Full Text
Date ofJudgment:03.12.2013 CRL.A. No.898/2008
CHARANJEET SINGH @ CHANNI. .....Appellant
Through: Mr.Javed Hashmi, Advocate.
Through: Ms.Richa Kapoor, APP.
HON'BLE MS. JUSTICE INDERMEET KAUR INDERMEET KAUR, J. (Oral)
For orders, see file ofCrl. Appeal No. 772/2008.
! INDERMEET KAUR, J KAILAlAMBHIR' J DECEMBER 03, 2013 ndn '
CrL Appeal No.898/2008 2013:DHC:8636-DB./ HIGH COURT OF DELHI
Date ofJudgment:·03.12..?013 eRL.A. No.772/2008
ANAND KUMAR @BEERU @ ORS. .....Appellants
Through: Mr.Javed Hashmi, Advoccte.
Through: lVls.Richa Kapoor, APP.
CRL.A. No.898/2008 CHARANJEET SINGH @ CHANNI. .....ApDellant
Through: Mr.Javed Hashmi, Advoccte.
Through: Ms.Richa Kapoor, APP.
HON'BLE MS. JUSTICE INDERJ\;IEET KAUR INDJERMEET KAUR, J. (Oral)
On 01.5.2000 at about 8.30 p.m. Ram Chander was stabbed by six persons; he was removed to the Babu Jagjivan Ram Hospital where he succumbed to his injuries 3,t 10.00 p.m. Version of the prosecution was unfolded in tlfe statement of Vinod Kumar (PW-2)
2013:DHC:8636-DB \\ a helper at Sanjay Gandhi Transport Nagar for the las-' 7-8 years.
Ram Chander (deceased) belonged to his native villa@e. On the fateful day while he was returning home with the deceased they were attacked by six persons; two persons caught hold of them and one of them stabbed the deceased on his chest and abdomen; 1wo persons managed to escape on their scooter. PW-2 became confused; he shifted the injured to the hospital where he was declared d ::ad.
JUDGMENT
3 Post mOliem on the victim was conducted by Dr. Ashok laiswal (PW-8). The following injuries were noted upon the victim. l. Incised stab wound/oblique two transVerse pi'2ced on left ii. upper chest outer side in anterior axillary 'ine at 3.00 o'Clockposition and 9 cmfrOl11 left nipple o/size 2.[8] cm x.[8] cm x ? with medial angel acutely cut. Incised stab vvound obliquely placed on right hypochondrium placed 20 ern. below right nipple in line with it and 7 cm. ji-om unblicus at 11.00 0' clock position, ofsize 3.[2] cm. x.[8] cm. x ? outer angle acutely cut. iii. Incised wound 2.[5] cm. x.[8] cm x muscle deep on middle part ofleft arm on its back, obliquely placec/ with outer angle acutely cut. tv. A linear starch 1.[5] em. long on the mid lwart of left forearm.
4 The cause of death was opined as hemonh:lgic shock consequent to the injuries.
5 In the course of investigation PW-31 received two letters from Anand Verma (PW-7) which had been taken into poss~ssion vide seizure memo Ex. PW-7/A. Investigation was thereafter randed over Inspector Kailash Chand PW-32).
6 On 06.10.2002 i.e. more than two months after the date of the incident an information was received from police station K.irti Nagar \tV (Ex.PW-32/A) that two persons Charanjeet Singh and Na ·ayan Singh had been arrested in FIR No.47/2000; they had made their disclosure statement revealing their involvement in the present case. Both Narayan Singh and Charanjeet Singh were interroga1ed. Their disclosure statements Ex.PW-26/A and Ex.PW-26/B weI e recorded. Since they admitted their complicity in the present case' they were arrested; arrest memo of Narayan Singh is Ex.PW-32/B and that of Charanjeet Singh is Ex. PW-19/A; their date of arrest is 14.02.2000. Pursuant to their disclosure statement the involvement of Prem Kishore was known; Prem Kishore was arrested vide memo Ex.PW- 32/C; co-accused Anand Kumar was arrested vide memo Ex. PW- 32/D; accused Rishi was arrested vide memo Ex. PW-32/E.
7 The accused Narayan Singh led the police party to his residence at B-62, Wazirpur, Delhi and produced a diary. Narayan Singh has since died and as such it may not be relevant to discuss this pati of the evidence. Accused Charanjeet Singh had got _·ecovered a. scooter which was the vehicle used in the commission of crime; this recovery as also the subsequent recovery of the knife which was at the behest of accused Prem Kumar had been disbelieved by the trial judge and this evidence is also thus not being discussed.
8 Further version of the prosecution being that the motive for the crime was the rivalry between the two competing cousins i.e. Gurdial Singh and Narayan Singh who were both running their respective factories and the deceased Ram Chander being curreltly in the employment of Ourdial Singh, although earlier he was w)rking with Narayan Singh and this was the bone of contention bet'veen them; this murder had been committed by Narayan Singb and his accomplishes. Narayan Singh had been arrayed as an acc lsed in this charge-sheet. But after his death the proceedings qua him.lbated. 9 FUliher version of the prosecution was that on 08.05.2000 i.e. one week after the date of the offence celiain threatening letters had purportedly been written by Charanjeet Singh to Ourdial Singh and in the course of the investigation specimen/admitted han( [writing of Charanjeet Singh had also been obtained. The Finger Pr nts Bureau vide its report Ex.36/B and Ex.36/C had opined that the writing on the envelopes of the letters i.e. purported threatening lett~rs were in \'-\ the handwriting of Charanjeet Singh.
10 The accused persons had also refused TIP in the ])roceedings.conducted before the leaned M.M. (Ex.34/B); this was also treated as an additional adverse circumstance against the accused.
11 This in brief is the gist of the version of the prosecut ion.
12 In the statement of the accused recorded under Section 313 of the Cr.P.C. they pleaded innocence; they stated that they had been falsely implicated in the presence case; they had been made to sign blank papers.
13 No evidence was led in defence.
14 Arguments have been addressed at length on behalf of Mr.Javed Hashmi, Advocate on behalf of the appellants. Apart from oral submissions written submissions have also been filed. It is argued that the version of the prosecution rests on an (~ye-witness account of PW-2; he has however not supported the version of the prosecution. Attention has been drawn to various pllis of his deposition wherein he has stated that the accused had byen shown to him in the police station. Submission being that this was the reason --~ --~-------~~for the refusal of the TIP; there was a valid ground for refusal. Testimony of the hostile eye~witness even otherwise cannot be relied upon. Further argument heing developed on the report of the hand writing expert (Ex.PW-36/B and Ex. PW-36/C); submi~;sion being that the case of the prosecution that threatening calls and threatening letters had been sent by the accused Charanjeet Singh to Gurdial Singh after the date of the offence has been completely:iemolished by the witnesses who had been examined in this regard. Gurdial Sing (PW-1) has specifically stated that he did not receive any threat from Charanjeet Singh; attention has been drawn to testimony of PW-23, PW-24 and PW-2S; submission that all these witnesse~ have also clearly stated that no telephone call been made from theil' telephone number, as such the version of the prosecution that Charac1jeet Singh had made calls to Gurdial Singh is totally belied. The letters which had been seized vide memo Ex. PW-7/A have also been:iemolished in the version of PW-7 who had not supported the ver;ion of the prosecution on this count. Chowkidar Ramji Lal (J)W-9) and Jarnardan Paswan (PW-ll) had also on oath stated th It no such - - - - - - - - - - - --- -_. - letters had been delivered to Gurdial Singh; they h[8] d also not suppOlied the version of the prosecution. There thu:; being no evidence of any threatening calls or letters having be ~n sent by Charanjeet Singh to Gurdial Singh; the report of the Finger Print Expeli opining that handwriting of Charanjeet Singh appeared on the envelopes (Ex.P[7] and Ex.P[8]) has necessarily to be ignon:d. Further submission being that since the names ofthe accused did not figure in the FIR and there being a valid ground for their refusal to join TIP; this circumstance could not have been read against the accused persons. Attention has been drawn to the testimony ofPv\"-2 has also version of PW-32 wherein it has come on record that an application seeking police remand has been filed on 14.10.2000 for 1 period of two days; the application for TIP (Ex.PW-34/A) had be:n filed on 16.10.2000 clearly establishing that it was in this perio(i of police remand that the accused persons had been shown to PW-2. Motive has also been demolished as PW-l 0 is a hostile witness. (In no count does the version ofthe prosecution stands established.
15 Arguments have been refuted by the learned public prosecutor. \1 It is pointed out that PW-2 is the eye-witness of the pro~,ecution; he had supported the prosecution in his examination in chieJ' and it was only later on that this witness appeared to have been weln over and resiled from his earlier version. The trial judge had rightlJ noted that there was no valid ground for the accused to have refused TIP as they did specifying any reason for refusal. The motive for thE crime also stand established from the fact that admittedly the deceased Ram Chander was earlier an employee of Narayan Singh but later on he shifted his loyalties to Gurdial which was the reason for the grudge that Narayan Singh had against the deceased. Impugnei judgment does not call for any interference. 16 'We have heard learned counsels for the parties and perused the record.
17 The evidence relied upon by the prosecution;lgainst the accused persons is not only the eye-witness accOlut of PW-2 but also their refusal to pmiicipate in the TIP proceeding; for which an adverse inference has been drawn by the trial judge against the accused persons. One week after the incident two envelopes \C[6] containing threatening letters sent by Ram Chander to G lrdial Singh were proved to be in the handwriting of Ram Chander in terms of the report of the Finger Print Bureau. These cumulative factors had weighed in the mind of the trial cOUli to convict the appellants for the offence under Section. 302/34 of the IPe.
18 Relevant would it be to point out that there were six persons who had been charge-sheeted in the trial court. Naraya[1] Singh has since died and proceedings against him stood abated. AJ land Kumar had been declared to be a juvenile and the period already undergo.!1e by him had been set off against his conviction. This was vide orders of this Court dated 05.12.2011. There are now threE appellants before this Court namely Prem Kishore, Rishi and Charan: eet Singh.
19 We shall deal with each of the aforenoted circumst::mces noted hereinabove separately. 20 PW-2 was the eye-witness. He was Vinod Kumar It was on his statement (Ex.PW-2/A) that the rukka had been taken It 1.15 a.m. which was just a few hours after incident which was 8.30 p.m. on along with his uncle (deceased Ram Chander) were returning to their house at the red light chowk of G.T.Karnal Road 30-40 paces away from the bus stand four boys came from the front side; t INO of them caught hold of him and two grappled with his uncle; one of them was having a knife in his hand. The boy stabbed his uncle on his stomach and chest. PW-2 became perplexed and started ShOUtillg "Bachao Bachao". While PW-2 was running for a help those fOUl boys went away in two scooters which were standing nearby. He r ~moved his uncle to the hospital. He was informed that his uncle's c01dition was senous. Police was informed. His statement Ex.P'V-2/A was recorded. Further version being that Prem Kishore (prE sent in the cOUli) had given the stab blow to his uncle; the other accu;ed persons (present in the court - names not revealed) were als) correctly identified by him.
21 This deposition was recorded in the pre-lunch hour on 07.5.2001 i.e. one year of the date of the incident. In the post lunch hour the witness stated that Naryan Singh was not amongsc those four persons. This witness had been declared hostile. Leamed public prosecutor was granted pennission by the comi to cross-e~camine him. PW-2 in his cross-examination by the learned public prosecutor admitted that his statement was recorded twice; he admded that th~ accused persons after anest were shown to him in the pclice station;. He admitted that in his earlier statement he has stated that six persons were involved in the incident but in court he had deposEd that there were four persons who attacked them. He could not recollect whethet accused Charanjeet Singh was driving the scooter. In an()ther part of his cross-examination he reiterated that he had gone to p)lice station on 17.10.2000 and identified four accused persons whom he had then identified in court. In his lengthy cross-examination by the learned defence counsel which was conducted on a subsequent date (i.e. 25.7.2001) he reiterated that he had seen the appellants in the police station and he had identified them under the fear of policl~; this was 2 and 2 Y[2] months after the incident.
22 Admittedly, PW-2 is the only eye-witness. He is a hostile witness. He has not suppOlied the nanation which he had given to the police i.e. his first statement which had formed the be.sis of rukka '}-\ (Ex. PW-21A). A perusal of this version shows that in h s statement he had narrated the incident of 01.5.2000 where he alo,lg with his uncle were attacked by six persons but in comi he had referred to his assailants as four persons; fmiher in Ex.PW-21A he had stated that these six assailants had fled away on two scooters three persons seating on each scooter. On oath in comi he had reiteratl~d that four persons had attacked them and then fled away on two sea oters. This improvement in court qua the number of the assailants wa~ a material contradiction qua his earlier version wherein six persons had been referred to as the attackers. Admittedly, the accused perso[1s were not known to PW-2. The description of the accused persons rad also not been given; their height or features had not been descrit ed. It was
8.30 p.m. in the evening when the incident had occurred; CLbout 30-40 paces away from the bus stop. PW-2 not only in his crossexamination by the learned public prosecutor but also in the crossexamination by the defence counsel has in four sepa rate places reiterated that the accused persons had been shown to him in the police station and he had been asked to identify the accu:;ed persons ------- ----- -- - in the police station under threat from the police; in an,)ther part of his cross-examination he had given the date of their iderltification as 17.10.2001 and then again stated that he had seen the accllsed persons in the police station 2 and 2 Y:z months after the date ofthe incident. It is this testimony of PW-2 which had to be decided on the touchstone of reliability. It is now well settled that mere y because a witness has been declared hostile his evidence cannot be rejected in toto; it is not washed off altogether. However, such an evidence has to be closely and cautiously examined. When a case rests upon an eye-witness account and it is a primary piece of evidence; also being a case where the witness has been declared as adverslrial to the version of the prosecution and has been permitted tCI be crossexamined by the defence counsel the standard to judge hi s reliability is different.
24 The version of PW-2 was recorded on 07.5.200. He had identified the accused persons as his assailants. This was in the prelunch hour. In the post lunch hour, presuming that the \vitness had the line of the prosecution; his testimony would have tc be viewed differently. However, in the instant case it is in the exanination-inchief itself that the witness has made material embellislments and improvement qua his first version. Thus it is not a case where the witness was declared hostile after sticking to his original and initial stand. PW-2 had deviated from his version in Ex. PW -2/A in his examination-in-chief itself.
25 Tested on this touchstone the version of PW-2 sho\\ s that there is a material improvement made by him on oath qua his first version (Ex.PW-2/A). This testimony is thus wholly unreliable. Reliance by the Trial Judge upon this version to convict the acc lsed is an illegality.
26 In criminal law unless and until the prosecution has proved the case beyond all reasonable doubt conviction cannot be fou oded. This is the basic and fundamental rule of criminal jurisprudence. PW-2 had narrated an incident of 01.5.2000; meaning there Jy that an incident of attack had occurred on the said date and time but the question which has to be answered is that whether t le persons accused ofthe offence were the assailants? 27 PW-2 had on oath at 3-4 places deposed that the accused persons were shown to him in the police station. In on(; part of his deposition he had even mentioned the date as 17.10.2000. Record shows that on 16.10.2000 an application (Ex.PW-34/P,) had been filed by the investigating officer for conducting TIP of the accused persons. Accused person had refused to join TIP. No reaEon has been mentioned in the application. The legal submission adva nced before this court is that the accused persons had justifiably refused to [JaIiicipate in TIP for the reason that they had been Sf 0,,\1n to the complainant (PW-2) in the police station and this has be ~n so stated by PW-2 in the COLlli. Record fLlliher shows that he accused Charanjeet Singh was already on police remand from 14.10.2000. On 16.10.2000 an application was filed in the COLlli of the then learned M.M. Ms.Seema Maini qua four accused persons i.e. PTE'm Kishore, Rishi, Anand Kumar and Charanjeet Singh; this application had sought their police remand for five days i.e. from 16.10.2000 onwards up to 21.10.2000; this application also clearly stated that accused / fJ) Charanjeet was already in police custody from 14.10.2000.
28 Thus what clearly emanates is that all the accused persons were in police custody on 16.10.2000 which was the date when the application was filed by the investigating officer seeking a police cemand. Version of PW-2 that he had identified the accused persons in the police station thus makes out a justifiable case for the accused persons to refuse the TIP.
29 In Mangal Singh Ys. State 1996 AIHC 2390 where the accused bad refused to participate in the test and identification parade on the ground that he was shown to the witness and this faci has been ldmitted by the police; it was held that the accused was justi fled in,.efusing to participate in the test identification parade.
30 No adverse inference could have been drawn by the couli,lgainst the accused on this count. Dock identification ofthe accused I)ne year later i.e. on 07.5.2001 was only an eye wash. Such an.dentification could not be relied upon especially in the background ·Nhen admittedly the accused persons were not known to the eye- ·Nitness. Further the time of incident was 8.30 p.m.; it was almost (:rl. Appeal Nos.772/2008 & 898/2008 Page ~7 of22 completely dark; the spot of incident was 30-40 paces away from the bus stop; site plan (Ex. PW-14/A) does not depict any lamp post at the place of the incident; in fact the traffic lights positio 1ed at point 'D' are at a far distance from point 'A' which was the ·)lace of the incident. No description of the accused, either by height, size, weight, colour or creed had also been given. This may be especially impOliant to keep in view the fact one ofthe assailants is (l Sardar and could easily even recognized by his turban. This has al so not been mentioned in the Tukka. In fact the rukka is not only absent on the names of the accused but is bereft of all or any paliic ulars about them. Identification of the accused for the first time in comi thus could not have been relied upon to nail the accusl~d persons. Conviction in this background suffers from an illegal ity on this ground as well.
31 The next circumstance relied upon by the trial ju ige to base conviction against the accused were the threats purpOlied ly given by accused Charanjeet to Gurdial Singh (PW-l). The velsion of the prosecution was that threatening calls and threatening lettETs had been ()'1
34 Gurdial Singh (PW-I) has also on oath stated tha<: he did not receive any threat from any person through letters. He ha:::l received a threatening call on his mobile number but he could not sc:y as to who had given him this threatening call to him. His categorical version was that no threatening letter had been received by him.
35 It is in this background that the report of the Finger Print Expert has to be examined. Report of the Finger P ·int Bureau (Ex.PW-36/D) had opined that the person who wrote tf e specimen writing 8-36 to S-53 wrote the questioned documents Ql and Q[4] i.e. they were in the writings of Charanjeet on the envelopes (Ex.P[7] and P[8]) containing these threatening letters.
36 Besides the fact that this ocular testimony is con trary to the report (Ex.PW-36/D); even otherwise these specimen handwritings of Charanjeet having been taken by the investigating oLicer during the course of investigation while the accused was on po ice remand and without the permission of the court. In view of the judgment of the Full Bench of this Court titled as Sapan Haldar Vs. State; Criminal Appeal No.804/2001 decided on 25.5.2012 ~uch sample writings cannot be used against the accused having been obtained without the permission ofthe comi.
37 Prosecution has thus has failed to prove this circumstance either.
38 Even qua the telephone calls purported to have be ~n made by accused Charanjeet to PW-l prosecution has failed to pnve it. The relevant witnesses related to this circumstance i.e. PW-22, PW-23, PW-24 and PW-25 have not supported the version of the prosecution. All of them in unison have on oath stated that no telephon~ calls were made from their shop or from their phone numbers as public person were not permitted to use their phone. PW-22 was the owner of telephone number 5151947; her husband has deposed as PW-23. PW-24 was the owner of telephone number 5123767. Hi:; deposition was categorical to the effect that his uncle Charanjeet SiJlgh had not made any call from this number. PW-25 brother of 1he accused ~\ Charanjeet Singh had also deposed on the same line a~ PW-24 qua this phone number.
39 Reliance by the learned trial judge on this piece of evidence i.e. drawing a conclusion that threats had been advanced bJ Charanjeet Singh to PW-l through phone also suffers from an iUegallty.
40 On all counts the accused are entitled to benefit of doubt and a consequent acquittal. Accused Rishi is on bail; his bail bond is cancelled; his surety is discharged. Accused Prem <ishore and Charanjeet Singh are in judicial custody. They be rel~ased if not required in any other case.
41 The appeals are allowed and disposed of in the abo Ie terms.
42 A copy of this order be sent to the Jail Superintendent for necessary intimation and compliance. [NDER(\ET [V.DR, J ~/ KAILASH GAMlj]f1UR[1] J DECEMBlER 03~ 21(H3/ndn