IN THE HIGH COURT OF DELHI AT NEW DELHI
DEATH SENTENCE REFERENCE NO. 2 OF 2004
21.07.2006
Date of Decision: July 21, 2006
STATE ..... Petitioner
Through Mr.Ravinder Chadha with
Mr.Jagdish Prasad, Advocates.
versus
BRIJ KISHORE ....Respondent
Through Mr.I.U.Khan, Sr.Advocate
with, Mr.Javed Hashmi, Advocate.
Mr.S.N.Vashisth, Advocate for the
complainant.
With
CRIMINAL APPEAL NO.788 OF 2004
BRIJ KISHORE ....Appellant
Through Mr.I.U.Khan, Sr.Advocate
with, Mr.Javed Hashmi, Advocate.
versus
STATE ..... Respondent
Through Mr.Ravinder Chadha, APP
with Mr.Jagdish Prasad, Advocate.
CORAM:
HON'BLE MR.JUSTICE R.S.SODHI
HON'BLE MR.JUSTICE P.K.BHASIN
1.Whether Reporters of local papers may be allowed to see the judgment?
YES
2.To be referred to the Reporter or not? YES
3.Whether the judgment should be reported in the digest? YES
J U D G M E N T
R.S.SODHI J:
1. The Death Sentence Reference as also the Appeal against the judgment of
conviction dated 29.08.2004 and order of sentence dated 10.09.2004, passed by
the Additional Sessions Judge, Delhi in Sessions Case No.107/2000, arising out
of F.I.R. No. 45/2000 under Section 302 IPC registered at Police Station New
Friends Colony, are being decided by this judgment.
2. Facts of the case as have been narrated in the judgment of the
Additional Sessions Judge are as follows:-
?The accused Brij Kishore @ Bitto has been facing trial before this court
for a case registered at police station New Friends Colony vide FIR No.45/2000
dated 31.1.2000 U/s 302 of IPC for committing murder of Sh.Madan Mohan Lal Verma
by stabbing with knife on 31.1.2000 at about 7.30 P.M. On the road opposite
Dr.Jain Clinic, Church compound Masih Garh within the jurisdiction of police
station New Friends Colony, New Delhi.
As per the prosecution case, on 31.1.2000 at 8.15 P.M. DD No.18A dated
31.1.2000 was recorded on telephonic information from Holy Family Hospital from
Record clerk that Madan Lal Verma S/o Sardari Lal Verma R/o 31, Sukhdev Vihar,
has been stabbed with knife and in the injured condition has been admitted in
the hospital. The doctor has declared injured brought dead. The copy of DD
entry was handed over to SI Ranjay Atrishaya. He along with constable Bali Ram
reached Holy Family Hospital and found Madan Lal Verma admitted at MLC
No.000254, declared dead at 8.15 P.M. Thereafter, he along with constable Bali
Ram went to the place of occurrence opposite Jain Clinic, Church compound
Masigarh New Delhi and found blood lying on the road in front of Dr.Jain clinic.
He neither find any eye witness in the hospital nor at the spot. In view of
facts revealed case of Section 302 of IPC was made out. Hence, he prepared
tehrir and got registered the FIR through constable Bali Ram. After
registration of the case, the investigation was taken over by Inspector Gurmeet
Singh, SHO police station New Friends Colony. During the investigation the
photographs of scene of occurrence were got taken. Crime team was called.
During investigation Komal Singh S/o Nand Singh met the SHO and got recorded
his statement to the effect that he was present at the spot. He came to know
that Bittao S/o Beer Singh as caused injury to the deceased. Attempt was made
to catch the culprit but due to darkness he escaped. In further investigation
the statements of other witnesses were collected. Post mortem examination was
got conducted. Accused was arrested at the instance of the witnesses. The
accused got recovered his blood stained clothes and weapon i.e. Blood stained
knife and pair of shoes. The exhibits including knife were sent for FSL report.
MLC, post mortem report, FSL report, opinion about the injury upon the post
mortem report have been collected. When accused was arrested, his disclosure
statement was got recorded. He was sent to JC. The charge sheet was prepared
and filed after completion of the investigation.
The formal charge against the accused U/s 302 of IPC was framed on
29.2.2002 which was read over and explained to the accused. The accused pleaded
not guilty and claimed trial.?
3. The prosecution in order to bring home its case has examined 31
witnesses. PW-1, Swaran Singh, who was cited as an eye-witness, turned hostile
and in court stated that he knows nothing about the case.
4. PW-5, Surender Mohan Chhabra, deposes that on 31.01.2000, around 7.30
p.m., he went to Jain Clinic at Sukhdev Vihar to get some medicine. At that
time the Doctor was not in his clinic. The Doctor came subsequently and went
straight into the chamber. Soon thereafter, this witness heard a commotion
outside and the cries of 'Bachao Bachao'. The witness rushed and found that
close to the Jain Clinic in the gali, Madan Mohan Lal Verma was lying on the
ground. It was dark at that place. He inquired from the injured as to what had
happened, on which Mr.Verma, replied - ?Vir Singh ke londe Bitto ne churra mara
hai?. Meantime, the daughter-in-law of Mr.Verma, Suman Verma, PW-9, along with
Himanshu Jain, PW-12, and others came to the spot. Himanshu Jain brought a van
in which Mr.Verma, the injured, was taken to Holy Family Hospital by Suman.
This witness went to the hospital separately. On reaching there he was told
that the injured had died and he saw Suman weeping. Several members of the
family of Mr.Verma had gathered in the hospital. This witness brought back
Suman to her house. On the following morning the police met him at the house of
the deceased where on inquiries he narrated what was within his knowledge in
connection with the case. This witness was subjected to a lengthy cross-
examination. He deposes that his house is at a distance of ten yards from the
Jain Clinic and that he had come to the clinic to get medicine for viral fever
and its after-effects. He also deposes of the good relations with the deceased
and that he was on visiting terms with Himanshu Jain. This witness stated that
he had not informed the police, in the hospital of the incident. The testimony
of this witness could not be impeached by the defence counsel in cross-
examination.
5. PW-8, Dr.Shashank Jain, deposes to the effect that on 31.1.2000 at
around 7.30 p.m. while parking his car outside his clinic, he met an old
patient, Madan Mohan Lal Verma, who complained of tooth-ache. The Doctor
advised him to continue the medicine prescribed for a further period of two
days. Thereafter this witness went to his clinic and entered his chamber. He
had barely settled down, when he heard the cry from outside, 'Bachao Bachao'.
He rushed out of the clinic and found Madan Mohan Lal Verma lying in gali in
front of his clinic. His clothes were soaked in blood. He was alive at the
time and was gasping. The Doctor saw that a number of people had gathered
around him including Surender Mohan, PW-5. Within seconds Himanshu Jain got his
van and took him Holy Family hospital. This witness also reached the hospital
where he was told that the patient has already been declared dead. In cross-
examination he denied having prepared any prescription on the earlier
occasion for the deceased. The witness reiterated that he gave medicine for
tooth-ache, antibiotics, pain-killer, oral rinse. He further affirms in cross-
examination that Madan Mohan Lal Verma was lying ten paces away from the
chamber of his clinic. He denied that he was the first person to reach the
injured. He further deposes that on the following day while he was in front of
the house of the deceased, the police met him and recorded his statement.
6. Suman Verma, PW-9, deposes that on 31.1.2000 around 7.30 p.m. she was
in her house when she heard that someone had hit her father-in-law in front of
the Jain Clinic, she rushed towards the clinic and found her father-in-law in a
pool of blood. Surender Mohan, PW-5, was already there. She with the help of
Surender Mohan and Himanshu Jain, rushed the injured to Holy Family Hospital
where he was admitted and after some time declared dead. Her relatives reached
the hospital on which Surender Mohan Chhabra brought her home. The police made
inquiries regarding the incident on 01.02.2000 and recorded her statement. In
cross-examination she states that Shashank Jain is the brother of her jethani
and Himanshu Jain is their neighbour. Surender Mohan Chhabra is not related to
them and is only a family friend. The distance from her house to Jain Clinic
can be covered within few seconds. She also deposes that the police met her on
the next day at 8.30 a.m. and recorded her statement.
7. Anil Kumar Verma, PW-10, identified the body of Madan Mohan Lal Verma.
Himanshu Jain, PW-12, states that on 31.1.2000 he came from his office and was
just parking his Car when he heard that Madan Mohan Lal Verma had been stabbed.
He rushed immediately and saw Madan Mohan Lal Verma in a pool of blood with
several people around, including Suman Verma. He immediately brought his van,
put the injured in it and along with Suman went to Holy Family Hospital to the
Emergency. He deposes that injured was declared ?brought dead?. In cross-
examination, this witness states that he knew Suman, as also the deceased for
over twelve years being neighbours. He admitted that he took the deceased in his
van to the hospital and that there were blood stains on the rear seat. He also
said that the following day the statement was recorded by the police but since
the police did not ask him over the blood stains he did not tell them. This
witness further deposes that there was sufficient light at the place where the
deceased was lying and that it took ten minutes to reach the hospital,
8. Vijay Verma, PW-13, deposes to the effect that his father was
Secretary, Sukhdev Vihar House Building Cooperative Society as also Sukhdev
Vihar Welfare Association and that one Bir Singh had made unauthorised
construction in Sukhdev Vihar park. When a Public Interest Litigation was filed
in the Delhi High Court his father made correspondence with various departments
in this regard and the High Court passed an order for removal of unauthorised
construction in Sukhdev Vihar park, consequent to which the construction of Bir
Singh was removed on 20.09.1998. This witness has proved various documents and
letters. In cross-examination he admitted that he did not seek permission of
the police to open the almirah of his father and take out the documents which
were earlier exhibited. He stated that on 02.04.2004 he identified the
trousers, belt, shirt, banyan, socks, spectacles, sweater and handkerchief of
his father and he used to meet his father four to five times a day. He also
deposes to the dress of the deceased on 29.01.2000.
9. PW-6, Dr.Thomas Davis, CMO Holy Family Hospital handed over sealed
parcel containing clothes of the deceased. PW-7, Dr.Mala Sainin of Holy Family
Hospital deposes to the examination conducted by her on 31.01.2000, of Madan
Mohan Lal Verma and gave the description of twenty-one injuries found on his
person. PW-2, Dr.Arun Kumar Agnihotri one of the Board Members who conducted
the post-mortem exercise on the dead body of the deceased deposed to the
examination conducted by him. PWs 2 to 7 have proved the unnatural death of
Madan Mohan Lal Verma, as also proved the cause of death being the stab wounds
inflicted also the injuries being the possibilities of being caused by knife,
Exhibit PW-1.
10. PW-18, Constable Kiran Pal has deposed that on 31.1.2000 while he was
posted at police post Sukhdev Vihar and was patrolling at around 7.30 p.m. at
the DDA Market, he saw Brij Kishore coming from Church compound side having a
knife in his hand. This witness tried to stop him, but due to darkness, Brij
Kishore escaped from a narrow lane. He identified the accused in court. This
witness was cross-examined where he stated that he was on Beat Duty in the area
and made entries in the roznamcha. He could not tell about the departure entry
of 31.1.2000. He did not meet SHO personally on 31.1.2000, except at night at
the police station, around 9.00 p.m. His statement was recorded in the police
station. This witness states that he visited the house of the deceased as the
deceased was Secretary of the Association and that the witness was on duty from
8.00 a.m. to 8.00 p.m. on 31.1.20000. He also deposes that the entries in the
daily dairy were made by the Munshi. He states that he could not take the help
of the public to apprehend Brij Kishore as it was the winter season and people
were not on streets.
11. PW-15, Ajay Kumar, deposes to the effect that on 31.1.2000 he was
informed by the Control Room of South District of the murder in Sukhdev Vihar.
He reached the site at 10.45 p.m. and was met by S.I.Ranjan. He took
photographs of the place of the incident and proved the negatives. In cross-
examination he states that in order to avoid any risk he took two snaps of each
spot. PW-19, Madan Lal is the draftsman. PW-11, SI Sanjay Kumar deposes that
on 31.1.2000 he was working as Duty Officer at police station New Friends Colony
from 4.00 p.m. to 12.00 midnight. He received rukka through Constable Bali Ram
sent by SI Ranjan. He recorded the F.I.R. No.45/2000. He returned the rukka
and original to Constable Bali Ram. He proved the F.I.R.45/2000,
Exhibit 11/A.
12. PW-21, S.I.Anil Malik, stated that on 08.02.2000, he was posted at New
Friends Colony and was directed by the SHO to keep a watch on Brij Kishore, who
at about 5.30 p.m. came out of the house and went towards Kashmiri Gate. This
witness followed Brij Kishore to ISBT and informed the SHO. Brij Kishore came
to ISBT and met his bua's son, at which time Brij Kishore was arrested.
13. PW-22, is S.I.Ranjan. He deposes to the effect that on 31.1.2000, he
was posted at police post, Sukhdev Vihar and received daily diary no.18-A, upon
which he went to Holy Family Hospital, where he found that Madan Mohan Lal Verma
had expired due to stab injuries. Inspector Gurmeet Singh, SHO, police station,
New Friends Colony, had also reached the hospital. This witness along with SHO
reached Jain Clinic and found blood on the spot. He searched for eye-witness
but none was found at the spot. He made an endorsement in the daily diary,
Ex.PW-22/A, sent the same through Bali Ram for registration of the case. The
investigation was handed over to Inspector Gurmeet Singh. This witness states
that the crime scene was photographed and in the meantime, one Swaran Singh
came to the spot and claimed to be eye-witness. His statement was recorded,
site plan prepared, blood stained earth taken into possession and thereafter,
again along with Gurmeet Singh he went to Holy Family Hospital and arranged for
post-mortem. In cross-examination various procedural flaws were sought to be
highlighted but nothing substantial was elicited.
14. PW-24, Head Constable, Krishan Lal, Mohharar Malkhana, deposes to the
deposit of recoveries in the Malkhana and states that so long as the articles
remained in the Malkhana, they were not tampered with. He proved Malkhana
Register, Exhibit PW-24/A.
15. PW-27, SI Anuj Nautiyal, states that on 09.02.2000, he along with SHO
Gurmeet Singh interrogated accused-Brij Kishore who made a disclosure statement,
Ex.PW-27/A and pointed out to the place of incident vide Memo Ex.PW-27/B and
also disclosed that he could get the knife by which he had caused the injuries
and his blood stained clothes etc. recovered. The accused led the police party
to Sarai Kale Khan bus adda, near a pipe-line from where he got recovered two
polythene bags. On opening, one jeans, one shirt, a knife and a pair of shoes
were found. The trouser and shirt were sealed. The trouser, shirt, shoes and
knife were taken into possession vide memo Ex.27/D. This witness identifies the
case property. In cross- examination he denies that the blood sample was
already lying in the police station and the Investigating Officer also denies
that the clothes and shoes recovered did not belong to the accused and are not
of the size of the accused. He admitted that at the time of pointing out the
place of occurrence no public witness was joined.
16. PW-29, S.I. Sunil deposes to the deposit of the case property at FSL,
Malviya Nagar. PW-30, Inspector Gurmeet Singh, SHO and Investigating Officer of
this case, stated as to the steps taken by him and the recoveries as effected.
He also identifies the case property.
17. In defence, DW-1, Gurdas, has been examined who states that the
accused is son of his maternal uncle and on 01.02.2000, he was present at his
house and received a phone call from his maternal uncle, Bir Singh that Brij
Kishore and family members of his maternal uncle have been taken by the police
regarding murder in the neighbourhood. He went to the house of his uncle and
thereafter to the police station, New Friends Colony. He was informed by the
officials that they have been brought in regard to murder of Mr.Verma. This
witness has been cited in support of defence of alibi taken by the accused. He
states that he had informed the SHO that on 31.1.2000 between 5.00 to 11.00
p.m. Brij Kishore was with him at the house of sister of Brij Kishore, Smt.
Sangita, celebrating her wedding anniversary. In cross-examination he says he
did not make any written complaint to the DCP or Commissioner of Police or sent
any telegram to the higher authority about the false implication of the accused
but that his maternal uncle sent a telegram on 02.02.2000. The aforesaid
telegram was, however, never produced. This witness states that he did not
complain to any authorities regarding his signatures being obtained on the
arrest memo. This witness also did not make a statement in writing to the
effect that Brij Kishore was present with him celebrating the wedding
anniversary of Sangita between 5.00 to 11.00 p.m. on the day of the incident.
18. We have carefully examined the depositions and the material placed
before us. From the depositions above, it is evident that soon after the
deceased was stabbed, PW-5, Surender Mohan Chhabra, reached the spot and
inquired of the deceased as to what had happened. The deceased identified the
assailant. The same assailant was subsequently seen carrying a knife by
Constable Kiran Pal, PW-18. Recoveries of knife, blood stained clothes and
shoes were effected at the instance of the accused. Human Blood was detected of
group AB, which blood is the blood group of the deceased. The accused was
arrested at the bus stop, ISBT. This leaves no manner of doubt that the
appellant is guilty of the offences charged. The prosecution has been able
to bring home the guilt of the accused. We also find that the reasoning of the
learned Additional Sessions Judge while evaluating the depositions and the
material on record cannot be faulted with. We affirm the same.
19. Coming to the question of sentence, the learned Additional Sessions
Judge has sentenced the appellant to death for an offence under Section 302
IPC. The learned Additional Sessions Judge has relied upon judgments of the
Supreme Court in Surajdeo Ojha and Others Vs. State of Bihar, AIR 1979 SC 1505;
Surinder Nath Mehto Vs. State of Bihar, AIR 1979 SC 1497, Helluri Subha Rao
and Another Vs. State of A.P, AIR 1979 SC 1513; State of Haryana Vs. Harpal
Singh; Jaya Raj Vs. State of Tamil Nadu AIR 1976 SC 1519.
20. We have given our careful consideration to this aspect of the matter.
We find that merely because a large number of wounds were inflicted on the
deceased itself is not a case which came within the ambit of rarest of the rare.
No doubt, every murder is gruesome in nature and wounds inflicted indicate the
nature of intent, however, to bring it within the purview of rarest of the rare
something more than mere infliction of wounds is necessary. An angry young man of 21 years, having lost his house on a complaint made by the deceased, vent his
anger in an irrational manner not accepted by law. The sentence of death to our mind would be far too harsh, not falling within the framework of 'rarest of rares'. We feel the sentence of life imprisonment would suffice the ends of
justice. Consequently, while maintaining the conviction of the appellant we modify the order of sentence from death to life imprisonment.
21. With this modification the Death Sentence Reference No.2/2004 as also
the appeal are disposed of.
[R.S.SODHI]
JUDGE
[P.K.BHASIN]
JUDGE
July 21, 2006
bp
