Delhi High Court
State vs Jagtar & Ors. on 12 November, 2014
Author: Pradeep Nandrajog
$~7 & 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 12, 2014
+ DEATH SENTENCE REF. 5/2010
STATE ..... Petitioner
Represented by: Ms.Aashaa Tiwari, APP for
the State with Insp.Sanjeev
Kr.P.S. S.P.Badli
versus
JAGTAR & ORS ..... Respondents
Represented by: Ms.Payal Juneja, Advocate
CRL.A. 321/2013
GIAN CHAND ..... Appellant
Represented by: Ms.Payal Juneja, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP for
the State with Insp.Sanjeev
Kumar, SHO P.S.S.P.Badli
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
1. Five persons : (i) Jagtar Singh (A-1), (ii) Sheela @ Chabili (A-2), (iii)
Jitender @ Nanu, (iv) Gian Chand and (v) Ashok Kumar @ Ganja were
charged for having entered into a conspiracy to murder Bimla, Lakha and
Bindeshwar Yadav. They were further charged of giving effect to the
conspiracy by causing the death of the said persons. They were further
charged of intending to cause the death of Madan Prasad who escaped death
due to providence. In other words, charges were framed against the five for
an offence punishable under Section 120B IPC, 302 read with Section
120B/34 IPC and for the offence punishable under Section 307 IPC.
2. After the trial in view of the evidence led Jitender was acquitted. The
other four were convicted and sentenced to death.
3. Death Reference No.5/2010 concerns confirmation of the death
sentence imposed by the learned Trial Judge. Crl.A.No.321/2013 has been
filed by Gian Chand.
4. Jagtar Singh, Sheela and Ashok Kumar pleaded before this Court that
they were juvenile. After conducting an inquiry into their juvenility a
detailed order was passed by this Court on April 20, 2012 declaring Sheela,
Jagtar Singh and Ashok Kumar @ Ganja to be juvenile. It was followed by
an order dated August 01, 2014 setting free said three juvenile accused
noting that they had already undergone the maximum sentence of three years
which could be imposed against them.
5. Thus, the death reference continues only against Gian Chand who has
filed Crl.A.No.321/2013
6. Having perused the evidence led at the trial and the impugned
decision we find that Gian Chand's name finds a mention in the testimony
of Raju Yadav PW-4. This could be the percipient evidence against him
which needs to be considered by us. The second incriminating circumstance
which appears against Gian Chand is he making a disclosure statement in
which he volunteered to get recovered a shirt worn by co-accused Ashok
Kumar @ Ganja stating that the shirt was worn by accused when the crime
was committed followed by Gian Chand leading the police party to his
house and from there within an iron box kept in the room recovering the
shirt which was seized vide seizure memo Ex.PW23/L. The last
incriminating evidence surfacing is Gian Chand handing over some
documents of House No.30, Village Badli to the investigating officer which
was seized vide memo Ex.PW23/M.
7. We note the testimony of Raju Yadav PW-4 in full. He has deposed
as under:-
"On 6-6-03, at 2.30 AM Bindeshwari was my co-villager. He
had come to meet his brother Lakhan on 4-6-03. Lakhan was
residing in a gher at village Badli. But, I cannot tell the house
number. I also do not know as to who was the owner of that
house. I went to meet Bindeshweari on 6-6-03 and we talked
upto the evening At about 5 PM again said : I had gone to meet
Bindeshwari at 5 PM. I had talks with him till 7 PM and it was
dark. Bindeshwari asked me to say with him as it is already
late in night. We had food. I went upstairs and slept on a cot.
At about2.30 AM, I heard the sound of gunshot fire. I
woke up. I identified Ganja. Ganja had visited Lakhan as a
guest. I saw Ganja running away after I heard the sound of fire
from the gate of Lakhan. I cannot tell the name of the person
who was committed murder of Bindeshwari. The witness has
pointed out towards accused Jagtar, Sheela, Gian Chand and
Ashok Kumar to be the persons who were committing murder
of Bindeshwari. Lakhan was given beatings by Sheela and
Ashok while Bindeshwari was given beatings by Jagtar and
Gian Chand. (The witness has only pointed out towards the
accused persons) Accused Ashok was inflicting injuries on
Bideshwari with an axe. Lakhan was being caused injuries by
axe by accused Ashok Kumar (the witness has pointed out
towards accused Ashok Kumar being the persons responsible
for causing injuries by axe to Bindeshwari as well as to
Lakhan). Somebody had fired at the chowkidar but I could not
see him. Witness has volunteered that he was one of the
amongst accused persons present in the Court but he cannot
identify him. Thereafter, police came. Again said: That the
villagers were able to catch hold of accused Sheela and
accused Jagtar. Accused Ashok had managed to run away at
that time but later on he was apprehended and was brought.
Again said: Accused Ashok and accued Gian Chand were later
on apprehended and were brought. Bimla was also caused
injuries (The witness has used the expression that Bimla Aur
Lakhan Ko Kat Diya). They were removed to the hospital
(Witness has pointed out towards Ashok Kumar and has stated
that this accused was identified by him at the sot itself). I had
not identified any other accused at any other point of time at
any place."
8. The testimony of the witness naming Gian Chand is vague. He has
made a reference to Gian Chand as follows: „Lakhan was given beatings
by Sheela and Ashok while Bindeshwari was given beatings by Jagtar
Singh and Gian Chand‟............„Accused Ashok and Gian Chand was later
on apprehended and were brought.'
9. We find that the witness was declared hostile and was confronted with
his previous statement from which, as per the prosecution, the witness was
resiling. In spite of being confronted he did not agree with the suggestions
concerning portions 'A' to 'A' and 'B' to 'B' in the previous statement
made by the witness.
10. Under the circumstances, it has to be held that the percipient evidence
of Raju Yadav does not inspire confidence concerning role of Gian Chand.
11. At this state we note that Madan PW-3 an injured has turned hostile
and not supported the case of the prosecution even a wee bit.
12. Recovery of a shirt pursuant to the disclosure statement by Gian
Chand is not the shirt, as per the prosecution, which Gian Chand was
wearing when the crime was committed. The part of his disclosure
statement that this was the shirt which co-accused Ashok was wearing is
not admissible in evidence against him as an incriminating evidence. We
find no evidence led to prove that shirt in question was worn by Ashok
when the crime was committed. Besides only human blood was detected
on the shirt. Its group could not be linked to the deceased. These are the
reasons to hold that the recovery of the shirt in question would not be
incriminating evidence against Gian Chand. We highlight that the
prosecution has not proved that the blood detected on the shirt was that of
the deceased.
13. As regards Gian Chand handing over some documents concerning
House No.30, Village Badli, the same would evince that as per the
documents he was the owner of the house. The incriminating link of said
ownership to him as per the prosecution is the motive for the crime i.e.
Gian Chand not being happy that the deceased living to the house in
question, that would be a too weak motive
14. We accordingly answer the death reference and dispose of the appeal
not confirming the sentence imposed upon Gian Chand. We acquit Gian
Chand of the charge framed against him.
15. If not required in other case Gian Chand be set free forthwith.
16. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
NOVEMBER 12, 2014
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