Delhi High Court
Gajraj vs State on 18 March, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 24.02.2009
Judgment delivered on: 18.03.2009
+ CRL.A. No.461/2008
GAJRAJ ...Appellant
Through : Mr. Siddharth Luthra, Sr. Adv. with
Mr. Amit Bhardwaj, Mr. Sunil
Kumar and Mr. Mohd. Faraz
versus
STATE ...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.
1. On 23.07.2005 at about 18.25 P.M. DD Entry No.31A, Ex.PW-
16/A, was recorded by the duty constable at Police Station Krishna
Nagar that a dead body is lying in a house bearing Municipal No.F-
9/33, Krishna Nagar, opposite Swaran Cinema.
2. This swung the police into action. ASI Udai Pal Singh PW-16,
accompanied with Const. Surender Pratap PW-15, reached the spot.
Simultaneously, other police officers, namely SI Mohinder Singh PW-5
and Inspector B.S.Dahiya PW-25, who had also received the
information, reached the spot.
3. A dead body, which was later identified as that of one Harish
Kumar (hereinafter referred to as the "deceased"), having bullet
wounds on the head and abdomen was found, lying on a cot, in a
room on the first floor of the said house.
4. Since no eye-witness was found present at the spot, Inspector
B.S.Dahiya PW-25, made an endorsement, Ex.PW-25/A, on the copy of
the DD Entry Ex.PW-16/A, and forwarded the same through Const.
Surender Pratap PW-15, to the police station for registration of an FIR.
PW-15 took Ex.PW-25/A to the police station and handed over the
same to HC Murari Lal PW-2, who recorded the FIR No.297/05, Ex.PW-
2/B.
5. At the spot, PW-25 prepared the site plan, Ex.PW-25/B,
recording therein the place at point 'A' where the dead body was
found. Blood was found staining the bed sheet which was spread on
the cot where the dead body was lying. The said bed sheet was
seized vide memo Ex.PW-25/C. Chance finger-prints were attempted
to be lifted. (Vide report Ex.PW-5/A, PW-5 opined that no chance
prints could be lifted from the spot.)
6. Const. Ompal Singh PW-6, from the crime team was summoned.
16 photographs, Ex.PW-6/1 to Ex.PW-6/16; negatives whereof are
Ex.PW-6/17 to Ex.PW-6/32 were taken.
7. Since the deceased was found dead at the spot, his body was
sent to the mortuary, Sabzi Mandi, where Dr.K.Goel PW-1, conducted
the post-mortem on 24.07.05 and gave his report, Ex.PW-1/A, which
records that two external injuries were found on the person of the
deceased; that the cause of the death was haemorrhagic shock
consequent to injuries to blood vessels and abdominal viscera with
element of cranio cerebral damage as a result of fire arm injuries,
which were rifled; that both injuries caused by a fire-arm, were
individually and collectively sufficient to cause death in the ordinary
course of nature.
8. PW-1 recovered one bullet each from the left temporal and
abdominal region of the body of the deceased. The clothes worn by
the deceased; his blood sample on a gauze and his viscera was
preserved. After the post-mortem the same i.e. the two bullets, the
blood stained clothes of the deceased, his blood sample on a gauze
and his viscera were handed over by PW-1 to Inspector B.S.Dahiya
PW-25, and the same were seized vide memo Ex.PW-28/A.
9. During the course of investigation, Minakshi PW-23, the wife of
the deceased disclosed that the deceased was having a sum of
Rs.3,00,000/-, a licensed revolver and a mobile phone having number
9871879824 with him when he left Chandigarh on the day he was
found murdered in Delhi. Inspector B.S.Dahiya PW-25, made inquiries
and learnt that the said mobile number was being used in a handset
having IEMI No.35136304044030. PW-25 put the said IEMI number
under surveillance. The surveillance revealed that the SIM card
having number 9818480558, which number is registered in the name
of the accused, is being used in the said handset i.e. the handset with
IEMI No.35136304044030. In fact the said SIM card i.e. of number
9818480558 was being used on the handset having IEMI
No.35136304044030 a little after 19 hours of the dead body of the
deceased being found.
10. Since the use of the handset of the deceased by the accused
was a strong suspicious circumstance against the accused, Inspector
B.S.Dahiya PW-25, accompanied with Const. Sartaj Ahmad PW-17,
Const. Devender PW-20 and HC Rajan Singh PW-21, went to the
residence of the accused. Needless to state the said address was
provided by the service provider i.e. Bharti Airtel with reference to the
mobile number 9818480558 since this number was a post paid
number in the name of the accused. The accused was arrested at
2.30 P.M. on 06.08.2005 as per arrest memo Ex.PW-13/A. PW-25
interrogated the accused in the presence of the said police officers,
Yuvraj PW-12, the brother of the accused and Veer Singh PW-13, the
father of the accused. The accused made a disclosure statement
Ex.PW-17/A confessing his guilt and disclosed that he can get
recovered the mobile phone of the deceased and the revolver with
which he had caused the death of the deceased; that he had
deposited a sum of Rs.9,000/- given to him by the deceased in his i.e.
the bank account of the accused.
11. Pursuant thereto, the accused led the said police team
consisting of Inspector B.S.Dahiya PW-25, Const. Sartaj Ahmad PW-
17, Const. Devender PW-20 and HC Rajan Singh PW-21 to a box-bed
in a room situated on the first floor of the house and got recovered a
revolver from the box of the said bed. The said revolver was having
two live and two spent cartridges in its chamber. The revolver and the
cartridges were seized vide memo Ex.PW-12/C. PW-25 prepared the
sketch Ex.PW-12/A of the said revolver and the cartridges. Thereafter
the accused got recovered three mobile phones, one of which was
having IEMI No. 35136304044030. The said three mobile phones were
seized vide memo Ex.PW-12/B.
12. The blood stained clothes, blood sample and viscera of the
deceased were sent to a serologist for a serological test. Vide FSL
reports, Ex.PW-29/X1 and Ex.PW-29/X2, it was opined that blood
group of the deceased was 'B' and that human blood of 'B' group was
detected on the bed-sheet seized at the spot and the clothes of the
deceased.
13. The two bullets recovered from the body of the deceased; the
revolver recovered at the instance of the accused and the cartridges
found in the chamber of the said revolver were sent to a ballistic
expert for his opinion. Vide report dated 18.05.2006 of the Ballistics
Division of the FSL, it was opined that the revolver recovered at the
instance of the accused is a .32" calibre firearm designed to fire
standard .32" cartridge and is in a working condition; that the two
spent cartridges found in the chamber of the revolver recovered at
the instance of the accused have been fired through the said
revolver; that the one bullet recovered from the body of the deceased
has been discharged through the revolver recovered at the instance
of the accused; that no opinion could be given in respect of the
discharge of the other bullet recovered from the body of the
deceased as the same is in a deformed condition.
14. Armed with the aforesaid material a charge sheet was filed
accusing the appellant of having murdered the deceased; trespassing
into the property of the deceased; and robbing the deceased. The
charges were framed against the appellant for having committed
offences punishable under Sections 302, 380, 404 and 452 IPC.
15. At the trial, apart from examining the afore-noted police officers
who proved the receipt of the initial information, the police visiting
the site of the occurrence, registration of FIR, recording of statements
of witnesses during investigation, seizure memos, disclosure
statement of the accused, photographs taken of the site, preparation
of the plan of the site, the doctor who conducted the post-mortem of
the deceased, the official from the FSL who prepared the FSL reports
Ex.PW-29/A and Ex.PW-29/B, the wife of the deceased, a doctor who
had treated the deceased, an official from the bank, an official from
the cellular company, the father and the brother of the accused were
examined.
16. Minakshi PW-23, the wife of the deceased, deposed that she
and the deceased had shifted from Delhi to Chandigarh on account of
a dispute between the deceased and his sister-in-law; that the
deceased had returned to Delhi on 27.02.05 while she continued to
reside at Chandigarh; that the deceased used to stay in the house of
his cousin at Krishna Nagar during his visit at Delhi; that she had
spoken to the deceased on telephone No. 9871879824 at around
12.00 P.M. and 3.00 P.M. on the date of the death of the deceased;
that the deceased was having a mobile phone, a licensed revolver
and a sum of Rs.3,00,000/- with him when he left Chandigarh.
17. Dr. Naresh Dang PW-4, deposed that certificate Ex.PW-4/A
recording that the deceased was suffering from tuberculosis of hip
joint was issued by him.
18. G.L. Nim PW-18, an official from State Bank of India, deposed
that the accused was maintaining an account at Khuraji Khas branch
of the said bank and that the passbook Ex.P-1 evidencing that the
accused had deposited a sum of Rs.9,000/- in his bank account on
25.07.05 was issued to the accused in respect of his account with the
bank.
19. R.K. Singh PW-22, an official from Bharti Airtel, deposed that
mobile number 9871879824 was registered in name of one Shivani
Aggarwal, r/o 1/2, East Krishna Nagar, Delhi and that mobile number
9818480558 was registered in name of the accused. He proved the
call records Ex.PW-22/A and Ex.PW-22/B pertaining to the mobile
numbers 9871879824 and 9818480558 respectively.
20. The call record Ex.PW-22/A pertaining to mobile number
9871879824 evidences that the said number was being used in a
handset having IEMI No.350608101231170, on 10.07.05 and
11.07.05; that the said number was being used in a handset having
IEMI No.351356304044030 between the dates 12.07.05 to 23.07.05;
that two calls from Chandigarh were received by the user of the said
number on 23.07.2005 at 12:04:06 and 14:22:30 respectively; that
the said mobile number was used for the last time on 23.07.2005 at
15:27:52.
21. The call record Ex.PW-22/B evidences that the number
9818480558 was being used in a handset having IEMI No.
350608101231170 between the dates 06.05.05 and 23.07.05 except
10th and 11th July 2005; that the said number was being used in a
handset having IEMI No.351356304044030 between the dates
24.07.05 and 02.08.05. (It is relevant to note that the deceased died
on 23.7.2005 and the said handset was used on the SIM card of the
deceased i.e. the SIM card pertaining to the mobile number
9871879824).
22. Yuvraj PW-12, the brother of the accused, deposed that on
06.08.2005, 10-11 police officials came to his house and had
searched the first floor portion of his house. That thereafter he was
taken to the police station where he signed certain papers under
threat by the police officers. That nothing was recovered from his
house or on the personal search of the accused.
23. Gajraj PW-13, the father of the accused, deposed that on
06.08.2005 he told the police officers who had come to his house that
the accused resides in a room on the first floor of the house. That
thereafter the police searched the room of the accused for a period of
15-20 minutes. That nothing was recovered from the house.
24. The accused, in his statement under Section 313 Cr.P.C. denied
everything. He stated that one Sachin against whom he had filed a
suit for permanent injunction, acting in connivance with the police
officers, had falsely implicated him in the present case.
25. The accused did not lead any evidence in defence.
26. Holding that the call record Ex.PW-22/A evidences that two calls
from Chandigarh were received on the mobile number 9871879824 in
the afternoon of 23.07.2005, corroborates the testimony of the wife of
the deceased who was staying at Chandigarh on 23.07.2005 that she
had talked to the deceased over telephone in the afternoon of
23.07.2005, which in turn establishes that the mobile number
9871879824 was being used by the deceased on the date of his
death; that the call records Ex.PW-22/A and Ex.PW-22/B establishes
that the handset having IEMI No. 350608101231170, which handset
was used by the accused on a regular basis, was used by the
deceased on 10th and 11th July, 2005 and that this establishes that the
deceased and the accused were in touch with each other; the call
record Ex.PW-22/B evidences that the handset which was used by the
deceased on the date of his death was in possession of the accused
soon after the death of the deceased and that the same is a strong
incriminating circumstance against the accused; that the prosecution
has been able to establish that the handset which was used by the
deceased before his death and the revolver which was the weapon of
offence were recovered at the instance of the accused; that the
accused has not been able to explain the deposit of Rs.9,000/- made
by the accused in his bank account soon after the death of the
deceased; that the FSL report establish that the revolver recovered at
the instance of the accused was the weapon of the offence; that the
post-mortem report of the deceased evidences that two successive
injuries were inflicted by the accused on the person of the deceased
which establishes that the deceased had an intention to kill the
deceased; vide judgment and order dated 21.04.2008, the accused
has been convicted for committing offences punishable under
Sections 302/404 IPC. However, holding that there is no evidence to
establish that he accused had trespassed into the property where the
deceased was found dead, the learned Trial Court had acquitted the
deceased of charges under Sections 380/452 IPC. Vide order dated
28.04.08, the accused has been sentenced to undergo imprisonment
for life and pay a of fine of Rs.50,000/-, in default, to undergo RI for
three years for offence punishable under Section 302 IPC; RI for three
years and pay a fine of Rs.5,000/-, in default to undergo RI for four
months for offence punishable under Section 404 IPC.
27. At the hearing of the appeal, learned senior counsel for the
appellant assailed the impugned judgment on following 4 broad
counts:-
A The evidence of the witnesses to the alleged recoveries
effected at the instance of the accused is unconvincing.
B The evidence adduced by the prosecution relating to handset
having IEMI No.35136304044030 does not connect the accused with
the commission of the crime with which he is charged.
C The evidence adduced by the prosecution relating to the
revolver allegedly recovered at the instance of the accused is
seriously defective and therefore not sufficient either to conclude that
the said revolver was the weapon of offence or that it was recovered
at the instance of the accused.
D The prosecution has not been able to establish the motive of
the accused for committing the murder of the deceased.
EVIDENCE OF WITNESSES TO THE RECOVERIES
28. Under this head, the gist of arguments advanced by the learned
senior counsel was that there are serious contradictions in the
evidence of the witnesses to the alleged recoveries effected at the
instance of the accused. The contradictions pointed out by the
counsel are being enumerated herein under:-
i. The first contradiction pointed out was regarding the number of
cartridges present in the revolver which was allegedly recovered at
the instance of the accused. Const. Devender PW-20, HC Rajan Singh
PW-21, Inspector B.S.Dahiya PW-25, had deposed that two live and
two spent cartridges were recovered from the chamber of the
revolver recovered at the instance of the accused whereas Const.
Sartaj Ahmad PW-17, had deposed that two live and one spent
cartridges were recovered from the said revolver.
ii. The second contradiction pointed out was regarding the
circumstances in which the police officers met the accused at his
residence. Const. Sartaj Ahmad PW-17, HC Rajan Singh PW-21 and
Inspector B.S.Dahiya PW-25, had deposed that the accused had
opened the door of his house whereas Const. Devender PW-20, had
deposed that the father of the accused had opened the door of the
house.
iii. The third contradiction pointed out was regarding the presence
of the family members of the accused in the house at the time of his
arrest. Const. Sartaj Ahmad PW-17, had deposed that only the father
and brother of the accused were present in the house whereas HC
Rajan Singh PW-21, had deposed that the father, brother, wife and
two children of the deceased were present in the house.
iv. The fourth contradiction pointed out was regarding the place of
recovery of the mobile phones. HC Rajan Singh PW-20, had deposed
that nokia and samsung mobile phones were recovered from the
pockets of the accused and panasonic mobile phone was recovered
from underneath a mattress whereas seizure memo Ex.PW-12/B
records that panasonic and samsung mobile phones were recovered
from the pockets of the accused and nokia mobile phone was
recovered from underneath a mattress.
v. The last contradiction pointed out was with reference to the
place of the recovery of the revolver. Const Sartaj Ahmad PW-17 and
Const. Devender PW-20, had deposed that the revolver was
recovered from a box in the room on the first floor of the house; HC
Rajan Singh PW-21, had deposed that the revolver was recovered
from the double bed lying in a room on the first floor of the house;
Inspector B.S.Dahiya PW-25, had deposed that the revolver was
recovered from a box of the bed lying in a room on the first floor of
the house.
29. In dealing with the said submission, it would be apposite to
refer the undernoted observations of the Supreme Court in a recent
decision in Criminal Appeal No.456/2002 Jayaseelan vs. State of Tamil
Nadu decided on 11.02.2009:-
".......As observed by this Court in State of Rajasthan v. Smt
Kalki and Anr. (1981) 2 SCC 752, normal discrepancies in
evidence are those which are due to normal errors of
observation, normal errors of memory due to lapse of time,
due to mental disposition such as shock and horror at the
time of occurrence and those are always there however
honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not
expected of a normal person. Courts have to label the
category to which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of a
party's case, material discrepancies do so. These aspects
were highlighted in Krishna Mochi and Ors. v. State of Bihar
etc. AIR 2002 SC 1965 and in Sucha Singh v. State of
Punjab AIR 2003 SC 3617. It was further illuminated in the
Zahira H. Sheikh v. State of Gujarat AIR 2004 SC 346; Ram
Udgar Singh v. State of Bihar (2004) 10 SCC 443 ; Gorle S.
Naidu v. State of Andhra Pradesh (2003) 10 SCC 449;
Gubbala Venugopalswamy v. State of Andhra Pradesh
(2004) 10 SCC 120 and in Syed Ibrahim v. State of A.P. AIR
2006 SC 2908."
30. It is apparent that minor contradictions have to be ignored. The
so-called contradictions are minor. How many persons were present
in the house and who opened the door of the house are wholly
irrelevant. Pertaining to the recovery of the mobile phone, we shall
be dealing with the issue a little later.
31. The fifth contradiction pointed out by the learned senior counsel
regarding the place of recovery of the revolver can be dealt with
reference to the seizure memo Ex.PW-12/C which records that '.....ek
box ko khol kar ek adad revolver nikal kar pesh kiya....', meaning
thereby that the bed in question was a box-bed and the revolver was
recovered from the box of the bed. It is clear that the witnesses to the
said recovery had meant to depose that the revolver was recovered
from the box of the bed and therefore, the afore-noted contradiction
pointed out by the learned counsel is not a contradiction in a real
sense but an ostensible one created on account of incorrect
expressions used by the witnesses.
EVIDENCE RELATING TO MOBILE PHONE HAVING IEMI NO.
35136304044030
32. The most important piece of evidence brought on record by the
prosecution to connect the accused with the commission of the crime
was that the handset having IEMI No.35136304044030 was being
used by the deceased just before his death as evidenced from the call
record Ex.PW-22/A; that the said handset was in the possession of the
accused soon after the death of the deceased, inasmuch as, call
record Ex.PW-22/B evidences that the mobile number 9818480558,
which number was registered in the name of the accused, was being
used in the said handset with effect from 24.07.2005; the factum of
the possession of the said handset by the accused is further
reinforced by the fact that the said handset was recovered from his
house at the instance of the accused. Thus, independent of the
physical recovery of the handset at the instance of the accused,
through the medium of the call details Ex.PW-22/A and Ex.PW-22/B,
there is unimpeachable evidence that the mobile phone of the
deceased came in possession of the appellant within 19 hours of the
death of the deceased.
33. The learned senior counsel argued that the evidence pertaining
to the call details is vitiated for the reasons (i) the call records Ex.PW-
22/A and Ex.PW-22/B have not been proved in accordance with the
law; (ii) the prosecution has not been able to establish that the mobile
number 9871879824 was being used by the deceased soon before his
death. On the contrary, there is evidence to show that the deceased
had no connection with the said mobile number inasmuch as the said
number was registered in the name of one Shivani Aggarwal; (iii) the
IEMI Nos. of the handset appearing in the call records Ex.PW-22/A and
Ex.PW-22/B do not tally with the IEMI numbers recorded in the seizure
memo Ex.PW-12/C, therefore, it cannot be said that the handsets
allegedly recovered at the instance of the accused were the ones
which were used by the deceased before his death.
34. While elaborating the submission that the call records Ex.PW-
22/A and Ex.PW-22/B have not been proved in accordance with law,
learned senior counsel argued that the contents of electronic record
could be proved only in the manner prescribed by Sub-section (4) of
Section 65B of the Evidence Act i.e. by issuance of a certificate signed
by a person occupying a responsible position in relation to the
operation of the computer or by a person responsible for the
management of the calls recorded by the computer. Contention urged
was that Ex.PW-22/A and Ex.PW-22/B, being the computer generated
call details of two mobile phones, were not proved as required by law
and hence could not be relied upon.
35. A similar contention was advanced before a Division Bench of
this Court in the decision reported as State v Mohd. Afzal & Ors 2003
VII AD (Delhi) 1 and was repelled by the Court in the following terms:-
"276. The normal rule of leading documentary evidence is
the production and proof of the original document itself.
Secondary evidence of the contents of a document can
also be led under Section 65 of the Evidence Act. Under
Sub-clause "d" of Section 65, secondary evidence of the
contents of a document can be led when the original is of
such a nature as not to be easily movable. Computerised
operating systems and support systems in industry cannot
be moved to the court. The information is stored in these
computers on magnetic tapes (hard disc). Electronic record
produced there from has to be taken in the form of a print
out. Sub-section (1) of Section 65B makes admissible
without further proof, in evidence, print out of a electronic
record contained on a magnetic media subject to the
satisfaction of the conditions mentioned in the section. The
conditions are mentioned in Sub-section (2). Thus
compliance with Sub-section (1) and (2) of Section 65B is
enough to make admissible and prove electronic records.
This conclusion flows out, even from the language of Sub-
section (4). Sub-section (4) allows the proof of the
conditions set out in Sub-section (2) by means of a
certificate issued by the person described in Sub-section 4
and certifying contents in the manner set out in the sub-
section. The sub-section makes admissible an electronic
record when certified that the contents of a computer print
out are generated by a computer satisfying the conditions
of Sub-section 1, the certificate being signed by the person
described therein. Thus, Sub-section (4) provides for an
alternative method to prove electronic record and not the
only method to prove electronic record." (Emphasis
supplied)
36. In the decision reported as State v Navjot Sandhu @ Afsan Guru
(2005) 11 SCC 600 the Supreme Court affirmed the afore-noted view
of this Court in the following terms:-
"......It may be that the certificate containing the details in
sub-section (4) of Section 65B is not filed in the instant
case, but that does not mean that secondary evidence
cannot be given even if the law permits such evidence to
be given in the circumstances mentioned in the relevant
provisions, namely Sections 63 and 65."
37. In view of the afore-noted dictum of law, we find no merit in the
submission of the learned senior counsel that the call records Ex.PW-
22/A and Ex.PW-22/B have not been proved in accordance with law.
38. With reference to the submission that the prosecution has not
been able to establish that the deceased was using mobile number
9871879824 in the handset having IEMI No.35136304044030
particularly when the said number was registered in the name of one
Shivani Aggarwal, it would be relevant to note the testimony of
Minakshi PW-23, the wife of the deceased, who was residing at
Chandigarh on the day the deceased died. She categorically deposed
that she had talked to the deceased two times over telephone in the
afternoon on 23.07.05. The call record Ex.PW-22/A which evidences
that two calls from Chandigarh were received on the mobile number
9871879824 in the afternoon of 23.07.2005 lends sufficient
corroboration to the case of the prosecution that the deceased was
using the said number in the handset having IEMI No.3513630404430
on the date of his death. It is not unusual in India to conduct one's
affairs in a most un-officious manner. Friends using mobile phones of
their friends, relatives of their relatives and inter se even
acquaintances are not unknown in India.
39. With reference to the argument relating to IEMI numbers not
tallying pertaining to the last digit of the numbers, it is relevant to
note that the first fourteen digits of the IEMI Nos. written in the
seizure memo tallies with the first fourteen digits of the IEMI Nos.
recorded in the call records Ex.PW-22/A and Ex.PW-22/B. The
controversy pertains to the last digit recorded in the seizure memo
when the handset was recovered and the last digit recorded in the
call details provided by the service provider.
40. The same question arose before the Supreme Court, in the
decision reported as State (NCT of Delhi) v Navjot Sandhu 2005 Cri
L.J. 3950. At page 4026, the Supreme Court dealt with the said issue
as under:-
"One more point has to be clarified. In the seizure memo
(Ext. 61/4), the IMEI number of Nokia phone found in the
truck was noted as ...52432. That means the last digit '2'
varies from the call records wherein it was noted as
...52430. Thus, there is a seeming discrepancy as far as the
last digit is concerned. This discrepancy stands explained
by the evidence of PW 78 - a computer Engineer working
as Manager, Siemens. He stated, while giving various
details of the 15 digits, that the last one digit is a spare
digit and the last digit, according to GSM specification
should be transmitted by the mobile phone as '0'......."
41. In view of the decision in Navjot Sandhu's case (supra), we hold
that the factum of the fifteenth digit of the IEMI Nos. recorded in the
seizure memo Ex.PW-12/C and the call records Ex.PW-22/A and
Ex.PW-22/B not tallying is of no consequence.
EVIDENCE RELATING TO REVOLVER
42. Under this head, learned senior counsel argued that the
evidence adduced by the prosecution relating to the revolver
allegedly recovered at the instance of the accused is seriously
defective for the reasons (i) prosecution has not been able to
establish that the revolver allegedly recovered at the instance of the
accused belonged to the deceased; (ii) Inspector B.S.Dahiya PW-25,
had falsely deposed regarding the seizure of the license Ex.PW-25/E
pertaining to the revolver in the name of the deceased; (iii) the
prosecution has not led any evidence to establish that the room from
which the revolver was recovered was in the exclusive possession of
the accused; (iv) prosecution has not been able to conclusively
establish that the revolver recovered at the instance of the accused
was the weapon of offence inasmuch as the second bullet recovered
from the body of the deceased did not match with the said revolver;
(v) the prosecution has not been able to establish that the said
bullets were the ones which were recovered from the body of the
deceased bullets which were examined by the FSL for the reason the
bullets examined by the FSL were not shown to the doctor who had
conducted the post-mortem.
43. Elaborating the argument that the evidence led by the
prosecution does not establish that the revolver allegedly recovered
at the instance of the accused belonged to the deceased. Learned
counsel for the appellant drew the attention of the court to the arms
and ammunition license Ex.PW-25/E possessed by the deceased
which showed that the deceased was possessing two arms bearing
Nos.35866 and A-7440. He argued that the fact that the seizure
memo Ex.PW-12/C does not record the number of the revolver
recovered at the instance of the accused coupled with the fact that
Inspector B.S.Dahiya PW-25, had deposed that he can neither affirm
nor deny that the license Ex.PW-25/E pertains to the said revolver
seized vide memo Ex.PW-12/C establishes that the said revolver did
not belong to the deceased.
44. We need not examine whether or not the prosecution has been
able to establish that the revolver which was recovered at the
instance of the accused belonged to the deceased, for the reason, the
incriminating circumstance against the accused is not that the said
revolver belonged to the deceased, but that the said revolver was the
weapon with which the accused had caused the death of the
deceased. It was an additional circumstance that the revolver belong
to the deceased and an inference of guilt against the accused would
be reinforced if he could not explain as to how he came to possess
the revolver. The FSL report dated 18.05.2006 has conclusively
established that the said revolver was the weapon of the offence
inasmuch as it has been opined in the report that one bullet
recovered from the body of the deceased was fired through the said
revolver. It is immaterial whether the said revolver belonged to the
deceased or not.
45. Learned senior counsel further argued that the evidence on
record establishes that Inspector B.S.Dahiya PW-25, had falsely
deposed to the effect that he had seized the license Ex.PW-25/E of
the deceased at the spot in view of the fact that no seizure memo
was prepared in said respect and that none of the police officials who
were present at the spot had deposed to the said effect.
46. Nothing much turns on the argument of the counsel that
Inspector B.S.Dahiya PW-25, had falsely deposed that he had seized
license Ex.PW-25/E at the spot. The said license was a piece of
evidence which could establish that the revolver recovered at the
instance of the accused belonged to the accused. However, the said
evidence has become superfluous for the reason whether or not the
revolver recovered at the instance of the accused belonged to the
deceased has no bearing on the guilt or innocence of the accused in
view of the fact that it has been established beyond doubt that the
said revolver was the weapon of the offence.
47. Elaborating the argument pertaining to possession of the room
in which the revolver was recovered, the counsel argued that the
witnesses of the prosecution had deposed to the effect there is no
evidence to show that the deceased was in exclusive possession of
the room from where the revolver was allegedly recovered at the
instance of the accused. Several persons were residing in the said
house and therefore any of the person residing in the house can be
deemed to have been in the constructive possession of the said room.
In such circumstances, the accused could not be connected with the
recovery of the said revolver.
48. With regard to the afore-noted argument, it would be most
relevant to note the testimony of Veer Singh PW-13, the father of the
deceased. PW-13 had deposed that he had told the police officials
who had come to his house that the accused resides in a room on the
first floor of the house and that the said officials had searched the
room of the accused for a period of 15-20 minutes. The room
wherefrom the revolver was recovered was situated on the first floor
of the house. Therefore, the testimony of Veer Singh PW-13,
establishes that the room from which the revolver was recovered was
in the exclusive possession of the accused.
49. With regard to the argument that the second bullet recovered
from the body of the deceased did not match with the revolver
recovered at the instance of the accused, it be noted that the FSL
report dated 18.05.2006 records that no definite opinion could be
rendered with regard to the second bullet recovered from the body of
the deceased as the same is in a deformed condition. The counsel is
not right in arguing that the said bullet did not match with the
revolver recovered at the instance of the accused. There is a world of
difference in saying that no opinion could be rendered that the bullet
was discharged from a particular firearm or not and that the bullet
was not discharged from a particular firearm.
50. Even otherwise, assuming that the second bullet recovered
from the body of the deceased did not match with the revolver
recovered at the instance of the accused the same would be of no
consequence for the reason the fact that the other bullet recovered
from the body of the deceased was fired from the said revolver is
sufficient to conclude that the said revolver was the weapon of the
offence. The reason why the second bullet could not be linked to the
revolver in question is that it was found to be deformed. It is
apparent that the bullet got deformed due to hitting a bone in the
body of the deceased after it had entered the body. Thus, merely
because on account of it getting deformed, the bullet could not be
linked to the weapon of offence does not discredit the opinion of the
forensic expert pertaining to the first bullet which is conclusively
linked to the fire arm in question.
51. Pertaining to the argument that there is no evidence to show
that the bullet examined by the FSL were the ones which was
recovered from the body of the deceased, it would be relevant to
note the evidence of HC Sushil PW-10 and Const. Illiyas PW-22.
52. PW-10 had deposed that he was posted as Malkhana Moharrar
at the relevant time. That the pulanda containing amongst others the
bullets recovered from the body of the deceased was handed over to
him by Inspector B.S.Dahiya PW-25. That he had handed over the said
pulanda to Const PW-22, for depositing the same in the FSL. That
there was no tampering with the said pulanda till the time the same
remained in his possession. This witness was not subjected to any
cross-examination by the defence.
53. PW-22 deposed that he had deposited the pulanda containing
the bullets in question with the FSL and had not tampered with the
same till it remained in his possession. No suggestion was given to
the said witness that he had tampered with the pulanda containing
the bullets in question.
54. No evidence otherwise was led by the defence to show that the
pullanda containing the bullets in question was tampered with.
55. In such circumstances, it can safely be held that the
prosecution has been able to establish that the bullets examined by
the FSL were the ones which were recovered from the body of the
deceased and therefore the non-examination of the doctor who had
conducted the post-mortem by the prosecution regarding the
recovery of the bullets from the body of the deceased is not fatal to
the case of the prosecution.
MOTIVE OF THE ACCUSED
56. The last submission advanced was that the motive sought to
be established by the prosecution was that the deceased was
frustrated with his life as he was suffering from a life-threatening
disease and that he had induced the accused to cause his death.
Counsel argued that the prosecution has neither been able to
establish that the deceased was frustrated with his life nor that he
was suffering from a life-threatening disease. The only evidence
brought on record shows that the deceased was suffering from the
tuberculosis of the hip joint which is a curable disease. Counsel
argued that the case is based on circumstantial evidence and in such
cases motive is an important link in the chain of circumstances to
connect the accused with the commission of the crime. The counsel
further argued that the absence of the motive becomes all the more
damaging for the case of the prosecution as the evidence on record
establishes that the deceased was having enmities with quite a few
persons.
57. We need not labour on the last submission advanced by the
learned counsel for the appellant save and except note the decision
of the Supreme Court reported as Mulakh Raj v Satish Kumar & Ors
1992 CriLJ 1529 wherein it was observed as under:-
"....It is true as contended for the appellant that the
evidence on record is not sufficient to arrive at an
immediate motive to commit the crime and the case
depends on circumstantial evidence. But in circumstantial
evidence also when the facts are clear it is immaterial that
no motive has-been proved. Men do not act wholly without
motive. Failure to discover the motive of the offence does
not signify the non-existence of the crime. The failure to
discover motive by appropriate clinching evidence may be
a weakness in the proof of the prosecution case, but it is
not necessarily fatal as a matter of law. Proof of motive is
never an indispensable factor for conviction. In Alley v.
State of U.P. MANU/SC/0102/1955 this Court held that where
there is clear evidence that the person has committed the
offence, it is immaterial where no motive for commission of
the crime has been shown. Therefore, even in the case of
circumstantial evidence, absence of motive which may be
one of the strongest links to connect the chain would not
necessarily become fatal provided the other circumstances
would complete the chain and connect the accused with the
commission of the offence, leaving no room for reasonable
doubt, even from the proved circumstances......."
58. The appeal is sans any merit. However, on the question of
sentence we feel that the order imposing sentence requires a
little correction. As noted above in para 26, in default of
payment of fine for the offence of murder, the appellant has
been directed to undergo RI for three years which we feel is
excessive. We modify the sentence maintaining the fine and
directing that in default the appellant shall undergo RI for a
period of six months for the offence punishable under Section
302 IPC.
59. The appeal is dismissed. However, the order of sentence is
modified as per the proceeding para.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
March 18, 2009
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