Delhi High Court
Brijesh Kumar vs State Of Nct Of Delhi on 23 January, 2009
Author: Pradeep Nandrajog
i.11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : January 23, 2009
+ CRL.A. 38/2008
BRIJESH KUMAR ..... Appellant
Through: Mr. Sanjay Sharma, Advocate
versus
THE STATE NCT OF DELHI ..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. At 11:50 AM on 7.8.2002 at P.S. Shahdara, DD Entry
No.9-A, Ex.PW-14/A was recorded by the duty officer, ASI
Poonam Tomar, to the effect that an information has been
received from Const. Murari on telephone that at a shop B-50
near Harkishan Public School a person named Sonu has been
shot at. Soon thereafter vide DD No.10-A, Ex.PW-14/B, recorded
at 11:55 AM same information was received and recorded.
3. SI Rang Lal PW-23, accompanied by two police
officers, one of whom was Const. Rambir PW-13, left for the spot
where Sonu was stated to have been shot; as disclosed in the
DD Entry, and on reaching the site of the occurrence learnt that
the injured named Rajiv was removed to GTB Hospital. SI Rang
Lal proceeded to GTB Hospital and in the meanwhile Const.
Rajender PW-16, also reached soon thereafter along with a copy
of DD No.10-A.
4. The injured was declared unfit for statement and
hence his statement could not be recorded.
5. Evidenced by Ex.PW-1/A, the MLC of Rajiv Jain, he
was admitted at GTB Hospital at 11:45 AM. As recorded in the
MLC, he was brought by his brother Pradeep Jain PW-5.
6. PW-1 Dr. Pancho Lapcha examined the injured whose
name was disclosed as Rajiv Jain and pertaining to the history of
the injury recorded on Ex.PW-1/A:- "Alleged h/o gun shot injury,
history given by brought by." He noted on the MLC that the
patient was gasping and had an entry wound on the right chest
in infraclaricular region and an exit wound on the right arm. He
referred the injured for emergency surgery. Unfortunately,
before any medical assistance could be rendered, Rajiv died at
around 12:25 noon.
7. Const. Lakhbir, on duty at GTB Hospital informed the
duty officer at the police station that Rajiv Jain had died, which
information was recorded vide DD No.32-B at 1:15 P.M.
8. Since Sanjay Jain PW-2, the brother of the deceased,
was at the hospital, SI Rang Lal recorded the statement, Ex.PW-
2/A, of Sanjay Jain and made an endorsement thereon, Ex.PW-
23/A, and forwarded the same to the police station for
registration of a FIR. Ex.PW-2/A and the endorsement Ex.PW-
23/A were transmitted from the hospital to the police station by
Const. Rajender PW-16, upon which PW-8 ASI Kishan Dutt,
registered FIR Ex.PW-8/A at 2.25 PM.
9. In his statement Ex.PW-2/A, Sanjay informed that he
was a resident of House No.B-95 Gali No.1, Jyoti Colony,
Shahdara and that at House No.D-50, West Jyoti Nagar,
Shahdara they had a shop, at the rear of which work of powder
coating used to be conducted. That they were three brothers
and all used to manage the shop and the work of powder
coating. He stated that his brother Rajiv Jain @Sonu was at his
seat in the retail shop and that he i.e. Sanjay was standing on a
slab of the shop. The time was around 11:00 AM. A boy named
Brijesh (accused) came there. That he knew Brijesh quite well
as Brijesh was residing in the neighbourhood; two streets away
and used to visit the shop for making purchases. He stated that
Brijesh had a conversation with his brother and started abusing
his brother, telling him that he i.e. his brother was defaming him
in the locality and that today he would not spare his life. So
stating, Brijesh took out a katta (country made pistol) and fired
at his brother and fled. He i.e. Sanjay raised a hue and cry that
his brother had been shot at and ran after the assailant. On
hearing his cries, his younger brother Pradeep Jain and some
workers doing powder coating reached the shop. That he
continued to run after the assailant but could not catch him.
That when he came back to the shop his brother Pradeep Jain,
with the help of a neighbour Ashish had already removed Rajiv
Jain on a scooter to GTB Hospital.
10. The police took possession of MLC Ex.PW-1/A and
sent the dead body of Rajiv Jain for post-mortem to UCMS and
GTB Hospital, where post-mortem was conducted by
Dr.S.K.Verma PW-4, who prepared the post-mortem report
Ex.PW-4/A.
11. We have noted the injuries on the deceased as
recorded in the MLC, in para 7 above; we note the injuries
recorded in the post-mortem report Ex.PW-4/A. The same read
as under:-
"1. An oblique firearm entry wound, oval in shape of
size 3.8 x 2.0 cms placed on Rt. shoulder posteriorly
11 cms below the tip of Rt. shoulder and 3.5 cms
from post axillary fold. Blackening present around
the margins that were inverted. No tattooing seen.
The wound was going anteriorly and to the left
passing through the upper arm, Rt. chest cavity and
Rt chest wall making an exit wound, tangential oval
in shape of size 4.2 x 2 cms in Rt. midclaricular line
5 cms below the lower border of Rt. claricle and 3
cms to the Rt of midline. Blood was present all
along the track.
2. Vensection wound over Lt. medical mallcolus."
12. Proceeding to the spot on the day of the incident
itself, rough site plan Ex.PW-23/C was prepared by SI Rang Lal.
Blood samples, earth control, blood stained earth, blood stained
pulses, blood sample from the road were lifted and seized vide
seizure memo Ex.PW-2/B. The accused was apprehended the
same day at 8:00 P.M. from his sister‟s house.
13. Investigation continued. Statements of persons
under Section 161 Cr.P.C. were recorded.
14. On 27.9.2002 SI Mukesh Jain PW-10 went to the spot
as directed by SI Rang Lal and as per information given by
Sanjay Jain PW-2, and on his pointing out, prepared the site plan
Ex.PW-10/A.
15. Since arguments have been advanced in appeal
today with reference to the site plan, we may note that the
same shows the house No.D-50 is a corner house and the shop
inside the precincts of the house is in the right corner. The shop
opens towards a road on the west. The said road runs from the
south to the north. The northern boundary of the shop abuts a
road running from the west to the east. In the site plan, the rest
of the house i.e. at the rear of the shop as also towards its
southern side has been shown as a factory. (We may note that
according to the prosecution the factory is the place where
powder coating job is done, reference whereof has been made in
the statement Ex.2/A).
16. The place wherefrom the assailant fired at Rajiv has
been marked at „A‟ on the road on which the shop opens. The
said point „A‟ is on the road leading from the south to the north
and is just at the opening of the shop on the road. It is towards
the northern boundary of the shop. The place where Rajiv was
shot has been marked at point „B‟ which is within the shop, at a
distance of approximately 1/3rd of the length segment of the
shop from the opening on the road in front. The place where
Sanjay Jain was standing has been shown at point mark „C‟;
which we note is towards the southern direction from point „A‟,
i.e. where the assailant is stated to have fired from. The point is
just in front of the southern boundary of the shop at its junction
with the road in the front.
17. As per PW-20 SI Ashvir Singh and Investigating
Officer SI Rang Lal PW-23, the appellant was arrested from the
house of his sister at around 8:00 PM on 7th August 2002 i.e. on
the day of the incident.
18. As per PW-20 and PW-23 the appellant made a
disclosure statement Ex.PW-20/A in which he disclosed that he
could get recovered the katta wherefrom the fatal shot was fired
on deceased Rajiv Jain and informed that the same could be
recovered from a drain near a corner of a street in Jagat Puri.
19. Since arguments have been advanced with respect to
two facts disclosed in Ex.PW-20/A, the disclosure statement of
the appellant, we note the said facts disclosed in Ex.PW-20/A.
20. It stands recorded in the disclosure statement that
before going to the shop of Sonu the appellant had purchased
corex medicine from a medical store at Durga Puri Chowk. The
second statement recorded is that 5/6 months ago the appellant
had purchased the weapon of offence from a Muslim boy at Garh
Mukteshwar.
21. As per PW-20 and PW-23 no recovery could be
effected from the drain, wherein as per disclosure statement
Ex.PW-20/A, the weapon of offence was thrown.
22. The appellant was further interrogated and as per
PW-20 and PW-23 he made a second disclosure statement
Ex.PW-20/C in which he stated that the weapon of offence was
hidden in bushes near a bus stand in front of Jagat Puri colony
near a red light and that the appellant could get the same
recovered.
23. The appellant led PW-20 and PW-23 to the bushes
near the bus stand of Jagat Puri and got recovered a polythene
sheet in which the katta and two cartridges were wrapped. One
cartridge was spent and the other was a live cartridge. The
same were seized vide seizure memo Ex.PW-20/E and before
they were sealed a sketch, Ex.PW-20/D, of the katta was
prepared by PW-20.
24. The witnesses to the incident, cited as witnesses of
the prosecution, were Sanjay Jain PW-2, Bhagwat Prasad PW-3,
Pradeep Jain PW-5 and Ashish Jain PW-6.
25. Since submissions have been made during hearing of
the appeal with reference to the testimony of said witnesses, we
propose to note their testimony.
26. Sanjay Jain PW-2, deposed that their family was
running a kiryana shop and was carrying on work of powder
coating at B-50, West Jyoti Nagar. That the work of powder
coating used to be conducted from behind the shop. That the
deceased Rajiv Jain was his brother. That Rajiv used to sit at
kiryana shop. On 7.8.2002 at about 11:15 AM, during the day
time, he was standing near a tea shop and Rajiv was sitting at
the kiryana shop. At that time accused Brijesh came to the
shop. He knew Brijesh as he was living in the neighbourhood
and used to visit the shop to purchase goods. He stated that
when Brijesh arrived at the shop he started abusing Rajiv Jain
stating that Rajiv Jain had defamed him in the locality and so
stating he took out a country made pistol and fired at his brother
Rajiv Jain. He deposed that the bullet hit his brother on the right
side chest. He stated that since Brijesh attempted to flee, he
chased him while shouting that his brother was hit by a bullet.
On hearing his noise, his younger brother Pradeep Jain arrived.
He deposed that the accused could not be apprehended despite
best efforts made by him and succeeded to flee. He deposed
that he came back to the shop and learnt that with the help of
one Ashish, his younger brother Pradeep Jain had taken his
injured brother Rajiv Jain to the hospital on a scooter. He also
went to the hospital where police met him and he gave a
statement to the police which is Ex.PW-2/A and that it bore his
signature at point „A‟. He deposed that after about one hour of
reaching the hospital his brother Rajiv expired. He deposed that
police officials brought him to the place of occurrence and at his
instance the Investigating Officer prepared the site plan and
lifted blood and blood stained earth which were seized in his
presence as recorded in the memo Ex.PW-2/B. He identified his
signatures on the memo at point „X‟. He deposed that Brijesh
was arrested in his presence as per arrest memo Ex.PW-2/C
which bore his signature at point „X‟.
27. Sanjay Jain was cross examined and on cross
examination he stated that there was no tea shop nearby his
shop. He admitted knowing the accused prior to the occurrence.
He admitted that there was no dispute with the accused prior to
the occurrence. He was partially cross examined on 31.5.2004.
His cross examination continued on 2.8.2004. On said date, on
being again questioned as to where was he standing at the time
of the occurrence, he responded by saying that he was standing
on the slab outside his shop and that his brother Rajiv Jain was
present inside the shop. He stated in his cross examination that
he was outside the shop when the accused came to the shop.
He stated that the accused remained at the shop for one to two
minutes. On being questioned as to how long did he chase the
accused, he responded that he chased the accused for about 4-5
minutes. He went on to state that when he came back to the
shop he saw that many persons had gathered outside the shop,
but could not recollect their names. On further cross
examination, he stated that the opening of the shop was
towards the western direction and that the accused ran towards
the south side on the road.
28. Bhagwat Prasad PW-3 deposed that on 7.8.2002 at
around 11:00 AM he was proceeding to collect his dues and
while on the way back he went to the factory of one Sunil
Sharma but could not meet him. He said that he proceeded to
shop of Sanjay which was in front of the factory of Sunil Sharma
and that the accused was present at the shop of Sanjay and that
he i.e. the accused was exchanging hot words with Sanjeev.
That the accused threatened to see Sanjeev and fired a shot
from a katta in his hand. He stated that Rajiv Jain brother of
Sanjay Jain took Sanjeev to the hospital. He deposed that he
followed them on his cycle. He stated that the person who was
hit was known as Sonu. Since the witness was probably
confusing on the names, at that point of time, the learned APP
requested to cross examine the witness.
29. Deviating a little from the statement of PW-3, we
want to record that if a witness is not able to recollect a fact
which is sought to be proved by the prosecution, the witness
should not be declared hostile and permission be sought to
cross examine the witness. The correct approach is to seek
leave of the Court to put a leading question or a suggestion to
the witness. We are so recording because we are coming across
large number of matters where we are noticing that a witness
who is not able to correctly recollect a fact is immediately cross
examined by the public prosecutor, of course, with the
permission of the Court. This is not a correct approach in law.
30. Reverting back to the deposition of Bhagwat Prasad
PW-3, he deposed that it was correct that the accused fired a
shot at Sonu and not at Sanjay. He deposed that in the earlier
part of his deposition he had committed a mistake when he said
that the person shot at was Sanjay. He went on to depose that
Sanjay chased the accused but could not apprehend him and
hence returned. He deposed that he and Sanjay followed the
victim to the hospital.
31. On being cross examined by the counsel for the
accused he deposed that the factory of Sunil was at a distance
of 1/1.5 kms from his shop and that he was having business
dealings with Sanjay for last 1 year. He deposed that Sanjay,
Sonu and accused were present when he reached Sanjay‟s shop.
He deposed that Rajiv, elder brother of the victim also came
there and he saw Rajiv a second after the shot was fired. He
deposed that the police recorded his statement at around 4:00
PM at the spot. He deposed that he remained at the hospital till
3/3:30 PM and that the police did not meet him in the hospital.
32. PW-5 Pradeep Jain, deposed that on 7.8.2002 while
he was working in a room adjacent to their shop at House No.D-
50, West Jyoti Nagar, clarifying that the shop is situated in the
house, clarifying further that they were doing powder coating at
that time, he deposed that his younger brother Rajiv @ Sonu
was sitting at the shop and at about 11:15 AM he heard a bang
(Dhamaka) and hence came out of the shop. He saw his elder
brother Sanjay Jain running after accused Brijesh shouting that
the accused had shot his brother Rajiv Jain. He deposed that he
saw his brother Rajiv Jain lying smeared in blood near a bag of
dal and a stool. He deposed that neighbours gathered on
hearing the gun shot and one Ashish a neighbour, also came
there. He deposed that with the help of Ashish he took his
injured brother Rajiv in a two wheeler to GTB Hospital.
33. On being cross examined he stated that Rajiv was
aged 18-20 years and was sitting in the shop since 7:00 AM. He
stated that he used to start his work at the room at about 8:30
AM and that he used to work only on powder coating job. He
stated that his brother Sanjay Jain also used to work on powder
coating. To the question as to what distance did he see Sanjay
running after the accused, he responded that the distance was
30-35 paces. He stated that Sanjay was running towards the
north. He stated that the door of his shop is towards the east
and the door of the room opens towards the road (The witness
was referring to the room/shop where powder coating job used
to be done). He stated that their house was situated on the
corner of the road and that there was a road on three sides of
their house. He stated that there is no road at the rear side of
the house. He stated that his brother Rajiv was not having any
enmity with the accused. He admitted that his brother Sanjay
Jain was arrested in a case connected with teasing of a girl and
was produced before a Magistrate at PS Seelam Pur and that he
was apprehended by the police of Shahdara.
34. The last eye witness examined by the prosecution is
Ashish Jain PW-6, who deposed that on 7.8.2002 at about
11/11:15 AM he was present at his shop and heard a noise of
gun shot. He came out of his shop and saw Sanjay Jain and
10/12 person running with Sanjay shouting "goli mar di, goli mar
di". He deposed that he reached the shop of Rajiv Jain by which
time Pradeep Jain had also reached and that Rajiv Jain was in an
injured condition and was smeared with blood. He deposed that
Pradeep Jain and he took out Rajiv Jain from the shop and took
him to GTB Hospital on a two wheeler. Rajiv Jain was admitted
at said hospital where he died after about an hour. At that point
of time he was cross examined by learned APP. Once again we
note that there was no need to cross examine the witness. He
appears to be failing in his memory and hence the correct thing
ought to be, after seeking permission of the Court, to put a
leading question or give a suggestion.
35. A suggestion was put to him by the learned Public
Prosecutor whether while chasing the accused Sanjay was
shouting "Brijesh had shot dead Rajiv", he denied having heard
so. He stated that he knew the accused who was present in
Court. He denied that he was won over by the accused.
36. On being cross examined by counsel for the accused
he denied knowledge of any quarrel having taken place between
the family of Rajiv Jain and some other persons about a girl a
year ago. He denied any quarrel having taken place between
Rajiv Jain and the accused prior to the date of the incident.
37. The appellant who was facing the charge of murder
of Rajiv Jain i.e. for the offence punishable under Section 302
IPC, denied his involvement and either disclaimed knowledge or
denied the incriminating circumstances and evidence put to him
while being examined under Section 313 Cr.P.C. To the last
question as to whether he had something to say, he responded
that the case against him was false; that the deceased was
killed due to some enmity with a person whose girl was teased
by the deceased and in respect whereof proceedings under
Section 107/151 Cr.P.C. were pending and that he i.e. the
appellant was falsely implicated.
38. The appellant examined Bishamber Singh DW-1, who
deposed that the appellant was a son of his friend Tika Ram and
that Tika Ram came to his house on 7.8.2002 and informed him
that the police was searching for his son and that he told Tika
Ram to produce his son in the Police Station and let inquiry be
made. He deposed that on the same day he accompanied Tika
Ram and Tika Ram‟s daughter to the police station where
accused Brijesh was produced by all of them at Police Station
Shahdara and that next day he learnt that the accused Brijesh
was implicated falsely in a murder case.
39. On being cross examined by the learned Public
Prosecutor, Bishamber Singh stated that he did not know the
house number of Tika Ram. He stated that Kamlesh, daughter
of Tika Ram had accompanied them to the Police Station. He
stated that he remained in the Police Station for about one to
two hours. He denied deposing falsely.
40. By a cryptic decision, relying principally upon
testimony of PW-2; holding that his presence at site cannot be
doubted and that there was no reason to disbelieve PW-2;
further recording that Rajiv Jain was hit on the chest with a
bullet and the resultant injury was opined by the doctor to be
sufficient in the ordinary course of nature to cause death; the
learned trial Judge has convicted the appellant for having
murdered Rajiv Jain. The appellant has been convicted for the
offence punishable under Section 302 IPC. Sentence imposed is
of imprisonment for life and to pay a fine in sum of Rs.10,000/-;
in default to undergo simple imprisonment for two months.
41. At the hearing held today, Shri Sanjay Sharma,
learned counsel for the appellant has inter alia urged the
following:-
(a) Presence of PW-2 at the spot at the time of the
occurrence is doubtful and said fact stands established
by his answers given in cross examination. Drawing
our attention to the answer given by PW-2 on being
cross examined, when he was asked to state the place
where the tea shop, referred to by him in his
examination-in-chief, was situated, to which he
responded: "there was no tea shop near our shop",
counsel urges that if there was no tea shop near the
shop where Rajiv was fatally attacked: where was the
question of Sanjay Jain standing near the tea shop as
stated by him in his examination-in-chief. Further,
counsel urges that on being questioned as to in which
direction accused ran after firing, PW-2 responded that
the accused ran towards south side. With reference to
the testimony of PW-5, learned counsel draws our
attention to the statement made by PW-5 Pradeep
Jain, who when cross examined on the fact as to in
which direction Sanjay ran, stated that he saw his
brother Sanjay running towards north side of the shop.
Elaborating this submission, with reference to the site
plan Ex.PW-10/A, learned counsel further urges that
the stated factory room wherein powder coating
business was stated to be conducted by the Jain
brother has not been shown in the site plan. Referring
to the testimony of PW5, learned counsel draws our
attention to the statement made by him that the door
of the shop where powder coating business was being
conducted was towards East. Referring us back to the
statement of PW-2 wherein he had stated that
accused remained at the shop for only 1 and 2
minutes; with reference to the site plan and claim of
PW-5 to have reached the shop where Rajiv Jain was
shot and witnessed Sanjay chasing the accused,
learned counsel urges that if everything happened
within a minute or two as deposed by PW-2, it is
improbable for PW-5 to have reached the site of the
occurrence and witnessed anything meaningful.
(b) Second submission made by learned counsel is
that PW-3 is a shaky witness, who had to correct
himself on being cross examined by the Public
Prosecutor. Counsel urges that PW-3 is not worthy of
any credence is evidenced by the fact that even the
learned trial Judge has not relied upon the deposition
of PW-3.
(c) The next submission made by learned counsel for
the appellant is that the ring of truth is to be found in
the statement of Ashish Jain PW-6, who stated that he
reached the shop of Rajiv Jain on hearing noise of gun
and did not see the assailant who had fired. Learned
counsel urges that this statement of PW-6 appears to
be the only correct statement made by him, because
each witness was involved in his work and got
attracted to the site of the incident on hearing the
sound of the gunshot. Counsel urges that obviously,
by the time they could reach the spot, the assailant
would have fled.
(d) It is next urged by learned counsel that the
learned trial Judge has not applied his mind to the
medical evidence i.e. the MLC and the postmortem
report of the deceased, which evidence that Rajiv Jain
sustained injury on the shoulder; a non vital part of
the body; learned counsel urges that the learned trial
judge has parroted the statement of PW-2 that the
injury was on the chest of Rajiv Jain.
(e) Learned counsel urges that the FIR being
registered at 2.25 P.M. and the incident in question
having taken place at around 11.15 A.M. evidences an
unexplainable time gap between the time of the
incident and registration of the FIR. It is urged that
why were Sanjay Jain, Ashish Jain or Pradeep Jain not
examined by the Investigating Officer forthwith on
reaching the hospital. Elaborating the submission,
learned counsel further urges that obviously a belated
FIR has been deliberately registered and within said
time a false story has been cooked up against the
appellant. Counsel urges that the true fact is that the
family members of the girl who was teased by the
deceased were the prime suspects and in fact were
called to the Police Station but for unexplainable
reasons were let off and the appellant was falsely
implicated.
(f) It is urged that the first DD entry disclosed a
cognizable offence punishable under Section 307 IPC
and that a FIR ought to have been registered at 11.50
A.M. itself. Counsel urges that the police did not do so
with the connivance of the Jain family.
(g) Pertaining to the arrest of the appellant, learned
counsel urges that if indeed he was an offender,
appellant would have run away and not hidden in the
house of his sister; a place where presumably the
police would visit to locate him. Counsel urges that the
learned trial Judge has totally eschewed any reference
to the testimony of DW-2, for the reason, his
testimony categorically establishes that the appellant
surrendered voluntarily and was not apprehended by
the police, as claimed.
(h) With reference to the disclosure statement of the
appellant wherein he had disclosed having purchased
corex medicine a short while prior to visiting the shop
in question and having purchased the katta from a boy
at Garh Mukteshwar; hedging the submission with
caution; indeed it has to be so; learned counsel urges
that it was the duty of the police to have investigated
the said facts and vital linkages could have been made
connecting the appellant to the crime if the shop
keeper who sold the corex medicine corroborated
appellant‟s presence in the area; as also linked the
appellant to the weapon of offence if the person from
whom appellant claimed to have purchased the same
re-stated the said fact. Counsel urges, that if said
person spoke to the contrary, the same would have
been exculpatory of the appellant‟s involvement.
(i) It is urged, with reference to the MLC Ex.PW-1/A,
wherein while recording the history of the injury being
gunshot injury; history being statedly given by brought
by, counsel urges that Pradeep Jain PW-5 is the person
referred to as "brought by" because his name has
been recorded in the MLC under the column „name
and address of relative or friend brought by‟. Counsel
urges that this shows that Pradeep Jain PW-5, did not
know the name of the assailant at 11.45 A.M., the time
recorded in the MLC as the time of admission of Rajiv
Jain. It is urged that had Pradeep Jain known the name
of the assailant he would have disclosed the same to
the doctor who would have recorded the said fact in
the MLC itself.
(j) With reference to the postmortem report and the
injuries recorded by the doctor, learned counsel urges
that the postmortem report shows a single gunshot
wound at the right shoulder. Counsel urges that the
shoulder is not a vital part of the body and the fact
that the bullet did not pierce the heart or lungs shows
that the death of the deceased was unfortunate, but
certainly not the result of a fatal injury. An extended
limb of the said submission is that the gunshot injury
on the shoulder is 3.5 cm from the auxiliary fold i.e.
the upper most part of the shoulder; a non vital
segment of the body. Counsel urges that in total
disregard of the postmortem report the learned trial
Judge wrongly treated the injury to be on a vital part
of the body i.e. the chest. Counsel re-emphasizes that
the injury is not on the chest but is on the auxiliary
fold of the right shoulder.
42. Since the order is being dictated in the open
Court, at this stage, we have asked Shri Sanjay Sharma,
learned counsel for the appellant whether any submission
made by him has gone unnoticed. Learned counsel very
fairly and expressing gratitude to the court, states that every
submission made by him has been noted.
43. We proceed to consider the submissions urged.
44. Pertaining to the first submission as noted in sub
para (a) in para 41 above, we note that PW-2 has no doubt
responded on being cross-examined that there was no tea
shop near the shop where the crime was committed and that
in his examination-in-chief he deposed that he witnessed the
incident when he was standing at a place near the tea shop.
But, every human being is prone to memory lapsing after
some time or incorrectly describing a particular incident.
This does not by itself discredit the maker of the statement.
It is worth noting that in his first statement Ex.PW-2/A made
to the police immediately after the incident, PW-2 had
informed that he was standing on the slab outside the shop.
It is also important to note that on being further cross-
examined on 2.8.2004 as to where was he when he claims to
have witnessed the shooting, PW-2 categorically stated that
he was standing on the slab outside his shop. The
submissions of learned counsel pertaining to the
contradiction in the testimony of PW-2 and PW-5 as to in
which direction the accused ran and in which direction he
was chased, in that, PW-2 stated that the accused ran
towards the south and PW-5 stated that he saw his brother
Sanjay running towards the north, is neither here nor there
for the reason, more particularly when a witness sees his
brother critically injured, an error of reference to the
directions i.e. north, south, east or west can occur.
Obviously, the assailant ran towards the south because the
site plan shows that PW-2 was standing on the road towards
the north. The assailant would not run towards the brother of
his victim; the assailant would obviously run in the opposite
direction. The submissions pertaining to PW-5 reaching the
spot after the assailant had run away are nothing but an
attempt to fantasize the facts. The site plan Ex.PW-10/A
shows house No.D-50 having a shop on the corner of two
roads running from south to north and west to east. The
shop is on the corner where the two roads meet. The rest of
the house has been shown as the factory. The factory is the
one to which PW-2 and PW-5 have referred to as the place
where work of powder coating was being done by the family.
That the two witnesses have referred to the same,
sometimes as the shop or sometimes as a room, is no more
other than an improper choice of a word to describe a work
place. The site plan shows that the access to the place
where powder coating work is done is from the road towards
the northern boundary of the building i.e. the road running
from the west to the east. To reach the shop where the
deceased was injured would not take more than 15 to 20
seconds because the distance to be travelled is hardly 30
feet. Thus, there is no improbability in PW-5 reaching the site
of the occurrence within less than a minute of hearing the
gun shot. It may be noted that PW-2 has categorically stated
that when he commenced the chase to apprehend the
accused he shouted that the accused had fired at his brother.
We see no improbability in PW-5 responding spontaneously
and reaching the site of the occurrence upon hearing a gun
shot fire sound and the resultant commotion when PW-2
started shouting that Sonu has been shot.
45. The second submission that PW-3 is a shaky
witness is predicated on the premise that PW-3 had to correct
himself on being cross-examined by the public prosecutor.
The argument is tenuous. It has no legs to stand on. As
noted by us while referring to the testimony of PW-3 he
started fumbling on names and corrected himself when he
was cross-examined. We have noted above that there was
no need to cross-examine the witness who was fully
supporting the prosecution but was fumbling with reference
to the names. He was referring to Sonu as Sanjay Jain. He
was referring to one Sanjeev. The learned public prosecutor
could have, with the permission of the Court, put to the
witness a suggestion or a leading question. This was done
when the witness was cross-examined by the learned public
prosecutor. The witness corrected himself and stated that he
committed a mistake when he stated that the person shot at
was Sanjay and that in fact Sanjay chased the accused but
could not apprehend him. That the learned Trial Judge has
not referred to the testimony of PW-3 does not mean that
PW-3 is a shaky witness.
46. Pertaining to the third submission based on the
deposition of PW-6 wherein he stated that he did not see the
assailant, we wonder how there from it can be deduced that
the other eye-witnesses also did not see the assailant. Let us
recreate the scene after Rajiv Jain was shot at. Sanjay Jain
started chasing the assailant and was shouting that his
brother had been shot by the assailant. People started
running towards the shop. Somebody‟s attention was
devoted to the injured and hence he did not see the accused,
who was fleeing. Somebody‟s attention was devoted to the
accused being chased. Well, this is what usually happens. It
has happened in the instant case. PW-6 Ashish Jain assisted
in the injured being rescued is evidenced by his testimony
when he stated that he assisted Pradeep Jain to take the
injured to the hospital. It shows that the concern of PW-6
was the injured and hence his attention was devoted towards
the injured and not towards the assailant who was being
chased by Sanjay. In any case, testimony of PW-6
corroborates the testimony of Sanjay that Sanjay was present
at the spot when the incident took place. We repeat, Ashish
Jain PW-6 has categorically deposed that when he heard the
sound of the gunshot, he came out of his shop and saw
Sanjay chasing the assailant.
47. In this connection we note that all eye-witnesses
have corroborated each other vis-à-vis the presence of each
other. We note that PW-3 Bhagwat Prasad has no concern
with the family of the deceased, other than business
dealings, and has no motive to falsely implicate the
appellant.
48. Pertaining to the fourth plea urged and as noted in
para 41(d) above, we dismiss the plea as worthy of no
consideration inasmuch as the learned counsel has just not
understood the nature of the injuries recorded in the post
mortem report Ex.P-4/A, contents whereof have been noted
by us in para 13 above. The injury is not on the axillary fold
of the right shoulder. The entry wound is the point 11 cm
below the tip of right shoulder and 3.5 cm from post axillary
fold. This means that the bullet has entered at a place on the
chest about 11 cm below the tip of the right shoulder at a
distance of about 3.5 cm from post axillary fold. The path
travelled by the bullet, as recorded in the MLC has to be the
internal wound: going anteriorly and to the left passing
through the upper arm, Rt. chest cavity and Rt chest wall
making an exit wound, tangential oval in shape of size 4.2 x 2
cms in Rt. midclaricular line 5 cms below the lower border of
Rt. claricle and 3 cms to the Rt of midline. Thus, a layman
would obviously say that the shot has been fired in the chest.
The charge against the learned Trial Judge of parroting the
statement of PW-2 is thus incorrect.
49. The fifth submission pertaining to the delay in
registration of the FIR is again a baseless charge. It is not in
dispute that Rajiv Jain was fired at around 11.15 AM and was
removed to the hospital where he died at around 1.00 PM on
the same day. Would his near and dear ones be more
concerned to rescue his life or would they be concerned with
legal procedures? The answer is obvious: with the former. It
would be too cruel for the police to trouble the near and dear
ones who were running around in the hospital to ensure that
Rajiv is saved. That Rajiv was in a critical condition is
apparent from the fact that he died within an hour and a half
of hospitalization. The statement Ex.PW-2/A of Rajiv Jain
could only be recorded after a few minutes of 1.00 PM and
forwarded thereafter to the police station for registration of
an FIR. Under the circumstances, the FIR being registered at
2.25 PM cannot give rise to an argument that there is an
unexplainable delay in registration of the FIR. The question
of there being any design is ruled out. We fail to appreciate
the second limb of the fifth submission that between the time
of the incident and registration of the FIR ample time was
available to the brothers of Rajiv Jain to falsely implicate the
appellant and that the prime suspects were the family
members of the girl who was teased by the deceased and in
respect whereof the deceased was even apprehended by the
police. If that be so, the false implication would have been of
a family member of the girl and not an innocent stranger. It
is natural for the family members of a deceased to see that
the real culprit is brought to justice and this is what has
happened in the instant case. We note that the submission
of learned counsel that the family members of said girl who
was teased were the prime suspects and in fact were brought
to the police station but for unexplainable reasons were let
off is nothing but a figment of imagination. No suggestion
has been given to the investigating officer that he had first
apprehended the family members of the said girl and then
had let them off.
50. The sixth plea noted in para 41(f) above has
hardly impressed us. FIRs are never recorded on the basis of
entries in the daily diary received through unknown informers
who ring up the number 100 and the message is received at
some PCR van and then flashed to the police station
concerned. The reason is that this information, by its very
nature, is cryptic. A FIR can be registered only when facts
disclosed to the police show the commission of a cognizable
offence.
51. The seventh submission made that the testimony
of DW-1 and DW-2 shows that the appellant voluntarily
surrendered before the police and was not apprehended has
to be discarded without much reasoning because no
suggestion was made to either police officer who was
examined with respect to the arrest of the appellant, that the
appellant had voluntarily surrendered. In the absence of any
such suggestion given to PW-20 and PW-23, the two police
officers who have deposed about the arrest of the appellant,
the plea is not even worthy of any consideration.
52. The eighth submission made and as noted in para
41(h) above has somewhat baffled us. Was the learned
counsel suggesting that by not bringing on record further
incriminating evidence the case of the prosecution should be
discounted on the premise that if attempt to bring on record
said incriminating evidence failed the accused i.e. the
appellant would have been the beneficiary thereof? We
wonder at the logic of the argument, for indeed we see none.
No statement made by an accused to a police officer is
admissible in evidence save and except what comes within
the ambit of Section 27 of the Evidence Act. Thus, it would
have been a useless exercise for the police to go about
finding the shop keeper who sold corex medicine to the
appellant. The corex medicine had no concern with the
crime. Thus, its purchase or not, was irrelevant. Similarly,
from whom was the weapon of offence purchased is
immaterial.
53. At this stage, it would be of importance to note
that learned counsel for the appellant has made as many as
ten submissions, all of which have been noted in sub-paras
(a) to (j) of para 41 above. As noted in para 42 above, we
have asked Shri Sanjay Sharma, learned counsel for the
appellant whether any submission has gone unnoticed. He
has responded that all submissions urged by him have been
noted. Learned counsel has not made any submission
pertaining to the disclosure statement Ex.PW-20/C pursuant
whereto PW-20 and PW-23, at the instance of the appellant
and on his pointing out, made a recovery of a desi katta with
a spent and a live cartridge, all neatly wrapped in a
polythene sheet, from the bushes near the bus stand in front
of the red light at Jagat Puri colony. Thus, the evidence of
recovery of the katta at the instance of the appellant remains
unquestioned.
54. The ninth plea urged and as noted in para 41
above is again an attempt to clutch on to a straw. That in the
MLC Ex.PW-1/A while recording the history of the injury the
doctor has recorded that the injury is a result of a gunshot,
without naming who shot the injured, is neither here nor
there because the job of the doctor is to note as to how has
the injury been caused and not to go about recording as to
who caused the injury. Who caused the injury is the concern
of the police; to find out the person after investigation. That
some doctors take care to question the patient or his relative
a little more on the historical fact pertaining to the history of
the injury and some question a little less is meaningless in
the context of the requirement of a doctor to record as to
how was the injury sustained and as told by the patient or
the person accompanying the patient.
55. The last submission made and as noted in para
41(j) needs no further discussion in light of our discussion
pertaining to the submission made by learned counsel noted
in para 41(d) above; our discussion being in para 48 above.
We have already penned a fairly lengthy decision and hence
we do not repeat. The injury is indeed directed towards the
chest; the upper part of the chest and cannot be said to be
directed towards a non vital part of the body.
56. The intention of the appellant is clearly revealed in
his conduct. He came armed with a katta (a country made
pistol) and without any provocation fired at Rajiv Jain who
sustained a bullet wound and died in less than 1½ hours.
The intention of an assailant who uses a firearm and the shot
is directed towards the chest has to be, to intend causing the
death of the victim.
57. Before signing off we must record a lapse on the
part of the police in not charging the appellant for having
committed an offence under the Arms Act for the reason he
was in possession of and has used a firearm for which he did
not have any licence. We must also record our anguish at
the cryptic decision written by the learned Trial Judge who
has penned the decision as if he had to but convict the
appellant. The decision which runs into 18 pages has noted
the testimony of the witnesses till page number 10. From
page number 11 onwards till page number 14, the law of
evidence has been copied from a text pertaining to Section 3
and Section 101 of the Evidence Act followed by Section 300
of the Indian Penal Code. A cryptic analysis of the evidence
has been made in the next three pages and that too with
reference to the testimony of PW-2 and of Dr.S.K.Verma PW-
4. Worthwhile or worthless, the submission urged by the
counsel for the accused have to be dutifully noted and dealt
with. The frivolous ones can be summarily rejected as the
frivolous nature thereof would be self evident to any person
with even rudimentary legal knowledge. The ones of
substance have always to be dealt with, after bestowing a
thought thereto, and in the light of the proved facts and the
circumstances of a case.
58. The testimony of PW-2, PW-3, PW-5 and PW-6
corroborate each other that the deceased was shot at, inside
the shop, around 11:15 A.M. on 7.8.2002. Their testimony
corroborates each other that all were present at or near the
place of occurrence at said time. Presence of PW-2 and PW-3
at the spot is thus established. They have witnessed the
crime being committed. There is no infirmity in their
testimony. Testimony of PW-5 further corroborates the
events narrated by PW-2 and PW-3, immediately after the
appellant shot Rajiv Jain. Illustration „A‟ to Section 6 of the
Evidence Act makes, anything said or done by a by-stander
at the time of the offence or so shortly after it as to form part
of the transaction, a relevant fact.
59. We find no merits in the appeal which is
dismissed.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
JANUARY 23, 2009
mm/vk
