Delhi High Court
Med Singh @ Medu Pehalwan vs State on 10 August, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04th August, 2009
Judgment Delivered on: 10th August, 2009
+ CRL.A.662/2008
MED SINGH @ MEDU PEHALWAN ...Appellant
Through: Mr. R.P. Kasana, Advocate.
Versus
STATE ...Respondent
Through: Mr.Pawan Sharma, APP.
WITH
+ CRL.A.646/2008
BRIJESH MAWI ...Appellant
Through: Mr. Chetan Sharma, Sr. Advocate
with Mr. Neeraj Walia, Advocate.
Versus
STATE ...Respondent
Through: Mr. Pawan Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J
1. Both these appeals have been preferred against the
impugned judgment dated 08.7.2008 whereby the appellants Med
Singh and Brijesh Mawi had been convicted under Section 302
read with Section 34 of the IPC as also for the offence under
Section 460 read with Section 34 of the IPC. Appellant Brijesh
Mawi had additionally been convicted for the offence under
Section 25 of the Arms Act.
2. The case of the prosecution as unfolded is that on
06.6.2001 H.C. Brij Pal PW-11 who was posted in PCR received an
information at 10.35 PM from the Control Room that firing is
taking place at Savitri Nagar near a sweet shop. He i.e. PW-11
alongwith his staff reached the said place where a crowd had
gathered inside the STD Booth, blood was lying and some articles
were scattered in broken condition. The STD booth belonged to
Omiyo Das of Malik Communications. The injured i.e. Omiyo Das
had already been removed to the hospital.
3. This information was passed on to the local Police
Station which was recorded in D.D.No.15A and marked to SI
Sudhir Sharma PW-24 who alongwith Const. Bajrang Bahadur
PW-10 reached J-10 Savitri Nagar. Injured had already been
removed to the AIIMS Hospital. On reaching there it was learnt
that victim Omiyo Dass had been brought dead to the hospital.
4. Vicky Malik PW-1 was the witness to the occurrence.
His statement Ex.PW-1/A was recorded wherein it was stated
that on 06.6.2001 at about 10.20 PM when he i.e. PW-1 was
sitting on the road outside their STD Booth and Sweet Shop at J-
196, Savitri Nagar he noticed a white maruti car stop on the other
side of the road; two men had alighted and they came towards the
STD Booth and forcibly entered the booth; they started firing
bullets at his maternal uncle Omiyo Dass; he i.e. PW-1 tried to
intervene and brought a palta from his nearby sweet shop but his
mama told him to run away and save his own life; blood was
oozing out from injuries of his maternal uncle; he i.e. PW-1 ran
towards his house no. 86B shouting for help; assailants had fled
away. He i.e. PW-1 alongwith his younger brother Raj Kumar
Malik PW-3 and other maternal uncle Ravi Kumar Dass PW-4
removed the injured to the hospital; out of the two assailants one
was Satish Kumar who lives in Chirag Delhi; about 2½ years ago
Satish Kumar had murdered his father and he had been acquitted
about one month ago in that case; the second assailant was about
25-26 years of age and was well built and they both had murdered
his uncle Omiyo Dass.
5. Endorsement Ex.PW-24/A was made on Ex.PW-1/A
and the rukka was handed over to Const. Rakesh PW-16 pursuant
to which the FIR Ex.PW-6/A was registered in the handwriting of
H.C. Rangrav PW-6. Site plan Ex.PW-24/B was prepared. From
the spot three live cartridges of 0.38 bore, one empty cartridge of
0.38 bore and four lead pieces of fired bullet were seized and
sealed in separate pullandas with the seal of SKS and were taken
into possession vide memo Ex.PW-1/B. One iron palta was also
seized and sealed vide memo Ex.PW-1/G. The blood stained
baniyan of Raj Kumar Malik PW-3 was also seized and sealed vide
memo Ex.PW-1/F, blood stained earth and earth control were
lifted from the spot vide memo Ex.PW-1/C besides pieces of glass
of the counter which were taken into possession vide memo
Ex.PW-1/D. The STD Code Directory was taken into possession
vide memo Ex.PW-1/E.
6. Crime Team was summoned and Ram Pal Singh PW-2
prepared his report Ex.PW-2/A. Const. Bharat Lal PW-7 took
photographs of the scene of occurrence from outside as well as
inside of Malik Communications; the reel is Ex.PW-7/A. Copy of
the FIR was taken by HC Jagbir PW-8 and handed over to Elaka
Magistrate as also to the Joint Commissioner of Police.
7. Dr.T.Milo PW-9 had conducted the post-mortem on
the body of the deceased on the following day i.e. 7.6.2001. Nine
ante-mortem bullet injuries were noted; and four bullets had been
extracted from the body which along with one cotton underwear,
one cotton baniyan with tear, one long pant with tear along with
the blood gauze of the deceased had been handed over to the
Investigating Officer PW-24 SI Sudhir Sharma which had been
taken into possession vide memo Ex.PW-10/A. The cause of death
was opined as coma due to head injuries caused by fire. The
dead body was thereafter handed over to the relatives of the
deceased.
8. On 16.11.2001, SI Sudhir Sharma PW-24, formally
arrested accused Satish in this case who had already been
arrested by the Faridabad Police in FIR No.339/2004 Police
Station G.R.P., Faridabad under Section 25 of the Arms Act. ASI
Pyare Lal PW-14 posted in Police Station G.R.P., Faridabad,
Haryana had joined investigation with SI Randhir Singh in that
case. Accused Satish made his disclosure statement Ex.PW-24/D
in the instant case and disclosed about the involvement of his
other accomplices i.e. co-appellant Med Singh and co-appellant
Brijesh.
9. On 3.12.2001, three sealed parcels had been received
by Shri K.C.Varshney PW-21, Sr. Scientific Officer, FSL, Rohini,
Delhi and vide his report Ex.PW-21/A, after examining the 8
bullets marked EB-1 to EB-8, which had been sent to him, he had
opined that striation of riffling marks were present on exhibits
EB-1, EB-3 to EB-8 and had been discharged through a standard
.380" calibre firearm.
10. On 9.1.2002, SI Sanjeev Sharma PW-25, formally
arrested appellant Med Singh in this case vide memo Ex.PW-25/B.
He had already been arrested on 5.1.2002 by Police Station Ashok
Vihar in a case under the Arms Act by SI Subhash and Const.
Ramesh Chander PW-15; Med Singh was found in possession of a
buttondar knife, investigation of that case had been handed over
to ASI Desh Raj PW-5. Med Singh made a disclosure statement
disclosing his involvement in the present case. He was put up for
TIP before the court of Smt.Bimla Kumari PW-18 by SI Sudhir
Sharma PW-24 but Med Singh refused to participate in the
proceedings; said proceedings are Ex.PW-18/B and Ex.PW-18/C.
The certificate of the concerned court is Ex.PW-18/E. No
recovery was effected from appellant Med Singh.
11. On 24.1.2002, Sh.A.K. Srivastava, PW-23 had
examined 6 parcels which had been sent to him sealed with the
seal of MSL, Department of Forensic Medicine, AIIMS, New
Delhi. His detailed biological and serological reports are Ex.PW-
23/A and 23/B, respectively. As per Ex.PW-23/A human blood of
`A' group had been detected on the torn baniyan, underwear and
pant and blood which was also the blood group of the deceased.
On 28.1.2002, PW-21 had also examined this torn underwear and
pant which had been sent to him by the Serology department,
detailed report of which is Ex.PW-21/B.
12. On 12.8.2003, appellant Brijesh Mawi had been
arrested by HC Rajiv Mohan PW-19 an officer of the Crime
Branch in FIR No.575/2003, Police Station Malviya Nagar, under
Section 307/183/353 IPC. On his interrogation he had disclosed
his involvement in the present case and stated that he could get
recovered the .38 revolver used by him in this case.
13. On the same day i.e. 12.8.2003 appellant led the
police party comprising of SI Satish Kumar, ASI Ravinder and HC
Rajiv Mohan, all officers of the Anti-Robbery Cell, Crime Branch
to the second floor, F-4/64, Sector 16, Rohini and from the
roshandan of the bathroom he took out a key and after opening
the lock of the room he got recovered a .380 bore revolver from
underneath a mattress lying on the floor which was containing
four live cartridges. This revolver was taken into possession vide
memo Ex.PW-1/C and sketch of the same was prepared vide
memo Ex.PW-1/B.
14. FIR No. 456/2003 under Section 25 of the Arms Act,
Police Station Prahsant Vihar was accordingly registered against
Brijesh Mawi. SI Satish Kumar has been examined as PW-1, ASI
Ravinder Kumar has been examined as PW-2 and H.C.Rajiv
Mohan has been examined as PW-3 in the said proceedings.
Thereafter both the cases i.e. FIR No.438/2001, under Section
302/34 IPC, Police Station Malviya Nagar i.e. the present case
and FIR No.456/03 under Section 25 of the Arms Act, Police
Station Prashant Vihar were clubbed together by orders dated
01.4.2005 of the Additional Sessions Judge and proceedings were
thereafter recorded in the main case i.e. in FIR No.438/2001. H.C.
Rajiv Mohan was again examined in the said proceedings as
PW-19.
15. SI Sanjeev Sharma PW-25 sought production warrant
of Brijesh Mawi from the concerned court and formally arrested
him on 19.8.2003 in this case vide memo Ex.PW-25/C; his
disclosure statement Ex.PW-25/D was recorded and he pointed
out the place of incident vide memo Ex.PW-25/E. On 28.3.2003
he had refused to join TIP.
16. On 28.8.2003 and again on 29.9.2003,
Dr.P.Siddamabary PW-20 Junior Scientific Officer (Ballistic)
CFSL, Chandigarh, received one sealed parcel and four sealed
parcels respectively in the laboratory. Vide his report Ex.PW-
20/B he had opined that the fired bullets mark B-1, B-3 and B-4
had been fired through a .38" revolver bearing no.25502 and they
could not have been fired through any other firearm because
every fire arm has its own individual characteristic marks. No
opinion on the bullet mark B-2 was possible.
17. On 12.11.2003, Sh. Dipender Pathak PW-26 posted as
Deputy Commissioner of Police, had accorded sanction for
prosecution of appellant Brijesh Mawi @ Shekhar under section
39 of Arms Act for having been found to be in conscious
possession of Webley .38 revolver with the four live cartridges;
the said sanction is Ex.PW-26/A.
18. Accused Satish had died during pendency of trial and
proceedings against him stood abated.
19. Both the co-appellants Med Singh and Brijesh Mawi
pleaded innocence in their statements under Section 313 Cr.P.C.
and stated that they have been falsely implicated in the present
case; appellant Med Singh stated that he had refused TIP for the
reason that his photographs had been taken in the Police Station
and shown to the persons in the Police Station. Appellant Brijesh
Mawi had stated that the revolver was falsely planted upon him.
20. Brijesh Mawi had produced two witnesses in defence.
Vijay Gupta, DW-1 being a resident of ground floor of F-4/64,
Sector-16, Rohini had deposed that on 11.8.2003 he alongwith
Brijesh Mawi had been picked upon by the Crime Branch officer
of R.K.Puram where they had been beaten; the second floor was
under the occupation of his tenant Rajeev Chauhan who had been
examined as DW-2; he has corroborated this version and has
stated that the police had not come to their house at 2nd floor of F-
4/64, Sector-16, Rohini either on 11.8.2003 or on 12.8.2003.
21. The Trial Judge had convicted both the aforestated
appellants.
22. Qua Med Singh, eye witness Vicky PW-1 had deposed
that he was the person who was sitting on the driver seat of the
car from which two persons had alighted and fired on his
maternal uncle Omiyo Das who had subsequently died.
Testimony of PW-1 had been fully relied upon by the Trial Judge
to hold that there was no reason as to why he would falsely
implicate Med Singh and the description of Med Singh having
been mentioned by PW-1 under section 161 Cr.P.C. and thereafter
PW-1 correctly identifying Med Singh in the Court coupled with
the fact that Med Singh had refused TIP for which an adverse
inference has to be drawn against him, this evidence was held
sufficient to nail appellant Med Singh.
23. Qua Brijesh Mawi, although PW-1 the eye witness had
not identified Brijesh Mawi in the court, yet it had been held that
recovery of the .38 revolver by the appellant which had been sent
to the CFSL for examination alongwith fired bullets B-1 to B-4 and
the report of CFSL having opined that bullets B-1, B-3, and B-4
had been fired from the said .38 revolver, it had been fully
established by the prosecution that this was the same revolver
which had been used to murder Omiyo Dass; thus the onus of the
prosecution to connect Brijesh Mawi with the crime had been
discharged.
24. On behalf of the appellant Med Singh, it has been
argued that admittedly there is no recovery effected from him, he
has not been named in Ex.PW-1/A which was the first statement
of the eye witness pursuant to which the FIR had been registered;
it was only in the supplementary statement of Vickey that it had
figured that one other person was sitting in the driver seat of the
maruti car from where two persons had got down and fired at the
deceased; it is argued that no description of Med Singh had been
given in this version of the witness; the witness PW-1 had come
into witness box after a gap of more than two years and has
identified Med Singh for the first in the court which is a useless
identification as admittedly PW-1 the eye witness was not known
to appellant Med Singh. It is argued that the refusal of TIP by
Med Singh was for a valid reason as he had categorically stated
that he had refused TIP for the reason that his photographs were
taken in the Police Station Ashok Vihar and had been shown to
the persons. Attention has been drawn to the cross-examination
of ASI Desh Raj PW-5 wherein he has stated that photographs of
Med Singh had been taken in Police Station Ashok Vihar. It is
stated that in this circumstance there being a valid ground for
appellant Med Singh to have refused TIP and the eye witness
having identified Med Singh in Court after a lapse of more than
two years and no description having been given by the eye
witness Vickey in his statement under Section 161 Cr. P.C.; and
eye witness admittedly not knowing Med Singh from before, such
identification is a useless identification having no sanctity of law
and appellant Med Singh could not have been convicted on this
ground alone; he is entitled to benefit of doubt.
25. On behalf of the appellant Brijesh Mawi, it has been
argued that Vickey PW-1 had not identified appellant Brijesh
Mawi in the court; he is otherwise not a hostile witness and has
attributed a specific role to appellant Med Singh but had omitted
any role to co-appellant Brijesh; it is argued that testimony of PW-
1 is otherwise reliable and reliance must also be placed on that
part of his version wherein he had refused to identify Brijesh
Mawi. It is stated that the solitary circumstance against
appellant Brijesh Mawi i.e. the recovery of the .38 revolver is
shattered in view of the defence adduced by him; attention has
been drawn to the version of DW-1 and DW-2; it is argued that
both these witnesses have categorically stated that the police had
not come to the second floor of F-4/64, Sector-16, Rohini on either
11.8.2003 or on 12.8.2003; defence witnesses have to be given
the same weightage as the witnesses of the prosecution and their
testimony cannot be brushed aside lightly; Ex.PW-1/B the alleged
recovery memo bears the signatures of the attesting witness
Pradeep Rawat who has not been brought into the witness box
which again makes this document a suspect. It is argued that the
prosecution has failed to connect all the links in the chain of
evidence to exclude the possibility of non-tampering of the
exhibits i.e. the bullets which had been sent to CFSL for expert
examination. Admittedly in this case there were eight bullets
which had been sent to the CFSL in the first instance and this is
clear in terms of the first report of the ballistic expert Ex.PW-
21/A; thereafter after the arrest of appellant Brijesh Mawi and the
alleged recovery of the .38 revolver at his instance, the .38
revolver with the four bullets had again been sent to CFSL for
examination and this is evident from the subsequent reports of
the FSL Ex.PW-20/A and Ex.PW-20/B which show that only four
bullets had been sent for the second examination i.e. the bullets
mark B-1 to B-4 and there is no explanation with the prosecution
as to why the other four bullets had not been sent, the Malkhana
Mohorar with whom these exhibits had been deposited in this
intervening period had not been examined; Register No. 19
containing entries of the deposit and withdrawal of the said
exhibits from the Malkhana and the road certificate vide which
the said exhibits had been sent to CFSL has not been proved;
these links in the chain of evidence having remained incomplete,
there is every possibility that these exhibits had been tampered
with and in the absence of positive evidence to the contrary, no
reliance can be placed upon this circumstance.
26. Learned defence counsel had placed reliance upon
judgment reported as Des Raj Alias Dass Vs. State 2000 I AD
(Delhi) 945 and also another judgment of the Apex Court Palia
Vs. State of Punjab 1997 SCC(Cri) 383 to substantiate his
submission that in the absence of this link evidence the possibility
of the sample being tampered cannot be ruled out, appellant is
entitled to benefit of doubt and a consequential acquittal.
27. The star witness of this case is PW-1 Vickey who was
the eye witness to the incident. He had on oath reiterated the
version as set up by him in his statement Ex.PW-1/A which had
formed the basis of the rukka. He has deposed that on 06.6.2001
at about 10.20 PM when he was sitting outside the STD booth and
restaurant at J-196, Savitri Nagar, he saw a maruti car stop on
the other side of the road; two men alighted from the car and
came towards the STD booth; one of them was accused Satish and
other was a man 5 feet 8 inches tall, well built and about 25 years
in age. Both the said persons were armed with pistols; his
maternal uncle Omiyo Dass who was running the STD booth was
fired at by both the said persons. His uncle bent down to protect
himself; the two men fired again; PW-1 i.e. Vickey rushed to bring
an iron palta from his adjoining sweet shop to save his uncle who
shouted at him "Bhag Ja"; his uncle had already been hit by
bullets and he was bleeding; the appellant fled away from the
scene; at that time PW-1 i.e. Vickey saw Med Singh (present in
the court) sitting in the driver seat.
28. This is the role which has been attributed by the eye
witness to appellant Med Singh. PW-1 had also identified the four
bullets sealed with the seal of KCV/FSL contained in a glass bottle
with a seal of AIIMS on the cap as also another set of four fired
bullets produced from an envelope sealed with the seal of
KCV/FSL.
29. In his cross-examination, he has admitted that he did
not know Med Singh before the incident; he has stated that in his
statement Ex.PW-1/A he had not mentioned that Med Singh or
any person was sitting on the driver seat of the maruti car. It has
also come in his cross-examination that even in his second
statement recorded under Section 161 Cr. P.C. Ex.PW-1/H there
is no mention of PW-1 having seen any person in the driver seat of
any maruti car. It was only in the third statement which was
confronted to the witness Ex.PW-1/DA that there is a mention by
the witness that while he was running he saw a man sitting in the
driver seat of the maruti car.
30. SI Sudhir Sharma PW-24 has admitted that he had
recorded three statements of Vickey. It has come in the
categorical version of Vickey PW-1 that it was only in his third
statement Ex.PW-1/DA before the Investigating Officer that he
had mentioned that while he was running he saw a man sitting on
the driver seat of a white maruti car; no detailed description or
features of the said person had also been given; from this version
what can be made out is that Vickey only had a fleeting glance of
the person sitting in the driver seat of the said maruti car who
was allegedly Med Singh. Incident had admittedly taken place at
10.00 to 10.20 PM when the sun had set and it had become dark.
The vehicle i.e. maruti car was parked on the other side of the
road. This is the categorical version of PW-1; as per the site plan
the width of the road is 13 paces i.e. about 10 feet approximately.
Vehicular traffic was moving; visibility was poor for the reason
that it being night time coupled with the fact that the vehicle in
which Med Singh was allegedly sitting was at a distance of more
than 10 feet away from him; Vicky could thus have seen the said
person only for a fleeting moment; at that time he was running
from the scene of occurrence and obviously in a perplexed and
confused state of mind.
31. It is in this background that we shall now consider the
circumstance of the refusal of TIP by the appellant and
identification of Med Singh by Vickey in the Court after a lapse of
more than two years.
32. Smt. Bimla Kumari,M.M.,PW-18 had deposed that on
10.1.2002 an application had been filed before her for holding TIP
of appellant Med Singh vide Ex.PW-18/A but on that day and also
on the subsequent days i.e. 14.1.2002 and 18.1.2002 TIP could
not be held. On 19.1.2002 appellant Med Singh had been
produced before PW-18 but the appellant had refused to
participate in the TIP proceedings stating that he had been shown
to the witness by the police who had taken his photographs when
he was in Police Station Ashok Vihar. The report of refusal in the
handwriting of Med Singh is Ex.PW-18/C; a perusal of which
endorses this deposition of PW-18.
33. In this context statement of ASI Des Raj PW-5 is
relevant. He had arrested Med Singh on 5.1.2002 at Police
Station Ashok Vihar in a case under Arms Act. In his cross-
examination this witness had admitted that he had taken
photographs of Med Singh for preparing his dossier. It has thus
been established that appellant Med Singh had been
photographed in Police Station Ashok Vihar on 5.1.2002 i.e. prior
in time to his arrest in the present case.
34. The refusal of Med Singh to participate in TIP was
thus for a valid reason; this explanation also finds mention in the
statement of Med Singh under Section 313 Cr. P.C. Formal arrest
of Med Singh in the instant case was made on 9.1.2002. TIP
proceedings had been held before the court of PW-18 on
19.1.2002. TIP had been refused on the ground that his
photographs had been taken in police station Ashok Vihar on
5.1.2002 and shown to the witnesses; this explanation of the
appellant is adequately substantiated by the testimony of PW-5;
refusal to participate in the TIP was thus for a plausible and
cogent reason. In these circumstances no adverse inference can
be drawn against appellant Med Singh for not having participated
in the judicial TIP.
35. Test identification parade is held by the police for the
purpose of enabling the witnesses to identify the persons who are
concerned in the offence; it is well settled that when the appellant
person is not previously known to the witness concerned then
identification of the appellant by the witness soon after his arrest
is of great importance because it furnishes an assurance that the
investigation is proceeding on the right lines; it not only ensures
that the memory of the eye witness regarding identity of the
appellant is tested but also ensures that the person arrested is
the real culprit.
36. PW-1 Vickey had come into the witness box on
01.8.2003. Offence is of 06.6.2001; PW-1 had seen Med Singh in
the Court for the first time after a lapse of more than two years;
he has stated that Med Singh was not known to him earlier; even
as per his own version on oath in Court he had allegedly seen
Med Singh on 6.6.2001 i.e. more than two years ago in the driver
seat while he was running; these admissions coupled with the
version that in the first two statements of Vicky recorded before
Investigating Officer there is no mention of any person sitting in
the front driver seat of the maruti car as also the refusal of TIP
by Med Singh having being adequately explained and PW-1 then
seeing Med Singh for the first time in court after a gap of more
than two years when Med Singh was not known to him earlier, it
cannot be said with certainty that Med Singh was the same
person who had been seen by PW-1 on the day of the incident; it
is thus not safe to place reliance upon his testimony which is
accordingly discarded.
37. Admittedly there is no other role attributed to
appellant Med Singh. In these circumstances, we think it is a fit
case where appellant Med Singh is entitled to a benefit of doubt
and a consequential acquittal. He is accordingly acquitted of the
charge leveled against him.
38. Qua the role of appellant Brijesh Mawi, the star
witness PW-1 had refused to identify appellant Brijesh Mawi in
the court. PW-1 on oath deposed that appellant Brijesh Mawi was
not amongst the two persons who had come to attack his
maternal uncle Omiyo Dass and he was not present there at the
time of incident.
39. Incident is dated 6.6.2001, appellant Brijesh Mawi
was arrested on 12.8.2003 by the Crime Branch of R.K.Puram in a
connected case i.e. in FIR No. 575/03 for offences punishable
under Sections 306/183/353 IPC and under Section 25 of Arms
Act. On the same day in the presence of SI Satish Kumar, ASI
Ravinder and HC Rajeev Mohan, Brijesh Mawi had got a .38 bore
revolver having four live cartridges recovered from the second
floor of F-4/64, Sector-16, Rohini, Delhi from underneath a
mattress. These witnesses have been examined as PW-1, PW-2,
PW-4 in FIR no.456/2003, Police Station Prashant Vihar in the
proceedings conducted before the Magistrate i.e. before that case
had been ordered to be clubbed with the present case.
40. SI Satish Kumar PW-1 had deposed that Brijesh Mawi
after disclosing his involvement in the present case had led the
police party to first floor of F-4/64, Sector-16, Rohini, Delhi the
residence of his associate Vijay Gupta. They were taken to the
second floor and after taking out the key from the ventilator of
the bath room Brijesh Mawi opened the door of the adjoining
room and from underneath a gadda he took out one revolver
which was lying in a polythene. The revolver was loaded with four
live cartridges and it was the make of R.Webbly & Sons with
figures 25502 inscribed upon it. In his cross-examination, this
witness has reiterated the version as set up in his examination in
chief; he had admitted that public persons had not been joined at
the time of recording the disclosure statement of the appellant;
owner of the kothi, Vijay, was standing at the gate of the kothi at
that time. He denied the suggestion that the revolver had been
planted upon the appellant.
41. ASI Ravinder was examined as PW-2. He has
corroborated the version as set up by SI Satish Kumar. In his
cross-examination, he had stated that the statement of Vijay Lal
was not recorded in his presence; he reiterated that the revolver
had been taken out from underneath the gadda.
42. To the same effect is the version of HC Rajiv who has
been examined as PW-3. He has reiterated that Brijesh Mawi
after taking out the key from the ventilator of the bath room had
with the same key opened the adjoining room from where
underneath the gadda, a revolver containing four live cartridges
was recovered in a polythene. This witness was again re-
examined by Sessions Judge as PW-19. This version on oath has
also been perused which was fully corroborative of his earlier
version; learned defence counsel has also not been able to point
out any discrepancy.
43. Ex.PW-1/C is the recovery memo of the said revolver
which is attested by SI Satish as also by ASI Ravinder at points A
and B and reiterates the ocular version as given by the said
witnesses. Ex.PW-1/B is the sketch of the said revolver.
Unfortunately, learned defence counsel had not gone through the
file as the recovery memo pointed by him Ex.PW-1/B was related
to FIR no.438/01 which is a recovery dated 7.6.2001 and totally
unconnected with this recovery; it is not the case of the
prosecution that any Pradeep Rawat had attested this document;
as such his non-examination is of no relevance; this argument of
learned defence counsel is a misreading of the facts.
44. Version of DW-1 is suspect; as he was admittedly a
college friend of Brijesh Mawi; on 12.8.2003, he had been
interrogated and beaten by the police; he was admittedly in a
separate room. What was Brijesh Mawi doing on the said day i.e.
12.8.2003 was not known and neither deposed to by this witness.
DW-2 alleged to be a tenant of DW-1 had admitted that he does
not have rent receipt for the month of June, 2003 to substantiate
his submission that he was a tenant of DW-1 and a resident of
F-6/64, Sector-16, Rohini i.e. the place of recovery. To a specific
question put to Brijesh Mawi under Section 313 Cr.P.C. that he
had got the aforestated recovery effected from the second floor of
F-4/64, Sector 16, Rohini, Delhi, the ground floor of which was in
occupation of Vijay Gupta, the landlord, there is no denial by the
appellant that he was not a tenant of Vijay Gupta on the second
floor. This defence of the appellant at this stage is clearly sham.
45. In our view, the recovery of the .38 revolver at the
instance of Brijesh Mawi stands proved by the prosecution.
46. Sh.K.C.Varshney, PW-21 Sr.Scientific Officer, FSL,
Rohini had deposed that on 3.12.2001, three sealed parcels were
received at his office at Malviya Nagar; parcels no.1 and 2 were
sealed with the seal of SKS and parcel no.3 was sealed with the
seal of Department of Forensic AIIMS New Delhi. Parcel no.2
contained three .380 inch cartridges, .380 cartridges case, two
bullets and two deformed bullets and the said bullets were
marked EB1 to EB4. Parcel no.3 contained four bullets marked as
EB5 to EB8. Parcel no.2 was the parcel containing the four
bullets which had been retrieved by SI Sudhir Kumar Sharma
from the spot and that is how they bore his seal of SKS. Parcel
no.3 contained the remaining four bullets i.e. the bullets which
had been handed over by Dr.T.Milo PW-9 to the Investigating
Officer PW-24 i.e. which had been retrieved from the body of the
deceased; that is how this parcel bore the seal of Department of
Forensic AIIMS New Delhi.
47. PW-21 in his report Ex.PW-21/A had opined that the
aforestated bullets marked EB1 to EB8 corresponds to .380
inches cartridges and striation of rifling marks were present on
Ex.EB1, EB3 to EB8 and had been discharged through a standard
.380 calibre fire arm. Ex.PW-21/A duly recites that all the three
parcels were sealed as per the specimen seal. This witness had
been cross-examined on the manner of firing from the aforestated
weapon but no cross-examination had been effected as to whether
the parcels which had been received by him in FSL were duly
sealed or not or whether there was any scope of the tampering of
the said exhibits.
48. Dr.P.Siddambary, PW-20 Junior Scientific Officer,
CFSL, Chandigarh had deposed that on 28.8.2003 while posted at
CFSL Chandigarh a sealed parcel having seal of SK was received
in the laboratory containing one .38 revolver bearing no.25502
and four cartridges related to case FIR No.456/2003, Police
Station Prashant Vihar under Section 25/54/59 of the Arms Act.
His report Ex.PW-20/A shows that the exhibits had been received
with the seal intact and tallying with the specimen seal and had
opined that the .38 revolver bearing no.25502 was in a working
condition. This version of PW-20 is corroborated by the version of
the Investigating Officer SI Sajjan Singh of FIR No.456/2003,
Police Station Prashant Vihar who had been examined in the
court as PW-7. SI Sajjan Singh deposed that he had sent the
exhibits to the laboratory through Const.Mukesh Kumar who has
corroborated this testimony when he had come into the witness
box as PW-4. Ex.PW-21/A also recites that the mode of receipt of
the said exhibits is through Const. Mukesh Kumar.
49. PW-20 has further deposed that on 29.9.2003 one
sealed parcel having seal of CFSL Delhi as also seal of Additional
Sessions Judge was received in the CFSL through Const. Sudhir
Kumar which contained four separate parcels; the first envelope
contained four fired bullets marked B-1 to B-4. He had examined
the parcels of both the cases i.e. FIR No.456/2003, P.S. Prashant
Vihar as also of the present case on 06.11.2003 and 28.11.2003.
As per the report Ex.PW-20/B, it had been opined that the crime
filed bullets marked B1, B-3 and B-4 had been fired through the
.38 revolver bearing no.25502 mark A and could not have been
fired through any other firearm as every firearm had its own
individual characteristic mark. The seal of the Additional
Sessions Judge on the parcel is answered in the version of PW-1
who had identified these exhibits in Court on oath on 01.8.2003
when they were again re-sealed with the court seal i.e. of the
Additional Sessions Judge.
50. This witness was also subjected to cross-examination
but no cross-examination had been effected on the point as to
whether the parcels/exhibits when received in the CFSL were
duly sealed or not or whether the seal could have been tampered
with. Ex.PW-20/B further recites that the date of the receipt of
the parcel was 29.9.2003 which is corroborated by the version of
SI Sanjeev Sharma PW-25 who has on oath deposed that on
26.9.2001 exhibits of this case had been sent to Chandigarh for
matching with the exhibits recovered in FIR No.456/2003, Police
Station Prashant Vihar.
51. It is relevant to point out that a report of a
government expert is admissible under Section 293 of the Cr.
P.C.; in this case both the experts from the CFSL i.e. PW-21 K.C.
Varshney and PW-20 Dr. P. Siddambari had come into the witness
box and there was ample opportunity with the defence counsel to
have tested the credibility of these witnesses qua the
tampering/non-tampering of the sealed parcels which had been
received by them in their laboratory, no such cross-examination
had been effected. Even in his version under section 313 Cr. P.C.
when this report i.e. Ex.PW-20/B had been put to the appellant
there was no such submission; the submission now made before
this court that there was a possibility of the tampering of the
exhibits and non-production of the road certificates creates a
doubt is a weak strategy adopted by the defence counsel and has
no basis or foundation. Investigating Officers SI Sudhir Kumar
PW-24 and SI Sanjeev Sharma PW-25 had also not been cross-
examined on this score.
52. The judgments relied upon by the learned defence
counsel are both distinguishable on their own facts; in the first
case the failure of the prosecution to testify on the safe custody of
the exhibits was the ground for giving benefit of doubt to the
appellant which is clearly not so in the instant case; the second
was a case where no opinion of the expert had been obtained and
thus the ratio of that judgment would not apply to these facts.
53. Prosecution, in our view, has been able to establish
that the .38 revolver which had been recovered at the instance of
appellant Brijesh Mawi was in a working condition; it had been
duly sealed and sent to the CFSL for its expert opinion who after
examination of the said firearm together with the four bullets B-1
to B-4 (which had been retrieved from the spot) had opined that
bullets B-1, B-3 and B-4 were fired from the said firearm and
could not have been fired from any other firearm because every
firearm has its own individual characteristic mark. The earlier
report Ex.PW-21/A has also examined these four bullets i.e. B-1 to
B-4 and had opined that the striation of rifling marks were
present on Ex.B-1, B-3 to B-8 and had been fired through a .380
calibre firearm; at that stage the CFSL did not have this .38
revolver 25502 but the striation of rifling marks had been noted
on these bullets B-1, B-3 and B-4. This first opinion dated
28.2.2002 had subsequently been corroborated in the second
report Ex.PW-20/B dated 28.11.2003.
54. These circumstances as elicited above qua Brijesh
Mawi form a complete chain and all the links are closely
interwoven with one another to nail him; it has been established
by the prosecution that the .38 revolver which had been got
recovered by Brijesh Mawi was the weapon of offence in this case
and had been the cause of death of the deceased Omiyo Dass;
thus, conclusively establishing that Brijesh Mawi had used this
weapon to kill Omiyo Dass.
55. The evidence gathered has also established that
Brijesh Mawi had an accomplice; Satish had been identified by
the eye witness but the proceedings against him had stood abated
on his death. The offence under Section 406 of the IPC i.e. of
lurking house trespass is however not made out. Appellant
Brijesh Mawi is held guilty for the offence under section 302/34
IPC as also for the offence under Section 25 of the Arms Act.
56. In view of the aforesaid discussion, the appeal of the
appellant Med Singh is allowed. His bail bond and surety bond
are discharged. Appeal of appellant Brijesh Mawi is dismissed.
His bail bond and surety bond are cancelled. He shall surrender
forthwith to serve the remaining sentence.
(INDERMEET KAUR)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
August 10, 2009
nandan
