Samundar Singh vs State Of Delhi
2009 Latest Caselaw 5268 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Reserved on: 11.08.2009
                                Judgment delivered on: 17.12.2009

                               Crl. Appeal No. 375/1999


1.     RAJBIR SINGH                                         ..... Appellants
(Since deceased. Appeal qua
him stands abated vide order
07.08.2009)

2.     SAMUNDAR SINGH
                                           Vs

STATE OF DELHI                                              ..... Respondent

Advocates who appeared in this case:

For the Appellant               : Mr. R.K. Naseem, Mr Nitin Tittal & Mr Manish
                                  Kumar, Advocates
For the Respondent              : Mr Amit Sharma, Addl. Public Prosecutor

CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.     Whether the Reporters of local papers may
       be allowed to see the judgment ?          Yes
2.     To be referred to Reporters or not ?      Yes
3.     Whether the judgment should be reported
       in the Digest ?                              Yes

RAJIV SHAKDHER, J

1. At the outset, it must be pointed out (as indicated in the memo of parties) that

appellant no. 1 Rajbir Singh, during the pendency of the appeal, has expired and

consequently the instant appeal has been prosecuted only on behalf of appellant no. 2

i.e., Samundar Singh. In this judgment, I shall make reference to the original

appellant no. 1 and appellant no. 2 by their respective names, i.e., Rajbir Singh &

Samundar Singh and collectively as appellants.

2. This appeal is directed against the judgment and sentence dated 31.07.1999.

By the impugned judgment the appellants stood convicted under Section 307/34 of the

Indian Penal Code, 1860 (hereinafter referred to as the „IPC‟). In addition, Samundar

Singh has also been convicted under Section 27 of the Arms Act, 1959(hereinafter

referred to as the „Arms Act‟). Consequently, the appellants were sentenced to

rigorous imprisonment for a period of three (3) years with a fine of Rs 1000/. In

default of payment of fine the appellants will be required to undergo a further rigorous

imprisonment of two (2) months, in respect of conviction for offence committed under

Sections 307/34 of the IPC. In so far as Samundar Singh‟s conviction under Section

27 of the Arms Act is concerned he is sentenced to undergo a rigorous imprisonment

for a minimum period of three (3) years with a fine of Rs 500/-. In default of payment

of fine, Samundar Singh will be required to undergo a further rigorous imprisonment

for a period of one (1) month.

3. In nutshell, the prosecution‟s case against Rajbir Singh and Samundar Singh is:

On 22.07.1992 one Lal Chand Goel, who at the relevant time was employed as the

General Manager with the Delhi Transport Corporation (in short the „DTC‟),

accompanied by his wife Prem Goel and son, Vinod Goel (hereinafter collectively

referred to as „Goels‟) was taking a walk at about 9.45 p.m. in the vicinity of their

house situate at A-5/67, Sector 16, Rohini. Around that time they saw two men

alighting from a four wheeler-tempo. Instinctively, the Goels felt that the two men,

alighting from the tempo, were anti-social elements. They quickly scrambled to the

safe sanctuary of the precincts of their house. The boundary gate was shut. As

expected, the two men approached the Goels. One of them was Rajbir Singh who was,

at the relevant time, employed as a fitter with DTC; the other who accompanied him

was later on identified as Samundar Singh. Rajbir Singh evidently carried a grudge

against Lal Chand Goel as he held him responsible for his misery; which was, being

served with a termination notice by the DTC.

3.1 Continuing with the narrative, while standing at the gate, Rajbir Singh

threatened to kill Lal Chand Goel. At which point in time Prem Goel intervened and

said that "if you want to kill, first kill me". The son, Vinod Goel also protested; at

which point in time Samundar Singh slapped him. While this fracas was on, the Goels

heard Rajbir Singh exhorting Samundar Singh to fire a shot. Rajbir Singh is alleged to

have uttered the following words: "seedhi chala de". It is alleged that at this point in

time Samundar Singh took out his revolver with a white cloth. This created panic

amongst the Goels, who ran towards their room. On the way they lifted an iron

bucket, spade and other articles, lying in the courtyard; which were evidently lying

there to fix wall paper on the walls of the house. The duo, Rajbir Singh and Samundar

Singh, in the meanwhile, entered the house of Goels‟ by jumping over the boundary

wall. Samundar Singh, allegedly fired four shots at the Goels from a distance of about

10-15 feet. The bullets hit various parts of the facia of the house. In the process,

however, Lal Chand Goel, and his son Vinod Goel suffered injuries while attempting

to protect themselves. The commotion which ensued alerted the people in the vicinity.

The duo, Rajbir Singh and Samundar Singh attempted to flee from the spot, however,

both were caught by the public. In the meanwhile, the police control room had been

informed. The Goels were taken to Hindu Rao Hospital (hereinafter referred to as

„Hospital‟), where their medical examination was carried out. The local police station

at Samaypur Badli was informed of the incident. On police personnel reaching the

hospital, the statements of Lal Chand Goel (Ex. PW1/A) and statement of Vinod Goel

(Ex. PW2/DA) were recorded. From the site of the incident a revolver with eight (8)

live cartridges and four (4) empty cartridges were recovered.

4. The prosecution, in order to prove its case, cited 12 witnesses. While the

defence cited two witnesses. In addition, the statement of Rajbir Singh and Samundar

Singh was recorded under Section 313 of the Code of Criminal Procedure, 1973

(hereinafter referred to as the „Cr.P.C.‟).

5. The learned counsel for Samundar Singh submitted that the prosecution had

failed to prove its case beyond a reasonable doubt. He submitted that the prosecution

version of the events, which transpired on 22.07.1992, was improbable and fabricated;

on the other hand the defence had set up a probable case. The reasons supplied by

learned counsel were briefly as follows:

5.1 There was no discernible motive in the appellants committing the offence, they

are accused of. The improbability of the prosecution‟s case that the appellant had

approached Lal Chand Goel for revocation of termination notice is improbable for the

following reason:

(a) firstly, the termination notice was issued by the Depot Manager, Rohini, and

not by Lal Chand Goel, who was holding a much higher post of General Manager;

(b-1) secondly, during the relevant time, that is, July, 1992 Lal Chand Goel was not

the concerned General Manager (North), who would have a say, if at all, with respect

to the revocation of the termination notice, issued to Rajbir Singh. Lal Chand Goel

had already been transferred to the DTC (Head Quarters), IP Estate, in May, 1992 and

in place of Lal Chand Goel, one Mr K.B. Lal had taken over as General Manager

(North);

(b-2) On the other hand, Rajbir Singh had filed a complaint (Ex DW1/1) dated

16.07.1992 against Lal Chand Goel which had been received in the office concerned

on 20.07.1992. Since, Lal Chand Goel wanted Rajbir Singh to withdraw the said

complaint he had approached Rajbir Singh through one Ajay Shukla (DW2) with a

message that Rajbir Singh should meet up with Lal Chand Goel at his house on

22.07.1992. This version of the defence was probable while that set up by the

prosecution, had no ring of truth in it;

(c) thirdly, the prosecution has failed to produce any independent/public witness

even though it is the case of the prosecution that when the incident occurred on

22.07.1992 the members of the public had gathered and were responsible in

apprehending the appellants;

(d) lastly, the testimony of Lal Chand Goel (PW1) and Vinod Goel (PW2)

discloses that at the time when the appellants gained entry into the Goels house by

jumping over the wall and were shot at by Samundar Singh, the Goels, while running

into the house, had picked up, on the way implements such as bucket, spade etc. and

also in the meele splashed sticky slurry, which was in the bucket, both on to the floor

as also on Rajbir Singh. None of these implements, such as the bucket, spade etc. or

the aspect of slurry being found on the floor or on the clothes of Rajbir Singh, appears

to have been mentioned either in the site plan (Ex. PW12/B) or the seizure memo (Ex.

PW10/A & Ex. PW12/C).

5.2 The testimonies of Lal Chand Goel (PW1) and his son Vinod Goel (PW2) are

contradictory to each other. While Lal Chand Goel (PW1) in his testimony has stated

that he along with his wife and son were taking a stroll on 22.07.1992 in the back lane

of their house, the son Vinod Goel (PW2) deposed that they were taking a walk in the

front lane of their house; at the point in time when they saw the appellants alighting

from a four wheeler-tempo. It was submitted that this contradiction is not resolved

even by the site plan (Ex. PW12/B), as this aspect that; as to which lane the Goels

were taking a stroll on or, the place at which the tempo was parked- does not find

mention in the said site plan (Ex. PW12/B).

5.3 There is a contradiction even with regard to the weapon of offence and the

cartridges, both live and empty, found at the site. Lal Chand Goel (PW1), in his

testimony, deposed that when the appellants attempted to flee from the site, the

revolver, which was used by Samundar Singh to fire shots at the Goels, fell from his

hand, in the courtyard. Vinod Goel (PW2), while confirming the fact that when

implements such as the bucket, spade etc. were thrown at the appellants the revolver

fell from the hand of Samundar Singh, went on to say, that Rajbir Singh had left a bag

(theli) behind, which was seized by the police. In contradiction, H.C. Harcharan Singh

(PW10) deposed that on 22.07.1992 he was on duty with PCR Van R-69. On

receiving information, at about 10.30 p.m., he reached the site of the incident, where

he found that the appellants were being beaten by the public. He also stated that one

bag (theli) was recovered from the veranda of the house. On checking the bag (theli),

it was found that it contained one revolver, eight live cartridges and four empty

cartridges. On the basis of his testimony, it was sought to be contended that while

according to Lal Chand Goel (PW1) and Vinod Goel (PW2) revolver had fallen in the

courtyard and the bag (theli), according to Vinod Goel (PW2), was thrown on the

ground by Rajbir Singh, then how is it that H.C. Harcharan Singh (PW10) deposed

that not only did he find the revolver in the bag (theli) but he also found four empty

and eight live cartridges in the bag.

5.3(a) According to the learned counsel the version of the prosecution gets

curiouser if testimony of ASI Bal Prakash (PW12) is examined. ASI Bal Prakash

(PW12) in his testimony adverted that H.C. Harcharan Singh (PW10) met him in the

hospital where he produced one revolver and eight live cartridges. He categorically

stated that four empty cartridges were found in the chamber block of the revolver.

Accordingly, he deposed that he prepared a sketch of the cartridges and the revolver

being Exhibits PW10/B, PW10/C and PW10/D, respectively.

5.4 The version of Lal Chand Goel (PW1), as recorded in his MLC (Ex. PW4/B),

shows that the injuries had been received by him allegedly on account of his having

been beaten up by someone. Similarly, in the MLC (Ex. PW4/A) of Vinod Goel

(PW2) gave the reason for the injury sustained as; having been received while running

for protection. In none of the MLCs, there is a mention of either a fire arm injury or,

the injuries having been received by the appellants consequent to their attempt to

protect themselves. Therefore, the entire prosecution version that the appellants

accosted the Goels and fired shots at them is completely bogus.

5.5 Even though the prosecution had mentioned that appellants had arrived in a

four wheeler tempo at the site, the four wheeler tempo has not been found or produced

by the prosecution.

6. In the alternative, it was argued that even if it is assumed that Rajbir Singh and

Samundar Singh were involved in accosting the Goels and that Samundar Singh had

slapped Vinod Goel (PW2), all that the Samundar Singh could have been convicted of

was for an offence under Section 319 of the IPC, since all that the slap caused was

pain, there was no injury caused and hence, an offence under Section 323 was also not

made out. The learned counsel for the appellant, however, fairly submitted that even

though the presence of Rajbir Singh on 22.07.1992 at the Goels house is not disputed,

what is disputed is the fabrication of events, by the prosecution, as to what transpired

thereafter. The learned counsel submitted that the prosecution version that the

appellants forced themselves into the house of Goels by jumping over the boundary

wall and thereafter fired shots at the Goels by using a highly sophisticated weapon,

which is a .38 bore revolver, is not only improbable but completely fabricated.

7. The learned counsel further submitted that since no fire arm injury was caused,

the maximum punishment, which could have been imposed on the appellants, was 10

years. The incident happened on 22.07.1992; as more than 17 years have passed the

trial court ought to have taken a lenient view of the matter even if the conviction was

sustained. In support of his submission, with regard to leniency in imposition of

sentence, the learned counsel submitted that the instant case was the only offence, of

which appellants were accused of and subsequently convicted by the trial court.

8. As against this Mr Amit Sharma, learned Addl. Public Prosecutor (hereinafter

referred to as „APP‟) submitted that:

(i) There is no denying the fact that Rajbir Singh on 22.07.1992 went on to meet

Lal Chand Goel, what transpired thereafter has come through in the testimony of both

Lal Chand Goel (PW1) and his son Vinod Goel (PW2). There is no reason to

disbelieve the testimonies of Lal Chand Goel (PW1) and Vinod Goel (PW2).

(ii) The theory, set up by the defence, that Rajbir Singh had made a complaint

against Lal Chand Goel on 16.07.1992, which was received in the office of DTC on

20.07.1992, whereupon purportedly Lal Chand Goel through Ajay Kr. Shukla (DW2)

summoned Rajbir Singh to his house, has been denied by Lal Chand Goel (PW1) in

his testimony.

(iii) The testimony of Ajay Kr. Shukla (DW2) is untrustworthy. Ajay Kumar

Shukla (DW2), in his testimony, has stated that he was a foreman of 9 depots, located

at various locations. The distance between the two depots, in his charge, was about 17

kilometers and he was looking after the mechanical aspects of 9 bus depots and that, at

any given point in time, he could be present at any of the depots wherever a need arose

for his presence, subject of course to the direction of the Regional Manager

(Technical). He further submitted that Ajay Kumar Shukla‟s (DW2) claim that he

received a telephone call directly from Lal Chand Goel (PW1) is tenuous, to say the

least, since Lal Chand Goel could not have predicted as to where DW2 would be at the

relevant time. In his testimony, DW2 further accepted that he did not have a telephone

instrument connected to his work station nor did he remember the number on which

the call had been received from Lal Chand Goel (PW1). He stated that he received the

call at extension no. 8, which he admitted could not be connected directly to him. The

call, he stated, was connected to him through an exchange. He could not give name of

the person who was at the exchange at that point in time. He admitted that extension

no. 8 was available at the work station of one Mr Sehgal. He could not recollect

whether Mr Sehgal was present or not. In these circumstances, the learned APP

submitted that the evidence of Ajay Kr. Shukla (DW2) did not inspire confidence; and

should not be given credence.

9. I have heard the learned counsel for both the appellants as well as the learned

APP for the prosecution. I am of the opinion that the prosecution has been able to

prove its case beyond a reasonable doubt. My reasons for coming to the said

conclusion are as follows:

10. For this purpose let me deal with the testimonies of the key witnesses of the

prosecution.

10.1 First, the testimonies of Lal Chand Goel (PW1) and Vinod Goel (PW2). A

perusal of their testimonies would show that, in respect of the core aspects of the case,

their testimonies are consistent.

10.2 Lal Chand Goel (PW1) testified that on 22.07.1992 at about 9.45 p.m., while

he was taking a stroll along with his wife Prem Goel and his son Vinod Goel (PW2),

in the back lane of his house, he saw two men alighting from a four-wheeler tempo.

Suspecting trouble, the Goels quickly scrambled to the safety of the four walls of their

house. As suspected, the two men, who had alighted from the four wheeler tempo,

approached them. Lal Chand Goel (PW1), who was standing at the gate of the house

alongwith his wife and son, recognized one of them, that is, Rajbir Singh. He further

testified that Rajbir Singh at that point in time uttered a threat to kill him by saying:

"aaj main tumko maar dunga". The background to the threat evidently was that Rajbir

Singh, who was employed as a fitter with the DTC, had been served notice of

termination of his service. He also deposed that about a month and half ago, prior to

the incident, both Rajbir Singh and his accomplice, who was later identified as

Samundar Singh, had come to his house and threatened him and said "ya to depot

manager se keh do ki notice wapas le le, warna theek nahin hoga" (either ask the depot

manager to withdraw the notice or otherwise untoward consequences would follow).

He stated that he had refused to oblige Rajbir Singh. He further testified that on

hearing the utterances of Rajbir Singh, his wife Prem Goel intervened and said "marna

hai to pahle mujhe maar", at which point in time Vinod Goel (PW2) also intervened

and protested. At this point in time Samundar Singh slapped Vinod Goel (PW2),

while both Samundar Singh and Rajbir Singh were still standing outside the gate.

Rajbir Singh at this point in time exhorted Samundar Singh to fire a shot by uttering

"seedhi chala de" (fire straight). Resultantly, Samudar Singh took out his revolver,

which was covered with a white cloth. The Goels panicked and rushed into the house.

On their way, the Goels picked up an iron bucket, spade and other implements, which

were lying in the veranda, to defend themselves. In the meanwhile, Rajbir Singh and

Samundar Singh jumped over the wall and Samundar Singh fired gun shots at the

Goels. Lal Chand Goel (PW1) stated that he threw the slurry, which was in the

bucket, on Rajbir Singh, some of which also fell on the floor. The Goels also raised

an alarm. Consequently, people in the vicinity converged on to their house. In the

melee, Samundar Singh dropped the revolver, which was in his hand, in the courtyard

of the house. The accused tried to flee, but were caught by the public. The members

of the public also thrashed both Rajbir Singh and Samundar Singh. PW1 further

deposed that during the incident he had suffered an injury on the right side of his

forehead which required 4-5 stitches. Similarly, Vinod Goel (PW2) had also received

some minor injuries. Since the police control room had been intimated by one of the

members of the public, the police arrived at his house and took him to the hospital,

where PW1 and his son received medical attention. In his testimony he also proved

his statement (Ex. PW1/A) made to the police and his signatures at point „A‟ on the

said statement.

10.2 In his cross-examination Lal Chand Goel (PW1) accepted the fact that at the

point in time when the incident occurred, i.e., 22.07.1992, he was no longer General

Manager (North) as he had been transferred to the DTC (HQ), I.P. Estate in May,

1992; one K.B. Lal had taken over as General Manager (North). Lal Chand Goel

(PW1), however, denied the suggestion that a CBI inquiry was conducted against him

regarding re-employment of 84 conductors, who were dismissed from service during

the period March, 1991 to July, 1991. He also denied the knowledge of the complaint

dated 16.07.1992, made by Rajbir Singh, which was evidently received in the office of

General Manager (North) on 20.07.1992. He specifically denied the suggestion that

K.B. Lal, the then General Manager (North), had informed him about the receipt of

such a complaint made by Rajbir Singh or that he had advised him that he should

persuade Rajbir Singh to withdraw the complaint. He further denied the suggestion

that he had asked Ajay Kr. Shukla to ask Rajbir Singh to call on him.

10.3 Similarly, Vinod Goel (PW2), in his testimony, reiterated the events of

22.07.1992. There is no doubt that Vinod Goel (PW2) adverted to the effect that:

when Rajbir Singh and Samundar Singh entered the house, by jumping over the

boundary wall, and Samundar Singh started firing shots at them, in self-defence Lal

Chand Goel (PW1) threw bucket at the assailants; and in the hue and cry which ensued

thereafter, Samundar Singh dropped his revolver while, Rajbir Singh left behind a

cloth bag. It has also come in the cross-examination of Vinod Goel (PW2) that the

Goels saw two persons alighting from a four-wheeler tempo on 22.07.1992 at about

9.45 p.m., while they were taking a stroll in the lane in front of their house.

10.4 Lets now also examine the testimony of H.C. Harcharan Singh (PW10) and

A.S.I. Bal Prakash (PW12). H.C. Harcharan Singh (PW10), who was, on the night of

incident on 22.07.2009, on duty with the PCR van, testified that he received

information about the incident at 10.30 p.m., whereupon he reached the site of

incident. He deposed that he found at the site of the incident that the members of the

public were beating up both Rajbir Singh and Samundar Singh. He also deposed that

he recovered a bag (theli) from the veranda of the house. On checking the contents of

the bag (theli) he found one revolver, eight live cartridges and four empty cartridges.

He further deposed that he took the articles into possession and thereafter proceeded to

the hospital alongwith Lal Chand Goel (PW1), his son Vinod Goel (PW2), Rajbir

Singh and Samundar Singh. He also testified that on reaching the hospital the

revolver, live cartridges and empty cartridges were handed over by him to ASI Bal

Prakash (PW12), who took them into possession vide seizure memo (Ex. PW10/A).

He proved his signatures at point „A‟ of the said memo. He identified the revolver

(Ex. P1), as well as eight live cartridges (Ex. P3/1-8) and four empty cartridges (Ex.

P2/1-4).

10.5 On the other hand, ASI Bal Prakash (PW12) while accepting, in his testimony

in court, that H.C. Harcharan Singh (PW10) had met him in the hospital and handed

over a revolver to him; stated that four empty cartridges were in the chamber block of

the revolver. He, however, alluded to the fact that eight live cartridges were also

handed over to him by H.C. Harcharan Singh (PW10). Importantly, ASI Bal Prakash

(PW12) also referred to the fact that he had inspected the site of the incident and

prepared a site plan (Ex.PW12/B). He further stated that photographs were also taken

which are marked as 1 to 5. He referred to the fact that he lifted four bullet leads from

the Goels‟ house. These were taken possession of and sealed in a packet with a seal

„BPS‟ affixed on it vide memo (Ex. PW12/C). He further testified that on visiting the

site of the incident he did not find any eye witness; hence there was no question of

recording any statement. He testified to the effect that he had recorded the statement

of both Lal Chand Goel (Ex. PW1/A) which bears his signatures on which he made an

endorsement (Ex. PW12/A). He testified that he had sent the rukka through constable

Daya Chand on the basis of which a formal FIR (Ex.PW5/A) was registered. In his

cross-examination ASI Bal Prakash (PW12) accepted the fact that Rajbir Singh had

told him that he had filed a complaint against Lal Chand Goel (PW1) and that they had

been called through Ajay Kr. Shukla (DW2) for the purposes of compromise to his

house by Lal Chand Goel (PW1). He also stated that Rajbir Singh had told him that

Lal Chand Goel (PW1) had called them to pay money for withdrawal of the notice.

He accepted the fact that he had not verified the facts about the notice or collected

earth control, blood sample or the blood stained cloth of the Goels nor had he seized

the spade or other implements. He accepted the fact that he did not find any tempo

near the site of the incident. ASI Bal Prakash (PW12), however, denied the suggestion

that the revolver and cartridges were not seized by him or that no recovery was

affected.

11. Upon a perusal of the testimony of the aforesaid four witnesses it is quite clear:

that Rajbir Singh was present at the house of Goels; a fact which is not even put in

issue by the defence. The motive for the crime is embedded in the termination notice

issued by the DTC in June, 1992 to Rajbir Singh. The prosecution‟s case that what

transpired after the arrival of Rajbir Singh along with Samudar Singh at the house of

Goels is believable for the reason that it is quite unlikely that the Goels firstly, would

have inflicted injuries on themselves, which are proved by DR. Alexander (PW4); and

then fired at least four shots, the leads of which are embedded in various parts of the

house, located in a residential colony, without attracting attention of the residents in

the vicinity. Therefore, to suggest that the revolver was planted, seems completely

unbelievable. The slight variation in the testimony of Lal Chand Goel (PW1) and

Vinod Goel (PW2) as also the versions of H.C. Harcharan Singh (PW10) and ASI Bal

Prakash (PW12) with regard to the fact that even though Lal Chand Goel (PW1) and

Vinod Goel (PW2) stated that the Revolver, which was held by Samundar Singh, fell

on the ground and it was Rajbir Singh who threw the bag on the ground; while H.C.

Harcharan Singh (PW10) deposed to the effect that he found the revolver alongwith

the live and empty cartridges in the bag (theli); or that ASI Bal Prakash (PW12)

alluded to the effect that when he was handed over the revolver he found four

cartridges in the chamber block of the revolver, would not, in my view, impact the

case of the prosecution. It may be a case of inept handling of evidence, collected at

the site of the incident, whether by design or otherwise but in no way could it destroy

the prosecution‟s version, as set out by PW1 and PW2 as regards the events which

transpired after Rajbir Singh and Samundar Singh reached the house of the Goels.

(i) See Dhanaj Singh vs State of Punjab: AIR 2004 SC 1920 at page 1922 para

5: In this case the prosecution had not sent the pellets and weapons which were

recovered, for testing by a Ballistic Expert. The Court concluded that

".....But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective (See Karnel Singh vs. State of M.P. (1995(5) SCC 518)."

(ii) Amar Singh vs Balwinder Singh & Ors. (2003) 2 SCC 518 at Page 530-531

para 5. In this case the investigating officer had failed to send fire arms and the

empties for comparison. The Court observed as follows:-

".....The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident."

(iii) Allarakha K. Mansuri vs State of Gujarat: AIR 2002 SC 1051at page 1056

para 8, the Court observed as follows:

"....Otherwise also defective investigation by itself cannot be made a ground far acquitting the accused."

11.1 The submission of the learned counsel for the appellants that the appellants had

no motive to commit the offence, of which they are convicted, as Lal Chand Goel at

the relevant time was not holding the post of General Manager (north) in the DTC and

hence was in no position to revoke the termination notice issued to Rajbir Singh; is

untenable for two reasons.

11.2 A careful perusal of the complaint of 16.07.2009 (Ex. DW1/1) would show

that an allegation was made against Lal Chand Goel (PW1) by Rajbir Singh that for

withdrawing the notice of June, 1992 Lal Chand Goel (PW1) had asked for a bribe of

Rs 20,000/-. If the submission of the learned counsel for the appellants is to be

accepted that Lal Chand Goel(PW1) was in no position to obtain a withdrawal of the

termination notice, issued to Rajbir Singh, then where was the occasion for Lal Chand

Goel (PW1) to send an intermediatory in June, 1992 to threaten Rajbir Singh with

severe consequences in respect of his service, if he failed to pay a bribe of Rs 20,000/-.

Consequently, whether or not Lal Chand Goel (PW1) was in a position to revoke or

withdraw the termination notice, issued to Rajbir Singh, the fact remained that the

Rajbir Singh was bitter about the termination notice, issued to him, and for this he held

Lal Chand Goel (PW1) responsible. Therefore, in my view, there was a motive

behind the offence of which the appellants were convicted of by the trial court.

According to me, there is another reason why no credence can be given to the case set

up by the appellants as to why they had visited the house of Goels. According to

defence, Rajbir Singh had visited the house of the Goels because one Ajay Kr. Shukla

(DW2) had been asked by Lal Chand Goel (PW1) to contact Rajbir Singh that he

should visit him at his house in connection with the complaint that Rajbir Singh had

made against him; a fact which he had come to know from K.B. Lal, the then General

Manager (North). Ajay Kr. Shukla (DW2), in his testimony, stated that he had

conveyed the message to Rajbir Singh, who had informed him that he would visit Lal

Chand Goel (PW1) in the evening of 22.07.1992. This fact, according to DW2, he had

conveyed to Lal Chand Goel (PW1) on 21.07.1992 by personally visiting his house at

night. As correctly submitted by learned APP, in his cross-examination DW2

accepted the fact that this information was communicated to him by Lal Chand Goel

(PW1) at the work place, over the telephone. This aspect, when appreciated in the

light of the fact that DW2 accepted in his testimony that he was a foreman for nine

depots located at various locations and the maximum distance between each depot was

no less than 17 kilometers, and also the fact that at any given point in time he could be

at any one of the depots, it would have been well nigh impossible for Lal Chand Goel

(PW1) to have known in advance as to where Ajay Kr. Shukla (DW2) would be at the

relevant point in time. The fact that DW2 said that he received the call directly, is

even more unbelievable for the reason that, in his cross-examination, he has admitted

that the call was received by him at extension no. 8, which is the extension found at

the workstation of one Mr Sehgal. He also accepted the fact that his workstation was

adjoining to that of Mr Sehgal, who is the foreman. The same extension also had

parallel connection to the workstation of the Regional Manager (North), and it was as

if in anticipation that he picked up the phone which was really Sehgal‟s workstation,

knowingfully well that the same extension was also parallely connected to the

workstation of the Regional Manager (North). He also accepted the fact that the call

to the extension no. 8 could be received only through exchange and that he did not

recollect as to who was the person who had connected him to Lal Chand Goel (PW1).

It is obvious that testimony of Ajay Kr. Shukla (DW2) is unbelievable and made only

to support the case set up by the defence.

12. In these circumstances, it is quite clear that Rajbir Singh visited the house of

the Goels as he held Lal Chand Goel (PW1) responsible for the issuance of the

termination notice to him. As to the course of events which followed thereafter are

brought out substantially in the testimony of the injured- Lal Chand Goel (PW1) and

his son Vinod Goel (PW2). The injuries sustained by both Lal Chand Goel (PW1) and

Vinod Goel (PW2) have been proved by Dr. Alexander (PW4). The fact that Rajbir

Singh and Samudar Singh were apprehended at the site by the public is also come

through in the testimony of Lal Chand Goel (PW1) and Vinod Goel (PW2), as well as

in the testimony of H.C. Harcharan Singh (PW10). H.C. Harcharan Singh (PW10) has

deposed that on receiving the information, while he was on duty with the PCR van, he

reached the site where he found that both Rajbir Singh and Samundar Singh had been

apprehended by the public at whose hands they had received a thrashing.

13. Therefore, the submission of the learned counsel for the appellants that

Samundar Singh was a passerby, who had been falsely implicated in the case, because

he was mistakenly apprehended, is completely unbelievable. There is no reason as to

why Lal Chand Goel (PW1), Vinod Goel (PW2) or even H.C. Harcharan Singh

(PW10) would falsely implicate an innocent passerby. Nothing has been brought on

record that there was any previous animosity between the said witnesses which would

incentivize a false implication of Samundar Singh by the Goels in the instant case.

Samundar Singh, in his statement under Section 313 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟), has not alluded to any such

animosity between him or the Goels or for that matter H.C. Harcharan Singh (PW10).

As a matter of fact when a suggestion was made to Lal Chand Goel (PW1) and Vinod

Goel (PW2), with respect to the fact that Samundar Singh was a passerby who had

been falsely implicated, the same had been denied by both PW1 and PW2. Therefore,

in the final analysis, in my view, insignificant variations in the evidence of the

prosecution witnesses as regards to the fact as to whether the revolver was found on

the ground or in the veranda or as adverted to by H.C. Harcharan Singh (PW10) that it

was in the bag (theli) along with the live and empty cartridges, or even as ASI Bal

Prakash (PW12) in his testimony stated that four cartridges were found in the chamber

block of the revolver do not, in any way, dilute the core aspects of the prosecution‟s

case. As a matter of fact no suggestion whatsoever was made by the defence to H.C.

Harcharan Singh (PW10) as to how the revolver along with cartridges, both live and

empty, were found in the bag (theli) when Lal Chand Goel (PW1) and Vinod Goel

(PW2) had stated to the contrary as regards the revolver having fallen on the ground in

the veranda. There was also no suggestion with regard to the fact as to why the

slurry, which PW1 and PW2 stated that had been thrown on Rajbir Singh and some of

which was stated to have spilled on to the floor, find no mention in the site plan.

There was no suggestion, to the absence of the same, made either to H.C. Harcharan

Singh (PW10) or ASI Bal Prakash (PW12). Similarly, there was no suggestion made

to H.C. Harcharan Singh (PW10) or ASI Bal Prakash (PW12) with respect to the

absence of the bucket, spade and other implements, which the Goels said they used in

their self-defence, in the seizure memo. Therefore, there was no occasion, in my view,

for these witnesses to explain the reasons for their absence.

14. What is important is, as stated hereinabove, that the weapon of offence was

recovered from the site; four leads were also recovered from various parts of the house

where the bullets had got embedded and the empties found at the site were connected

to the weapon of offence by the A. Dey, Sr. Scientific Officer (PW7), in his testimony

before the court. The fact that the weapon of offence, the revolver, four empty

cartridges and eight live cartridges, were sealed and thereafter deposited with the

Malkhana and sent to the Forensic Science Laboratory and received back untampered

has also been proved. These aspects have come through in the testimony of ASI Bal

Prakash (PW12), H.C. Harcharan Singh (PW10) and constable Rakesh Kumar (PW9).

15. The other submission of the learned counsel for the appellant that in the MLC

(Ex. PW4/B) of Lal Chand Goel (PW1) as also in the MLC (Ex.PW4/A) of Vinod

Goel (PW2) there is no mention of fire arm injury, cannot in my view enure to the

benefit of the defence. It is quite evident that the position, in which the Goels were

put on the night of 22.07.1992 when, the appellants entered their house and started

shooting at them- that they were in a complete state of shock. To expect them to

ensure that the MLCs in issue would reflect not only the names of the appellants but

also how the events transpired at their house, is being unrealistic. What transpired on

22.07.1992 is apparent from the statement (Ex.PW1/A) of PW1; which was made to

the police in close proximity of the incident i.e., on 22.07.1992/23.07.1992. PW1‟s

statement was followed by the statement of PW2 (Ex.PW2/DA) to the police; which

was made on 23.07.1992. As a matter of fact, in my view, if the MLCs reflected the

names of the appellants and the manner in which the assailants/appellants attacked

them would perhaps have made the prosecution‟s case look too perfect to be true.

16. In so far as the submission of the learned counsel for the appellants, as regards

the failure of the prosecution to produce the four-wheeler tempo is concerned, I am of

the view that this aspect also cannot impact the prosecution‟s case because it is not

disputed by the defence that the appellants on 22.07.1992 had visited the house of the

Goels. The case of the defence was that they had been summoned as against that of

the prosecution that appellants had come to visit the Goels because they were unhappy

with the termination notice issued to Rajbir.

17. The submission of the learned counsel for the appellants that no independent

witnesses were examined is also untenable in my view. It is well known that it is very

difficult to find independent public persons who would readily want to depose as

witnesses or assist in investigation. In the present case the Goels are the injured

party. Having found that their testimony is trustworthy, the prosecution‟s case cannot

fail simply because no public witnesses were examined. (See Ambika Prasad vs State

(Delhi Administration AIR 2000 SC 718 at page 722 paragraph 12).

18. Therefore, having regard to the evidence that the prosecution has placed on

record and the discussion of the same hereinabove, I am of the opinion that the

judgment of the trial court deserves to be sustained. The submission of the learned

counsel for the appellants that the court should take a lenient view of the matter since

the fact that it is the first offence of Samundar Singh would not cut much ice in the

present case. The offence, such as one, which Samundar Singh stands convicted of,

could have resulted in fatal consequences for the Goels. The trial court perhaps,

keeping in mind the fact that Samundar Singh had no history of any other offence

except one for which he is convicted, has passed a sentence of three years rigorous

imprisonment. Under Section 307 of the IPC the court is empowered, if no injury is

caused, to punish the offender for a term of an imprisonment which can extend to 10

years. I do not see any reason to reduce the sentence. The appeal is accordingly

dismissed. The appellant Samundar Singh shall be taken into custody forthwith to

undergo the remaining part of his sentence.

RAJIV SHAKDHER, J DECEMBER 17, 2009 kk