muscles on both sides of the neck. The cause

of death was due to asphyxia consequent upon ante mortem

throttling and smothering by hands. The said report is clear and

categorical and statement of PW9 to this effect was not challenged.

13. Post mortem report on the cause of death is totally contrary to

the so-called confession as to how the death was caused. PW9

opined and it stands recorded in the post mortem report (Ex.

PW9/A) that the death had occurred 40 hours prior to the

examination. Ex. PW9/A records that the post mortem was

conducted on 22nd October, 2010 at 11.15 AM. This could mean that

the time of death was 7.00 PM on 20th October, 2010. At the risk of

repetition it may be appropriate to notice that Surjeet Kaur (PW5)

and Paramjeet (PW5) have stated that the appellant had come to

their house on 18th October, 2010 enquiring about Karamjeet the

deceased. PW5 has stated that he left for work, it means that the

appellant come to their house in the morning of 18th October, 2010

with a danda. Thus there is substantial time difference/gap between

morning of 18th October, 2010 and evening of 20th October, 2010

when as per the post mortem report (Ex. PW9/A), Karamjeet was

throttled and he died. Ex. PW9/A does not state that deceased

Karamjeet died due to drowning. He had died before his body was

thrown in Haiderpur Nahar.

14. What is equally disturbing is the time gap between the date

and time when the post mortem was conducted i.e. 22nd October,

2010 at 11.15 AM and the date on which the FIR (Ex. PW7/B) was

recorded i.e. 30th October, 2010 at 22:40 Hrs. The FIR was not

recorded immediately after dead body of Karamjeet was recovered

or even after purported statements referring to extra judicial

confessions to PW3, PW5 and PW8, were allegedly made on 22nd

October, 2010. The FIR is based upon the DD entry NO. 28/A dated

21st October, 2010 regarding recovery of dead body which was later

identified as that of Karamjeet. FIR does not refer to extra judicial

confession of the appellant.

15. It is claimed and stated that the post mortem report was

collected on 30th October, 2010 and therefore, the FIR was

registered on the said date and time. This cannot be a justification

and good explanation for the apparent delay, though the delay by

itself, as the appellant has not been named would not be fatal.

However, it creates doubt on the manner and mode in which the

investigation was conducted. This in the present case has affected

credibility of the evidence i.e. extra judicial confession relied upon by

the prosecution.

16. Interestingly, as per the prosecution case, Charanjeet (PW3),

Paramjeet (PW5) and Karpal Singh (PW8) had made statements on

22nd October, 2010 stating and mentioning about extra judicial

confession made by the appellant and these statements along with

the brief facts were sent with the inquest papers to Dr. Bhim Singh

(PW9). The brief facts do not mention the name of the appellant.

The post mortem report (Ex. PW9/A) under the heading/column

"Brief History" as per the inquest paper records "alleged history of

having found the dead body from Haiderpur Water Treatment plant

approximately at 5 PM; last seen alive on 19th October, 2010 at

about 5 PM." Thus, as per the inquest report and the post mortem

report, the deceased was last seen alive on 19th October, 2010 at

about 5 PM. The Additional Public Prosecutor was asked to point

out any paper or document enclosed with the inquest report which

states that the deceased was last seen on 19th October, 2010 at 5.00

PM. The Additional Public Prosecutor could not point out any paper

or document in which the said factual position was mentioned. The

contention of the appellant is that the inquest papers which

purportedly included statements of PW3, PW5 and PW8 recorded by

the police on 22nd October, 2010 are not reliable and possibly

tampered with. Prima facie, there appears to be merit in the said

contention, in view of the facts noticed and when we read the

testimony of SI Deepak Sangwan (PW17) who had stated that he had

recorded statements of father - Charanjeet (PW3), brother -

Paramjeet (PW5) and one relative - Karpal Singh (PW8), of the

deceased, on the next day, but he did not interrogate or verify facts

from the appellant. Further, as per the death report (Ex. PW17/A),

inquest papers were received in the hospital on 22nd October, 2010

at 11.15 AM, though the dead body was received a day earlier i.e. on

21st October, 2010 at 7.30 PM.

17. This brings us to the evidence of last seen as deposed to by

Kulwant Singh (PW6). His statement under Section 161 Cr. P.C. was

recorded on 1st November, 2010. In his cross-examination, he has

accepted that the police had enquired from him only on 1st October,

2010 (sic. it should be 1st November, 2010). He further accepted

that he did not earlier disclose to anyone that on 19th October, 2010

at about 5/6 PM he had seen the appellant and the deceased

abusing each other on some money transaction. In his cross-

examination, PW6 testified that he was maternal uncle of the

appellant and the deceased was his nephew. We are not inclined to

accept the deposition of Kulwant Singh (PW6) because of the long

time gap and it appears that he was a tutored witness. The

deceased was his nephew, thus he would have been certainly aware

that his dead body was found on 21st October, 2010 and the fact that

he was missing from 18th/19th October, 2010. If he had seen the

appellant and the deceased on 19th October, 2010 at 5/6 PM,

normally and naturally he should have informed the parents and

brother of the deceased and the police. PW3, PW4 and PW5, i.e.,

the parents and the brother of the deceased, have not spoken a

word about Kulwant Singh (PW6) or the factum that he had seen the

deceased and the appellant together. The date and time mentioned

by Kulwant Singh (PW6) tallies with the time mentioned in the post

mortem report (Ex. PW9/A) which refers to inquest papers but the

inquest papers did not include statement of Kulwant Singh (PW6).

PW6 has stated that he met the police only on 1st November, 2010

(incorrectly recorded in the cross-examination as 1st October, 2010,

which is not possible). Thus, we are of the opinion that testimony of

Kulwant Singh (PW6) should not be accepted and this witness was

propped up to fill the gaps in the prosecution case.

18. It was argued by the counsel for the appellant that there is

time gap between 5 - 6 PM on 19th October, 2010 and the time of

death mentioned in post mortem report (Ex. PW9/A) i.e. 7.00 PM on

20th October, 2010. The time of death mentioned in post mortem

report is approximate but as noticed above, we have doubt about

the statement of Kulwant Singh (PW6). The time gap between the

time of death as recorded in the post mortem report and last seen, is

a relevant factor but as the time mentioned in the post mortem

report is an estimate, the appellant is entitled to a limited advantage

and benefit for the said reason. However, as per the statements of

mother and brother of the deceased Surjeet Kaur (PW4) and

Paramjeet (PW5), Karamjeet was last seen on 18th October, 2010. It

is not indicated and explained by Charanjeet (PW3), Surjeet Kaur

(PW4) and Paramjeet (PW5), father, mother and brother of the

deceased, why they did not make any police report when the

deceased did not return for 2-3 days. In nutshell, we find and

observe that the evidence produced by the prosecution is not

credible, reliable and trustworthy. There are gaps in the chain to

hold that the appellant was the perpetrator.

19. In view of the aforesaid discussion, we are inclined to grant

benefit of doubt to the appellant. The appeal is accordingly

allowed. The conviction of the appellant under Section 302 IPC for

murder of the deceased Karamjeet is set aside. The appellant will be

released forthwith unless required to be detained in accordance with

law in any other case. The appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G. P. MITTAL) JUDGE May 13, 2014 Kkb/VKR