Ms. Aashaa Tiwari, Advocate along with Mr. Puneet Narula, Advocate v. THE STATE

Through: Mr. Aashneet Singh, APP for the State. CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD HON'BLE MR. JUSTICE VIMAL KUMAR YADAV JUDGMENT (ORAL) SUBRAMONIUM PRASAD, J. 1. The present Appeal has been filed against the Judgment on conviction dated 09.01.2004, and the Order on Sentence dated 13.01.2004, passed by the Learned Additional Sessions Judge, Delhi (hereinafter referred to as (cid:179)Trial Court(cid:180)(cid:12) in Sessions Case No.94/2002, arising out of FIR No.123/2002, registered at Police Station, Sarai Rohilla, under Section 302 of the Indian Penal Code, 1860 (cid:11)(cid:179)IPC(cid:180)(cid:12). By the Judgment on conviction, the Appellant herein, Pradeep @ Vikram has been convicted for committing the murder of one Gurdeep Singh @ Titu. By a separate Order on Sentence dated 13.01.2004, the Appellant has been sentenced to undergo rigorous imprisonment for life along with fine of Rs.5,000/- and in case of default of payment of fine, he was further directed to undergo rigorous imprisonment CRL.A. 84/2004 Page 1 of 26 for six months for the commission of the offence punishable under Section 302 of IPC. 2. The Appellant, being aggrieved by the conviction and sentence, has preferred the present Appeal. 3. The facts leading to the filing of the present Appeal as stated in the Impugned Judgment are as follows: a. On 23.09.2002, at about 10 AM, Gurdeep Singh @ Titu after eating food had gone to play Holi with his friends Harpreet Sigh (PW-3), Bhupender Singh (PW-7), Amit Sharma (PW-4) and Inderjeet (PW-9). At around 02:30 PM, Amit Sharma came (PW-8) house and told him that the accused to Inderjeet (cid:54)(cid:76) (cid:81)(cid:74)(cid:75) (cid:182)(cid:86) Pradeep @ Vikram (cid:11)(cid:179)Pradeep(cid:180)(cid:12) had administered some chemical to the deceased Gurdeep Singh @ Titu (cid:11)(cid:179)Gurdeep b. Singh(cid:180)(cid:12). Upon which, Inderjeet Singh (PW-8) along with his father and Amit Sharma (PW-4) immediately went to H.No. B-1550 near Agarsen Dharamshala, where the deceased Gurdeep Singh was lying unconscious and his friends Inderjeet (PW-9), Bhupender Singh (PW-7), and Harpreet Sigh (PW-3), were holding him. c. Upon asking the de(cid:70)(cid:72)(cid:68)(cid:86)(cid:72)(cid:71)(cid:182)(cid:86) friends, Inderjeet Singh (PW-8) was told that the accused Pradeep, along with the deceased Gurdeep Singh, Amit Sharma (PW-4), Bhupender Singh (PW- 7), Inderjeet (PW-9) and some other boys were playing Holi in the street in front Kartarial Music System shop and some of the boys had consumed liquor. d. The aforementioned friends started tearing the clothes of each other. The accused Pradeep started tearing the clothes of the CRL.A. 84/2004 Page 2 of 26 deceased Gurdeep Singh. The deceased Gurdeep Singh objected to the same but still the accused Pradeep tore the clothes of the deceased Gurdeep Singh. Further, while dancing at the DJ, the accused Pradeep forcibly put a chemical, which he had in a bottle in his pocket into the mouth of the deceased Gurdeep Singh after a verbal altercation and ran away from there. After being made to drink the chemical, the deceased Gurdeep Singh was repeatedly saying in front of everyone that the accused Pradeep had made him drink something unknown and he was feeling a burning sensation. Inderjeet Singh (PW-8) took the then unconscious Gurdeep Singh to Hindu Rao Hospital where after about an hour Gurdeep Singh died. He further stated that the accused Pradeep had administered chemical with the intention to kill his brother Gurdeep Singh and his brother Gurdeep Singh had then expired. On the statement of Inderjeet Singh (PW-8), the IO had prepared Rukka and sent the same to the Police Station Sarai Rohilla and on the basis of the said Rukka, the FIR bearing No.123/2002 was registered by the Duty Officer at Police Station Sarai Rohilla and handed over the investigation to e. f. g. Additional SHO, Sarai Rohilla. h. During the investigation, the Additional SHO recorded the statements of the witnesses under Section 161 of Code of (cid:38)(cid:85)(cid:76) (cid:80)(cid:76) (cid:81)(cid:68)(cid:79)(cid:3) (cid:51)(cid:85)(cid:82)(cid:70)(cid:72)(cid:71)(cid:88)(cid:85)(cid:72)(cid:15)(cid:3) (cid:20)(cid:28)(cid:26)(cid:22)(cid:3) (cid:11)(cid:179) CrPC(cid:180)(cid:12). He also inspected the place of incident, prepared a site plan, had photographs of the spot taken, and also seized an amplifier, VCD player, speakers CRL.A. 84/2004 Page 3 of 26 (cid:68)(cid:81)(cid:71)(cid:3) (cid:38)(cid:39)(cid:182)(cid:86)(cid:3) (cid:73)(cid:85)(cid:82)(cid:80)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:86)(cid:83)(cid:82)(cid:87)(cid:3) (cid:87)(cid:75) (cid:85)(cid:82)(cid:88)(cid:74)(cid:75) (cid:3) (cid:68)(cid:3) (cid:86)(cid:72)(cid:76) (cid:93)(cid:88)(cid:85)(cid:72)(cid:3) (cid:80)(cid:72)(cid:80)(cid:82)(cid:3) (cid:40)(cid:91)(cid:17)(cid:3) (cid:51)(cid:58) -10/A and deposited the same with Malkhana. i. It is stated that following completion of investigation, a charge- sheet dated 29.03.2002 was filed against the accused Pradeep for the offence under Section 302 of IPC. The Appellant was formally charged with having committed murder by intentionally pouring the chemical into the mouth of the deceased Gurdeep Singh with the knowledge that such act was likely to cause death. The accused Pradeep pleaded not guilty and claimed trial. On 30.03.2002, the Additional SHO got the post-mortem of the deceased Gurdeep Singh conducted at Hindu Rao Hospital. After the post-(cid:80)(cid:82)(cid:85)(cid:87)(cid:72)(cid:80)(cid:15)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:181)(cid:71)(cid:72)(cid:68)(cid:71) -(cid:69)(cid:82)(cid:71)(cid:92)(cid:182)(cid:3) (cid:90)(cid:68)(cid:86)(cid:3) (cid:75) (cid:68)(cid:81)(cid:71)(cid:72)(cid:71)(cid:3) (cid:82)(cid:89)(cid:72)(cid:85)(cid:3) (cid:87)(cid:82)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) relatives of the deceased Gurdeep Singh. Thereafter, on 08.04.2002, the accused Pradeep was arrested in the case. Pursuant thereto, the Additional SHO received the post-mortem report bearing No.HRH 39/2002 i.e. Ex. PW-19/A of the deceased Gurdeep Singh, on which the Doctor had opined (cid:181)(cid:70)(cid:68)(cid:88)(cid:86)(cid:72) of death deferred till the report of the chemical analysis (cid:76) (cid:86)(cid:3) (cid:68)(cid:89)(cid:68)(cid:76) (cid:79)(cid:68)(cid:69)(cid:79)(cid:72)(cid:182)(cid:17)(cid:3) It is stated that on 10.05.2002, the Additional SHO sent the Ex. PW-19/A for examination (cid:88)(cid:81)(cid:71)(cid:72)(cid:85)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:86)(cid:72)(cid:68)(cid:79)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:71)(cid:72)(cid:68)(cid:79)(cid:3) (cid:82)(cid:73)(cid:3) (cid:181)(cid:42)(cid:88)(cid:85)(cid:71)(cid:72)(cid:72)(cid:83)(cid:3) (cid:54)(cid:76) (cid:81)(cid:74)(cid:75) (cid:182)(cid:3) (cid:87)(cid:82)(cid:3) (cid:41)(cid:17)(cid:54)(cid:17)(cid:47)(cid:17)(cid:3) (cid:48)(cid:68)(cid:79)(cid:89)(cid:76) (cid:92)(cid:68)(cid:3) (cid:49)(cid:68)(cid:74)(cid:68)(cid:85)(cid:17) Thereafter, the F.S.L Report bearing No.FSL2002/C-1207 dated

01.11.2002 i.e. Ex. PW-22/G was sent to the Station House Officer, Police Station, Sarai Rohilla with the results of j. k. l. m. n. CRL.A. 84/2004 Page 4 of 26 (cid:72)(cid:91)(cid:68)(cid:80)(cid:76) (cid:81)(cid:68)(cid:87)(cid:76) (cid:82)(cid:81)(cid:3) (cid:85)(cid:72)(cid:70)(cid:82)(cid:85)(cid:71)(cid:72)(cid:71)(cid:3) (cid:87)(cid:75) (cid:72)(cid:85)(cid:72)(cid:76) (cid:81)(cid:3) (cid:68)(cid:86)(cid:3) (cid:181)(cid:82)(cid:81)(cid:3) (cid:70)(cid:75) (cid:72)(cid:80)(cid:76) (cid:70)(cid:68)(cid:79)(cid:3) (cid:72)(cid:91)(cid:68)(cid:80)(cid:76) (cid:81)(cid:68)(cid:87)(cid:76) (cid:82)(cid:81)(cid:15)(cid:3) o. p. q. exhibits 1, 2A, 2B & 2C have positive tests for the presence of Organophosphorus (cid:44)(cid:81)(cid:86)(cid:72)(cid:70)(cid:87)(cid:76) (cid:70)(cid:76) (cid:71)(cid:72)(cid:86)(cid:182) During trial, the prosecuting examined 22 witnesses including members of the PCR, investigating officers, medical and forensic experts, and alleged eye witnesses. The Defence led only one witness. The Trial Court convicted the Appellant, Pradeep under Section 302 of IPC, holding that the prosecution had succeeded in establishing the commission of murder of Gurdeep Singh beyond reasonable doubt. The Trial Court was of the opinion that the incident as alleged by the prosecution, had taken place at about 2 or 2:30 PM and thereafter, the deceased Gurdeep Singh was moved to the Hospital and they reached about 3 or 3:30 PM and the same has been proved by the testimony of Satpal Singh PW-5, who is the father of the deceased Gurdeep Singh and Inderjeet Singh PW- 8, who is the brother of the deceased Gurdeep Singh and Constable Bhim Singh PW-15, who was posted on 29.03.2002 as duty Constable at Hindu Rao Hospital. They proved the DD entry and case was registered at about 4:30 PM. In lieu of the above, the Trial Court was of the viewpoint that there was no delay in recording the FIR and it is natural to consume the time in recording the FIR as well as to proceed into investigation by the police r. The Trial Court noted that it is natural that once the incident had taken place the role of the police starts thereafter in the CRL.A. 84/2004 Page 5 of 26 investigation and whatever the possible efforts should be taken by the police to solve the case were taken by the investigating agency. So, it cannot be considered and ruled out that this case has been registered in connivance of the PW-5 and PW-8 of the deceased Gurdeep Singh. s. The Trail Court also noted that it has been revealed from the overall testimonies that the death has occurred due to consuming of chemical by the deceased Gurdeep Singh. It is further the duty of the prosecution to prove as to who has poured the chemical into the mouth of the deceased Gurdeep Singh and the place of incident. The same has been proved by the prosecution even from the testimonies of hostile witnesses and if the testimonies of prosecution witnesses were to be considered, it should be considered as quality of evidence not as the quantity of evidence. t. The Trial Court took into account the FSL report i.e. Ex. PW- 22/G. The said FSL report dated 01.11.2002 gives positive test of presence of Organophosphorus Insecticides in the chemical examination. For ease of reference, the FSL report is being extracted hereinbelow: CRL.A. 84/2004 Page 6 of 26 u. The Trail Court also considered the distinction between the murder (Section 300 of IPC) and culpable homicide (Section 299 of IPC) not amounting to murder. The Trial Court emphasized on the key words used in the various clauses of Section 299 and 300 of IPC. It further stated that two aspects should be considered during the case of murder: (i) intention; CRL.A. 84/2004 Page 7 of 26