Delhi High Court
Sanjay Singh Sandhu vs State on 28 August, 2009
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, V. B. Gupta
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.08.2009
+ CRL. A 4/1993
SANJAY SINGH SANDHU ... Appellant
- versus -
STATE ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr P . K. Dey with Mr N. B. Joshi, Mr Y. P. Sarohi, Mr Santanu Ghosh and Mr Kaushik Dey For the Respondent : Ms Mukta Gupta, PP CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V. B. GUPTA
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 Digest ? Yes BADAR DURREZ AHMED, J
1. The appellant Sanjay Singh Sandhu has been convicted for having committed the offence punishable under Section 302 IPC as also under Section 27 of the Arms Act, 1959 by the learned Additional Sessions Judge by his judgment dated 02.11.1992 delivered in Sessions Case No. 46/1991, which, in turn, arose out of FIR No. 150/83 registered at Police Station Badar Pur under Section 302/34 IPC and CRL. A 4/1993 Page 1 of 43 under Section 27 of the Arms Act, 1959. By virtue of the order on sentence dated 04.11.1992, passed by the learned Additional Sessions Judge, the appellant was sentenced to rigorous imprisonment for three years in respect of the offence under Section 27 of the Arms Act, 1959 and to imprisonment for life along with a fine of Rs 5,000/- in respect of the offence punishable under Section 302 IPC. In default of payment of the fine, the appellant was directed to undergo rigorous imprisonment for five months. Both the sentences were directed to run concurrently and the appellant's revolver Exhibit P-16 was also directed to be confiscated. The charge-sheet was against four persons
-- (i) Sanjay Singh Sandhu (the present appellant); (ii) K. L. Shekhar;
(iii) Arvind Passi; and (iv) Nikhil Kumar. The learned Additional Sessions Judge had, however, acquitted all the accused other than the present appellant.
2. The case as set out in the charge-sheet was that on 31.07.1983, information was received at police post Okhla, Phase-I which was recorded in DD No. 15 that one person with blood stained clothes was lying on the shooting range road on the right side of Tughlaqabad. On receiving this information, Sub-Inspector Ashok Kumar, who was in- charge of the said police post, went to the spot along with Constable Dharambir Singh and Constable Kanwarjit Singh. The said spot was near the Tughlaqabad shooting range on the Surajkund Road on the CRL. A 4/1993 Page 2 of 43 Delhi-Haryana Border. The said police personnel are said to have found a blood stained dead body of a young male sikh by the side of the road. The body had bullet injuries on the left armpit and on the chest. Apparently, from the back pocket of the trouser of the dead person, one purse was found which contained cash and documents, from which it came to be known that the dead body was of Khushwant Singh, resident of E-7, Kailash Colony. Seven empty beer bottles were also found lying near the body. Inasmuch as the circumstances indicated the commission of the offence of murder punishable under Section 302 IPC, the said Sub-Inspector Ashok Kumar sent a ruqqa through Constable Kanwarjit Singh to the police station and on the basis of the said ruqqa, the FIR No. 150/1983 came to be registered. The investigation of the case was done by the said Sub-Inspector Ashok Kumar. Apparently, the dead body was identified at the spot by Vijender Singh and Harjinder Singh, brothers of the deceased. After conducting inquest proceedings, the dead body was sent to All India Institute of Medical Sciences for the post mortem examination. The charge-sheet reveals that from the spot, the Investigating Officer seized the blood of the deceased, the blood stained soil, sample soil, seven empty beer bottles, three empty cartridge shells out of which two were of .38 special calibre and one was Magnum Federal .357. A turban, CRL. A 4/1993 Page 3 of 43 ribbon, chappal and pieces of dhoti lying near the dead body were also said to have been taken into possession.
3. Statements of PW1 Ernest Deepak Lal and PW2 Rajan Jacob, who were alleged eye witnesses were allegedly recorded. According to the said statements, Khushwant Singh was shot dead by some persons who fired a bullet from the revolver and the ‗killers' had fled away in an Ambassador car bearing registration No. DIA 4451. In the course of investigation, the car was seized on 01.08.1983 and was also got inspected by the finger print expert from the Central Forensic Science Laboratory. On 02.08.1983 the appellant Sanjay Singh Sandhu and co- accused K. L. Shekhar surrendered before the DCP, South along with their .357 Magnum revolvers and arms licenses. The other two accused, namely, Arvind Passi and Nikhil Kumar were arrested after evidence was collected against them.
4. It is further the case of the prosecution that according to the post mortem report, Khushwant Singh's death was caused because of the firearm wounds. The co-accused Arvind Passi and Nikhil Kumar refused to participate in the Test Identification Parade while the remaining two accused including the present appellant Sanjay Singh Sandhu were said to have been identified by the alleged eye witnesses CRL. A 4/1993 Page 4 of 43 PW1 Ernest Deepak Lal and PW2 Rajan Jacob in the Test Identification Parade conducted by the Metropolitan Magistrate. It is on the basis of the aforesaid allegations and the purported evidence collected against the four accused persons that the charge-sheet was filed.
5. Thereafter, the charge was framed against all the four accused under Section 302/34 IPC. A further charge was framed under Section 27 of the Arms Act, 1959 against the appellant Sanjay Singh Sandhu. Since the accused pleaded not guilty, the case was put to trial. As many as 41 witnesses were examined on the part of the prosecution. The statements of the accused persons under Section 313 Cr. P.C were recorded. It is interesting that in this case the appellant, who was the accused No. 1 before the court below, had also filed a written statement explaining the circumstances. According to him, he had not gone to the spot of the alleged occurrence on 31.07.1983 nor did he use the car bearing registration No. DIA 4451 on that date. He was, however, informed on 01.08.1983 late in the night, while he was busy attending to his ailing father at his residence and office of his father's firm Chinar Exports Private Limited that he should present himself to the police with his revolver and licence. As per the said statement, the appellant was detained in the office of the said DCP, South where a number of CRL. A 4/1993 Page 5 of 43 other police officials were also present and his revolver and the licence were taken into possession. His photograph was also there on the arms licence. It is further stated that on 03.08.1983 he was produced before the Magistrate where his counsel had categorically told the Magistrate that he (the appellant) had been shown to many persons by the police. On 10.08.1983, the Test Identification Parade was held but the Magistrate did not ask nor did the alleged witness say in what connection they were identifying him (the appellant). According to the said statement, the investigation was lopsided and biased and the appellant had been framed in this case. It is further stated that as per the post mortem report, the deceased Khushwant Singh was drunk but this fact had been kept off the record by the Investigating Officer who, at no stage, joined any person from the public in making recoveries from the alleged site on 31.07.1983. According to the said statement, the story of the FIR having been recorded at Police Station Badar Pur and despatch of a special report was entirely false and discrepant. It was also alleged that there was a clear forgery of the statutory record maintained by the police. The alleged witnesses along with their companions were virtually detained by the police till the false case was engineered against the accused persons. It was also stated that neither the deceased nor his companions were known to the appellant and there was no motive for him for having committed the alleged offence. It CRL. A 4/1993 Page 6 of 43 was stated that he was falsely involved inasmuch as, unfortunately, one of the alleged shells was of .357 calibre and he was the only person possessing a .357 Magnum revolver as known to the police. It was further stated that the police had in fact found 10 empty cartridge shells at the spot but for some extraneous reasons they had seized only three, out of which only one shell is alleged to have been fired from the appellant's revolver.
6. The statement goes on to say that the place of occurrence is used for shooting practice and he had also earlier, once or twice, gone there for target practice just as others do, and this circumstance by itself is no evidence of his involvement in the case. He further stated that he might have driven the car No. DIA 4451 as his father was very ill but that would not implicate him in any manner. According to the said statement, the appellant claimed to be innocent as no case had been established against him.
7. The defence, however, led no evidence. After considering the arguments advanced by the counsel for the parties, the learned Additional Sessions Judge came to the conclusion that it was the appellant Sanjay Singh Sandhu who committed the murder of Khushwant Singh by using his revolver Exhibit P-16 on 31.07.1983 at CRL. A 4/1993 Page 7 of 43 about 3:15 pm near the Delhi-Haryana border, near the road leading from Tughlaqabad to Surajkund. Since it was concluded that the revolver Exhibit P-16 was used for the commission of the said offence, the appellant was also found guilty for the offence under Section 27 of the Arms Act, 1959. The other accused were, however, acquitted inasmuch as the learned Additional Sessions Judge was of the view that there was nothing on record from which it could be inferred that the murder in question had been committed in furtherance of the common intention of the other accused or that they, in any way, participated in the commission of the said offence of murder. Consequently, the learned Additional Sessions Judge was of the view that Section 34 IPC was not attracted and, therefore, the other three co-accused could not be roped in for the commission of murder of Khushwant Singh. They were acquitted.
8. The manner in which the said offence is said to have been committed by the appellant is discernible from the testimony of the two alleged eye witnesses PW1 Ernest Deepak Lal and PW2 Rajan Jacob. On a conjoint reading of their testimonies, the prosecution case appears to be that on 31.07.1983, PW1 Ernest Deepak Lal and PW2 Rajan Jacob along with the deceased Khushwant Singh, Anuj Mishra, Ashok Sharma and Pradeep Gaur started for Surajkund at around 11:15 am for a picnic. PW1 Ernest Deepak Lal, PW2 Rajan Jacob and Khushwant CRL. A 4/1993 Page 8 of 43 Singh were on a motorcycle belonging to PW2 Rajan Jacob. The other three persons, namely, Anuj Mishra, Ashok Sharma and Pradeep Gaur were on a scooter belonging to Pradeep Gaur. On the way, they stopped at the Tughlaqabad shooting range and consumed beer. They had stopped there at around 12'O clock and after having had the drinks, they left that place at about 2 pm and proceeded towards Surajkund. Upon reaching Surajkund, they stayed there for only about 10 minutes and undertook their return journey. On the way back, they again stopped at Tughlaqabad shooting range and once again had drinks. They then proceeded towards Delhi at about 3 pm. The motorcycle was ahead and the scooter was behind. While on the road from Surajkund to Tughlaqabad the motorcycle was stopped at the instance of Khushwant Singh while the scooter overtook them and stopped ahead at a distance of 70 yds. The motorcycle was stopped at the insistence of Khushwant Singh, who had asked the motorcycle driver PW2 Rajan Jacob to stop the same on seeing a car. The said car was parked underneath a tree about 40-50 yds. away from the place where the motorcycle stopped. The car was facing towards Surajkund. The car was on the left hand side while coming from the side of Surajkund. Four persons were alleged to be sitting in that car. Khushwant Singh got down from the motorcycle. PW2 Rajan Jacob stated that Khushwant Singh probably wanted to ease himself whereas PW1 CRL. A 4/1993 Page 9 of 43 Ernest Deepak Lal stated that on seeing the car, Khushwant Singh started waving his hands and insisted that the motorcycle be stopped. It is stated by these PWs that just as the deceased Khushwant Singh was walking towards the car, one person with a revolver in his hand, came out of the car while another, who also had a revolver, continued to sit in the car by the side of the driver's seat. The person, who had come out of the car with a revolver in his hand, grappled with Khushwant Singh and hit him on his forehead with his revolver. According to PW1, another person who was sitting in the driver's seat, came running out of the car and hit Khushwant Singh from behind with his right hand. Thereafter, a shot was heard and Khushwant Singh fell down. Out of panic, PW2, who had kept the engine of his motorcycle running, fled from the spot where they had earlier stopped. But, as PW1 Ernest Deepak Lal had been left behind and was running after the motorcycle, PW2 Rajan Jacob stopped his motorcycle after travelling a distance of about 20-30 yds. and PW1 Ernest Deepak Lal joined him. It is alleged by PW2 Rajan Jacob that at that point of time he saw the car bearing registration No. DIA 4451 speeding away in the opposite direction. The prosecution witnesses, namely, PW1 Ernest Deepak Lal and PW2 Rajan Jacob were in a state of panic and, therefore, fled from there. Their other three companions, who were on the scooter and who had stopped nearby, also became panicky and fled. It may be pointed out CRL. A 4/1993 Page 10 of 43 that none of the other three persons, namely, Anuj Mishra, Ashok Sharma and Pradeep Gaur have been produced as witnesses.
9. PW40 Dr. Sudhanshu Raj Sharma, who conducted the post mortem examination on the dead body of Khushwant Singh, inter alia, found the following firearm wounds:-
"External Findings
1. The rigor mortis was fully developed, the P.M. staining was well developed on the back and there was no sign of putrefaction.
2. a) Fire arm wounds
i) One irregular margined entry wound on lateral aspect of left upper arm of size 1 cm x 1.2 cm, 10.5 cm above the elbow.
The margin of the wound was abraded.
ii) One exit wound on medical surface of left upper arm of size 1 cm x 1.5 cm., 18 cm above the elbow. There was soft tissue destruction of upper arm.
iii) One entry wound on the left axillary region over the 5th intercoastal space, in mid axillary line of size 1 cm x 1 cm. There were 2 abrasions marks on the margin of the wounds.
iv) One exit wound on the front of the chest slightly to the right of CRL. A 4/1993 Page 11 of 43 middle over 2nd and 3rd intercoastal spaces of size 5 cm. x 4 cm. with ragged and everted margins. There was destruction of underline ribs and the muscles, and there was clotted blood on the margins.
b) Abrasions.
There were small abrasions on the bridge of the nose, the left cheek, the right cheek and in between the eye brows, of size 1 cm x .3 cm. at the most.‖ Apart from the said external firearm wounds, the internal injuries were as under:-
"Internal Findings
i) Lungs Both the lungs had contusions on their anterior borders near the apex.
ii) Heart.
The pericardial cavity contained about 500 CC of clotted blood.
There was a lacerated wound on the anterior surface of the heart of size 3 cm. x 2 cm. cavity deep, situated at the rout of pulmonary artery, involving the right ventricle.‖ As there were two entry wounds and two exit wounds, the Court put a question to the said witness as to whether the two wounds found on the body of the deceased was possible by a single shot. An objection has been raised on this question being put but the objection was overruled by the Court on the ground that the opinion of an expert CRL. A 4/1993 Page 12 of 43 on the cause of injury can always be taken. The answer given by PW40 Dr Sudhanshu Raj Sharma was in the affirmative. He further stated that in this case the wounds were the result of one shot. The said witness also stated that since the shirt was blood stained, it was difficult to say if there was any deposit such as carbon or grease at the point of the entry of the built. He stated that at least by the naked eye examination, it did not appear so. When the Court put a question to him as to whether he could give the distance from which the shot was fired, PW40 stated that he was not an expert on that aspect and that he would not be able to give an opinion about the distance from which the shot was fired. As per the post mortem report Exhibit PW 40/A, death was due to shock and hemorrhage as a result of the injuries mentioned above. The injuries were said to be ante mortem and it was further stated that the injuries could cause death in the ordinary course of nature. The post mortem report further indicates that the injuries were consistent with a firearm wound.
10. PW32 Mr Roop Singh is the ballistic expert. Parcel No. 5, which was sent to him for examination contained two .38 calibre special fired cartridge cases which were marked as C/1 and C/2 and one .357 Magnum fired cartridge case which was marked by the said PW32 as C/3. Parcel No. 8 contained one .357 Magnum revolver which was CRL. A 4/1993 Page 13 of 43 marked as W/1 and was said to have belonged to the appellant Sanjay Singh Sandhu. Parcel No. 9 comprised of one .357 Magnum revolver which was marked W/2. This revolver was said to have belonged to co-accused K. L. Shekhar. As per PW32 Mr Roop Singh, after a detailed laboratory examination including test firings and microscopic examination, he arrived at, inter alia, the following results:-
(i) Two .357 revolvers (marked W/1 and W/2) were in working order and had been fired through. No opinion on the time of the last firings could be given.
(ii) One .357 cartridge (marked C/3) of parcel No. 5 had been fired from the .357 Magnum revolver marked W/1 of parcel No. 8. The remaining two .38 special cartridge cases (marked C/1 and C/2) of parcel No. 5 could not be linked with any of the two .357 Magnum revolvers (marked W/1 and W/2) mentioned above.
From the above testimony it is apparent that the two .38 calibre special fired cartridge cases were not linked with either of the two .357 revolvers marked W/1 and W/2 which belonged to the appellant and co-accused K. L. Shekhar. In other words, the two .38 special cartridge cases marked C/1 and C/2 had been fired by some other firearm or firearms. It is also apparent that the .357 cartridge case marked C/3 CRL. A 4/1993 Page 14 of 43 was linked with the .357 Magnum revolver marked W/1 which belonged to the appellant.
11. PW32 Mr Roop Singh also gave his opinion with regard to the hole in the left sleeve of the shirt and a cut or tear on the front flap of the shirt which was worn by the deceased Khushwant Singh. According to PW32 Mr Roop Singh the holes/ wounds could have been caused by the firing of a single shot from the .357 Magnum revolver marked W/1. He also opined that no powder marks were found on the entry on the left sleeve of the shirt contained in the parcel No. 6. According to him, this shot had not been fired from a close range. The normal powder range was of two feet or so. In the same breadth, he, however, stated that there was also a possibility of the shot having been fired within two feet distance because there was the existence of extensive blood staining around the entry hole and it was possible due to the flow of blood that the powder might have been washed away. Importantly, this witness further testified that a .38 special cartridge could be fired from a .357 Magnum revolver. He confirmed that the positive linking of the .357 Magnum fired cartridge case marked C/3 with the .357 Magnum revolver marked W/1 was established on the basis of firing pin marks and breach face marks found on the cartridge case when compared under a comparison microscope with the test fired CRL. A 4/1993 Page 15 of 43 cartridge cases from the revolver marked W/1. In his cross- examination, this witness, namely, PW32 Mr Roop Singh admitted that the hole found on the left sleeve of the deceased could have been caused by any other weapon with similar specification as those of the weapon marked W/1, i.e, any .357 Magnum revolver or even a 9 MM calibre weapon or even a .38 calibre weapon.
12. Mr Dey, the learned counsel appearing on behalf of the appellant, meticulously took us through the evidence on record in order to establish that, first of all, the police had cooked up the case and framed the appellant. According to him a dead body was found lying at the spot and there were no alleged eye witnesses of how that person had been killed. This, according to him, was evident from the first information received as per the wireless log and diary that there was an accident involving a taxi and that a murder had taken place. Secondly, according to Mr Dey, the two entry and exit wounds on the deceased Khushwant Singh could not have been possible by a single shot. He submitted a diagrammatic sketch based on the post mortem report to indicate the path followed by the bullet. The diagrammatic sketch given by him is reproduced below:-
CRL. A 4/1993 Page 16 of 43
According to him, the angle made by the entry and exit wound on the left arm indicating the path of the bullet is entirely different from the angle made by the entry and exit wound on the chest. Thus, according CRL. A 4/1993 Page 17 of 43 to Mr Dey, the single shot theory espoused by the prosecution is not established. Thirdly, Mr Dey submitted that the appellant has not been identified by the purported eye witnesses PW1 Ernest Deepak Lal and PW2 Rajan Jacob. He submitted that while PW1 had purportedly identified the appellant in the Test Identification Parade conducted on 10.08.1983, he had not been identified by him in the dock during his testimony before Court. Even the identification done at the time of Test Identification Parade on 10.08.1983 was tainted inasmuch as the appellant was shown to the said witness by the Investigating Officer prior to the conduct of the Test Identification Parade. Fourthly, it was contended by Mr Dey that the recovery of the empty shell of .357 calibre, which matched with the appellant's .357 Magnum revolver, is not conclusive of the complicity or involvement of the appellant in the alleged murder of Khushwant Singh. He submitted that the written statement filed by the appellant before the Trial Court explained the entire circumstance as to how, on earlier occasions, the appellant had gone to the place where the alleged crime is said to have taken place for target practice and it is perhaps one of those shells which was found at that place. It was also contended that it is an admitted position that after firing, the cartridge shells do not automatically get ejected from the revolver. The fired and empty shell has to be removed manually from the revolver. Referring to the site plan Exhibit PW9/A, Mr Dey CRL. A 4/1993 Page 18 of 43 submitted that it is at point ‗D' where the appellant is supposed to have fired at Khushwant Singh. But the .357 calibre empty shell was allegedly recovered at point ‗M' which is some distance away. He submitted that there is no evidence of the appellant going from point ‗D' to ‗M' or of ‗breaking' the revolver or empting the chamber so as to allow the .357 empty shell to fall on the ground. Thus, the recovery of .357 calibre empty shell, which is linked with the appellant's .357 Magnum revolver, is of no consequence. Fifthly, Mr Dey submitted that the car bearing No. DIA 4451 has been stated to have been used by the appellant and the co-accused on the date and time of occurrence.
He submits that the car number has apparently been revealed to the Investigating Officer only by PW2 Rajan Jacob. According to PW2 Rajan Jacob, after the shot was fired he fled in his motorcycle away from Surajkund. Realizing that he had left behind PW1 Ernest Deepak Lal, he stopped 20-30 yds. ahead. PW1 Ernest Deepak Lal came running behind and at this moment, PW2 Rajan Jacob is said to have looked behind on the road going towards Surajkund and to have seen the car speeding away. It is at this point of time, he is said to have noticed the registration number being DIA 4451. According to Mr Dey, this was not possible because it has already come in evidence that PW2 Rajan Jacob was on his motorcycle, he was wearing a helmet, the visor of the helmet was down, he was also wearing spectacles and CRL. A 4/1993 Page 19 of 43 had a prescription power of -2.5 and was looking behind waiting for his companion PW1 Ernest Deepak Lal to catch up with him. In such a situation it would not have been possible to have noted the car number particularly when the car was speeding away in the opposite direction and PW2 Rajan Jacob was admittedly in a state of panic. It was also contended by Mr Dey that even the records of the case would demonstrate that the car number was not revealed by PW2 Rajan Jacob but was subsequently fixed by the Investigating Officer after he obtained the photograph and address of the appellant from the office of the DCP, Licencing which maintained records pertaining to firearm licences. Mr Dey submitted that the car number is not an independent link or a pointer to the appellant. Lastly, Mr Dey contended that there is also no explanation forthcoming as to how the feet of the deceased Khushwant Singh were tied by a piece of cloth. He referred to the inquest report Exhibit PW8/B where it is indicated:-
―dono pair chheet-dar-dhoti ke tukde se bandhe hue mile [both legs were found tied with a piece of printed dhoti (cloth)]‖.
He submitted that this circumstance also completely belies the prosecution case against the appellant. Consequently, Mr Dey submitted that this was a clear case of acquittal and the appeal ought to be allowed accordingly.
CRL. A 4/1993 Page 20 of 43
13. On the other hand, Ms Mukta Gupta appearing on behalf of the State submitted that from the evidence on record it is established beyond reasonable doubt that the murder of the deceased Khushwant Singh had been committed by the appellant from his licenced revolver. She submitted that the evidence is based on the eye witness account of at least two witnesses. According to her PW2 Rajan Jacob was an eye witness to the incident. He has identified the appellant in Court and deposed that there were four persons and he saw the appellant coming out of the car with a revolver in his hand. There was a scuffle between him and the deceased Khushwant Singh, who was finally shot by the appellant. With regard to PW1 Ernest Deepak Lal, she stated that his testimony corroborates the testimony of PW2 Rajan Jacob with respect to the circumstance that he saw one person coming out of the car with a revolver and which led to the scuffle and involvement of the four persons. She submitted that although this witness, PW1 Ernest Deepak Lal did not specifically identify the appellant to be the same person who came out of the car, he has also not denied the same inasmuch as he stated that he could not say if all the four accused persons were the same persons who were in the car. Ms Mukta Gupta submitted that the ballistic expert PW32 Mr Roop Singh has also confirmed the case of the prosecution. She submitted that PW32 Mr Roop Singh affirmed that one .357 calibre cartridge case which was seized from the spot had CRL. A 4/1993 Page 21 of 43 in fact been fired from the .357 Magnum revolver bearing serial No. A3/S 48362, which was admittedly owned by the appellant Sanjay Singh Sandhu. She submitted that the said expert also opined after observing the hole on the shirt of the deceased that the same could have been caused by firing of a single shot from a .357 Magnum revolver.
14. She submitted that PW2 Rajan Jacob identified the appellant in Court as the person who fired on the deceased Khushwant Singh. PW41 Inspector A. K. Saxena, who was the Investigating Officer, deposed that he found three cartridges at the spot and out of the three cartridges, one of them was engraved with ―Magnum federal .357‖. As already indicated above, this cartridge was found by PW32 Mr Roop Singh to have been fired from the revolver of the appellant. The opinion that the .357 calibre cartridge found at the spot was linked with the firearm of the appellant was based on an examination of the pin marks and breach face marks upon test firing.
15. With regard to the identification of the car, Ms Mukta Gupta submitted that PW2 Rajan Jacob has categorically stated that the appellant along with co-accused fled away from the spot in a vehicle bearing No. DIA 4451. According to her, PW2 Rajan Jacob returned to the spot at around 6.30 to 6.45pm and gave his statement to the Investigating Officer which was recorded at that time on 31.07.1983 CRL. A 4/1993 Page 22 of 43 and the registration number of the vehicle was mentioned therein. PW41 Inspector A. K. Saxena has also corroborated this fact that he recorded the statement of PW2 Rajan Jacob at the spot and that the next morning, that is, on 01.08.1983 he went to the Regional Transport Office to check the name and address of the person in whose name the said vehicle had been registered. According to Ms Mukta Gupta, the Investigating Officer PW41 Inspector A. K. Saxena was extensively cross-examined on this aspect of the matter but the defence was unable to elicit anything in their favour. According to her the said witness specifically denied the suggestion that the number of vehicle was not with him and that the same came to his notice only after he visited the office of Chinar Exports and after he took the list of cars. According to her, PW30 Swaranjit Singh, who is the Joint Managing Director of Chinar Exports, deposed that the Investigating Officer Inspector A. K. Saxena came to the office around noon. Thus, according to Ms Mukta Gupta this is in consonance with the statement of the Investigating Officer Inspector A. K. Saxena that on 01.08.1983 he first went to the Regional Transport Office and after getting the address at which the vehicle was registered he went to the office of Chinar Exports and not vice-versa. She also submitted that PW12 Anil Verma in his testimony submitted that the appellant Sanjay Singh Sandhu used to drive a Fiat car. On the basis of this, Ms Mukta Gupta submitted that in case the CRL. A 4/1993 Page 23 of 43 Investigating Officer did not have the car number, then the Investigating Officer would have seized the Fiat car and not an Ambassador car. This, according to her, clearly establishes the fact that the car No. DIA 4451 had been supplied to the Investigating Officer by PW2 Rajan Jacob on 31.07.1983 itself. This, according to her, was the clear link between the offence and the appellant. She also submitted that finger prints of both the appellant Sanjay Singh Sandhu and co- accused Arvind Passi were not found on the vehicle bearing No. DIA 4451 indicating thereby that the vehicle was in the use of the appellant and his friends soon before the date of seizure, that is, on 01.08.1983.
16. Ms Mukta Gupta also submitted that PW2 Rajan Jacob was a natural witness. PW7 Barjinder Singh in his evidence stated that on the date of the incident the deceased had gone from his house around 11.45 or 12 noon and that PW2 Rajan Jacob had come to the house and they both went together. She submitted that PW1 Ernest Deepak Lal also stated that Rajan Jacob was with him and the deceased at the place of the incident. From these circumstances, Ms Mukta Gupta, submitted that Rajan Jacob was a natural witness and his presence at the time of the occurrence cannot be doubted.
17. With regard to the recovery of the three empty cartridges, Ms Mukta Gupta submitted that it is in evidence that the same were CRL. A 4/1993 Page 24 of 43 recovered by PW41 Inspector A. K. Saxena near the tree at the point marked ‗M' in Exhibit PW9/A. She submitted that PW7 Barjinder Singh also corroborated this fact and deposed that he saw three empty cartridges lying at some distance of the dead body and the same were seized vide seizure memo Exhibit PW7/A which was signed by him. According to her, this part of the testimony has not been subjected to cross-examination and has thus remained unchallenged. Ms Mukta Gupta further submitted that PW8 Harjinder Singh also deposed that there were three empty cartridges and the same were also seized vide seizure memo Exhibit PW7/A which was also signed by him. She submitted that though PW19 ASI Pratap Singh stated that there were 10 empty cartridges, since everybody else consistently stated that there were only three empty cartridges, the testimony of PW19 has to be ignored in view of the evidence of PW7 and PW8. In view of the foregoing circumstances and evidence on record, Ms Mukta Gupta submitted that it has been established beyond reasonable doubt that the murder of the deceased Khushwant Singh had been committed by the appellant by a single shot fired from his licenced .357 Magnum revolver in the presence of eye witnesses. She submitted that the appeal is liable to be dismissed.
18. The site plan drawn to scale Exhibit PW9/A is very revealing. The same is reproduced herein below:-
CRL. A 4/1993 Page 25 of 43 CRL. A 4/1993 Page 26 of 43
As per the testimony of PW1 and PW2 they were travelling from east to west coming from Surajkund on the metalled road. Both these witnesses and Khushwant Singh were on the motorcycle. PW2 Rajan Jacob was driving the motorcycle. When they approached the kacha passage, Khushwant Singh, on seeing the car parked at point ‗J' insisted that the motorcycle be stopped. In fact, he almost forced PW2 Rajan Jacob to stop the motorcycle, which was stopped at point ‗C'. Khushwant Singh got of the motorcycle while PW2 Rajan Jacob continued to be seated on the motorcycle with the engine running. Khushwant Singh then went down the kacha passage, waving his arms. It is stated that one person having a revolver in his hand got down from the car at point ‗J' and approached Khushwant Singh. Apparently, there was scuffle between the two. The other person having a revolver, who was in the car also ran towards them and hit Khushwant Singh from the back. During the scuffle, a shot was fired allegedly by the appellant at point ‗D' and, point ‗E', which is close-by, indicates the place where Khushwant Singh was fired at and where he fell down in a pool of blood. The prosecution version goes further that both PW1 and PW2, who were at point ‗C' saw this incident. On seeing this, PW2 Rajan Jacob, who was already seated on the motorcycle got panicky and fled on his motorcycle, westward, for a distance of about 20-30 CRL. A 4/1993 Page 27 of 43 yds. He stopped there because he had left behind PW1 Ernest Deepak Lal, who came running after him. It is at that point that PW2 looked back in the direction towards Surajkund and saw the car speeding away on the metalled road towards Surajkund. The distance between where he had stopped to pick up PW1 and the point where he noticed the speeding car was about 40-50 yds. It must also be remembered that PW2 was at that time wearing a helmet and his visor was down. He also wears spectacles and had a prescription number of -2.5. Interfering with his line of vision was the fact that PW1 was running towards him. It is in these circumstances that PW2 says that he noted the registration number of the car as DIA 4451. The point ‗M' in the said site plan Exhibit PW9/A is the place where the three empty cartridges were found to be lying. The seven empty beer bottles were found to be lying all over the area at points ‗F', ‗G', ‗H', ‗I', ‗K', ‗L' and ‗N'. According to PW2 Rajan Jacob the whole incident took place in a matter of seconds.
19. Now, let us analyze the possibility of the incident having occurred in the manner projected by the prosecution. If the prosecution witnesses are to be believed, immediately after the shot was fired, PW2 fled in his motorcycle westward toward Tughlaqabad shooting range and continued to do so for about 20-30 yds, when he stopped to pick up PW1 who came running behind him. This must have taken place in a CRL. A 4/1993 Page 28 of 43 matter of seconds and not even minutes. It is at that point of time that, according to PW2 Rajan Jacob, he saw the car speeding away on the metalled road towards Suraj Kund. For this to happen, in the same duration of time that was taken by PW2 Rajan Jacob, which, according to him, was in a matter of seconds, to travel from point ‗C' to a distance of 20-30 yds along the metalled road towards Tughlaqabad shooting range, the appellant and the other co-accused would have travelled to point ‗J‖ on foot to point ‗M' to throw the empty shell, then alight the car at point ‗J' and then travelled in the car along the kacha passage onto the metallic road towards Surajkund. We must also not forget that the legs of the deceased Khushwant Singh were found to be tied by a piece of cloth. Thus, not only must the appellant have moved from point ‗D' to point ‗M' and then to ‗J' before alighting the car, he or his associates would have also searched for a piece of cloth and tied the deceased Khushwant Singh's legs with that piece of cloth. We are not examining as to what purpose that would serve but we are examining the facts as they have been revealed.
20. From this, it is apparent that it is not at all probable that all this could have been done by the appellant and his co-accused in the matter of seconds during which the motorcycle moved from point ‗C' to a distance of about 20-30 yds westward on the metalled road. CRL. A 4/1993 Page 29 of 43
21. There are serious doubts as to whether the time sequence of events with regard to the movement of PW1 and PW2 could match the sequence of events which are said to have been undertaken by the accused in the same duration of time. Apart from this, we also see merit in the argument of the learned counsel for the appellant that it may not have been possible for PW2 to have noticed the number plate of the car which was speeding away in the opposite direction towards Surajkund. We must try to visualize that the line of sight between PW2 and the speeding car was west to east along the metalled road. The distance, as per the testimony of PW2 himself, was about 40-50 yds. The car was not stationary it was speeding away in the opposite direction. PW2 Rajan Jacob was also wearing a helmet. He was looking behind. The visor of the helmet was down and he was also wearing spectacles having a power of ‗-2.5'. To complicate things further, PW1 was also coming running directly along the line of sight from point ‗C' towards the point where the motorcycle had stopped around 20-30 yds. ahead. It is, therefore, quite possible that PW2 was not in a position to have noticed and seen the registration number in such circumstances. It is obvious that if PW2 did not note the number of the car, then one link between the appellant and the offence is snapped.
CRL. A 4/1993 Page 30 of 43
22. The other important link, which is said to have been established by the prosecution, is that of the recovery of the .357 calibre shell from point ‗M' in the site plan Exhibit PW9/A. By virtue of the testimony of PW32 Mr Roop Singh, who is the ballistic expert, the .357 calibre empty cartridge which was recovered from point ‗M' indicated in the site plan Exhibit PW9/A had been fired from Exhibit P-6 i.e., the .357 Magnum revolver belonging to the appellant. Thus, according to the prosecution, the link between the crime and the appellant is clearly established. We do not think that from this solitary fact, it can be conclusively determined that it is the appellant who caused the death of Khushwant Singh. First of all, we must remember that, apart from the .357 calibre cartridge shell that was found, there were allegedly two other empty cartridges of .38 calibre found. It is assumed by the prosecution that those .38 empty cartridges were unrelated to the crime. Now, there are two circumstances which arise out of this assumption. The first circumstance is that if the two .38 empty cartridges were unrelated to the crime, what is there to show that .357 empty cartridge was related to the crime? The mere fact that the .357 empty cartridge is linked to Exhibit P-16, the .357 Magnum revolver belonging to the appellant does not mean that he committed the crime. The second circumstance is that somebody must have fired the .38 empty CRL. A 4/1993 Page 31 of 43 cartridges. According to the prosecution out of the four accused it is only the appellant and the co-accused K. L. Shekhar who had firearms. Both of them had .357 Magnum revolvers. It has come in the testimony of PW32 Roop Singh that the two .38 empty cartridges were not fired from the .357 Magnum revolver belonging to the appellant and the co-accused K. L. Shekhar. It is obvious, then, that someone else must have fired the said two .38 cartridges. In other words, there must have been at least one, if not two persons, who fired those shells. Was it not necessary on the part of the prosecution to try and ascertain as to who fired those shells ?
23. This becomes important in view of the testimony of PW32 Mr Roop Singh, the ballistic expert, who says that a .38 special cartridge can be fired from a .357 Magnum revolver. He further says that the hole found on the left sleeve of the deceased could have been caused by any other weapon with similar specifications as those of the .357 Magnum revolver belonging to the appellant. In fact, he goes on to say that it could have been caused by any .357 Magnum revolver or even a 9 MM caliber weapon or even a .38 calibre weapon. We must also realize that what has been recovered is the empty cartridge and not the bullet which actually pierced through the deceased Khushwant Singh. It is the bullet which is the missing link. When the expert's CRL. A 4/1993 Page 32 of 43 testimony probablises the injury to have been caused by either a .357 Magnum revolver or a .38 calibre weapon and there is the existence of two .38 empty shells from the same point where the .357 empty cartridge which is linked to the appellant's .357 Magnum revolver, was found, there is a distinct possibility that somebody else having a .38 calibre weapon or a .357 Magnum revolver could have shot at the deceased Khushwant Singh. There is no certainty with regard to the allegation that just because the .357 calibre shell was recovered at point ‗M', as indicated in Exhibit PW9/A, and that it is linked to the appellant's .357 Magnum revolver, it is the bullet emanating from that shell that caused the injury which was fatal to Khushwant Singh. In this context, the explanation given by the appellant in his written statement submitted to the Trial Court, about the possibility of the presence of the .357 empty shell at the location where it was located on account of earlier practice rounds having been fired, cannot be ruled out.
24. We, now, come to the consideration of the diagrammatic sketch submitted by the learned counsel for the appellant to indicate that the line of travel of the bullet indicated by the entry and exit wounds in the left arm do not coincide with the line of travel of the bullet indicated by the entry and exit wounds on the chest cavity. On the basis of this, the CRL. A 4/1993 Page 33 of 43 learned counsel for the appellant submitted that the injuries caused on the deceased Khushwant Singh were not the result of one shot but of two shots. Consequently, if this is the case, the prosecution case falls to the ground. We have given our thoughtful consideration to this submission made by the learned counsel for the appellant. At first blush it does appear that what the learned counsel for the appellant has submitted is correct. When the left arm is kept in the normal vertical position, it is clear that the line of travel of the bullet through the arm and the line of travel of the bullet through the chest cavity are different and distinct and, therefore, may not have been caused by the same bullet, first travelling through the left arm and then entering and exiting the chest cavity. But when we visualize the possibility that the victim may have raised his left arm then, it becomes possible that the line of travel of the bullet through the left arm and the line of travel of the bullet through the chest cavity could coincide. Therefore, we are not in a position to accept the submission made by the learned counsel for the appellant that the position of the entry wounds and the exit wounds on the dead body of Khushwant Singh rule out the possibility of the injuries having been caused by a single shot.
25. As noted above, one of the major contentions of the learned counsel for the appellant was that the appellant had not been identified CRL. A 4/1993 Page 34 of 43 by any of the prosecution witnesses. PW1 in his examination-in-chief, inter alia, stated that:-
―They were four people in all in the car. I cannot say if those four persons are present in the court today. I have seen the four accused persons present in the court. The occupants of the car were four persons but I cannot say if all the four accused persons are the same persons who were in the car.‖ It is obvious that this witness has not identified the accused in Court. However, PW1 identified the appellant in the Test Identification Parade held on 10.08.1983. But, this identification has to be read in conjunction with what PW1 Ernest Deepak Lal has explained in his cross-examination, which is as under:-
―From the moment the police caught hold of myself and Rajan in the early hours of 01.08.1983, I was tortured and kept by the police with them till 03.08.1983 about 3 am. Rajan was not tortured in my presence. In the night of 02.08.1983 I was shown all the four boys now present in the court as accused as told by the police in PS Lajpat Nagar that unless I identify all the four boys in a later date before a magistrate in an identification parade, I would be kept in the same state and tortured. I was terrified and I told that I will do as they desired me to do. Since I had not told the car number, they broke my legs basically because they were telling me that we were the culprits.‖ Thus, insofar as PW1 Ernest Deepak Lal is concerned, he has not identified the appellant before Court. He purportedly identified the appellant in the Test Identification Parade held on 10.08.1983 but at the same time he has stated that the accused were shown to him by the CRL. A 4/1993 Page 35 of 43 police in the night of 02.08.1983 and the police had also directed him to identify the four boys at a later date before the Magistrate in an Identification Parade. He stated that unless he did so, he would continue to be tortured. It is in these circumstances that the identity of the appellant is said to be established in the Test Identification Parade of 10.08.1983.
26. PW2 Rajan Jacob identified the appellant in the Test Identification Parade held on 10.08.1983 as also in the course of his testimony before Court. However, in his cross-examination, he has clearly stated as under:-
―At about 3 PM actual firing took place. From the spot, I went to M block Market Greater Kailash-I. One day after the incident passed midnight I saw the accused person Sanjay Singh Sandhu, K. L. Shekhar and Arvind Passi at P.S. Hauz Khas. Thereafter, during the same night I could see accused persons Sanjay Singh Sandhu, K. L. Shekhar and Arvind Passi at P.S. Lajpat Nagar. At P.S. Lajpat Najagr, I saw the said three accused person in a room which look like an office of the police officer. At that time, they were without handcuffs.‖ ―Four five witnesses/ friends of the incident including me were virtually being detained by the police and we were being taken up from place to place at times singly and at times in a group of two or three persons. We four or five persons were being accompanied by the policemen and we were not being allowed to meet anybody or talk to anybody.
CRL. A 4/1993 Page 36 of 43 This virtual detention of we four or five people started from the date of incident and lasted till we were taken to P.S. Lajpat Nagar and could see the said three accused persons.‖ From the testimony of both PW1 and PW2 it is apparent that before the Test Identification Parade was conducted on 10.08.1983, the appellant was shown to the said witnesses by the police at the police station. This renders the Test Identification Parade to be useless. As a consequence of this the identification by PW2 in the dock is also rendered useless.
27. PW4 Hira Lal, a public witness who was a labourer and who did the job of breaking stones, testified that he had heard the sound of firing and that the firing was heard thrice. According to him, the sound was of bullets fired from the gun. When he and Locha Ram climbed the hillock and proceeded towards the direction from where the sound emanated, he saw four persons who had a ‗black jeep' with them. He stated that they had pointed their guns in the upward direction and were firing from them and they were not aiming at anybody. This witness further stated in his examination-in-chief that he was unable to identify from the persons present in Court, the persons who were firing. The court observation is that the witness saw all around the court room including towards the accused persons. It is on the basis of this that the CRL. A 4/1993 Page 37 of 43 public prosecutor requested to put certain leading questions to the witness and he was permitted to cross-examine him.
28. PW5 Locha Ram is another labourer engaged in stone breaking. He and PW4 Hira Lal were said to be present at the time of the incident. He also stated that he heard the sound of firing of shots. At that point, he and PW4 Hira Lal left their work, climbed the hillock and saw four boys standing there and around the corner a car was also standing. He stated that they were standing at some distance from the car and were doing target practice on a bottle which placed at a stone. This witness stated that they saw the faces of those boys but did not see their clothes. He indicated that perhaps he may be able to recognize their faces. The court then requested the witness to look around the court to see if those boys were present in the court room. The witness stated -- ―No, they are not here‖. The court recorded the following observation:-
―Witness has looked upon towards the persons in the court room including the accused persons‖.
It is thus apparent that PW4 Hira Lal and PW5 Locha Ram had also not identified the appellant.
29. Although, PW12 Anil Kumar Verma, who is said to be a friend of the appellant was declared hostile and cross-examined by the learned CRL. A 4/1993 Page 38 of 43 APP, in his cross-examination by the defence counsel this witness has stated that the four and five boys, who were with the police had come in the police jeep. The photo of Sanjay Singh was with the police officer. The police officer showed that photo to him to ask him that if that Sanjay Singh was residing in that house. He also affirmed that one of the four-five boys was limping.
30. Another witness PW30 Swaranjit Singh, who is the Joint Managing Director of Chinar Exports, which is the appellant's father's concern, in his cross-examination stated that Sh. A. K. Saxena had come to his office and had shown him a photograph of Sanjay Singh Sandhu and asked him if that was the photograph of Sanjay Singh Sandhu, which he confirmed. PW10 Inspector Daryao Singh, who, at the time of the incident, was working as in-charge of Special Staff Police, South District, Delhi, in the course of his cross-examination by the defence counsel, stated that on 02.08.1983 Shekhar and Sanjay Singh were interrogated in his office by Ashok Kumar and Puri. The learned defence counsel put a question to this witness that 9 boys were brought to his office and interrogated there. Some of them were witnesses and four of them were the accused present in Court. PW10 Inspector Daryao Singh answered that he did not remember the number of boys which the police had brought to his office at that night. Further CRL. A 4/1993 Page 39 of 43 cross-examination was deferred and on resumption, PW10 stated that he left the office at 11:30 pm on 02.08.1983 and at that point of time he left behind in the office all the boys who had been brought there and those boys were in the custody of Sh. Saxena and Sh. A. K. Puri.
31. PW3 Sh. Prakash Chand, M. M, Shahdara, who conducted the Test Identification Parade on 10.08.1983 stated that some application had been moved by Mr J. C. Digpal, Advocate appearing on behalf of, inter alia, the appellant with regard to the conduct of the TIP proceedings. The order sheet of the learned Metropolitan Magistrate dated 03.08.1983 has been exhibited as Exhibit PW3/A. The relevant part of which reads as under:-
―All the accused are produced in muffled faces. Accused K. L. Shekhar and Sanjay Singh moved the applications through their counsel Sh. J. C. Digpal that though they have been shown to many people by the police and still they want to join the T.I Parade. Now the statement of Nikhil Kumar and Arvind Passi be recorded whether they want to participate in T.I Parade. These accused are warned that any statement they make may go against them during trial.‖ From the above, it is clear that at the very first opportunity, that is, on 03.08.1983 itself, prior to the conduct of the TIP proceedings on 10.08.1983, the appellant had taken the stand that they had already been shown to many people by the police.
CRL. A 4/1993 Page 40 of 43
32. In Laxmipat Choraria and Others v. State of Maharashtra: AIR 1968 SC 938, the Supreme Court categorically observed that showing of a photograph prior to the identification makes the identification worthless. The Supreme Court also observed that there could be no doubt that if the intention on the part of the prosecution is to rely on the identification of the suspect by a witness, his ability to identify should be tested without showing him the suspect or his photograph or furnishing him the data for identification. The same view is expressed by the Supreme Court in N. J. Suraj v. State: (2004) 11 SCC 346 wherein the Supreme Court observed that in view of the fact that the photograph of the accused had been shown to the witnesses, their identification in the test identification parade became meaningless and no reliance could be placed thereon. In State of Madhya Pradesh v. Chamru: 2007 Crl. L. J. 3509, the Supreme Court observed that the showing of a photograph of the accused Chamru to the child witnesses before the TIP parade took way the effect of the Test Identification Parade. In Karan v. State of Kerala: AIR 1979 SC 1127, the Supreme Court, in the context of identification of an accused in Court without a TIP having been conducted previously, observed as under:-
―It is well settled that where a witness identifies an accused who is no known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of CRL. A 4/1993 Page 41 of 43 his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.‖ In Mohanlal Gangaram Gehani v. State of Maharashtra: (1982) 1 SCC 700 also the same view is expressed.
33. From a consideration of the aforesaid decisions of the Supreme Court, it is apparent that the purported identification by PW1 Ernest Deepak Lal and PW2 Rajan Jacob at the time of Test Identification Parade is worthless because the appellant as well as his photograph were shown to them prior to the Test Identification Parade conducted on 10.08.1983. PW1 Ernest Deepak Lal has not identified the appellant in Court. However, PW2 had identified the appellant in Court. But, this identification is of no consequence because the appellant had already been shown to the said witnesses even prior to the conduct of the Test Identification Parade. Consequently, we are in agreement with the submission made by the learned counsel for the appellant that none of the witnesses have identified the appellant.
34. From the aforesaid discussion, we are of the view that the prosecution has not been able to establish its case beyond reasonable CRL. A 4/1993 Page 42 of 43 doubt. There are several other aspects of the matter relating to various contradictions in the testimony of witnesses but we have not alluded to them in view of the fact that on the major issues, as indicated above, the prosecution has not been able to come out with a crystal-clear case. In view of the doubts that exist, the benefit would have to be given to the appellant. Consequently, the impugned judgment and order on sentence are set aside and the appellant is acquitted of all charges in this case. The appellant is on bail. His bail bond stands cancelled and the surety stands discharged. The appeal is allowed.
BADAR DURREZ AHMED, J V. B. GUPTA, J August 28, 2009 SR CRL. A 4/1993 Page 43 of 43