Delhi High Court
Vidya Sagar Anand vs State on 24 September, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on:17th September, 2009
Judgment Delivered on:24th September, 2009
CRL.A. 340/2001
VIDYA SAGAR ANAND ...........Appellant
Through: Mr. U.U. Lalit, Sr. Advocate with
Mr. Bharat Dubey, Mr. K.K. Tyagi,
Mr. Nitin Sangra, Ms. Pranchi
Bajpai, Mr. Sidhesh Kotwal,
Ms.Jesal Wahi and Mr. Mehul,
Advocates.
Versus
...........Respondent
STATE
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. On 5.1.1990 at 12.02 PM information was received in Local
Police Station Mandir Marg through Const.Usman Ali PW-2 that firing
had taken place at Citizen Guest House. The said information was
conveyed to the Addl. SHO as also to SI Satpal Yadav; it was
reduced into writing vide D.D.No.10A Ex.PW-16/A recorded by SI
Bans Bahadur PW-16. Ex.PW-16/A was marked to SI S.P.Yadav PW-
17 who along with Inspector Dalbir Singh reached the spot. ASI
Lajja Ram PW-1 and Const.Usman Ali PW-2 were already present
there. Vidya Sagar the owner of the guest house had been
apprehended. PW-1 was holding a revolver in his hand which he
had snatched from the hand of the appellant Vidya Sagar. The
injured Mohinder Singh was lying unconscious in a pool of blood and
was breathing heavily but was not yet dead. On the direction of
PW-17, PW-1 removed the injured to Ram Manohar Lohia (RML)
hospital. The injured was medically examined at 12.15 PM vide MLC
Ex.PW-18/A by Dr.Sanjeev Aggarwal PW-18. Patient was declared
brought dead.
2. PW-17 and PW-2 also followed PW-1 and the injured to the
hospital. Statement of PW-1 Ex.PW-1/A was recorded by PW-17. As
per this statement PW-1 along with PW-2 was on „bandobast‟ duty
and were proceeding towards Raja Bazar; at about 12.00 Noon
when they reached in front of Citizen Guest House they heard
sounds of a bullet being fired; PW-1 saw that Vidya Sagar owner of
the guest house was attacking a person whose name later on was
revealed as Mohinder Singh; PW-1 and PW-2 apprehended Vidya
Sagar and the .32" bore revolver held by him in his right hand
bearing no.618450 was seized from him; up to this time appellant
had already fired three bullets on the injured who was lying on the
floor; H.C. Amar Singh PW-4 also reached the spot; PW-1 directed
PW-2 to inform the SHO in the Police Station who reached the spot;
on the direction of ASI Satpal Yadav the injured was removed to the
hospital.
3. This statement was endorsed by PW-17 vide endorsement
Ex.PW-17/A and the rukka was sent at 2.05 PM through PW-2 for the
registration of the FIR. The FIR was registered by PW-16 under
Section 302 IPC. The revolver which had been seized by PW-1 and
handed over to PW-17; the chamber of which contained three
empty cartridges and one live cartridge was taken into possession
vide memo Ex.PW-1/B. The duty constable at the RML hospital
Const.Rajesh PW-10 was handed over 13 articles by the duty doctor
which included a revolver and the keys of a maruti vehicle which
had been recovered from the deceased. The said articles were
taken into possession by PW-17 vide memo Ex.PW-1/C. The dead
body was sent to the mortuary.
4. Returning to the spot, PW-17 summoned the crime team. 14
photographs of the scene of crime Ex.PW-8/A-1 to A-14, negatives of
which are Ex.PW-1/B-1 to B-14 were taken by H.C. Man Mohan Singh
PW-8. The rough site plan Ex.PW-17/B was prepared at the pointing
out of PW-2. A blood smeared bullet was lifted from the spot vide
memo Ex.PW-2/E; a blood smeared button was also lifted from the
spot vide memo Ex.PW-2/D; blood stained earth and earth control
were lifted vide memo Ex.PW-1/D. These exhibits were deposited in
the Malkhana with Mohorar Malkhana H.C. Manohar Singh PW-14 on
the same day.
5. The accused who had already been apprehended was
arrested; his personal search Ex.PW-2/F was conducted; it was
found to contain the licence of the revolver issued in his name. On
the same day i.e. on 5.1.1990, the accused got an empty cartridge
recovered, from the almirah of his house at Ranjit Nagar, which was
taken into possession vide memo Ex.PW-1/F. Accused made two
disclosure statements, first disclosure statement Ex.PW-1/E is dated
6.1.1990 and the second disclosure Ex.PW-17/Z is dated 7.1.1990.
In the first disclosure statement he disclosed that he could get
certain property papers of Sita Ram Bazar recovered; which were
taken into possession vide memo Ex.PW-17/D. In the second
disclosure statement, the role of co-accused Ashok Kumar surfaced
as per which Ashok Kumar had battered the head of the deceased
with a hammer whereas the present appellant had pumped the
bullet injuries on his person. No recovery had been effected
pursuant to this disclosure statement.
6. Statement of Const. Usman Ali PW-2 also reported to be an
eye-witness was recorded and he being the pillion rider of the
scooter which was driven by PW-1, corroborated the eye-witness
account of PW-1.
7. The driver Khemchand PW-3 of the maruti vehicle No.DNC-
1734 i.e. the car of the deceased, had also witnessed this scene of
occurrence and was the first person to inform the family members
of the deceased.
8. H.C. Amar Singh PW-4 who had been posted in the Police
Picket 50 yards away from the place of incident had also reached
the spot on hearing the bullet sounds and saw the accused already
apprehended by PW-1 and PW-2 with a revolver in his hand.
9. On 6.1.1990 the post-mortem on the deceased was conducted
by Dr.Sanjay Dass PW-15 who vide his report Ex.PW-15/A had
noted eight injuries on the person of the deceased:-
"1.Circular wound 0.6 cm in diameter with abraided
margins on the centre of the dorsum of left hand. There is
tattooing by unburnt powdered partices around it
spreading 5 cm in diameter (wound of entry).
2. Regular margined oval wound 0.8 cm.x0.9 cm on the
centre the centre of palm of left hand corresponding to
external injury no.1 ( would of exit).
3. Laceration 1.2 cm x 0.3 cm x slim deep (longitudinally
placed) 1 cm distal to external injury no.2.
4. Compound fracture of middle phalanx of left middle
finger with laceration around it.
5. Circular wound 0.6 cm in diameter with abrasion collar
on right side of neck 4 cm above clavical and 0.5 cm
posterior to the sterno cledo mastord muscle (wound of
entry).
6. Irregular margined wound 2.5 cm x 2 cm on midline of
neck 2cm above the thyroid cartilage( wound of exit).
7. Lacerated wound 6cm x 0.5 cm x scalp deep(coronally
placed) on centre of right parietal region.
8. Lacerated wound 6 cm x 0.5 cm x scalp deep (coronally
placed) on right parietal eminence.
10. The dead body was identified by Kulvinder PW-5 brother of
the deceased vide memo Ex.PW-1/C.
11. On 12.1.1990 ASI Abdul Kaleem PW-7 collected the post-
mortem report and the clothes of the deceased and deposited them
in Malkhana on the same day.
12. The site plan to scale Ex.PW-11/A was prepared on 15.2.1990
by Inspector Devender Singh.
13. On 16.1.1990 the exhibits of the case were sent through PW-
7 to the CFSL. The ballistic examiner Mr.B.Moitra vide his report
Ex.PA dated 27.3.1990 opined on parcel nos.1 to 4 and parcel no.9
to 10. Parcel no.1 was the .32" bore revolver bearing no. 618450 of
the accused; parcel no.2 contained three .32" cartridges marked C-
1 to C-3 and another .32" cartridge C-4; C1 to C3 were the
cartridges which had been recovered from the chamber of the
revolver of the accused. Parcel no.3 contained one .32" cartridge
mark C-5 which had been got recovered by the accused pursuant to
his disclosure statement; .32" damaged lead bullet mark BC-1
retrieved from the spot had also been examined; Parcel no.10
contained five .32" cartridges mark C-6 to C-10 which had been
found in the chamber of the revolver of the deceased.
14. Ex.PA opined that the revolver of the accused mark W-1 was
in a working order; the three .32" cartridge cases Ex.C-1 to C-3 and
the .32" cartridge case C-5 as also the bullet BC-1 which had been
retrieved from the spot had been fired from the said revolver in
question i.e. the revolver of the accused.
15. Vide report Ex.PB dated 27.3.1990 the CFSL had examined a
blood stained button in parcel no.5 which had been retrieved from
the spot; this was compared with another grey colour stone piece
which had been retrieved from the shirt of the deceased and the
scientific examination of the same revealed that they were both
similar to each other in physical character and the density
distribution of particles establishing that the blood stained button
which had been retrieved from the spot was the missing second
button of the shirt of the deceased.
16. Serological examination of the exhibits vide report Ex.PD
dated 28.3.1990 of C.M.Patel revealed that blood group „O‟ was
detected on the clothes of the deceased which was also his blood
group.
17. The various DD entries regarding the entry and arrival of
various police officers at the Police Station Mandir Marg had been
exhibited by Bans Bahadur PW-16 in his testimony and we shall
revert back to them in the later part of the judgment.
18. This is the sum total of the evidence both oral and
documentary which has been collected by the prosecution.
19. The Trial Judge vide his impugned judgment had convicted the
appellant for the offence under Section 302 of the IPC for having
committed the murder of Mahinder Singh as also for the additional
offence under Section 27 of the Arms Act for having illegally used
the weapon of offence i.e. his .32" bore Webley Scott revolver which
had caused the death of the deceased. While returning the finding
of guilt, the Trial Judge had relied upon the versions of the eye-
witnesses i.e. SI Lajja Ram PW-1, Const.Usman Ali PW-2, Khem
Chand PW-3 and H.C. Amar Singh PW-4. This evidence coupled with
the medical report i.e. the post-mortem evidencing bullet injuries on
the person of the deceased which corroborated the ocular version of
the eye-witnesses, advanced by the report of the ballistic expert
that the bullet retrieved from the spot was the bullet which had
been fired from the fire arm of the accused were the cumulative
factors which had led to the conviction of the accused.
20. On behalf of the appellant, arguments have been addressed
at length.
I. It is submitted that the presence of the eye-witnesses at the
spot is suspect and it has not been proved that they have witnessed
the incident as deposed to by them; in this regard the trial Judge
has not appreciated their versions in the correct perspective.
Learned senior defence counsel has assailed the presence of all the
aforenoted eye-witnesses namely ASI Lajja Ram PW-1, Const.Usman
PW-2, Khem Chand PW-3 and Const.Amar Singh PW-4.
A. Qua the presence of PW-1, it has been submitted.
(i) That as per the version of prosecution, PW-1
was the person who had removed the injured to the
hospital and he being an eye-witness there is no
explanation as to why in the „alleged history‟ recorded
in the MLC there is no mention or detail of the incident;
the name of the deceased Mohinder Singh has also
been added later on. The explanation furnished by PW-
1 in his cross-examination that at that time when the
MLC and death summary were prepared he had gone to
make a telephone call, on the face of it appears to be
false as it is a strange co-incidence that on both these
occasions he had gone to make a telephone call; when
otherwise he should have been in attendance as it was
an urgent duty; he having brought a near dead person
to the hospital. Attention has been drawn to the cross-
examination of Dr.Sanjeev Aggarwal PW-18 who has
prepared the MLC wherein he had admitted that no
history of the injuries of the deceased had been given to
him; in his cross-examination he had been confronted
with his earlier statement which he had given to the
police wherein he had enquired from PW-1 as to how
the bullet injury had been found on the dead body to
which PW-1 had replied that he had no knowledge about
it. In these circumstances, it becomes clear that the
PW-1 was not an eye-witness; he having no knowledge
about the incident.
ii. Presence of PW-1 and PW-2 has not been
shown in the site plan Ex.PW-17/B obviously for the
reason that they were not present at the spot,
iii. Photographs had admittedly been taken at
the spot but the photographs have neither depicted the
presence of the accused nor of PW-1 and this was for
the reason that neither of them i.e. neither the accused
nor PW-1 were present at the spot.
iv. Ex.PW-18/A has recorded that PW-1 had
taken the deceased to the hospital and this fact is not
disputed but the aforementioned discrepancies as
pointed out clearly show that PW-1 has been planted as
an eye-witness later on and he had not witnessed the
incident.
B- Qua the presence of PW-2, it has been submitted :-
i. In his entire examination-in-chief he has not
whispered a word that he had witnessed the incident;
he has only deposed that when he along with PW-1 had
heard the bullet sound they had reached the Citizen
Guest House where in the verandah they saw a man
lying there in a pool of blood and the accused was also
standing there; in this version he had not stated that he
had seen the incident; it is submitted that it was only
when he had been permitted to be cross-examined by
the Public Prosecutor that he had stated that he had
seen the firing incident.
ii. As per the prosecution version, the first D.D. i.e.
D.D. No.10A Ex. PW-16/A was recorded on the
telephonic message which had been transmitted by PW-
2 but the perusal of this document shows that there is
no mention of any detail of the incident and had PW-2
been an eye-witness, his natural narration would have
been to disclose the name of the assailant, the name of
the deceased as also the spot of occurrence but none of
these details have been mentioned in Ex.PW-16/A.
Attention has been drawn to his cross-examination
wherein he had admitted that in this telephonic
conversation he had not revealed that he made the
telephonic call from the reception of the guest house or
that the person who had fired had been apprehended or
that ASI Lajja Ram was present at the spot or about the
religion of the victim. Attention has also been drawn to
his version wherein PW-2 has stated that he did not see
the bullet being fired but on hearing the bullet sound
they had run towards the place of occurrence, obviously
for the reason that he had not witnessed the incident.
iii. Statement of this witness had not been
recorded even up to the time when he had remained in
the hospital for which again there is no explanation as
up to that time the injured had been administered first
aid and if PW-2 was an eye-witness he would have in
the natural course disclosed the same to the
Investigating Officer who was also present in the
hospital.
iv. Admittedly, MLC of the deceased Mohinder was
prepared in his presence but no detail of the incident
had been mentioned in the MLC, again throwing
suspicion on the presence of the PW-2 at the spot.
C- Qua the presence of PW-3, it is submitted:-
i. If PW-3 was the driver of the deceased there is
little answer with the prosecution as to how the car keys
have been recovered from the person of the deceased
i.e. from his pant pocket and not from PW-3.
ii. Conduct of PW-3 is highly unnatural; as per his
version after witnessing the incident he did not inform
the police but he straight away went to the house of the
deceased where he met his mother who on hearing the
news became unconscious but admittedly he did not
take her to the hospital; neither did he bring any doctor
to the house to provide first aid to her; he returned back
to the spot at 4.30 PM and in this entire intervening
period from about 12.00 Noon i.e. the time of
occurrence up to 4.30 PM he was sitting tight with no
action or reaction on his part.
iii. As per his version he had informed about the
incident to the family of the deceased at 12.30 PM and
the mother, „mausi‟ and Paramjeet Singh younger
brother of the deceased had reached the spot but they
had not gone to the hospital. PW-1 had also admitted
that none of the family members of the deceased had
come to the hospital up to the time when he stayed
there which was up to about 3.00PM which again throws
doubt on the veracity of the version of PW-3 as if the
family members of the deceased had learnt about his
death at 12.30 PM it is not possible to believe that none
of them would have gone to the hospital to find out
about his fate.
iv. The role of co-accused Ashok who is admittedly
a proclaimed offender has for the first time surfaced in
the cross-examination of PW-3 and none of the
preceding eye-witnesses i.e. PW-1 and PW-2 have
mentioned about his presence.
v. The deceased was also a proclaimed offender,
he was a B.C.( bad character) of the area; admittedly he
had suffered death at the hands of some person but
who is that person has not been established by the
prosecution.
D- Qua the role of H.C. Amar Singh PW-4 it has been
submitted:-
i. He has claimed himself to an eye-witness yet he
is not so and this is clear from his version on oath; he
has admitted that when he reached the spot Vidya
Sagar had disclosed the name of the deceased as
Mohinder Singh meaning thereby that at the spot itself
PW-4 knew about the identity of the deceased. He had
admittedly remained at the spot till 7.00PM. As per his
version Usman Ali PW-2 had also remained at the spot
for 45 minutes before going to the hospital and he i.e.
PW-2 had narrated the incident to SI S.P. Yadav and his
statement was recorded but no such statement is on
the record for which there is no explanation.
ii. Admittedly, PW-4 was holding a wireless set; as
per his statement he had handed over two wireless sets
in the Police Station on his arrival back in the Police
Station; there is no explanation as to why if he had a
wireless set with him, no information was transmitted
by him to the senior officers about the incident which
throws doubt on his presence at the spot.
II. Attention has been drawn to MLC Ex.PW-18/A, admission and
discharge record Ex.PW-18/DS, the Death Report Form Ex.PW-
1/DB as also the entry page of the Mortuary Register of the hospital
Ex.PW-18/DA wherein the name of the deceased was not known
right up to 5.10 PM i.e. the time when the dead body had been
taken to the mortuary and the deceased continued to remain
unidentified upto that time which is contrary to the ocular testimony
of the witnesses who have deposed otherwise. Attention has also
been drawn to DD no.46B Ex.PW-16/DD showing the departure of SI
Ishwar Singh at 3.15 PM for the RML hospital and his arrival entry
i.e. DD no.52B Ex.PW-16/DE showing his arrival in the police station
at 5.25 PM after depositing the dead body in the mortuary at 5.10
PM. It is submitted that SI Ishwar Singh had specifically been
deputed to deposit the dead body of Mahinder Singh in the
mortuary for which purpose he had left at 3.15 PM and even when
the dead body had been deposited in the mortuary at 5.10 PM, his
identity was still unknown which throws clouds of suspicion on the
investigation. Kulvinder PW-5 the brother of the deceased had as
per his version gone to the hospital in the afternoon; he had
reached there at 4.30 PM and remained there upto 5.30 PM; he had
met the doctor in the emergency ward; even up to that time there is
no explanation as to why the identity of the deceased remained a
secret.
III. H.C. Man Mohan PW-8 was the photographer who had gone to
the Citizen Guest House vide his vide his departure entry
Ex.PW-8/DA which shows that he had left the Police Station at 11.55
AM. It is submitted that the first information of the incident had
been recorded in DD No.10A at 12.02 PM and PW-8 leaving the
Police Station to photograph the scene of crime at 11.55 AM shows
that the offence had been committed prior in time to 11.55 AM thus
throwing doubt on the veracity of the rukka.
IV. SI S.P. Yadav PW-17 had taken the accused to the Police
Station at 7.05 PM meaning thereby that the accused had remained
at the spot till that time; PW-4 has also corroborated this version;
attention has been drawn to the further testimony of PW-17 who
has stated that at 4.30 PM, at the spot he had interrogated the
accused in the presence of ASI Lajja Ram and wherein the accused
had disclosed that he could get recovered an empty cartridge which
was subsequently recovered from the almirah in his house; he led
the police party there and got the recovery effected; it is submitted
that if at 4.30 PM the accused had gone with the police party for the
recovery how PW-4 had found the accused present at the spot up to
7.00 PM is not reconciled; the DD entry Ex.PW-16/DA recorded at
7.05 PM evidenced that the accused had been brought to the police
station at that time; at 8.30 PM he was taken out of the lock up and
interrogated; thereafter at 10.20 PM he had again been put back in
the lock up; even presuming that the accused had been taken for
the recovery after he had been taken to the police station there is
no departure entry from the police station to the said effect; alleged
recovery of the cartridge from his house on 5.1.1990 is clearly false.
This recovery was also effected without any disclosure statement of
the accused and cannot be a piece of evidence under Section 27 of
the Evidence Act. Arrest memo of the accused has also not been
proved.
V. Qua the testimony of SI Bans Bahadur PW-16, learned defence
counsel pointed out the various DD entries proved by him. DD
no.10-A Ex.PW-16/A recorded at 12.02 PM on the commission of an
offence in Citizen Guest House has not been disputed by the
defence. Attention has been drawn to the second DD recorded at
2.15 PM which evidenced that the rukka had been dispatched
through PW-2 for the registration of the FIR; it is submitted that FIR
is ante-timed. Version of the prosecution is that the special report
had been taken by Const. Mahesh PW-12 at 3 PM vide motorcycle
bearing no. DDW 6044; his departure entry is recorded in DD no.12
Ex.PW-16/C-4; his arrival entry at 5.15 AM on the following morning
i.e. 6.1.1990 vide the same vehicle is evident from Ex.PW-12/DC;
attention has also been drawn to an entry made at 1.55 PM
D.D.No.39B Ex.PW-16/DC which shows that on 5.1.1990 at 1.55 PM
Const.Rajinder had taken this vehicle i.e. DDW 6044; another entry
Ex.PW-12/DA mentions that at 7.00 PM on the same day
Const.Sanjeev had taken this motorcycle for fuelling; in this context
attention had been drawn to the testimony of Const.Mahesh PW-12
who had stated that he had delivered the special report to the Ilaka
Magistrate at 10.00 PM and even at 7.00 PM the motorcycle was
in his possession. It is submitted that if the motorcycle had been
taken by Const.Rajinder at 1.55 PM to go to Ashok Vihar how the
same vehicle was taken by PW-12 at 3.00 PM is not explained;
further this vehicle as per the version of PW-12 was with him right
up to 5.15 AM of the following morning but Ex.PW-12/DA shows that
Const.Sanjeev had taken it for fueling at 7 PM; all these
controversies have remained unexplained clearly evidencing that
there has been a manipulation in the investigation.
VI. Attention has been drawn to the version of Mahesh Chand
PW-6 who has been set up by the prosecution to establish the
motive of the crime i.e the exchange of money dealing between the
deceased and the accused and the deceased having gone to the
guest house of the accused on 5.1.1990 to take his money back; it
is submitted that the transaction out of which this money dispute
has allegedly arisen related to the property at Sita Ram Bazar and
these property papers which had been seized vide memo Ex.PW-
17/D nowhere show the interest of the deceased Mohinder
Singh in the said property which again throws doubt on the
veracity of the version of this witness.
VII. The ballistic report suffers from severe infallibility and the
conclusion arrived at by the scientific expert without any reasons or
a logical basis for the same has no value or force; attention has
been drawn to the ballistic report which had been tendered in
evidence and proved as Ex.PA; it is argued that this document is
bereft of any reasons or details in the absence of which no reliance
can be placed upon it. Mandate of Section 293 (2) of the Cr.P.C.
postulates that the court may also summon the witness for clarity
on a particular proposition which provision had not been resorted
to; prosecution has failed to discharge the onus and this report
cannot be accepted; it is liable to be discarded. Learned defence
counsel has placed reliance upon a judgment of the Hon‟ble Apex
Court report as Madan Gopal Kakkad vs. Naval Dubey & Anr. 1992 3
SCC 204 as also another judgment reported as State of Haryana vs.
Bhagirath & Ors. (1999) 5 SCC 96 to support his submission that the
evidence of an expert is only of an advisory character given on the
basis of the symptoms found on the examination; the expert
witness is expected to put before the court all materials inclusive of
the data which induced him to come to the conclusion and enlighten
the court on the technical aspect of the case by explaining the
terms of science so that the court although not an expert may form
its own judgment on those materials after giving due regard to the
expert‟s opinion; it is argued that the opinion of an expert will
always remain an opinion only and it is for the court to finally decide
whether it is to be accepted as a relevant piece of evidence or not.
In the instant case the prosecution has failed to discharge this
burden of proof. This court is not obliged to accept this expert
opinion.
VIII. The entire bundle of evidence which has been collected by
the prosecution is fabricated and not only have all the DD entries
been made subsequently to suit the convenience of the
Investigating Officer, but the other contemporaneous record which
includes the documents prepared at the hospital also show that
right upto 5.10 PM the accused continued to remain unidentified
which is not corroborated by the ocular testimonies of the
witnesses, thus, casting grave shadows on the version of the
prosecution; the accused had been picked up from his house at 7.00
PM and falsely implicated in the present case; this has also been his
defence even in his statement under Section 313 Cr.P.C.; he was
never present at the spot. In the alternate it is submitted that
there is no doubt that a crime has been committed and the
deceased had died at the Citizen Guest House but who had
committed this crime has not been proved by the prosecution.
21. We have perused the record, appreciated the evidence and
heard the submissions and counter submissions made by the
respective parties.
22. The first document DD No.10A Ex.PW-16/A was recorded at
12.02 PM in the local Police Station Mandir Marg pursuant to the
information that a firing had taken place at Citizen Guest House and
one person had been injured, this information having been relayed
by Const. Usman Ali PW-2. It was this document which had set this
investigation into motion. Ex.PW-16/A establishes that PW-2 was
present at Citizen Guest House at 12.02 PM i.e. just about the time
the incident took place. Assuming that PW-2 did not witness the
actual firing, but establishes his being at the place of the incident
within seconds of the firing and in this context he and ASI Lajja
Ram then having apprehended the accused at the spot and having
disarmed him and recovered a revolver from his hand assumes
significance.
23. At 12.15 PM, the MLC of the injured recorded as „unknown‟
was prepared at Ram Manohar Lohia Hospital; this document is
Ex.PW-18/A and is in the handwriting of Dr.Sanjeev Aggrawal PW-
18. Ex.PW-18/A shows that injured had been brought with bullet
wounds, two of which were on the neck, one over the dorsum of the
left hand, blunt wounds on the parietal region as also over the left
middle finger. Injured had been brought to the hospital by ASI Lajja
Ram PW-1 and had been declared brought dead. Vide this
document, it has been established that at 12.15 PM PW-1 had
brought an injured who had received bullet injuries to the hospital.
24. PW-18 has on oath deposed that he had in the column of the
name of the patient written „unknown‟ as the identity of the victim
was not known to him at that time; this information was later on
received by him and the name of Mohinder Singh was added. As
per PW-18 on 5.1.1990 his duty in the causality was between
9.00AM to 2.00PM; the MLC was prepared by him at 12.15 PM and
till that time he did not know the name of the patient. He had also
prepared the Admission and Discharge Record Ex.PW-18/DB at 1.40
PM and was signed by him at point A; up to this time also the
column of the name of the victim records as „unknown‟; thereafter
the name of Mohinder Singh along with his parentage was added in
Ex.PW-18/A. Another contemporaneous document which is the
entry in the mortuary register Ex.PW-18/DA shows that the dead
body had been kept in the mortuary along with one big hospital
sheet; time recorded therein is 5.10 PM; the name of the victim was
recorded as „unknown‟.
25. These documents i.e. the MLC Ex.PW-18/A, the admission and
discharge record Ex.PW-18/DB and the entry in the mortuary
register Ex.PW-18/DA were prepared one after and another.
Ex.PW-18/A and Ex.PW-18/DB had been prepared by PW-18 up to
1.40 PM; up to this time PW-18 was not aware of the name of the
deceased; the entry in the mortuary register Ex.PW-18/DA is
admittedly not in his handwriting. It is obvious that the entries in
Ex.PW-18/DA at 5.10 PM were made on the basis of the earlier
record which was available with the hospital i.e. Ex.PW-18/DB and
the entry in the mortuary register had only copied these earlier
details which had not upto that time recorded the name of the
victim. PW-18 had added the name of Mohinder Singh in the MLC
only in his handwriting and this was obviously prior in time to
2.00PM as duty hours of PW-18 were only upto 2.00 PM on that day.
SI Satpal Yadav PW-17 the Investigating Officer has also in his cross-
examination admitted that the name of Mohinder Singh had been
informed to him by Inspector Dalbir Singh at the spot as Mohinder
Singh was a known B.C. of the area; the MLC of the victim had
already been prepared by the Doctor when he i.e. PW-17 reached
the hospital; he had then told the Doctor the name of the deceased
Mohinder Singh resident of Subzi Mandi and the Doctor had then
written his name in the MLC. Identity of the victim was thus known
by 2.00PM.
26. The third document relating to the investigation is the
statement of ASI Lajja Ram Ex. PW-1/A which was recorded by SI
Satpal Yadav PW-17 in the hospital which had formed the basis of
the rukka. This statement was recorded before 2.05 PM as the
endorsement made on this statement had formed the basis of the
rukka which had been dispatched at 2.05PM. In Ex. PW-1/A PW-1
has detailed the entire incident i.e. that the accused Vidya Sagar
Anand who was known to PW-1 had fired bullet injuries on Mohinder
Singh who had fallen on the ground; the accused Vidya Sagar Anand
had been apprehended at the place of occurrence by PW-1 and PW-
2; Vidya Sagar Anand was holding a revolver in his hand; the
number of the revolver 618450 under a .32 cover had been noted
therein; the presence of H.C. Amar Singh PW-4 and Const. Usman
PW-2 also finds mention in this document. On the receipt of this
rukka DD No.11 was recorded at 2.15 PM pursuant to which the FIR
PW-16/A was registered thereon.
27. Ex.PW-1/B is the seizure memo of the revolver 618450; it had
a .32" cover, its chamber contained three fired cartridges and one
live cartridge; this document has been attested by PW-1 and PW-2
and Inspector Dalbir Singh. Ex.PW-1/B had been prepared in the
hospital as is the version of PW-17.
28. Ex.PW-1/C is the seizure memo of the articles which had been
seized by PW-17 at the hospital. They had been handed over to PW-
17 by Const.Rajesh PW-10 the Duty Constable at the RML Hospital
who had received them from the duty doctor; PW-10 has attested
this document at the hospital; the name of the victim Mohinder
Singh clearly find mentions here. Ex.PW-1/C recites that a revolver
as also the keys of a maruti vehicle had been recovered from the
person of the deceased.
29. These aforenoted documents had been prepared in the
hospital on 5.1.1990. From this documentary evidence, it is clear
that by 2.00-2.15 PM when the FIR of the case was registered the
identity of the deceased Mohinder Singh was well established; not
only does his name find mention in the statement Ex.PW-1/A, the
rukka Ex.PW-17/A, the FIR Ex.PW-16/A, the seizure memo
Ex.PW-1/C of the articles recovered from the deceased in the
hospital but also in the MLC Ex.PW-18/A. The doctor was on duty up
to 2.00PM and he had himself added the name of Mohinder Singh in
the same green ink before that time. The entry in the mortuary
register Ex.PW-18/DA and the Death Report Form Ex.PW-1/DS were
not in the handwriting of PW-18. The details in these documents had
been copied from the earlier available record i.e. the Admission and
Discharge Record Ex.PW-18/DB which did not contain the name of
the patient; PW-18 had added the name of Mohinder Singh in the
MLC only. PW-10 has also categorically recited that he had signed
EX.PW-1/C containing the name of the victim in the hospital. It is
established that by 2.15 PM victim had been identified as Mohinder
Singh. Hospital record is even otherwise an independent record and
it is also not the case of the defence that it has been manipulated.
D.D.No.46B Ex.PW-16/DD proved in the testimony of PW-16 shows
that at 3.15PM SI Ishwar Singh had gone to the RML Hospital with
arms and ammunition. DD No.52B Ex.PW-16/DE evidences that at
5.25 PM Ishwar Singh had returned back to the Police Station after
depositing the dead body. These DDs have been explained in the
version of PW-1 wherein he has stated that SI Ishwar Singh must
have been deputed for duty in another case and he must gone to
the RML Hospital in connection with some other case. SI Ishwar
Singh was admittedly not a part of this investigative team; it cannot
thus be said that he had gone to the RML Hospital at 3.15 PM to
deposit the dead body of Mohinder Singh.
30. Submission of learned defence counsel on this count that
victim continued to remain unidentified up to 5.10PM is thus wrong
and falsified.
31. Thereafter the subsequent documents were prepared at the
spot. PW-1 has stated that he had returned back to the spot by
about 3.00 PM so is also the version of PW-2 who has stated that he
remained in the hospital up to 3.00 PM and then returned back to
the spot.
32. The photographer H.C. Man Mohan PW-8 had already reached.
PW-8 has deposed that he had taken 14 photographs of the scene
of occurrence and photograph Ex.PW-8/A-12 is the photograph of
the blood smeared bullet lying at the spot. PW-8 had left the Police
Station at 11.55 AM vide DD Ex.PW-8/DA and returned back vide DD
entry Ex.PW-8/DB at 4.10 PM. Perusal of Ex.PW-8/DA shows that
PW-8 had left the Police Station for the preservation of law and
order at Mandir Marg and not specifically to the spot of occurrence.
It is obvious that in the course of his „bandobast‟ duty at Mandir
Marg he had been summoned to photograph the scene of
occurrence; this explains his departure entry at 11.55 AM which was
prior in time to the occurrence.
33. At the spot the personal search of the accused was taken vide
memo Ex.PW-2/F; a licence of the revolver issued in his name as
also visiting cards of Sagar Enterprises Pvt. Ltd. were recovered.
This document has been attested by PW-2, PW-4 and Inspector
Dalbir Singh and has been corroborated on oath by PW-2 and PW-4.
The licence of this revolver matched the number of the revolver
which had been seized vide seizure memo Ex.PW-1/B in the
hospital.
34. H.C. Amar Singh PW-4 was also present at the spot when the
police party returned back from the hospital. He was the Constable
who had been posted at the police picket at Mandir Marg which was
about 50 yards away from the scene of crime i.e. from the Citizen
Guest House. PW-4 has deposed that he had heard bullet sounds
and on reaching the spot he saw ASI Lajja Ram and Const.Usman Ali
holding the accused Vidya Sagar and one person was lying on the
ground; blood was oozing out from his head and neck; he had
reached the spot forthwith i.e. at about 12.00 Noon and remained
there up to 7.00PM. PW-4 had deposed that the injured was
removed to the hospital by PW-1 and after about half an hour PW-17
and PW-2 also went to the hospital and returned back to the spot at
about 3.30 PM. In his presence a blood smeared lead piece of a
bullet was seized vide memo Ex.PW-2/E duly attested by this
witness. A blood smeared button was also lifted from the spot vide
memo Ex.PW-2/D. Statement of this witness was recorded between
3.30 PM to 4.00 PM on the same day. PW-4 has further deposed
that till the time he remained at the spot accused Vidya Sagar also
remained there. He admitted that he had handed over two wireless
sets on his arrival back in the Police Station and he did not inform
any person about the incident on wireless. This was obviously for
the reason that the police force had already reached the spot.
Version of this witness is clear and cogent; he was the duty officer
posted in the nearby police picket; a distance of about 50 years
which has been depicted in the site plan Ex.PW-11/A i.e. within
hearing range of the bullet sounds which had emanated from the
Citizen Guest House. He had witnessed the transaction soon after it
was over and had seen the accused apprehended red handed by
PW-1 and PW-2; his testimony is a relevant fact under the provisions
of Section 6 of the Evidence Act forming part of the same
transaction.
35. The first witness to this incident was ASI Lajja Ram PW-1 who
had given his statement in the hospital Ex.PW-1/A which had formed
the basis of the rukka. The testimony of PW-1 as given in Ex.PW-1/A
has been reiterated on oath in Court. He had deposed that he along
with Const.Usman Ali were going on a two wheeler scooter and
when they reached near the gate of the Guest House they heard
sound of gunshots. On stopping scooter near the entrance of the
gate of the Guest House PW-1 saw Vidya Sagar Anand proprietor of
the house firing at the deceased from his revolver; Vidya Sagar
Anand was known to him; he immediately went inside and snatched
the revolver from the hands of the accused but by that time he had
already fired three shots. H.C. Amar Singh PW-4 on duty at the
Police Booth situated a little away from the entrance gate of the
guest house also reached there. PW-1 directed PW-2 to telephone
the police and within the next five to six minutes SI S.P.Yadav PW-
17, Inspector Dalbir Singh also reached the spot. PW-1 handed over
the revolver which he had seized from the hands of the accused to
PW-17. PW-1 on the direction of PW-17 removed the injured to the
hospital. This witness has been subjected to a lengthy cross-
examination; he has deposed that he had returned back from the
hospital at 3.00PM; he was in-charge of Division-I, the Police Station
Mandir Marg is about 1 Km. away from the Guest House; PW-2 was
on reserve duty but because of the demonstration at Raja Bazar by
the employees of the DTC which demonstration was to pass through
Transport Bhawan, services of Usman Ali PW-2 had also been
deployed. PW-1 has categorically stated that he had instructed PW-
2 to give telephonic call to the Police Station about the occurrence
but he had not instructed him to mention the name of the culprit or
to give any further details about the question. He had found the
deceased lying on the ground on his stomach with his face towards
the sky; he had handed over the revolver to PW-17 at about
12.08 PM i.e. obviously before he had left for the hospital; in his
presence at the spot at that time no memo was prepared as he was
in a hurry to take the deceased to the hospital. He had deposed
that when the MLC and the death summary report was prepared he
had gone to make a telephone call; this is the answer to the query
as to why the name of the deceased and the alleged history did not
find mention for the first time when the MLC was prepared. He
denied the suggestion that he had been introduced later on and had
not witnessed to the incident.
36. Const.Usman Ali PW-2 is the second eye-witness to this
incident. He was the pillion rider of PW-1 when they heard a
gunshot emanating from the Guest House; on reaching there they
saw one man lying on the verandah of the Guest House and the
accused was standing there; he was apprehended by PW-1; time
was around 12 Noon; he had seen Vidya Sagar Anand firing at the
injured who was lying on the floor with his face towards the ground.
In his presence PW-1 had handed over the revolver of the accused
to PW-17. He has further stated "I did not see the bullet being fired.
On hearing the bullet sound we had run towards the place of
occurrence." This sentence has been highlighted by the learned
defence counsel to substantiate his argument that PW-2 had not
witnessed incident. While appreciating the testimony of a witness it
has to be read in its entirety and no stray sentences can be picked
up here and there to substantiate an inchoate submission which is
obvious for the reason that PW-2 while recording this version was
making reference to the first bullet sound which they had heard and
which had brought them to the scene of crime. PW-2 had
admittedly not given the details of the occurrence in his telephonic
conversation to the local Police Station which had been penned
down in DD No.10A; it was an emergency call; the place of
occurrence had been disclosed, the name of the person giving the
information i.e. the name of PW-2 had also been disclosed and what
was urgently required now was that police force should be sent to
the spot; PW-2 had also not been instructed by his senior to give
any further information; these were clearly the factors which had
weighed in the mind of PW-2 when he gave this telephonic call. PW-
2 has admitted that he had accompanied the SHO to the hospital;
he was on reserve duty on the relevant day and he cannot say if the
rules mandate that a person on reserve duty is required to make
any arrival or departure entries in the local Police Station.
Testimony of this witness is also clear and cohesive.
37. Even assuming that ASI Lajja Ram and Const.Usman Ali have
not seen the actual firing which was over within seconds, but their
testimony establishes that within seconds of the firing, they reached
the spot and apprehended the appellant at the spot and disarmed
him.
38. The next eye-witness Khem Chand, the driver of the deceased
has been examined as PW-3. As per his version, on 5.1.1990 at
about 10.45 AM he had gone to the house of the deceased and
accompanied him in his maruti car DNC-1734 to the Citizen Guest
House at Gole Market. They reached there at 12.00 Noon. The car
was driven by the deceased. The deceased after parking the card
kept the keys inside his pocket and asked PW-3 to remain outside.
PW-3 has deposed that the deceased had hardly taken three to four
paces when PW-3 heard a bullet shot and he saw the accused Vidya
Sagar firing at Mohinder Singh who was hit; Vidya Sagar was known
to him as he had met him on earlier occasions when he had gone
with Mohinder Singh to take money from him; he saw two police
officers coming towards the guest house but before they had
entered he had come out. On hearing the gunshots he took a three-
wheeler scooter and went straight to the house of the deceased to
inform his relatives. He returned back to the spot of occurrence at
about 4.00/4.30PM where he met PW-17 and Inspector Dalbir Singh.
In his cross-examination, he has stated that he reached the house
of the deceased at about 12.30PM and on hearing the news about
the death of her son his aged mother became unconscious. He then
went to inform the „mausi‟ and the brother of the accused who were
living in Shahdara and thereafter he took the mother and „mausi‟ of
the deceased accompanied by his brother Paramjit to the spot of
occurrence; on reaching there he was informed that Mohinder Singh
had already been removed to the hospital; the mother and „mausi‟
did not go to the hospital; he then went back to drop the mother
and the „mausi‟ of the deceased which was around 7.00 PM in the
evening.
39. Reading of this version of PW-3 does not in any manner
establish the arguments of the learned defence counsel that the
conduct of the PW-3 is unnatural or unbecoming of an employee.
PW-3 was well aware that his employer was an absconder and in
fact it has come in his version that during the eight year period
when the deceased was absconding he was working as a labourer
and he thereafter rejoined the services of the Mohinder Singh. PW-
3 also knew that there was a money dispute between the deceased
and the accused; he had witnessed the accused firing on the
deceased with a gun; at that time he had also seen two police
officers come to the spot of occurrence; he being a loyal employee
his natural reaction was to rush and inform the family members of
the deceased; he reached the house of the deceased at 12.30 PM
which was at Ranjit Nagar; thereafter he went to inform the mausi
and younger brother of the deceased at Shahadara and then
returned back to the spot with them at 4.30 PM; his statement was
recorded there itself at the spot on 5.1.1990; he then made efforts
to drop back the family members of the deceased at their houses
and by that time it has become almost dark i.e. about 7.00 PM.
Conduct of PW-3 is not only natural but also becoming of an old
acquaintance.
40. Kulvinder Singh PW-5 brother of the deceased has also
deposed that on 5.1.1990, the driver of the deceased Khem Chand
had accompanied his brother Mohinder Singh in their maruti car to
Citizen Guest House at Gole Market. This version has also fortified
the presence of PW-3 at the spot. The maruti car DNC 1734 was
also recovered from the spot and seized vide memo Ex.PW-2/B.
41. Ex.PW-11/A is the site plan to scale; point D is the position
where PW-1 ASI Lajja Ram PW-1 along with Const.Usman Ali PW-2
on their two-wheeler scooter had witnessed the shooting inside the
Citizen Guest House and from which point PW-1 had gone inside the
Guest House. Point A is the place where the car of the deceased
bearing no. DNC-1734 was parked when he had gone inside leaving
PW-3 behind, this being the point from where PW-3 had witnessed
the incident. Point B is the place from where the accused had fired
at the injured which is at a distance of about 1.95 meters i.e. about
six feet from where PW-3 was standing. Police Booth has also been
shown in the site plan which as per oral version of PW-17 was at a
distance of 50 yards from the place where the injured was found
which has been depicted at point C i.e. within the hearing range of
PW-4. Site plan has clearly demarcated the positioning of the eye-
witnesses PW-1 and PW-2. The positioning of PW-3 who had also
witnessed the incident is about 1.95 meters away from where the
deceased was attacked. PW-4 was well within hearing range from
his Police Booth at the time when the gunshots were fired.
42. The eye-witness accounts i.e. the versions of PW-1, PW-2,
PW-3 as also the version of PW-4 who had reached the spot within
the next few minutes of the occurrence, all inspire confidence.
Their version is to the effect that after hearing the first bullet sound
when they reached the spot PW-1, PW-2 witnessed two other bullet
shots being fired upon the deceased by the accused; PW-3 had
witnessed the entire occurrence from a distance of about six feet
i.e. 1.95 meters; PW-4 was also within hearing range. It is also
relevant to note that the versions of all the aforenoted witnesses
PW-1, PW-2, PW-3 and PW-4 were recorded by Investigating Officer
on 05.1.1990 i.e. at the spot itself.
43. These ocular versions are fully corroborated by the medical
record. Post-mortem of the deceased was conducted on 6.1.1990.
As per the post-mortem report Ex.PW-15/A, there were eight
external injuries. Injuries no.1,2,3, and 4 were on the left hand and
palm of the deceased; injuries no.2 and 3 being corresponding entry
and exit wounds. All these four injuries relate to a single bullet
shot. Injuries no.5 and 6 were corresponding entry and exit wounds
of the neck and clavicle region which are answered by a second
bullet shot. Injury no.7 and injury no.8 are lacerated wounds on the
right parietal region and the scalp and obviously by a blunt force for
which there is no direct evidence but could be probablised by the
butt of the revolver; there could have been a preceding scuffle; the
accused having attacked the deceased on his head with his revolver
and thereafter having fired the first shot on his neck; PW-1 on
reaching the spot had noted that the dead body was lying on the
floor with the face upwards; at that time the injured had received
one bullet wound; there upon PW-1 witnessed two other gunshots
having been fired upon the injured; the second bullet had caused
injuries no.1,2,3 and 4. Both the bullet wounds were entry and exit
wounds; only one lead bullet had been retrieved from the spot. The
other projectiles with their force might have spilled over; the
revolver of the accused also evidenced three cartridges fired from
its chamber.
44. The scientific evidence has been established from the report
of ballistic expert Ex.PA which had been tendered in evidence under
Section 293 Cr. P.C. Both the revolvers i.e..32" bore revolver of the
accused as also the revolver recovered from the deceased has been
sent to the ballistic expert along with the three spent cartridges
which had been found in the chamber of the revolver of the
accused, the lead bullet which had been retrieved from the spot as
also the spent cartridge which the accused had got recovered from
his house, five live cartridges found in the revolver of the deceased
had also been sent for examination to the ballistic expert.
Mr.B.Moitra, Senior Scientific Officer, CFSL, had opined that the
three cartridge cases in parcel no.2 i.e. the cartridges found in the
chamber of the revolver of the accused and the bullet BC-1 which
was retrieved from the spot had been fired from the revolver of the
accused which was in a working order.
45. This report Ex.PA is the final nail in the coffin of the accused.
It positively and conclusively establishes that it was the revolver of
the accused which had been snatched from his hand at the spot
which had fired the bullet shots leading to the death of Mohinder
Singh and one of the blood soaked bullets BC1 had been retrieved
from the spot itself.
46. The mandate of Section 293 of the Cr.P.C. is that the report of
a certain category of government scientific experts, description of
which has been given in sub-clause 4 is per se admissible; no
further formal proof is required. This is postulated in Section 294 of
the Cr.P.C. In State of A.P. Vs. Gangula Satya Murthy AIR 1997 SC
1588, Supreme Court has held that when the report of a chemical
examiner is available on record in a criminal trial such a report can
be used by the Court in evidence. In Shatrughan Vs. State of M.P.
1993 Cr LJ 120(MP), it has been held that not only the opinion of the
chemical examiner but also all that is stated in the report becomes
admissible without a formal proof. The accused is, no doubt,
entitled to question and challenge this evidence; for this purpose
onus is upon him to summon the chemical examiner and where he
does not take steps to do so; it cannot be said that this report
cannot be admitted in evidence. This has been held in Dasu v State
1985 Cr L J 1993(Bom). In the instant case this report had been
proved in the court on 20.1.2000. There was ample opportunity
with the accused to summon the chemical examiner to cross-
examine him on the details or the reasons of his conclusion but he
having failed to do so and not having taken such steps, he cannot
now assail this report. The judgments relied upon by the learned
defence counsel thus does not come to his aid.
47. In the alternate even accepting the arguments of the learned
defence counsel and ignoring this piece of scientific evidence i.e.
the report of ballistic expert yet the other evidence collected by the
prosecution has been sufficient to establish the guilt of the accused.
48. Qua the arguments on the DD entries and the special report
which had been taken by Const.Mahesh Chand PW-12 to the senior
officers, PW-12 has deposed that on 5.1.1990 at 3.00PM he had
proceeded from Police Station Mandir Marg to the residence of Mr.
O.P. Gupta, M.M., to deliver the special report. He had gone by
motorcycle No.DDW-6044 and had made his departure entry at 3.00
PM recorded in DD No.12 Ex.PW-16/C-4. His arrival entry Ex.PW-
12/DC in the Police Station is at 5.15 AM on 06.1.1990. The
departure entry at 1.55 PM in DD No.39B Ex.PW-16/DC shows that
Const.Rajinder had taken this vehicle i.e. DDW-6044 to Ashok Vihar
at 1.55 PM; this can be answered that Const.Rajinder had gone to
run an errand and had returned back well in time enabling PW-12 to
use this vehicle at 3.00 PM. Ex.PW-12/DA the departure entry of
Const.Sanjeev for going for fueling of this vehicle to Parliament
Street at 7.00 PM is not discrepant the version of PW-12 and has
been explained in the version of PW-12 himself. PW-12 has
deposed that his motor cycle had developed a snag and he had
parked it at the Police Station at about 7.00 PM and thereafter he
had travelled by bus to the residence of the Special Magistrate who
was residing at Gulabi Bagh and whose address he had taken from
police station Mandir Marg and this had taken considerable time.
This answers the query as to why this special report was received
by the Special Magistrate at 10.00 PM. Const.Sanjeev had taken out
this vehicle for fueling at 7.00 PM; entry in the register about the
time must have been made by looking at the watch which is unlikely
in the case of a deposition made orally. PW-12 had deposed in that
count he had re-deposited the vehicle in the Police Station at 7.30
PM as it had developed a snag; this time difference of half an hour
between 7.00PM to 7.30 PM can be explained by the reason that
apart from the fact that PW-12 had most probably not looked at the
time in the watch when he had parked this vehicle in the Police
Station, even otherwise being the month of January and winter time
it becomes dark soon after 6.30 PM and whether it is 7.00 PM or
7.30 PM, both hours which are dark with the sun having set; the
difference of half an hour here or there is of no consequence.
49. The motive of the crime has surfaced in the version of PW-6
Mahesh a neighbour of the deceased who was well known to both
the accused and the deceased. He has deposed that he knows both
the parties since the last several years; in 1978 an old building
situated at Sita Ram Bazar had been purchased by the accused
Vidya Sagar and Mohinder Singh jointly in which Mohinder Singh
had a one-quarter share; in his presence Mohinder Singh had paid
Rs.2,00,000/- to the accused. He has deposed that money dealing
between the accused and deceased were on and this has also been
corroborated by PW-3, the driver of the deceased. PW-6 has further
deposed that Vidya Sagar had promised to pay Rs.30,00,000/- to
the deceased through Kishan Lal by 31.3.1990; a sum of
Rs.5,00,000/- had been collected by PW-6 from Kishan Lal and was
paid to Mohinder Singh but the deceased had told him that the
accused was dilly-dallying on the balance payment; on 5.1.1990 he
came to know that the deceased had died. The relevant papers of
Sita Ram Bazar property seized by the Investigating Officer vide
memo Ex.PW-17/D show that the property papers have been
registered in the names of A.R. Wig, Onkar Nath and P.K. Aggarwal.
50. PW-9 Ramesh was an employee of Citizen Guest House and
he had served there for the last five years; he has not supported the
version of prosecution. Yet from his testimony it has come on
record that A.R.Wig used to frequent the Guest House and used to
check the accounts of the Guest House. This witness has neither
positively asserted nor denied that A.R. Wig and Onkar Nath were
the brothers of Vidya Sagar and the other partners of the Guest
House; Onkar Nath was also the person in whose name the
provisional licence of the Guest House was issued and this was
established in the version of DW-1. DW-1 had also proved Ex.DW-
1/PX, a no objection certificate on the letter head of Sagar
Enterprises whose visiting cards had been recovered in the personal
search Ex.PW-2/F of the accused. PW-1 in his cross-examination has
admitted that he used to go for weekly/fortnightly checks to the
Guest House when he had met the accused.
51. Record has positively established that A.R. Wig and Onkar
Nath apart from the accused also had some interest in the Guest
House. There was also a money transaction and a subsequent
dispute between the accused and the deceased; PW-5 the brother
of the deceased had also stated that on the fateful day his
deceased brother had gone to the Guest House to meet the accused
to take back his money. To a large extent the motive also stands
established.
52. The recovery of the cartridge got effected by the accused
from his house at Ranjit Nagar and seized vide memo Ex. PW-1/F is
liable to be discarded as admittedly this recovery had been effected
on 05.1.1990, up to which time no disclosure statement of the
accused had been recorded. There are two disclosure statements
of the accused Ex.PW-1/E and Ex.PW-17/Z both of which have been
recorded subsequently i.e. on 06.1.1990 and 07.1.1990.
53. The revolver of the accused was a licensed weapon and as
per ASI Virender Pal Singh PW-13 the licence of revolver had been
renewed up to 27.5.2009; he had however used it in contravention
of Section 5 of the Arms Act.
54. The defence of alibi projected by the accused is patently false.
His bald averment that when the occurrence took place he was not
present has little meaning when the prosecution has specifically
established the presence of the accused at the scene of occurrence
through the aforenoted reliable and cogent evidence. It was then
incumbent upon the accused to have led positive evidence to
establish his defence of alibi which he has failed to do.
55. At this stage it would also be relevant to point out that initial
investigation of this case had been earmarked to Police Station
Mandir Marg but on the complaint made by the relatives of the
victim namely Kulvinder Singh PW-5 and his friend Mahesh Chand
PW-6 the investigation was transferred to the Special Staff on
12.1.1990. Inspector Suraj Mal PW-20 had deposed to the said
effect; he had recorded the statements of PW-5 and PW-6 on
12.1.1990 as the complaint of PW-5 and PW-6 was that inspite of
their repeatedly going to the local Police Station their statements
were not being recorded and it was in this scenario that the
investigation came to be transferred from the local Police Station to
the Special Staff. This explains the deliberate lapses made by the
first investigating agency.
56. In Karnel Singh Vs. State of M.P. AIR 1995 SC 2472, the
Supreme Court has held that in cases of a defective investigation,
the Court has to be circumspect in evaluating the evidence and
such a defective investigation does given anxious moments but to
give a benefit to the accused solely on the account of this defect
would tantamount to playing into the hands of the Investigating
Officer and especially if the investigation is designedly defective; it
would be adding insult to injury.
57. Minor inconsistencies and discrepancies on trivial matters not
touching the core of the case, a hyper-technical approach by
taking sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by Investigating Officer, not going to the root of the
matter does not permit the rejection of the evidence as a whole.
This has been held by Supreme Court in Anter Singh Vs. State of
Rajasthan AIR 2004 SC 2865.
58. All these factors clearly establish that it was the accused who
had committed the crime i.e. the murder of the deceased Mohinder
Singh: the cumulative evidence which has been gathered i.e. the
testimony of the eye-witnesses PW-1, PW-2 and PW-3; PW-4 having
reached the spot immediately thereafter coupled with the medical
evidence i.e. the MLC and the post-mortem report which is
corroborative of the ocular versions, further fortified by the scientific
evidence which is the ballistic report clearly point fingers of guilt
towards the accused; he has no escape route. The conviction of the
accused calls for no interference. In our view the appeal is without
merit; it is dismissed. Bail bond and surety bond of the accused are
cancelled; he shall surrender forthwith to suffer the remaining
sentence.
(INDERMEET KAUR)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
24th September, 2009
nandan
