Vijay vs State
2009 Latest Caselaw 4480 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on : October 28, 2009
                      Judgment Delivered on: November 05, 2009

+                    CRL.APPEAL NO.151/2000

       VIJAY                                      ...........Appellant
               Through:      Mr.L.D.Mual & Mr.S.S.Mual, Advocates.


                           Versus
       STATE                              ...........Respondent
           Through: Mr.M.N.Dudeja, A.P.P.

                     CRL.APPEAL NO.771/2006

       HANS RAJ                                   ...........Appellant
           Through:          Mr.L.D.Mual & Mr.S.S.Mual, Advocates.


                                  Versus
       STATE                              ...........Respondent
           Through: Mr.M.N.Dudeja, A.P.P.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?                No.

     3. Whether the judgment should be reported in the
        Digest?                                        No.

PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 5.6.1999,

appellants Vijay and Hans Raj have been convicted for the

offences punishable under Section 302/394/34 IPC and have

been sentenced to undergo imprisonment for life for said

offences. Appellant Hans Raj has additionally been convicted

for the offence punishable under Section 397 IPC, for which

offence he has been sentenced to undergo imprisonment for

seven years.

2. Briefly stated, the case of the prosecution is that at

about 5.30 AM on 17.4.1996, appellants Vijay Kumar and Hans

Raj committed robbery and in the process murdered Ashok

Kumar at City Service Center Petrol Pump, Mangolpuri, Delhi.

3. Process of law was set into motion, when at 5.30

AM on 17.04.1996, Const.Nirmal Singh PW-23, the duty officer

at PS Mangolpuri received information that a person had been

shot at new petrol pump by persons in a Tata 407 vehicle. He

made an entry being DD No.7-B, Ex.PW-23/B wherein he

entered said information. Copy of said DD No.7-B was

entrusted to SI C.M.Meena PW-18 for investigation, who along

with Const.Ramkesh PW-17 reached the spot. They found the

dead body of Ashok Kumar, an employee of the said petrol

pump, lying there with a bullet injury on the forehead and

blood oozing therefrom. SI C.M.Meena met Dharampal PW-8,

another employee of the petrol pump and recorded his

statement Ex.PW-2/A. In the said statement Dharampal stated

that at about 4.45 AM on 17.04.1996 a blue coloured tempo

came to the petrol pump and the driver of the vehicle asked

for 10 liters of diesel. After getting the diesel filled, the driver

paid Rs.100/- to him i.e. Dharampal and when he took out a

pack of notes from his pocket to pay back the balance sum of

Rs.30/-, the driver attempted to snatch the money from him.

He managed to escape from there and raised an alarm. As a

result, his co-employees Jitender, Ashok and Surender got alert

and rushed towards the tempo. Surender carried a stick

(danda) with him from the cabin. On this, the tempo driver

rushed back and started reversing the tempo. When they all

i.e. Jitender, Surender, Ashok Kumar and Dharampal tried to

stop the tempo, the person sitting on the conductor's seat

fired with a pistol from the window of the tempo, which hit

Ashok Kumar. Ashok Kumar died at the spot. SI C.M.Meena

sent this statement of Dharampal for registration of an FIR

through Const.Ramkesh. At 7.45 AM HC Rajbir Singh PW-2

registered FIR Ex. PW-2/B at PS Mangolpuri.

4. After the registration of FIR, the investigation was

handed over to Insp.Rajender Singh PW-25 who also reached

the spot. He summoned a photographer Shri Bharat Kumar

PW-26 who took photographs Exs.PW-26/A-1 to A-9 of the dead

body; negatives whereof are Ex.PW-26/P-1 to P-9. He prepared

a site plan Ex.PW-8/8 of the spot. He lifted blood stained earth

and earth control from the spot and seized them as recorded

in memo Ex.PW-8/B. He filled in the requisite inquest papers

and sent the dead body to the mortuary of Civil Hospital, Sabji

Mandi. He recorded the statements under Section 161 Cr.P.C.

of the eye-witnesses.

5. On the same day, Dr.L.T.Ramani conducted the

post-mortem examination of the dead body of Ashok Kumar

and prepared his report Ex.PW-1/A. He noted three injuries on

the person of the deceased; two being abrasion injuries on the

forehead and cheek area, one being a laceration wound. He

opined that injury No.3 was an entry wound of a fire arm

projectile, which injury was sufficient in the ordinary course of

nature to cause death. The doctor handed over the clothes of

the deceased, the sample of his blood and the bullet Ex.P-3

recovered from his body to the police which were seized as

recorded in memo Ex.PW-17/A.

6. On 21.04.1996 the investigation of the case was

transferred to special staff North-West and after about a week

the investigation was again transferred to SI C.M. Meena PW-

18.

7. An FIR No.422/1996 for an offence punishable

under Section 307 IPC and Section 25 and 27 of the Arms Act

was registered at PS Mangolpuri. With reference to

investigation of the said offence, on 29.04.1996 SI Narender

Singh (not examined), SI Jaibir Singh PW-10 and HC Ranbir

Singh PW-11 of PS Mangolpuri who were investigating the said

case, arrested appellant Hans Raj, appellant Vijay and two

other persons being Jai Kishan and Yashpal who were accused

in the said case i.e. the case pertaining to FIR No.422/1996. On

being arrested, while carrying out the personal search of the

appellants, they were found in possession of a country made

pistol each. Said pistols were seized as recorded in memos

Ex.PW-10/E and Ex.PW-10/F. SI Narender Singh interrogated

the four accused and recorded their disclosure statements.

The statement of Hans Raj is Ex.PW-10/A and the statement of

Vijay Kumar is Ex.PW-10/B. In the said two statements, the

appellants disclosed their participation in the offence

pertaining to the instant FIR.

8. The aforesaid information pertaining to the arrest of

the appellants as also Jai Kishan and Yashpal was given to SI

C.M.Meena who obtained the police custody of the appellants

Hans Raj and Vijay Kumar on 14.05.1996. On 15.05.1996 the

appellants led a police team to some bushes near the petrol

pump and got an empty cover of cartridge Ex.P-2 recovered

which was seized as recorded in the memo Ex.PW-8/B. SI C.M.

Meena prepared sketch Ex.PW-8/F of the same.

9. Pertaining to the bullet Ex.P-3 recovered from the

dead body of the deceased at the time of the post-mortem and

the cartridge Ex.P-2 got recovered by the appellants, a report

Ex.X-1 was obtained as per which the bullet and the cartridge

were opined to be fired from the country made pistol sent for

ballistic examination.

10. Appellants Vijay and Hans Raj were put to trial,

being charged for the offence of having murdered Ashok

Kumar and used firearms in the commission of the offence of

robbery.

11. Needless to state, the prosecution hinged its case

on the testimony of Dharampal PW-8, the informant on whose

statement the FIR was registered as also the co-worker at the

petrol pump i.e. Surender Kumar PW-9 as also the recovery of

a firearm from appellant Hans Raj and the FSL report as per

which the bullet Ex.P-3 recovered from the body of the

deceased as also the cartridge Ex.P-2 were fired from the

firearm sent along with the bullet and the cartridge for opinion.

12. Dharam Pal PW-8 deposed that at about 5.30 AM on

17.4.1996 he was working at City Service Centre Petrol Pump,

Mangolpuri when a tempo driven by appellant Vijay entered

the petrol pump. Appellant Hans Raj was sitting on the seat

next to the driver's seat. Appellant Vijay got down and asked

him to fill 10 litres of diesel. After the same was filled, they

paid and left the petrol pump. After sometime they returned to

the petrol pump, demanding the receipt of payment. When he

i.e. Dharam Pal went inside the cabin to make a receipt, Vijay

followed him. Vijay placed a pistol on him i.e. Dharam Pal and

told him to hand over all the cash. He i.e. Dharam Pal

somehow managed to push away Vijay and raise an alarm,

whereupon his co-employees got alert and protested. On

seeing them, Vijay rushed back to his tempo; the employees

including Dharam Pal chased him. Hans Raj who was sitting on

the seat next to the driver's seat fired with a pistol, which hit

Ashok Kumar, a helper at the Petrol Pump.

13. Surender Kumar PW-9 deposed that at about 5.15

AM on the day of the incident when he was working at City

Service Centre Petrol Pump, Mangolpuri, Delhi, a blue coloured

tempo of TATA 407 make came at the petrol pump. At that

time he was sleeping in the cabin, Dharampal woke him up

and told him that the persons in the tempo were robbing them.

He immediately rushed outside the cabin and saw his

colleagues Jitender, Dharampal and Ashok Kumar chasing the

tempo. Ashok Kumar was ahead of the others. When they

attempted to stop the tempo, appellant Hans Raj who was

sitting on the seat next to the driver's seat fired a shot with a

pistol which hit Ashok Kumar on his forehead. After firing the

shot, appellant Hans Raj and his accomplice managed to

escape in the tempo. He could not see the driver of the tempo.

14. Vide impugned judgment and order dated

05.06.1999, the learned Trial Judge gave a finding of guilt qua

both the appellants. The reasoning noted by the Trial Judge for

said finding is produced herein under:-

"40. The next point for determination is with regard to the involvement of the accused persons in this case. The involvement can be traced out against the accused persons from three cases registered against them. The case FIR No.199/96 police station Jahangirpuri under Section 379 IPC is with regard to the theft of a tempo belonging to PW-5 Sh.Kharati Lal with the help of which the crime in this case was stated to be committed. The accused persons were apprehended in case bearing FIR No.422/96 police station Mangolpuri under Section 307 IPC while they were attempted to commit murder and made disclosure of this case also. Leaving apart the acquittal or conviction of the aforesaid cases, there are certain convincing evidence of the prosecution witnesses which leads to the conclusion tha the accused persons have actively participated in the commission of the crime. Statement of PW-5, Sh.Kharati Lal, the superdar of vehicle No.HR-12-7089 has clearly stated that accused Vijay was employed as Driver of the aforesaid tempo. He worked for three months with him and thereafter he found that his aforesaid tempo was stolen for which the above theft case was registered. Accused Vijay happens to be one of the accused persons of this case and he was identified by PW-5 Sh.Kharati Lal. There is no denial to this effect from the defence counsel.

41. When the accused persons were arrested in case bearing FIR No.422/98, police station Mangolpuri, they made a disclosure statement Ex.PW10/A in respect of accused Hans Raj and Ex.PW10/B in respect of accused Vijay. From their disclosure some facts and some incriminating articles were recovered in consequence of this disclosure. It is pertinent to mention here that both the accused persons in their disclosure statement stated about the theft of the aforesaid tempo, they changed the number of that tempo, planning for commission of the petrol pump

robbery etc. These facts have been discovered during the trial of this case from the statement of PW-5 Sh.Kharati Lal, PW-8 Sh.Dharampal, PW-9 Sh. Surinde Kumar, PW-10 S.I. Jairbir Singh and PW-18 S.I.C.M. Meena. It is pertinent to mention here that the facts narrated in the disclosure are corroborating in all material particulars from the statement of independent witnesses like PW-8 Sh. Dharampal, PW-9 Sh. Surinder Kumar and other police witnesses. Significant incident relates to the theft of the tempo, changing of its number, leaving the said tempo in abundant condition, recovery of one cover of the cartridge. Thus the disclosure statements have led the discovery of theft as well as the recovery of incriminating articles and these facts are relevant under Section 27 of Indian Evidence Act. All these corroborated facts lead to irresistible conclusion that the accused persons namely Hans Raj and Vijay have actively participated in the commission of crime of robbery coupled with murder of one Ashok Kumar, Salesman of City Service Centre, Petrol pump Mangolpuri, Delhi.

42. Besides, the aforesaid evidence against the accused persons. PW-8 Sh.Dharampal. PW-9, Sh. Surinder Kumar have established that they were present at the aforesaid Petrol Pump at the time of incident. When the accused persons namely Vijay and Hans Raj came on tempo for diesel filling were duly identified by those two witnesses at the spot. The presence of these witnesses have not at all been challenged by the ld.defence counsel. Besides this, from the statements of PW-13 Sh.Ji9tender Kumar Sharma, PW-21 Sh. Jitender Kumar son of Sh. Laxmi Chand and PW-24 Sh. Ish Puniani, it has been established that they were employees at the aforesaid petrol pump and were working at the relevant time with the said petrol pump. Both the aforesaid witnesses namely PW-8 Sh. Dharampal and PW-9 Sh.Surinder Pal and other co-employees have witnessed the scene of occurrence and shooting of Ashok Kumar by Hans Raj, who was sitting by the side seat of driver in the said tempo. At that time, the

accused Vijay was driving the said tempo. The statement of the aforesaid witnesses are so meticulous and explicit which relates to the incident that took place at the petrol pump. There is no denial of this fact from any of the prosecution witnesses. In other words, the defence could not make any dent in the prosecution case.

43. After the aforesaid incident, victim Ashok Kumar was got admitted in the hospital. The post mortem conducted by completing all the formalities as required, under the law, such as death report Ex.PW18/B, the brief facts of the case Ex.PW18/C and identification of the dead body Ex.PW18/D to Ex.PW18/F. The post mortem was conducted by PW-1, Dr. L.T. Ramani and he opined that the injuries were anti mortem. He further opined that the injury No.3 was due to the fire arm and was sufficient in the ordinary course of nature to cause the death. He proved his report Ex.PW1/A. There is no cross- examination on the opinion of the doctor. Thus, it has been duly established that the cause of death of the victim is on account of the injury caused due to the fire arm injury on the forehead of the victim Ashok Kumar. It has also been established that from the statement ofg PW-9 Sh. Prakash Chand, PW-20, Sh. Bhule Ram that the dead body belongs to Ashok Kumar, their nephew and father of the deceased.

44. The accused persons in their statement under Section 313 Cr.P.C. have merely denied the evidence put forth. Mere denial of a fact is no sufficient. There is no plausible explanation given by these accused persons in their statements. They have also not preferred to lead any evidence in defence."

15. The learned Trial Judge has apparently not relied

upon the report of the ballistic expert i.e. Ex.X-1 probably for

the reason the report is most unhappily worded. It gives an

opinion with respect to a firearm sent to the expert. Which is

the parcel and containing what seal (though it has been

mentioned that the seals were intact) has not been noted by

the expert. The report records that the various exhibits were

sent to the expert through Const. Ram Mehar, who has not

been examined as a witness and thus we have no clue as to

with reference to which country made pistol, the opinion has

been given.

16. At the hearing of the appeals, learned counsel for

the appellants Mr.L.D.Mual, Advocate urged that Dharampal

PW-8 has given a materially different version while deposing in

Court vis-à-vis his statement Ex.PW-2/A. Learned counsel

pointed out that in his statement Ex.PW-2/A Dharampal stated

that after ten litres of diesel was filled in the tempo in which

the accused were travelling, receiving Rs.100/-; price of the

diesel being Rs.70/-, when he took out money from his pocket

to return Rs.30/-, the driver attempted to snatch the money

from him. While deposing in Court Dharampal stated that

after purchasing ten litres of diesel, the appellants left but

returned and demanded receipt for payment and at that point

of time Vijay took out a pistol and demanded money from

Dharampal. Thus, learned counsel urged, that Dharampal had

to be disbelieved. Counsel urged that even Surender Kumar

had not to be believed because he had a motive to support his

friend Dharampal. The other submission made by learned

counsel was that if Surender Kumar had to be believed, he

having named only appellant Hans Raj as the person who fired

and having categorically stated that he could not see the face

of the person driving the tempo, Vijay was entitled to the

benefit of doubt.

17. The plea of learned counsel has to be rejected for

the reason we find no serious improvement or a contradictory

version spoken of by Dharampal PW-8. Embellishments of a

minor nature or variations of a minor nature do not discredit a

witness. The reason is obvious. When a person deposes two

facts seen by him months before, certain events at the fringe

do get blurred. The incident took place on 17.4.1996.

Dharampal was examined in Court on 3.2.1999. The time lag

of nearly two years and ten months is long enough for a

person to imperfectly recollect the facts at the fringe of an

incident. Save and except the embellishments that the

accused, left and returned, everything else deposed to by

Dharampal is in sync with his statement recorded by the police

soon after the incident. It has also to be noted that a co-

worker had been murdered and Dharampal was face to face

with the accused when the incident took place. It can

reasonably be expected that by the time Dharampal made his

statement to the police, his nerves were still frozen and

therefore omitted to disclose the complete sequence of events

or may be thought it unnecessary to state that the accused

left but returned forthwith.

18. That apart, it is settled law that if there is some

embellishment in the testimony of a witness, if there is

corroboration to his testimony, the part of the testimony of

such a witness which is independently corroborated can be

accepted; rather has to be accepted.

19. No embellishment has been shown to us in the

testimony of Surender Kumar who also witnessed the incident

of firing and has corroborated Dharampal in the manner in

which the offence was committed and Hans Raj shooting at

Ashok Kumar.

20. That Surender Kumar could not see the driver as

Hans Raj was obstructing his view, does not entitle Vijay to any

benefit, for the reason we find Dharampal to be a truthful

witness.

21. That for the reason the ballistic expert has penned

a shoddy report, the appellants have got the benefit of the

report in question being not used as incriminating evidence

does not dilute the fact that the appellants were found to be

carrying unlicensed country made firearms, which shows the

propensity of the appellants as unworthy citizens having

criminal background. It is unfortunate that in the instant case

no charge was framed against the appellants under the Arms

Act for carrying with them unlicensed firearms.

22. It is true that no participative role in the actual

shooting has been assigned to appellant Vijay, but the

testimony of the two eye-witnesses establishes that both the

appellants were on the prowl looking for victims and under the

circumstances it has to be held that both the appellants

shared a common intention to overcome resistance or use

force in the commission of robbery. Thus, Vijay is liable for the

act of Hans Raj by virtue of Section 34 IPC.

23. Pertaining to the conviction of appellant Vijay for

the offence of murder the same has to be sustained. But for

the offence punishable under Section 394 IPC, the conviction

of appellant Vijay is set aside for the reason it is not proved

that Vijay caused hurt to anyone.

24. Pertaining to appellant Hans Raj, his conviction for

the offence of murder and for the offence punishable under

Section 394 IPC has to be sustained however his conviction for

the offence punishable under Section 397 IPC has to be set

aside for the reason no robbery was committed. It merely

remained an attempt. But he is liable to be convicted for the

offence punishable under Section 398 IPC.

25. The two appeals are accordingly disposed of

maintaining the convictions and the sentences imposed upon

the appellants save and except the conviction of appellant

Vijay for the offence punishable under Section 394 IPC and the

conviction and sentence imposed upon appellant Hans Raj for

the offence punishable under Section 397 IPC. We acquit

appellant Vijay of the charge under Section 394 IPC. We

acquit appellant Hans Raj of the charge under Section 397 IPC

but convict him for the offence punishable under Section 398

IPC for which offence we punish him to undergo rigorous

imprisonment for seven years.

25. Since the appellants are in jail, the Registry is

directed to transmit a copy of the present judgment and order

to the Superintendent, Central Jail, Tihar for being supplied to

the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE NOVEMBER 05, 2009 Dharmender