Brijpal Singh vs State
2009 Latest Caselaw 4976 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 25th, November 2009
                    Judgment Delivered on: 4th , December 2009

+                              CRL.REV.P.646/2003


       BRIJPAL SINGH                                    ......Petitioner
                  Through:         Ms.Urmil Sharma, Mr.U.K.Sharma &
                                   Mr.Sanjay Mishra, Advocates.

                             Versus

       STATE                                             ...Respondent
                        Through:   Mr.Manoj Ohri, APP.

CORAM:
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. FIR No.198/92 registered under sections 286/304A of the IPC

at police station I.G.I.Airport was on the complaint of Darshan Lal

PW-7. As per his version, on 22.4.1992 he along with deceased Pali

@ Ravinder was sitting near their canteen; deceased Pali was a taxi

driver; suddenly a fire shot was heard and he saw that Pali had been

hit by a bullet on his chest. He was removed to the hospital where

he remained alive for about 4-5 hours; he succumbed to his death.

2. Statement Ex.PW-7/A of Darshan Lal was recorded which had

set the investigation of this case into motion. H.Ct. Subhash Chand

PW-2 along with SI Umesh Singh had reached the spot on receipt of

information of this incident which had been recorded in DD No.40.

He took the rukka Ex.PW-2/A for the registration of the formal FIR

Ex.PW-2/B.

3. Investigation had revealed that the fire shot had emanated

from a SAF Gun which had been issued to Cont.Anil Kumar PW-3.

PW-3 had deposed that he had handed over this SAF Gun to the

accused along with the magazine after taking permission from

H.Ct.Raj Kapoor PW-1 as he wanted to go to the toilet; ten minutes

later when he came back he saw that the local police had already

gathered there and the magazine of his gun contained only 19

cartridges, the 20th cartridge had been used.

4. H.Ct.Raj Kapoor had been examined as PW-1; on 21-22.4.1992

he was the duty constable outside the arrival hall of the I.G.I.Airport.

As per his version at about 2.50 AM PW-3 has sought his permission

to attend the call of nature; on the instruction of PW-1, PW-3 had

handed over his SAF Gun to the accused who had been instructed to

sit inside the booth along with weapon. PW-1 has further deposed

that he was at the distance of 20-25 yards from the booth when he

heard the sound of a gunshot; bullet injuries had been sustained by

a taxi driver; police had been informed.

5. Dead body of the victim Ravinder Singh had been identified by

his landlord Jaswant Singh PW-4. MLC of the victim had been

prepared by Dr.Sanjiv whose signature had been identified by

Bhuvan Ram PW-9 on Ex.PW-9/A. Ex.PW-9/A had noted one bullet

entry wound one inch above and one inch medial to the right nipple.

Cause of death had been opined by Dr.S.D.Diman PW-12 who had

identified the signature of Dr.P.K.Kundal who had conducted the

post mortem of the deceased vide his report Ex.PW-11/A, cause of

as being haemorrhagic shock following firearm injury. Ex.PW-11/A

noted that the bullet which had been recovered from the thoracic

vertebrae of the victim was duly sealed and handed over the

Investigating Officer.

6. Mr.A.Day, Sr.Scientific Officer had examined the sten gun

Ex.P-1 along with 9 m.m. cartridge case and 19 9 m.m. cartridges

which had been sent to him for analysis; vide his report Ex.PW-8/A

dated 31.7.1992 he noted that the sten gun was in a working order

and the 9 m.m. bullet marked BC/1 of parcel no.4 i.e. the bullet

retrieved from the dead body had been fired from this 9 m.m. sten

carbine. It had further been opined that the bullet hole on the right

front chest portion of the T- Shirt of the victim could have been

caused by the 9 m.m. bullet i.e. mark BC/1 contained in parcel no.4.

7. On the basis of the aforestated evidence collected and proved

by the prosecution the Trial Court vide impugned judgment and

order of sentence dated 9.4.2003 and 10.4.2004 convicted the

petitioner under Section 304 A of the IPC; he was sentenced to

undergo RI for two years and to pay a fine of Rs.2000/- in default of

payment of fine to undergo SI for one month.

8. In appeal before Additional Sessions Judge vide judgment

dated 21.4.2003, while dismissing the appeal and maintaining the

conviction no modification was made in the sentence either.

9. On behalf of the petitioner, it is submitted:

(i). That the judgment of both the Courts below suffers

from inherent illegalities which has resulted in a

miscarriage of justice; both the Courts below had failed to

appreciate that it was a pure and simple accident which

had occurred; this act of the petitioner could not be

qualified as either rash act or negligent in the absence of

which the offence under Section 304 A of the IPC could not

be sustained.

(ii). The Investigating Officer has not come into witness

box and crucial documents i.e. seizure memo, the site plan

had remained unexhibited and not proved.

(iii). Attention has been drawn to the seizure memo dated

22.4.1992 wherein it has been recorded inter alia as

under:-

" ...... One sten gun, on the magazine catch of which Carbine Machine 9 m.m. A registered No.NN 1303 SAA 1972 is engraved."

The weapon sent to the CFSL was not described in

the forwarding letter and does not find mention in the

report of the CFSL Ex.PW-8/A; it does not match the

description given in Ex.PW-8/A i.e. the report of the CFSL

vide which the sten gun had been received by the

scientific expert for the consequent analysis. In this

context attention has been drawn to the version of PW-8,

CFSL Expert; PW-8 in his deposition has deposed that the

sten gun bears an engraved signature; such a description

given by PW-8 does not match the description given in the

seizure memo.

(iv). There were twenty cartridges in the weapon; one

had been fired; 19 live cartridges had been sent to the

CFSL for analysis. This is also evident from the report of

the CFSL and parcel no.2 which had described 19

cartridges having been received in the department. Out of

these 19 cartridges, as per Ex.PW-8/A six cartridges of 9

m.m. had been test fired thereby leaving a balance of 13

cartridges. PW-8 in his deposition has stated that three

cartridges were test fired which is not in conformity with

the document Ex. PW-8/A.

(v). There is no explanation as to why the seizure

which had been effected of this weapon on 22.4.1992 had

been sent to the CFSL after such a inordinate delay;

Ex.PW-8/A reflects that this parcel had been received in

the department only on 22.5.1992 i.e. after a delay of one

month. Counsel for the petitioner has placed reliance

upon 1985(1) Cri 72 Suman Singh Vs. State of UP as also

1992 Crl.L.J. 1150 Khalaksingh & Ors. Vs. State of M.P. to

substantiate his submission that long delay in sending the

recovered cartridges from the Malkhana of the police

station creates a suspicion about this recovery and the

possibility of tampering cannot be excluded.

(vi). Attention has been drawn to the version of PW-3

Ct. Anil Kumar; it is submitted that his cross-examination

had been deferred on 11.1.1995 for want of the

ammunition register but in spite of opportunity this has not

been brought on record; obviously for the reason that they

were discrepant entries which would have been gone

against prosecution i.e. the reason why the prosecution

had not coming forward with the said register. Adverse

inference for not producing this relevant piece of evidence

has to be drawn against the prosecution under Section 114

(g) of the Evidence Act.

(vii). This is admittedly a case of circumstantial

evidence; there is no eye-witness. Even as per the case of

PW-7 he had only heard the sound; he had not seen the

actual firing. Prosecution has to stand on its own legs and

prove its case beyond all reasonable doubt. Reliance has

been placed 2001(1) CCC 221 Sohan Lal & Anr. Vs. State of

Haryana & Anr. to support his submission. This proposition

is not in dispute and has not been countered by the

learned public prosecutor and calls for no further debate.

(viii). It has lastly been submitted that provisions of

Section 80 of the IPC are attracted and the act of the

petitioner is a lawful act falling within the general

exceptions contained in Chapter-IV of the Indian Penal

Code. Nothing is an offence which is done by an accident

or misfortune; petitioner had no criminal intention or

knowledge that by his act, this would be the resultant

consequence; he is adequately protected by this

exception.

10. Arguments have been countered by the learned public

prosecutor.

11. Record has been perused and the submissions and counter

submissions have been noted and appreciated.

12. It is not in dispute that on 22.4.1992 PW-3 was the lawful

holder of this weapon of offence i.e. SAF gun; he had taken

permission of PW-1 to attend the call of nature and in this

intervening period to handover the weapon to the present petitioner

i.e. Brij Pal. This has been reiterated by PW-3 on oath and has not

been assailed in his cross-examination.

13. PW-1 has also corroborated this version of PW-3 and has

deposed that PW-3 had sought his permission to hand over the

weapon to Brij Pal as he wanted to attend the call of nature. PW-1

had instructed the petitioner to sit in the booth with the weapon.

This version of Pw-1 has also not been challenged.

14. Evidence has established that on 22.4.1992 the victim

Ravinder Pal Singh had received one bullet injury on the right side of

his chest from a 9 m.m. SAF sten gun; the bullet mark BC/1

recovered from the thoracic region of his body and handed over by

the Post Mortem Doctor i.e. Dr. P.K.Kundal to the Investigating

Officer finds mention in the post mortem report Ex. PW-11/A. This

bullet along with the sten gun Ex.P-1 had been sent to the CFSL for

analysis. The CFSL vide its report Ex.PW-8/A had received seven

parcels in its department. Parcel no.3 contained two articles and

had been described as follows:-

i. One 9 m.m. Sten carbine ( marked A/1 by me) bearing No.NN1303.

ii. One 9 m.m. Magzine.

15. This description of the 9 m.m. sten gun having no.NN 1303

finds mention in the seizure memo dated 22.4.1992 vide which this

weapon of offence had been seized from the present petitioner; in

this seizure memo also the weapon of offence has been described

as a sten gun and on the magazine catch Carbine Machine 9 m.m.

registered no.NN1303 SAF 1972 had been ascribed. This clearly

establishes that the weapon seized was the same weapon which

had been sent to the CFSL for examination.

16. Vide Ex.PW-8/A, PW-8 Dr. A. Day had opined that this weapon

was in a working order. Dr.Day had also examined the 9 m.m. fired

bullet mark BC/1, retrieved from the dead body of the victim; on this

examination he had concluded that this bullet had been fired from

this weapon i.e. 9 m.m. sten carbine contained in parcel no.3. He

had further opined that the bullet hole on the right front T-shirt of

parcel no.5 i.e. the T-shirt of the deceased victim could have been

caused by this weapon.

17. This ballistic report has conclusively established that the

weapon, custody of which was with the petitioner at the relevant

time had fired the bullet mark BC/1 which was the cause of death of

Ravinder Pal Singh. The bullet hole in the T-shirt of the victim was

also the result of the firing from this weapon. This is a lethal piece

of evidence and coupled with the ocular version of PW-1 and PW-3

has conclusively established that it was the act of the petitioner in

firing the bullet from the sten gun Ex.P-1 which had caused the

death of Ravinder Pal Singh.

18. In this context it would be relevant to state that in his

statement under Section 313 of the Cr.P.C., the petitioner had made

a bald denial and has stated that this sten gun had not been handed

over to him by PW-3. This version in his statement under Section

313 Cr.P.C. is contrary to the defence taken by the accused that his

act of firing is protected under Section 80 of the IPC. These varying

and contradictory stands adopted by the accused clearly show that

he is shifting his corners; he does not know where to stand; whether

in corner A or corner B; neither appears to be of any help to him as

evidence adduced and proved by the prosecution has established

otherwise.

19. A false plea taken by an accused under Section 313 of the Cr.

P.C. has to be read against such an accused. In 1981 Crl.L.J. 325,

Shankralal Vs. State of Maharashtra the question of falsity of the

plea taken by the accused in his statement under Section 313 of the

Cr.P.C. the Apex Court had held that such a false plea is an

additional circumstance lending support to the other impelling

circumstances pointing out towards the guilt of the accused.

20. The question which now arises for decision is whether the act

of the accused falls within the ambit and scope of Section 304A of

the IPC or not; whether he is entitled to the consequent protection

under section 80 of the IPC.

21. Section 304A of the IPC necessarily postulates a rash or

negligent act; mere carelessness is not sufficient for a conviction

under this section. Criminal rashness is hazardous or a dangerous

or a wanton act with the knowledge that it is so, and that it may

cause injury, but without the intention to cause injury, or knowledge

that it will probably be caused. The criminality lies in running the

risk of doing such an act with recklessness or indifference as to the

consequences. Criminal negligence is the gross and culpable

neglect or failure to exercise that reasonable and proper care and

precaution to guard against injury either to the public generally or to

an individual in particular, which, having regard to all the

circumstances out of which the charge has arisen, it was the

imperative duty of the accused person to have adopted.

22. Weapon of offence is a sten gun. The sten submachine gun

operates by "blowback" cycling, a common method of operation

used by many firearms, including many low-powered rifles and

pistols. The receiver, a metal tube which retains the operating

components, contains a metal cylinder called the bolt, a powerful

operating spring, and the sear, a hardened hook which controls the

bolt. When ready for firing, the sear holds the bolt in a retracted

position with the operating spring compressed. When the trigger is

pulled, the sear releases the bolt, and the spring propels it forward

at high speed, where it "feeds" a cartridge from the magazine and

into the firing chamber. If the trigger is released, the sear catches

and holds the bolt in the retracted position, halting the firing

sequence. The sten gun fires at a rate of nine shots per second

(550 rounds per minute), or, a thirty-round magazine load in 3.3

seconds. The mode of retaining the bolt retracted when not firing is

known as "open bolt" operation, which is both easier to engineer,

and also utilized for safety reasons.

23. In this context the cross-examination of PW-8 is also relevant.

He has categorically deposed that the sten gun was found to be in a

normal working order and no defect was found in it during the test

firing; a cartridge cannot be fired without pressing the trigger of the

fire arm; the safety lever has to be released and after pressing the

trigger the system will work.

24. From the history of this weapon as detailed above as also the

answers elicited from PW-8 in his cross-examination it is apparent

that the sten gun has a safety device i.e. a safety lever and it is only

after the safety lever is released and the trigger pressed, that the

system will work and the cartridge will be fired.

25. It is in this background that the act of the petitioner has to be

construed.

26. The petitioner himself was a police personnel i.e. of the rank

of a constable. He was well conversant and in the know-how of

dealing with a weapon of this kind i.e. a loaded SAF sten gun which

was a dangerous weapon and he was fully aware of the hazards

attached in handling such a weapon; he was also aware of the fact

that the weapon was loaded. This weapon could not have been

fired unless the safety lever was released followed by the pressing

of the trigger. There were two overt acts which were required on

the part of the petitioner before this gun could have released the

cartridge. Even presuming that one of the two acts was accidental,

the other could not have followed unless there was a active

participation by the petitioner; it was his active overt act which had

led to the incident.

27. In such a situation even if it is presumed that the intention to

cause the injury is absent, yet the from the fact that there is a

safety device attached to this weapon and unless this safety device

is released, the weapon cannot be set in motion, it is a clear case

where there was a wanton lack of care in handling this dangerous

weapon; the hazards attached to it being well-known to the

petitioner who was of the rank of a Constable and was dealing with

such type of weapons in the normal course of duty. The act of the

petitioner leadings to the death of the victim was clearly without

due care and caution, it was an act sufficient to be encompassed

within the definition of `negligent'. The recklessness and in

difference of the petitioner in handling this dangerous weapon is

apparent and the consequences have flown from this negligent act.

It is thus clear that in such a situation even in the absence of

intention to cause injury, the doer of the act is guilty of a rash and

negligent act. Death of the petitioner was the direct and proximate

result of this act of the petitioner.

28. In AIR 1949 Lahore 85 Mohd. Sadiq vs. The Crown the

accused who had a loaded pistol was demonstrating to the

deceased by bringing the pistol into two different positions; there

were facts showing possibility of the pistol exploding and killing the

deceased. Accused was held guilty for an offence under this

Section.

29. The exception contained in Section 80 of the IPC does not

come to the aid of the petitioner. Besides the fact that the petitioner

has taken conflicting stands and where as in his statement under

Section 313 of the Cr. P.C. he had made a bald denial and has

denied that this weapon of offence had been handed over to him,

yet in the same breath he had taken up his contrary plea that his

act of firing from the weapon was a lawful act. For the sake of

arguments, even while ignoring his first plea which had been taken

up by him in his the statement recorded under Section 313 of the

Cr. P.C., the second defence also does not come to his aid.

30. In J.T. 2009 (9) SC 413 Raj Kumar Vs. State of Maharashtra, it

has been held by the Supreme Court that in order to bring the case

within any one of the general exception under the IPC, under

Section 105 of the Evidence Act, the burden of proving the

existence of such a circumstance is upon the accused and in the

absence of this the Court would be justified in presuming that there

is no such circumstance in his favour.

31. In 1998 III AD (SC) 373 Atmendra Vs. The State of Karnataka

Supreme Court had held that to claim the benefit of Section 80 of

the IPC it has to be shown:

(i) That the act in question was without any criminal intention or knowledge ;

(ii) that the act was being done in a lawful manner by lawful means;

(iii) the act was being done with proper care and caution.

32. No such cross-examination had been done on the witnesses of

the prosecution i.e. either of PW-1, PW-2 or PW-7; such defence has

also not been raised by the accused in his statement recorded

under Section 313 of the Cr.P.C. or at the opportune time of leading

evidence in defence.

33. Submission of the learned defence counsel that the delay in

sending the samples has caused prejudice to him is an argument

without any merit; petitioner has failed to point out as to what is

prejudice suffered by him; Ex.PW-8/A i.e. the report of the CFSL

clearly states that the seven parcels received in the department

were received with the seal intact and tallying with the specimen

seal. No suggestion to the contrary has also been given to PW-8 or

any of the other witness of the prosecution.

34. There is also no discrepancy in the number of the bullet which

had been retrieved vide the seizure memo and the bullets which

had been test fired; there were twenty bullets in the sten gun; one

had been fired which had resulted in the death of the victim; 19 live

cartridges had been seized and had been sent for necessary

analysis to the CFSL; this is evident from the seizure memo, the

report of the CFSL Ex.PW-8/A as also the version of PW-8. Ex.PW-8/A

clearly recites that six 9 m.m. cartridges which were test fired, are

being returned back in the same parcel i.e. the test fired bullets

were also returned back in the cartridge cases in which they had

been received. Oral version of PW-8 that three cartridges were test

fired is an insignificant contradiction; this witness being a scientific

expert has deposed in his official capacity; document Ex.PW-8/A

prepared by him had noted that six cartridges had been test fired.

This argument is also of no help.

35. The non-examination of the Investigating Officer and the non

proof of the site plan has also not affected the merits of the case;

the Investigating Officer could not be examined in spite of the best

efforts.

36. In 83 2000 DLT 476 Ambika Prasad vs. State Supreme Court

had held that non-examination of the Investigating Officer even if it

is without any justifiable ground would not be a ground for

disregarding other evidence including testimony of witnesses

whose presence on the spot has been established beyond all

reasonable doubt.

37. Conviction of the petitioner for the offence for which he had

been convicted calls for no interference.

38. Offence is related to the year 1992. Petitioner was a first time

offender; he was a constable in the Delhi Police; he was a public

servant; his one negligent act has made a world of difference in his

life not only in his career but also in his personal life.

39. While considering the sentence, one of the prime

considerations should be deterrence. But at the same time the

Legislature has also kept in mind that for an offence under this

Section a term of imprisonment is not a must and this section

visualises the possibility of an offence falling under it being

penalised by a fine alone. The severity to the sentence must

depend to a great extent on the degree of callousness which is

present in the conduct of the accused. The curative approach of

sentencing must also be kept in mind.

40. The background of this case calls for a deterrent as also a

reformative approach. While maintaining the balance between the

two approaches this Court is of the view that the sentence imposed

by the two Courts below calls for a modification. The RI of two years

is accordingly modified to RI for six months. Fine is enhanced from

Rs.2000/- to Rs.5000/- in default of payment of fine the petitioner

will undergo SI for one month. Bail bond and surety bond of the

petitioner stand cancelled. He shall surrender forthwith to suffer the

sentence.

41. Petition disposed of in the above terms.

(INDERMEET KAUR) JUDGE December 04, 2009 nandan