Niwas @ Patel vs State
2009 Latest Caselaw 3443 Del

*                   IN THE HIGH COURT OF DELHI

%                            Judgment Reserved on: 7.8.2009
                             Judgment Delivered on:31.8.2009

+                       Crl. APPEAL No.522/2005

     NIWAS @ PATEL                     ...Appellant
              Through : Mr.Rajesh Mahajan, Advocate.

                              versus

     STATE                                   ...Respondent
                    Through : Ms.Richa Kapoor, A.P.P.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR


1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?        Yes

3. Whether judgment should be reported in Digest?      Yes


PRADEEP NANDRAJOG, J.

1. It was exact midnight i.e. 00:00 Hours of the

intervening night of 28th February 2001 and 1st March 2001. It

was 12:00 midnight. Gian Prakash PW-3 along with his friend

Jyoti Prakash (hereinafter referred to as the „Deceased‟) were

proceeding to Mandir Kali Mata, Sainik Vihar. They were on a

motor-cycle. Gian Prakash was driving the motor-cycle. Jyoti

Prakash was on the pillion seat. The colony Sainik Vihar was

barricaded by the residents i.e. as is usually seen in the

colonies in Delhi, for security purposes, gates with barricades,

were installed/erected by the residents. Gate No.2 was one

such gate at Sainik Vihar and during the night was manned by

Anil Tiwari PW-4, employed as a chowkidar by the Delhi Sainik

House Building Cooperative Society i.e. the society which had

developed the colony Sainik Vihar. Gian Prakash entered the

colony through the gate and unfortunately for him and the

deceased, at the same time, a white coloured Fiat car was

rashly reversed at the gate itself. The car nearly hit the motor-

cycle. Gian Prakash and Jyoti Prakash lost balance and fell

down from the motor-cycle. A verbal quarrel ensued between

the occupants of the car, being four in number, and Gian

Prakash and Jyoti Prakash. Gian Prakash left the spot to report

the accident to the police and proceeded to the police picket

Rani Bagh attached to PS Saraswati Vihar as the said police

picket was nearby. He reported the accident at the police

picket, which information was noted in DD No.41, Ex.PW-41/A

at 12:20 in the midnight.

2. SI Nipun Kumar PW-41, Const.Lokender Singh PW-

22, Const.Devender PW-14 and Const.Ajay Singh PW-38 left

the police picket in the company of Gian Prakash and

proceeded to gate No.2 Sainik Vihar. When they reached gate

No.2 they found that Const.Sunil and Const.Balwan PW-35

were already at gate No.2 Sainik Vihar for the reason they had

left the police station Saraswati Vihar for night picket duty and

proceeding to the picket where they had to be on duty, had to

cross gate No.2 Sainik Vihar. Jyoti Prakash was found lying on

the road with blood oozing from his ear.

3. The first act of the police officers was to rush Jyoti

Prakash to a hospital so that medical aid could be given to

him. Ravinder Singh PW-13 was driving in his Maruti van

No.DL 2CJ 3719. He was flagged down. He took Jyoti Prakash

in his van to Jaipur Golden Hospital. Gian Prakash,

Const.Devender and Const.Balwan accompanied in the van.

Const.Sunil and Const.Balwan remained stationed at the spot

to guard the same. SI Nipun Kumar proceeded to the hospital

in a different vehicle. In the meanwhile Anil Tiwari and Bhajan

Singh PW-12 the President of the Delhi Sainik House Building

Society also reached the spot because Anil Tiwari had left the

spot to call Bhajan Singh.

4. At the hospital i.e. Jaipur Golden Hospital the doctor

on duty declared Jyoti Prakash brought dead as per MLC

Ex.PW-33/A. SI Nipun Kumar obtained a copy of the MLC of

Jyoti Prakash and recorded the statement Ex.PW-3/A of Gian

Prakash in which he stated that he was driving his bullet

motor-cycle No.DEW 9238 with his friend Jyoti Prakash on the

pillion seat and they were going to Kali Mata Mandir. At 12:00

in the night he reached gate No.2 Sainik Vihar near Punjab

National Bank when a white coloured Fiat car reversed in a

rash manner nearly banging into his motor-cycle due to which

he lost balance and the motorcycle fell. He rebuked the driver

of the car. At which, two out of the four persons in the car who

were sitting on the front seat came out of the car and a minor

physical quarrel (jostling) ensued between them. He told the

chowkidar at the gate, whose name he later on learnt was Anil

Tiwari, to see that the car remains stationed at the spot till he

summoned the police. He reached police picket Rani Bagh on

his motor-cycle. When he returned to the spot in the company

of the police he saw his friend Jyoti Prakash lying smeared with

blood on the road. Blood was oozing from his ear. The

chowkidar informed that the four boys in the car attempted to

drive away at which his friend prevented them from fleeing

and hence they shot his friend and drove away towards

Mangolpuri. SI Nipun Kumar made an endorsement Ex.PW-

41/B on the statement Ex.PW-3/A and dispatched the same for

FIR to be registered at 3:00 AM, a fact so recorded in the

endorsement Ex.PW-41/B. At the police station FIR Ex.PW-17/B

was registered for an offence punishable under Section 302/34

IPC.

5. Being a case of murder, information was conveyed

to Inspector Sachdev Dahiya PW-47 posted as the SHO of PS

Saraswati Vihar. He left in the company of HC Vinod PW-19.

Both officers reached Jaipur Golden Hospital. The body of the

deceased was seized and sent to Subzi Mandi Mortuary for

autopsy. Sachdev Dahiya, SI Nipun and Gian Prakash

thereafter returned to the spot where the crime was

committed.

6. Blood on the road was lifted on cotton. Blood

stained earth and control earth were lifted as recorded in the

memo Ex.PW-3/B. Statement of Anil Tiwari PW-4 under

Section 161 Cr.P.C. was recorded and the register Ex.PX

maintained at the gate to note the vehicles entering the

colony was seized as per memo Ex.PW-4/A. It may be noted

that in the register Ex.PX an incomplete entry is made

recording: "MPT-75".

7. At Subzi Mandi Mortuary Dr.Ashok Jaiswal PW-6

conducted the post-mortem on the body of the deceased on

1.3.2001 and opined that the cause of death was the brain

injury caused due to the bullet which was fired at the ear of

the deceased. The bullet Ex.P-1 was retrieved by him. He

recorded that the injury caused by the firearm was a rifled

one. Blood sample of the deceased as also the clothes of the

deceased along with the bullet recovered and the post-mortem

report Ex.PW-6/A were handed over by the doctor to the

investigating officer who deposited the clothes, blood sample

and the bullet in the malkhana.

8. The police had a problem since four unknown

suspects had to be brought to justice.

9. In the course of investigation, Sachdev Dahiya the

investigating officer learnt that a lady Poonam Kapoor PW-15

was waylaid near Richi Rich Restaurant Ring Road. Hoping to

get some clues from her, he contacted her, who informed that

in the intervening night of 28th February 2001 and 1st March

2001, at midnight, a boy tried to snatch her gold chain but

could not do so as she offered resistance. The boy was chased

by her brother who was with her but he managed to flee in a

vehicle in which some persons were sitting. It is obvious that

Sachdev Dahiya could hardly get any worthwhile lead.

10. As per the prosecution, breakthrough came when

Deepak @ Deepu (Accused No.2) was arrested in FIR

No.199/2001 PS Rohini and purportedly made a confessional

statement to the investigating officer of said case, disclosing

his involvement in the instant case as also the involvement of

the appellant and two other co-accused namely Rakesh @

Andy (Accused No.3) and Vijay @ Pinak (Accused No.4). Said

information was conveyed to Inspector Sachdev Dahiya who

after obtaining the orders from the Court of the competent

Metropolitan Magistrate took Deepak on police remand and

formally arrested him. On 29.3.2001, he recorded the

statement Ex.PW-26/A of Deepak. Ignoring the confessional,

and hence inadmissible part of Ex.PW-26/A, it may be noted

that Deepak disclosed that the car in which all accused were

travelling when the crime was committed belonged to Chiranji

Lal, PW-16, and bore registration No.MPT 7503. That the car

was borrowed from Chiranji Lal and returned to him on 1 st

March 2001 and that he could get the car recovered. He also

stated that the weapon of offence used to commit the crime

was purchased from one Kamal at Aligarh.

11. Appellant was arrested the next day i.e. on

30.3.2001. On interrogation his confessional-cum-disclosure

statement Ex.PW-19/X was recorded. Ignoring the

confessional, and hence inadmissible part of the statement, it

stands recorded in Ex.PW-19/X that the car No.MPT 7503

belonged to Chiranji Lal and was returned to him on 1st March

2001 and that he could get the car recovered. He also stated

that the weapon of offence used to commit the crime was

purchased from one Kamal at Aligarh.

12. On 30.3.2001, the car Ex.P-10 bearing registration

No.MPT 7503 was seized from the custody of Chiranji Lal

whose place of residence was pointed out by the appellant as

recorded in the pointing out-cum-seizure memo Ex.PW-16/A

which records the seizure of the car.

13. On 30.3.2001, a second disclosure statement

Ex.PW-19/Y of the appellant was recorded by the investigating

officer to the effect that the clothes which he i.e. the appellant

was wearing at the time of the commission of the offence were

hidden by him in his house and that he could get the same

recovered. Thereafter, the appellant led the investigating

officer to House No.B-241, Phase-I Budh Vihar, Delhi and got

recovered a coat Ex.P-6/1 and a pant Ex.P-6/2 as recorded in

the seizure memo Ex.PW-19/A.

14. When the appellant was in the police custody, on

31.3.2001, he suffered a serious head injury. As per the

appellant the investigating officer brutally assaulted him to

extract a forced confession to plant the recovery of the

weapon of offence on him. He refused. He was hit on his

head. As per the police, appellant attempted to commit

suicide by banging his head on the iron bars at the lockup. FIR

No.246/2001 under Section 309 IPC being Ex.PW-36/A was

registered against the appellant.

15. On 1.4.2001 a third disclosure statement Ex.PW-

41/C1 of the appellant was recorded by the investigating

officer as per which nothing but a reiteration of the confession

of the appellant was recorded.

16. On 4.4.2001 a fourth disclosure statement Ex.PW-

41/C of the appellant was recorded by the investigating officer

in which he disclosed that he could get recovered the weapon

of offence which he had thrown at the rooftop of a shop in

Wazirpur Industrial Area. Appellant thereafter took the

investigation officer to a shop at Wazirpur Industrial Area and

pointed out the same as the one on the roof of which he had

thrown the weapon of offence, a country made pistol. A pistol

Ex.P-2 along with an empty/used cartridge Ex.P-3 and a live

cartridge Ex.P-4 were recovered and seized as recorded in the

seizure memo Ex.PW-41/D.

17. An application Ex.PW-11/O for test identification of

co-accused Deepak was moved by the Investigating Officer on

29.3.2001. Vide proceedings Ex.PW-11/N, Deepak refused to

participate in the TIP, alleging that the police had already

shown him to the witness.

18. On 31.3.2001, vide application Ex.PW-11/A, the

Investigating Officer sought to conduct the test identification

of the appellant. Same day, the appellant refused to

participate in the TIP as he alleged that the police had already

shown him to the witness. The same was noted in the TIP

proceedings Ex.PW 11/B.

19. Co-accused Rakesh @Andy and Vijay @Pinak were

arrested in another case. Said information was made known

to the police station Saraswati Vihar i.e. the place where the

FIR pertaining to the instant case was registered.

20. SI Chander Pal Singh PW-45 received DD-11A

regarding the production of co-accused Rakesh @Andy and

Vijay @ Pinak in another case. After obtaining production

warrants for the two accused, they were formally arrested in

the instant case on 18.1.2003.

21. On 18.1.2003 itself, SI Chander Pal Singh PW-45,

moved an application Ex.PW-11/D for conduct of TIP of Rakesh.

In the TIP proceedings Ex.PW-11/E, the witness Gian Prakash,

wrongly identified Rakesh i.e. pointed out another person

named Raju Singh and said that he was Rakesh.

22. On 31.1.2003 vide application Ex.PW-11/G request

was made to conduct the test identification of co-accused

Vijay. Witness Gian Prakash wrongly identified the accused

Vijay in the proceedings, as recorded in Ex.PW-11/K. One

Dharmender was identified as Vijay.

23. The blood stained clothes of the deceased, his

blood sample and the bullet recovered from his body as also

the coat Ex.P-6/1 and the pant Ex.P-6/2 recovered as recorded

in the memo Ex.PW-19/A at the instance of the appellant and

the country made pistol recovered at the instance of the

appellant as per memo Ex.PW-41/D were sent for forensic

examination i.e. to a serologist and a ballistic expert.

24. Shri A.K.Srivastava PW-2, a serologist gave reports

Ex.PW-2/A and Ex.PW-2/B opining that the blood group of the

deceased was „A‟ and that human blood of same group was

detected on the coat Ex.P-6/1.

25. Shri K.C.Varshney, Sr.Scientific Officer (Ballistic),

FSL Malviya Nagar, PW-1, gave a report Ex.PW-1/A with

respect to the bullet Ex.P-1 recovered from the body of the

deceased, the country made pistol Ex.P-2 recovered pursuant

to the disclosure statement of the appellant and at his

instance as also the used cartridge Ex.P-3 and the live

cartridge Ex.P-4 recovered along with the pistol. It may be

noted here that the used cartridge i.e. the cartridge case Ex.P-

3 was of 8 mm/.315" caliber and the same was the caliber of

the live cartridge. The caliber of the pistol Ex.P-2 was reported

to be .303"/.315". To quote from his report he opined as

under:-

"1. The firearm country made pistol .303" / .315" bore marked exhibit „F1‟ is designed to fire a standard .303" / 8 mm / .315" cartridge. It is in working in its present condition. Test-fire conducted successfully.

2. The 8 mm / .315" cartridge marked exhibit „A1‟ is live one and can be fired through .315" bore firearm.

3. The 8 mm/ .315" cartridge case marked exhibit „EC1‟ is fired empty cartridge.

4. The bullet marked exhibit „EB1‟ corresponds to the bullet of .303" cartridge.

5. The 8 mm / .315" cartridge marked exhibit „A1‟ above was test fired through the firearm country made pistol .303" / .315" bore marked exhibit „F1‟ the test fired cartridge case and recovered test fired bullet were marked as „TC2‟ and TB2‟ respectively.

6. One cartridge of .303" from the laboratory stock was test fired through the country made pistol .303" /

.315" bore marked exhibit „F1‟ above, the test fired cartridge case and recovered test fired bullet were marked as „TC2‟ and „TB2‟ respectively.

7. The individual characteristic marks present on evidence cartridge case exhibit „EC1‟ and on test fired cartridge case exhibit „TC1‟ were examined and compared under the Comparison Mircroscope Model Leica DMC. The firing pin marks present on exhibits „EC1‟ and on „TC1‟ were found identical. Hence exhibit „EC1‟ has been fired through the country made pistol .303" / .315" bore marked exhibit „F1‟ above.

8. The individual characteristic of striations present on evidence bullet marked exhibit „EB1‟ and on test fired bullet marked exhibit „TB2‟ were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence exhibit „EB1‟ has been fired through the country made pistol .303" / .315" bore marked exhibit „F1‟ above.

9. The exhibit „F1‟ / „A1‟, „EC1‟, „EB1‟ are firearm / ammunition as defined in the Arms Act 1959."

26. Being relevant, it may be noted here that

deposing as PW-1, Shri K.C.Varshney stated that the cartridge

of .303" which was test fired through the pistol Ex.P-2 and was

used from the laboratory stock was retained in the laboratory.

Further, the photographs pertaining to the striation i.e.

individual characteristics on the bullet Ex.P-1 i.e. the bullet

recovered from the body of the deceased and the test fired

bullet referred to as Ex.TB-2 in the report were not forwarded

with the report and hence are not a part of the judicial record.

27. To a reader of the judgment, with reference to the

narratives herein above which throw light on the investigation

conducted, it is apparent that against the four accused the

prosecution would be seeking to bring on record incriminating

evidence in the form of testimony of Gian Prakash and Anil

Tiwari to prove an altercation involving the four accused on

the one side and Gian Prakash and deceased Jyoti Prakash on

the other as also the fact that the appellant and co-accused

Deepak refused to participate in the Test Identification

Proceedings and lastly the fact that the weapon of offence was

recovered pursuant to the disclosure statement of the

appellant which got linked to the crime through the report of

the ballistic expert as also that the coat got recovered by the

appellant was stained with human blood of the same group as

that of the deceased and that the appellant pointed out the

residence of Chiranji Lal from where car No.MPT 7503 was

recovered.

28. Anil Tiwari PW-4 as also Gian Prakash PW-3 were

obviously the star witnesses of the prosecution. The next

important witness was Chiranji Lal PW-16 who owned the car

bearing No.MPT 7503. Further link evidence of the prosecution

was the register Ex.PX in which an incomplete entry recording

„MPT-75‟ was entered.

29. Chiranji Lal PW-16 denied that the car in question

i.e. bearing No.MPT 7503 was lent by him to the accused. He

stated that the car was in no position to be driven on

28.2.2001.

30. Anil Tiwari PW-4 who was firstly examined on

26.10.2002 when the charge-sheet was filed only against the

appellant and co-accused Deepak (co-accused Rakesh @Andy

and Vijay @Pinak were not even arrested by then and hence

their names were shown as proclaimed offenders in the

charge-sheet) deposed that at 12:00 in the night he was on

duty at Gate No.2 and heard noise of a car probably triggered

due to a remote control device and he proceeded to the house

where the car was parked to ask the owner to set it right. On

the way back he heard an explosion and got frightened. He

ran to the house of the President of the Society who told him

to manage the gate. When he reached back to the gate he

saw that a crowd had gathered. Anil Tiwari was declared

hostile by the learned APP and was confronted with his

statement recorded by the investigation officer wherein he had

stated that when the deceased used his i.e. Anil Tiwari‟s ball

pen to enter the number of the car i.e. MPT 7503 and had

partially written the same in the register Ex.PX one of the four

boys in the car who had an altercation with the deceased and

PW-3, shot the deceased in the ear and all four sped away.

31. Needless to state, the testimony of Anil Tiwari

hardly inculpated the appellant and his co-accused as Anil

Tiwari did not identify them at all.

32. At the second stage after Rakesh @Andy and Vijay

@Pinak were arrested and supplementary charge-sheet was

filed, Anil Tiwari was re-examined on 15.9.2003. He changed

his version a little by deposing that he saw four persons

alighting from the car in the night when the deceased was

shot, but added that he could not identify them because it was

dark and hence he could not see the said four persons very

properly. Anil Tiwari was again declared hostile and was

confronted with his statement recorded by the investigating

officer. He denied having said what was recorded therein.

33. Gian Prakash PW-3 was examined twice and on

both occasions stated the facts disclosed and recorded in his

statement Ex.PW-3/A and identified the appellant and the

accused as the four boys with whom the altercation had taken

place.

34. Needless to state, Gian Prakash had not claimed to

have seen the actual shooting incident which, as per him had

taken place when he had left the gate to go to the police

picket and summon police help and by the time he returned

with the police, his friend had been shot dead and the

assailant had escaped.

35. We eschew reference to various witnesses of the

prosecution who proved recoveries at the instance of the

appellant and the disclosure statements (four in number)

made by the appellant. But would be referring to the

credibility thereof while discussing the submissions made by

learned counsel for the appellant.

36. The learned Trial Judge has held that the fact of

Gian Prakash PW-3 having wrongly identified Rakesh @Andy

and Vijay @Pinak during test identification proceedings

rendered it unsafe to convict them on their being identified by

Gian Prakash as two of the four boys who had an altercation in

the night. There being no other evidence against Rakesh and

Vijay, both have been acquitted.

37. Pertaining to Deepak, against whom the

incriminating circumstances have been discussed, before

discussing the incriminating evidence against the appellant,

the learned Trial Judge has held that notwithstanding the

conduct of Deepak in refusing to participate in the test

identification proceedings was indicative of a guilty mind

entailing an adverse inference and also his being identified by

PW-3 as one out of the four boys present, it could not be said

that Deepak had shared any common intention with the

appellant who had fired the shot. Since the death of the

deceased could be attributed to only one shot which was

treated as having been fired by the appellant, the learned Trial

Judge opined, in para 41 as under:-

"41. But it must be borne in mind that the charge against the accused Deepak is not for causing affray or using criminal force or committing assault. The charge against him is of having shared a common intention to murder. There is no eye-witness account of his having instigated or abetted the murder of Jyoti Prakash, leave alone of having shared a common intention to cause his death. There is no circumstantial evidence either against him to prove such a charge against him. Thus, even if the testimony of PW-3 is accepted that the accused Deepak had been the driver of the Fiat Car who had rashly reversed the car leading to the quarrel, there is nothing on the basis of which it could be concluded that he also had a hand in causing the death of Jyoti Prakash."

38. Convicting the appellant, the learned Trial Judge

has held that the car in question in which the four accused

boys were travelling was got recovered pursuant to the

disclosure statement of the appellant. The learned Trial Judge

has further held that the country made pistol recovered at the

instance of the appellant pursuant to his disclosure statement

was proved to be the weapon of offence as per the report of

the ballistic expert and it was proved by the report that the

bullet recovered from the head of the deceased was fired from

the firearm. That blood of the same group as that of the

deceased was found on the coat got recovered by the

appellant was another piece of incriminating evidence as the

appellant failed to explain presence thereof on the coat.

Lastly, the fact that the appellant had refused to participate in

the test identification proceedings and was identified by PW-3

as one of the four boys with whom he and the deceased had

an altercation was held to be further incriminating evidence.

Thus, while acquitting the three co-accused, only the appellant

has been convicted.

39. At the outset we may record that as per PW-3, he

had not seen as to which out of the four boys with whom he

and the deceased had an altercation, fired at the deceased.

He has not even deposed that he saw a firearm in the hand of

the person of any one of the said four boys. No eye-witness

has deposed to have seen as to who fired the shot. Thus,

anyone out of the four could have fired the shot. In this view

of the matter, the learned Trial Judge ought to have first

returned a finding as to who fired the shot and not in the

manner the learned Trial Judge has done.

40. Before discussing the evidence against the

appellant, by treating the appellant as the one who has fired

the shot, incriminating evidence against Deepak has been

considered. The approach is patently faulty.

41. Be that as it may, we have to discuss the evidence

held incriminating against the appellant, notwithstanding the

faulty approach adopted by the learned Trial Judge.

42. Recoveries of firearms pursuant to the disclosure

statement of a person in police custody if linked with the crime

is evidence of highly incriminating nature for the reason the

disclosure statement of the said person and the recovery of

the firearm at his instance requires an inference to be drawn

against the maker of the statement of being responsible for

secreting the said weapon and unless he explains as to how he

got knowledge of the place where the weapon of offence was

recovered, the Court would be fully justified in attributing

authorship of the use of the weapon to him. We clarify that

this process of logical reasoning is premised on the fact that

by independent evidence the weapon in question is linked to

the offence. The confessional statement that the same was

the weapon of offence and was used by the maker of the

statement is inadmissible in evidence being hit by Section 24

to Section 26 of the Evidence Act.

43. Before we discuss the evidentiary worth of the

report of the ballistic expert, we would be failing if we do not

note that as held in the decision reported as AIR 1956 SC 56

Nathu vs. State of U.P. that prolonged custody immediately

preceding the making of the confession is sufficient, unless it

is properly explained, to stamp it as involuntary. In said case,

the confessional statement was recorded on the fourteenth

day of the custody. Further, in the decision reported as 2008

(1) CRIMES 191 (SC) Sattatiya @Satish Rajannakartalla vs.

State of Maharashtra piecemeal disclosure statements were

held to be highly suspect unless explained satisfactorily. In

said case the disclosure statements were made piecemeal on

three dates i.e. on 3.10.1994, 5.10.1994 and 6.10.1994.

Another decision may be noted being 2002 (2) SCC 426 State

of Haryana vs Ram Singh wherein same set of witnesses to the

arrest, disclosures and recoveries was held to be indicative of

the falsity thereof. The reason is obvious it would be a strange

and hence a suspicious circumstance that same set of

witnesses were conveniently available to the Investigating

Officer on different dates when the investigation was on.

44. In the instant case we note that the witnesses to

the four disclosure statements made by the appellant on three

different days i.e. on 30.3.2001 (2 disclosure statements),

1.4.2001 and 4.4.2001 are the same i.e. SI Nipun Kumar and SI

Vinod Kumar with the difference that in the last disclosure

statement there is only one witness namely SI Nipun Kumar.

The witnesses to the recovery of the coat and the pant as

recorded in the seizure memo Ex.PW-19/A are once again, SI

Nipun Kumar and SI Vinod. The witness to the recovery of the

country made pistol as recorded in the memo Ex.PW-41/D is SI

Nipun Kumar. Further, the four disclosure statements being

spread over six days are required to be viewed with suspicion

qua the voluntariness thereof. The fact that the appellant

suffered a serious head injury while in police custody on

31.3.2001 in respect whereof he alleges that the investigating

officer had brutally assaulted him and the investigating officer

alleges that the appellant attempted suicide is another

important fact to be considered for the reason the possibility of

the appellant being forced to confess cannot be ruled out. At

this stage we may note that the appellant has been acquitted

of the offence punishable under Section 309 IPC i.e. the

Sessions Trial pursuant to FIR No.246/2001 has resulted in the

prosecution not being able to establish that the appellant

attempted to commit suicide.

45. Under the circumstances we hold that the

disclosure statements Ex.PW-19/X, Ex.PW-19/Y, Ex.PW-41/C1

and Ex.PW-41/C do not inspire confidence and being not

explained as to why they were recorded piecemeal, the same

have to be viewed with suspicion. Since the clouds of

suspicion have not been removed, in that, nothing has been

shown to us by the prosecution wherefrom we can

independently gather that the same inspire confidence, we

hold that the evidence relatable thereto would be tainted

evidence. The prosecution would not be entitled to the fruits

of such a poisoned tree.

46. Pertaining to the recovery of the car bearing

No.MPT 7503 we may note that Gian Prakash PW-3 has

identified the same in which the four boys with whom he and

the deceased had an altercation were travelling in. But, the

whereabouts of the said car were disclosed to the investigating

officer by co-accused Deepak on 29.3.2001 as his disclosure

statement Ex.PW-26/A records that the said car belonged to

Chiranji Lal PW-16 and was borrowed from him and after the

crime was committed was returned to him on 1.3.2001. He

also disclosed that he could get the car recovered. A fact

already disclosed to the investigating officer cannot be re-

disclosed and rediscovered and made admissible under

Section 27 of the Evidence Act. Thus, the learned Trial Judge

has clearly erred in using the first disclosure statement of the

appellant and the recovery of the car pursuant thereto as

incriminating evidence against the appellant.

47. The coat Ex.P-6/1 found to be stained with human

blood of the same group as that of the deceased is a recovery

made on 30.3.2001 i.e. after 30 days of the crime. Under the

circumstances, the detection of human blood of the same

group as that of the deceased on the same is suspicious. In

this connection we may note that while deposing as PW-47,

Inspector Sachdev Dahiya did not utter a word of having

recorded the disclosure statement Ex.PW-19/Y nor did he utter

a word that the appellant told him that the coat and the pant

which he was wearing at the time of the commission of the

offence could be got recovered by him. SI Nipun Kumar PW-

41, the stated witness to the disclosure statement, has also

not deposed a word about the disclosure statement or that the

appellant told the investigating officer that he could get

recovered the coat and the pant worn by him at the time when

the crime was committed. We note that the said disclosure

statement has been proved by SI Vinod Kumar who has not

signed the same as a witness. We note that only his name has

been written thereon. We may clarify here that the

investigating officer has deposed to the recovery of the coat

and the pant but not to the disclosure thereof. That apart,

where other evidence fails Courts have never sustained

convictions on the basis of blood stained clothes recovered

pursuant to the disclosure statements as sufficient evidence

wherefrom the guilt of the accused can be inferred. See the

decisions reported as: (i) Narsinbhai Haribhai Prajapati vs

Chhatrasinh & Ors. AIR 1977 SC 1753, (ii) Prabhu vs. State of

U.P. AIR 1963 SC 1113 and (iii) Vidya Sagar vs. State of U.P.

1977 SCC (Cri.) 286.

48. Pertaining to the fact that the appellant refused to

join in the test identification proceedings, the reason given by

the appellant, as recorded in the test identification

proceedings is of being shown to the witnesses. We note that

after he was arrested, the appellant was taken out from the

police lock up for recovering the car from Chiranji Lal as also

for effecting recoveries of the clothes. This was on 30.3.2001.

The request for conducting test identification proceedings was

made on 31.3.2001. Ignoring the reason given by the

appellant, since the appellant was taken outside from the

police lock up and there is no evidence that his face was kept

muffled, there is every possibility of the appellant being shown

to the witness and thus, in the facts of the instant case, refusal

by the appellant to participate in the test identification

proceedings cannot be used as indicative of his attempt to

conceal himself.

49. The last evidence, which if proved, would be fairly

incriminating is the report of the ballistic expert i.e. Ex.PW-1/A.

The contents of the report and the testimony of PW-1, in brief,

have been noted by us in paras 25 and 26 above show that the

pistol got recovered pursuant to the disclosure statement of

the appellant was of bore .303" / .315" i.e. was capable of

firing a bullet of bore .303" and .315". It is apparent that the

figure .303 is less than the figure .315. It is apparent that the

bullet of bore .303 would be narrower than a bullet of bore

.315. It is apparent that a barrel of bore .315 would be

oversized for a bullet of bore .303.

50. What is the effect thereof?

51. In the book „Firearms in Criminal Investigation and

Trials' by B.R.Sharma, at page 113 it has been opined that

when a firearm is discharged, the cartridge case comes in

contact with the firing pin, the breech face, the extractor, the

ejector and the chamber. The projectiles come in contact with

lead and barrel. All these parts of a firearm are made of steel.

During their manufacture they undergo processes like cutting,

hammering, reaming, grinding, filling and polishing. Various

tools are used in their manufacture. The surface profiles of the

tools used continue to change due to wear and tear as the

tools act on steel. The finished surface profiles of firearms

after undergoing such operations are, therefore, never alike

even when the two surfaces are made with the same set of

tools, one after the other. Consequently, all firearms, even the

two barrels of the same firearm, show complete individualities.

When a cartridge is fired and the bullet comes in contact with

the relevant parts of the firearm, a negative profile of the

surface gets imprinted on the projectile. Thus, a firearm can

be identified in respect of the fired ammunition even when the

firearm is recovered after a long time. Thus, the bore size of a

firearm assumes importance. If a bullet does not house

properly in the barrel of a firearm, the negative profile of the

surface of the barrel is not clearly imprinted on the projectile.

52. A loose fitted bullet would obviously result in having

imperfectly marked imprints.

53. It was urged by learned counsel for the State that

the testimony of PW-1 and his report has not been assailed

during cross-examination and since the report clearly and

unequivocally opines that the bullet recovered from the body

of the deceased was fired from the country made pistol

recovered at the instance of the appellant, the issue has to be

treated as closed against the appellant.

54. In a serious charge, as that of murder, where the

life and liberty of an accused is at stake, technical and

doctrinal approach to problems has to be eschewed and the

matter has to be approached with prudence keeping in view

the fact that a fact is treated to be proved, as defined in the

Evidence Act, when after considering the matters before it, the

Court either believes it to exist, or considers its existence so

probable that a prudent man ought, under the circumstances

of the particular case, to act upon the supposition that it

exists. Expert evidence is admissible under Section 45 of the

Evidence Act and is treated as relevant evidence. But, the

same is nothing more than evidence and this means that a

Court has to evaluate the same as evidence and not treat it as

conclusive proof of the subject matter to which the opinion

relates. For treating it as binding, the Court would be

delegating its judicial function. In the decision reported as

1999 (7) SCC 280 State of H.P. vs. Jai Lal & Ors., in para 18 it

was observed as under:-

"18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."

55. A somewhat similar paradox was faced by the

Supreme Court in the decision reported as AIR 1978 SC 1511

Modan Singh vs. State of Rajasthan. There was a hiatus in the

bore of the firearm and the bullet which was referred for

opinion. The ballistic report which initially wayward, finally

concluded that the suspected bullet was fired from the firearm.

The expert was not cross-examined by the defence on his

opinion as to how could he conclusively so establish. The

Supreme Court noted that no question was put to the ballistic

expert as to how could be give a conclusive opinion because of

the fact that the barrel of the pistol was loose and could house

bullets of even a lesser bore. Notwithstanding that the expert

testimony was not even challenged during cross-examination,

the Supreme Court held that it cannot with certainty be said

that the firearm in question was used to commit the crime. In

the decision reported as AIR 1957 AP 758 In Re.Kodurthimma

Reddi & Ors. (Prisoners), while discussing the evidentiary

worth of a ballistic report and opinion and testimony of a

ballistic expert it was highlighted that the test cartridge and

the data generated therefrom on basis whereof the opinion

was penned should be sent to the Court.

56. The reason is obvious. It is the primary duty of the

Court to see the photographs of the striations marks

generated on the suspect and the sample/test bullet and then

form an opinion.

57. As noted by us, in the instant case neither the

photographs generated showing the striations marks nor the

test bullet was sent to the investigating officer and hence were

not produced in Court.

58. In this connection it assumes of some importance

that as per the doctor who conducted post-mortem on the

body of the deceased, the bullet injury on the deceased was a

rifled injury meaning thereby the weapon of offence had a

sufficiently long barrel with spiral groove, for only then could

the bullet spin and as a result of the spinning bullet hitting the

body, rifled injury resulting there from. Country made pistols

or for that matter even pistols generally have short and

smooth barrel and cannot result in a rifled injury. The sketch

Ex.PW-41/D-1, is unfortunately not drawn to scale, but shows a

barrel akin to a small snout i.e. a short barrel.

59. Thus, the appellant would be entitled to the benefit

of a doubt even with respect to the report of the ballistic

expert.

60. The destination of our decision is a happy

destination for the appellant and his industrious lawyer. We

wish to put it on the judicial record that Shri Rajesh Mahajan,

learned Amicus Curiae rendered valuable assistance in the

appreciation of evidence and researched well on firearms. The

zeal and passion required for the underprivileged in legal aid

matters was amply demonstrated by the young lawyer.

61. Thus, the only evidence we have on record against

the appellant is the testimony of PW-3 as per whom the

appellant was one of the four boys with whom an altercation

took place. But who fired the shot is not known. The three co-

accused have been acquitted and the State has not challenged

the said finding. It may be noted in Court, the said three co-

accused were identified as present at the spot with the

appellant. The reason for acquitting Deepak is that from the

evidence it could not be said that the four boys shared a

common intention and hence only said boy who actually fired

the shot must suffer the consequences of his act. Since there

is no evidence that the appellant fired the fatal shot he is

entitled to parity with Deepak who has been acquitted.

62. The appeal is allowed. Impugned judgment and

order dated 31.5.2005 convicting the appellant for the offence

of murder and possession and using a firearm is set aside. The

appellant is acquitted of the charge framed against him.

63. Copy of this judgment be sent to the

Superintendent, Central Jail, Tihar for compliance as the

appellant would be required to be set free, if not in custody in

some other case.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE AUGUST 31, 2009 Dharmender