State vs Pramod & Ors.
2009 Latest Caselaw 1276 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. L.P.No. 213/2008


%                            Date of Order : April 09, 2009

STATE                                          ..... Petitioner
                      Through : Mr. Pawan Sharma, Advocate

                                 VERSUS

PRAMOD & ORS.                      .....Respondents

Through : Mr. Sudarshan Rajan, Adv. for R-1 and R-2 Mr. S.C.Gupta, Adv. for R-3 Mr. R.K.Bali, Adv. for R-4 Ms.Neelam Grover, Adv. for R-5 Mr. Jitender Sethi, Adv. for R-6

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be

allowed to see the judgment?

(2) To be referred to the reporter or not?

(3) Whether the judgment should be reported

in the Digest ?

PRADEEP NANDRAJOG, J.(Oral)

1. Seven accused; namely Vinod, Pramod, Mukesh

Kumar, Rakesh @ Makhan, S.D.Sharma, Karan and Rajbir @

Chhanga were sent to trial for having murdered Ashok and

Pappu Pehlwan. The case of the prosecution was that one Ami

Lal, father of Devender, owned a piece of land ad-measuring

1000 sq. yards at Ghonda Chowk where mini buses were being

parked on daily basis. Ami Lal used to charge Rs.20/- per day

from the owners of the mini bus. That in the last week of

February 2003, the bus operators made a complaint to Ami Lal

that Vinod, Pramod, Rajbir, Makhan Singh and Karan Singh, all

vagabonds of the area, were demanding money from them to

park their mini buses. Devender, son of Ami Lal, discussed this

with Pappu Pehlwan, a cousin of Devender, who in turn spoke

to Vinod, Pramod, Rajbir, Makhan Singh and Karan Singh, but

they threatened him with dire consequences if he created

obstacles in their way. That, Devender and Pappu Pehlwan

told the bus operators not to pay any money to the vagabonds

and on said account the said vagabonds had a grouse against

Devender and Pappu Pehlwan.

2. That on 27.2.2003, Devender along with Pappu

Pehlwan were going towards Ghonda Chowk in connection with

some work and at around 7-7:30 PM reached Madras Cafe

where the said persons as also two more, namely Mukesh and

S.K.Sharma met them. Karan exhorted Makhan that Devender

and Pappu should not be left alive. Just at that point of time,

Ashok and Ram Kumar who were sipping juice at a stall nearby

reached. They intervened. At that junction Mukesh and

S.K.Sharma exhorted that Devender, Pappu Pehlwan and their

well-wishers should be finished. That on the exhortation of

Mukesh and S.K.Sharma; Rajbir, Vinod and Pramod took out

firearms from the dub of their pants and fired shots. Whereas

Pappu Pehlwan and Ashok sustained injuries and fell down; to

save themselves, Devender and Ram Kumar ducked and lay

flat on the ground. The offenders ran away with their

respective weapons. Sunder, a cousin of Devender reached

and rescued them. A Maruti van coming from Ghonda Chowk

side was stopped. Ashok and Pappu Pehlwan were put inside

the van and were removed to GTB hospital where both of them

were proclaimed dead on arrival.

3. The incident was first reported to the police when a

telephonic information was noted by the duty constable, being

DD No.20-A, Ex.PW-3/C, at 7.30 PM on 27.2.2003 that two

people have been shot near Maujpur juncture adjoining

Parivar restaurant.

4. At 7.42 PM, vide DD No.21-A, Ex.PW-3/D,

information was recorded that the informant had informed that

his brother had been shot at.

5. Inspector Veer Singh Tyagi PW-35, accompanied by

other police officers reached GTB hospital where he met

Devender, whose statement Ex.PW-2/A was recorded, in which

he named the accused as the assailants of his brother Pappu

Pehlwan and Ashok. He attributed various roles to the

accused. Making an endorsement Ex.PW-3/B thereon,

Inspector Veer Singh Tyagi forwarded the statement at around

9.15 PM for registration of an FIR and pursuant thereto the FIR

was registered.

6. Vide impugned judgment and order dated

30.4.2008 save and except accused Vinod, all other co-

accused have been acquitted for the reason the learned Trial

Judge has returned a finding that from the evidence on record

it was apparent that Devender was not an eye witness and

that even Ram Kumar the other person who claimed to be any

eye witness was also not an eye witness and that Sunder,

another witness of the prosecution could not be believed that

Ashok made to him any dying declaration.

7. It may be noted that the conviction of Vinod has

been sustained not on the basis of the testimony of any eye

witness but on the basis of a recovery of a country made pistol

pursuant to a disclosure statement made by him followed by

the appellant getting the said pistol recovered from a

concealed portion in the wall of his house as also the recovery

of a used cartridge, which as per the ballistic report Ex.PW-

22/A, was opined to be fired through the country made pistol,

Ex.F-1. It may be noted that no recovery of any firearm or any

other incriminating weapon of offence has been shown or

sought to be proved against the respondents.

8. Devender PW-2, at whose instance the FIR was

registered had deposed that he and Ram Kumar were present

when the firing took place and they i.e. Devender and Ram

Kumar could save themselves by ducking and lying flat on the

ground and that after shooting the deceased Pappu Pehlwan

and Ashok, the assailants fled and he and Ram Kumar

continued to be at the spot till Sunder came after 10 minutes

and thereafter the injured were removed to the hospital.

Discussing the conduct of Devender, it has been held that

evidence suggests that Devender learnt about his brother

being shot at and reached the hospital and from the hospital

made a call to the police at 7.42 PM which resulted in DD

No.21-A being recorded.

9. In a nutshell, the reasoning of the learned Trial

Judge is that, whereas in his statement Ex.PW-2/A Devender

stated that when Sunder reached the spot, the accused ran

away, but in court, he deposed that Sunder came after about

10 minutes of the accused having run away from the spot.

The learned trial judge noted that it is strange that even after

the assailants had run away Devender made no attempt to

flag down a vehicle in which his brother and his brother's

friend Ashok, both of who were shot, could be removed to the

hospital. The fact that the shirt of Sunder was stained with

blood when the police reached the hospital and hence was

dutifully seized by the police, the claim of Devender that even

his clothes were stained with blood has been disbelieved, for

the reason had it been so stained with blood, there was no

reason why the police would not have seized the same. The

inference drawn by the learned trial judge is that this shows

that the Devender was not present at the spot and did not

participate in transporting the injured to the hospital and his

claim to the contrary was false. The learned Trial Judge has

additionally noted that SI Jagbir PW-34 and Inspector Veer

Singh Tyagi PW-35 have categorically deposed that they did

not notice any blood on the shirt or the clothes of Devender

and hence did not seize the same. Lastly, the learned Trial

Judge has noted that in his statement Ex.PW-2/A, while

informing the police at 7.42 PM, Devender informed the police

that he made the call when his brother was declared brought

dead at the hospital wherefrom an inference has been drawn

that Devender, who admittedly had a mobile phone with him

having contacted the police at 7:42 PM shows that he surfaced

at the hospital just around said time and learnt about his

brother being shot and having died.

10. Ram Kumar, the person named by Devender as

having reached the spot along with Ashok, before the firing

took place, was examined as PW-4. The learned Trial Judge

has discussed the evidentiary worth and the credibility of the

testimony of Ram Kumar in paragraphs 26 to 33 of the

decision. In a nut shell, the learned Trial Judge has held that

the fact that the clothes of Ram Kumar were not seized by the

police shows that the same were not stained with blood and

his claim that when he helped in removing his brother Ashok

to the hospital, his clothes got stained with blood was false. As

in the reasoning while discussing the evidentiary worth of the

testimony of Devender, the learned Trial Judge has held that if

the police seized the clothes of Sunder which were stained

with blood, there is no reason why clothes of Ram Kumar

would not be seized if even they were stained with blood.

Similarly, the unnatural conduct of Ram Kumar to be sitting at

the spot even after the assailants fled, to await Sunder

reaching after 10 minutes and thereafter removing his brother

to the hospital has been found to be unnatural. In a nut shell it

has been held that the evidence probablizes that even Ram

Kumar reached the hospital on learning that his brother has

been shot.

11. The testimony of Sunder who claimed to have

reached the spot where the incident took place soon after the

firing was over and also claimed that Ashok had made a dying

declaration to him inculpating the appellant, has been

discussed by the learned Trial Judge in paragraphs 34 to 38 of

the decision. Noting that according to Sunder he was present

in his house at 7-7:30 PM on 27.2.2003 and that he learnt from

his children that his brother was fired in front of Madras Cafe

and at that he reached the place and found Pappu Pehlwan

and Ashok lying in an injured condition and he saw Ram Kumar

and Devender sitting in a sad mood and he consoled them and

thereupon got stopped a Maruti van in which Pappu Pehlwan

and Ashok were removed to the hospital, has been found to be

a strange conduct by the learned Judge, for the reason, the

immediate reaction of Sunder would have been to summon a

rescue for the injured, before consoling the grieving relatives.

Not only that. The learned Trial Judge has found that some

time would have been consumed for the information to reach

Sunder that a firing had taken place and Sunder reaching the

place of the incident. Noting Sunder's admission that the

place of occurrence was 1½ kilometer from his residence, the

learned Trial Judge has held that Sunder would have reached

the place of occurrence at least after 7-8 minutes of the firing

being over, by which time the accused would have fled. The

claim of Sunder that Ashok made a dying declaration to him

telling him that the appellant had fired at him has been

disbelieved by the learned Trial Judge with reference to the

post-mortem report Ex.PW-7/A of Ashok which evidences that

the bullet which had pierced the chest cavity of Ashok at the

intercostals space, had pierced the upper lobe of the left lung;

coming out of the lung it entered the heart and piercing

through the heart, made an exit not only through the heart,

but even through the back. The learned Trial Judge has opined

that in such a situation, the heart would have contracted for

not more than 4 to 5 times. That from the fact noted in the

post-mortem report that the left chest cavity was filled with

blood and the left lung had collapsed, the learned Trial Judge

has opined that with the heart not pumping, oxygen supply to

the brain would have diminished and due to severe anoxia of

brain, Ashok would have died immediately at the spot and

would not be in a position to speak to anyone after 4 to 5

minutes of being shot.

12. But, from the fact that the clothes of Sunder were

found stained with blood and were seized by the police in the

hospital as also the fact that the MLC of Pappu Pehlwan and

Ashok records that Sunder had brought them to the hospital,

the learned Trial Judge has concluded by holding that evidence

establishes that on hearing about the firing, Sunder reached

the spot. The assailants had run away by then. He flagged a

vehicle in which Pappu Pehlwan and Ashok were removed to

the hospital. He informed Devender and Ram Kumar who also

reached the hospital.

13. We find no infirmity in the reasoning of the learned

Trial Judge. It is settled law that where a Court of Sessions has

analyzed the evidence and the view taken is reasonable and

probable and no material evidence or circumstance has been

omitted to be considered and no irrelevant or inadmissible

evidence has been considered and no irrelevant circumstance

has been taken into account, the appellate Court would not

interfere with said finding of fact.

14. We find no case made out to grant leave to appeal.

The petition is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE APRIL 09, 2009 MM