Delhi High Court
Balraj @ Ladi vs State on 14 November, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 676/2017 & CRL.M (Bail) 1226/2017
Reserved on: October 26, 2017
Date of decision: November 14, 2017
BALRAJ @ LADI ..... Appellant
Through: Mr.Anupam S. Sharma, Ms.Prachee
Satija and Mr. Prakarsh Airan,
Advocates.
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for State with
SI Pramod Kumar, P.S. Shalimar
Bagh, Delhi.
Ms.Aishwarya Rao and Ms.K.B.Hina,
Advocates for the complainant.
WITH
+ CRL.A. 780/2017 & & CRL.M (Bail) 1446/2017
NAWAB SINGH ..... Appellant
Through: Mr. Anup Banerjee with Mr. Rajeev
Kumar and Mr. Pappu Singh,
Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Ms.Kusum Dhalla, APP for State with
SI Pramod Kumar, P.S. Shalimar
Bagh, Delhi.
Ms.Aishwarya Rao and Ms.K.B.Hina,
Crl. Appeal Nos. 676/2017, 780/2017 & 455/2017 Page 1 of 42
Advocates for the complainant.
+ CRL.A. 455/2017
KANWALJEET KAUR @ SONIA ..... Appellant
Through: Mr Salim Ahmed and Ms.Charu Dalal,
Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Ms.Kusum Dhalla, APP for State with
SI Pramod Kumar, P.S. Shalimar
Bagh, Delhi.
Ms.Aishwarya Rao and Ms.K.B.Hina,
Advocates for the complainant.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA
JUDGMENT
% 14. 11. 2017
Dr. S. Muralidhar, J.:
1. The challenge in these three appeals is to the judgment dated
22nd March 2017 and the order on sentence dated 1st April 2017 passed by
the learned Additional Sessions Judge („ASJ‟) in Sessions Case Nos.
58286/2016 & 59458/2016.
2. By the said judgment, dated 22nd March 2017, the trial court found the
three Appellants guilty of the offence punishable under Section 365/34 IPC.
Nawab Singh (Appellant in Criminal Appeal No. 780 of 2017) (Accused
No.2 A-2) and Balraj @ Ladi (Appellant in Criminal Appeal No. 676 of
2017) (A-3) were convicted for the offence punishable under Section 302/34
IPC, Section 307/34 IPC and Section 387/34 IPC. Kanwaljeet Kaur @ Sonia
(Appellant in Criminal Appeal No. 455 of 2017) (A-1) was convicted for the
offence under Section 387/109 IPC, Section 302/111 IPC and Section
307/111 IPC.
3. By the order of sentence dated 1st April 2017:
(i) All three Appellants, A-1 A-2 and A-3, were sentenced to undergo
seven years rigorous imprisonment („RI‟) under Section 365/34 IPC
with fine of Rs. 5,000 each, in default of payment of which, they
would further undergo simple imprisonment („SI‟) for six months.
(ii) Appellants Nawab Singh (A-2) and Balraj (A-3) were sentenced to
undergo seven years RI under Section 387/34 IPC with fine of Rs.
5,000 each, in default of payment of which, they would further
undergo SI for six months.
(iii) Both A-2 and A-3 were further sentenced to life imprisonment for
the offence under Section 302/34 IPC with fine of Rs. 15,000 each, in
default of payment of which, they would further undergo SI for one
year. They are also sentenced to undergo ten years RI for the offence
under Section 307/34 IPC with fine of Rs. 10,000 each, in default of
payment of which, they would further undergo SI for one year.
(iv) Kanwaljeet Kaur @ Sonia, A-1, was sentenced to undergo seven
years RI for the offence under Section 387/109 IPC with fine of Rs.
5,000, in default of payment of which, she would further undergo SI
for six months. She was also sentenced to undergo life imprisonment
for the offence under Section 302/111 IPC with fine of Rs. 15,000, in
default of payment of which, they would further undergo SI for one
year. A-1 was also sentenced to undergo ten years RI under Section
307/111 IPC with fine of Rs. 10,000, in lieu of payment of which, she
would further undergo SI for one year.
(v) All the sentences were directed to run concurrently.
Case of the prosecution
4. Dr. Anil Kumar Nangia (PW-3) was running his clinic at 290, Chand
Nagar, Delhi. Manju (PW-1), who was working as a compounder in the
clinic, lodged a complaint on 3rd May 2004 with Police Station (PS) Tilak
Nagar. In the complaint, PW-1 stated that at around 9.15 am she was
administering an injection to one of the patients when she heard the noise of
a lady and a man arguing with PW-3. She states that they were asking PW-3
to accompany them but he was refusing to do so. When she peeped into the
room, PW-1 found Kanwaljeet Kaur @ Sonia (A-1), the wife of the
deceased brother-in-law of PW-3, having one small child in her lap and a
tall person aged 30-32 years of dark complexion (later identified as A-2),
asking PW-3 to accompany them. When PW-3 refused, A-1 is alleged to
have said "yeh aise nahi chalega". Thereafter, the tall person showed a
pistol to PW-3 and said "Tu aise nahi manega". PW-3 then accompanied
them. The tall person while leaving also told PW-1: "koi gadbad mat karna
verna teek nahi hoga". On the basis of the above complaint, FIR No. 261/04
under Section 364/34 IPC was registered at PS Tilak Nagar on 6th May
2004.
5. On the very same day, i.e. 3rd May 2004, information was received under
DD No. 17 that at KP-267, Maurya Enclave, the landlord and his daughter
had been mercilessly beaten. The police reached the spot and found
Saudagar Singh and his wife Kartar Kaur (father-in-law and mother-in-law
respectively of PW-3) in an injured condition. Both of them were taken to
the hospital. The police also learnt that their injured daughter Gurdeep Kaur
(PW-2, wife of PW-3) had already been taken to the hospital. The police
reached there and recorded the statement of PW-2.
6. PW-2 said that on the previous Friday, PW-3 had dropped her and their
infant daughter at her parental home, i.e. KP-267, Pitampura at 11 pm. On
3rd May 2004, at about 9 am, she went to sleep after entrusting her infant
daughter to her father (Saudagar Singh). At around 10 am, she woke up to
give milk to her daughter and came to the drawing room where she found
two persons arguing with her father. She found her daughter in the lap of her
husband (PW-3). The shorter of the two persons (later identified as A-3) was
pointing a pistol at the head of PW-3. The tall person had a knife in his
hand. They were asking Saudagar Singh (her father) to transfer property in
the name of Sonia (A-1). Saudagar Singh informed them that he had already
disowned A-1 from the property. Saudagar Singh then wrote on a blank
paper that his daughter and son-in-law (PW-2 and PW-3 respectively) will
have no right in the property. PW-2 further stated that despite this the tall
person dealt many knife blows to Kartar Kaur (mother), Saudagar Singh
(father) and herself (PW-2). As a result, she became unconscious. Upon
regaining conscious, she found her parents lying injured and she herself was
injured on both hands. There was no one else. She then came out and raised
an alarm to seek help upon which people took her to the hospital. On the
basis of said information, another FIR No. 397/04 under Section 302/307
IPC was registered at PS Shalimar Bagh, New Delhi.
7. PW-3 stated to the police that soon after the incident at KP-267,
Pitampura, the accused, i.e. Nawab Singh (A-2) (the tall person) and Balraj
(A-3) (the shorter one) asked him to give them Rs. 30 lakhs for the
protection of himself and his daughter. According to him, they took him
with his daughter in his car. They first went to Punjab National Bank, Tilak
Nagar Branch but the bank was closed. Thereafter, they went to M.K.
Property Dealers but even there he could not get any money. Thereafter, he
took them to the house of Avtar Singh where he met Ranjeet Kaur (PW-6).
Avatar Singh was not there. Thereafter, PW-3 took both A-2 and A-3 to
New Popular Motors, run by Harsimran Singh Madhok (PW-9) and he
offered to sell his car. PW-9 offered to pay Rs. 1,12,000 for the car. After
leaving the car there, PW-3 along with A-2 and A-3 and PW-9 went to Jail
Road but they were not able to get money.
Charge
8. After investigations in both FIR No. 261/04 at PS Tilak Nagar and FIR
No. 397/04 at PS Shalimar Bagh, charge sheets were filed. The said two
FIRs were clubbed together and charges framed. All the accused were
charged for the offences under Section 365/34 IPC, Section 384/34 IPC,
Section 323/34 IPC and Section 307/34 IPC. Additionally, A-2 and A-3
were charged for the offences punishable under Section 25 of the Arms Act,
1959.
9. On 30th May 2007, the charges were amended by the learned ASJ. All the
accused were charged for the offence under Section 365/34 IPC, Section
302/34 IPC (two counts) for causing the deaths of Saudagar Singh and
Kartar Kaur, Section 387/34 IPC for committing extortion by putting
Saudagar Singh in fear of death of PW-3, Section 307/34 IPC for causing
injury to Gurdeep Kaur (PW-2), Section 387/34 IPC for extortion of money
by putting PW-3 under fear of the death of his daughter.
10. After the prosecution examined 35 witnesses and the statements of the
three accused under Section 313 Cr PC were recorded, at the stage of final
arguments, an application was filed by the prosecution before the trial court
for alteration of charges by framing charge of abetment qua Kanwaljeet
Kaur @ Sonia (A-1) for the offence punishable under Section 111 IPC. This
application was allowed by the trial court by an order dated
29th October 2004 whereby charges were framed against A-1 under
Section 365/34 IPC, Section 387/109 IPC, Section 302/111 IPC and Section
307/111 IPC. However, the charges framed against A-2 and A-3 by the
order dated 19th October 2010 were left unaltered.
Statements of the accused under Section 313 Cr PC
11. Kanwaljeet Kaur @ Sonia (A-1) in her initial statement under
Section 313 Cr PC stated:
"I am the victim of the instant case as above explained. I am in
custody since 4th May 2004 and during the pendency of the
instant case my daughter has also been kidnapped on 12th
November 2011, who is also a legal heirs of my deceased in
laws."
An additional statement of A-1 under Section 313 Cr PC was recorded on
6th June 2013 to put to her further incriminating circumstances emanating
from the evidence of the PWs.
12. In his statement under Section 313 Cr PC, Nawab Singh (A-2) stated as
under:
"I am innocent and I have been falsely implicated and I have
not involved in the incident, I had not gone either to the clinic
of Dr. Anil Nangia or to the parental house of Gurdeep Kaur as
alleged. I was brought to PS Shalimar Bagh by the police
officials after lifting me from Jalandhar, Punjab. ASI Jai
Narayan had met at PS Shalimar Bagh after I was called at the
said PS and was arrested in the said case after being falsely
implicated. The police was mixed up with Dr. Anil Nangia and
in order to cover up his ill-deeds, I was falsely implicated in
this case, so that they could show that the case had been worked
out. I am not at all involved in the occurrence. No recovery was
effected on my pointing out in pursuance of any disclosure
statement. The recoveries have been planted upon me. My
signatures were taken on many papers under force, which were
fabricated into various memos later on. The statements of
witnesses have been fabricated against me in order to falsely
implicate me."
13. Balraj @ Ladi (A-3), in his statement under Section 313 Cr PC, stated:
"I am innocent and I have been falsely implicated and I have
not involved in the incident. I had not gone either to the clinic
of Dr. Nangia or to the parental house of Gurdeep Kaur as
alleged. I used to sell clothes on a rehri (Hawker) in Tilak
Nagar Market. I was given a slip from MCD. Police Officials of
PS Tilak Nagar including ASI Jai Narayan used to demand
money from the hawkers of Tilak Nagar Market. I had refused
to concede to the illegal demands of ASI Jai Narayan and also
asked other hawkers not to pay anything to him or his staff, as a
result of which he inimical towards me. ASI Jai Narayan had
met me at PS Shalimar Bagh after I was called at the said PS
and was arrested in the said case after being falsely implicated.
At that time he had told me that, that is the result of being a
leader of hawkers. The police was mixed up with Dr. Anil
Nangia and in order to cover up his ill-deeds, I was falsely
implicated in this case so that they could show that the case had
been worked out. I am not at all involved in the occurrence. No
recovery was effected on my pointing out in pursuance of any
disclosure statement. The recoveries have been planted from
me. My signatures were taken many papers under force, which
were fabricated into various memos later on. The statements of
witnesses have been fabricated against me in order to falsely
implicate me."
14. Balraj (A-3) examined his mother Sukhvinder Kaur (DW-1). She stated
that since A-3 who was a hawker refused to give money to ASI Jai Narayan,
he got A-3 falsely implicated in this case. In her cross-examination she
admitted that she did not make any complaint to any higher official
regarding paying money to ASI Jai Narayan. Next, one Vikas was examined
as DW-2. He too spoke on the same lines as DW-1. Nawab (A-2) examined
Satvinder Singh (DW-3) to speak to his being lifted from Jalandhar by the
Delhi Police.
Impugned judgment of the trial Court
15. By the impugned judgment dated 22nd March 2017, the trial court
convicted the three accused as aforementioned. The trial Court came to the
following conclusions:
(i) The MLC of PW-2 (Ex.PW-14/A) proved that the injuries suffered
by PW-2 were dangerous. She remained hospitalized for nine days.
As an injured witness, her testimony could not simply be brushed
aside in the absence of any major contradictions qua the testimony of
other witnesses.
(ii) The testimonies of both PW-3 and PW-2 were consistent in the
material particulars except some minor contradictions which were
natural. Both PWs 2 and 3 stated that that A-3 was holding a pistol to
the head of PW-3; A-2 and A-3 asked Saudagar Singh to transfer the
property in the name of Sonia (A-1) the only contradiction being half
the property or its entirety; both demanded that no part of the property
be given to PWs 2 or 3 to which Saudagar Singh agreed; A-2 and A-3
attacked Saudagar Singh and Kartar Kaur with sharp edged weapons
and when PW-2 intervened she was attacked the only contradiction
being whether by A-2 or A-3.
(iii) As regards PW-3 not intervening to prevent the attack on his in-
laws and wife, that he was having his daughter on his lap was spoken
to by PW-2.
(iv) The independent witnesses, PW-6 and PW-9 were able to identify
A-2 and A-3 accompanying PW-3 after the incident. The non-
detection of blood was questionable but lost its importance in view of
the two independent witnesses.
(v) In his cross-examination it was suggested to PW-3 that he took the
assailants along to different persons to pay them money for having
done his work. These were the assailants who were with him when he
visited PWs 5, 6 and 9. Both PWs 6 and 9 identified A-2 and A-3 as
the ones accompanying PW-3 and therefore it was clear that they
were the assailants.
(vi) There was no merit in the contention that it was PW-3 who
committed the offence along with other persons. PW-2 denied that
PW-3 was demanding a share in the property in his name.
(vii) There were some lapses in the investigation inasmuch as Mumtaz
Ahmad, who is stated to have made the No. 100 call informing about
the attack on Saudagar Singh, Kartar Kaur and Gurdeep Kaur, was not
traced and therefore, could not be examined. Dr. Gaurav, brother of
PW-3 and Anita the sister of PW-3 were not examined. However, the
benefit of the lapses of the IO should go to the accused if otherwise
the case of the prosecution is proved and established.
(viii) Both PWs 2 and 3 were consistent that both A-2 and A-3
assaulted the two deceased with sharp edged weapons and caused
their death. The post mortem reports confirmed this. From the
sketches of the weapons recovered it appeared that they were indeed
sharp edged weapons and according to the doctor the injuries on the
deceased could be caused by those weapons.
(ix) The non-joining of public witnesses to the recovery of the
weapons was not fatal by itself. Keeping in view that both PW-34
and PW-36 were reliable and trust worthy and stood the test of cross-
examination, the recovery of the weapons at the instance of the
accused stood proved.
(x) Although there was delay registering FIR 261 of 2004 at PS Tilak
Nagar, there was no delay on the part of PW-1 in reporting the matter
to the police on 3rd May 2004 itself. Therefore the complainant cannot
be faulted. No benefit could be granted to the accused for this lapse on
the part of ASI Jai Narayan.
(xi) Therefore, the prosecution had discharged its onus of proving the
guilt of the accused for the offences charged.
16. By a separate order on sentence, the trial court proceeded to award the
sentences to the accused as noted hereinbefore.
Unduly long trial
17. Before proceeding to note the submissions, the Court would like to
highlight a disconcerting aspect. The trial in the present case continued over
an inordinately long period of over nine years. PW-1 was first examined on
29th September 2005. The final cross-examination of all the PWs (some after
being recalled) concluded much later, i.e. on 25th November 2014, more than
nine years later. This has to be kept in view while examining the testimony
of the PWs.
The present appeals
18. The appeals of A2 and A3 were admitted on 9th August 2017 and
13th July 2017, respectively. As far as A1 is concerned, her appeal was
admitted on 15th May 2017 and, by an order dated 13th July 2017, after
noting that she had served more than 13 years of the sentence concurrently
awarded to her, this Court suspended her sentence subject to her furnishing a
personal bond in the sum of Rs. 20,000/- with one surety in the like amount
to the satisfaction of the learned trial court.
19. This Court has heard the submissions of Mr. Salim Ahmed, learned
counsel appearing for A-1, Mr. Anup Banerjee, learned counsel appearing
for A-2 and Mr. Anupam Sharma, learned counsel appearing for A-3. Ms.
Kusum Dhalla learned APP appeared for the State, and Ms. Aishwarya Rao
and Ms. K. B. Hina, learned counsel represented the complainant.
20. As already noticed, as regards FIR No. 261/2004 registered at PS Tilak
Nagar for the offences under Section 364/34 IPC, the eye witnesses were
PW-1 and PW-3. As far as the FIR No. 397/2004 registered at PS Shalimar
Bagh for offences under Section 302/307 IPC and other offences is
concerned, the two eye witnesses for the killing of Saudagar Singh and his
wife Kartar Kaur are PW-2, their daughter, and PW-3, Dr. Anil Kumar
Nangia, their son-in-law. As regards the events immediately thereafter
where, according to the prosecution, PW-3 was forced to accompany, with
his infant, A-2 and A-3 in his own car, the witnesses are PW-5 (Satpal), the
proprietor of M/s Palika Properties, PW-6 (Ranjeet Kaur), wife of Avtar
Singh and PW-9 (Harsimran Singh Madhok).
21. In order to counter the case of the prosecution, all the three counsel for
the accused persons have attempted to characterize PW-2 and PW-3 as
related and „interested‟ witnesses. The line of defence that emerged during
the cross examination of both these witnesses is that PW-3 was the master
mind behind the murder of his in-laws; that he wanted to grab the property
of his in-laws, even to the exclusion of his own wife PW-2 and, therefore,
hired two contract killers, neither of whom was A-2 or A-3. As far as PW-2
is concerned, although it is not denied that she is an injured witness, they
attempt to discredit her by suggesting that she was the beneficiary of the
deeds of PW-3 as the property would fall to their share to the exclusion of
A-1 whose child was otherwise the heir of her deceased husband, the son of
Saudagar Singh and Kartar Kaur. It is submitted that there are material
contradictions and inconsistencies in the depositions of PW-2 and PW-3 that
make them untrustworthy and unreliable. On PW-2 identifying the
assailants, it is argued that their photographs were shown to her by the
police before she was examined, and therefore her identifying them in Court
is of no value.
Law concerning interested witnesses
22. Before proceeding to examine the evidence of the aforementioned eye
witnesses it is necessary to briefly recapitulate the law in relation to
interested eyewitnesses one of whom is injured. In Dalip Singh v. State of
Punjab 1954 SCR 145, the Supreme Court explained:
"A witness is normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily, a close relative
would be the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to drag in an
innocent person against whom a witness has a grudge along with the
guilty, but foundation must be laid for such a criticism and the mere
fact of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any sweeping
generalisation. Each case must be judged on its own facts. Our
observations are only made to combat what is so often put forward in
cases before us as a general rule of prudence. There is no such general
rule. Each case must be limited to and be governed by its own facts."
23. In State of Bihar v. Basawan Singh AIR 1958 SC 500 the Constitution
Bench of the Supreme Court held:
"The correct Rule is this: if any of the witnesses are accomplices who
are particeps criminis in respect of the actual crime charged, their
evidence must be treated as the evidence of accomplices is treated; if
they are not accomplices but are partisan or interested witnesses, who
are concerned in the success of the trap, their evidence must be tested
in the same way as other interested evidence is tested by the
application of diverse considerations which must vary from case to
case, and in a proper case, the court may even look for independent
corroboration before convicting the accused person."
24. In Darya Singh v. State of Punjab (1964) 3 SCR 397 it was observed by
the Supreme Court as under:
"There can be no doubt that in a murder case when evidence is given
by near relatives of the victim and the murder is alleged to have been
committed by the enemy of the family, criminal courts must examine
the evidence of the interested witnesses, like the relatives of the
victim, very carefully. But a person may be interested in the victim,
being his relation or otherwise, and may not necessarily be hostile to
the accused. In that case, the fact that the witness was related to the
victim or was his friend, may not necessarily introduce any infirmity
in his evidence. But where the witness is a close relation of the
victim and is shown to share the victim's hostility to his assailant,
that naturally makes it necessary for the criminal courts examine
the evidence given by such witness very carefully and scrutinise
all the infirmities in that evidence before deciding to act upon
it........ [I]t may be relevant to remember that though the witness
is hostile to the assailant, it is not likely that he would deliberately
omit to name the real assailant and substitute in his place the
name of the enemy of the family out of malice. The desire to punish
the victim would be so powerful in his mind that he would
unhesitatingly name the real assailant and would not think of
substituting in his place the enemy of the family though he was not
concerned with the assault. It is not improbable that in giving
evidence, such a witness may name the real assailant and may add
other persons out of malice and enmity and that is a factor which has
to be borne in mind in appreciating the evidence of interested
witnesses. On principle, however, it is difficult to accept the plea
that if a witness is shown to be a relative of the deceased and it is
also shown that he shared the hostility of the victim towards the
assailant, his evidence can never be accepted unless it is
corroborated on material particulars." (emphasis supplied)
25. In Sarwan Singh v. State of Punjab (1976) 4 SCC 369, the Supreme
Court explained:
"The evidence of an interested witness does not suffer from any
infirmity as such, but the courts require as a rule of prudence, not as a
rule of law, that the evidence of such witnesses should be scrutinised
with a little care. Once that approach is made and the court is satisfied
that the evidence of interested witnesses have a ring of truth such
evidence could be relied upon even without corroboration."
26. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, the Supreme
Court held as under:
"23. We are of the considered view that in cases where the court is
called upon to deal with the evidence of the interested witnesses, the
approach of the court, while appreciating the evidence of such
witnesses must not be pedantic. The court must be cautious in
appreciating and accepting the evidence given by the interested
witnesses but the court must not be suspicious of such evidence.
The primary endeavour of the court must be to look for
consistency." (emphasis supplied)
27. In Waman v. State of Maharashtra (2011) 7 SCC 295 the law was
summarized thus:
"It is clear that merely because the witnesses are related to the
complainant or the deceased, their evidence cannot be thrown out. If
their evidence is found to be consistent and true, the fact of being a
relative cannot by itself discredit their evidence. In other words, the
relationship is not a factor to affect the credibility of a witness and
the courts have to scrutinise their evidence meticulously with a
little care." (emphasis supplied)
28. The legal position was succinctly encapsulated in Raju v. State of Tamil
Nadu AIR 2013 SC 983
".....we are concerned with four categories of witnesses - a third
party disinterested and unrelated witness (such as a bystander or
passer-by); a third party interested witness (such as a trap witness); a
related and therefore an interested witness (such as the wife of the
victim) having an interest in seeing that the accused is punished; a
related and therefore an interested witness (such as the wife or brother
of the victim) having an interest in seeing the accused punished and
also having some enmity with the accused. But, more than the
categorization of a witness, the issue really is one of appreciation of
the evidence of a witness. A court should examine the evidence of a
related and interested witness having an interest in seeing the
accused punished and also having some enmity with the accused
with greater care and caution than the evidence of a third party
disinterested and unrelated witness. This is all that is expected
and required." (emphasis supplied)
29. The law in relation to interested witnesses, as explained in the above
decisions, is that their evidence is not to be looked upon with suspicion only
because of their relationship with the deceased. Ordinarily, a close relative
would be the last to screen the real culprit and falsely implicate an innocent
person. Their evidence must be scrutinised carefully to ascertain if it has a
ring of truth. It must also be examined for consistency.
Analysis of the evidence of PW 2
30. First, the Court would like to take up the evidence of the injured eye
witness PW-2, the daughter of the deceased Saudagar Singh and Kartar
Kaur. The evidence of Dr. Ravinder Khurdi (PW-14) shows that PW-2
suffered multiple lacerated wounds on her scalp, face and both hands with
chopped left index and middle finger and chopped right index finger and
other associated injuries on dorsum left hand extending to palmar aspect.
When she was brought to the Muni Maya Ram Hospital she patient was
profusely bleeding and in a state of shock. Her injuries were noted as:
i) Multiple lacerated wound over scalp - right forehead inverted u
shaped 7 to 8 cm in length;
ii) L forehead across the L temporal region length approx 10 cm;
iii) CLW over the parietal region of scalp 2-3 in number splitting the
temporalis inside;
iv) Lacerated wound over dorsum going towards palmar on L hand;
v) Absent L index finger chopped off at the site and middle finger
chopped off but hanging with a small skin tag;
vi) R hand index finger chopped off
31. The above injuries were described as "dangerous - sharp and blunt". The
fact remains therefore, that in the brutal attack on her, PW-2 lost her left
index and middle finger and the right index finger. The above medical
evidence was not challenged by any of the accused.
32. From her evidence, it is seen that her brother Gurmukh Singh, son of the
deceased, and the husband of A-1, expired in 2002, but prior thereto he had
not remained in touch with his family. He was the younger brother of PW-2.
PW-2 was unable to comment on the relationship between her brother and
A-1 as they were not in touch with him at all. She only attended the place of
obsequies when her brother died and did not visit his residence. She denied
the suggestion that Gurmukh Singh committed suicide. She stated that she
had no contact with A-1, except seeing her twice. She was aware that A-1
had filed a case against her parents which was referred to the Crime Against
Women Cell („CAW Cell‟) and that A-1 was demanding Rs. 40 lakhs which
Saudagar Singh did not have. This complaint in the CAW Cell was in fact
filed in September 2003.
33. It also emerges that PW-2 was herself a dentist and was employed as
such prior to her marriage to PW-3. It also transpired that PW-3 was, prior
to his marriage to PW-2, previously married and she was aware of this. The
suggestion to her that PW-3 was pressurizing her about her share in the
property of her parents was denied by her in her cross examination. She also
stated that the injuries suffered by her virtually finished off her career as a
dentist. Her most vital tools, her index and middle fingers on the left hand
and the right index finger, were chopped off.
34. It must be noted here that there are two facts that totally negate the
suggestion on behalf of the accused that PW-2 was desperate to get her
parents‟ property for herself and her husband (PW-3) and therefore went
along with PW-3 in his planning to kill her parents. The first is that way
back on 22nd October 2001 Saudagar Singh had taken out a publication in
the newspaper debarring his son Gurmukh Singh (husband of A-1) from his
properties. Secondly, on 25th October 2001, he executed a Will bequeathing
all his properties to PW-2. Consequently, PW-2 could not have had any
anxiety on this score.
35. As regards the actual events, PW-2 has stated, without any contradiction,
that she was dropped at her parents‟ house along with her infant child on
Friday evening whereas the incident happened on Monday morning. The
suggestion to her that there was a discussion between PW-3 and her parents
about any property on Friday when she was dropped was denied by her. The
suggestion that PW-3 also threatened her parents was denied by her.
36. PW-2 was clear that the incident took place on the morning of 3rd May
2004. Although, in her examination-in-chief, she had initially mentioned the
date as 30th June 2004, later in her examination-in-chief itself she mentioned
the correct date i.e. 3rd May 2004.
37. When she woke up from her nap on the morning of 3rd May 2004 in her
parents‟ house, PW-2 noticed that some people were quarrelling with her
parents. PW-3 had been made to sit on a settee in the drawing room, holding
their infant child on his lap. She has clearly stated that, "one short-statured
person put a pistol on his head." She identified the short-statured person in
the Court as A-3 (Balraj). The other person, who according to PW-2 was
present at her parents‟ house at that time, was the tall one and when she
stated so she pointed towards Nawab Singh (A-2). According to PW-2, A-2
was demanding that "half of the property be transferred in the name of the
lady accused Sonia @ Kanwaljeet Kaur, who is the wife of my deceased
brother." At this point, PW-2 identified A-1 (Kanwaljeet Kaur @ Sonia) as
well. She pointed out that earlier to that date, her father disowned A-1 and
her deceased husband in writing. Under the threat of the accused, he stated
in writing on a blank paper that he would give all his property to A-1 but not
in the name of PW-3 or PW-2. She heard her father telling A-2 and A-3 that
since he had given the above statement in writing, they should go away. But
A-2 and A-3 told him that they would not do so but would take away PW-3
and the infant child with them by tying their hands. When her father
protested, "the tall one by name Nawab Singh took out a knife." PW-2 then
states that, "My father tried to escape by screaming and went near the
balcony but the accused followed my father and I also followed but the
accused had taken my father to the balcony there he attacked my father a
knife. There was a tussle and my father was trying to rescue himself. The
accused Nawab Singh, gave a call to the accused Balraj, "kar de". I heard
the same. My mother was also sitting in the drawing room. The accused
Balraj had attacked my mother on her head. I had seen my mother having
suffered the injuries on her head. When I came to see my mother the accused
Nawab Singh, followed me and attacked me on my head with a knife. I tried
to rescue by raising my hands and my fingers were severed on both my
hands at the attack caused by the Nawab Singh, with a knife. (Witness had
shown both her hands where the two fingers on the left hand and pointing
finger on the right hand are amputated)."
38. She also stated that on 6th May 2004, the police had shown her the post-
card photos of the accused persons and on seeing the photographs, she
identified all of them. This is one of the points repeatedly emphasised by
counsel for A-2 and A-3.
39. PW-2 was first examined by the counsel for A-1 on 29th September 2005
which continued on 30th September 2005, on which date, she was also cross-
examined by the counsel for A-3. As far as A-2 is concerned, his counsel
was absent but A-2 himself declined to cross examine this witness. In this
cross-examination, nothing was elicited from the witness as regards her
describing the actual incident of being attacked on herself and her parents.
She stated that the entire incident lasted about ten minutes. She stated in her
cross-examination that it was true that, "when the incident happened we four
family members were present and two intruders have come. My husband
could not intervene or protest since all of a sudden the accused attacked us. I
was protecting myself when I was attacked and I cannot say whether my
husband intervened or not."
40. She denied the specific suggestion that it was PW-3 who was behind the
entire incident or that neither A-2 nor A-3 was actually present in the house
at the time of attack. She denied the suggestion that she was deposing falsely
because of her being threatened by PW-3. She denied that she was seeing
the accused for the first time in the Court.
41. At this stage, it may be noted that while there was no Test Identification
Parade („TIP‟) conducted for the purposes of PW-2 identifying A-2 and A-3,
the TIPs were organized for identification of A-2 and A-3 by PW-1 and
PW-3 in FIR No. 261/2004 registered at PS Tilak Nagar. In both those
instances A-2 and A-3 declined to participate. Both of them have stated that
their photographs had already been shown to the witnesses at the PS.
42. One of the serious objections taken by learned counsel for A-2 and A-3
is the absence of the TIP to enable PW-2 to identify them. However, where
the evidence of the witness inspires confidence, particularly when she is an
injured eye witness, the mere absence of the TIP would not discredit her
testimony. What is significant here is that A-2 and A-3 were complete
strangers as far as PW-2 was concerned. Her describing them as „short
statured person‟ (A-3) and a „tall person‟ (A-2) is, by and large, a correct
identifying characteristic and her evidence is natural and probable in this
regard. There is absolutely no need for her to falsely implicate A-2 or A-3.
43. In the cross examination that took place on 18 th November 2008, PW-2
denied the suggestion that she knew A-2 and A-3 prior to the incident. Her
answers in this regard were as under:
"It is incorrect to suggest that I knew accused Balraj and Nawab
prior to the incident. It is incorrect to suggest that I was treating
the mother of accused Nawab regarding her teeth. Nawab Singh
accused had come to my husband two times to take medicine. I
do not remember as to whether I had stated to the police in my
statement that Nawab Singh accused took medicine from my
husband two times. My statement was recorded by the police
two times. I did not tell the police of PS Shalimar Bagh and PS
Tilak Nagar that my husband knew Nawab Singh accused. It is
incorrect to suggest that my husband did not like Nawab Singh
visiting my house (Volunteered, since I did not know Nawab
Singh, there was no question of his coming to my house. It is
incorrect to suggest that 1 know the entire family of Nawab
Singh."
44. When she was again cross-examined, more than three years later, on 18th
December 2008, this time by counsel for A-2, PW-2 stated:
"It is correct that accused Nawab and Balraj were never shown
to me by the police. It is incorrect to suggest that Police did not
show them to me as I had stated to the police that I knew them
beforehand. It is correct that 1 stated to the police in my
statement that I knew accused Balraj and Nawab. (Vol. I started
knowing them after the commission of the offence). I had stated
to the police that I know both the accused only from the date of
the commission of offence. (Confronted with Ex. PW2/DA
where it is not so recorded)."
45. It seen that there was a concerted attempt in trying to discredit PW-2 by
suggesting to her that she somehow already knew A-2 and A-3 and was
therefore, able to identify them correctly in the court. This attempt obviously
did not succeed. PW-2 was, in fact, able to identify A-2 and A-3 correctly in
the court. She was a natural witness. Although she was related to the
deceased, her deposition cannot be cast aside when one considers that she
was an injured witness present at the spot.
46. The only other contradiction, if it may be termed that, was her stating
that A-2 had asked Saudagar Singh to transfer "half of the property in favour
of accused Sonia" whereas in her initial statement to the police, the word
„half‟ was absent. This is hardly something material that can discredit her
otherwise natural and consistent testimony.
47. There are certain other contradictions sought to be highlighted. One was
about A-2 calling out to A-3 by uttering the words „kar de‟ which was not
present in her previous statement. The other was with regards to having seen
A-3 attack her mother on the head and at that time, A-2 followed PW-2 and
attacked her. When viewed in the overall perspective, these contradictions
too cannot be said to be material. The fact remains that her presence at the
spot is not doubted. Her witnessing the attack on her parents and herself by
A-2 and A-3, who were armed with a gun and knife respectively, has not
been demolished by the defence counsel. She has stood firm on the material
aspects of the attack on herself and her parents by A-2 and A-3. She further
explained in her cross examination that:
"All this happened too fast and hence I cannot say about the
same. The accused persons had pointed a pistol on the head of
my husband and they were not allowing my husband to move"
48. It was important for the defence to establish that PW-3 was somehow
free to move and ought to have intervened to save his wife and in-laws from
the attack. They failed in this attempt as well which is evident from the
following question and answer:
"Question: I put it to you that right now you have deposed
before the court that your husband was not allowed to move,
therefore, he did not intervene and whereas on 30/09/2005 you
deposed I cannot say whether my husband intervened or not.
Which one is correct?
Ans. It has been my constant stand that my husband was not
allowed to move by the accused persons.
It is incorrect to suggest that it has not been my constant stand
that my husband was not allowed to move by the accused
persons. It is incorrect to suggest that the accused persons have
been falsely implicated at the instance of my husband and the
police. It is incorrect to suggest that accused persons were not
present on the spot or that the incident as narrated by me never
occurred. It is incorrect to suggest that I am deposing falsely. It
is correct that I had deposed before the Court that I was
unconscious and brought to the hospital and regained
consciousness on 06.05.04. It is correct that I had stated to the
police that on 06.05.04 the police had showed me the postcard
photographs of accused persons and on seeing the photographs,
I identified all the accused. (Confronted with Ex. PW2/DA
where it is not so recorded)."
Analysis of the evidence of PW 3
49. Next is the evidence of PW-3 himself. The case of the defence is that he
is an „interested‟ witness because he, in fact, wanted the property of the
deceased for himself. It is even suggested that he wanted to get his own wife
(PW-2) killed for that purpose.
50. On 3rd May, 2004, he was at his clinic and PW-1 (his compounder,
Manju) was present. He states that at around 9.15 am, A-1 and A-2 came to
his clinic and asked him to go with them. Even while he refused, A-2 took
out a pistol and threatened him. He asked A-1 whether she also was in the
party of A-2 to which A-1 replied in the affirmative by nodding her head. He
accompanied them in his own car with A-1 with her child sitting in the rear
seat accompanied by A-3. While going towards Pitampura, near Kesav
Puram Depot, the accused asked him to stop. A-2 then asked A-1 to get
down from the car. She got down with her child. Then the three of them, i.e.
PW-3, A-2 and A-3 reached KP-267, Pitampura, the residence of Saudagar
Singh, the father-in-law of PW-3. He states that he was walking in the front
with A-2 and A-3 following him and climbed the stairs to reach the first
floor. Saudagar Singh saw him through the zalidar door. PW-3 then entered,
followed by A-2 and A-3. On the settee, PW-3‟s infant daughter was
sleeping. The accused asked PW-3 to sit down. He took the baby onto his
lap and sat on the settee.
51. PW-3 attributed certain specific actions to the two accused, A-2 and A-3.
As far as A-3 (Balraj @ Ladi) is concerned, he states that A-3 aimed the
revolver at his head. Saudagar Singh then enquired who A-2 and A-3 were.
In reply, A-2 stated that it was irrelevant for him to know. He asked
Saudagar Singh to declare half his property in the name of A-1. When
Saudagar Singh told A-2 that they should either go to the Court or a
panchayat, A-2 threatened Saudagar Singh that his head would be blown off
if he did not do as instructed. At that point, Saudagar Singh wrote on a paper
that PW-2 and PW-3 shall have no share in the property. After writing the
above, Saudagar Singh gave the paper to A-2 and asked him to leave since
their work was over. A-2 and A-3 told Saudagar Singh that they would still
take PW-3 with them by tying his hands. At this point, Saudagar Singh told
A-2 and A-3 that PW-3 should be spared. Saudagar Singh then tried to go to
balcony and his wife Kartar Kaur tried to go to balcony by opening the iron
door which was bolted by A-2 and A-3. At that point, A-3 pulled Kartar
Kaur back and she fell down on the floor as she was unable to walk
properly. When A-2 was pulling Saudagar Singh, PW-2 came forward to
rescue her father. PW-3 states that at that time he heard the call, 'kar de‟. A-
2 immediately attacked Saudagar Singh with a "sharp weapon like sickle
and caused injuries on his head." A-3 attacked both Kartar Kaur and PW-2
with a knife. PW-3 is categorical that "both these accused had caused
injuries to my father-in-law, mother-in-law and my wife." After so
attacking, A-2 and A-3 asked PW-3 to go with them. PW-3 states that his in-
laws and PW-2 were not in a position to move. Carrying his child, he
accompanied A-2 and A-3 at gunpoint and proceeded towards his car.
52. The criticism mounted by the learned counsel for A-2 and A-3 of the
above testimony is first to suggest that A-2 and A-3 were in fact not present
at all in the house of Saudagar Singh and Kartar Kaur. In order to make
good their respective defence of alibi, A-2 and A-3 were required to lead
positive evidence. This, they failed to do. In his statement under Section 313
Cr PC, A-2 states that he was falsely implicated and that the police was
mixed up with PW-3 "in order to cover up his ill deeds." He claims to be
lifted from Jalandhar, Punjab. He claimed that the recoveries were planted
on him, that his signatures were taken on papers under force and later they
were fabricated into the memo.
53. As far as A-3 is concerned, his case is that he used to sell clothes as a
hawker in Tilak Nagar Market and had been given a slip by the MCD.
According to him, he refused to concede to the demand of money of ASI Jai
Narayan as a result of which, the latter became inimical to him. He says that
is why he was called to the PS and arrested after being falsely implicated.
For this he examined DWs 1 and 2, both of whose evidence was natural or
convincing. A-3 too suggests that the police was mixed up with PW-3. A-3
further claimed that no recovery was effected on his pointing out. He
maintains that the recoveries were planted. A-2 and A-3 state that their
signatures were taken on blank papers which were later fabricated in order
to falsely implicate them.
54. As already noticed, both A-2 and A-3 refused to join the TIP in which
PW-3 and PW-1 were to identify them. As for fixing the identity of A-2 and
A-3, PW-3 was very clear in his identification of them in the witness box.
The learned APP, on permission, cross-examined PW-3 on some points.
PW-3 denied that A-2 and A-3, along with PW-3, had been taken to the
house of A-1 by the police and that from the house of A-1 they reached the
house of A-2 and from there they got to the know the address of A-3. He
also denied the suggestion that in the house of A-2, a group photo was
shown to him in which A-2 was seen wearing a turban. He then states:
"It is correct that one passport size photograph was also shown
to me and on seeing the photograph I identified it as of the
accused Balraj. (Witness volunteers) that the group photo of
Nawab, was shown to me at the PS where I identified it."
55. The question then arose as to whether PW-3 knew A-2 from before the
incident. On this aspect, he stated:
"I did not tell the police at any point of time that I knew Nawab
accused. Actually I did not know Nawab accused prior to the
present occurrence. I knew Kanwaljeet accused as once she
visited my clinic for medical treatment of her child. I do not
remember if I stated before the police that Nawab accused had
come to my Clinic for medical treatment (confronted with
portion A to A of Ex.PW-3/DA where it is recorded that Nawab
accused had come to the witness a number of times and got
prescribed medicines). I do not remember if Nawab accused
ever came to my Clinic prior to the occurrence. It is incorrect to
suggest that mother and brother of Nawab accused used to
come to my clinic for medical treatment. It is incorrect to
suggest that I knew Nawab and his family members even prior
to the present occurrence or that in this regard I have deposed
falsely."
56. There were confrontations put to PW-3 about him not stating earlier to
the police about A-1 and A-2 coming to his clinic and asking him to
accompany them and his refusing to accompany saying that it was clinic
hours or that when he refused, A-2 took out a pistol and threatened him. In
this context, it requires to be seen that there are two statements attributed to
PW-3. One is Ex.PW3/DA. In the statement, he also is not supposed to have
stated that it was A-2 and „Ladi‟ who made A-1 leave the car.
57. These contradictions as to what happened at the clinic do not appear to
be material when one considers the other witness to this part of the chain of
events, i.e. PW1. She clearly stated that there was a tall person having a
pistol in his hand who was pressurizing PW-3 to go with him. She identified
A-2 correctly in the Court. She knew A-1 from before so her identifying A-1
was natural. She states that A-1 remained in the clinic for about five to ten
minutes. In her statement (Ex.PW1/A), she had stated before the police that
two persons had taken away PW-3 - one was male and one was female. She
denied the suggestion about police tutoring her to say that the taller person
was A-2. Nothing much appears to have been elicited from PW-1 to
discredit her version.
58. There was a concerted attack mounted on the evidence of PW-3 by all
three accused on various counts. As far as A-2 and A-3 are concerned, they
have advanced inconsistent pleas. On the one hand, both of them say that
they have been wrongly implicated, and that they were not even present
when the incident took place. On the other hand, they have tried to project
that the incident did not take place in the manner described as far as attack
by them on the deceased and PW-2 was concerned. In any event, neither A-2
nor A-3 has been able to prove the plea of alibi to show that they were
elsewhere when the incident took place.
59. As far as A-1 is concerned, her contention is that she has been falsely
implicated. Her attempt is to show that both PW-2 and PW-3 are interested
witnesses. Her contention is that although they were both aware that, by a
Will executed by Saudagar Singh on 21st October 2001 itself, the property
was to come to their share, they still went ahead and decided to kill the
parents of PW-2. There is a further inconsistency in this inasmuch as A-1
seems to suggest that PW-3 wanted to eliminate PW-2 as well.
60. As far as A-2 and A-3 are concerned, they seek to take advantage of the
above line of defence of A-1 by also suggesting that it was PW-3 who was
the mastermind behind the attack on the deceased and his own wife. A-2 has
gone to the extent of suggesting that even the attack on PW-2 was carefully
planned to make it appear to be a genuine attack whereas only a few fingers
were chopped in a manner that did not really inconvenience PW-2.
61. Having carefully perused the evidence of PW-3, the Court is not
satisfied that any of the above pleas can be said to be even remotely
substantiated from the evidence on record. It must be noticed that PW-3 was
able to stand a torturous cross-examination spread over several years. He
was first examined-in-chief on 30th September 2005 and his cross-
examination finally came to an end on 25th November 2014.
62. As far as the theory that it was PW-3 who masterminded the entire
incident, it does not appear even possible that he would do so at the risk of
very severely injuring his own wife, particularly when there is nothing to
show that they were desperate for the property of the parents of PW-2. PW-3
was already running his clinic and any motive that he may have had to
eliminate the deceased is not even remotely established. Only some fanciful
questions have been put in the cross examination which have been rebuffed
both by PW-2 and PW-3. There is not even a trace of any dithering by either
witness on the material aspects to raise a doubt that PW-3 may have himself
planned the attack. It also defies logic that they would do so when the Will
executed by Saudagar Singh well before the incident has already bequeathed
the property in their name. The main fact that they had sold the property
after the incident does not in any way throw any doubt on their respective
depositions as far as the incident itself is concerned.
63. All the three accused have repeatedly stressed on the aspect that there
was no blood stain whatsoever on the clothes of PW-3; that it is extremely
unnatural for two people who have not even moved around in a small area
where a lot of blood was splattered and come out totally unscathed; that he
was not injured at all; that even as per PW-2, he made no attempt to prevent
A-2 and A-3 from attacking the deceased and importantly, after the incident,
he did not visit PW-2 in the hospital for several days. According to the
defence, all of these factors show that PW-2 was in fact, responsible for the
deaths of the parents of PW-2.
64. It has come in the evidence of PW-2 that A-3 was pointing a pistol at
PW-3 who was made to sit on the sofa with a baby in his lap. The mere
fright of the fear of baby being harmed was sufficient for PW-3 not to be
adventurous in trying to get up from his seat. It would further be
remembered that the entire incident was over in a span of ten minutes with
A-2 and A-3 inflicting brutal knife wounds on the elderly couple as well as
on PW-2. With two assailants armed with sharp-edged weapons, it is but
natural that PW-3 would not want to risk his own life and the life of the
baby he was holding by attempting to intervene. In fact, he was sitting in
one place throughout so the fact that there were no blood stains on his
clothes cannot be said to be improbable or unnatural.
65. PW-3 continued to be under the threat of A-2 and A-3 even thereafter.
They made him drive his car and take them from place to place. Therefore,
this part of the story of the prosecution case is also totally probable and has
been proved by the consistent evidence of PW-2 and PW-3.
66. A-2 and A-3 have attempted to discredit PW-3 as regards the description
of the weapons that were used for committing the offence. Much has been
made of the fact that the knives were described as „rapis‟ when in fact they
were not rapis at all. It is seen that these weapons are not sophisticated.
They are not branded objects that one purchases in a shop. These are crude
sharp-edged weapons. Trying to draw a fine distinction about the weapons
having to answer the description of „rapis‟ would be missing the point
entirely. Clearly, from the sketches of the weapons, forming part of the trial
court record, it is seen that they were indeed sharp-edged weapons which
were like „rapis‟. The prosecution was careful to describe them as weapons
which were in the nature of rapis. In any event, this can hardly help either
A-2 or A-3 when it is comprehensively established in the unshaken
testimonies of PW-2 and PW-3, supported fully by the medical evidence,
that fatal injuries in the form of multiple stab wounds were suffered by both
Saudagar Singh and Kartar Kaur. That the death was homicidal and as a
result of multiple stab wounds is established beyond reasonable doubt.
67. The attempts over several years of torturous cross-examinations of PW-2
and PW-3 have been unable to be shake either of them in their clear, cogent
as well as consistent testimonies regarding the presence of both A-2 and A-3
and the fact that they wielded the weapons attributing to them to cause of
death of Saudagar Singh and Kartar Kaur as well as grievous injuries to
PW-2. Both testimonies also clearly point to the participation of and linkage
of A-1 in the crimes.
Other pleas
68. The PCR form recorded the earliest point in time, around 10:34 am, that
an incident where both the parents of PW2 and she herself were brutally
attacked has been conveyed to the police. Further it also records that the
sister of PW-3 informed the police about the kidnapping of PW-3. From the
side of A-1, it is sought to be contended that if indeed both the incidents, i.e.
the kidnapping of PW-3 and the murder of the deceased were all
interconnected then two FIRs ought not to have been registered. Reliance is
placed on the decision of the Supreme Court in T.T. Anthony v. State of
Kerala AIR 2001 SC 2637.
69. In the considered view of the Court, the above submission is
misconceived. As described by PW-1 (Manju), PW-3 was forced to
accompany A-1and A-2 at gun point and made to drive his own car from his
clinic. That was clearly one offence that warranted registration of the FIR at
the place where it occurred, i.e. within the jurisdiction of PS Tilak Nagar.
That it might have been registered three days late does not in any way falsify
the deposition of PW-1, fully supported by the version of PW-3 himself. As
rightly noted by the trial Court the failure by the police to formally register
this FIR at PS Tilak Nagar does not in any manner discredit the version of
PW-1.
70. After being made to drive to Pitampura, A-2 and A-3 made PW-3 take
them to the house of his in-laws again under threat to his own life. This is
also clearly established. There is definitely therefore, a continuity of events.
The brutal murder of his in-laws and grievous injuries to his wife at the
hands of A-2 and A-3 called for the other FIR which was registered at PS
Shalimar Bagh. Ultimately, both FIRs were consolidated by the Court. The
Court, therefore, does not find this to be a major discrepancy whatsoever. In
any event what prejudice this linking of the FIRs has caused to them, if at
all, has not been shown by any of the accused.
71. From the side of A-1, it is sought to be argued that PW-1 was a planted
witness; that she knew A1 from before and it was, therefore, easy for her to
implicate A-1 and that she made inconsistent statements in this regard.
72. A careful perusal of the evidence of PW-1 indicates that she was
consistent about having seen A-1 and A-2 at the clinic; about PW-3 being
taken away from there by them and forced at gun point to drive his own car.
Certain contradictions have certainly been pointed out by confronting PW-1
with her previous statement to the police but these are not material enough
to discard her testimony. Further on the material aspects, she is corroborated
by PW-3 himself.
73. On behalf of A-2 and A-3, arguments were advanced about the events
that transpired after the killing of the parents of PW-2. There is an argument
made regarding recoveries having been planted on them. The argument as
regards the two knives is that PW-3 described it as a „sickle‟ but PW-2 as
„rapi‟. The weapon described in the sketch is named as „darati‟ and
„khukri‟. As regards the pistol, it is stated that as per the forensic test, the
bore of revolver was .32 bore whereas according to ACP B.R. Mann (PW-
34), the bore was .25 bore. It is also stated that the pistol recovered is not
even in working condition and, therefore, could not have been used for
abducting or threatening anyone. It is, therefore, contended that the gun was
a planted weapon.
74. The above submissions do not impress the Court. The description of the
knives used by A-2 and A-3 do not, in any manner, throw doubt on the fact
that the injuries received by PW-2 herself and the two deceased were
grievous injuries by a sharp-edged objects, whether one calls them as „rapi‟,
„khukri‟ or „darati‟. The sketch of the weapon recovered and supported by
medical evidence is enough to conclude that those weapons could have been
used to cause death of the deceased. As far as the gun is concerned, it is of
no consequence if it was .25 or .32 bore or whether it was not in working
condition. It is nobody‟s case that the pistol was actually fired during the
incident but only that it was used to threaten PW-3. Consequently, this
discrepancy is of no assistance whatsoever to any of the accused.
75. It was urged that the distance between the clinic of PW-3 and his in-
laws' place at Pitampura was such that a far longer time, than that suggested
by the prosecution, would have elapsed by the time he reached Pitampura by
car. The Court does not find this to be of any great significance. The time of
receipt of the complaint as reflected in the PCR record for both FIRs and the
fact that it was a public holiday (being Muharram) does not give rise to any
grave doubt about the timing.
76. There is much made by counsel for the accused regarding non-lifting of
the finger prints and blood stains from the car of PW-3. It is further sought
to be suggested that the two accused, i.e. A-2 and A-3, could not be
expected to wear the bloodstained clothes for five days in the extreme
summer month of May and someone must have noticed blood on their shirts.
It was contended that the blood on the shirts ought to have matched with the
blood of the deceased. Likewise, it is stated that the blood on the weapons
ought to have been tested.
77. It must be remembered that this is a case where we have two eye
witnesses; one is an injured witness who has spoken cogently about the
actual killings that took place without any serious contradiction. All of the
other factors, viz., the finger prints matching, the blood group matching etc.,
would be in the nature of corroborative pieces of evidence. Where there is
direct evidence of an eye witness, the fact that there may not be sufficient
corroborative evidence is not very significant. There could be number of
reasons for why no blood group matching was done which the Court would
not like to hazard guesses about at this stage. It is sufficient to be noticed
that one of the weapons of offence did match the „A‟ blood group of the
deceased.
78. Much is also made of the fact that PW-9 stated that he found the conduct
of PW-3 suspicious when he visited his shop and that he did not notice
bloodstains on the clothes of PW-3 or A-2 or A-3. It is nobody‟s case that
there were blood stains on PW-3. Therefore, the above statement by PW-9
does not contradict the case of the prosecution. As regards PW-9 finding the
conduct of PW-3 suspicious, the context in which it was stated was not that
PW-9 doubted that PW-3 was guilty of any offence. It was only that he
found it strange that PW-3 would ask for so much money. It further tallies
with the case of the prosecution that A-2 or A-3 were desperate for money to
be paid to them by PW-3 and therefore, they forcibly took him from place to
place for that purpose.
79. The evidence of PW-6 and PW-9, apart from PW5, supports the case of
the prosecution as to the events that took place subsequent to PW-3 leaving
the place of occurrence in his own car at the instance of A-2 and A-3 along
with his baby. At every stage, he was under the fear of harm being caused to
his baby and that would explain his strange behaviour. It is not suggestive of
any culpability on the part of PW-3 as is put forth by the accused.
80. The non-examination of three persons by the prosecution is sought to be
made much of. These three are: Mumtaz Ahmed, who was a tenant in the
premises owned by the deceased and who was the first to give information
to the police about the occurrence; Dr. Anita, who is the sister of PW-3 and;
Dr. Gaurav Aggarwal, who is the brother-in-law. Dr. Anita is stated to have
called the police immediately after PW-3 was taken away by A-1 and A-2.
81. While it would have strengthened the case of the prosecution even
further if these three persons had been examined, the Court is unable to be
persuaded to hold that the prosecution deliberately kept these witnesses
behind. Once the prosecution case finds complete supports from the eye-
witnesses accounts of PW-2 and PW-3, one need not look elsewhere for
further corroboration and further evidence as regards the occurrence. As far
as the actual incident of killing of Saudagar Singh and Kartar Kaur and
causing of the grievous injuries to PW-2 is concerned, the Court is satisfied
that the eye-witness accounts of PW-2 and PW-3 do not suffer from any
major or material contradictions. They fully corroborate each other as to the
events that transpired in the span of ten minutes in the premises of the
deceased on 3rd May 2004.
82. The Court is not able to accept the contention that PW-3 somehow
masterminded the entire killing of his own in-laws by hiring two killers
neither of whom was A-2 or A-3. There is nothing that has emerged in the
cross examination of the PWs to even remotely substantiate such a plea. The
involvement of A-1 in the entire occurrence is more than sufficiently
established by the evidence of PW-1 who corroborates PW-3 on all the
material aspects concerning the involvement of A-1. Additionally, both PW-
2 and PW-3 have consistently stated that A-2 pressurized Saudagar Singh
into giving in writing that he was leaving the property only to A-1. This
brings to the fore the link of A-1 with A-2 and A-3 and therefore,
completely proves the case of the prosecution convincingly.
83. It was submitted on behalf of A-1 that no effort was made to recover the
paper containing the writing of Saudagar Singh to the above effect. It has
emerged in the depositions of PW-2 and PW-3 that this piece of paper was
possibly given to A-2. What A-2 did with it is not for anyone to guess. It is
not unusual that the prosecution was not able to recover this piece of paper.
Moreover, A-2 was on the run and was arrested more than five days after the
incident. What he did with the paper, if any, is for him to explain. The non-
recovery of that piece of paper therefore does not weaken the case of the
prosecution one bit.
84. The minor contradictions about the number of persons who took PW-3
away from the clinic as spoken by PW-1; the absence in the statement first
made to the police by PW-3 about A-1 having nodding her head in assent
when asked if she was a party to the abduction, or the letting off of PW3 by
A-2 and A-3 when they found that they could not extract any further money,
are not material enough to doubt the veracity of the evidence of PW-2 and
PW-3.
85. In order to show that A-1 was already in litigation with the deceased,
learned counsel for the complainant argued that there are documents to show
that there was a civil suit filed by A-1 for claiming her share and share of
her child in the property and there were some proceedings ongoing before
the CAW Cell. These are certainly factors that help the case of the
prosecution that there was sufficient motive for A-1 to have organized the
killing of the deceased as she was uncertain about getting a share in the
property.
86. There is a discussion in para 108 of the trial court judgment of the
evidence of Satvinder Singh (DW-3) regarding the arrest of A-2 at
Jalandhar. A-2 is the son of DW-3‟s wife‟s mausi. His cross-examination
by the APP exposed the hollowness of his claim about A2 having been
forcibly lifted from his house at Jalandhar. He failed to report about any
such incident considering that the persons who came there were in civilian
clothing according to him. That they would tell him that they are from
Crime Branch of the Delhi Police seems far-fetched. It has further come in
evidence that. The learned trial Court was, therefore, right in disbelieving
DW-3.
87. The other two defence witnesses were DW-1 and DW-2. DW-1 was
Sukhvinder Kaur, the mother of A-3, who spoke about her son having been
working as a hawker at Tilak Nagar. However, in cross-examination, she
stated that she did not complain to the higher officials regarding the alleged
bribe demand by ASI Jai Narayan. She is certainly an interested witness
trying to save her own son. The other defence witness was Vikas, who again
did not inspire confidence. The discarding of the defence evidence by the
trial Court, therefore, cannot be faulted.
Conclusions
88. The evidence of the two eye witnesses, PW-2 and PW-3, was consistent
and reliable on the material aspects of the crime. They remained unshaken
despite extensive cross-examination spread over several years. PW-2 was a
grievously injured eye witness who had absolutely no reason to falsely
implicate A-2 and A-3. Both PWs 2 and 3 are consistent on the role and
involvement of A-1 in the crime as well. The evidence of PWs 2 and 3 is
sufficient to bring home the guilt of the three accused for the offences with
which they were charged. In the case of A-1, the offence of abetment of the
murders of Saudagar Singh and Kartar Kaur has been proved by the
prosecution beyond all reasonable doubt. The sentences awarded by the
learned trial Court are fully consistent with the offences proved against the
accused by the prosecution and also do not call for any interference.
89. For all of the aforementioned reasons, the impugned judgment dated
22nd March 2017 passed by the learned ASJ, convicting the Appellants for
the offences for which they were charged, and the impugned Order on
Sentence dated 1st April 2017 are hereby affirmed.
90. The appeals are accordingly dismissed but, in the circumstances, with no
orders as to costs. The bail bonds of Appellant Kanwaljeet Kaur @ Sonia
(A-1) are cancelled and she is directed to surrender forthwith. The pending
applications are disposed of.
S. MURALIDHAR, J.
I.S. MEHTA, J.
NOVEMBER 14, 2017
Rm/rd
