Delhi High Court
Purshottam Chopra vs State on 23 May, 2011
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on :11th May, 2011
Judgment Pronounced on : 23rd May, 2011
+ CRL.A. 121/1999
PURSHOTTAM CHOPRA ...Appellant
Through: Mr.K.B.Andley, Sr.Advocate with
Mr.Jitender Kumar Dhingra and
Mr.M.Shamikh, Advocates
versus
STATE ...Respondent
Through: Mr.Pawan Sharma, Standing Counsel (Crl.)
with Mr.Harsh Prabhakar, Advocate
CRL.A. 139/1999
SURESH KUMAR ...Appellant
Through: Mr.K.B.Andley, Sr.Advocate with
Mr.Jitender Kumar Dhingra and
Mr.M.Shamikh, Advocates
versus
STATE ...Respondent
Through: Mr.Pawan Sharma, Standing Counsel (Crl.)
with Mr.Harsh Prabhakar, Advocate
CORAM:
HON‟BLE MR. JUSTICE PRADEEP NANDRAJOG
HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
Crl.A.Nos.121/99 & 139/99 Page 1 of 16
1. Vide order dated 6.8.1998 the appellants were charged for having acted in furtherance of a common intention and having murdered Sher Singh at 3:00 PM on 18.12.1997 at a vacant plot No.17, Goverdhan Park, Dal Mill Road, Uttam Nagar. The appellants pleaded not guilty to the charge and hence the prosecution led evidence. At the trial, 19 witnesses were examined by the prosecution and the appellants led no evidence in defence.
2. Vide impugned judgment and order dated 30.1.1999 the appellants have been convicted for the offence of having murdered Sher Singh and vide order on sentence dated 2.2.1999 they have been sentenced to undergo imprisonment for life. The conviction has been rested on 2 dying declarations, accepting to be true, as made by Sher Singh firstly to Dr.Sushma PW-8 and as recorded on the MLC Ex.PW-8/A of Sher Singh followed by Sher Singh‟s statement Ex.PW-16/B recorded by SI Rajesh Kumar PW- 16 who had reached Safdarjung Hospital where Sher Singh had been removed in a PCR van.
3. The case unfolds through Ex.PW-7/A recorded by Ct.Anju PW-7 who was on duty at the police control room and had made an entry in Form-I at the police control room recording the time 15:28 hours and the date 18.12.1997. She recorded that one unknown person rang up from telephone No.5590363 and gave the information that a person has set himself on fire near the bus stand adjoining Scooter Marker, Dal Mill Road, Uttam Nagar. Anju PW-7, the scribe of the entry proved the same at the trial.
Crl.A.Nos.121/99 & 139/99 Page 2 of 164. Being relevant for our discussion, we wish to highlight that at the trial the Additional Public Prosecutor who navigated the ship of the prosecution has not proved worthy of his appointment as an Additional Public Prosecutor and regretfully even the learned Trial Judge who recorded evidence has shown an utter disinterest in his job when the evidence was recorded and remained a mute spectator. We are recording as aforesaid, inasmuch as pertaining to trial of accused who were charged for having committed murder we are noticing in many cases that vital evidence remains unproved, though filed along with the charge sheet.
5. Form No.I of the Police Control Room has 4 parts, being Part-I to Part-IV and we find that the PCR Form, only Part-I whereof has been proved as Ex.PW-7/A has all 4 parts filled up and to the naked eye it is apparent that the writing on Part-II, Part-III and Part-IV is in the same hand which has filled up Part-I. It is apparent that Part-II, Part-III and Part-IV of the Form have been filled up by Anju. In Part-II recording the time 15:45 hours information noted is: „100% jala hua hai. Hospital lekar jaa rahe. Baki haalat baad main denge. Sher Singh S/o Ganpat Ram age 23/24 pata R/O H-No.603, Pankha Road, Uttam Nagar. Mitti ka tel daala aag laga li.‟ In Part-III it stands recorded that the information has been further passed on to PS Uttam Nagar and has been passed on to SI Rajesh Kumar whom we note has been examined as PW-16 and as noted hereinabove was the person who recorded the statement Ex.PW-16/B of Sher Singh. Thereafter in Part-IV it stands recorded: „100% jali hui haalat. SJ Hospital main dakhil karva diya hai. Baki kuch nahi hai. Abhi Crl.A.Nos.121/99 & 139/99 Page 3 of 16 usne doctor ko bayan diya hai Suresh and Purshottam ne pehle (illegible) mitti ka tel daal kar aag laga di hai.‟
6. There is tell tale contemporaneous record of very vital evidence reflected in Part-II, Part-III and Part-IV of the PCR Form and to a person with no knowledge of the procedures of the law, but having basic commonsense, it would be apparent that what is recorded is the dying declarations made by Sher Singh and as conveyed and hence recorded by Ct.Anju. It is unfortunate that the learned Additional Public Prosecutor as also the learned Trial Judge just did not bother to even read the contents of the PCR Form and unfortunately remained satisfied with proof of only Part-I thereof ignoring that much more was conveyed contemporaneously and stood recorded as credible documentary record of evidence and every part of the PCR Form should have been got proved.
7. Proceeding ahead we note that ASI Harish PW-18 who has deposed that on 18.12.1997 he was posted in the PCR West Zone on duty hours from 8:00 AM to 11:00 PM and when his van was stationed near Ganda Nala, Vikas Puri at about 3:30 PM he received message of one person being burnt near Scooter Market, Prem Nagar, Uttam Nagar and thus he rushed to the spot in the van where he found one male in a burnt condition at plot No.17, Goverdhan Park with 20/30 persons crowding around. He lifted the said person and removed him in his PCR van to Safdarjung Hospital and name of the patient/victim came to be known by him as Sher Singh. No person had accompanied him from the spot in the PCR van to the hospital and that on the way the patient was crying but did not have any talk with the police Crl.A.Nos.121/99 & 139/99 Page 4 of 16 personnel in the PCR van. On being cross-examined he stated that the van reached Safdarjung Hospital at 4:25 PM. He categorically stated that on the way he made no effort to talk with the patient. He said that the patient was not in a condition to speak. That he came to know the name of the person at the hospital from the persons present there and he gave the name of the deceased to the doctor when he got the patient admitted and that when the deceased was admitted at the hospital he was not in a position to speak.
8. It is apparent that ASI Harish is a liar. He is a person unworthy of being honoured with the dress of a police man and is unworthy of wearing the police badge with the National Emblem thereon.
9. Our reason for so expressing ourselves in near explosive language is the evidence which emerges through the MLC Ex.PW-8/A, proved at the trial through the scribe thereof Dr.Sushma PW-8 wherein it is recorded that Sher Singh S/o Ganpat Ram aged 23 years, sex male, R/o H.No.603, Pankha Road, New Delhi has been brought in a PCR to Safdarjung Hospital at 4:35 PM on 18.12.1997 and information given about the history of the injury is by the patient himself. The history of the injury is recorded in the following words: „Alleged to have sustained burn injury when some Purshottam and Suresh (tel wala) threatened him and then poured kerosene on him and set him on fire‟. It is recorded on the MLC that the patient was conscious and oriented, though critical and that the burn injuries covered the whole body surface area and were 100% deep burns.
Crl.A.Nos.121/99 & 139/99 Page 5 of 1610. Now, how would Ct.Anju record in the PCR Form at Part-II that the person in relation to whom she had recorded information in Part-I of the Form was 100% burn and was removed to Safdarjung Hospital and his name was Sher Singh S/o Ganpat Ram. His age was 23/24 years and his address was H.No.603, Pankha Road, Uttam Nagar and that he was burnt with kerosene oil.
11. No suggestion has been given to Ct.Anju that she was an expert in transcendental meditation and thus had the yogic mystical powers; to be sitting in the police control room and being in telepathy with Sher Singh. If this was proved, or even suggested to Ct.Anju, and subject of course to Part-II of the PCR Form being formally proved, one could have reason that using the technique of transcendental meditation Ct.Anju received telepathic information from Sher Singh and recorded the same in Part-II of the PCR Form. But this not being the evidence, the only other reason for Anju to be so recording is that somebody transmitted the information to her using a medium of communication other than transcendental meditation and this had to be either somebody flashing the message over the wireless or through a telephone or personally visiting Anju and tell her so. To a person with ordinary commonsense and requiring no great process of reasoning, it would be apparent that Anju would write the name, the parentage, the age, the address, the 100% burnt condition of Sher Singh, kerosene oil being used to burn him and he being removed to Safdarjung Hospital only through the mouth of ASI Harish, who had dared to stare into the eyes of the judicial process and falsely state that on the way to the hospital he had no talk with the deceased. But unfortunately Crl.A.Nos.121/99 & 139/99 Page 6 of 16 for us, the negligent prosecutor and the lazy judge have not ensured that Part-II, Part-III and Part-IV of the PCR Form was also proved and got exhibited and we leave the issue at that, highlighting further that in Part-IV of the PCR Form we have lost proof of further evidence of contemporaneous entries made by Ct.Anju regarding what the deceased told the doctor at the hospital, but fortunately feel relieved notwithstanding said loss of evidence inasmuch as what the deceased said at the hospital got recorded on the MLC and relevant evidence got saved.
12. ASI Harish, as noted hereinabove appeared as PW-18 and was the person who removed Sher Singh to Safdarjung Hospital, and as noted hereinabove has so deposed when he appeared at the trial and which testimony has not been challenged. Thus we have evidence that the deceased was removed to Safdarjung Hospital and as noted hereinabove the MLC Ex.PW-8/A records the name, the parentage, the age and the address of the deceased. The scribe of the MLC Dr.Sushma PW-8 has proved the MLC.
13. From the information recorded on the MLC it is clear that Dr.Sushma could have recorded the name, the parentage, the age and the address of Sher Singh only if somebody told her so. ASI Harish has categorically said that no civilian had accompanied him in the PCR van. He gibberishly stated that he came to know the name of the deceased at the hospital from the persons present there and this statement we find in his cross- examination. Who were those persons? It remains a mystery. The statement is a blatant lie. His claim that Sher Singh was unable to speak is a blatant lie. It is apparent that Dr.Sushma Crl.A.Nos.121/99 & 139/99 Page 7 of 16 has deposed truthfully for the reason she could not have recorded personal information pertaining to Sher Singh unless Sher Singh told her so or somebody close to Sher Singh and who had said information regarding Sher Singh having told her so. We find suggestion given to Dr.Sushma that some person other than Sher Singh gave her said information. No suggestion was given to Dr.Sushma that even she had mastered the technique of transcendental meditation to gather said information. Assuming she had mastered the technique of transcendental meditation, she needed some person to be in mental telepathic touch whom she knew could give said information to her and as she had no previous meeting with Sher Singh, how could she know who were Sher Singh‟s friends and relatives and thus she could not have put her transcendental meditation technique to operational mode inasmuch as she did not have a counterpart to be in telepathy with.
14. Dr.Sushma has contemporaneously recorded that Sher Singh told her that Purshottam and Suresh have set him on fire after pouring kerosene oil on him. How would Dr.Sushma know two names i.e. Purshottam and Suresh unless somebody told her so. Obviously it is Sher Singh who gave said names to her.
15. We thus have on record a dying declaration made by the deceased to Dr.Sushma and whether or not the same inspires confidence would be dealt with by us a little later and we proceed to record further contemporaneous events which unfolded during investigation and proved at the trial.
Crl.A.Nos.121/99 & 139/99 Page 8 of 1616. Information of a person being burnt received by Ct.Anju was transmitted to PS Vikas Puri where it was noted vide DD No.21A, copy whereof was entrusted to SI Rajesh Kumar PW- 16 who, accompanied by Ct.Vijay Kumar left for the spot and on learning that the injured had been removed to Safdarjung Hospital, left Ct.Vijay Kumar at the spot and proceeded to the hospital and as deposed to by him he collected the MLC of Sher Singh who was in the burns ward ICU of Safdarjung Hospital and moved an application Ex.PW-16/A requesting the doctor on duty to allow him to take the statement of Sher Singh and at point marked „X‟ on the application obtained a certificate from Dr.Rajesh Verma that the patient was fit to give statement at 7:50 PM on 18.12.1997. Dr.Rajesh Verma PW-17 has categorically deposed that the endorsement at portion marked „X‟ on Ex.PW-16/A was in his hand and he had signed the same at point mark „A‟. Thereafter, as deposed to by SI Rajesh Kumar he recorded the statement Ex.PW-16/B which is in Hindi and translated into English reads as under:-
"Statement of Sher Singh, S/o Ganpat Ram, R/o A-603, Pankha Road, J.J.Colony, Uttam Nagar, Delhi aged 23/24 years.
I reside with my mother and I am employed as a helper in vehicle No.DL-IL-0382 Tata 407 owned by Raghunath who resides opposite Chaddha Hotel, J.J.Colony, Uttam Nagar the drivers of which vehicle are Natthu and Raju. Suresh who runs an oil depot on Hastal Road gave me half bottle of liquor which I drank. Suresh and Purshottam who have an oil depot at Jeevan Park and Suresh resides at 795, J.J.Colony and Purshottam resides at 686, J.J.Colony, Pankha Road. Suresh poured kerosene oil on me and Purshottam was with him. Suresh thereafter set me on fire by lighting a match."Crl.A.Nos.121/99 & 139/99 Page 9 of 16
17. SI Rajesh Kumar thereafter got the FIR registered and at the spot lifted a bottle of alcohol, a white coloured plastic bottle, burnt pieces of cloth and matchbox as recorded in the seizure memo Ex.PW-13/A and prepared the rough site plan Ex.PW-16/D. He deposed at the trial of having so done.
18. When examined under Section 313 Cr.P.C. appellant Suresh Kumar disclosed his residential address to be A-795, Pankha Road, J.J.Colony, Delhi and appellant Purshottam gave his residential address at A-686, Pankha Road, J.J.Colony, Uttam Nagar, Delhi.
19. As it is said, truth has the uncanny ability to ooze out. How would SI Rajesh Kumar note the address of Suresh Kumar and Purshottam if he had contrived the dying declaration if it was not from the mouth of the deceased? Unless of course even he was an expert in transcendental meditation. No suggestion was put to him that he had mastered the mystique of transcendental meditation.
20. Surely, it would be too strange an event that 3 persons who have played an important role in the instant case i.e. Ct.Anju, Dr.Sushma and SI Rajesh Kumar would have mastered transcendental meditation and would have gone about recording facts which were not told to them by Sher Singh and surprisingly the said facts would be corroborated by independent evidence.
21. That in the dying declaration Ex.PW-16/B not only the names but the avocation and even the residential address of the accused has been given with lethal precision lends assurance to Crl.A.Nos.121/99 & 139/99 Page 10 of 16 the truthfulness of the dying declaration so recorded and this dying declaration is upon proof of Sher Singh being fit when he made the statement, notwithstanding his condition being critical for the reason a person may be in a critical medical state but may be mentally fully conscious.
22. That the appellants run a kerosene depot has been deposed to by Raju PW-1 the brother of the deceased and we find that said testimony of his has not been challenged during cross- examination. How would SI Rajesh Kumar know that the appellants run a kerosene oil depot, a fact corroborated by Raju PW-1, unless the deceased told him so and this is further evidence corroborating the veracity of statement Ex.PW-16/B.
23. Motive to the crime has surfaced through the testimony of Raju PW-1 that on 2 or 3 past occasions his brother had a dispute with Purshottam.
24. Dealing with the submissions which were advanced, learned counsel for the appellants urged that Dr.Sushma PW-8 stated during cross-examination that burnt patients are brought directly to the casualty of the burns ward and stated that it may be possible that some relations might have accompanied the patient. Referring to the testimony of Dr.Rajesh Verma PW-17, the doctor who gave the fitness certificate at 7:30 PM, learned counsel pointed out that during cross-examination he admitted that the condition of the patient was critical and was continuously deteriorating and that patient remained admitted throughout at the ICU. Referring to the cross-examination of SI Rajesh Kumar wherein he stated that that he waited outside the ICU till the patient came out of ICU and thereafter he recorded the Crl.A.Nos.121/99 & 139/99 Page 11 of 16 statement of the patient, learned counsel urged that there was considerable cloud with respect to the place where the statement Ex.PW-16/B was recorded and thus counsel urged that the statement had to be ignored.
25. The argument is clinging on to straws to save oneself from drowning. Dr.Sushma has clearly deposed that she was working in the burns ward and received information that a person was admitted in the main burn casualty. Dr.H.K.Sharma PW-9 who has deposed that the death summary Ex.PW-9/A was prepared by a junior resident under his supervision and in his presence has stated that Sher Singh was admitted in his burns ward. Dr.Rajesh Verma PW-17 has stated that his duty was in the burns and surgery ward and that Sher Singh was brought in the emergency ward. In cross-examination he has stated that Dr.H.K.Sharma was the in-charge of the burns ward at the ICU. It is thus apparent that the casualty of Safdarjung Hospital has an area earmarked separately for patients with burns and is loosely called as the burns casualty and within the precincts thereof is an enclosure to keep the critical patients called the intensive care unit i.e. ICU and it is a case of different areas earmarked within a larger area. It is this reason which is the cause of a slight blurring of the focus of the spot and not such kind of blurring as to render virtually invisible to the eye as to what was the exact spot within a given area where SI Rajesh Kumar recorded the statement of Sher Singh.
26. Picking on the testimony of Rajesh PW-6 who deposed that on 18.12.1997 he was working in front of his shop at Dal Mill Road and around 3:15 PM heard a scream and saw smoke from Crl.A.Nos.121/99 & 139/99 Page 12 of 16 plot No.17 and upon reaching there saw persons having gathered around 1 person in flames whose fire he doused by throwing water and upon cross-examination stating that Dal Mill Road is towards the Northern side of Najafgarh Road and his shop was on a street leading to Dal Mill Road and that said street ends on Dal Mill Road and that plot No.17 was in front of house of one Rinku and that one has to pass from the street in front of his shop to reach plot No.17 and that he had not seen any person going away from plot No.17 when he heard the cries, counsel urged that it is apparent that from plot No.17 where burnt pieces of clothes, an empty bottle of alcohol and a plastic can, in which plastic can residue of kerosene oil was detected as per FSL Report Ex.PX, the only means to escape was the street leading to the shop of PW-6 and since PW-6 saw nobody run away, it is apparent that the deceased had himself committed the act by setting himself on fire and for which learned counsel highlighted that in the Part-I of the PCR Form which was exhibited as Ex.PW- 7/A it stood recorded that information given was that a man had set himself on fire.
27. The argument would assume that the accused ran away from the street after setting Sher Singh on fire. They may well have distanced themselves at a safe spot and hid themselves behind a bush or may be a dustbin or may be at some other vacant spot nearby. There is no evidence of the complete topology of the area around plot No.17 where Sher Singh was burnt. Thus, nothing turns on the argument. As regards the limb of the argument that in Ex.PW-7/A it stands recorded that a man has set himself on fire on Dal Mill Road at a spot near the bus stand adjoining the Scooter Market, it needs to Crl.A.Nos.121/99 & 139/99 Page 13 of 16 be highlighted that as recorded in Ex.PW-7/A the person concerned did not disclose his name. Is it not possible that to mislead the prosecution, the accused themselves or through a well-wisher of theirs passed on wrong information to the police? Why not. The fact that Ct.Anju has recorded that the informant did not disclose his name is proof of the fact that the informant was trying to hide his identity.
28. The contention that Rajesh PW-6 has categorically deposed that when he was near Sher Singh soon after Sher Singh was seen by him engulfed in flames, somebody in the crowd asked him as to how he had caught fire, Sher Singh replied that since he was dropped from the tempo he had set himself on fire and this is the first point of time on which Sher Singh made a dying declaration and thus the same had to be accepted is a plea which was raised before the learned Trial Judge and has been rightly rejected and for which we accept the reasoning of the learned Trial Judge in para 29 of the impugned order and since each and every reasoning of the learned Trial Judge is accepted by us, we need not burden our decision by re-penning the same and would comment that para 29 of the impugned judgment be read as an integral part of our present opinion.
29. It is unfortunate that the Investigating Officer has made no attempt to find out as to where was telephone No.5590363 installed, and we note that Ct.Anju has noted that she had received the call from said number. Had the Investigating Officer been a little vigilant he could have gone to the telephone exchange to find out where was said telephone Crl.A.Nos.121/99 & 139/99 Page 14 of 16 installed and in whose name and then we could have had some material further to reflect upon.
30. The settled legal position is that a dying declaration which inspires confidence needs no corroboration to sustain itself and in the instant case we have already discussed that there is sufficient evidence to bring luminance of gold to the two dying declarations made by Sher Singh and we do not find the same to be copper and that there is intrinsic evidence of truthfulness in the same for how could Dr.Sushma and SI Rajesh Kumar note the name, the parentage, the age and the address of the deceased unless the deceased told them so. How could SI Rajesh Kumar note the names of the accused, their avocation and their residential addresses unless the deceased told him so. These are tell tale pointers leading in the direction of the truthfulness of the two dying declarations made by Sher Singh and we have no evidence that Dr.Sushma has contrived a writing on the MLC. Why should she do so? There is no evidence why SI Rajesh Kumar would contrive a document? There is no evidence of any such contrivance on the part of the two. Though critical, but in a state of mind fit enough to make a statement is the evidence which has surfaced through the testimony of Dr.Rajesh Verma and he is the third person against whom no evidence of contrivance has emerged.
31. We may incidentally note that as per the post-mortem report Ex.PW-14/A the deceased died due to shock consequent upon 100% ante-mortem flame burns. Trachea showed presence of soot particles and there was peeling of the skin on the dorsum of hands. The state of the hands of the deceased i.e. skin peeling Crl.A.Nos.121/99 & 139/99 Page 15 of 16 on the dorsum of the hands shows the extent of the burn injuries on the hands on the dorsa side i.e. not the palm but the outer portion of the hand and therefrom there is an indication that kerosene was doused on the deceased by somebody else and not the deceased himself for if the deceased had poured kerosene oil on himself the same could not fall on the dorsum of the hands and if this was so we would have not found peeling of the skin on the dorsum of the hand and this is an additional piece of evidence wherefrom it can be inferred that somebody else doused the deceased with kerosene and not the deceased self doused himself with kerosene.
32. We conclude by according our imprimatur to the impugned verdict of guilt against the appellants and thus we dismiss the two appeals.
33. Since the appellants are on bail pending hearing of their appeals, we cancel the bail bond and also the surety bonds furnished by the appellants and direct both of them to surrender and serve the remaining the sentence.
34. TCR be returned. Copy of this decision be sent to the Superintendent Central Jail Tihar for his record.
(PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE May 23, 2011 mm Crl.A.Nos.121/99 & 139/99 Page 16 of 16