Delhi High Court
Than Singh vs State on 12 February, 2015
$~Part-B (R-12 to 14A)
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 6 /2000
Date of decision: 12th February, 2015
THAN SINGH ..... Appellant
Through Mr. K.K. Sud, Sr. Advocate with Mr.
Chirag Khurana, Advocate.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRIMINAL APPEAL NO. 7 /2000
BRIJ MOHAN @ TONI ..... Appellant
Through Mr. Rajender Chhabra, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRIMINAL APPEAL NO. 9 /2000
RAM ..... Appellant
Through Mr. M. Shamikh, Advocate.
versus
STATE OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRIMINAL APPEAL NO. 407 /2000
SHIV PRAKASH ..... Appellant
Through Mr. Rajender Chhabra, Advocate.
versus
THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J. (ORAL):
This common judgment will dispose of the present set of appeals,
which arise out of charge sheet filed in FIR No.759/1997, Police Station
Vikas Puri under Section 302 read with Section 34 of the Indian Penal
Code, 1860 (IPC, for short). The impugned judgment dated 9 th December,
1999 convicts the four appellants for the charge of murder of Shiv Pratap
@ Raju and Rekha in the intervening night of 10th/11th December, 1997 at
House No.K-1C/161, Mohan Garden, Delhi. By the impugned order of
sentence dated 10th December, 1999, the appellants have been sentenced to
undergo imprisonment for life and fine of Rs.5,000/- each for the offence
under Section 302 read with Section 34, IPC. In default of payment of
fine, they have to undergo Rigorous Imprisonment for six months.
2. On the aspect that the two deceased had suffered a homicidal death
as a result of strangulation, we accept and believe the testimony of Dr. K.L.
Sharma (PW-4), who had conducted post-mortem on the dead bodies of
Shiv Pratap @ Raju and Rekha. The post-mortem reports of the deceased
have been marked as Ex.PW-4/A (Rekha) and Ex.PW-4/B (Shiv Pratap @
Raju). As per the post-mortem reports, the cause of death of both persons
was asphyxia caused due to repeated ligature strangulations causing
mechanical obstruction of airways. The ligature material was something
hard and flexible like a belt. The aforesaid ligature strangulations were
sufficient in ordinary course of nature to cause death rapidly.
3. The core issue and question raised is whether the appellants were the
perpetrators, of the said offence. The prosecution in the charge sheet had
primarily relied on eye witness Savitri, who had deposed as PW-2. But,
she has not supported the prosecution case and had stated that she was
married, had children and used to reside at Sarojini Nagar. She was on
friendly terms with the deceased Raju and he had been frequenting their
house for about 1½ years prior to the incident. She asserted that nothing as
the regards the alleged offence happened in her presence and she did not
remember anything. She was declared hostile and was cross-examined by
the Additional Public Prosecutor. During the course of her cross-
examination, she resolutely stood by and remained committed to her earlier
deposition.
4. In view of the aforesaid factual position, the prosecution sought to
build its case upon circumstantial evidence. In this regard, the prosecution
primarily relies upon statements of Raghav Ram Singh (PW-5) and Satpal
(PW-12), father and brother, respectively, of the deceased-Shiv Pratap @
Raju. Learned counsels for the appellants have submitted before us the
testimonies of Raghav Ram Singh (PW-5) and Satpal (PW-12) are on two
aspects. Raghav Ram Singh (PW-5) and Satpal (PW-12) had last seen the
appellants with the deceased in the evening before the intervening night of
the occurrence and that in the morning of 11th December, 1997, after they
had seen the dead bodies of Shiv Pratap @ Raju and Rekha, they had heard
the appellants accept their involvement in the offence. The appellants have
contested the testimonies of Raghav Ram Singh (PW-5) and Satpal (PW-
12) as being make-belief, tainted on the ground that they are propped up
witnesses. It is submitted that their statements cannot be and should not be
relied upon as the basis for convicting the appellants.
5. Having perused the testimonies of Raghav Ram Singh (PW-5),
Satpal (PW-12), as well as those of Constable Manraj (PW-18) and ASI
Mahinder Singh (PW-19), we believe that two versions emerge regarding
how and when the police and the said family members came to know about
the occurrence. Head Constable Reshampal Singh (PW-3) had deposed
about DD entry No.33A (Ex.PW-3/E) recording that an injured person was
lying in the area of Police Station Vikas Puri. This DD entry was marked
to Constable Manraj (PW-18) and ASI Mahinder Singh (PW-19). They
have deposed about the visit to the site but nothing abnormal was noticed.
Upon returning to the police station, one of the appellants, namely, Ram
came in an injured condition, who as per Constable Manraj (PW-18)
informed them about the quarrel, which had taken place in premises No.K-
1C/161, Mohan Garden, Delhi. Ram, as per the police version and
deposition of Constable Manraj (PW-18) and ASI Mahinder Singh (PW-
19), was not taken to the site of crime but was taken for medical
examination and treatment to Deen Dayal Upadhyay Hospital. We shall be
referring to his MLC (Ex.PW-21/A) subsequently. It is evident from the
testimony of Constable Manraj (PW-18) that appellant-Ram was injured.
In the cross-examination by the Additional Public Prosecutor, Constable
Manraj (PW-18) denied that Ram had told them that he had received injury
from Raju, i.e. Shiv Pratap at the time of the occurrence, though this fact
stands recorded in his statement Mark „A‟ under Section 161 of the Code
of Criminal Procedure, 1973. ASI Mahinder Singh (PW-19) had testified
that at 3.35 A.M., the appellant-Ram came to the police station in an
injured condition and told him about his quarrel with Raju, i.e. Shiv Pratap.
Blood was oozing from the injuries suffered by the appellant-Ram and he
was sent to the Deen Dayal Upadhyay Hospital for check up along with
Constable Manraj (PW-18). He, i.e. ASI Mahinder Singh (PW-19), went
to the house No.K-1C/161, Mohan Garden, Delhi. In the cross-
examination, ASI Mahinder Singh (PW-19) accepted that he had not
recorded any DD entry on or after arrival of the appellant-Ram to the
police station. He accepted that Ram did not have any link with the DD
entry No.33A. In other words, as per PW-19, he came to know about a
quarrel for the first time from appellant-Ram at about 3.35 AM on 11th
December, 1997 and had left for the spot in question within 4-5 minutes.
However, the appellant-Ram was sent to the hospital. As per PW-19, the
place of incident was hardly 2.5 or 3 kilometres from the police station.
PW-19 deposed that he had gone there on his scooter but it took him time,
i.e. around one hour and thirty minutes, to trace the place of incident. He
blamed that the colony did not have proper roads and water had
accumulated due to rains.
6. It is noticeable that the MLC of appellant-Ram (Ex.PW-21/A)
records the time of examination as 4:20 A.M. on 11th December, 1997.
7. Thus, on one hand, we have testimonies of Constable Manraj (PW-
18) and ASI Mahinder Singh (PW-19) that they came to know about an
occurrence at house No.K-1C/161, Mohan Garden, Delhi, at about 3.35
A.M. on 11th December, 1997. It has also come on record that the place of
occurrence was not far from the police station and was at a distance of
hardly 3 kilometres.
8. We have referred to the aforesaid facts as we have some doubts and
reservation regarding how and when Raghav Ram Singh (PW-5) and
Satpal (PW-12), the father and brother, respectively, of the deceased Shiv
Pratap @ Raju came to know about the occurrence. Learned Additional
Public Prosecutor for the State has in this connection primarily relied upon
the testimony of Satpal (PW-12), who had deposed that on 10th December,
1997, Shiv Pratap @ Raju and Savitri along with the appellants had gone
to the house of Savitri at K-1C/161, Mohan Garden. His brother Shiv
Pratap @ Raju thereafter did not return and about 6/6.15 A.M. they had
gone to the said house and had seen that the house was open and dead
bodies of Shiv Pratap @ Raju and Rekha were lying there. In his cross-
examination, Satpal (PW-12) had asserted that his brother, i.e. Shiv Pratap
@ Raju had informed them on telephone at 9.30/10 P.M. that he was
coming, i.e. returning. Satpal (PW-12) had further testified that Shiv
Pratap @ Raju occasionally used to stay in the house of Savitri. In other
words, the assertion made by Satpal (PW-12) was that deceased Shiv
Pratap @ Raju used to reside with Raghav Ram Singh (PW-5) and Satpal
(PW-12) at their common residence. However, Raghav Ram Singh (PW-5)
in his court deposition had asserted and testified differently, virtually
accepting that the deceased Shiv Pratap @ Raju used to reside at Mohan
Garden. He in his cross examination on behalf of Shiv Prakash on 20th
November, 1998, deposed:-
"My deceased son resided with me as well as [at] Mohan
Garden. My son stayed at night at Mohan Garden and day time
he came to me. He came to me after 1/2 days."
In his cross examination on behalf of Than Singh and Brij Mohan @ Toni,
on 14th January, 1999, he testified:-
"Savitri her sister Rekha, my son Shiv Pratap Singh resided in
the house where the incident took place. ... My deceased son
was having relation with Savitri for 2/3 years before the
incident. My deceased son also came to us during that period
off and on. ... My deceased son continued this practice by
staying 2 or 3 days at Mohan Garden and then coming to us
during 2/3 years."
Raghav Ram Singh (PW-5) had claimed that Savitri was a woman of loose
character and his deceased son was allured by her, which was the reason
why the deceased used to reside with Savitri.
9. We have referred to the deposition of Satpal (PW-12) and then the
deposition of Raghav Ram Singh (PW-5) on the aforesaid aspect in some
detail as both of them have deposed on the aspect of last seen together
story. However, we have grave reservations on accepting the testimony of
Raghav Ram Singh (PW-5) and Satpal (PW-12) on the said aspect. The
reason being, that in case the deceased Shiv Pratap @ Raju and Savitri
used to reside and live in house No.K-1C/161, Mohan Garden, Delhi, there
was no reason or cause for the appellants to visit the residence of Raghav
Ram Singh (PW-5) and thereupon ask the deceased Shiv Pratap @ Raju
and Savitri (PW-2) to proceed to House No.K-1C/161, Mohan Garden,
Delhi. PW-5‟s assertion that Shiv Pratap @ Raju and Savitri used to stay
with them at day-time, i.e. during working hours, is unbelievable and not
acceptable. Raghav Ram Singh (PW-5) had also stated that the deceased
Shiv Pratap @ Raju used to come after one/two days. Thus, the assertion
by Raghav Ram Singh (PW-5) and Satpal (PW-12) to the effect that the
appellants had come to their residence on 10th December, 1997 at about
6/6.15 P.M. in the evening and, thereafter, all of them had left for house
No.K-1C/161, Mohan Garden, Delhi along with Savitri (PW-2), is
questionable and lacks credibility. It is clear and lucid as accepted by
Raghav Ram Singh (PW-5) that he knew the appellants since some time
prior to the incident. Raghav Ram Singh‟s (PW-5) testimony was recorded
first. He accepted that his deceased son, Shiv Pratap @ Raju used to reside
with Savitri. The latter was described by him as a woman who had lured
his son. The statement of PW-12, Satpal on the later date, has to be read
and understood with caution and care. This makes the evidence of last
seen rather weak and tenuous. We are conscious and aware of the fact that
the evidence of last seen is also mentioned in Ex.PW-5/A, i.e. the statement
made by Raghav Ram Singh (PW-5) to ASI Mahinder Singh (PW-19),
which became subject matter or content of the FIR (Ex.PW-3/B).
However, in spite of the aforesaid position, we are not inclined to
unconditionally and unreservedly accept the version of Raghav Ram Singh
(PW-5) and Satpal (PW-12) on the question of last seen as deposed to by
them.
10. Also, it is not comprehensible as to why on a cold December
morning at about 6/6.15 A.M., Raghav Ram Singh (PW-5) and Satpal
(PW-12) decided to visit the premises where the deceased Shiv Pratap @
Raju and Savitri (PW-2) used to reside. It is logical and apparent that they
had information and knew about the unfortunate event. The only
conceivable possibility is that ASI Mahinder Singh (PW-19) or Constable
Manraj (PW-18) may have informed them about the occurrence after the
appellant Ram had visited the police station at 3.35 A.M. on 11 th
December, 1997.
11. What is apparent is that Raghav Ram Singh (PW-5) from the very
beginning suspected involvement of the three appellants, namely, Brij
Mohan @ Toni, Shiv Prakash and Than Singh. Raghav Ram Singh (PW-5)
had deposed that after coming back from house No.K-1C/161, Mohan
Garden, Delhi, he went to the house of Shiv Prakash located opposite
Bharat Properties at Vikas Nagar and there he had heard the aforesaid three
appellants speaking with Savitri (PW-2). His description that he over-
heard and learnt that the three and Ram had killed Shiv Pratap @ Raju and
Rekha is rather stodgy and tedious. He has deposed to the effect that
Savitri (PW-2) was also present there and had cried that these people had
murdered Rekha and Raju. At the spot, he claimed that he had caught hold
of Brij Mohan @ Toni and Satpal (PW-12) had apprehended Shiv Prakash.
Police was called later on. The aforesaid assertion has been deposed in a
similar manner by Satpal (PW-12). However, the said version of over-
hearing conversations at the house and candid confession and
outspokenness does not inspire confidence and appears to be implausible.
However, we accept that Raghav Ram Singh (PW-5) and Satpal (PW-12)
may have looked around and searched for the possible suspects Brij Mohan
@ Toni and Shiv Prakash and others, who were thereafter detained and
arrested by the police, but the suggestion that the accused divulged and
acknowledged the involvement in the crime is contrived and constructed.
Thus, we are inclined to discard and disbelieve the version given by
Raghav Ram Singh (PW-5) and Satpal (PW-12) that they had heard the
conversations revealing the truth taking place inside the house in the
morning. As per the police version, Brij Mohan @ Toni and Shiv Prakash
were arrested at about 8.10 A.M. on 11th December, 1997. Mere arrest
would not prove anything unless the involvement of the said two persons is
proved by acceptable and cogent evidence on record.
12. As per the testimony of Raghav Ram Singh (PW-5) and Satpal (PW-
12), Than Singh had managed to run away from the spot. Than Singh was
arrested on 27th January, 1998. Conviction against him would also fail for
the same reason, as his involvement also has not been proved beyond
reasonable doubt.
13. In the testimony of Raghav Ram Singh (PW-5) it has come that the
deceased Rekha was sister of Savitri (PW-2). This appears to be correct
and it is also apparent that Raghav Ram Singh (PW-5) knew and
recognised Rekha, the second deceased. This is apparent when we read
Ex.PW-5/A, which was the first complaint and became the basis of the FIR
(Ex.PW-3/B). Name of Rekha, i.e. the second deceased, has been
specifically stated by Raghav Ram Singh (PW-5). The second deceased,
i.e., Rekha was also identified by Satpal (PW-12).
14. This brings us to the case against the appellant-Ram, which is
different and initially appeared to be unimpaired and sound. As per the
police version deposed to by Constable Manraj (PW-18) and ASI Mahinder
Singh (PW-19), appellant-Ram had come to the police station at about 3.35
A.M. on 11th December, 1997 and reported about his quarrel in which he
had suffered injuries. As per ASI Mahinder Singh (PW-19), he had named
Shiv Pratap @ Raju and had also given the house number where the quarrel
had taken place, i.e. K-1C/161, Mohan Garden, Delhi. Constable Manraj
(PW-18), as noticed above, had somewhat contradicted ASI Mahinder
Singh (PW-19). He was also cross-examined by the Additional Public
Prosecutor but had affirmed that the appellant-Ram had not specifically
informed him that he had received injuries from Shiv Pratap @ Raju.
15. Apart from the aforesaid contradiction, which may not be fully
material, we observe two circumstances which create serious and grave
doubts about the actual involvement of appellant-Ram as the perpetrator
who killed Shiv Pratap @ Raju and Rekha. The first circumstance is the
conduct of appellant-Ram himself, in coming to the police station on his
own. It was certainly not to confess the murders or out of repentance. It
appears that he had suffered injuries, which are apparent from the MLC of
appellant-Ram (Ex.PW-21/A). The said MLC of Deen Dayal Upadhyay
Hospital was recorded after examination of Ram at 4.20 A.M. on 11th
December, 1997. It records wounds on the parietal region, occipital region,
forehead, mandible, etc. It is further recorded that the patient, i.e.,
appellant-Ram had consumed alcohol but was not under its influence. X-
ray of the skull as well as left mandible was suggested but details are not
available. What creates further doubt and suspicion on the appellant-
Ram‟s involvement is the second aspect, a written complaint which was
made by Raghav Ram Singh (PW-5) to the office of the Chief Minister
dated 20th December, 1997, marked as Ex.PW-5/DB. In the said
complaint, Raghav Ram Singh (PW-5) had expressed his apprehension that
appellant-Ram has been wrongly implicated and Savitri along with other
appellants, namely, Shiv Prakash, Brij Mohan @ Toni and Than Singh
were involved. This complaint also records that at about 5.45 A.M. on 11 th
December, 1997 appellant-Ram came to his house along with relatives and
police men and informed them about the incident, i.e. the occurrence. It
was claimed that Ram in fact was a prime eye witness and not a culprit.
The aforesaid complaint when shown to Raghav Ram Singh (PW-5) in his
cross-examination was accepted. Raghav Ram Singh (PW-5) admitted his
signatures at point „A‟. PW-5 also accepted that the aforesaid complaint
was typed on his directions and then he had given the application to the
office of the Chief Minister. This Exhibit, Ex.PW-5/DB is a document,
which dents the allegations against the appellant-Ram. Thus, there is a
doubt whether the appellant Ram was a perpetrator or was one of the
victims of the violence by others, like the deceased, even if we accept that
the appellant Ram was present in the House No.K-1C/161 at Mohan
Garden, Delhi.
16. This was a case of double murder in which two young persons had
lost their lives, but the prosecution has not been able to prove their case
beyond reasonable doubt against the appellants herein. The primary
reason, it appears, is that Savitri (PW-2) whose sister Rekha had also died
in the said occurrence, did not support the prosecution case. Ex.PW-5/DB,
in fact, raises suspicion about involvement of Savitri (PW-2) in the crime.
The said doubt was expressed by none other than the father of the deceased
Shiv Pratap @ Raju. Raghav Ram Singh (PW-5) accepted that he had
given the said complaint (Ex.PW-5/DB) which was neither contradicted
nor explained by either Raghav Ram Singh (PW-5) or by way of re-
examination of Raghav Ram Singh (PW-5) by the Additional Public
Prosecutor. This could have thrown some light in case the complaint
(Ex.PW-5/DB) had been made under a wrong impression or under a threat
or coercion. Moreover, as noticed above, as per the prosecution case,
Savitri (PW-2) was not involved in the actual offence, but her presence at
the time of occurrence as an eye witness is asserted. It is not the
prosecution‟s case that Savitri (PW-2) had suffered any injuries though her
sister Rekha had died in the said occurrence.
17. In view of the aforesaid discussion and factual position, we are
inclined to grant benefit of the doubt to the appellants and their appeals are
accordingly allowed. Their conviction and sentence are quashed and set
aside. Their bail bonds are cancelled.
18. Appeals are disposed of. The LCR be sent back to the trial court.
SANJIV KHANNA, J.
ASHUTOSH KUMAR, J.
FEBRUARY 12, 2015
VKR
