Delhi High Court
Sunil Nayak vs State on 25 May, 2009
Author: Pradeep Nandrajog
T* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 04.05.2009
Judgment delivered on: 25.05.2009
CRL. APPEAL NO.957/2008
SUNIL NAYAK ...Appellant
Through : Mohd. Salim, Advocate and
Mohd. Tarbez, Advocate.
versus
STATE ...Respondent
Through : Mr. Pawan Sharma, Advocate.
CRL. APPEAL NO.1008/2008
SHESH BAHADUR PANDEY ...Appellant
Through : Mr.Anupam S.Sharma, Advocate.
versus
STATE ...Respondent
Through : Mr. Pawan Sharma, Advocate.
CRL. APPEAL NO.1012/2008
HIMANSHU @CHINTU ...Appellant
Through : Mr.K.B.Sinha, Senior Advocate
with Mr.Ranbir S.Yadav, Advocate.
versus
STATE ...Respondent
Through : Mr. Pawan Sharma, Advocate.
CRL. APPEAL NO.1041/2008
RAMESH @DUDHIA ...Appellant
Through : Mr.Ratnakar Dash, Senior Advocate
with Mr.Anuvrat Sharma, Advocate.
versus
STATE ...Respondent
Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 1 of 38
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? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J.
1. On 8.7.2006, at about 9:34 PM information was
received at the police control room, recorded in the entry form
Ex.PW-3/A, noted by HC Dharampal PW-3, from the mobile
number 9210325051 wherein Rohit PW-7 informed about a
person having been shot at A-450 Shastri Nagar. HC
Dharampal forwarded the said information to PS Sarai Rohilla,
where ASI Dhyan Singh PW-2, recorded DD No.31/A, Ex.PW-
2/A, at about 9:46PM.
2. On receipt of copy of Ex.PW-2/A SI Subhash Chand
PW-24, along with HC Vijay Pal PW-19 and Const.Sudhakaran,
reached the spot. At the spot they met Raju PW-11, the
brother of the person injured and SI Subhash Chand recorded
his statement Ex.PW-11/A as per which Raju stated that at
around 9.20 PM, when his brother Murari with his friends Rohit
and Monty and he i.e. Raju were standing in front of Ahuja
Clinic, Himanshu, who is also a resident of A Block, came on
his motorcycle and threatened Murari that he would kill him.
That Himanshu went away but returned after 5-10 minutes
with other persons on motorcycles. These included Ramesh
Dudhia a resident of E-2 Block Shastri Nagar, Shesh Bahadur
Pandey a goon of Bharat Nagar, and Fundy a resident of
J.J.Colony, Wazirpur. That thereafter Himanshu pointed out
Murari to Ramesh Dudhia, who, on being instigated by Pandey
and Fundy, shot at Murari, with a country made pistol and
thereafter all fled away. That Rohit and Monty had removed his
brother to Paramarth Hospital in a TSR where after first aid
given to him, in a PCR van his brother was removed to Hindu
Rao Hospital. That Chintu i.e. Himanshu used to tease the
girlfriend of his brother Murari.
3. On being informed that the injured had been taken
to Hindu Rao Hospital, leaving Const. Sudhakaran at the spot,
SI Subhash Chand and HC Vijay Pal proceeded to Hindu Rao
Hospital where they learnt that the injured Murari had died. SI
Subhash Chand collected his MLC Ex.PW-30/A which recorded
that Murari was „brought dead‟. At the hospital itself, SI
Subhash Chand made an endorsement Ex.PW-24/A on the
statement Ex.PW-2/A of Raju and handed the same to HC Vijay
Pal for the registration of an FIR. HC Vijay Pal returned to the
police station and handed over the statement and the
endorsement to ASI Dhyan Singh PW-2 who registered the FIR
Ex.PW-2/B at 23:50 hrs.
4. SI Subhash Chand returned to the spot from the
hospital, where he met Inspector Vikram Singh PW-35, who
had in the meantime also reached the spot and since it was a
case of murder, had taken over the investigation.
5. Inspector Vikram Singh went to Hindu Rao Hospital
at around 2.00-2.30 AM, where he met Rohit and Sukhvinder
@Monty. He took them to the police station where he
recorded the statement Ex.PW-7/A of Rohit and the statement
Ex.PW-8/A of Sukhvinder under Section 161 Cr.P.C. as per
which statements, the two narrated substantially the same
facts implicating the appellants as were already disclosed by
Raju in his statement Ex.PW-2/A.
6. After recording the statements of Rohit and
Sukhvinder, Inspector Vikram Singh returned to the spot where
the crime was committed and summoned a photographer
Rajinder Soni PW-15, who took photographs Ex.PW-15/1 to
Ex.PW-15/4 of the spot; negatives whereof are Ex.PW-15/5 to
Ex.PW-15/8. Inspector Vikram Singh lifted blood, blood stained
soil and earth control from the spot as recorded in the seizure
memo Ex.PW-24/B. He also prepared a rough site plan Ex.PW-
35/1, at the instance of Raju noting thereon spot „A‟, spot „B‟
and spot „C‟ where blood was lifted, the deceased was sitting
with his friends and his brother and where a street light was
installed, respectively.
7. The dead body of Murari which had been seized at
Hindu Rao Hospital on the intervening night of 8th and 9th July,
2006 was sent to the mortuary of the hospital and on 9.7.2006
Dr.C.B.Dabbas PW-5 of Hindu Rao Hospital conducted the post-
mortem on the dead body. On the post-mortem report Ex.PW-
5/A Dr.C.B.Dabbas recorded the following injury:-
"One firearm entry wound round in shape, measuring 2.2
X 2.2 cm and surrounded by collar of abrasion in area of
3x3 cm located over the left side lateral; aspect of chest,
19 cm outer to midline and 12 cm outer to left nipple and
120 cm above left heel. The wound is surrounded by
singeing blackening and tattooing."
8. Dr.C.B.Dabas recorded on the post-mortem report
the trajectory of the wound from left to right and upwards and
that the injury was a fire arm entry wound of ammunition
discharge from a rifled firearm fired from a point blank range.
Dr. Dabbas recovered a copper coated lead tipped bullet from
the body of the deceased. After the post-mortem, along with
the report, the clothes of the deceased and the blood sample
of the deceased on a piece of gauze, the bullet was handed
over to Inspector Vikram Singh who took possession of the
same as recorded in the memo Ex.PW-24/C.
9. Accused Himanshu was apprehended from the red
light at Chowki No.2, K.D. Marg on 9.7.2006 at about 10.00 PM.
10. On 16.7.2006, information was received by
Inspector Vikram Singh that accused Sunil Nayak @ Fandi was
apprehended and remanded to judicial custody at Tihar Jail in
another case. After moving an application and seeking
permission from the Court of the learned Metropolitan
Magistrate, police custody of Sunil Nayak was obtained by
Inspector Vikram Singh and Sunil Nayak was formally arrested
in the instant FIR on 18.7.2006.
12. Accused Ramesh Dudhia was arrested on 26.7.2006
in another case by Inspector M.H. Khan, PW-23 of PS Gulabi
Bagh. On being interrogated by Inspector M.H.Khan, he made
a disclosure statement Ex.PW-6/A, wherein he disclosed about
his involvement in the murder of Murari and inter-alia stated
that he had thrown the desi katta with which he had shot
Murari in a gutter at AB Block Shastri Nagar. The said
information was conveyed to Inspector Vikram Singh who took
custody of Ramesh Dudhia on 26.7.2006 and the same day
Ramesh Dudhia led Inspector Vikram Singh to a gutter (ganda
nala) at AB Block Shastri Nagar and pointed out a place, from
where a country made pistol Ex.P-21/1 was recovered and
Inspector Vikram Singh seized the same in the presence of SI
Subhash Chand, as recorded in the seizure memo Ex.PW-24/J.
13. Accused Shesh Bahadur Pandey was arrested by
the Special Cell of Delhi Police on 16.8.2006 and said fact was
conveyed to Inspector Vikram Singh who took the necessary
steps to obtain the police custody of Shesh Bahadur Pandey
and managed to have the same only on 16.10.2006, on which
date Shesh Bahadur Pandey was formally arrested in the
instant case.
14. On 4.9.2006 SI Mahesh Kumar PW-25, under the
instructions and instance of SI Subhash Chand PW-24 prepared
the site plan to scale Ex.PW-25/A.
15. Inspector Vikram Singh sent for ballistic
examination, two sealed parcels, one containing the country
made pistol Ex.P-21/1 recovered at the instance of accused
Ramesh Dudhia on 27.7.2006 and the other containing the
bullet recovered from the body of the deceased at the time of
the post-mortem and handed over to Inspector Vikram Singh
as per seizure memo Ex.PW-24/C. Shri K.C.Varshney PW-31,
gave a report Ex.P-31/A that no opinion could be given
whether the bullet was fired from the country made pistol
Ex.P-21/1 because the individual characteristic of striations
detected on the bullet were insufficient for comparison.
16. It is not clear as to on what basis co-accused Sunil
Kumar (who has been acquitted by the learned Trial Judge)
became a suspect. But it is on record that he was arrested on
9.11.2006.
17. Five accused i.e. the appellants and Sunil Kumar
were charged for having committed an offence punishable
under Section 302/34 IPC i.e. for having murdered Murari in
furtherance of their common intention. Appellant Ramesh
Dudhia was also charged for the offence punishable under
Section 27 of the Arms Act.
18. When the trial commenced, a criminal writ petition
registered as Crl.W.P. No.350/2007, certified copy whereof is
Ex.PW-7/A was filed in this Court under the signatures of Rohit
Kumar PW-7 and his father Vijay Kumar, in para 4 and 5
whereof it was pleaded as under:-
"4. That on 8.7.2006 a murder has taken place near the
house of the petitioner and petitioner No. 2 as a
responsible law abiding citizen became witness to the
murder which has rather resulted in suffering,
harassment, murderous assault and the police instead of
protecting the life and liberty of the petitioners in
collusion with the associates of the accused in murder
case harassing the petitioners not to depose in the Court
in the said murder case against the accused persons.
The police has registered the FIR No. 289/2006 under
Section 302/34 IPC at Police Station Sarai Rohilla. The
petitioner No. 2 is a vital eye witness of the murder case
in which the known criminal of the area namely Ramesh
Dudhia and one Pandey are the main accused. Copy of
the FIR with its true English translation is annexed as
ANNEXURE-A to this petition.
5. That the associates of the above said persons
namely Jeetu etc. who are known bad elements of the
area have thereafter started extending serious alarming
threat to the petitioner No. 2 with dire consequences in
case petitioner No. 2 deposes in the Court in the said
murder case. Initially the petitioners have avoided such
threats presuming that they are safe in the hands of the
police but later on the treats perception increased of
even kidnapping and murder of petitioners. These facts
were orally informed to the local police who ensured the
petitioners of their safety."
19. Prayer made in the writ petition was to provide
security for Rohit Kumar and his father Vijay Kumar as they
claimed that they were being threatened by the associates of
appellant Ramesh @Dudhia and appellant Shesh Bahadur
Pandey. It was pleaded that Rohit PW-7 is a vital eye-witness
to the murder of Murari and that Ramesh @Dudhiya and Shesh
Bahadur Pandey are known criminals of the area.
20. Needless to state, the prosecution hinged, for
success, on the testimony of Rohit PW-7, Sukhvinder PW-8 and
Raju PW-11 who claimed to be eye-witnesses for the reason
the prosecution could gather no other incriminating evidence
against the accused; the report of the ballistic expert
pertaining to the country made pistol which was recovered
pursuant to the disclosure statement of appellant Ramesh
@Dudhia did not link the same to the bullet which was
recovered from the body of the deceased due to insufficient
characteristics of striations. Thus, no useful purpose would be
served in noting the testimony of the witnesses of the
prosecution save and except the testimony of Dr.C.B.Dabbas
PW-5, Rohit PW-7, Sukhvinder PW-8, Raju PW-11, HC Vijay Pal
PW-19, SI Subhash Chand PW-24 and Inspector Vikram Singh
PW-35; more so for the reason, as would be evidenced herein
after, arguments urged during hearing of the appeal require
the testimony of said witnesses to be considered.
21. Dr.C.B.Dabas PW-5 deposed that he had conducted
the post-mortem of the deceased on 9.7.2006 and the post-
mortem report Ex.PW-5/A was prepared by him. Relevant for
purposes of consideration of submissions made by learned
counsel for the appellants is the statement made by
Dr.C.B.Dabas during cross examination, in reference to the
post-mortem report where it was mentioned that 300 gms of
semi-digested food was present in the stomach of the
deceased, that this evidenced the deceased having consumed
food between 1½-2½ hours before his death.
22. Rohit PW-7 deposed that on 8.7.2006 at about 9-
9:30 PM he was on his way to his house on his motorcycle
when he met Murari and Monty. The three started chatting. At
that time, accused Himanshu with another person came on his
bullet motorcycle and threatened Murari saying "main tujhe
maarunga". Thereafter he went away. He i.e. Rohit asked
Murari as to what had happened, but before Murari could
answer, his brother Raju came to call him. At that time,
Himanshu returned with 5-7 other boys on 4-5 motorcycles.
Himanshu pointed at Murari and said "yeh tha". Thereafter,
one boy got down from the motorcycle and shot Murari. All
persons fled immediately on their motorcycles. Thereafter, he
i.e. Rohit called the PCR at No. 100. Raju, Monty and he
arranged for a TSR and while Raju went to inform his parents,
Monty and Rohit took Murari to the hospital. On the way, at
Shakti Nagar red light they saw a PCR van and requested the
PCR officials to accompany them. Murari was first taken to
Parmath Hospital where they were asked to take him to Hindu
Rao Hospital. At Hindu Rao hospital, Murari was declared
brought dead. Police met them at the hospital, from where
they i.e. Monty and he were taken to the police station where
the police recorded their statements.
23. Rohit PW-7, correctly identified accused Himanshu
in the court but as regards the other appellants as also the co-
accused Sunil who has been acquitted, he did not identify
them as those who had accompanied Himanshu on the date of
the incident. On being cross-examined by the learned
Additional Public Prosecutor, he denied having stated to the
police anything about the involvement of Ramesh Dudhia,
Pandey or Sunil @ Fundi in the offence. He admitted that
some time back his father and he had filed a Writ Petition
before the Delhi High Court seeking police protection from the
accused in the present case because on 10.12.2006 he had
been beaten by one Jeetu and his associates and was
threatened not to depose against the accused in the instant
matter. He admitted that on 26.2.2007, his father was
threatened by Jeetu and his associates to stop him i.e. Rohit
from deposing in the court in the matter. He admitted that
Ex.PW-7/A was a certified copy of the petition filed by him and
his father. He denied that he told the police, as recorded in his
statement under Section 161 Cr.P.C. that when Himanshu
pointed out Murari, Fundy @ Sunil Nayak exhorted "mar saale
ko goli" and thereupon Ramesh Dhudia fired a shot at Murari.
24. Since no submissions were urged at the hearing of
the appeal with reference to the cross examination of PW-7,
we do not note the cross examination of PW-7, save and
except that the piercing cross examination by learned counsel
for Himanshu, failed to dent the credibility of the testimony of
PW-7. Needless to state, the witness did not implicate any
other co-accused in the commission of the offence. He simply
stated that Himanshu was accompanied by many other
persons and that the co-accused were not a part of the group.
25. Sukhvinder @ Monty PW-8, deposed that on
8.7.2006, at about 9.20 PM, he along with Rohit, Murari and
Raju was standing in front of Ahuja Clinic when appellant
Himanshu came on a motorcycle with another boy and
threatened to kill Murari and went away. He returned after 5-
10 minutes with 7-8 other persons on 5/6 motorcycles.
Himanshu pointed out Murari to one of the boys, who took out
a revolver and fired a shot at Murari. Thereafter the said boys
fled away. They called the PCR at number 100. Since the PCR
did not come within sometime, Rohit and he i.e. Sukhvinder
shifted Murari in a TSR to be taken to a hospital. On the way,
they requested officials of a PCR van stationed at Shakti Nagar
crossing to accompany them to Parmath Hospital. At Parmath
Hospital they were told to remove the patient to Hindu Rao
Hospital, where the doctors declared him brought dead.
Thereafter they were taken to PS Sarai Rohila where his
statement was recorded.
26. Since Sukhvinder did not implicate the other co-
accused i.e. did not identify them as the ones who were
present with Himanshu and deviated from a statement
recorded by the police under Section 161 Cr.P.C., he was got
declared hostile and was cross examined by the learned
Additional Public Prosecutor. On being cross examined by the
learned Additional Public Prosecutor he denied that he told the
police that Fundy @ Sunil exhorted saying "maar saale ko goli"
at which Shesh Bahadur Pandey shot Murari. He denied that
he told the police that he knew Ramesh Dudhia, Sunil @ Fundy
and Shesh Bahadur Pandey. He was confronted with his
statement under Section 161 Cr.P.C. where aforesaid was
recorded. He denied having said so.
27. We note that the cross examination by counsel for
accused Himanshu has failed to bring out anything to discredit
the testimony of PW-8. On being cross-examined by counsel
for the other accused, PW-8 deviated from his testimony in
examination-in-chief wherein he had stated that apart from
Murari, his brother as also PW-7 and he were present in front
of Ahuja Clinic when Himanshu came with a boy on a
motorcycle and threatened to kill Murari. In cross examination
he stated that Raju was not present at that time and that Raju
came soon after said words were spoken and that he was
present when the second visit was made by Himanshu with his
other friends. He also stated that he had met Raju at the
police station and that Raju‟s statement was recorded at the
police station.
28. Raju PW-11, deposed that on 8.7.2006 at about
9.15-9.20 PM, he along with his brother Murari and his friends
Rohit and Monty were standing in front of Ahuja Clinic, when
appellant Chintu (Himanshu) with one more person came on
his motorcycle and threatened to kill Murari. That Chintu went
away and returned after 5-10 minutes, with 5/6 other persons
on motorcycles. Himanshu pointed out Murari to appellant
Ramesh Dudhia. Appellants Shesh Bahadur Pandey and Fundy
instigated Ramesh Dudhia by saying „Maar saley ko‟.
Thereupon appellant Ramesh Dudhia took out a pistol (katta)
from his right pant pocket and placing it on the left chest of
Murari fired a shot at him. Thereafter they all ran away from
the spot. Monty and Rohit took Murari to the hospital in a TSR.
He i.e. Raju, telephoned and informed the police. His
statement Ex.PW-11/A was recorded in the police station on
the same night.
29. On being cross-examined he stated that on the day
of the incident his brother Murari had returned home at around
9 PM. While Murari was waiting for the food to be cooked,
somebody called him outside. He went outside without eating
his food. After 5/7 minutes their mother sent him to call Murari
as food had been cooked. That Ramesh Dudhia had fired at
Murari while sitting on the motorcycle which was stopped
across Murari and that the bullet was fired from the right side
to the left on the left side of the chest. That he had called the
police from an STD booth. That the police met him at the STD
booth and from there took him to the spot. From the spot he
was taken to the police station. His complaint was recorded at
the spot. That he did not go to the hospital with his brother as
he was to make the call to the police. That he had signed all
the documents in the Police Station.
30. HC Vijay Pal PW-19 deposed that on 8.7.2006, on
receipt of copy of DD No.31A, at about 9.46 PM, he
accompanied SI Subhash Chand to the spot which was outside
Ahuja Clinic. They found a boy named Raju who informed that
his brother had been shot at. At the spot, SI Subhash Chand
recorded the statement of Raju. Leaving behind
Const.Sudhakaran, he and SI Subhash Chand left for Hindu Rao
Hospital where the IO obtained the MLC of Murari and
prepared the rukka and sent him with the rukka for
registration of the FIR. After registration of the FIR he returned
to the spot with a copy of the FIR and handed over the same to
Insp. V.S.Rana, the SHO of the police station who had reached
the spot.
31. With respect to the cross examination of HC Vijay
Pal, the only thing worthwhile to note is that he stated that he
does not remember whether he had stated before the IO that
the tehrir was recorded before he and SI Subhash Chand left
the hospital. We note that as a matter of fact, in his statement
recorded by the IO, HC Vijay Pal has stated that the tehrir had
been given to him at the hospital so that he could get the FIR
registered. The same has been recorded by the learned Trial
Judge within brackets at the place where aforesaid cross
examination of the witness has been recorded.
32. SI Subhash Chand PW-24 deposed that on 8.7.2006
he was posted at Police Station Sarai Rohila, and on receiving
a copy of the DD No. 31-A, he along with HC Vijay Pal reached
the spot i.e. Khurana Tent wali gali in front of Ahuja clinic, A
block, Shastri Nagar. Blood was found lying on the spot. They
met Raju, brother of the injured at the spot and he recorded
his statement Ex.PW-11/A. Raju informed them that the injured
had been removed to Hindu Rao Hospital. He reached Hindu
Rao Hospital and collected the MLC Ex.PW-30/A which declared
the patient brought dead. He endorsed the statement of Raju
and sent the same for registration of an FIR through HC Vijay
Pal PW-19. Thereafter, the investigation of the case was
conducted by Insp. Vikram Singh Rana PW-35.
33. In cross examination he denied that he never went
to the hospital and took Raju to the police station. He denied
that he fabricated everything at the police station.
34. Insp. Vikram Singh PW-35 deposed that on
8.7.2006, at about 9.40-9.45 PM he received information about
the incident and reached the spot at H No A-450, Khurana Tent
Wali Gali, Shastri Nagar in front of Ahuja clinic. There he learnt
that the injured had been already removed to the hospital. He
met SI Subhash Chand at the spot who recorded the statement
of Raju PW-11 in his presence. Thereafter SI Subhash Chand
and HC Vijay Pal went to the hospital. On their return from the
hospital he was informed that the injured had expired and that
SI Subhash Chand had already sent the endorsed statement of
Raju for registration of an FIR. Thereafter he i.e. Insp. Vikram
Sing took over the investigation of the case. He got the place
of occurrence photographed. He lifted the blood, blood stained
soil and earth control from the spot and seized them vide
seizure memo Ex.PW-24/B. He prepared rough site plan Ex.PW-
35/1 at the instance of Raju. He got the post-mortem
conducted on the body and seized the sealed parcels received
from the doctor who conducted the post-mortem. That he
arrested the accused Himanshu at around 10.00 PM on
9.7.2006 at the pointing out of the complainant. His
motorcycle No. DL-8ST-8140 was also seized and deposited in
the maalkhana. He arrested accused Sunil @ Fundi on
18.7.2006 and interrogated him. He arrested accused Ramesh
Dudhia on 27.7.2006 and interrogated him. On his disclosure
and pointing out he seized a desi katta claimed to have been
used in the commission of the offence vide Ex.PW-24/J. That
accused Shesh Bahadur Pandey was arrested by him on
16.10.2006.
35. On being cross examined as to how he learnt that
the injured was first taken to a hospital at Shakti Nagar and
thereafter to Hindu Rao Hospital. He stated that the said fact
was disclosed by a caller on the mobile phone of Raju and that
Raju in turn passed on said information to him.
36. The defence examined two witnesses. Sh. K.C. Kalra
DW-1 deposed that he was the Resident Manager from Total
TV Channel. That the CD Ex.DW-1/B pertained to the news
telecast by their channel in the night of 8.7.2006 and that
Ex.DW-1/A was the transcript thereof.
37. Sh. Atul Katiyar, DW-2, Addl. DCP, deposed that he
had seen the CD Ex.DW-1/B and that the same contained his
visuals and his voice.
38. Vide impugned judgment and order dated
30.9.2008, convicting the appellants and acquitting co-
accused Sunil Kumar, the learned Trial Judge has held the
testimony of Rohit PW-7, Sukhvinder PW-8 and Raju PW-11,
unequivocally implicated appellant Himanshu as the instigator.
That the testimony of the three witnesses corroborated each
other as to the manner in which the crime was committed.
Noting that Rohit PW-7 and Sukhvinder PW-8, refused to admit
the presence of the other co-accused when the crime was
committed, learned Trial Judge has held that there was no
reason to disbelieve Raju, who, had disclosed the
names of all the appellants to the police soon after the
incident, which fact, according to the learned Trial Judge
reassure the Court about the truthfulness of his testimony.
Noting that though Raju had referred to the presence of
accused Sunil, but assigned no role to him, the learned Trial
Judge has acquitted Sunil and has convicted the appellants,
holding that the testimony of Raju establish that the deceased
was shot at by Ramesh at the instance of Himanshu and that
Shesh Bahadur Pandey and Sunil Nayak had exhorted Ramesh
to shoot Murari. Thus, appellants Himanshu, Sunil Nayak and
Shesh Bahadur Pandey have been convicted with the aid of
Section 34 of the Indian Penal Code. The learned Trial Judge
has convicted Ramesh @ Dudhia for the offence punishable
under Section 27 of the Arms Act, holding that an unlicensed
firearm was recovered at his instance and that the same was
used in the commission of the crime.
39. Pertaining to the conviction of Ramesh @ Dudhia
for the offence punishable under Section 27 of the Arms Act
1959, it is apparent that the use of a firearm in contravention
of Section 5 of the Act is a sine qua non for the commission of
the offence. Since the FSL Report pertaining to the bullet
recovered from the body of the deceased and the country
made firearm recovered at the instance of Ramesh has
remained inconclusive and no witness has identified the
firearm Ex.P-21/1 as the one they had seen in the hand of
Ramesh when the crime was committed, we hold that Ramesh
@ Dudhia cannot be convicted for the offence punishable
under Section 27 of the Arms Act. But, since an unlicensed
firearm was recovered at his instance, it is apparent that he
possessed the same and hence we hold that Ramesh is liable
to be convicted for having committed an offence punishable
under Section 25 of the Arms Act, for which offence we
sentence him to undergo rigorous imprisonment for 3 years
and to pay a fine in sum of Rs.2,000/-; in default of payment of
fine to undergo simple imprisonment for 1 month. The
impugned judgment, is modified accordingly to said extent.
40. Learned counsel for the appellants urged that the
FIR is ante-time. The submission was predicated on the
admission of Raju PW-11, at whose instance the FIR was
registered, who, on cross examination stated that he had
signed all the documents in the police station. The second
submission urged was that the three alleged eye witnesses
namely PW-7, PW-8 and PW-11 have been cross examined by
the learned Public Prosecutor and therefore their credibility is
seriously in doubt. Third submission made was that of the five
accused one has been acquitted and that if PW-11 could
falsely implicate the said accused i.e. Sunil, there is no reason
not to doubt his falsely implicating the other accused i.e. the
appellant. It was fourthly urged that the testimony of PW-5
clearly established that the deceased had taken meals 1½ to
2½ hours prior to his death, from which it could safely be
gathered that the deceased had taken his dinner. Drawing
attention to the fact that the reason given by PW-11, the
brother of the deceased, to be at the spot was his mother
directing him to call the deceased for dinner, it was urged that
the justification given by PW-11 to be at the spot was patently
false. Drawing our attention to the testimony of PW-7 to the
effect that PW-11 was not present, when the first alleged
altercation took place as also the admission of the fact by PW-
8, who, on cross examination also admitted said fact, it was
urged that it was obviously a case where PW-11 was lying
about being present and having witnessed the incident.
Counsel urged that the evidence suggests that PW-11 was told
something by some person and the entire version of PW-11
was based on hear say evidence. Drawing our attention to the
testimony of Inspector Vikram Singh PW-35 to the effect that
Raju PW-11 had a mobile phone with him, it was urged that the
same probablized that Raju could have been receiving
information from a third person. Further punching the
credibility of Raju PW-11, it was urged that Raju was a clever
witness who was conscious that his conduct of not
accompanying his brother to the hospital would be questioned
as unnatural and for said reason he gave a justification of not
accompanying his brother to the hospital, by stating that he
went to a PCO Booth to ring up the police. Counsel drew our
attention to Ex.PW-3/A, the form filled up at the Police Control
Room by HC Dharampal which showed that the informant was
Rohit who had rung up from a mobile phone having number
9210325051. It was urged that obviously a call had been
made to the police and where was the need for Raju to go to a
PCO Booth to make another call. In any case, counsel
submitted that the testimony of PW-35 established that Raju
had a mobile phone with him and even on said account there
was no reason for him to go to a PCO Booth. Attempting to dig
a final nail in the testimony of Raju, counsel submitted that
Raju had deposed that Ramesh Dudhia had fired from the right
side to the left on the left side of the chest of his brother. With
reference to the post-mortem report Ex.PW-5/A and the
testimony of PW-5, counsel urged that the same evidenced
that the bullet pierced the left side lateral aspect of the chest
of the deceased and travelled towards the direction in the right
direction (upwards) i.e. towards the midline of the chest.
Counsel urged that if the assailant fired from the right side on
to the left side of the chest of the deceased, the bullet could
not under any circumstances move towards the right side of
the deceased. The fifth submission urged was that as per the
post-mortem report Ex.PW-5/A, the deceased was 161 cm in
height. The bullet had pierced the chest 12 cm below the
nipple. As per the testimony of the alleged eye-witnesses, the
deceased and the witnesses were on the steps outside Ahuja
Clinic and the shot was fired by Ramesh while sitting on the
motorcycle. That the shot was fired at contact range, is
apparent from the post-mortem report, which records
tattooing of the skin. Even PW-7, PW-8 and PW-11 have
deposed that the shot was fired at contact range. Counsel
submitted that if the deceased of height 161 cms i.e. average
height was sitting on the steps and assuming he stood up, if
the assailant fired the shot while sitting on the motorcycle, the
same could not have hit the deceased as noted in the post-
mortem report. Thus, it was urged that the alleged eye
witness account has not been able to explain the injury on the
person of the deceased.
41. It has to be noted that the date of the incident is
8.7.2006. Raju PW-11, the brother of the deceased deposed in
Court on 31.8.2007 i.e. after nearly 13 months of the incident.
As recorded in his statement, Raju was 18 years old when he
testified in Court. Obviously, his age was 17 years when he
witnessed the incident. Thus, while evaluating the testimony
of Raju, we would have to keep into account the immaturity of
a person aged 17 years. His conduct at the relevant time
would have to be evaluated keeping into account said fact i.e.
his immaturity.
42. Is there sufficient evidence to conclude that the FIR
was ante-time? It is no doubt true that Raju has stated during
cross examination that he had signed all the documents in the
police station. But, prior thereto, on being cross examined on
the issue as to when did he first interact with the police he
stated that the police brought him to the spot from the STD
booth. We note that Raju has been shown as a witness to the
arrest of Himanshu. He has been shown as a witness to the
personal search memo and the arrest memo, Ex.PW-11/C and
Ex.PW-11/D respectively. We note that when he was cross
examined on the factum of arrest of Himanshu, Raju stated
that Himanshu was arrested and the police called him to
chowki and he signed certain papers in the police chowki. It is
apparent that Raju mixed up the facts pertaining to his having
made the statement Ex.PW-11/A at the spot and having signed
the same at the spot in the context of his having signed
Ex.PW-11/C and Ex.PW-11/D at the police station. In this
connection the testimony of SI Subhash Chand PW-24 and HC
Vijay Pal PW-19 is important and needs to be noted. Both
have categorically deposed that Raju‟s statement Ex.PW-11/A
was recorded by SI Subhash Chand at the spot and thereafter
both the police officers went to the hospital and after obtaining
the MLC of the deceased, SI Subhash Chand wrote the tehrir
Ex.PW-24/A on the statement of Raju and dispatched the same
to the police station through HC Vijay Pal for FIR to be
registered. We note that ASI Dhyan Singh PW-2 who
registered the FIR at 11:30 PM has deposed that he registered
the FIR Ex.PW-2/B when he received the rukka. We note that
ASI Dhyan Singh PW-2 has not been cross examined with
reference to his said testimony.
43. Thus, we hold that there is no evidence wherefrom
any conclusion can be drawn that the FIR is ante-timed.
44. Where a witness turns partially hostile, does not
mean that the testimony of said witness has to be totally
discarded. It is settled law that the principle Falsus in uno,
falsus in omnibus, is not applicable in India for the reason,
Courts in India have historically noted, the tendency of
witnesses being gullible in India and exaggerating on facts.
The rule of prudence followed by the Courts is to carefully
sieve the testimony of such witnesses and to separate grain
from chaff, and if corroborated on material particulars, on
other aspects of the testimony, to accept the same. Thus, the
second submission urged that the testimony of PW-7, PW-8
and PW-11 have to be thrown out, lock stock and barrel is
rejected.
45. The fifth co-accused, Sunil, has not been acquitted
because the testimony of PW-7, PW-8 and PW-11 has been
disbelieved. Thus, the very foundation of the third submission
by learned counsel for the appellants is missing. Sunil has
been acquitted for the reason PW-7 and PW-8 have not even
spoken about his being present. PW-11 has spoken about
Sunil being present, but has assigned no role to him. It is
settled law that before a person is made liable for the act of
another person, with reference to a common intention of both
persons, not only is the physical presence of said person to be
proved at the time of commission of the offence, but it has to
be further proved that he has actually participated in the
commission of the offence, in some way or the other, when the
crime was being committed. Howsoever small it has to be,
some participative act has to be proved in the commission of
the crime. Obviously, Sunil had to be acquitted. This does not
mean that PW-11 has lied.
46. Before considering the fourth submission urged,
which, as noted above is a multi-prompt attack to the
testimony of PW-11, it has to be noted that PW-7 and PW-8
have fully corroborated PW-11 with respect to the manner in
which the crime was committed. The only difference is that
PW-7 and PW-8 have not identified appellants Sunil Nayak and
Shesh Bahadur Pandey and Ramesh Dhudia as the ones who
participated in the commission of the crime, with further
difference that said two witnesses have not deposed that
anybody gave any exhortations.
47. Qua appellant Himanshu, all three i.e. PW-7, PW-8
and PW-11, have corroborated each other as to the role of
Himanshu. All three have named him and identified him.
48. It was not seriously urged before us that the
evidence on record establishes that PW-7 and PW-8 were
present with the deceased and they had taken him to the
hospital from the spot. Thus, on the testimony of said two
witnesses, the role of Himanshu, who is the protagonist of the
story is fully established. He is the principle architect of the
offence. He cannot escape the consequences of his acts.
49. Pertaining to the role of Sunil Nayak, Shesh
Bahadur Pandey and Ramesh @ Dhudia, the same has
surfaced only in the testimony of PW-11. It assumes
significance that Rohit PW-7, and his father Vijay Kumar had
filed Crl.W.P.No.350/2007, certified copy whereof was proved
as Ex.PW-7/A. The petition was filed soon before the trial
commenced. In the said petition Rohit Kumar categorically
pleaded that he was a witness to a crime in which Ramesh
Dhudia and Pandey are accused and that both of them are
known criminals of the area and that their henchmen were
threatening him and his father to prevent him from deposing
against them. No wonder in spite of his tell-tale pleadings in
the writ petition, Rohit still chose not to speak a word against
Ramesh and Pandey in Court. It is apparent that Rohit and
Monty @ Sukhvinder have been scared to death and this
explains their departure from what they had told the police.
50. Since PW-7 and PW-8 have not ascribed any role to
Ramesh @ Dhudia, Sunil Nayak and Shesh Bahadur Pandey,
thus we have to find out the truth from the testimony of PW-
11.
51. We have rejected hereinabove the plea that the FIR
was ante-timed. The corollary thereof is that Raju‟s statement
Ex.PW-11/A stands accepted by us as being recorded at the
spot. The tehrir Ex.PW-24/A evidences that it was dispatched
after PW-24 had visited the hospital; the same being
dispatched from the hospital through HC Vijay Pal at 11:30 PM.
The incident took place at around 9:30 PM evidenced by the
fact that at 9:34 PM Rohit‟s information to the police control
room was recorded vide Ex.PW-3/A by HC Dharam Pal. So
soon after the incident Raju‟s statement having been
recorded; leaving not much time for Raju to cook up and
fabricate a story, is prima facie a circumstance to believe Raju.
52. The fact that Raju‟s statement Ex.PW-11/A stands
established as having been written at the spot, if not more,
proves that SI Subhash Chand PW-24 met Raju within less than
15 minutes of the incident at the spot. We note that no
suggestion has been given either to PW-7 or PW-8 that they
rang up Raju and informed him to come to the spot. Thus,
prima facie, we find good evidence on record to repel the
argument that Raju‟s presence at the spot is doubtful.
53. That the deceased had consumed some eatables
1½ to 2½ hours prior to his death, evidenced by the post-
mortem report and the testimony of PW-5 does not lead to the
conclusion that the deceased had taken his dinner. It could be
any eatables consumed by the deceased. On said fact alone,
it is too tenuous to draw a conclusion that Raju stated an
incorrect fact to justify his presence with his brother. What
was the need for Raju to say so when he could have just said
that being a younger brother, he was in the company of his
elder brother. Well, had he said so, it would have been
natural. Nothing turns on said fact. That PW-7, and on cross
examination PW-8 stated that Raju was not present when the
first altercation took place between Himanshu and the
deceased and that Raju claimed to be present when the first
altercation took place, does not mean that Raju has to be
disbelieved. We cannot lose sight of the fact that witnesses
are being threatened with impunity by criminals and gangsters
and there is intrinsic evidence in the instant case of PW-7 and
PW-8 being coerced into silence to a large extent. Thus, we
have to keep into account the mental stress of PW-7 and PW-8
when they deposed in Court. PW-7 and PW-8 have
categorically deposed that before he was shot at, Himanshu
had come to the spot on a motorcycle with another boy and
had threatened Murari with death and that after 5-10 minutes,
Himanshu returned with 5-7 boys on motorcycles and said „yeh
hai murari‟. Even PW-11 has so deposed. There can be only
two circumstances under which PW-11 could have testified to
said fact. The first was that either PW-7 or PW-8 or both told
him said facts or he saw the same himself. We find no
suggestions have been given to PW-7 and PW-8 that they were
the ones who told said facts to PW-11. No suggestion has
been given to PW-11 that said facts were told to him by either
PW-7 or PW-8. Thus, prima facie, said facts deposed to by PW-
11 have to be accepted as his narratives which he saw with his
eyes. It is of importance and hence is being re-emphasized by
us that all these facts, pertaining to the first altercation find a
mention in Raju‟s statement Ex.PW-11/A. That Raju has told
the investigating officer and as recorded in his statement
Ex.PW-11/A that Ramesh @ Dudhia shot his brother from
contact range (the expression used in the statement is „desi
katta nikal kar Murari ki chhati par side mein lagaa kar goli
maar di‟), a fact corroborated from the post-mortem of the
deceased, as noted in the post-mortem report Ex.PW-5/A, the
deceased had a tattooed entry wound of the bullet; meaning
thereby that the bullet was fired from contact range, is of a
nature that only an eye-witness could so state. We say so for
the reason we find it to be a very minute detail pertaining to
the commission of the crime which only an eye can notice and
hence narrate at a later point of time. Relayed information i.e.
hearsay testimony have the hallmark of minute details being
missing.
54. That Rohit had rung up the police from his mobile
number and had conveyed the fact of Murari being shot at, is
not in dispute. Can it be a good enough justification to infer
that Raju lied so as to create a ground by way of justification
for not accompanying his brother to the hospital, because the
natural conduct of a brother would be to keep company with
his injured brother?
55. As noted in para 21 above, Rohit PW-7, deposed
that after he called the PCR at number 100, Raju, Monty and
he arranged for a TSR, Raju went to inform his parents and he
i.e. Rohit and Monty took Murari to the hospital. This explains
Raju parting company with his brother. We do not find Raju‟s
conduct unnatural. He was a lad in his teens being 17 years of
age when the crime took place. Finding his brother in the safe
hands of his friends and additionally for the reason that 3
people and an injured could not possibly sit inside a TSR, Raju
parting company to inform his parents, is not an unnatural
conduct. Raju claims to have gone to a PCO booth to ring up,
but stated that he went to ring the police. Deposing after
more than 1 year of the incident, young Raju, not
remembering the purpose of his visit to the PCO booth is not of
such magnitude that Raju has to be totally discredited.
Obviously, while deposing in Court, Raju had the presence of
police over bearing on his mind. Raju appears to have slipped
up on a minor point. Admittedly, Raju has not made any call
to the police. It reinforces the fact that Raju rushed to the PCO
booth to inform his parents, but slipped up while deposing in
Court, by stating that he rushed to the PCO booth to inform the
police. That PW-35 saw Raju with a mobile phone in the police
station does not lead to an inference that Raju had a mobile
phone with him. As noted hereinabove, after Raju‟s statement
Ex.PW-11/A was recorded by SI Subhash Chand, SI Subhash
Chand left for the hospital. The defence has not examined
Raju as to what he did thereafter. Thus, there is a possibility
that Raju went home, which we note is not too far off from the
place of the incident and picked up a mobile phone or that,
somebody from his family, who got information of the offence,
came to the place of occurrence and Raju took a mobile phone
from said person. We note that Raju has just not been cross
examined on the point of his having a mobile phone with him.
Had he been cross examined on said point, Raju would have
given some explanation and in said circumstance, with
reference to his answers, the issue could have been debated.
56. That Raju deposed that Ramesh fired from the right
side, on the left side of the chest of his brother and the pistol
was stuck towards the left of the left side of the chest and that
the trajectory of the bullet is an entry on the left of the left
side of the chest, moving towards the right, is not destructive
of the testimony of Raju, in fact, it is in perfect harmony with
the testimony of Raju.
57. Where two people stand face to face, the left side
of one would be directly opposite the right side of the other.
Extended parallel across, the left hand would meet the right
hand of the person opposite and vice versa. That is why, while
shaking hands, the same are crossed. Thus, with a pistol in his
right hand, when the shot was fired by the assailant from
contact range, the left side of the victim, who was facing the
assailant, was obviously the side which came in contact.
Whether the bullet would travel in the direction towards the
left or the right, would depend upon the manner in which the
wrist is twisted. If twisted towards the left, the bullet will
travel in the direction towards the right of the victim and vice
versa. Thus, the submission predicated with reference to the
trajectory of the wound of the deceased is wholly mis-
conceived.
58. We fail to understand the logic of the fifth
submission. The site plan Ex.PW-25/A shows that the
deceased was shot on the first step outside Ahuja Clinic. Let
us assume that the riser of the step was one foot. We note
that the normal riser of a step is between 6 inches to 9 inches.
From the post-mortem report of the deceased, it is apparent
that his height was 161 cms. The entry of the bullet is about
120 cms above the feet of the deceased. As per PW-11,
Ramesh @ Dhudia fired the shot while sitting on the
motorcycle. A person on a motorcycle would be seated at a
height of about 100 cms from the ground. The bullet which
has pierced the body of the deceased has travelled in an
upward direction. The extended hand of the assassin can
safely cover the differential distance of 30 cms i.e. the height
difference of the seat of the motorcycle on which the assassin
was sitting and the body part of the deceased who was
standing on the step, when the bullet was shot. It has to be
noted that a person who is sitting on a motorcycle would have
his shoulder at least about 120 cms above the ground level.
59. We find no discrepancy in the eye witness account
vis-à-vis the nature of injury and the manner in which the
witness claims that the shot was fired. In fact, the aforesaid
discussion shows the complete truthfulness of PW-11.
60. We hold that the testimony of PW-11 contains the
nugget of truth and the same is truthful and without any
blemish. The role assigned to the appellants is clearly
emerging in the testimony of PW-11. We concur with the
findings arrived at by the learned Trial Judge. We affirm the
conviction of the appellants for the offence punishable under
Section 302/34 IPC.
61. The appeals stand disposed of dismissing
Crl.A.No.957/2008, Crl.A.No.1008/2008 and Crl.A.No.
1012/2008. Crl.A.No.1041/2008 is dismissed in so far it
challenges the conviction of Ramesh @ Dhudia for the offence
punishable under Section 302/34 IPC. The said appeal is
partially allowed in so far Ramesh @ Dhudia has been
convicted for the offence punishable under Section 27 of the
Arms Act 1959. But, his conviction is modified for having
committed an offence punishable under Section 25 of the
Arms Act 1959, for which offence, he is sentenced to undergo
rigorous imprisonment for 3 years and to pay a fine in sum of
Rs.2,000; in default of payment of fine to undergo simple
imprisonment for 1 month. Needless to state, the sentences
imposed upon Ramesh @ Dhudia shall run concurrently.
(PRADEEP NANDRAJOG)
JUDGE
(ARUNA SURESH)
JUDGE
May 25, 2009
MM
