Mathan Singh vs State
2009 Latest Caselaw 274 Del

i.18

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Order: 27th January, 2009


+                       CRL.A. 821/2005

       MATHAN SINGH                     ..... Appellant
                Through:       Mr. D.M.Bhalla, Advocate


                               versus


       STATE                              ..... Respondent
                    Through:   Ms. Richa Kapoor, 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. On 9.8.2003 at 7:35 PM, DD Entry No.19-A, Ex.PW-

4/A, was recorded noting the information that an informant has

informed that a husband has shot his wife at House No.B-128,

Gali No.8. The same happens to be the house of the appellant.

2. ASI Darshan Kumar PW-12, SI Lekh Raj PW-4, Const.

Brijvir PW-15, Const. Shyam Lal PW-17 reached the spot

pursuant to the information received. They found blood at two

places. They saw that there were blood stains in and around the

house. Two empty cartridges were seen lying on the floor. The

appellant was found present in his house. ASI Darshan Kumar

and Const. Brijvir remained at the spot and SI Lekh Raj

accompanied by Const. Shyam Lal went to GTB Hospital as they

learnt that two persons who were injured had been taken to the

said hospital.

3. At the hospital, Shakuntala wife of the appellant, was

admitted at 8:50 PM. She was examined by Dr.P.Ram who

declared Shakuntala brought dead as per MLC Ex.PW-19/A.

4. Raj Kumar PW-10, was also admitted at the hospital

and his medical condition was recorded on the MLC Ex.PW-25/A

by Dr.Narender Singh PW-25 as under:-

"1. Multiple punctured wound with lateral fronto parietal region of scalp.

2. Fluctuating swelling over parietal lateral region of scalp."

5. He noted that the patient was conscious and oriented.

Since the patient gave history of the wounds to be the result of

gun shot, Dr.Narender Singh referred Raj Kumar to the senior

resident neuro surgeon.

6. Since Raj Kumar PW-10 was fit for statement, SI Lekh

Raj recorded the statement Ex.PW-4/B of Raj Kumar, in which he

named the appellant as the person who had fired upon his wife

and at which firing even he i.e. Raj Kumar sustained pellet

injuries. On said statement SI Lekh Raj made an endorsement

thereon Ex.PW-4/C at 10:05 PM and sent the same through

Const. Shyam Lal PW-17, for registration of a FIR. The FIR in

question, Ex.PW-5/A, was registered at the police station by HC

Surender Pal PW-5, soon thereafter.

7. Proceeding back to the spot SI Lekh Raj rejoined ASI

Darshan Kumar, who, as noted above, had remained at the spot.

8. At the spot blood stained earth and control earth was

lifted vide seizure memo Ex.PW-1/A. A chappal was seized vide

seizure memo Ex.PW-1/B. A blood stained chunni was seized

vide seizure memo Ex.PW-1/C. Two empty cartridges were

seized vide seizure memo Ex.PW-1/D and sketch thereof was

drawn vide Ex.PW-1/F. A double barrel gun was seized vide

seizure memo Ex.PW-1/E. A rough site plan Ex.PW-1/G of the

spot was prepared.

9. The appellant was arrested vide arrest memo Ex.PW-

1/H at 1:30 AM.

10. Constable/photographer Rattan Singh PW-24, was

summoned who took seven photographs Ex.PW-24/A to Ex.PW-

24/G of the spot; negatives whereof are Ex.PW-24/A-1 to Ex.PW-

24/G-1.

11. The body of deceased Shakuntala was sent for post-

mortem where Dr.S.Lal PW-13, conducted the post-mortem at

11:10 AM on 10.8.2003 and recorded the following ante mortem

injuries on the person of the deceased:-

"ANTE MORTEM INJURY

1. Fire arm Entry Wound 7 x 5 cm, associated with Scattered multiple pallets wound in area of 22 x 16 cm present Rt. back of chest over scapular region 9.0cm below the tip of shoulder and 18.0 cm right to midline. No blackening, tattooing and seigning present around the muscles of posterior axillary wall and then enter the chest cavity through mid axillary line over 3 rd intercostals space causing fracture of 3rd, 4thd and fifth ribs after that enter the Rt lung over middle of upper lobe, just above the Inter Lobular Fissure and some of the pallets are recovered about 2.0 liter of blood present in chest cavity. Some of the pallets pusses under the muscle and finally lodge in front of chest above the breast underneath of injury No.2.

2. Reddish Bruise 13 x 10 cm present on upper Rt. side front of chest just above the breast, 4.0 cm below the mid point of claricle and one cm right to midline.

3. Bruise (Bluish in colour) 9 x 4 cm present on middle of Lt. arm over lateral aspect 11.0 cm below the tip of shoulder and 7.0 cm above the cubital foosae.

4. Bluish Bruise 10 x 5 cm present on lateral aspect of Lt. upper thigh 16.0 cm below the anterior superior gline spine and 23.0 cm above the knee joint.

5. Surgical stitch wound 2.5 cm with 6 stitches present on Lt. side of forehead 3.0 Lt. to midline and 4.0 cm above the middle of Lt. eyebrow."

12. He opined that death was due to haemorrhagic shock

resulting from the ante mortem injury on the chest and lungs

caused by projectile of firearm. He opined that injury No.1 was

sufficient to cause death in the ordinary course of nature. The

salwar and the shirt worn by the deceased were handed over by

him to the police who after seizing the same sent them for

forensic examination to the Forensic Science Laboratory, Govt. of

NCT Delhi.

13. The double barrel gun and the two empty cartridges

which were seized from the spot were sent for forensic

examination to the Forensic Science Laboratory Govt. of NCT

Delhi and on 22.3.2004 the laboratory gave the opinion, Ex.PW-

19/F, as under:-

"RESULT OF EXAMINATION

1. The double barrel breech loading gun 12 bore marked exhibit „F1‟ is designed to fire a standard 12 bore cartridge. It is in working order in its present condition. Test-fire conducted successfully.

2. The 12 bore cartridge cases marked exhibits „EC1 & EC2‟ are fired empty cartridges.

3. Two 12 bore cartridges from laboratory stock were test fired through the right barrel & left barrel of double barrel breech loading gun 12 bore marked exhibit „F1‟ and the test fired cartridge cases were marked as „TC1‟ & „TC2‟ respectively.

4. The individual characteristic of firing pin marks and drag marks present on evidence fired cartridge

cases marked exhibits „EC1‟ & „EC2‟ and on test fired cartridge cases marked as „TC1‟ and „TC2‟ were examined & compared under the Comparison Microscope Model Leica DMC. The marks on „EC1‟ and on „TCI‟ were found identical, the marks on „EC2' and on „TC2‟ were found identical. Hence the exhibits „EC1‟ & „EC2‟ have been fired through the right & left barrel of double barrel breech loading gun 12 bore marked exhibit „F1‟ above.

5. The exhibits „F1‟/‟A1 & A2‟ are firearm/ammunition as defined in the Arms Act, 1959."

14. The blood stained articles seized from the spot as also

the clothes worn by the deceased when she was shot were also

sent to the Forensic Science Laboratory for forensic opinion

which sent a report Ex.PW-19/E on 11.3.2004 opining that blood

of Group-A was found on all the samples sent, save and except

that there was no reaction on the sample of the blood stained

earth. Pertaining to the chappal seized from the spot it was

opined that the blood was human but the group thereof could

not be detected. The clothes of the deceased were reported to

be having blood of Group A thereon.

15. The police recorded the statements under Section

161 Cr.P.C. of the three daughters and a son of the appellant

and the deceased, namely Poonam PW-1, Mamta PW-2, Sonam

PW-3 and Ankit Kumar PW-6.

16. On 17.9.2003 SI Mukesh Kumar, a draftsman, went to

the site and with the help of SI Lekh Raj prepared the site plan

Ex.PW-7/A.

17. Armed with the aforesaid material, the appellant was

sent for trial and as per the charge sheet, the charge against the

appellant was of having murdered Shakuntala and having made

an attempt to murder Raj Kumar.

18. For unexplainable reasons the learned Trial Judge

framed a charge against the appellant vide order dated

24.2.2004 only pertaining to causing death of Shakuntala by use

of a firearm. The appellant was charged of having committed

murder of his wife Shakuntala, an offence punishable under

Section 302 IPC. No charge was framed against the appellant for

the illegal use of a licensed firearm. No charge was framed

against the appellant pertaining to the injuries caused to Raj

Kumar.

19. Before we begin to re-charter the journey in appeal,

we may note at the outset that learned counsel for the appellant

has not disputed that the double barrel gun used was a licensed

fire arm and that the appellant was issued the license in his

name for the same and that the deceased was injured on a bullet

being fired from the said fire arm i.e. does not question the

opinion of the FSL Laboratory as recorded in Ex.PW-19/F and that

he also does not question the report of the said laboratory

recording opinion with respect to the blood group detected on

some of the seized items. Thus, that the deceased was shot at

from the licensed double barrel gun of the appellant is not in

dispute.

20. We begin our re-chartered journey with reference to

the statement Ex.PW-4/B made by Raj Kumar to SI Lekh Raj. It

reads as under:-

"Statement of Raj Kumar S/o Sh. Kripa Ram R/o B-112, Gali No.8, Phase 10, Shiv Vihar, New Delhi aged 38 years.

I along with my family reside at the above noted address and carry on retail business from a shop in the house. I belong to Village Jaitpur, Thana Bhorankala, Distt. Muzaffarnagar, U.P. Opposite my house is the house of Mathan Singh who resides in said house along with his family and is an employee of Delhi Police and that he has with him a licensed gun. Today i.e. 9.8.2003 at around 7:00 PM I was sitting on a charpai at the door of my house. The door of the house of Mathan Singh is opposite the door of my house. Mathan Singh and his wife Shakuntala were fighting. Mathan Singh had a gun in his hand. When Shakuntala was running towards the door to go out Mathan Singh fired a shot from behind which hit Shakuntala and as a result of the same she fell down. Pellets from the bullet hit me on my head and neck as a result whereof I fell down. A police van came to the spot and took me and Shakuntala to GTB Hospital. I learnt that Shakuntala has died. Appropriate action be taken against Mathan Singh."

21. Needless to state the information as recorded in the

statement disclosed the commission of a cognizable offence of

having murdered Shakuntala.

22. At the trial, the children of the appellant and the

deceased, namely Poonam, Mamta, Sonam and Master Ankit

were examined as PW-1, PW-2, PW-3 and PW-6. They did not

support the prosecution. Each one of them stated that they

were not present in the house when their mother was shot at.

Poonam PW-1, Sonam PW-3 and Ankit PW-6 stated that when

their mother was shot at, their father was in the house of their

Bua.

23. Raj Kumar PW-10, was examined on 11.8.2008. He

deposed as under:-

"PW-10 : Sh. Raj Kumar S/o Sh. Kirpa Ram aged 39 years, business-man R/0 B-112, Gali No.8, Phase-10, Shiv Vihar, Karawal Nagar, Delhi, on S.A.

On 9.8.2003 at about 7 p.m. I was sitting outside my house on the cot. House of Mathan Singh is situated opposite/in front of my house where he was residing with his family. Mathan Singh is working in Delhi Police. He is present in the court today. The witness has correctly identifies him. Mathan Singh was having a licensed gun. He and his family were quarrelling with each other on that day. At the time of quarrelling, Mathan Singh was having gun in his hand. When his wife run away outside from the house, Mathan Singh fired on her back. She sustained injuries and fell down. I raised the alarm then he again fired, resulting which I also received

injuries by the pallets. I fell down. Police came at the spot as I informed the PCR. They took me to the GTB Hospital. Wife of the accused Shakuntala were also removed to the hospital.

There I came to know that she died. My statement was recorded by the police which is Ex.PW-4/A which bears my signatures at point A."

24. His cross examination was deferred at the request of

learned counsel for the accused. He was cross examined on

22.3.2005 i.e. after nearly 7 months of his examination-in-chief.

25. In cross examination he started supporting the

appellant, in that, back-tracked from his earlier deposition,

wherein he had deposed that his statement Ex.PW-4/A was

recorded by the police and that it bore his signatures at point A.

He back-tracked from his earlier testimony wherein he had

stated of having witnessed the appellant fire on the back of his

wife and the witness also sustaining pellet injuries. In cross

examination he stated that at the time of the occurrence he

came out of his house when he heard a voice coming from the

house of the appellant and that he did not see anything. He

stated that suddenly something hit him and as a result he fell

unconscious, in that, darkness appeared before his eyes. He

stated that signatures at point A on Ex.PW-4/B were not his. He

denied having made any statement to the police. He stated that

on 11.8.2004 i.e. when he deposed as the witness of the

prosecution the IO met him outside the Court and made him

read the statement Ex.PW-4/B with instructions that he was to

give evidence in light of what has been recorded in Ex.PW-4/B.

26. Noting that the witness was turning turtle, the Court

examined Raj Kumar and drew his attention to his deposition

recorded on 11.8.2004. He was asked to explain the variation in

his stand and in particular of his signatures on Ex.PW-4/A at

point A. He responded: May be I had signed Ex.PW-4/A as I was

not fully conscious at that time. My earlier statement before the

Court was told to me by the IO and today whatever I have stated

today is correct.

27. The appellant examined his sister Hardesh Devi DW-

1, who deposed that on 9.8.2003 appellant was in her house for

a „Rakhi‟ to be tied in advance because 12.8.2003 i.e. the day of

Raksha Bandhan, was a little prior to Independence Day and that

the appellant had told her that being on duty on 12.8.2003 he

could not make a visit to her house for Raksha Bandhan

ceremony to be performed.

28. In view of the fact that the two FSL reports, noted

hereinabove, were not questioned by the appellant before the

learned Trial Judge; it being not in dispute that the weapon of

offence is a licensed gun, license holder whereof is the appellant;

learned Trial Judge has, with reference to the testimony of PW-

10, held that the charge against the appellant of having

murdered his wife stands fully established.

29. The plea of alibi has been negated by the learned

Trial Judge with reference to the deposition of the police

witnesses who deposed that the appellant was in the house

when they reached and that he was apprehended from the spot.

Learned Trial Judge has believed the testimony of PW-10 as per

his examination-in-chief.

30. At the hearing held today, Sh.D.M.Bhalla learned

counsel for the appellant, has made various submissions which

are being noted one by one and are being dealt with

simultaneously rather than to make a list of the submissions and

thereafter deal with the same.

31. Referring to the testimony of PW-4 SI Lekh Raj

learned counsel submits that PW-4 SI Lekh Raj, has deposed that

on 9.8.2003, DD No.19-A, Ex.PW-4/A, was entrusted to him at

7:00 PM, but the DD entry was recorded at 7.35 PM. Counsel

further urges that as per SI Lekh Raj he left for the site along

with ASI Darshan Kumar, Const. Sharma and Const. Brijvir, but

the fact was that no Const. Sharma went to the spot. Thus,

counsel urges that PW-4 has deposed falsely.

32. The submissions are neither here nor there.

Deposing of an incident after more than a year thereof can

always result in a memory lapse with respect to the exact time.

7.30 PM being stated to be 7.00 PM as the time of departure is a

trivial discrepancy and has to be ignored. Further, that SI Lekh

Raj said that Cont.Sharma accompanied him along with ASI

Darshan Kumar and Const. Brijvir, the fact of the matter being

that Const. Sharma was not a part of the police team is again the

result of an imperfect recollection. In this connection we note

that SI Lekh Raj has categorically deposed that when they

reached the house of the appellant, ASI Darshan Kumar and

Const. Brijvir remained at the spot. He has further deposed that

after he recorded the statement of Raj Kumar at the hospital he

sent the same through Const.Shyam Lal for getting the case

registered.

33. Learned counsel has again referred to the testimony

of SI Lekh Raj where he has further deposed that when they

reached the house immediately on receipt of DD No.19-A,

Mathan Singh, the appellant was present in the house. He has

further deposed that the appellant was arrested vide arrest

memo Ex.PW-1/H, which records the time of arrest at 1:30 AM

(the next day). Learned counsel draws our attention to the fact

that the appellant was lodged in the police lock up at around

4:00 AM on 10.8.2003. With reference to the testimony of ASI

Darshan Kumar PW-12 who has deposed that accused Mathan

Singh was in his custody, counsel urges that it is apparent that

the appellant was apprehended as per said witness much prior

to 1:30 AM the next day, and hence the arrest memo Ex.PW-1/H

becomes a doubtful document and probablizes the defence.

Learned counsel draws our attention to the statement of the

appellant under Section 313 Cr.P.C. wherein he stated that he

was at the house of his sister and learnt about his wife being

shot when his daughter Poonam gave a telephonic call and that

he immediately reached GTB Hospital and that he was illegally

arrested by the police when he went to the hospital.

34. The submissions afore-noted have somewhat baffled

us; we confess. We do not understand the logic thereof. We do

not understand as to what consequences flow. No recovery has

been made from the appellant when he was apprehended. If the

place of arrest was to be doubted, the recovery would have

come under a cloud. This is not the case here. Besides, what

has been stated by the police officers is that when they reached

the spot the appellant was present. He was not allowed to leave

the spot by ASI Darshan Kumar till SI Lekh Raj came back and

after the FIR was registered, the appellant was formally arrested

at the spot. That he was detained in the police lock up at the

police station at around 5.00 AM is obviously a result of the

police personnel completing the proceedings at the spot and

thereafter bringing the appellant to the police station and

putting him inside the police lock up.

35. With reference to the testimony of Raj Kumar PW-10,

learned counsel draws our attention to his statements made in

cross examination which we have already noted in para 25

hereinabove. In addition, counsel points out that the witness

stated that the plinth of the house of the appellant is above the

plinth level of his house and that unless one stood up at the

plinth level of his house one could not see anything inside the

house of the appellant Mathan Singh. Counsel urges that the

public prosecutor did not cross examine Mathan Singh with

respect to statements made in cross examination and hence

whatever was stated by Raj Kumar in cross examination had to

be accepted. Counsel urges that if testimony of PW-10 Raj

Kumar has to be ignored, there is no evidence to link the

appellant with the murder of his wife. Counsel further draws our

attention to the testimony of Raj Kumar, who in cross

examination, stated that several persons used to visit the house

of the appellant. Counsel urges that the possibility of an

outsider entering the house; picking up the licensed firearm of

the appellant; thereafter shooting the wife of the appellant

cannot be ruled out. The last submission made is with reference

to the site plan Ex.PW-7/A which shows the place where

Shakuntala was shot at is, as recorded, at point „B‟. The same is

just at the entrance of the house of the appellant i.e. at the point

where the gali and the boundary of the house meet. With

reference to the testimony of PW-10 learned counsel urges that

if PW-10 has to be believed as per what he stated during

examination-in-chief, the shot was fired when the deceased was

outside the house. Learned counsel urges that the site plan

discredits said testimony of PW-10.

36. As noted by us herein above PW-10 Raj Kumar was

examined on 11.8.2008 and deposed fully in favour of the

prosecution. He admitted having made the statement Ex.PW-4/A

and having signed the same at point „A‟ thereon. He was cross-

examined after nearly seven months. He turned turtle. What

has happened is obvious. He has been won over or threatened

to depose to the contrary by the appellant.

37. The instant case brings out the importance of not

deferring the cross-examination of an eye-witness and the need

thereof to be conducted expeditiously. We hope and expect that

henceforth, the Trial Judges would ensure that eye-witnesses are

cross-examined the same day when they depose or at best

within the same week.

38. In any case, that Raj Kumar lied when he was cross-

examined is evident from the fact that he received superficial

pellet injuries as per the MLC Ex.PW-25/A. The doctor who

examined him namely Dr.Narender Singh PW-25 has recorded

thereon that the patient was conscious and oriented. He proved

the MLC when he appeared as the witness of the prosecution.

No suggestion was put to PW-25 that Raj Kumar was

unconscious or unfit for making a statement.

39. We note that when questioned by the Court, Raj

Kumar somewhat retracted his steps and did not deny that the

signatures at point „A‟ were not his. He tacitly admitted that the

signatures were his.

40. The argument pertaining to the site plan and the

place where Shakuntala was shot being shown at point „B‟ and

the statement of Raj Kumar in examination-in-chief that

Shakuntala was shot at outside the house is neither here nor

there because point „B‟ is at the door of the house opening on to

the road. A layperson would obviously say that Shakuntala was

shot at outside the house. That the plinth level of the house of

the appellant and that of the witness are different, is again a

version of PW-10, during his cross-examination. The same has

to be taken with a pinch of salt. We note that when the

draftsman SI Mukesh Kumar PW-7 was examined and he proved

the site plan, no suggestion was given to him that the plinth

level of the two houses is different. That PW-10 stated that due

to the difference in the plinth level of the two houses, one could

not from his house see inside the house of the appellant unless

one stood up, is neither here nor there because Raj Kumar

categorically deposed during examination-in-chief that he saw

the appellant fire at his wife.

41. The residual argument as noted in para 35 above that

the possibility of some intruder entering the house and using the

fire arm to shoot at Shakuntala has to be noted and rejected.

The appellant is the licensed owner of the weapon of offence.

He admits the said fact. That his wife was shot at from the said

weapon of offence is also admitted by him. He has not

explained as to where he used to keep the licensed gun. He has

not explained as to where he used to keep the ammunition

thereof. The appellant was a Constable in the police and knew

the importance of securing the security of his licensed gun so

that the same does not fall in wrong hands. The plea of an

intruder using the gun is nothing but a hog-wash.

42. The plea of alibi has to fail because of the testimony

of PW-4, PW-12, PW-15 and PW-17, the four police officers who

went to the site of occurrence on receipt of DD No.19-A and have

deposed about the appellant being present in his house and

apprehended from his house. That the children of the appellant

have deposed to the contrary is explainable. They have been

won over by the appellant.

43. Before concluding we may note that where a licensed

fire arm is used as a weapon of offence, unless the license holder

thereof satisfactorily explains that the possession thereof was

with some other person the presumption would be that he has

used the weapon of offence more so when his presence at the

scene of the offence stands established.

44. We find no merit in the appeal. The same is

dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

JANUARY 27, 2009 mm