Delhi High Court
Mahabir Singh @ Mahavir Singh vs State on 22 May, 2009
Author: Pradeep Nandrajog
* HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 20.05.2009
Judgment delivered on: 22.05.2009
+ Crl. Appeal No.498/2007
MAHABIR SINGH @ MAHAVIR SINGH ..... Appellant
Through : Mr. K.B.Andley, Sr. Adv. with
Mr. M.L.Yadav, Advocate
VERSUS
STATE .....Respondent
Through : Mr. Pawan Sharma, Advocate
CORAM :-
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
PRADEEP NANDRAJOG, J.
1. Four accused were sent to trial pertaining to the
death of Ved Pal @ Jitu Pehlwan who, on 20.8.2003, was shot in
front of gate No.3, L Block, Madanpur Khadar.
2. Vide impugned judgment and order dated 18.7.2007
3 accused have been acquitted. The 4th i.e. the appellant, has
been convicted for the offence punishable under Section 302
IPC as also the offence punishable under Section 25 and 27 of
the Arms Act.
3. At 7:51 PM on 20.8.2003 a relayed wireless message
was received at PS Sarita Vihar, contents whereof were noted
vide DD No.12-A, Ex.PW-9/DA, that Ved Pal @ Jitu Pehlwan son
of Shyam Lal had been shot in front of gate No.3, L Pocket,
Madanpur Khadar. The message was sent by HC Ram Niwas
PW-22 posted at the police control room who had received the
message from telephone number 26946587.
4. On receipt of information, ASI Mahender Kumar PW-
15 and Const.Bhagnath PW-10 proceeded to the place of the
offence. The SHO of PS Sarita Vihar Inspector G.L.Mehta PW-26
was patrolling in the area. He also received the information and
reached the spot.
5. A body was lying on the spot. A royal Enfield
motorcycle bearing registration No.DL 3SX 0375 was at the
spot.
6. Inspector G.L.Mehta met Kashmir Singh PW-5 at the
spot, who handed over a statement in writing, Ex.PW-5/A,
informing that at 7:30 PM, Ved, Kripal, Rishipal and he were
riding two motorcycles being driven by Kripal and Ved
respectively. When they reached the house of Suraj Bhan,
Kartar, Azad, Mahavir and Surender fired at them from the roof
of Suraj‟s house. Ved was hit by bullets and fell down. They
managed to escape.
7. Based on the statement the FIR was registered. At
the spot, Inspector G.L.Mehta prepared the rough site plan
Ex.PW-20/C and lifted control earth, blood stained soil and a
shoe as recorded in the memo Ex.PW-5/B. The motorcycle DL
3XS 0375 at the spot was seized vide memo Ex.PW-5/C.
8. Statements of Kripal Singh PW-8, the person who had
given the telephonic information as also Rishipal PW-14 were
recorded the same day under Section 161 Cr.P.C.
9. Since Ved Pal had died soon after the incident,
evidenced by the fact he was declared brought dead at the
hospital, the body was sent for post-mortem. Dr. Jayant PW-3
conducted the post-mortem on 21.8.2003 and noted 3 bullet
entry wounds; one on the frontal region of the scalp; the second
on the right upper anterior chest wall and the 3rd at the back.
All entry wounds had tattooing. 3 bullets, one from the skull,
the second from the chest and the third from the abdominal
cavity were recovered and handed over to the investigating
officer on 21.8.2003, soon after the post-mortem was
conducted.
10. The accused were apprehended.
11. Since 3 co-accused have been acquitted and qua
them the State has not come up in appeal; findings qua them
having attained finality. Thus we need not note the
incriminating evidence sought to be brought on record against 3
accused. We shall be noting the incriminating evidence brought
on record against the appellant.
12. After the post-mortem was conducted on 21.8.2003,
supplementary statement of the complainant as also Rishipal
and Kripal Singh were recorded as per which they gave a
change version. In their earlier statements they had informed
that the accused had fired from the roof top. But, guided by the
post-mortem report which evidenced that the deceased was
shot thrice at point blank range; evidenced by tattooing of the
skin where the bullet entered, each of the three stated that
after initial firing from the roof top, the accused came down and
fired shots at them from a point blank range.
13. The appellant was arrested on 23.8.2003 and on
interrogation by Inspector G.L.Mehta made a statement that the
country made pistol Ex.P-3 with which he had fired 3 shots could
be got recovered by him as also the 3 empty cartridges. He
stated that after committing the crime he had crossed river
Yamuna by swimming across and the country made pistol fell in
the water of the river. Pursuant to the said disclosure
statement Mahavir took the investigating officer to the spot at
the river bank wherefrom he claimed to have swam across. No
weapon could be recovered. Mahavir was further interrogated
on 26.8.2003 and his supplementary statement Ex.PW-23/J was
recorded. As per this statement he informed that actually, the
pistol and the cartridge were hidden, at a spot next to a
cremation ground on the banks of river Yamuna. In the
presence of Ajit Singh PW-17 Mahavir led the investigating
officer to the cremation ground and from the place, not visible
to the naked eye, got recovered a country made pistol Ex.P-3
and got recovered 3 empty cartridges which were seized vide
memo Ex.PW-17/B.
14. On 14.10.2003 the pistol Ex.P-3 and the bullets which
were recovered from the body of the deceased were sent to a
ballistic expert for opinion. As per opinion Ex.PW-26/I it was
opined as under:-
"RESULT OF EXAMINATION
(1) The revolver .32" caliber marked exhibit „F1‟ is
designed to fire a standard .32" cartridge. It is in
working order in its present condition. Test-fire
conducted successfully.
(2) The country made pistol .325" bore marked
exhibit „F2‟ is designed to fire a standard
8mm/.315" cartridge. It is in working order in its
present condition. Test-fire conducted
successfully.
(3) The .32" cartridges marked exhibits „A1 & A2‟
are live ones and can be fired through .32"
caliber firearm.
(4) The 8mm/.315" cartridge cases marked exhibits
„EC1 to EC3‟ are fired empty cartridges.
(5) The bullets marked exhibits „EB1 & EB2‟
correspond to the bullet of 8mm/.315" cartridge.
(6) No opinion can be given regarding exhibit „EBR3‟
due to insufficient data.
(7) The .32" cartridge marked exhibit „A1‟ above
was test fired through the revolved .32" caliber
marked exhibit „F1‟ above.
(8) The 8mm/.315" cartridge from laboratory stock
was test fired through the country made pistol
.315" bore marked exhibit „F2‟, test fired
cartridge case was marked as „TC1‟ and the
recovered test fired bullet marked as „TB1‟.
(9) The individual characteristic of firing pin marks
and breech face marks present on evidence fired
cartridge cases marked exhibits „EC1‟ to „EC3‟
and on test fired cartridge case marked as „TC1‟
were examined & compared under the
Comparison Microscope Model Leica DMC and
were found identical. Hence the exhibits „EC1 to
EC3‟ have been fired through the country made
pistol .315" bore marked exhibit „F2‟ above.
(10) The individual characteristic of striations present
on evidence fired bullets „EB1 & EB2‟ and on the
test fired bullet marked „TB1‟ were examined &
compared under the Comparison Microscope
Model Leica DMC and were found identical.
Hence the bullets marked exhibits „EB1 & EB2‟
have been discharged through the country made
pistol .315" bore marked exhibit „F2‟ above.
(11) The exhibits „F1 & F2‟/ „A1 & A2‟, „EC1 to EC3‟,
„EB1‟ and „EB2‟ are firearm ammunition as
defined in the Arms Act, 1959."
15. There being no incriminating recoveries being
effected pursuant to the disclosure statements made by the co-
accused and in view of the FSL Report Ex.PW-26/I , it is apparent
that to succeed, the prosecution was solely relying upon the
testimony of the alleged eye witnesses i.e. PW-5 Kashmir, PW-8
Kripal Singh and PW-14 Rishipal, as also the recovery of the
country made pistol Ex.P-3 pursuant to the disclosure statement
of the appellant and the FSL Report opining that the 3 bullets
which were recovered from the body of the deceased were fired
from the said country made pistol.
16. The learned Trial Judge has acquitted the 3 co-
accused holding that the testimony of the 3 eye witnesses did
not inspire confidence. The reason is that in their first
statement made to the police they had stated that the firing
took place from the roof top when the deceased and others
were driving on motorcycles and were on the main road, and
only in their supplementary statements recorded on 26.8.2003,
had given changed versions of initial firing being from the roof
top followed by the accused coming down and firing at contact
range. The fact at the post-mortem of the deceased was
conducted on 21.8.2003 has been held to be crucial, for the
reason on said date, it became apparent that the shots were
fired at the contact range and not from a distance. Thus, since
the dead body spoke for itself, finding material improvements
made by the 3 alleged eye witnesses; improvements being
guided by the post-mortem report, the learned Trial Judge,
rightly in our opinion, held that the eye witness account was not
creditworthy.
17. Qua the appellant, the learned Trial Judge has held
that his disclosure statement leading to the recovery of the
weapon of offence and the same being linked to the bullets
recovered from the body of the deceased was sufficient
evidence to convict the appellant.
18. At the hearing of the appeal, learned counsel for the
appellant urged that since the eye witness account has failed,
the appellant cannot be convicted for the offence of having
murdered the deceased. Counsel argued that in view of the
disclosure statement of the appellant and the recovery of a
country made pistol at his instance, the appellant can be
convicted for the offence punishable under Section 25 and
Section 27 of the Arms Act.
19. The second submission made by learned counsel was
that the bullets were recovered from the dead body of the
deceased on 21.8.2003. The country made pistol was
recovered on 26.8.2003. The bullets and the country made
pistol were sent to CFSL Laboratory on 14.10.2003. It was
urged that there is every possibility of tampering having taken
place in the interregnum.
20. We deal with the second submission first for the
reason if the same is found creditworthy we need not deal with
the first.
21. Unfortunately, in Delhi, we have only two Forensic
Science Laboratories. One is the Central Forensic Science
Laboratory at R.K.Puram. The other is the Forensic Science
Laboratory at Rohini. The two laboratories are over-worked.
They do not receive suspected samples for forensic examination
at random. The procedure being followed is that the
investigating officer writes letters which are entered in a
register and as per priority position assigned to a request, the
laboratory requisitions the samples which have to be analyzed.
This explains the delay in all cases for having sent seized
samples for forensic analyst after 2 months of the seizure.
22. What has to be considered is, whether there is scope
to tamper with the seized articles in the instant case, as indeed,
in every case.
23. PW-11, in-charge of the malkhana on the relevant
dates has proved the entries in the malkhana register, Ex.PW-
11/G.
24. The same evidence that the 3 bullets were duly
deposited in the malkhana the same day they were handed over
by the doctor after the post-mortem i.e. on 21.8.2003. The
same further shows that the country made pistol recovered
pursuant to the disclosure statement of the appellant was
deposited in the malkhana on 26.8.2003 i.e. the very day when
it was recovered. The register shows that the pistol as also the
3 bullets were removed from the malkhana on 14.10.2003 i.e.
the very day they were deposited with the Forensic Science
Laboratory. Indeed, the FSL Report dated 5.5.2004, refers to
the parcels containing the pistol and the 3 bullets being
received under letter No.1290/R/SHO/S.Vihar, dated 14.10.2003.
25. It is apparent that there is no scope for tampering.
26. The second submission made by learned counsel for
the appellant is accordingly rejected.
27. We need but note only two decisions of coordinate
Division Benches of this Court pertaining to the first plea.
28. In a recent decision dated 27.4.2009 disposing of a
batch of criminal appeals, lead matter being Crl.A.No.974/2006
Zahid Vs. State, in para 48 it was observed as under:-
"48. A firearm which gets connected to a bullet
recovered from the body of the deceased is extremely
incriminating qua the person from whom the firearm is
recovered unless he is able to satisfactorily explain his
not being connected with the firearm when the crime
took place. A firearm used as a weapon of offence
establishes conclusively the presence of the firearm at
the scene of the crime and since a firearm cannot
move by itself, the owner or the possessor thereof
must explain the circumstance under which the
firearm reached the place of the occurrence and in the
absence of any such explanation it would be
permissible for the Court to presume that the owner or
the possessor of the firearm was the offender."
29. In the decision reported as 2005 (1) JCC 261 Nehru
Jain Vs. State NCT of Delhi, noting that the eye witnesses had
turned hostile and that the only evidence linking the accused
with the crime was the recovery of a firearm which was linked to
the bullet recovered from the body of the deceased, in paras 14
and 15, it was observed as under:-
"14. There is nothing in cross examination which
could possible shatter or dislodge the opinion
expressed by the witness either on the ground of
deficient expertise of the witness or any other
improbability whatsoever. The fact that the weapon
used for firing the crime bullet was licensed in the
name of the appellant and was recovered from his
house with twenty live cartridges three of which were
used for test firing by the expert is also firmly
established by the evidence on record.
15. It was, in the above circumstances, difficult
for the appellant to deny the used of the weapon in
the commission of the crime. Confronted with this
evidence, Mr.Tulsi, fairly conceded that in the absence
of any explanation as to how the weapon came to be
used for the commission of the crime, the other
circumstances proved in the case including the
presence of the appellant in the marriage procession
at the time of the occurrence was sufficient to connect
the appellant with the weapon as also the injury
resulting in the death of the deceased, Vikram, the
retraction of the statements made by PW-1 Sanjay
Sharma and PW-2 Jameel notwithstanding. We have,
in that view of the matter, no hesitation in rejecting
the first limb of Mr. Tulsi‟s argument and holding that
the trial court had correctly come to the conclusion
that the deceased had died because of a bullet injury
sustained by him in the head and that the said bullet
had been fired by the appellant from the Smith &
WAson revolver licensed in his name and subsequently
seized from his house."
30. The appellant has failed to render any satisfactory
explanation pertaining to the whereabouts of the firearm used
for commission of the offence at the time when the offence was
committed. Thus, the appellant must admit to his guilt.
31. We find no merits in the appeal.
32. The appeal is dismissed.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
May 22, 2009
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