Delhi High Court
Gurdeep Singh vs State on 19 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: July 26, 2022
% Judgment Delivered on: September 19, 2022
+ CRL.A. 1243/2018
GURDEEP SINGH ..... Appellant
Represented by: Ms. Sushma Sharma, Mr.
Girish Kumar Sharma, Mr.
Karan Verma, Ms. Aayushi
Gaur, Advs.
Versus
STATE ..... Respondent
Represented by: Mr. Tarang Srivastava, APP for
State.
+ CRL.A. 172/2019
REHMAN ALI ..... Appellant
Represented by: Ms. Saahila Lamba, Adv.
Versus
STATE ..... Respondent
Represented by: Mr. Tarang Srivastava, APP for
State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
MUKTA GUPTA, J.
1. By these appeals, the appellants challenge the impugned judgment
dated 29th August 2018 convicting Gurdeep Singh and Rehman Ali for
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murder of one lady Falguni, one 5 years old child Chetna and one male
Ashit Kumar; and order dated 30th August 2018 directing Gurdeep Singh to
undergo imprisonment for life alongwith a fine of ₹10,000/-, and in default
of payment of fine to undergo rigorous imprisonment of six months, and
directing Rehman Ali to undergo imprisonment for life and a fine of
₹2,000/- and in default of payment of fine to undergo rigorous imprisonment
of two months under Sections 302/34 of the Indian Penal Code, 1860
("IPC").
2. Learned counsels for the appellants assailing the conviction and
consequent order on sentence contend that the appellants have been
convicted based on circumstantial evidence. However, only two
circumstances have been pressed into service for establishing the guilt of the
appellant i.e. firstly, the appellants were found at the place of incident at the
time when the two police personnel i.e. Constable Sushil Kumar, PW-3 and
Constable Rajender Kumar, PW-5 reached at the place of incident and
secondly, clothes worn by the appellant Gurdeep Singh were found to be
stained with blood. No evidence has been led to prove that the appellant
Gurdeep Singh was a resident of the flat where the offence took place. In
the statement recorded under Section 313 of Code of Criminal Procedure,
1973 ("CrPC"), Gurdeep Singh clearly stated that on hearing screams, he
went to the flat where he found the three persons murdered and he was
mistaken to be the assailant. It is contended that to base a conviction on
circumstantial evidence, the chain of circumstances must be complete and
the only conclusion that can be drawn from the same should be in
consonance with the guilt of the accused and there should be no gap left in
the chain of evidence. On the strength of these two circumstances
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purportedly proved by the prosecution, the appellant Gurdeep Singh cannot
be convicted for the offence punishable under Sections 302/34 IPC. No
evidence was led in form of departure entry from the police station to prove
that Constable Sushil Kumar and Constable Rajender Kumar were on
patrolling duty. No effort was made by the police to associate any
independent witness at the time of investigation despite number of
independent witnesses being available.
3. It is further contended that there is serious discrepancy as to on which
floor the alleged incident took place, for the reason, though it is the case of
the prosecution that the incident took place on 3rd floor of the house in
question, however, Rahul Arora, PW-22 deposed that he was residing in the
third floor of the house and the incident took place on the fourth floor of the
house. The conduct of the appellants to be standing at the place is not in
consonance with their guilt, as in case they would have committed the
murder, they had sufficient time to flee away from the place of incident.
There was no motive whatsoever attributable to Gurdeep Singh to have
committed the offence alleged. It is the case of the prosecution that the
clothes of the two appellants were seized at the spot and despite specific
question put in cross examination as to from where the clothes were given to
change to the appellants, no explanation was rendered by police officials.
Even as per the testimony of the police officers, the place of incident was
easily accessible. Rahul Arora, the informant clearly stated that there were
screams of the women from the place of incident and other persons were
also going up and down at the place of incident after he had made the call to
the police.
4. Countering the arguments of learned counsels for the appellants,
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learned APP for the State submits that PW-15, Sanjay Bhalla has proved that
the flat where the three dead bodies were found, belonged to appellant
Gurdeep Singh. The appellant Rehman Ali was an employee of appellant
Gurdeep Singh, which fact he also admitted in his statement under Section
313 CrPC and as further proved by the call details between the two accused,
they often used to exchange calls. Learned APP for the State submits that
the prosecution has proved the motive to commit the murder of Ashit
Kumar, Falguni and girl child Chetna. It is the case of the prosecution that
the appellant Gurdeep Singh asked deceased persons to bring all the original
documents relating to a flat in Bawana on the pretext of arranging a meeting
with the prospective buyer. Taking that opportunity, both the appellants
executed the plan of committing the murder of three victims in order to get
the original property documents. The black bag having entire set of original
documents relating to the flat of Bawana was seized from the spot vide
seizure memo Ex.PW3/H, thereby facilitating the appellants to destroy the
documents of ownership in favour of the wife of the deceased Ashit Kumar.
The deceased were residents of Karol Bagh and had come to meet the
appellant Gurdeep Singh. The fact that appellant Gurdeep Singh knew Ashit
Kumar very well has come in deposition of PW-14 Bharti @ Rakhi, wife of
Gurdeep Singh who deposed that Gurdeep Singh had purchased a flat in
Bawana and the same was sold to the deceased Ashit Kumar in 2012.
Further, Sanath, PW-19 deposed that Ashit Kumar was friendly with
Gurdeep Singh. Even Shrawani Maajhi, PW-26, sister of the deceased
Falguni deposed that Gurdeep Singh used to come to her sister's house and
she had also seen her brother-in-law Ashit Kumar giving payment to
accused Gurdeep Singh. Presence of the appellant Gurdeep Singh in
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suspicious condition in the flat where the three dead bodies were lying with
clothes stained with the blood of the deceased clearly prove his having
committed the murder of the three victims with the aid of his employee
Rehman Ali. Explanation of the appellant Gurdeep Singh in his statement
under Section 313 CrPC that he heard the noise of the cry of women and
then went upstairs is not plausible. Further, the explanation of appellant
Rehman Ali that he was arrested from his house is also contrary to the
record. It is submitted that the chain of circumstances unerringly points
towards the guilt of the accused coupled with the explanation the appellant
owes under Section 106 of the Indian Evidence Act in relation to the facts,
especially, within their knowledge. There being no error in the impugned
judgment of conviction and order on sentence, the appeals be dismissed.
5. Heard learned counsels for the appellants and perused the record.
6. Investigation was set into motion on receipt of wireless message on
10th January, 2013 at about 11.20 pm, by Ct. Sushil Kumar/Complainant
(PW3) who was on patrolling duty with Ct. Rajender Kumar (PW5) that
screams of a lady could be heard from H.No.A-58, Nanhe Park, Uttam
Nagar, and the information was recorded vide DD No. 94B. PW3 &PW5
reached the spot, i.e. third floor of the said house where they found convict
Gurdeep Singh coming out of the door of the house with his clothes stained
with blood. Gurdeep Singh was apprehended at the spot and he informed
PW3 & PW5 that Rehman Ali (other convict) was present inside the house.
As PW3 & PW5 went inside the house, they found one lady (Falguni) lying
in the pool of blood, one child (Chetna) lying dead in another room and in
the third room one person (Ashit Kumar) lying in injured condition (who
later succumbed to injuries) and Rehman Ali was also found near that
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injured person. One black color bag containing property documents, weapon
of offence i.e. scissor & iron pieces which were part of sewing machine,
blood stained clothes, etc. were seized from the spot.
7. Dr. B.N. Mishra (PW6), Medical Officer cum Medical Legal Expert,
DDU Hospital conducted the post mortem of all the three dead bodies on
14th January 2013 and gave his reports Ex.PW6/A to Ex.PW6/C.
a. Post mortem report of Chetna Ex.PW6/A opined "cause of death due
to asphyxia by manual smothering. The manner of death is homicide.
Time since death is approx.. 2½ days prior to the post-mortem
examination."
b. Post mortem report of Ashit Ex.PW6/B opined "cause of death was
due to cranio cerebral injuries caused by being impacted by hard,
heavy blunt object. All 5 injuries on head were individually sufficient
to cause death in the ordinary course of nature or even enabled to
cause instantaneous death. The manner of death is homicide. Time of
death is consistent with the time of hospital death (i.e. dated 11th
January, 2013 at 09.30 AM)."
c. Post mortem report of Falguni Ex.PW6/C opined "The cause of death
is due to combined effect of hemorrhagic shock and head injury
caused by tearing of liver by recovered scissor and blunt forceful
impact upon the head. The injury no 1st, 4th and 5th were individually
sufficient to cause death in ordinary course of death. The constriction
of neck was done after the death of the deceased. The possibility of
involvement of assailants more than one person cannot be ruled out.
The manner of death is homicide. Time since death is approx.. 2½
days prior to the post-mortem examination."
d. In the subsequent opinion vide report Ex.PW6/D, it was opined that
"after perusal of PM report of deceased namely Smt. Falguni vide PM
no. 59/2013 the external injury no. 1,2,3,6 & 7 and PM report
no.60/2013 of deceased Ashit Kumar the injuries mentioned in
external injury, no. 1, would have been inflicted by the parts of sewing
machine of which the broken pieces are produced for examination."
8. Case of prosecution rests primarily upon the circumstantial evidence
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for which 33 witnesses were examined by the prosecution during the course
of trial, and on the other hand, one witness was examined by Gurdeep Singh
as defence witness. Based on the evidence brought on record, prosecution
has relied upon the following circumstances pointing towards the guilt of the
appellants and claim that the offences charged are proved beyond reasonable
doubt;
i. Convict Gurdeep Singh was present inside the property where
the incident took place, while convict Rehman Ali was present in the
last room of the third floor flat. No other person was present at the
spot when PW3 & PW5 reached the spot.
ii. Place of incident has never been disputed by the defence and
the post mortem report confirmed that the three deceased were
murdered.
iii. Place of occurrence was under tenancy and in possession of
Gurdeep Singh, which was deposed by Sanjay Bhalla (PW15), that he
had let his property out on rent i.e. third floor of A-58, Nanhe Park,
Uttam Nagar to Gurdeep Singh, which was in Gurdeep's possession at
the relevant time, though he failed to identify Gurdeep Singh as he
stated that the property was given to Gurdeep through his neighbor
Hanuman Singh who has since passed away.
iv. Gurdeep Singh & Ashit Kumar were well known to each other.
Sanath (PW19) deposed that he was acquainted with deceased Ashit
Kumar as both of them belonged to West Bengal and that during his
acquaintance with the deceased he got to know about the association
of Ashit & Gurdeep who was working as a tailor in Karol Bagh and
even Ashit was working in the same street at Karol Bagh. Even
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Shrawani Maajhi (PW26) sister of deceased Falguni deposed that her
brother-in-law used to treat Gurdeep as his friend and that Gurdeep
Singh used to come to her sister's house.
v. Bharti @ Rakhi (PW 14), who is the wife of Gurdeep Singh
deposed that she had sold the plot situated at Bawana, property
bearing no. 205-C, 2nd Floor, Block 1, Type-1, DSIIDC Housing
Scheme, Sector-3, to deceased Ashit Kumar, original sale documents
of which property were seized from the spot.
vi. As per the prosecution, the motive to commit the offences was
that after murdering the deceased, the bodies would be disposed of
and the property would again be sold in the market, for which the
deceased were called with the original property documents at the flat
of Gurdeep Singh.
vii. Clothes of the two convicts were stained with blood, and the
FSL report Ex.PW32/O3 confirmed the presence of blood on
Gurdeep's clothes to match with the blood group of the deceased
persons, and that of Rehman Ali were also found to have human blood
stains.
viii. Further, the case of prosecution is that when PW3 & PW5
reached the spot, they found Gurdeep Singh in frightened condition,
which would be relevant as convict's subsequent conduct u/S.8 of the
Indian Evidence Act.
9. Thus the case of prosecution was that as the two convicts were present
with two dead bodies and one injured person in the premises under tenancy
and in possession of convict Gurdeep, and both the convicts were working
together, the onus would lie upon the accused persons u/S.106 of the Indian
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Evidence Act, to establish facts which are especially within the knowledge
regarding the incident of murder of three persons which took place within
the four walls of the house. And since the accused persons failed to furnish
any plausible explanation for the same, adverse inference must be drawn
against the convicts.
10. The defence of the convicts was merely in denial. Gurdeep Singh
accepted having sold the Bawana plot to the deceased but stated that there
were no friendly relation with the deceased and that on the said day, when
he was passing through the street after having drink and meal at the house of
his friend Anil Kumar, few police officials asked for his help in removing
the injured persons to the ground floor, and from there he was taken to the
police station. On the other hand, Rehman Ali stated that he used to work at
the chicken shop of Gurdeep Singh at Matiala Road, but as the shop was
closed for few days, he had gone to the residence of Gurdeep Singh, who
was not found at the residence, and that when he was returning back, police
picked him up and took him to the police station where Gurdeep Singh was
already present.
11. The defence witness Sh. Dharmender Bajaj (DW1) examined by
Gurdeep reiterated the version of Gurdeep that he went to Anil's house for
dinner & drinks on the said day and that after the dinner, when they were
leaving, at about 11.30 pm they heard the screams from house no. A-58 and
then Gurdeep went to see what was happening, where allegedly police
officials did not allow Gurdeep to leave and told DW1 to leave the house
otherwise, he would get involved in the murder case. However, he
contradicted Gurdeep to the extent that Gurdeep had no permanent work, but
was involved in petty whitewashing contracts.
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12. As regards the contention of learned counsel for the appellant that
there is no evidence that the appellant was a resident of the flat in view of
the contradiction between the testimonies of the witnesses, it may be noted
that PW-15 Sanjay Bhalla clearly stated that he had rented out the third floor
of the property to Gurdeep Singh and the same was in possession of
Gurdeep Singh, even though he failed to identify him. Further, the
confusion in the statement of Rahul Arora, PW-22 as to whether the incident
took place on the third floor or the fourth floor, is not material and can be
accounted for in view of the fact that some people called the ground floor as
first floor. The place of incident has been established convincingly by the
testimony of the prosecution witnesses including PW-3 and PW-5 who
reached the spot before the local police as they were on patrolling duty.
Contention of learned counsels for the appellants that no departure entry
from the police station has been proved to show that Constable Sushil
Kumar and Constable Rajender Kumar were on patrolling duty, does not
affect the prosecution case as the PCR call was made at 11.20 p.m. pursuant
whereto, SI Raj Kumar and Constable Laxman reached the spot, before
whom Constable Sushil Kumar and Constable Rajender Kumar were already
on the spot. Further, the fact that there was no delay, is evident from the
MLCs of the three deceased which note that they reached the hospital at
12.25 a.m. on 11th January 2013 immediately after the incident. When
Constable Sushil Kumar and Constable Rajender Kumar reached the spot,
there were no other persons at the flat except the two appellants, the two
dead bodies and one injured in different rooms. Therefore the explanation
furnished by Gurdeep Singh that his clothes got smeared with blood as he
was helping the police to bring the injured downstairs is not plausible.
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13. From the evidence as noted above, it has been proved that Gurdeep
Singh and the deceased Ashit Kumar were known to each other as deposed
to by Sanath/PW-19 and Shrawani Maajhi/PW-26, sister of deceased
Falguni. Further, as per the deposition of the wife of the appellant Gurdeep
Singh, namely, Bharti @ Rakhi/ PW-14 a property at Bawana which was
owned by her was sold to deceased Ashit Kumar and the documents of the
said property were seized from the spot. This clearly proves the close
connection between Ashit Kumar (deceased) and Gurdeep Singh. If the
version of Gurdeep Singh is to be accepted that he heard the screams and
thus came to the floor to help, having seen Ashit Kumar and his family
whom he knew too well, it was highly unnatural that he did not call the
Police. Further, Sanjay Bhalla/PW-15 clearly stated that he had given the
third floor of property A-58, Nanhe Park, Uttam Nagar, the place where the
three victims were found in badly injured condition to one Gurdeep Singh,
who was in possession even though he could not identify Gurdeep by face as
the property was rented out to someone else. Further, there is no plausible
explanation of the appellant Gurdeep Singh as to how his clothes got
smeared with blood which tallied with the blood group of the deceased
person and that the clothes of Rehman Ali who was also present there were
smeared with human blood, though the grouping could not be found out. In
the light of these facts the learned Trial Court rightly invoked Section 106 of
the Evidence Act and the facts especially within the knowledge of the
appellant were required to be clarified by them.
14. The scope of Section 106 of the Indian Evidence Act first came up
before the Hon'ble Supreme Court for consideration in the decision reported
as AIR 1956 SC 404 Shambhu Nath Mehra v. State of Ajmer, wherein, it
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was held as under:-
"11. This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and Section
106 is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish
facts which are "especially" within the knowledge of the
accused and which he could prove without difficulty or
inconvenience. The word "especially" stresses that. It means
facts that are pre-eminently or exceptionally within his
knowledge. If the section were to be interpreted otherwise, it
would lead to the very startling conclusion that in a murder
case the burden lies on the accused to prove that he did not
commit the murder because who could know better than he
whether he did or did not. It is evident that that cannot be the
intention and the Privy Council has twice refused to construe
this section, as reproduced in certain other Acts outside
India, to mean that the burden lies on an accused person to
show that he did not commit the crime for which he is tried.
These cases are Attygalle v. R. [1936 SCC OnLinePC20]
and Seneviratne v. R. [1936 SCC OnLine PC 57]".
15. The question of burden of proof where some facts are within the
personal knowledge of the accused was examined in the case reported as
(2000) Cri.L.J. 4047 State of West Bengal v. Mir Mohammad Omar and Ors.
Taking note of the provision of Section 106 of the Indian Evidence Act, the
Hon'ble Supreme Court laid down the following principles:-
"31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be
taken as a fossilised doctrine as though it admits no process
of intelligent reasoning. The doctrine of presumption is not
alien to the above rule, nor would it impair the temper of the
rule. On the other hand, if the traditional rule relating to
burden of proof of the prosecution is allowed to be wrapped
in pedantic coverage, the offenders in serious offences would
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be the major beneficiaries and the society would be the
casualty.
32. In this case, when the prosecution succeeded in
establishing the afore-narrated circumstances, the court has
to presume the existence of certain facts. Presumption is a
course recognised by the law for the court to rely on in
conditions such as this.
33. Presumption of fact is an inference as to the existence of
one fact from the existence of some other facts, unless the
truth of such inference is disproved. Presumption of fact is a
rule in law of evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When inferring the
existence of a fact from other set of proved facts, the court
exercises a process of reasoning and reaches a logical
conclusion as the most probable position.
34. When it is proved to the satisfaction of the court that
Mahesh was abducted by the accused and they took him out
of that area, the accused alone knew what happened to him
until he was with them. If he was found murdered within a
short time after the abduction the permitted reasoning
process would enable the court to draw the presumption that
the accused have murdered him. Such inference can be
disrupted if the accused would tell the court what else
happened to Mahesh at least until he was in their custody".
16. In the decision reported as AIR 2007 SC 144 State of Rajasthan vs.
Kashi Ram, Hon'ble Supreme Court held that the principle in relation to
provision of Section 106 of the Indian Evidence Act itself is unambiguous
and categoric in laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is upon him. Thus, if
a person is last seen with the deceased, he must offer an explanation as to
how and when he parted company. He must furnish an explanation which
appears to the Court to be probable and satisfactory. If he does so he must be
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held to have discharged his burden. If he fails to offer an explanation on the
basis of facts within his special knowledge, he fails to discharge the burden
cast upon him by Section 106 of the Evidence Act. It was held that in a case
resting on circumstantial evidence, if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself provides an
additional link in the chain of circumstances proved against him. Section
106 does not shift the burden of proof in a criminal trial, which is always
upon the prosecution. It lays down the rule that when the accused does not
throw any light upon facts which are especially within his knowledge and
which could not support any theory or hypothesis compatible with his
innocence, the Court can consider his failure to adduce any explanation, as
an additional link which completes the chain.
17. Further, the Hon'ble Supreme Court in the decision reported as (2015)
4 SCC 393 Ashok Vs. State of Maharashtra, dealing with the principle
applicable under Section 106 of the Indian Evidence Act held that the initial
burden of proof is on the prosecution to bring sufficient evidence pointing
towards guilt of the accused. However, in case of last seen together, the
prosecution is exempted to prove exact happening of the incident as the
accused himself would have special knowledge of the incident and thus,
would have burden of proof as per Section 106 of the Evidence Act.
Therefore, last seen together itself is not a conclusive proof but along with
other circumstances surrounding the incident, like relations between the
accused and the deceased, enmity between them, previous history of
hostility, recovery of weapon from the accused, etc. non- explanation of
death of the deceased, may lead to a presumption of guilt.
18. Similarly, in the decision reported as (2019) 10 SCC 623 Rajender &
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Ors. vs. State (NCT of Delhi),it was held as under:-
"11.2. Having observed so, it is crucial to note that the
reasonableness of the explanation offered by the Accused as to
how and when he/she parted company with the deceased has a
bearing on the effect of the last seen in a case. Section 106 of the
Indian Evidence Act, 1872 provides that the burden of proof for
any fact that is especially within the knowledge of a person lies
upon such person. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he
parted company with the deceased. In other words, he must
furnish an explanation that appears to the Court to be probable
and satisfactory, and if he fails to offer such an explanation on
the basis of facts within his special knowledge, the burden cast
upon him Under Section 106 is not discharged. Particularly in
cases resting on circumstantial evidence, if the Accused fails to
offer a reasonable explanation in discharge of the burden placed
on him, such failure by itself can provide an additional link in
the chain of circumstances proved against him. This, however,
does not mean that Section 106 shifts the burden of proof of a
criminal trial on the Accused. Such burden always rests on the
prosecution. Section 106 only lays down the Rule that when the
Accused does not throw any light upon facts which are specially
within his/her knowledge and which cannot support any theory
or hypothesis compatible with his innocence, the Court can
consider his failure to adduce an explanation as an additional
link which completes the chain of incriminating circumstances.
Notably, a circumstance of last seen does not, by itself,
necessarily lead to an inference that the Accused committed the
crime. There must be something more that establishes a
connection between the Accused and the crime. For instance,
there may be cases where close proximity between the event of
last seen and the factum of death may persuade a rational mind
to reach the irresistible conclusion that the last seen of the
deceased is material and merits an explanation from the
Accused".
19. From the aforesaid noted decisions, the following principles can be
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culled out for application of Section 106 of the Indian Evidence Act:
(i) Section 106 of the Indian Evidence Act is designed to meet
certain exceptional cases where the facts which are especially
in the knowledge of the accused would be disproportionately
difficult for the prosecution to establish
(ii) Before invoking Section 106 of the Indian Evidence Act, the
prosecution is bound to prove the foundational facts.
(iii) Only the facts within the special knowledge of the accused are
required to be explained to discharge the burden cast on the
accused under Section 106 of the Indian Evidence Act.
(iv) In case the burden on the accused is not discharged, an adverse
inference is required to be drawn and the fact of non-offering of
reasonable explanation can be treated as an additional link in
the chain of circumstances proved against him.
(v) The burden required to be discharged by the accused under
Section 106 of the Indian Evidence Act is not of a proof beyond
reasonable doubt but the explanation should be a probable one
compatible with the innocence of the accused.
20. From the evidence led by the prosecution as also the onus that shifted
to the appellant under Section 106 of the Evidence Act having not been
discharged, this Court finds no error in the impugned judgment of
conviction and order on sentence.
21. Consequently, the appeals are dismissed.
22. Copy of the judgment be sent to the Superintendent Tihar Jail for
updation of record and intimation to the appellants.
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CRL.M.B. 590/2022 in CRL.A. 172/2019
Application is disposed of as infructuous.
(MUKTA GUPTA)
JUDGE
(ANISH DAYAL)
JUDGE
SEPTEMBER 19, 2022
'vg'
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