Khurshid Ahmed @ Takloo vs State
2009 Latest Caselaw 3691 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 7th September, 2009
                      Judgment Delivered on: 11th September, 2009

+                            CRL.A.468/2001

        KHURSHID AHMED @ TAKLOO              ..... Appellant
                       Through: Ms. Charu Verma, 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. Vide impugned judgment and order dated 06.11.2000

accused Khurshid Ahmed has been convicted under Section 302/34

of the IPC for having committed the murder of

Dr.Mohd.Irfan Khan. He has also been convicted under Sections 25

& 27 of the Arms Act for having been found to be in possession and

having used a deshi katta which was the weapon of offence and

which had caused the death of the deceased. Accused was

sentenced to undergo life imprisonment for the offence under

Section 302 of the IPC; for the offence under Section 27 of the Arms

Act he has been sentenced to undergo RI for three years with a fine

of Rs.3000/-, in default of payment of fine to undergo RI for one

month. No separate sentence has been imposed for the offence

under Section 25 of the Arms Act. Co-accused Kaleem and Dulare

were not traceable and had been declared proclaimed offenders.

2. The occurrence is dated 17.8.1997. Time is 9.15 PM.

The venue was the lane opposite House No.V-299, Arvind Nagar,

Ghonda within the jurisdiction of Police Station Bhajanpura. Const.

Julita PW-21 posted in the Control Room had at 21.33 hours

received a call that a man had been shot at the Main Road, near Ajit

Hotel, Gautam Vihar, Budh Vihar Bazar Road, Fateh Singh Marg.

This information was passed on to PCR Van Romeo 53 which was

thereafter transmitted to the local Police Station and recorded at

9.45PM in DD No.22A Ex.PW-10/A by HC Asif PW-10. This D.D. was

marked to ASI Randhir Singh PW-23 who along with

Const.Dharampal PW-9 reached the site where a two-wheeler

scooter No.DL-4S-E-5432 was lying in the lane and blood was

spattered around the scooter. Injured had already been removed to

the Guru Teg Bahadur Hospital. At the hospital PW-23 collected the

MLC Ex.PW-8/A of the injured, Dr.Mohd.Irfan Khan wherein it had

been recorded that the patient had been brought dead. No eye-

witness was found in the hospital. Returning to the spot PW-23

met the father-in-law of the injured Meharban Ali PW-5 whose

statement Ex.PW-5/A was recorded. As per this statement

Meharban Ali i.e. PW-5 at 9.15PM had heard some gun shots while

he was sitting on the roof of his house. He reached the

neighbouring house of his daughter. He saw that his son-in-law

Dr.Mohd.Irfan Khan who had just returned back on his two-wheeler

scooter, lying in a pool of blood; three to four boys were seen

running from the scene; Khurshid who was earlier employed with his

son-in-law had an evil eye on his daughter as a result of which he

had been thrown out by his son-in-law; Khurshid often used to

threaten his son-in-law on telephone; on 17.8.1997 at 5.00 PM in

the evening he had threatened his son-in-law and again at 8.30PM,

he had abused his daughter on telephone; he suspected that

Khurshid was involved in this offence and action be taken against

him.

3. On this statement Ex.PW-5/A endorsement Ex.PW-23/A

was made by PW-23 at 12.15PM and through Const. Dharampal PW-

9 the rukka was sent to the Police Station for the registration of the

FIR. FIR Ex.PW-2/A was registered by H.C. Prem Singh PW-2. The

spot was photographed by Mukesh Kapil PW-12, photographs are

Ex.P-7 to P-17, the negatives of which have been proved collectively

as Ex.P-13. The blood stained earth and the two-wheeler scooter

lying on the spot were seized and taken into possession vide

memos Ex.PW-25/C and Ex.PW-25/D. Statement of the eye-witness

Zarifa Khan @ Natho PW-3 the wife of the deceased as also of the

second eye-witness Neeraj PW-1 were recorded. Statement of Izaz

Ali PW-30 was also recorded by the Investigating Officer to the

effect that the accused had made an extra-judicial confession to

him disclosing his involvement in the crime.

4. On the following day i.e. on 18.8.1997 post-mortem on

the deceased was conducted by Dr.K.K.Banerjee PW-11, who had

noted the following injuries on the person of the deceased:

"1. An oval shaped fire arm entry wound 1.2 x1.00 c.m.

surrounded by abrasion collar placed almost horizontally on the left side of head. The anterior is 6.00 c.m. away from the anter angle of left eye 2.5 cm above the tragees of left ear. Tattooing was present over an area of 22.00 cm x 19.00 cm on the left side of face from left forehead above to left side of front of neck below and from left nasal ala in front to left ear behind. The margin of the wound was inverted. The depth from ontside was 2.5 cm into the skull cavity going horizontally. A hole 3.00 cm x1.00 cm was found on the left temporal wound. A bullet was found lodged in the hole with the base of the bullet directed anteriorly and the nose end directed posteriorly from right to left and little below upwards. Bone chips were found in the cavity thus created.

2. An oval shaped fire arm entry wound 1.3x1.00cm surrounded by an abrasion collar was present on the front of left side of chest. 4.00 cm away from mid line, 12.00 cm meddle to left interior axillary line 12.5 cm below the middle one third of left clavicle, 11.00 cm below the left sub-costal margin 4.00 cm away from anter boarder of left nipple. A hole 1.5 x1.00 cm was present between the 2 and 3 rib on left side of chest 2.5 cm away from mid line. The wound was cavity deep and was directed from right to left below upwards towards the left shoulder."

5. The cause of death was shock as a result of ante-

mortem injury no.2 on the internal organs produced by a projectile

rifled bore fire arm likely from near range. The two bullets which

had been retrieved from the dead body were handed over to the

Investigating Officer for preservation and subsequent ballistic

analysis. The exhibits which included the blood stained earth lifted

from the spot as also the two bullets retrieved from the dead body

were deposited in the Malkhana with Const. Lokender Singh PW-28

and photocopies of the relevant entries in Register No.19 are

Exs.PW-28/A & B.

6. Accused was yet untraceable. On 19.9.1997 ASI Israil

Khan PW-25 received a secret information that the accused would

be coming towards the bus stop to go to Meerut. PW-25 along with

SI Ramesh Kumar PW-19 constituted a raiding party and at the

pointing out of the secret informer the accused was apprehended

and arrested. His personal search Ex.PW-19/B was recorded. He

made 3 disclosure statements; pursuant to the third disclosure

statement Ex.25/B accused on 23.9.1997 led the police party to

Arvind Nagar, Brijpuri towards the eastern side where on his

pointing out the police got a katta recovered which as per his

disclosure statement he had used to kill the deceased. This weapon

was wrapped in a yellow coloured polythene; sketch of the katta is

Ex.PW-24/F. The total length of the katta was 26 cm and its handle

was 11.25 cm in length; it was taken into possession vide memo

Ex.PW-24/G. This recovery was witnessed by Const.Rameshwar and

Const.Virender Singh PW-24.

7. On the same day i.e. on 23.9.1997, the Investigating

Officer PW-31 deposited this deshi katta in the malkhana. On

18.11.1997 Const.Ram Niwas PW-27 delivered a sealed parcel

sealed with seal of RK to the CFSL which was received by

K.C.Varshney PW-15. Vide reports Ex.PW-15/A and Ex.PW-15/B it

was opined that the weapon had a .315" bore and out of the two

bullets received one was a deformed bullet and both the bullets

correspond to bullets of 8mm/.315 cartridge. Sh.Virender Singh PW-

17 Addl. DCP had vide his report Ex.PW-17/A granted sanction under

Section 39 of the Arms Act for prosecution of the accused.

8. The trial Judge, had convicted the accused holding that

the testimony of the eye-witnesses i.e. Zarifa PW-3, Neeraj PW-1

and the extra-judicial confession made by the accused to Izaz Ali

PW-30 were incriminating besides the recovery of the katta which

had been got recovered by the accused pursuant to his disclosure

statement coupled with the report of the ballistic expert that the

bullets which had been retrieved by the Post-Mortem Doctor of

8mm/.315" cartridge corresponded to bullets of 8mm/.315"

cartridge and the weapon of offence was a country-made pistol of

.315" bore. These cumulative factors were held as conclusively

establishing the guilt of the accused.

9. On behalf of the accused, it has been argued that the

eye-witnesses are planted and there is no explanation as to why

when the statement of Meharban Ali PW-5 was recorded, there is no

mention of the eye-witnesses having witnessed the incident when

one such eye-witness, PW-3, being the daughter of PW-5 would

have in the normal course of conduct, in the first instance disclosed

the name of the assailant to her father. It is submitted that these

eye-witnesses have been roped in subsequently and that is why

their versions have been recorded by the Investigating Officer one

day after the incident; this fact has also not been put to the accused

in his examination under Section 313 Cr.P.C, thus giving him no

chance to explain his stand. Reliance has been placed on a

judgment reported as Ranvir Yadav vs. State of Bihar 2009 7 Scale

60 to substantiate the submission that in the absence of this

incriminating circumstance having been put to the accused, the

same cannot be read as evidence against him. The recovery of the

katta is doubtful as the recovery has been effected on 24.9.1997

but the police had knowledge about the place of recovery as early

as 19.9.1997 and this is evident from the testimony of PW-31;

recovery stands demolished. It is argued that the Post-Mortem

Doctor had opined that the fatal injury was the result of a rifled

firearm and the deshi katta sought to be proved as the weapon of

offence is not in consonance with this theory. Accused is entitled to

a benefit of doubt and a consequent acquittal.

10. We have perused the record and appreciated the

arguments addressed before us.

11. The rukka was dispatched on the statement of PW-5

who is the father-in-law of the deceased. Incident had first been

reported in the Police Control Room at 21.33 hours. D.D.No.22A to

the said effect had been recorded in the Police Station at 9.45PM

and the Investigating Officer i.e. PW-23 along with PW-9 had

reached the spot thereafter; they found no eye-witness at the spot;

it was learnt that the injured had been removed to the Guru Teg

Bahadur Hospital. At the hospital the MLC of the victim showed that

he had been brought dead. The Investigating Officer did not meet

any eye-witness at the hospital either. He returned back to the spot

where in the first instance he met PW-5. His statement Ex.PW-5/A

was recorded and the rukka was dispatched on this statement at

12.15PM. Statement of PW-5 has been perused; this version

categorically points the needle of suspicion at the accused and two

to three other accomplices; contents of Ex.PW-5/A have already

been noted and hence the same are not being repeated

12. Meharban Ali PW-5, on oath, in Court, deposed that on

17.8.1995 at about 9.15 PM he had heard two fire shots while he

was lying on the roof of his house. Somebody called him. He

rushed to the house of Irfan. Irfan Khan is his son-in-law and was

living as a „gharjawai‟ in house no.V-299 which is adjacent to his

house. On reaching the site he saw that Irfan was lying near his

scooter and he had suffered two bullet shots on his body, one on his

chest and the other on his head; the assailant had run away. His

injured son-in-law was removed to the hospital but he did not

accompany him. He suspected Khurshid, who was earlier working as

their servant; he i.e. Khurshid had been removed from service as he

had bad intentions towards his daughter Zarifa; even after that

accused Khurshid continued to threaten his daughter and son-in-

law. In his cross-examination, he has stated that he reached the

place of occurrence after about one or two minutes of hearing the

sound. His daughter Zarifa and Neeraj along with some other person

removed the injured to the hospital. His statement was recorded by

the police at the spot which was signed by him; his first statement

was recorded before the arrival of his daughter from the hospital.

He denied the suggestion that he is deposing falsely at the instance

of the police.

13. Zarifa PW-3 is the wife of the deceased. She is the eye-

witness. She has deposed that the accused Khurshid was working

as their servant till about four years ago. He had worked with them

for one year. He i.e. the accused had bad intentions towards her

and as a result of which quarrels used to take place between the

deceased and Khurshid. Accused Khurshid continued to threaten

her as also her husband. Two days prior to the occurrence,

Khurshid had given a threat to her on telephone. On 17.8.1997 at

6.00PM Khurshid threatened her husband on telephone. Again at

8.00PM he made a call to her threatening to kill her; at that time

Neeraj who had come to take milk from her house heard her

conversation and he took receiver from her. Neeraj also heard

Khurshid abusing her. Neeraj went towards the STD shop but he

could not find anyone there. He returned back to her house. After

sometime the door bell rang and from the roof she i.e. PW-3 saw

two boys along with Khurshid standing near the door. Her husband

had just returned on his scooter and at that time all the three

persons including Khurshid attacked her husband; they were all

having country made pistols in their hands. Two shots were fired at

her husband as a result of which, he fell down. She i.e. PW-3 along

with Neeraj removed her injured husband to the hospital. This

witness has been subjected to a lengthy cross-examination. She

has admitted that when she heard the bullet sounds, she and Neeraj

were alone on the roof and her three sons were outside the house.

There is a gali between her house and her father‟s house. The

street light was on when she saw the accused fire at her husband.

She i.e PW-3 along with Neeraj and one more person removed the

injured to the hospital. Her father also reached the spot of

occurrence but at that time no conversation took place between her

and her father as she was weeping. Her father did not accompany

them to the hospital. Statement of Neeraj was not recorded in her

presence. She denied the suggestion that she had not witnessed

the accused firing at her husband or that she is deposing falsely at

the behest of the police.

14. The second eye-witness is Neeraj examined as PW-1.

He has deposed that on the fateful day i.e. on 17.8.1997 at 8.30PM

he had gone to the house of Zarifa i.e PW-3. She i.e. PW-3 was

having a loud conversation on telephone and when he asked her

about it she handed over the telephone receiver to him and he

heard some person shouting in an abusive language over the

phone. He i.e PW-1 kept the phone and went outside towards STD

booth to check but nobody was found there. He returned back. He

asked Zarifa Aunti for the milk. The door bell rang; he was

standing with PW-3 then they saw two boys as also Khurshid come

towards the entrance of the house. Dr.Irfan had just returned on his

two-wheeler scooter; at that time Khurshid took out a pistol and

placed it on the Kanpatti of the deceased and the two other boys

also took out their pistols and aimed at Dr.Irfan who received two

injuries and he fell down from the scooter. He i.e. PW-1 along with

PW-3 and one neighbour removed the injured to the Guru Teg

Bahadur Hospital. This witness has also been subjected to a

lengthy cross-examination. He has stated that he does not know

any person by the name of Nasir. They had reached the hospital at

10.00 PM and remained there till 1.00 AM in the night. His

statement was recorded by the police on the next day at about

11.00 AM. He had witnessed the incident from the roof of Zarifa

where he was standing with her; there was light outside as a bulb

was burning. He met Meharban Ali in the hospital but no talk took

place between him and Meharban Ali. He spoke to Meharban Ali on

the following day at about 2.00-3.00 PM. He denied the suggestion

that he did not witness the incident or that he is deposing falsely at

the instance of PW-3.

15. In his statement under Section 313 of the Cr.P.C. the

accused had pleaded innocence and stated that he has been falsely

implicated by PW-5 Meharban Ali with whom he was employed and

the witnesses have deposed at the instance of Meharban Ali.

16. It is relevant to state that none of the eye-witnesses i.e.

either PW-3 or PW-1 has been given any suggestion by the learned

defence counsel that they are deposing falsely at the instance of

Meharban Ali or that there was any special enmity brewing between

the accused and Meharban Ali. No such suggestion has been given

to Meharban Ali PW-5 either.

17. The eye-witnesses i.e. PW-3 and PW-1 have given clear

and cogent versions; the picture has been depicted clearly; the

incident had occurred at 9.15 PM; Investigating Officer had reached

the spot along with his police personnel at 9.45 PM; at that time the

injured had already been removed to the hospital. At the hospital,

the Investigating Officer learnt that victim had succumbed to his

injuries and he was brought dead. He did not meet any witness at

the hospital. He returned to the spot where he met Meharban Ali

PW-5, the father of victim. Statement of PW-5 was recorded and the

rukka was dispatched on this statement at 12.15 PM. The time gap

between the incident and the dispatch of the rukka is fairly minimal

keeping in view the intervening happenings i.e. the Investigating

Officer reaching the spot at Arvind Nagar, going to the Guru Teg

Bahadur Hospital and learning about the victim having succumbed

to his death and then again returning back to the spot. PW-5, in his

cross-examination, has categorically stated that till the time when

his statement Ex.PW-5/A was recorded he had not met his daughter;

this is thus clearly the reason why the name of Khurshid appeared

in Ex.PW-5/A only as a suspect and the eye-witnesses account

has not been detailed therein.

18. The rukka was dispatched at 12.15 PM i.e. in the early

morning hours of 18.8.1997. Statement of the eye-witnesses i.e.

PW-3 and PW-1 have been recorded on the same day i.e. 18.8.1997

itself. PW-23 the Investigating Officer has in his cross-examination

stated that he had recorded the statement of Zarifa @ Natho after

one hour of having sent the rukka; the statement of Neeraj was

recorded at 11.00AM; this has been admitted by Neeraj in his

cross-examination. There is no delay in recording the statements of

the eye-witnesses. Testimonies of the eye-witnesses inspire

confidence and there is no reason why they should be disbelieved;

the eye-witnesses had along with Nasir removed the injured to the

hospital and this has been corroborated by both PW-3 and PW-1.

Non-examination of Nasir does not in any manner dent the version

of the prosecution.

19. The judgment relied upon by the learned defence

counsel to substantiate her submission that the incriminating

circumstance of PW-3 having witnessed the incident not having

been put to the accused, vitiates the trial, is clearly distinguishable

and not applicable to the facts of the instant case. In that case

accused had been convicted by the High Court for the offence of

murder; 12 witnesses had been examined; in his statement under

Section 313 Cr.P.C. the incriminating circumstance of the appellant

having fired the gun had not been put to the accused; it was in the

said facts and circumstances that the Supreme Court had held the

conviction required an interference. In the present case, while

recording the statement of the accused under Section 313 of the

Cr.P.C. accused has been specifically questioned that in the

presence of PW Neeraj in front of the house of Zarifa, you i.e. the

accused Khurshid Ahmed and his accomplices had fired gun shots at

the deceased; the sum substance of the accusation that Khurshid

Ahmed had fired from his gun had been put; accused was well

aware of this charge; merely because the point that this was also in

the presence of PW-3 has not been put does not in any manner

prejudice or bias the defence of the accused; the accused was well

aware of this accusation leveled against him. PW-3 had also been

subjected to a lengthy four page cross-examination and she has

been questioned on all possible aspects including the aspect of her

presence at the spot.

20. There is no doubt to the proposition that scope of

Section 313 Cr.P.C. is not an empty formality and there is a purpose

behind the examination under the said provision of law. It is,

however, to be kept in mind that what is the effect of not putting a

particular incriminating circumstance to the accused; does it lead to

a prejudice and a subsequent denial of justice; if not; the accused is

not permitted to take the benefit of the same. Mere non-

examination or a defective examination under Section 342 of the

Cr.P.C. 1998 (Section 313 of the new Code) unless prejudice or

miscarriage of justice is established is not a ground for interference.

See Vibhuti Bhushan vs. State of West Bengal AIR 1969 SC 381.

21. An extra-judicial confession had been made by the

accused to Izaz Ali PW-30 wherein the accused Khurshid had

inculpated himself. PW-30 had on oath deposed that on 17.8.1997,

at about 10 PM accused Khurshid had come to his house and told

him that he had gone to the house of Natho to meet her and at that

time a quarrel took place between him and Dr.Irfan as a result of

which he caused injuries to Dr.Irfan. He i.e. the accused told PW-30

to settle the matter between them. PW-30 made a telephone call to

the house of Dr.Irfan wherefrom he learnt that Dr.Irfan had been

removed to hospital as he had sustained injuries. He thereafter

learnt that Dr.Irfan had died. In his cross-examination this witness

has stated that the accused has come to his house between 9.45PM

to 10.00PM. He denied the suggestion that he had implicated the

accused in a false case in an earlier matter or that he is deposing

falsely.

22. An extra-judicial confession is a weak evidence and

taken by itself it may not be always be sufficient to nail the

accused; yet the version of PW-30 has corroborated the testimony

of the eye-witnesses. Nothing has emerged in his cross-

examination which could discredit him; the suggestion that PW-30

had implicated the accused in an earlier case is neither here nor

there as no details of any such earlier case have been elicited in

this cross-examination; if this was a genuine defence nothing

prevented the accused from producing the record of that case to

substantiate this suggestion. PW-30 has given a reliable version.

23. Accused was absconding and it was only pursuant to a

secret information that he was arrested on 18.8.1997. He had

made three disclosure statements. The first disclosure statement

Ex.PW-25/A was made on 19.9.1997 and as per this disclosure, the

accused had disclosed that he could point out the place of

occurrence, the hotel where the conspiracy had been hatched, the

place where he had thrown the bullets as also the role of his co-

accomplices. No recovery had, however, been effected pursuant to

this disclosure statement. The second disclosure statement PW-

24/A of the accused was recorded on 20.9.1997. As per this

disclosure statement, the accused had disclosed that the weapon of

offence could be got recovered by him from the house of his

`Mama‟ at Ghat Kopar, Bombay and he had hidden it in the tand of

his house. No recovery was effected pursuant to this disclosure

statement either. A third disclosure statement Ex.PW-25/B of the

accused was recorded on 21.9.1997. Pursuant thereto on the same

day i.e. on 21.9.1997 the accused pointed out the place where his

co-accused Dulare was residing. This was vide memo Ex.PW-24/D.

Vide memo Ex.PW-24/E accused had pointed out the place of

occurrence as also the place where he had thrown the bullets but

nothing could be retrieved. On 23.9.1997 the accused had led the

police party to the ganda nala Brijpuri near the pulia towards

eastern side and pointed out the place where he had thrown the

katta after keeping the same in a polythene. The deshi katta was

taken into possession vide memo Ex.PW-24/G.

24. The submission of the learned defence counsel that the

recovery of the katta had been effected on 24.9.1997 is a wrong

fact. The accused had up to 23.9.1997 only pointed out the place of

occurrence; the residence of his co-accused and the place where

the bullets had been thrown by him. On the day of the recovery i.e.

on 23.9.1997 he had led the police party and after pointing out the

place where he had thrown the weapon of offence, he had

thereafter got the same recovered. Argument of learned defence

counsel on this point that the police knew the place of recovery on

19.9.1997 is thus without any substance.

25. Learned defence counsel has further submitted that the

place of recovery is a public place which is accessible to all and the

deshi katta was not any special weapon having any special mark of

identification; it is a weapon easily available in the market and as

such there is every possibility that the same has been planted.

26. The witnesses to the recovery, besides PW-31 are PW-

24 and PW-29. PW-24 has on oath deposed that accused had in

their presence pointed out the place where he had thrown the

weapon i.e. deshi katta in the nala; PW-29 and PW-24 had entered

inside the nala and after about 5-7 minutes they found a yellow

coloured polythene inside the nala and on opening it they found a

country made pistol. In his cross-examination PW-24 had deposed

that there was mud inside the nala wherefrom it was retrieved.

27. From this evidence adduced by the witnesses to the

recovery it has emerged that the weapon of offence was lying inside

the mud in the ganda nala and after cleaning the mud which took

more than 5 to 7 minutes, they retrieved this weapon of offence; it

was not recovered from an open area Inspector Ravinder Kumar

PW-31 has categorically deposed to this effect; he was joined by

Const.Rameshshwar PW-29 and Const.Virender Singh PW-24. All

the said witnesses have corroborated one another on this score.

Recovery stands established.

28. This weapon of offence recovered on 23.9.1997 was

deposited in the Malkhana on the same day and this is the

categorical version of PW-28 the Malkhana Incharge. On

18.11.1997 it had been sent through Const.Ram Niwas PW-27 to

the ballistic expert. The ballistic expert Sh.K.C.Varshney has come

into witness box as PW-15. He deposed that on 19.11.1997 he had

received one sealed parcel which contained a country made pistol

.315" bore which was in working order and report to this effect is

Ex. PW-15/A. Vide report Ex. PW-15/B the two bullets retrieved

from the dead body and received in the Ballistic Division through

the Biology Division had been examined and as per this report the

said bullets corresponded to bullets of 8mm/.315" bore.

29. This piece of evidence has established that the bullets

which had killed the deceased were fired from a 8mm/.315" bore

pistol which was the pistol recovered at the instance of the accused.

30. A firearm is a generic term for various weapons

throwing a missile by the propelling power generator by a charge of

explosives which includes rifles and pistols (deshi katta). The Post-

Mortem Doctor PW-11 had deposed that the fatal injury i.e. the

injury no.2 had been caused by a rifled bore firearm. In his cross-

examination he has reiterated this version and has stated that this

injury was not from a smooth firearm; on further query about the

length of the firearm PW-11 has stated that this pertains to the

ballistic expert and he has no knowledge of firearms. The ballistic

expert has been examined as PW-15. No cross-examination has

been effected of this witness about the resultant difference of firing

from a rifled firearm or the injury which could result of firing from a

deshi katta. It was for the accused to have cross-examined the

expert witness to elicit a distinction, if any, between an injury

caused by a rifled firearm and the injury which could be the result of

a bullet fired from a deshi katta; in the absence of which this

argument of the learned defence counsel has no force. Learned

defence counsel is even otherwise not clear as what is the

distinction between the injury from a rifled firearm or a smooth

firearm or from a deshi katta. We also note that the sketch of the

katta Ex.PW-24/G shows that the barrel is fairly long; i.e. 14.5 cm in

length; quite akin to a rifle.

31. The motive for the offence has been depicted in the

version of PW-3 as also PW-5. Both the daughter and the father i.e.

Zarifa and Meharban Ali have deposed that the accused was

working as an employee with the deceased till about four years ago

and he had been thrown out of service as he had an evil eye on PW-

3. He nevertheless continued to threaten PW-3 and her deceased

husband and even on the day of the incident as per the version of

both these witnesses threatening calls had been received by PW-3

from the accused. This threatening call had also been heard by PW-

1 and corroborated by him on oath. Accused has apparently

wanted to vent out his vengeance against the deceased.

32. All these cumulative factors i.e. the version of eye-

witnesses i.e. PW-3 and PW-1, the extra-judicial confession made by

the accused to PW-30, the motive for the crime, the accused

absconding for more than one month and thereafter having got

recovered the deshi katta which as per expert evidence was a pistol

of .315" bore which corresponded in size to the bullets retrieved

from the dead body conclusively point towards the guilt of the

accused.

33. Judgment of the trial Court calls for no interference.

Appeal is without any merit; it is dismissed. Bail bond and surety

bonds are cancelled; accused shall surrender forthwith to suffer the

remaining sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

11th September, 2009 nandan