THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10th August, 2011
+ CRL.A. No. 838/2009
DEEPAK ..... Appellant
versus
STATE .... Respondent
Advocates who appeared in this case:-
For the Appellant : Mr Uday Gupta with Mrs.Shivani Lal &
Mr M.K.Tripathi, Advocates
For the Respondent : Mr Sanjay Lao, APP
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MS JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VEENA BIRBAL, J
1. Present appeal is directed against the judgment dated 29th
August, 2009 passed by the learned Addl. Sessions Judge, New Delhi
arising out of FIR No.297/07 registered under Section 302 read with
Crl. A. No. 838 of 2009 Page 1 of 19
section 34 IPC wherein appellant Deepak has been convicted for the
offence punishable under Section 302 IPC. The appeal is also
directed against the order of sentence dated 10th September, 2009
whereby the appellant has been sentenced to undergo life
imprisonment and to pay a fine of Rs.10000/- and in default of
payment of fine to undergo simple imprisonment for six months.
The co-accused i.e. the father of the appellant has been acquitted
of the charge.
2. The case of the prosecution is that complainant Hans Raj, PW5,
had made a statement to the police, Ex. PW5/A, alleging that on 21st
April, 2007, his father Wazir Singh, i.e., the deceased had gone to
Patiala House Courts to attend a complaint case filed by him against
his brother Sri Kishan i.e., the accused in the present case as well as
his sons Deepak i.e., the appellant, Ram Khiladi and wife of Sri Kishan
and Santosh wife of Kailash. All the aforesaid persons had also gone
to attend the said case on the said date. At about 1.30 pm his father
i.e., the deceased had returned to his house i.e., House No.616, Village
Devli. When Hansraj PW-5 went to meet the deceased, he told him
that he had come back with the aforesaid persons in the same bus and
Crl. A. No. 838 of 2009 Page 2 of 19
when he had got down at Devli bus stand, his son Sri Kishan and
appellant Deepak had abused him and he did not say anything to them
and came back to his house quietly. It is alleged that when
complainant Hans Raj, PW-5, was taking his father i.e., deceased to his
house and reached the door of his house, appellant Deepak and his
father Sri Kishan were standing in front of their house and started
abusing and beating the deceased. On hearing the commotion, both
the sons of Hans Raj-PW5 came out and tried to save the deceased
from the accused persons. In that process, there was a scuffle between
appellant Deepak and Sandeep, PW1. Thereafter appellant Deepak
went to his house while Sri Kishan continued quarrelling with the
deceased. Immediately, Deepak came back with a stick like object in
his hand and from that he took out a “Gupti” and uttered the words that
AAJ DADA KA KAAM TAMAM KAR DETA HU and stabbed in the
stomach of deceased with the said Gupti and at that time co-accused
Sri Kishan had held deceased Wazir Singh from his back. Thereafter
appellant and co-accused ran towards their house and both the sons of
Hans Raj PW-5 brought the deceased to their house and made him lie
on the cot. It is alleged that thereafter Hans Raj PW-5 called 100
Crl. A. No. 838 of 2009 Page 3 of 19
number from his mobile. It is alleged that blood was flowing profusely
from the stomach of the deceased. He was taken to Batra hospital in
the car of a relative, namely, Dharmaveer. The doctor of the said
hospital had declared him as having been brought dead. It is alleged
that Sri Kishan and his son Deepak had committed the murder of
Wazir Singh. On the said statement, IO had made the endorsement
and got registered FIR Ex.PW 11/E against the appellant as well as co-
accused under Section 302/34 IPC. Thereafter, the Additional SHO
Sandeep Byale, IO PW-11, reached the spot with his staff. The crime
team was called at the spot and took photographs Ex. PW11/F1 to F4.
The blood, earth control, blood samples were lifted from the spot by
the I.O. PW-11 and the same were seized by preparing memos
Ex.PW5/D. The I.O. PW-11 also seized one mattress, bed-sheet from
the cot by preparing memo Ex. 11/G. The I.O. PW-11 also prepared
the site plan and thereafter went for the search of appellant and co-
accused with Hans Raj PW-5.
3. As per prosecution case, appellant Deepak as well as co-accused
Sri Kishan were arrested on the same day i.e., 21st April, 2007 at Holi
Chowk, Devli Gaon, New Delhi by the Investigating Officer PW-11
Crl. A. No. 838 of 2009 Page 4 of 19
vide arrest memo Ex. PW-5/B and Ex. PW-5/C respectively. On
interrogation, they had made separate disclosure statements PW 5/E &
PW 5/F respectively. On the pointing of appellant-Deepak alleged
weapon of offence Gupti Ex.P-1 was recovered from his house which
he had kept beneath the stairs of his house i.e., house No.499 A, Devli
village, which was seized vide Ex.PW-5/B. After completing
necessary formalities in this regard, postmortem examination of
deceased was got done at AIIMS. The weapon of offence Ex.P-1
which was seized during investigation was also sent to the concerned
Doctor who had conducted the postmortem examination of deceased
and his opinion was also taken in this regard.
4. After completion of necessary investigation, a report u/s 173
Cr.P.C was filed before the learned M.M., Delhi. Thereafter case was
committed to the Sessions court where charge was framed against the
accused persons for having committed the offence punishable u/s
302/34 IPC. The appellant and the co-accused had pleaded not guilty
to the same and claimed trial and thus were tried before the learned
Additional Sessions Judge, Delhi.
Crl. A. No. 838 of 2009 Page 5 of 19
5. The prosecution in all had examined 22 witnesses. Out of which
Sandeep PW-1, Prateek PW-2 and complainant Hans Raj PW-5 were
the alleged eye witnesses to the occurrence. Remaining evidence
relates to police and medical witnesses.
6. Incriminating evidence was put to the appellant as well as to the
co-accused in their statement u/s 313 Cr.P.C They had denied the
same and stated that they were innocent persons and were falsely
implicated. The appellant also stated that Gupti Ex.P1 and blood had
been planted upon him.
7. The ocular witnesses i.e., Sandeep PW-1, Prateek PW-2 and
Hansraj PW-5, did not support the prosecution case and denied having
seen the alleged occurrence. The learned Addl. Sessions Judge
relying on circumstantial evidence convicted the appellant Deepak for
having committed the offence u/s 302 IPC whereas his father i.e., the
co-accused Sri Kishan was acquitted.
8. Learned counsel for the appellant has contended that the eye
witnesses of the prosecution i.e., Sandeep PW-1, Prateek PW-2 and
Hans Raj PW-5 did not support the case of prosecution and were
declared hostile and were cross examined at length by the APP.
Crl. A. No. 838 of 2009 Page 6 of 19
Despite lengthy cross-examination, nothing relevant has come out
which could connect the appellant with the alleged occurrence. It is
contended that the circumstantial evidence relied upon by the Addl.
Sessions Judge is common for the appellant and the co-accused Sri
Kishan. On the same set of evidence, appellant has been convicted
while the co-accused has been acquitted.
9. It is contended that the learned Addl. Sessions Judge, New Delhi
has relied upon PCR information Ex. PW-9/A giving the name of
appellant as one of the assailants. It is contended that the learned Addl
Sessions Judge has also relied upon the recovery of weapon of offence
i.e., Gupti Ex.P1 alleged to have been recovered at the instance of
appellant. It is contended that the witness to the alleged recovery are
complainant Hansraj PW-5 and SI Om Parkash, PW-21 in whose
presence the appellant is alleged to have got recovered Gupti Ex.P1
and thereafter, same was seized by the IO PW-21 vide seizure memo
Ex.PW-21/B. It is contended that Hansraj PW-5 has not supported the
alleged recovery. As per his deposition, no recovery was effected at
his instance and police got his signatures on blank papers. It is further
contended that as per testimony of SI Om Parkash, PW-21 the alleged
Crl. A. No. 838 of 2009 Page 7 of 19
recovery was effected before recording of disclosure statement
Ex.PW-5/F of appellant Deepak. It is contended that even the
evidence of IO PW-11 is also not believable in this regard. It is
contended that Dr. Chittaranjan Behera PW-8 had conducted the
postmortem examination on the body of deceased on 22.04.2007 vide
report Ex.PW 8/A. As per prosecution case on the said date, at noon
time weapon of offence Gupti ExP1 was sent to the said doctor in a
sealed packet. The said doctor has deposed that on opening the said
packet, a wooden case containing Gupti was found which was having
„dried reddish stains‟. It is contended that in the sketch Ex.PW-21/A,
seizure memo Ex.PW-21/B which were prepared by the IO at the time
of alleged seizure of weapon of offence, there is no mention of such
stains. Even in the deposition of SI Om Prakash, PW-21, IO PW-11
nothing in this regard has come. It is contended that in these
circumstances, the alleged recovery of Gupti Ex.P1 becomes doubtful.
It is further contended that the said piece of evidence cannot be relied
upon and the chain of circumstances relied upon by the learned Addl.
Sessions Judge to convict the appellant breaks there. It is further
contended that when there is a doubt in the recovery of Gupti Ex.P1,
Crl. A. No. 838 of 2009 Page 8 of 19
the benefit of same ought to have been given to the appellant. It is
further contended that disclosure statement Ex. PW-5/E of co-accused
Sri Kishan was recorded prior to recording of disclosure statement of
appellant Ex. PW-5/F. In the disclosure statement of Sri Kishan Ex.
PW-5/E he had already stated to the police that appellant-Deepak had
kept Gupti in the house as such the place of recovery was already in
the knowledge of Investigating Officer. In these circumstances, the
alleged recovery at the instance of appellant has no meaning.
10. Learned APP has argued that the name of appellant has come in
PCR information Ex. PW-9/A, the second call which was received at
1310 hrs. It is further contended that litigation was going on between
the deceased Wazir Singh and his son Sri Kishan as well as grandsons
Deepak i.e., appellant and Ram Khiladi as such there was a motive to
eliminate him. It is further contended that there is no doubt about the
alleged recovery of Gupti Ex.P1 and the evidence in this regard does
not create any doubt as is contended. The dried reddish stains were
found on the Gupti Ex.P1 as is evident from the testimony of Dr.
Chittaranjan Behera PW-8. As per CFSL report Ex.PW-9/B blood is
detected on Gupti Ex.P1 and as per CFSL report Ex.PW-10/A the
Crl. A. No. 838 of 2009 Page 9 of 19
blood group is „A‟ which tallies with the blood group of deceased. Dr.
Chittaranjan PW-8 who has conducted the postmortem examination on
the body of deceased has opined that injury no.1 on the body of
deceased could be sustained by the Gupti.
11. It is contended that there are documents on record i.e., complaint
Ex. PW17/B dated 25th July, 2006 of deceased Wazir Singh filed
against co-accused Sri Kishan and his family including the appellant
before ACMM, New Delhi to the effect that they were harassing him
and wanted to reside in the property of the deceased. It is contended
that there are other complaints of deceased i.e., Ex.PW 22/B to Ex.PW
22/D against his family members including the appellant and from the
said complaints motive of appellant to commit the alleged occurrence
is clearly established. It is contended that on the pointing of Hans Raj
PW-5, IO PW11 had apprehended the appellant and co-accused. It is
further contended that the learned Addl. Sessions Judge has rightly
convicted the appellant on the basis of circumstantial evidence
established against the appellant and the appeal is liable to be
dismissed.
Crl. A. No. 838 of 2009 Page 10 of 19
12. We have heard learned counsel for the parties at length and
perused the material on record.
13. There are three eye witnesses to the alleged occurrence i.e.
Sandeep PW-1, Prateek PW-2, both sons of Hans Raj PW-5. The
deceased Wazir Singh was the father of Hans Raj PW5. The aforesaid
prosecution witnesses have not supported the case of the prosecution in
any manner. Sandeep, PW-1 and Prateek, PW-2 were confronted with
their statements Ex.PW1/A & Ex.PW 2/A respectively alleged to have
been made by them to police. The witnesses have denied having made
any such statements to the police. The complainant Hans Raj PW-5
was also confronted with the statement Ex.PW 11/C alleged to have
been made to the police on the basis of which FIR Ex.PW-11/E was
registered. He has also denied having made any such statement to the
police. He has deposed that police got a number of blank papers
signed from him. There is nothing in the evidence of the alleged eye
witnesses by which it can be said that appellant had caused the alleged
occurrence.
14. The circumstantial evidence relied upon by the prosecution is
PCR form Ex.P-9/A and Ex.PW 15/A, arrest of the accused persons at
Crl. A. No. 838 of 2009 Page 11 of 19
the instance of complainant Hans Raj PW-5, Blood stained Gupti
Ex.P1 which is alleged to have been recovered from beneath of the
staircase from the house of appellant at his instance. The opinion
Ex.PW-8/B of Dr Chitranjan Behera about weapon of offence and
CFSL report Ex.PW-10/A as per which blood group `A‟ is found on
the Gupti which is that of deceased.
15. As per PCR form Ex.15/A, on 21st April, 2007 at about 12.41
pm, Head Constable Mahavir PW-15 had received a telephone call
from Hans Raj, PW-5, phone no.9968199212, who had informed about
a quarrel at Holy Chowk, Devli village regarding stabbing of father of
caller by a knife. HC Mahavir PW-15 transmitted the call details to
wireless operator and reduced the said information into writing vide
PCR form Ex. PW15/A. It may be noticed that in the said information
name of the person having stabbed is not given. As per prosecution
case, the said message was transmitted to the PCR South Zone Vehicle
Eagle 47. As per recording in PCR form Ex. PW9/A, under the
heading of action taken by the police in the PCR form, it is stated
therein that the police official posted at E-47 had met Hans Raj PW-5
at the spot and was told by him that his father Wazir Singh aged 87
Crl. A. No. 838 of 2009 Page 12 of 19
years had been stabbed by the grandsons and the name stated therein
are Srikishan, Deepak and Ram Khiladi. The said information
recorded in the PCR form is contrary to the deposition of ASI Om
Prakash PW-19 who at the relevant time was posted in the PCR South
Zone Eagle 47. As per his deposition, on reaching the spot, injured
was not found and he was informed that it was a property dispute
between the family members. In these circumstances, even the
aforesaid information recorded in Ex.PW19/A cannot be relied upon.
The other two entries of PCR form Ex. PW9/A are recorded at 1359
hours and 1442 hours. As per information record at 1359 hours, it is
stated that at Batra Hospital, CMO informed that Wazir Singh aged 87
years was brought dead in the hospital. The seat of injury is also stated
therein. In the said information, name of accused persons is not
mentioned. The other information was recorded at 1442 hours wherein
it was recorded that caller had informed that incident had occurred five
minutes back and his father had been stabbed by khukri by his son Sri
Kishan and the two sons Deepak and Ram Khilari.
16. Further the case of the prosecution is that on 21st April, 2007,
appellant and co-accused were apprehended at 11 pm at the instance of
Crl. A. No. 838 of 2009 Page 13 of 19
Hans Raj PW-5. It is stated that appellant disclosed that he could get
the weapon of offence Gupti Ex.P1 recovered. Thereafter, he led the
police party to his house and got recovered the weapon of offence
Gupti Ex.P1 from beneath the staircase. The Gupti Ex.P-1 was seized
by the IO PW-11 in the presence of SI Om Prakash PW-21 and PW-5
Hans Raj. Hans Raj PW-5has not supported the recovery of Gupti Ex.
P-1. SI Om Prakash PW-21 has deposed that after conducting the
personal search of appellant Deepak and co-accused Sri Kishan, vide
memo Ex.PW-5/B and Ex.PW-5/A respectively, they led the police
party to House No.499A, Devli Village and the appellant got recovered
Gupti Ex.P-1 beneath the staircase of their house. Thereafter, sketch
of Gupti was prepared Ex.PW-21/A which was also signed by him and
Gupti was also seized vide Ex.PW-21/B and it was sealed with the
seal of SB. Thereafter, IO PW-11 recorded the disclosure statement
of appellant Deepak and Sri Kishan signed their Ex.PW.5/F and
Ex.PW.5/E respectively and he also signed both the disclosure
statements. Thereafter, they came back to police station along with the
case property.
Crl. A. No. 838 of 2009 Page 14 of 19
As per the above deposition of SI Om Prakash PW-11, the
alleged recovery was effected prior to recording of disclosure
statement Ex. PW 5/F of appellant Deepak, which is no recovery in the
eyes of law as such is not admissible under Section 27 of the Indian
Evidence Act. Further he has nowhere stated that Gupti Ex.P1 was
having reddish stains. The Gupti Ex. P1 was sent to Dr. Chitranjan
Behera PW-8 for seeking his opinion on the weapon offence. The said
witness has categorically stated in his evidence that Gupti Ex.P-1 was
having „dried reddish stains‟ and he recorded the same in report Ex.
PW-8/B. It is also an admitted position that no finger prints were lifted
from the weapon of offence i.e. Gupti Ex.P-1 before the same was
seized. It is also admitted position that in the sketch Ex.PW 21/A,
seizure memo it is not mentioned that Gupti was having „dried reddish
stains‟ on any portion of it. After reading the evidence it is noticed
that after sealing the pulanda and seizing the weapon of offence, the
seal after use was not handed over by the IO to Hans Raj PW-5 or to SI
Om Praksh PW-21.
17. ACP Sandeep Bayala, PW-11 was the additional SHO of P.S
Ambedkar Nagar at the relevant time and was the IO of the case. As
Crl. A. No. 838 of 2009 Page 15 of 19
per his deposition, appellant had made a disclosure statement Ex.PW-
5/F and had disclosed that he could get recovered the weapon of
offence. Thereafter, he had led the police party to House No. 499-A,
Devli Village and got recovered Gupti Ex.P1 beneath the staircase of
the aforesaid house which was seized vide seizure memo Ex. PW-21/B
and he had proved his signature on the disclosure statement Ex.PW-
5/F. In the seizure memo Ex.PW-21/B, it is clearly stated that before
seizing, Gupti was checked. It is no where recorded in the said memo
that Gupti was having „dried reddish stains‟. Even in the sketch Ex.
PW 21/A of Gupti, Ex.P1 there is no mention of „dried reddish stains‟.
Even in the evidence, it is not so stated by him. IO PW-11 has also
stated in the evidence that he did not lift any finger prints from Gupti
Ex.P1.
18. In view of evidence discussed above, different versions are
coming about alleged recovery of Gupti Ex.P1. The complainant
Hans Raj PW-5 has denied that the appellant got recovered the alleged
weapon of offence Ex.P1 under the staircase of his house no.499,
Devli Village. According to SI Om Prakash PW-21, Gupti Ex.P1, was
recovered first and thereafter disclosure statement Ex.PW-5/F was
Crl. A. No. 838 of 2009 Page 16 of 19
recorded. In these circumstances, the recovery of weapon of offence is
not admissible u/s 27 of the Evidence Act. Even if the evidence of
aforestated witnesses is ignored, the testimony of IO PW-11 also does
not inspire confidence. IO PW-11 in his deposition has stated that
after sealing the pulanda, he has handed over the seal to SI Om
Parkash PW-21 but the said fact is not recorded in the seizure memo
Ex. PW-21/B. As noted above, it is nowhere stated in the sketch of
Gupti Ex.P1 or in the seizure memo Ex. PW-21/B of Gupti that the
same was having dried reddish stains as is stated by Dr. Chitranjan
Behera PW-8. Dr. Chitranjan Behera PW-8, has noticed the „dried
reddish stains‟ on Gupti Ex.P-1 on opening the sealed pulanda, as is
recorded in Ex.PW-8/B as well as in his deposition before court. Had
the said stains been there at the time of alleged recovery, SI Om
Prakash PW-21 as well as IO PW-11, who had seized the same, would
not have escaped their attention. The stand of appellant is Gupti Ex.P1
and blood stains are planted. In view of the above, it cannot be said
that recovery of Gupti Ex.P1 is established by the prosecution beyond
doubt.
Crl. A. No. 838 of 2009 Page 17 of 19
19. It may also be mentioned that disclosure statement of co-accused
Sri Kishan Ex. PW-5/E was recorded prior to disclosure statement Ex.
PW-5/F of appellant Deepak and in the said disclosure statement, place
of recovery had already come. Instead of acting upon the said
disclosure statement, IO PW-11 recorded the disclosure statement Ex.
PW-5/F of the appellant and thereafter proceeded for recovery
pursuant to said disclosure statement. In these circumstances, even
otherwise the said disclosure statement Ex. PW-5/F leading to alleged
recovery is not admissible in evidence.
20. As per CFSL report Ex. PW-10/A blood group „A‟ is detected
on Gupti Ex.P1 which tallies with blood group of deceased. When the
recovery of Ex.P1 is doubtful, the said report Ex. PW-10/A is of no
help to prosecution.
21. In view of above discussion, no reliance can be placed on the
said circumstantial evidence of alleged recovery of weapon of offence
Gupti Ex.P1. There are documents on record to show that there was
property dispute between deceased and appellant and his son Sri
Kishan co-accused and his family including appellant. In the absence
of material evidence on record, evidence regarding motive, name of
Crl. A. No. 838 of 2009 Page 18 of 19
appellant coming in PCR form Ex. PW-9/A is not sufficient to convict
the appellant.
22. Considering the overall circumstantial evidence, appellant
deserves to be given the benefit of doubt. The judgment dated 29th
August, 2009 and the order of sentence dated 10th September, 2009
passed against the appellant are set aside. Accordingly, appeal is
allowed and the appellant-Deepak stands acquitted by giving him the
benefit of doubt. He be released forthwith if not required in any other
case.
VEENA BIRBAL, J
BADAR DURREZ AHMED, J
August 10, 2011
ssb
Crl. A. No. 838 of 2009 Page 19 of 19