Mukesh @ Girdi vs State
2009 Latest Caselaw 3505 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved On: 31st August, 2009
                     Judgment Delivered On: 02ndSeptember, 2009



+                            CRL.A. 773/2003

       MUKESH @ GIRDI                              ..... Appellant
               Through:             Mr. M.K.Sharma, Advocate

                                    versus

       THE STATE (GNCT) OF DELHI         ..... Respondent
                Through: Mr. M.N.Dudeja, Advocate


                             CRL.A. 16/2004

       SURENDER @ BABLI                            ..... Appellant
               Through:             Mr. M.K.Sharma, Advocate

                                    versus

       THE STATE (GNCT) OF DELHI         ..... Respondent
                Through: Mr. M.N.Dudeja, Advocate


                             CRL.A. 392/2004

       MANJEET @ KULDEEP                 ..... Appellant
                Through: Mr. S.D.Singh, Advocate with
                         Mr. Rahul Kumar Singh, Advocate

                                    versus

       THE STATE (GNCT) OF DELHI         ..... Respondent
                Through: Mr. M.N.Dudeja, Advocate


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

1.     Whether the Reporters of local papers may be allowed to
Crl.A.Nos.773/2003, 16/2004 & 392/2004                       Page 1 of 15
        see the judgment?

2.     To be referred to the Reporter or not?                  Yes

3.     Whether the judgment should be reported in the
       Digest?                                        Yes

PRADEEP NANDRAJOG, J.

1. Vide judgment and order dated 19.9.2003, the

appellants have been convicted for the offences punishable

under Section 302/393/398/34 IPC. Two of the appellants have

been convicted for the offence punishable under Sections 25

and 27 of the Arms Act. Vide order on sentence dated

22.9.2003 the appellants have been sentenced as under:-

"All the convicts are ordered to be sentenced u/s 302/34 IPC to undergo RI for life each and to pay a fine of Rs.20,000/- each and in default of payment of fine to further undergo RI for ten months. All the convicts are further sentenced u/s 393/34 IPC to undergo RI for five years each and to pay a fine of Rs.5,000/- each and in default of payment of fine to further undergo RI for three months. All the convicts are further sentenced u/s 398/34 IPC to undergo RI for seven years each and to pay a fine of Rs.10,000/- each and in default of payment of fine to further undergo RI for 5 months. Convict Mukesh is further sentenced u/s 27 of Arms Act to undergo RI for two years and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo RI for one month. Convict Surender is further sentenced u/s 25 of the Arms Act to undergo RI for two years and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo RI for one month. Convict Manjeet is further sentenced u/s 25/27 of Arms Act to undergo RI for three years and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo RI for two months. All the

sentences shall run concurrently. All the accused shall get benefit of Section 428 Cr.P.C. for the period already undergone by each of the accused."

2. In returning the finding of guilt, the learned Trial

Judge has held that the testimony of Anil Sharma PW-6

establishes that when he i.e. Anil Sharma and the deceased

were travelling on a scooter after withdrawing Rs.4,00,000/-

from State Bank of Indore, Narela three persons on a

motorcycle attempted to snatch the bag containing the money

from the hands of the deceased and when the deceased

resisted the attempt to rob him, one out of the said three boys

fired a shot at his chest and the three boys on the motorcycle

fled. That the testimony of Sanjay Sharma PW-10 establish

that he was an eye witness to the murder which was preceded

by an attempt to commit robbery and that appellant Mukesh

fired the shot at the deceased and that the other two

appellants were also armed with a country made pistol, and

that the pistol in the hand of appellant Manjeet @ Kuldeep fell

down at the spot. The learned Trial Judge has further held that

pursuant to his arrest, appellant Surender made a disclosure

statement Ex.PW-22/F and pursuant thereto got recovered a

pistol Ex.P-1 and a fire cartridge Ex.P-2 as recorded in the

memo Ex.PW-9/H. That the bullet recovered from the body of

the deceased was opined, vide CFSL Report Ex.PW-25/A to be

fired from the pistol Ex.P-1. Lastly, the learned Trial Judge has

held that the fact that the appellants, after they were arrested,

pointed out the spot where the crime was committed was

evidence of their conduct showing their knowledge of the

place where the crime was committed. Since appellant

Mukesh was pointed out as the person who had fired the fatal

shot, though the recovery of the weapon of offence was at the

instance of appellant Surender, Mukesh has been convicted for

the offence punishable under Section 27 of the Arms Act.

Since the pistol which was recovered from the spot was stated

to have been attempted to be used by appellant Manjeet @

Kuldeep, he has been convicted for the offence punishable

under Section 25 read with Section 27 of the Arms Act.

3. Information pertaining to a person being shot at X-

Ray Wali Gali, Narela was received at PS Narela Industrial Area

as recorded vide DD No.12-A, Ex.PW-1/A by ASI Jagir Singh PW-

1. SI Praveen Vats PW-22 accompanied by Const.Ram Prakash

PW-8 reached the spot where the shooting had taken place

and found a scooter bearing registration No.DL 8SJ 0780 on

the road and a country made pistol lying nearby. He was told

that the injured was removed to Jaipur Golden Hospital in a

rickshaw. Leaving Const.Ram Prakash at the spot, SI Praveen

Vats reached the hospital and learnt that the injured named

Sanjeev was declared brought dead. He obtained the MLC of

the deceased and met Anil Sharma PW-6 at the hospital. He

returned to the spot with Anil Sharma, by which time the

Addl.SHO of the police station Shri S.K.Meena PW-24 had also

reached the spot in the company of Const.Vijender PW-16. At

the spot SI Praveen Vats recorded the statement Ex.PW-1/B of

Anil Sharma and made an endorsement Ex.PW-22/A

thereunder and dispatched the statement containing his

endorsement through Const.Vijender PW-16 for FIR to be

registered.

4. Investigation at the spot was conducted by

Addl.SHO S.K.Meena who lifted the blood sample of the

deceased from the road as also a country made pistol Ex.P-4

and a live cartridge Ex.P-5 within the chamber of the pistol.

He recorded said seizures in the memo Ex.PW-6/A. The sketch

of the pistol and the live cartridge being Ex.PW-6/C recovered

from the spot was drawn.

5. The dead body of the deceased was taken

possession of by S.K.Meena, and through Const.Ram Prakash

PW-8, was sent to the mortuary of Babu Jagjivan Ram Hospital.

SI Praveen PW-22 prepared the inquest papers Ex.PW-22/B. At

the hospital Dr.B.N.Acharya PW-11 conducted the post-mortem

the same day i.e. on 8.2.2001 and prepared the post-mortem

report Ex.PW-11/A recording therein a solitary ante mortem

firearm injury on the chest of the deceased and death being

caused as a result of haemorrhagic shock. A bullet Ex.PW-25/1

was recovered from the chest of the deceased by the doctor

who handed over the same to Const.Ram Prakash along with

the blood sample of the deceased. The same were seized by

SI Praveen Vats as per memo Ex.PW-8/A prepared by him.

6. On 9.2.2001 Sanjay Sharma PW-10 went to the

police station and informed the investigating officer that he

had witnessed the crime. He stated that three boys waylaid

two persons on a scooter. They attempted to snatch a bag

which was clutched on to by the pillion rider on the scooter.

The scooter fell down. The two boys on the pillion seat on the

motorcycle were armed with pistols and the pistol in the hand

of one of the boy on the pillion seat fell down. The other boy

on the pillion seat shot the pillion rider on the scooter and

thereafter the three boys on the motorcycle fled. He stated

that he left for his house in the village Pooth Khurd and the

next day i.e.9.2.2001, he dutifully reported to the police

station.

7. Appellant Mukesh was apprehended, as per secret

information claimed by the prosecution, on 23.2.2001 at 8:30

PM as recorded in the arrest memo Ex.PW-9/A. When he was

arrested, as per the prosecution a country made pistol was

recovered from the dub of his pant pertaining whereto, for

unexplainable reason FIR No.70/2001 under Section 25 of the

Arms Act was registered. We are using the expression

„surprisingly‟ for the reason the arrest memo of Mukesh shows

his apprehension in FIR No.48/2001 for offences punishable

under Section 393/398/302/34 IPC i.e. the FIR pertaining to the

instant case.

8. Mukesh made a disclosure statement Ex.PW-9/B

admitting his involvement in the crime and disclosed that the

two other boys with him were appellant Manjeet @Kuldeep and

appellant Surender. He disclosed that Surender was driving

the motorcycle and that he and Manjeet were armed with a

pistol each. That the pistol of Manjeet fell down at the spot.

He i.e. Mukesh fired the shot on the deceased and handed

over the pistol to Surender, after they fled.

9. Manjeet @Kuldeep was arrested on 26.2.2001 at

7:00 PM as recorded in the arrest memo Ex.PW-9/D. He made

a disclosure statement Ex.PW-7/B in which he confessed to the

crime and disclosed same facts as were told by Mukesh.

10. Surender was apprehended on 28.2.2001 at 5:15

PM as recorded in the arrest memo at page 479 of the Trial

Court Record, which we note has remained unproved. He

made a disclosure statement Ex.PW-22/F and informed that he

could get recovered the country made pistol with which the

deceased was shot from a place at Village Chandpur where he

had hid the same. He led the investigating officer to a forest

in Village Chandpur and lying concealed in bushes got

recovered a pistol Ex.P-1 and two live cartridges Ex.P-2 and

Ex.P-3 which were seized vide memo Ex.PW-9/H. Sketch of the

pistol and the cartridges was drawn as per Ex.PW-9/G.

11. We may note that as per the prosecution as

recorded in the pointing out memos Ex.PW-9/F, Ex.PW-7/C and

Ex.PW-9/C, the appellants pointed out the place where the

crime was committed i.e. X-Ray Wali Gali on the very day they

were arrested.

12. The three accused were sent for TIP proceedings

which were fixed on 1.3.2001 and as recorded in the

proceedings Ex.PW-21/2, Ex.PW-21/3 and Ex.PW-21/4 all the

three accused refused to participate in the test identification

proceedings on the ground that they were shown to the

witness.

13. The country made pistol recovered from the spot

and pursuant to the disclosure statement of Surender as also

the bullet recovered from the body of the deceased were sent

for ballistic examination and as per report Ex.PW-25/A, the

bullet recovered from the body of the deceased was opined to

be fired from the country made pistol recovered at the

instance of Surender.

14. At the trial, PW-6 Anil Sharma did not identify the

appellants as the three boys who were on the motorcycle and

had committed the crime. He simply deposed that three boys

on a motorcycle waylaid him and the deceased and attempted

to snatch the bag containing Rs.4 lakhs from the deceased and

when they failed to do so, one of them shot the deceased and

the pistol in the hand of the other fell down. The three boys

fled on their motorcycle.

15. Sanjay Sharma PW-10 deposed that he was residing

at village Pooth Kurd and on 8.2.2001 had gone to Narela to

purchase household goods and at around 12:45 PM, when

passing through X-Ray Wali Gali, he saw three boys on a

motorcycle overtaking two boys on a scooter. Two boys sitting

on the back of the motorcycle disembarked from the

motorcycle and tried to snatch a bag from the pillion rider of

the scooter who resisted and in the process the scooter fell

down. One boy fired on the pillion rider of the scooter and hit

him on the chest. A pistol in the hand of the other boy fell

down. The three boys fled on the motorcycle. That appellant

Mukesh fired the shot. Appellant Surender was riding the

motorcycle and Manjeet was the third person from whose hand

the pistol fell on the ground. That he returned home as he had

some urgent work. Next day he went to the police station to

inform of the incident. He went to the police station on

25.2.2001 after reading in the newspaper that one boy who

had committed the crime was arrested and saw Manjeet in the

police station. On being cross-examined PW-10 stated that he

stayed at the spot for 10/15 minutes. He stated that a crowd

gathered. He admitted that the deceased was also a resident

of Village Pooth Khurd. He admitted that he did not tell any

villager that he saw the incident. He further stated that he

returned to his house at 2:00 PM and left for Sohna in Haryana

and returned at about 11:00 PM in the night.

16. We need not note the testimony of the various

police officers for the reason they have parroted the facts

noted herein above by us pertaining to the seizures effected,

the arrest of the appellants, the disclosure statements made

by them and the recovery effected pursuant to the disclosure

statement of Surender.

17. We note that Mukesh has been acquitted in FIR

No.70/2001 pertaining to the recovery of the firearm from his

possession when he was apprehended on 23.2.2001. The

judgment has been proved at the trial as Ex.DW-1/A.

18. Learned counsel for the state could not

satisfactorily explain as to why was FIR No.70/2001 registered

when the arrest memo Ex.PW-9/A of Mukesh shows that he has

been arrested in the instant FIR i.e. FIR No.48/2001 and the

claim of the police officers is that Mukesh was arrested when a

secret informer informed that a gangster involved in the

instant crime would be coming to the place disclosed by the

secret informer. It is obvious that something is amiss. It

probablizes Mukesh being apprehended, not as claimed by the

prosecution, but in a manner unknown to us and FIR

No.70/2001 was registered by the police not knowing of

Mukesh‟s involvement in the instant case and an ante dated

arrest memo showing his apprehension in the instant case has

been drawn up.

19. That Mukesh gave a good reason not to participate

in the TIP proceedings i.e. being shown to PW-10 stands

established by the testimony of PW-10 who claims that he saw

accused Mukesh in police custody on 25.2.2001. As noted

above, TIP proceedings for all the accused were got fixed for

1.3.2001.

20. The sole evidence against Mukesh and Manjeet is

the testimony of PW-10. Their confessional statements have

to be excluded while considering the evidence as the same are

inadmissible in evidence. No incriminating object or article has

been recovered pursuant to their disclosure statements.

21. The conduct of PW-10 is strange. He admits during

cross-examination that the deceased was a resident of Village

Pooth Khurd and so was he. Kinship bonds are strong in

villages. It is just not possible that the death of the deceased,

in the tragic circumstance in which it took place, did not

spread like fire in the village. Thus, PW-10 surfacing the next

day and claiming to be an eye-witness is a matter of intrigue.

22. Ignoring kinship bonds in villages, is the conduct of

PW-10 that of a normal person? During cross-examination PW-

10 admitted that he stayed at the spot for 10 - 15 minutes.

He claims to have rushed back home due to some urgent

work, but failed to disclose the nature of the urgent work and

what it was. That, PW-10 himself went to the police station the

next day, ostensibly shows that he was a public spirited

person. If this is the theory to explain his visit at the police

station the next day, it belies his conduct on the previous day

for such a public spirited person would be expected to inform

the police of his being an eye-witness on the same day, more

so when he claims to have remained at the spot for 10 to 15

minutes.

23. The circumstances, under which PW-10 has

surfaced, render it prudent for this Court to look for some

corroboration to the testimony of PW-10. Finding none against

appellant Manjeet and Mukesh, we hold that it would be unsafe

to convict said appellants on the sole testimony of PW-10.

24. The pointing out by the appellants of the place

where the crime was committed is worthless evidence for the

reason the place of crime was known to the police on

8.2.2001, much before the appellants were apprehended.

25. We have noted herein above good reasons for

Mukesh not to participate in the TIP proceedings. Thus, there

is no incriminating evidence against Mukesh. The only

incriminating evidence against Manjeet would be his refusal to

participate in the TIP proceedings. It is settled law that the

sole incriminating evidence of refusal to participate in the TIP

proceedings is insufficient to draw a conclusion of guilt.

26. Against Surender, the incriminating evidence of

recovery of the weapon of offence proved through his

disclosure statement, the recovery effected pursuant thereto

and the report of the ballistic expert connecting the bullet

recovered from the body of the deceased to the firearm in

question is good evidence to establish the authorship of the

weapon of offence with Surender. Needless to state, the

striation marks on a bullet are the result of distinctive

characteristics of the bore of a firearm being imprinted as a

negative image on the projectile i.e. the bullet when a

cartridge is fired. These distinctive marks connect a bullet to a

one and only firearm in the world. For this reason, recoveries

of firearms connected with a crime have always been treated

as highly incriminating evidence sufficient to prove the

commission of the crime by the person from whom or at whose

instance the firearm is recovered, unless the person concerned

can render a satisfactory explanation.

27. Appellant Surender has failed to render any

satisfactory explanation.

28. Thus, the appeal filed by appellant Surender has to

be dismissed.

29. Crl.Appeal No.773/2003 and Crl.Appeal

No.392/2004 filed by appellants Mukesh and Manjeet are

allowed. They are acquitted of the charges framed against

them. Crl.Appeal No.16/2004 filed by Surender is dismissed.

30. Copy of this judgment be sent to the

Superintendent, Central Jail, Tihar for necessary action qua

appellants Mukesh and Manjeet who would be entitled to be

set free unless required in some other case.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 02, 2009 mm / dk