Delhi High Court
Ghanshyam @ Javed vs State on 1 September, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 26th August, 2009
Judgment Delivered on: 1st September,2009
+ CRL.A.885/2005
GHANSHYAM @ JAVED ...Appellant
Through: Mr.Ranbir Singh Kundu and
Mr.Rajiv Sirohi, Advocates.
Versus
STATE ...Respondent
Through: Ms.Richa Kapoor, APP.
WITH
CRL.A.721/2005
KISHORE KUMAR ...Appellant
Through: Mr.Kaushal Kaushik, Advocate.
Versus
STATE ....Respondent
Through: Ms.Richa Kapoor, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers 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
INDERMEET KAUR, J.
1. The appellants Kishore Kumar and Ghanshyam have
preferred respective appeals against the impugned judgment and
order of sentence dated 29.7.2005, whereby accused Ghanshyam
has been convicted for the offence punishable under Sections
186/353/332/302/411, read with Section 34 of the IPC as also under
Sections 25 & 27 of the Arms Act; Kishore Kumar has been
convicted for the offence punishable under Sections
186/353/332/302 read with Section 109 IPC as also for the offence
punishable under Section 411 read with Section 34 IPC. Both the
appellants have been sentenced separately for each of the
offences; convict Ghanshyam has been sentenced to undergo
rigorous imprisonment for life and a fine of Rs.5000/-, in default of
payment of fine, further rigorous imprisonment for six months for
the offence punishable under Section 302 of the IPC; convict Kishore
has been sentenced to undergo rigorous imprisonment for life and a
fine of Rs.5000/-, in default of payment of fine further rigorous
imprisonment for six months for the offence punishable under
Section 302 read with Section 109 of the IPC. Both the convicts
have been further sentenced to undergo rigorous imprisonment for
three months for the offence punishable under Section 186 read
with Section 34 of the IPC; rigorous imprisonment for one year for
the offence punishable under Section 353 read with Section 34 of
the IPC; rigorous imprisonment for two years for the offence
punishable under Section 323 read with Section 34 IPC; rigorous
imprisonment for two years for the offence punishable under
Section 411 IPC; rigorous imprisonment for two years for the
offence punishable under Section 471 of the IPC. Convict
Ghanshyam has been further sentenced to undergo rigorous
imprisonment for one year and a fine of Rs.1000/-, in default of
payment of fine further rigorous imprisonment for one month for the
offence punishable under Section 25 of the Arms Act; rigorous
imprisonment for three years and a fine of Rs.2000/-, in default of
payment of fine further rigorous imprisonment for two months for
the offence punishable under Section 27 of the Arms Act. Benefit of
Section 428 Cr.P.C. has been granted to both the convicts.
2. The facts as culled out by the prosecution are that on
07.1.2001, Inspector Rishi Dev PW-21 posted as SHO Police Station
Civil Lines along with Const.Rajender and Const.Ramesh Chand PW-
17, reached Punjabi Basti, Club Road where they were joined by the
deceased SI Vinod Kumar and Const.Bijinder PW-18. They
proceeded towards Majnu Ka Tila in their Gypsy and reached
Magazine Road at about 6.35PM. A white maruti car having number
plate of DL-9CC-1595 was noticed standing in suspicious
circumstances. Two persons were sitting in the car, one of whom
was on the driver seat. PW-21 directed his staff to check the car.
As soon as the staff reached near the car, the occupants started
running. The police party chased the said occupants and after a
distance of about 50 to 60 yards SI Vinod managed to apprehend
one of the two occupants whose name later on was revealed as
Ghanshyam. The second person, Kishore Kumar was apprehended
by PW-18. The appellant Kishore exhorted Ghanshyam and shouted
"Maar Goli"; upon which Ghanshyam fired shot at SI Vinod Kumar
who fell down on the ground. PW-17 ran after Ghanshyam who,
however, managed to escape. Kishore Kumar was apprehended at
the spot.
3. The PCR van reached the spot. ASI Santokh Singh PW-
12, posted Incharge of PCR Van Suger-53 along with H.C. Desh Pal
PW-28, on receipt of intimation at 6.35 PM about firing at Majnu Ka
Tila had reached the spot where they found a crowd gathered; SI
Vinod Kumar was lying in an injured condition, PW-17 Const.Bijinder
was also injured. PW-12 and PW-28 removed both the injured to the
Trauma Centre, Civil Lines. Const.Rohtash Kumar PW-25 working as
Duty Constable at Trauma Centre informed the local Police Station,
Civil Lines that SI Vinod Kumar and Const.Bijinder had been brought
to the hospital in an injured condition. This information was
recorded in DD No.14 Ex.PW-4/A by ASI Yadav Chandra PW-14. The
rukka Ex.PW-4/E was endorsed by PW-4 pursuant to which he had
recorded the formal FIR i.e. FIR No.7/2001 Ex.PW-4/C, under
Sections 186/353/323/307/411/471 read with Section 34 of the IPC
as also Sections 25 & 27 of the Arms Act. SI Mukesh Tyagi PW-19
had also reached the spot. He was joined by Const.Satinder PW-20
who had accompanied ASI Kesar Lal. The crime team was
summoned. The photographer Const.Praduman Kumar PW-24 took
six photographs of the spot negatives of which are Ex.PW-24/1 to
Ex.PW-24/6. On 08.1.2001, at the Trauma Centre, he took three
photographs Ex.PW-21/P to Ex.PW-21/R of the dead body from
different angles; negatives of which are Ex.PW-2/7 to Ex.PW-PW-2/9.
The rough site plan Ex.PW-20/B of the place of occurrence was
prepared and thereafter the site plan to scale Ex.PW-11/A was
prepared by Inspector Devinder Singh PW-11. The blood stained
earth and earth control was lifted from the spot and seized vide
memo Ex.PW-19/A. The MLCs of SI Vinod and Const.Bijinder Ex.PW-
21/C and Ex.PW-21/D were collected; SI Vinod was declared brought
dead. The clothes of the deceased were also seized vide memo
Ex.PW-18/A.
4. From the spot the maruti car, suspected to be stolen
property was taken into possession vide memo Ex.PW-18/G.
Accused Kishore Kumar who had been apprehended at the spot was
arrested and his personal search was taken in the presence of PW-
18 vide memo Ex.PW-18/C. His disclosure statement Ex.PW-18/D
was recorded.
5. On the following day i.e. 08.1.2001, the post mortem of
the deceased SI Vinod was conducted by doctor Ashok Jaiswal PW-
23 who had noted the following injuries:
"An oval punctured wound 2.2 cm x 1.6 cm on left upper
chest on third inter costal space 6 cm from left nipple at
10: clock position, 6 cm below inner end of cievicte,
medial border 4 cm from midline. The margins were
inverted with singeing of chest hairs at its upper margins
with blackening around it over an area 1.2 to 1.8 cm.
There was tattooing seen on left upper chest and around
punctured wound over an area 7 cm x 10 cm. Entry
wound of fire arm projectile which was packed with
gauge pieces. No other external injuries seen on the
body."
6. He opined the cause of death as haemohrrage shock
consequent to injury no.1; which was an ante mortem entry wound
caused by a fire arm projectile fired from near contact range. The
dead body was identified by Dev Karan Yadav PW-2 father-in-law of
the deceased, Om Prakash PW-3 father of the deceased as also by
his neighbour SI S.S. Tyagi PW-15. The fired bullet retrieved from
the dead body was handed over by PW-23 to PW-21 which was
seized and sealed in a parcel having seal of KLS and deposited in
the Malkhana. Accused Kishore Kumar made a subsequent
disclosure statement Ex.PW-18/G and disclosed his involvement in
the commission of the theft of Maruti car bearing no.DL-2CF-4756
which had been seized from the spot.
7. On 10.1.2001 investigation of this case was handed
over to ACP Bhag Singh PW-40. On 13.01.2001, PW-40 along with SI
Ram Avtar PW-37, PW-17 and PW-18 reached near Police Station
Seema Puri where they were informed that there was a secret
information about accused Ghanshyam who would be coming to a
petrol pump near Hapur on Garh Road. After about 10-15 minutes,
on the signal of the informer accused Ghanshyam was apprehended
and identified by PW-17 and PW-18 as the assailant of SI Vinod
Kumar and Cont.Bijinder on 07.1.2001. His personal search Ex.PW-
17/A was prepared and he pointed out the place of occurrence vide
memo Ex.PW-18/H.
8. He made three disclosure statements Ex.PW-35/C,
Ex.PW-37/A and Ex.PW-8/A. No recovery was effected pursuant to
the first disclosure statement. In pursuance of his second disclosure
statement recorded on 16.1.2001 accused Ghanshyam took the
police party to the house of Zulfikar but no recovery was effected
from there; he then led the police party to the house in which C-27
was written and after taking the keys of the room from a small
temple under the staircase he opened the room and got recovered
two bags i.e. a black colour and a green colour bag. Photocopy of
the RC of a maruti car bearing number DL-2CF-4756 belonging to
one Bijinder Aggarwal was also recovered besides cash of
Rs.1,15,000/- and one gold chain as also one blood stained shirt and
pant which were taken into possession vide memo Ex.PW-37/C,
Ex.PW-37/D, Ex.PW-37/E, and Ex.PW-37/F. The third disclosure
statement of accused Ghanshyam was made on 24.01.2001 and
pursuant thereto in the presence of Renu Khanna PW-8 and Ram
Charan PW-14 he got recovered one deshi katta with two live
cartridges which were taken into possession vide memo Ex.PW-8/C.
9. The finger prints had been lifted from the spot by N.K.
Sharma PW-1; Q1 to Q3 were the chance prints lifted from the left
front door of the car, Q4 and Q5 were the chance prints lifted from
the left rear door of the car, Q6 was the chance print lifted from the
looking mirror near driving seat, Q7 was the chance print taken
from the right side rear door of the car, along with the specimen
finger prints of both the accused persons were sent to finger print
expert Shri Sanjay Kumar Jha PW-36 who after examination opined
that chance print Q3 is identical with the finger impression of
Kishore Kumar and the chance print Q6 is identical with the right
thumb mark of the finger impression of Ghanshyam. His report is
Ex.PW-36/A.
10. The CFSL Expert Mr.K.C.Varshney PW-39 had examined
the three parcels i.e. crime fired bullet, the country made pistol and
the two cartridges which had been sent to him for examination and
had opined that the striation marks on the bullet marked EB-1
proved that it was discharged through the country made pistol Ex.F-
1 which had been got recovered by Ghanshyam.
11. Mr. Bijinder Aggarwal was the owner of the Maruti car
bearing no.DL-2CF-4756. He was examined as PW-5. He had
deposed that on 19.12.2000 he had parked his car at about 9.30 PM
and when he came out after 30/45 minutes he found that his car
was missing. Matter was reported to the police and FIR
No.318/2000 under Sections 379/411 IPC was thereafter registered
in Police Station Roop Nagar by HC Tejwati PW-6. The ownership of
the vehicle in the name of PW-5 was proved by Sh.A.K.Singh PW-7.
The number plate of the vehicle had been changed and the original
number plate was replaced by the number plate DL-9CC-1595. This
has come in the deposition of Const.Mahinder PW-22.
12. Since both these cases i.e. FIR No.7/2001 under
Sections 307/302/353/186/332/411/471 read with Section 34 IPC
and Sections 25/27/54 & 59 Arms Act and FIR no.318/2000 under
Sections 379/411 IPC had arisen out of the same incident they were
ordered to be clubbed together to avoid conflict of judgment. The
impugned judgment has decided the fate of both these FIRs.
13. In the statement of accused persons recorded under
Section 313 of the Cr.P.C. both of them pleaded innocence.
Accused Kishore Kumar had stated that he had been picked up from
his house on 07.1.2001 and he was taken to Magazine Road where
he was asked to put the palms of his both the hands on the maruti
car which was already there and thereafter a false case has been
planted upon him. Accused Ghanshyam also pleaded innocence. He
had stated that the witnesses have deposed falsely as the victim
was a police official.
14. Two witnesses have been produced in defence. Both of
whom are shop keepers in the vicinity of Majnu Ka Tila. They both
stated that on 02.1.2001 Kishore Kumar was not in the vicinity and
not involved in the present case.
15. The trial Judge while convicting the accused has relied
upon the testimony of the eye witnesses i.e.PW-18, PW-17 and PW-
21 of whom PW-18 was also the injured. The report of the finger
print expert identifying the finger impressions of both the accused
on the maruti car found at the spot was the additional incriminating
circumstance qua both the accused. Kishore Kumar had been
apprehended at the spot; Ghanshyam had been absconding and he
had been apprehended six days later; he had got recovered his
blood stained pant which had the same blood group as that of the
deceased; a deshi katta and the cartridges got recovered at his
instance was the most lethal circumstance held against him as the
bullet which had been retrieved from the dead body of SI Vinod
Kumar had as per the CFSL report, been fired from the same
weapon. In the second FIR i.e. FIR No.318/2000 under Sections
379/411 IPC, both the accused having been found to be in
possession of the blue coloured maruti car, a stolen property, whose
original number plate had been replaced with a fake number plate
had led to their conviction under Section 411 IPC.
16. On behalf of the accused persons, it has been submitted
that the testimony of the eye witnesses i.e. PW-17 and PW-21 is
suspect as they were not present at the site; they have been roped
in as witnesses only to build up a foolproof case as the victims of
this case are police officials. Attention has been drawn to the
versions of PW-12 and PW-28 i.e. the police officials of the PCR who
had reached spot and removed the victims to the hospital; it is
submitted that PW-12 categorically had admitted that he had not
seen any police official at the site; if senior police officials i.e. of the
rank of an Inspector were present at the spot, there is no answer as
to why they had not accompanied the injured to the hospital and
their presence had not been noted; the said witnesses have been
planted. On behalf of accused Kishore, it has been argued that the
only role attributed to him is that of exhorting Ghanshyam with
"Maar Goli"; these words by themselves are not sufficient to nail
Kishore for the offence of murder. It is submitted that no recovery
has been effected from Kishore and the only other incriminating
circumstance held against him is the report of finger print expert for
which Kishore has given a valid explanation in his statement under
Section 313 Cr.P.C., wherein he had stated his palm impressions
had forcibly been put on the maruti car to solve a blind murder case
as he was in the bad books of the police and has been labelled as a
B.C. ( bad character) of the area. Qua Ghanshyam, it has been
argued that once the testimony of eye witnesses is discarded, the
only other circumstance is of the recovery of the deshi katta which
is demolished in view of the versions of PW-8 and PW-14 who are
the stock witnesses of the police and their presence at the time of
recovery is highly improbable; once this recovery stands
demolished, the subsequent report of the CFSL would obviously
have no value. The defence of the accused has all along been that
he has been falsely implicated as the victims are police officials.
17. We have perused the record and noted the rival
submissions of the parties
18. The first question to be answered is as to whether PW-
17 Const.Ramesh and PW-21 Inspector Rishi Pal were eye witnesses
to the incident or they have been planted as eye-witnesses. To
appreciate this argument we shall have to examine the versions of
the eye witnesses, the other witnesses who had joined investigation
at the spot, as also the documents which had been prepared
contemporaneously.
19. ASI Santokh Singh PW-12 and HC Deshpal PW-28 both
posted in the PCR were the first persons who had reached the spot
and removed the injured to the hospital. PW-12 has deposed that
on 07.1.2001 at about 6.35 PM while posted In-charge of PCR Van
sugar 53, on receipt of information he went to Majnu Ka Tila where
he found two injured persons and took them to the Trauma Centre.
In his cross-examination he has stated that the injured were lying
on the road and the public persons helped him in removing the
injured in his vehicle; he did not notice, if any, police official were
present there or not. PW-28 has corroborated the version of PW-12
and has stated that on receipt of information at 6.35 PM about firing
in the market at Majnu Ka Tila he along with ASI Santokh Singh
rushed to the spot i.e. B-41, Majnu Ka Tila where they found SI
Vinod Kumar lying in an injured condition from a shot fired at him;
Const.Bijinder was also in an injured condition; they were removed
in the PCR van to the Trauma Centre, Civil Lines. In his cross-
examination, he has stated that when they reached there no police
official was present; thereafter SHO and other staff of the Police
Station reached there.
20. PW-21 has deposed that on 07.1.2001 he was posted as
SHO, Civil Lines. He along with Const. Rajinder i.e. his driver and
Const. Ramesh, PW-17 while investigating the FIR No. 367/2000 of
Police Station, Civil Lines reached the Punjabi Basti where they met
SI Vinod and Const. Bijinder who joined them in their vehicle and
they all went to Majnu Ka Tila. They reached Magazine Road at 6.35
PM. Opposite B-Block, Majnu Ka Tila, a blue coloured maruti car
having number plate of DL-9CC-1595 was noticed, standing in
suspicious circumstances. PW-21 parked his government gypsy
ahead of the Maruti car and asked his staff to check the car. Two
persons were sitting in the car and one was in the driver seat whose
name later on was revealed as Ghanshyam. As soon as his staff
went to check the car, the occupant of the car started running
towards B-Block. The staff i.e. the deceased SI Vinod,
Const.Ramesh and Const.Bijinder chased the accused with PW-21
following them. At a distance of about 50-60 yards SI Vinod
apprehended Ghanshyam and ten paces behind Const. Bijinder
apprehended accused Kishore. Accused Kishore exhorted
Ghanshyam by shouting " Maar Goli"; Ghanshyam fired a shot at SI
Vinod which struck him on the left side of his chest and he fell
down. Const.Ramesh ran after Ghanshyam but he managed to
escape. Five minutes later i.e. at about 6.45 PM, the PCR Van came
to the spot and removed the injured i.e. SI Vinod and Const.Bijinder
to the hospital. Message of the incident was flashed on the wireless
to the ACP, Civil Lines. SI Mukesh Tyagi PW-19, ASI K.L.Meena,
Const.Satinder PW-20, Const.Dharambir, Const. Virender also
reached the spot. PW-21 sent ASI K.L. Meena, Const. Dharambir
and Const. Virender for search of Ghanshyam. SI Mukesh Tyagi and
Const. Satinder were directed to remain at the spot. He i.e. PW-21
prepared the rukka and sent it through Const. Ramesh for the
registration of the FIR. The crime team including photographer
reached the spot at about 7.35 PM and the scene of occurrence was
photographed, the maruti car was inspected. SI N.K. Sharma PW-1,
In-Charge of the crime team gave PW-21 his report Ex.PW-1/A. At
7.45 PM Const. Parminder PW-26 reached the spot and handed over
the copy of the DD No.4A to him regarding the admission of SI
Vinod Kumar at the Trauma Centre. Const. Sant Ram PW-15
thereafter delivered copy of DD No.15A regarding admission of
Const. Bijinder at the Trauma Centre to PW-21. Blood stained earth
and earth control were lifted from the spot vide memo Ex.PW-19/A.
MLCs of SI Vinod and Const. Bijinder Ex.PW-21/C and Ex.PW-
21/D were collected. SI Vinod was declared brought dead.
Statements of the witnesses were recorded. Accused Kishore
Kumar was interrogated and arrested; his disclosure statement
Ex.PW-18/D was recorded; case property was deposited in the
Malkhana. In his cross-examination, he has stated that he was at a
distance of 7 to 8 steps from the car when the accused persons
started running; he has admitted that it was a thickly populated
area where the incident had occurred and there are shops on the
ground floor. He has stated that entrance to the street of B-Block
market was at a distance of 6-7 yards from the car and between the
gali and car, there is a road and central verge which does not have
a partition. He has stated that he along with Const.Bijinder,
Ramesh and ASI Santokh Singh had lifted SI Vinod Kumar into the
PCR van; his clothes had not become blood stained; he has further
stated that SI Vinod had caught hold of accused Ghanshyam from
behind; at that time he had seen the revolver in the hand of
Ghanshyam; immediately after firing the shot Ghanshyam had
become free and had fled; two minutes after the firing, all the shops
had closed. He returned back to the spot from the Trauma Centre
at about 9.45 PM and remained there till midnight. He admitted that
he had not received information at the spot that SI Vinod had been
brought dead at the Trauma Centre.
21. The second eye witness is Const.Ramesh Chand PW-
17. He has deposed on the same lines as PW-1 and has
corroborated his version. He has deposed that on 7.1.2001, he
along with PW-21 joined by Const.Bijinder Singh PW-18 and SI
Vinod, the deceased, had reached Majnu Ka Tila at about 6.30 PM.
They noted one Maruti car no. DL-9CC-1595 parked in suspicious
circumstances; when they proceeded towards the car, the
occupants of the car started running. Const.Bijinder apprehended
one of the said two persons and SI Vinod caught the other. At that
time, one of the two persons whose name later on was revealed as
Kishore Kumar exhorted Ghanshyam „Maar Goli‟ upon which he had
fired shot at SI Vinod which struck on his chest and he fell down;
PCR van came and removed SI Vinod and Const.Bijinder to the
hospital. He further deposed that SI Mukesh with staff also reached
the spot and he i.e. PW-17 took the tehrir for the registration of the
FIR. In his cross-examination PW-17 has admitted that the place of
the incident is a crowded place and there are shops on the ground
floor; the gali where the incident had taken place is about 15 to 20
feet wide and the shops which were opened at that time were in the
process of closing; 25-30 persons had collected at the spot. He has
admitted that Majnu Ka Tila falls in the jurisdiction of PP Majnu Ka
Tila. SI Vinod had immediately fallen down after receiving the gun
shot; Ghanshyam was chased by him up to 40-50 paces but he
managed to flee; when he i.e. PW-17 returned to the spot he saw
scratches on the hands and knees of Const.Bijinder. He reiterated
that PCR van had removed the injured to the hospital, he could not
recollect as to whether he had helped PCR staff to lift the injured in
the PCR van. He admitted that his clothes had become blood
stained but the same had not been seized by the Investigating
Officer. He stated that PCR van had come to the spot within 3 to 4
minutes of the incident; he categorically stated that neither he
himself, nor the SHO had accompanied the injured in the PCR to the
hospital. He denied the suggestion that he and PW-21 had not
accompanied the injured to the Trauma Centre for the reason that
they were not present at the spot. He admitted that Kishore is a
B.C. of the area.
22. The last eye witness who has been examined by the
prosecution is the injured HC Bijinder PW-18. He has deposed that
on 7.1.2001 he along with SI Vinod was on duty at Punjabi Bagh,
Tilak Road when they met Insp.Rishi Dev along with Const.Ramesh.
They joined them in their gypsy and went to Magazine Road, Majnu
Ka Tila; they found a blue Maruti car having number plate DL-9CC-
1595 standing on Magazine Road, which appeared to be suspicious.
They proceeded to check the car, the occupants of the car started
running towards the Majnu Ka Tila market; they were chased; SI
Vind apprehended Ghanshyam and he i.e. PW-18 apprehended
Kishore Kumar; Kishore Kumar exhorted Ghanshyam to fire, upon
which Ghanshyam fired a shot upon SI Vinod; a PCR van came to
the spot and removed HC Bijinder and SI Vinod to the hospital
where they were medically examined and SI Vinod was declared
dead at the hospital; duty constable Rohtash handed over the
wearing apparels of the deceased to the IO. In his cross-
examination, he has admitted that 25-30 persons gathered at the
spot. The PCR van had come near the place where SI Vinod was
lying in an injured condition and he accompanied SI Vinod in the
PCR van to the hospital. He has admitted that he had also received
bleeding injuries; he returned to the spot after 30-35 minutes. He
met Insp.Rishi Dev at the Trauma Centre but he cannot recollect the
time. He admitted that accused Kishore is a B.C. of their area.
23. To appreciate these versions let us examine the site
plan. The rough site plan Ex.PW-21/B was prepared by Inspector
Rishi Dev and site plan to scale Ex.PW-11/A was thereafter prepared
by Insp.Devinder Singh at the pointing out of PW-18. On Ex.PW-
11/A the place of occurrence i.e. where Ghanshyam had fired at SI
Vinod, the point where Inspector Rishi Devi, Const.Ramesh and
Const.Bijinder were stationed at that time has been depicted at
points C,G,F,E respectively. Point J is the place where the maruti car
had been stationed. PW-21 had deposed that he had parked his
gypsy in front of the maruti car. It has further come in the
deposition of PW-21 that the place of incident was about 74 paces
away from the point where his gypsy had been parked; he had
himself measured this distance and this has been corroborated in
the version of PW-11 who had prepared this site plan. 74 paces
away would be an approximate distance of 40 meters. Ex.PW-11/A
further shows that both the vehicles i.e. the maruti car and the
police gypsy were ahead of the break in the divider of the central
verge i.e. if the gypsy had to reach the spot it would have to take a
„U‟ turn. Placement of the PCR van has not been depicted in either
of the two site plans but the very fact that the PCR van had reached
the spot within two to three minutes of the information of the
incident received by it shows that it had access to the spot faster
than when the police vehicle could have reached there.
24. From the versions of the eye-witnesses it is clear that
as soon as the incident of fire occurred SI Vinod fell down at the
spot, accused Ghanshyam had been chased by PW-17 but he
managed to flee. Accused Kishore was apprehended at the spot.
Const.Bijinder had also sustained injuries. Public persons
numbering more than 25-30 had also collected; it was a 15-20 feet
wide gali having shops on either side as also residential houses.
Incident had occurred at 6.30 PM and being the winter season i.e.
the month of January, the sun had set; shops were in the process of
closing; the scene had become chaotic. PW-12 and PW-28 had on
receipt of information about the incident reached the spot within 3
to 4 minutes, upon seeing the sight of their colleague lying injured
in a pool of blood and also another police official having sustained
injuries, their immediate thought was to rush the injured to the
nearest hospital which was the Trauma Centre at Civil Lines. In this
situation, if PW-12 did not notice the presence of any police official
at the spot, is not so unusual or extraordinary that this
circumstance by itself would be sufficient to hold that PW-17 and
PW-21 were not at the spot. All this had happened within a span of
5 to 7 minutes i.e. the occurrence of the incident and the reaching
of the PCR van at the spot; within this period one of the two
assailants had also managed to flee away from the scene and the
police present at the spot were chasing him. Argument of defence
counsel i.e. to discard the versions of PW-17 and PW-21 only on this
admission of PW-12 is in our view without any force.
25. Another extension of the present argument is that there
is no explanation as to why the FIR registered at 7.35 PM was for
the offence punishable under Section 307 IPC when the MLC of the
victim SI Vinod Kumar had shown that he had been brought dead; it
is argued that this was obviously for the reason that the SHO was
not at the spot and that is why even up to the time of the
registration of the FIR he did not know that SI Vinod Kumar had
been declared brought dead. Let us now examine this submission.
26. PW-21 had remained at the spot to conduct the
investigation and deal with the apprehended accused i.e. accused
Kishore. Const. Parminder Singh PW-26 has deposed that on
7.1.2001 at 6.55 PM he had handed over DD No.14A Ex.PW-21/A to
the SHO i.e. PW-21 at the place of occurrence. This version
establishes that PW-21 was at the spot as early as 6.55 PM. PW-27
has deposed that at 7.05 PM he had handed over DD No.15A to PW-
21 at the spot. PW-21 had dispatched the rukka through PW-17
at 7.35 PM for the registration of the FIR which had been registered
initially under Section 307 of the IPC as till that time PW-21 did not
know that the injured SI Vinod had died; he has in fact admitted in
his cross-examination that till he remained at the spot, he did not
come to know that SI Vinod had succumbed to his injuries.
27. MLC Ex.PW-21/C of SI Vinod shows that the patient had
been removed to the hospital at 6.50 PM through PW-12 and PW-
18. The patient was unconscious and his pulse and blood pressure
could not be recorded; IPPVE Ambu Bag and external cardiac
massage was administered to the patient for more than 30 minutes,
but the patient could not be revived. It was thereafter that he was
declared dead. This document clearly evidences that the patient
had been admitted to the hospital at 6.50 PM and in spite of efforts
for more than half an hour to revive him he could not be revived;
these efforts had continued up to 7.25-7.30 PM; even otherwise
there cannot be exact exactings of time when depositions are made
in court and five minutes here or there are of little consequence
when the situation as a whole is reviewed. It was for this reason
that when the rukka was sent by PW-21 at 7.35 PM, FIR had been
directed to be registered under Section 307 of the IPC only.
28. We are thus not inclined to accept the submission of the
learned defence counsel that the presence of PW-17 and PW-21
on the spot is suspect. All the eye-witnesses i.e. PW-17, PW-18 and
PW-21 have corroborated one and another on material aspects.
They are all police officials and there is nothing which has shaken
their credibility in their lengthy cross-examination. Merely because
PW-12 had not noted any police official in the crowd which had
gathered at the spot of the incident is no reason to hold that PW-17
and PW-21 were not present there; the immediate urgent thought in
the minds of PW-12 and PW-28 was that the bleeding victim should
be given first aid forthwith. PW-12 not noting the presence of any
police official in a span of 2 to 3 minutes when he removed the
injured to the hospital is of little consequence. Through the
testimony of PW-26 it has also been established that PW-21 was at
the spot as early as at 6.55 PM. Incident is of 6.35 PM. PW-21 was
thereafter embroiled in the further investigation of the case; crime
team had been summoned; dog squad had reached; rough site plan
was prepared, the photographer had been called at the spot;
investigation was in progress. PW-21 has also explained this in his
version on oath. It was only natural that after this initial
investigation PW-21 went to the hospital to find out the fate of his
injured colleague where he learnt that SI Vinod had succumbed to
his injuries. This is also substantiated by the version of PW-25
Const.Rohtas, the duty Constable at the Trauma Centre; who had
handed over the clothes of the deceased to the SHO who had come
to the hospital within one hour of the admission of the injured i.e. by
about 7.45 PM-8.00 PM.
29. In appreciating the evidence of an eye witness, the
approach of the court is to see whether the evidence of the witness
as a whole is reliable and has a ring of truth in it. Minor
discrepancies of trivial matters not touching the core of the case,
hyper-technical approach by taking sentences turn out of context
here and there, not going to the root of the matter would not be
proper. Even honest and truthful witnesses may differ in some
details unrelated to the main incident because power of
observation, retention and reproduction differ with individuals. The
presumption that a person acts honestly and legally applies as
much in favour of a police officer as of other persons. It is not
proper and permissible to doubt the evidence of police officers.
Judicial approach must not be to distrust and suspect their evidence
on oath without good and sufficient grounds therefor. In Karamjit
Singh vs. State AIR 2003 SC 1311, it has been held by the Supreme
Court that the testimony of police personnel should be treated in
the same manner as testimony of any other witness and there is no
principle of law that without corroboration by independent
witnesses their testimony cannot be relied upon. Testimony of an
injured witness is entitled to greater weight. His presence at the
time and place of occurrence cannot be doubted and in the instant
case no such argument has also been propounded before us qua
the presence of PW-18. It is unlikely that an injured would spare the
real assailant and implicate an innocent person; unless there are
cogent and convincing grounds and in the absence of any material
infirmity to discard his evidence, his testimony cannot be repelled.
This has been held by the Supreme Court in Mer Dhana Sida vs.
State of Gujrat AIR 1985 SC 386.
30. In our view, versions of PW-17, PW-18 and PW-21 inspire
confidence. Presence of PW-17 and PW-21 has been established at
the spot; PW-18 was the injured eye-witness. The minor
discrepancies and contradictions pointed out by the learned
defence counsel not touching the core of the case and witnesses
not expected to possess a photographic memory, the powers of
observation differing from person to person has to be kept in mind.
All of them have categorized the specific role of exhortation i.e.
„Maar Goli‟ on accused Kishore, pursuant to which Ghanshyam had
fired the shot on SI Vinod which hit him on the left side of his chest.
The post-mortem report Ex.PW-23/A has also corroborated this
ocular version and the injury which was fatal was the result of fire
arm projectile fired from near contact range on the left upper chest
of the victim. On scrutiny of the testimony of the aforesaid
witnesses it is established that their versions are clear, cogent and
inspire confidence.
31. N.K. Sharma PW-1 Finger Print Expert in the crime team
had reached the spot at 7.00 PM. He found the maruti car bearing
no.DL-9CC-1595 parked near the spot. He lifted finger prints from
the car and the photographs of the same were taken by Const.
Pramod Kumar in his presence. Report Ex.PW-1/A was handed over
by PW-1 to the Investigating Officer PW-21 who has also
corroborated this version on oath and has stated that SI N.K.
Sharma gave him the report Ex.PW-1/A which he had kept on
record. In his cross-examination, PW-1 stated that he remained at
the spot for two hours and till that time he was not given the FIR
number by the police. He has further deposed that the negatives of
the chance prints were deposited at the office of the Finger Prints
Bureau for further examination.
32. Sanjay Kumar Jha PW-36 had on 17.1.2001 received the
chance prints with specimen finger prints of the accused
Ghanshyam and Kishore as also of the owner of the vehicle Bijinder
Aggarwal PW-5 for comparison with the lifted chance prints. As per
his report Ex.PW-36/A, he opined that the chance print mark Q3 is
identical with the right middle finger S1 on the finger impression slip
of Kishore. This corroborates the version of the eye witnesses that
Kishore was sitting on the front left side of the driver seat; Q3 was
the chance print which had been taken from the left front door of
the car. Ex.PW-36/A further opined that chance print Q6 was
identical with the right thumb mark S2 on the finger impression slip
of Ghanshyam. The other prints could not be developed. PW-36 in
his deposition has stated that the science of finger prints is an
accurate science and there is no question of any omissions in
comparison.
33. It is relevant to state that none of the aforesaid
witnesses have been given any suggestion by the defence counsel
that their palm impressions had been planted on the vehicle; the
defence of the accused Kishore in his statement under Section 313
Cr.P.C. that he was forced to put his palm impression on the maruti
car is clearly an afterthought and is not convincing. If this was the
case, this defence would have been adopted by Kishore right from
the inception and not four years later in the year 2005 when his
statement, under Section 313 Cr.P.C., was recorded.
34. This piece of evidence has established that both the
accused Ghanshyam and Kishore were seated in this Maruti car
bearing No. DL-9CC-1595 on 07.1.2001 recovered at the spot;
presence of both the accused at the spot stands proved. This
vehicle was the subject matter of a theft case and on the complaint
of Bijinder Aggarwal PW-5 FIR No.318/2000 Ex.PW-5/A had already
stood registered on 21.12.2000 at Police Station Roop Nagar.
35. Accused Kishore had been apprehended at the spot. He
had made his disclosure statement Ex.PW-18/D; no recovery had
been effected at his instance.
36. Accused Ghanshyam had been arrested on 13.1.2001
pursuant to secret information which had been received by ACP
Bhag Singh PW-40 who had been handed over the investigation of
this case on 10.1.2001. PW-40 accompanied by SI Ram Avtar PW-
37, PW-18, PW-17 reached East Delhi where they were joined by SI
Inder Pal PW-35. A raiding party was organized and at the pointing
out of secret informer accused Ghanshyam was apprehended and
identified by PW-17 and PW-18 as the assailant of the incident of
07.1.2001. Accused Ghanshyam made his disclosure statement
Ex.PW-35/C and his personal search was taken vide memo Ex.PW-
18/H. His arrest memo attested by PW-35 and PW-18 is Ex. PW-
35/B.
37. Accused Ghanshyam made a second disclosure
statement on 16.1.2001 and disclosed that he could get the weapon
of offence recovered. He led the police party to the house of
Julfikar who was not present in his house. Thereafter he took the
police team to a home numbered C-27 but the actual number of this
house was 340/12 and was located in Gali No.1, Friends Colony.
This house belonged to Sudhir Kumar a friend of the accused and
this has been testified by Mahesh Yadav PW-9. Thereafter in the
presence of SI Ram Avtar PW-37 accused Ghanshyam took out the
keys of a room from a small temple under the staircase and opened
the lock of the room and from inside the room he got recovered two
bags, one of green colour and another of black colour. Photocopy of
the Registration Certificate of a vehicle in the name of Bijinder
Aggarwal as also a sum of Rs.1,15,000/- in cash and one gold chain
with the locket of Godess Durga were recovered. Ex.PW-37/C is
seizure memo of this Registration Certificate. That this number
plate has been replaced by a fake number plate i.e. DL-9CC-1595
has been testified by Const.Mahender Singh PW-22 and has been
corroborated by the owner of the vehicle, PW-5. Blood stained pant
and shirt of the accused were taken into possession vide separate
memo Ex.PW-37/C and Ex.PW-37/D.
38. On 24.1.2001 accused was taken on police remand
under the orders of the Court and pursuant to his third disclosure
statement Ex.PW-8/A he got recovered the weapon of offence which
was used in this case; i.e. a deshi katta with one empty cartridge
case and two live cartridges; sketch of the deshi katta is Ex.PW-8/B.
This weapon along with the cartridges was sealed in a pullanda with
the seal of BSJ i.e. the initials of the Investigating Officer ACP Bhag
Singh and was taken into possession vide memo Ex.PW-8/C. This
exhibit was deposited in the Malkhana on 24.1.2001 itself and this
has been testified by H.C. Phool Chand PW-13 Malkhana Incharge on
the relevant date. PW-13 had deposed that on 29.1.2009 vide RC
No.17/21 the katta and the cartridges were sent to CFSL, Malviya
Nagar through SI Ram Avtar PW-37. This also finds corroboration in
the testimony of PW-37. The CFSL vide its report Ex.PW-40/C and
Ex.PW-40/D has certified that on 29.1.2001 ten sealed parcels duly
sealed were received in the CFSL. The deshi katta and the two live
cartridges and one empty cartridge contained in parcel no.9 and
parcel no.10 sealed with the seal of BSJ were also received in the
Biology Division and thereafter, on 2.2.2001, were transmitted to
the Ballistic Division. Parcel no.6 had also been received in the
Biology Division which was the fired bullet having seal of KLS IC
SUBZI MANDI which was the bullet which had been retrieved from
the dead body of SI Vinod Kumar and handed over by the Post
Mortem Doctor PW-13 to Investigating Officer on 08.1.2001. This
fired bullet duly sealed had thereafter been deposited on 08.1.2001
itself with PW-13. The Ballistic Division vide its report Ex.PW-39/A
and through the testimony of Dr.K.C.Varshney, PW-39 has
established that on the examination of the fired bullet and the
country made pistol .315 inches bore, the test fired bullet Ex.EB1
had been fired through the country made pistol .315. It had further
been opined that the individual characteristics of the striation marks
on Ex.EB1 and on the fired bullets TB1 to TB4 were found identical.
This report Ex. PW-39/A is dated 22.1.2001.
39. Thus through the testimony of PW-13 Malkhana
Incharge, PW-23 Post Mortem Doctor, PW-40 the Investigating
Officer and PW-39 the Ballistic Expert, it has been proved that the
bullet which had been retrieved from the body of SI Vinod Kumar
had been fired from the same fire arm which accused Ghanshyam
had got recovered on 24.1.2001.
40. Learned defence counsel has, however, challenged this
recovery of the weapon of offence. Attention has been drawn to
recovery memo Ex.PW-8/C. It is stated that witnesses to the said
recovery i.e. Smt.Renu Khanna PW-8 and Sh.Ram Chander PW-14
are stock witnesses of the police and it is highly improbable that
they had met the Investigating Officer per chance; it is stated that
this has come in their deposition that they were well known to the
Investigation Officer and they have deposed falsely at his behest.
41. Let us now examine this document Ex.PW-8/C as also
versions of PW-8 and PW-14 who had attested this document.
Smt.Renu Khanna PW-8 stated that she is a social worker; on
24.1.2001 at about 4.30 PM when she was taking a walk at the
Delhi University area and passing through Police Station Maurice
Nagar; she met Inspector Bhag Singh who was looking perplexed;
he stated that he was involved in solving a murder case and he
requested her to help him; she joined him at the Police Station;
after 15 minutes Ram Charan PW-14 an employee of Delhi
University who had come to give information about some program
to Inspector Bhag Singh reached there; Inspector Bhag Singh
requested him also to participate in the case. Accused Ghanshyam
was produced in a muffled face and he confessed that he had killed
SI Vinod Kumar with a country made pistol and that the said pistol
was lying opposite Hanuman Mandir on the Ring Road towards the
Eastern Side and he could get it recovered; he led the police team
to a place opposite the Hanuman Mandir on the Ring Road towards
Eastern Side wherefrom under a slope of the road which was
covered with stone he retrieved a loaded pistol having a used
cartridge and as also two live cartridges. The accused picked up
these articles and handed them over to Inspector Bhag Singh which
were taken into possession vide memo Ex.PW-8/C. PW-8 has
further deposed that after sealing all the said articles the seal was
handed over to her. She has further deposed that on 28.1.2001
she had come to the police station and brought the seal which was
embossed on the FSL Form and thereafter the same was returned
back to her. In her lengthy cross-examination nothing has been
elicited which could shake her credibility; she has admitted that
inspector Bhag Singh is known to her since she is a social worker.
She admitted that the writing work was done by the police near the
Peepal Tree.
42. To the same effect is the version of PW-14 Ram Charan
who has also been subjected to a lengthy cross-examination. He
has admitted that Inspector Bhag Singh is known to him and he is
working as driver with Mr. K.K. Pandey who was posted in the
Registrar‟s office of Delhi University and he had come to inform
Inspector Bhag Singh about a program of the University. He
admitted that this is his first case and he never appeared as a
witness in any other case. He further admitted that when he
reached the Police Station, Smt. Renu Khanna was already sitting
there. Nothing could shake the credibility of this witness either.
43. It is relevant to state that none of the aforesaid
witnesses have been suggested that they are deposing falsely for
any ulterior purpose or motive or that they were stock witnesses of
the police as is the argument now propounded before us. We are
satisfied that the recovery of the deshi katta and the cartridges
stands proved; there is also no possibility of the tampering of the
said exhibits as the seal after use had been handed over to PW-8
who is an independent person; all safeguards to exclude the
possibility of tampering of these exhibits have been adhered to.
44. The aforenoted testimony of the eye witnesses, the
report of the Finger Print Expert, the recovery of the deshi katta at
the instance of Ghanshyam and the report of ballistic expert
coupled with the fact that Ghanshyam had absconded for six days
has established that accused Ghanshyam and Kishore in
furtherance of their common intention had murdered SI Vinod and
caused injuries on the person of Const.Bijinder.
45. M.S.Upadhyay PW-34 DCP North has proved the
sanction Ex.PW-34/A under Section 39 of the Arms Act accorded by
him for prosecution of accused Ghanshyam. The offence under
Sections 25 and 27 of the Arms Act qua accused Ghanshyam stands
proved.
46. Maruti vehicle i.e. DL-9CC-1595 was a stolen property;
the owner of the vehicle was PW-5; RC of the said vehicle had been
got recovered by accused Ghanshyam on 16.1.2001; this vehicle
was in occupation of both the accused and is evident from the eye
witnesses account, corroborated by the report Ex.PW-1/B of the
Finger Print Expert. They had replaced the original number plate
with a fake number plate knowing it to be a fabricated document.
Conviction of the accused under Sections 411 and 471 of the IPC is
also maintained.
47. Co-accused Kishore has been convicted for the substantive
offences under Section 302, with the aid of Section 109 of the IPC
which in our view is a mis-interpretation of the legal provision.
Section 107 of the IPC defines abetment; an abettor is a person,
who does not himself commit a crime but aids, instigates or
encourages another person to commit the crime. Section 34 of the
IPC embodies the doctrine of joint liability in doing a criminal act,
the essence of that liability being the existence of a common
intention; they are all principal offenders. In our view Ghanshyam
and Kishore were joint criminals, directly liable equally for their joint
crime. Accused Kishore is accordingly convicted along with co-
accused Ghanshyam for substantive offences under Sections
302/353/332/186 with aid of Section 34 of the IPC.
48. The appeals in our view have no merit. The convictions
and the sentences as directed by the trial Judge are maintained with
partial modification that accused Kishore is convicted with the aid of
Section 34 and not under Section 109 of the IPC. Appeals are
disposed of accordingly. Appellants are on bail. Their bail bonds
and surety bonds are cancelled. They shall surrender forthwith to
suffer remaining sentence.
(INDERMEET KAUR)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
1st September, 2009
nandan
