Arvind Kumar vs The State (Nct Of Delhi)
2010 Latest Caselaw 3058 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on: April 20, 2010
                           Judgment delivered on: July 02,2010


+      CRIMINAL APPEAL NO. 605/2009
       ARVIND KUMAR                            ....APPELLANT
               Through: Mr. K.K.Manan, Sr. Advocate with
                        Mr. Sangram S. Saron, Advocate

                       Versus


       THE STATE (N.C.T. OF DELHI)          .....RESPONDENT
               Through: Mr. Lovkesh Sawhney, APP

        CORAM:
        HON'BLE MR. JUSTICE A.K. SIKRI
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?        Yes
3.     Whether the judgment should be
       reported in Digest ?                           Yes


AJIT BHARIHOKE, J.

1. Appellant Arvind Kumar has preferred this appeal against the

impugned judgment dated 08.07.2009 of the learned Additional

Sessions Judge in Sessions Case No.119/2005, FIR No.476/94 under

Section 302 IPC, Police Station I.P. Estate holding him guilty and

convicting him for the offence of murder punishable under Section

302 IPC as also the order on sentence dated 10.07.2009 in terms of

which the appellant has been awarded sentence of rigorous

imprisonment for life and to pay a fine of Rs.25,000/-, in default

whereof he shall undergo SI for further period of six months.

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

28.12.1994 SI Shashi Bala was posted as Duty Officer in the Police

Station I.P. Estate. Constable Mohd. Rashid (hereinafter referred to

as the "deceased") was on duty as Munshi Roznamacha. On the

said day at about 5:45 pm, the deceased came to the reporting

room and started talking on the telephone with someone. After 5-7

minutes, SI Shashi Bala (PW12) advised him not to keep the official

telephone engaged as some urgent phone call may come. The

deceased did not pay heed to the advice and continued to talk on

telephone. At about 5:55 pm, SI Shashi Bala requested the

appellant, who was posted as a Guard at the Police Station to ask

the deceased to desist from continuing with his phone call. The

appellant, on the request of SI Shashi Bala, came to the duty room

and put his hand on the shoulder of the deceased and advised him

to put an end to his call. The deceased, however, playfully pushed

him while holding the muzzle of SAF Carbine of the appellant. The

appellant tried to extricate his carbine and in the process, the chain

with which the SAF was tied with the belt of the appellant got

entangled with the trigger, which led to firing of five rounds that hit

the deceased. ASI Ram Singh, who was present at the spot,

immediately rushed the deceased to LNJP Hospital where he was

declared brought dead.

3. PW19 Inspector Inder Singh, Additional SHO, Police Station I.P.

Estate, who was on arrangement duty at Vikas Bhawan, was

summoned through wireless. On reaching the Police Station, he

noticed blood lying in the reporting room. Five empty cartridges

were found there, three were lying inside the reporting room and

two empty cartridges were lying near the door of the reporting

room. One empty automatic semi carbine and 15 live cartridges

were lying on the table of the Duty Officer, four fire bullets were also

lying in the interrogation room adjacent to the reporting room. He

recorded the statement of SI Shashi Bala Ex.PW12/A, on basis of

which formal FIR was registered at the Police Station under Section

304A IPC. Inspector Inder Singh got the spot of occurrence

photographed. He also prepared the rough site plan Ex.PW19/B, on

the basis of information supplied by SI Shashi Bala. He took into

possession the above referred incriminating articles found in the

duty room.

4. After recording the statement of SI Shashi Bala, Inspector

Inder Singh went to the LNJP Hospital and collected the MLC of the

deceased. At the Hospital, Duty Constable Balbir Singh handed over

the personal belongings of the deceased to him, which were taken

into possession vide memo Ex.PW19/C. Inspector Inder Singh also

recorded the statements of the witnesses, arrested the appellant

and deposited the case property in the Malkhana.

5. On 29.12.1994, Inspector Inder Singh conducted inquest

proceedings at the mortuary of LNJP Hospital and prepared the

inquest form Ex.PW19/E. He also sent the dead body for post

mortem and after the post mortem, dead body was handed over to

Shaukat Ali, father of the deceased.

6. In the meanwhile, Shaukat Ali, father of the deceased, filed a

complaint dated 29.12.94 to DCP, Central followed by a complaint

dated 01.12.95 to the Commissioner of Police wherein he expressed

the suspicion that his son Mohd. Rashid had been murdered in

furtherance of a well-planned conspiracy. In view of the said

complaint, investigation of this case was transferred to SIT Section

of Crime Branch and the investigation was taken over by PW27

Inspector Ved Prakash, who recorded statements of witnesses

during further investigation and got the scene of crime

reconstructed and again photographed by the experts of CFSL,

Chandigarh. Opinion of experts of CFSL, Chandigarh was obtained

which ruled out the possibility of accidental fire from the SAF

carbine.

7. We may note, at this stage, that in his complaint dated

29.12.94, Shaukat Ali, father of the deceased alleged that his son

had been murdered, but he did not express his suspicion against the

appellant. However, in his subsequent complaint dated 01.12.95

Shaukat Ali, father of the deceased disclosed that prior to the

incident, he was told by the deceased that he happened to see the

appellant and SI Shashi Bala in a compromising position due to

which they were annoyed with him and they had threatened to kill

him. He also alleged that the deceased told him that Shashi Bala, SI

had also made objectionable advances to seduce him, which he

repelled.

8. On the basis of the fresh evidence collected in the

investigation conducted by the SIT, Crime Branch, the offence under

Section 304A IPC was converted into the offence under Section 302

IPC and the appellant was charge sheeted and sent for trial. SI

Shashi Bala was shown in Column 2 of the charge sheet for the

reason that sufficient evidence as regards her involvement in the

crime was not there.

9. The learned Additional Sessions Judge, on consideration of the

charge sheet, charged the appellant for the murder of the deceased

punishable under Section 302 IPC. The appellant pleaded not guilty

to the charge and claimed trial.

10. In order to bring home the guilt of the appellant, the

prosecution has examined 30 witnesses in all in support of its case.

However, the witnesses material for the adjudication of this appeal

are PW1 ASI Siya Ram, PW3 Nazir Ahmed, PW5 Zahir Ahmed, PW12

Shashi Bala, PW13 Head Constable Karim Baksh, PW17 SI Ram

Singh, PW18 Saeed Ahmed, PW22 Shaukat Ali, PW24 Ms. Asha Dhir

and PW25 Satbir Singh Sherawat. Before adverting to the rival

contentions of the parties, we feel that it would be useful to have a

look over the testimony of said witnesses.

11. PW1 ASI Siya Ram was Duty Officer, police station I.P.Estate on

28.12.1994 from 10:00 am onwards. He has stated that in the said

morning, he took one SAF Carbine, 20 live cartridges and a chain

from Constable Kartar Singh after he completed his sentry duty and

handed over change of these items to the appellant Constable

Arvind, who took over the sentry duty from Constable Kartar Singh.

He also stated that at 12:05 pm on 28th December, 1994, he was

relieved as Duty Officer by SI Shashi Bala (PW12) as he was directed

by the SHO to go to the press area for official duty. When he

returned back to the police station at about 06:20 pm, he came to

know that Constable Mohd. Rashid has died due to firing by the

appellant.

12. PW3 Nazir Ahmed is a witness of motive for the crime. He has

stated that about 15 days prior to the occurrence, he was present at

the house of his friend Mohd. Saeed, who is uncle of the deceased.

He stated that on that day, deceased Mohd. Rashid told his uncle

Mohd. Saeed (PW18) that he by chance had seen Shashi Bala

(PW12) and the appellant behaving in an indecent manner at the

police station and because of that they were annoyed with him and

they had even threatened to kill him. PW18 Mohd. Saeed is the

uncle of the deceased. He has also deposed to almost similar effect

by stating that 13-14 days prior to his death, the deceased, who was

the son of his brother-in-law, told him that he had by chance, seen

the appellant and SI Shashi Bala (PW12) behaving in an indecent

manner and because of that, they were nursing a grudge against

him. PW18 further stated that the deceased also told him that SI

Shashi Bala (PW12) had even tried to behave in an indecent manner

with him but he resisted her advances by telling her that she was a

senior officer and was not expected to behave in such a manner.

13. PW22 Shaukat Ali is the father of the deceased. He has

testified that his son Abdul Rashid (deceased) was on leave from 17

to 21st December, 1994. During his leave, he stayed with him in the

village. The deceased, during the short stay, had told him that he

had by chance seen the appellant and SI Shashi Bala (PW12) in a

compromising position at the police station and reprimanded them

that they should not indulge in such indecent activities in the office.

He further stated that his son also told him that SI Shashi Bala

(PW12) had even made indecent advances towards him which he

resisted and told her that she being a senior should not behave in

such a manner.

14. PW13 Head Constable Karim Baksh, as per the case of the

prosecution, reached at the spot of occurrence immediately after

the firing. He has testified that on 28.12.1994, he had gone to the

office of ACP Karol Bagh in connection with some departmental

inquiry. He returned back to the police station I.P.Estate at about

05:15 pm. When he reached at the police station, he saw the

appellant at the gate on sentry duty. SI Shashi Bala (PW12) was

standing near the appellant and appellant was either putting or

removing the rounds in the magazine of SAF. When he enquired

from SI Shashi Bala as to why she was standing at the gate, she

responded that she was just talking with the appellant. Thereafter,

he went to the room of Duty Officer where he saw the deceased

talking on telephone. He requested the deceased to record his

arrival at the police station in the relevant daily diary. The deceased

told him that he was busy in making a call as his mother was to be

operated upon in RML Hospital on the next day and requested him

to make the arrival entry in the register himself. The witness further

stated that then he went to make his arrival entry in the

„roznamcha‟ (Daily Diary). While he was recording his arrival entry,

he heard a cry and sound of firing of bullet at the same time. On

hearing the cry "Mujhe bachao", he rushed towards Duty Officer

room. On reaching there, he found the deceased lying on the chair

and blood oozing from his neck, back and his hand. Other staff

members including Constable Ram Kishore and ASI Ram Singh also

came there. He further stated that Constable Arvind Kumar and SI

Shashi Bala (PW12) were also present in the room and the appellant

Arvind was saying "Madam, aapne ye kya karwa diya, mere toh

bache barbad ho jayenge" and upon this, SI Shashi Bala (PW12)

replied "Tum phikr mat karo, main bhi tumhare saath hun, court tak

tumhara saath doongi". He stated that at that time, SAF Carbine

was in the hand of the appellant. ASI Ram Singh and Constable Ram

Kishore rushed the deceased to JPN Hospital. As per PW13, at the

spot of occurrence, the SAF and cartridges were seized by Head

Constable Rajender Singh from the appellant. On instructions of

senior officers, the spot was got photographed and investigation

proceeded. PW13 identified the SAF Ex.P1, bullets Ex.P2 and barrat

cap Ex.P3.

15. PW12 Shashi Bala was posted as Duty Officer, Police Station I.P.

Estate at the relevant time. She has testified that on 28.12.1994 at

about 5:45 pm, the deceased, who was on duty as Roznamacha

Munshi, came to her room and started making a phone call while

sitting on a chair across the table. He continued with the call for 5 or 7

minutes. She advised him to cut short his call and not to keep the

phone of duty officer‟s room engaged but the deceased continued with

his phone call. At about 5:55 pm, she requested the appellant who

was posted as Sentry to ask the deceased to put down the phone. On

this, the appellant came to the duty room and asked the deceased to

leave the phone. The deceased jokingly caught hold of the SAF of the

appellant. When the appellant tried to extricate the SAF from the grip

of the deceased, in that scuffle the SAF got entangled with the chain

attached to the belt of the appellant. As a result, accidental fire from

the SAF took place and the deceased was hit with the bullets on his

neck and chest. PW12 Shashi Bala further stated that the firing

occurred accidentally because of negligence of the appellant who had

not kept the SAF in proper mode. According to this witness, one public

witness Naseem and Inspector Sherawat of CISF were also present at

the time of incident and they helped in shifting the deceased to the

hospital. She has proved her statement which she made at the spot to

the Investigating Officer Inder Pal as Ex.PW12/A.

16. PW17 SI Ram Singh (retired) is a hostile witness and he has not

supported the case of prosecution. In his cross-examination on

behalf of the appellant, he stated that on 28.12.1994 at about 05:45

pm, he was passing through the reporting room of police station I.P.

Estate. He saw the deceased making a telephone call and the

appellant was telling him to put down the phone. He further stated

that the deceased brushed aside the suggestion of Constable Arvind

(appellant) and there was a scuffle and all of a sudden, bullets were

fired from SAF of Constable Arvind and hit the chest and neck of the

deceased. He further stated that he stopped a private vehicle at the

road and in the said vehicle, he took the deceased to the hospital

where he was declared dead.

17. PW25 Satbir Singh Sherawat, Assistant Commandant, CISF Unit

has also supported the version of SI Shashi Bala (PW12) regarding

the accidental firing in the scuffle resulting in fatal injuries to the

deceased.

18. PW24 Ms. Asha Dhir, Assistant Director, Ballistic, CFSL is

another important witness. She examined the weapon offence and

has proved her reports Exhibits PW24/A to Ex.PW24/E. In her cross-

examination, she explained that she had received five queries from

the Investigating Officer during the period with effect from

13.01.1995 till 20.12.1995. In her opinion, the possibility of

simultaneous cocking and pressing of trigger of 9 mm Carbine,

registration No. 15220710 i.e. the SAF after entangling with the

same chain resulting in fire is ruled out. This implies that according

to the report, the theory of accidental fire is not plausible. Other

witnesses examined by the prosecution are formal in nature, who

participated in the investigation at one stage or the other.

19. The appellant, when examined under Section 313 Cr.P.C.

claimed that he was innocent and explained that the deceased had

sustained fatal injuries because of accidental firing of the SAF due to

scuffle and snatching of the SAF by the deceased. In his defence,

the appellant examined Sh. V.N.Sehgal, Ex-Director (CFSL), CBI, New

Delhi (DW1). He stated that despite taking precautions, accidental

firing can take place and a possibility of accidental firing increases if

the fire arm gets entangled in buttons of the shirt or a chain etc.

This witness, however, stated that since he had not examined the

fire arms, he was not in a position to say if the report of Ex.PW24/E

is totally incorrect. For the same reason, he showed his inability to

give an opinion as regards the reason for pushing of lever of the

gun.

20. Before we advert to the rival contentions, we note that it is

undisputed that on the fateful day the appellant was on Sentry duty at

P.S. I.P. Estate and the weapon of offence i.e. SAF Carbine was in the

charge of the appellant. It is also undisputed that the deceased

sustained bullet injuries as a result of fire from the aforesaid SAF

Carbine in the duty officer room of the Police Station and as a result of

those injuries, he expired. As per the prosecution, the appellant has

deliberately fired the SAF carbine resulting in fatal injuries to the

deceased, whereas the defence of the appellant is that he, on the

asking of PW12 SI Shashi Bala, had gone to the duty room to advise

the deceased to disengage the telephone but the deceased caught

hold of the muzzle of his carbine and when he tried to extricate the

carbine from the hold of the deceased, in the scuffle the chain which

was attached to his belt got entangled with the SAF Carbine resulting

in accidental firing of 5 bullets from the SAF carbine, which bullets hit

the deceased and the injuries proved to be fatal.

21. Learned counsel for the appellant has assailed the impugned

judgment on the ground that it is based upon improper appreciation

of evidence. He took us through the evidence on record and the

impugned judgment and pointed out that the learned Additional

Sessions Judge has returned the finding of the guilt of the appellant

on the basis of circumstantial evidence, ignoring the fact that PW12

SI Shashi Bala and PW25 Coy. Codr. S.S. Sherawat of CISF who, as

per the case of the prosecution, had witnessed the occurrence, did

not support the theory of intentional firing and categorically stated

that the SAF Carbine of the appellant was accidentally fired during

the scuffle when the appellant was trying to extricate his SAF

Carbine from the grip of the deceased. Learned counsel further

submitted that perusal of the impugned judgment would show that

the learned Trial Court, while returning the finding of guilt, has been

influenced by the opinion of ballistic expert PW24 Asha Dhir

Ex.PW24/E wherein she has ruled out a possibility of accidental fire

from the SAF Carbine in this case. Learned counsel submitted that

the learned trial Judge has committed a grave error in accepting said

report, ignoring the eye witness account given by PW12, SI Shashi

Bala and PW25 Coy. Codr. S.S. Sherawat as well as the testimony of

DW1 V.N. Sehgal who retired as Director CFSL and who stated that

accidental fire from a firearm is possible if it gets entangled with

button of a shirt or chain etc. Learned counsel submitted that other

factors which contribute to the finding of conviction are the motive

for crime purportedly established by the testimony of PW3 Nazir

Ahmed, PW5 Zahir Ahmed, PW18 Saeed Ahmed, PW22 Shaukat Ali

and the evidence of Res-gestae provided by the testimony of PW5

Zahir Ahmed and PW13 Karim Baksh. Learned counsel submitted

that even the aforesaid evidence of motive and Res-gestae is not

reliable.

22. Learned counsel for the State, on the other hand, has argued

in support of the impugned judgment and submitted that the

learned Trial Court has rightly relied upon the testimony of the

witnesses of motive as well as res-gestae and the expert opinion,

which conclusively establish the guilt of the appellant. Thus, he has

urged us to dismiss the appeal.

23. In order to appreciate the contention of the appellant that the

learned Additional Sessions Judge has committed a grave error in

giving circumstantial evidence precedence over the eye witness

account of the occurrence given by SI Shashi Bala and Inspector S.S.

Sherawat, one must keep in mind the background of this case.

Admittedly, this is a case in which a Police Constable was killed in

the Police Station due to firing from SAF Carbine, which was in the

charge of the appellant. The question for determination is whether

the firing took place accidentally or deliberately? The FIR in this

case was registered in the first instance on the basis of the

statement of SI Shashi Bala under Section 304A IPC. Perusal of the

FIR Ex.PW4/A reveals that it was registered at 07:12 pm on 28.12.94

vide DD No.15A on the basis of rukka Ex.PW19/A sent to Duty Officer

by the first Investigating Officer Inder Singh at 07:10 pm. The

incident, admittedly, took place at about 05:55 pm within the Police

Station. As per the testimony of the Additional SHO, Inspector Inder

Singh, on the fateful evening at about 06:00 pm, on receipt of the

wireless message, he reached at the Police Station where he

recorded the statement of SI Shashi Bala. In the cross-examination,

he stated that he reached the Police Station within 3/4 minutes of

the receipt of wireless message. This means that he must have

reached the Police Station by sometime around 6:05 pm. That being

the case, it remains unexplained as to why it took almost an hour for

registering the FIR despite of the fact that the incident had taken

place within the Police Station in the duty officer room. This

unexplained delay is clear indication that statement Ex.PW12/A of

PW12 is a result of deliberation to save the police from the

embarrassment which the news of commission of murder within the

police premises would have caused.

24. Further, the story put forth in the statement of SI Shashi Bala

Ex.PW12/A is belied by the testimony of PW13, Head Constable

Karim Baksh. He has categorically stated that on 28.12.94, he

returned back to Police Station I.P. Estate after attending an inquiry

in the office of ACP Karol Bagh and he noticed the deceased talking

on telephone in the room of the duty officer. He also stated that he

requested the deceased to record his arrival entry in the daily diary.

The deceased, however, told him that he was busy on telephone and

requested him to go and himself make an entry of his arrival in the

daily diary. Thus, he went to the room in which daily diary register

was kept to make the entry and while recording the arrival entry, he

heard the cry of Mujhe Bachao and firing of SAF. On this, he came

to the duty officer room and found the deceased lying on the chair

with bullet injuries. Appellant Arvind was saying to Shashi Bala

"Madam aapne yeh kya karva diya, Mere to bache barbad ho

jayenge" and on this SI Shashi Bala replied "tum phikr mat karo may

bhi tumhare saath hu, court tak tumhara saath dungi". From the

above version of Head Constable Karim Baksh, the complicity of SI

Shashi Bala in an effort to save the appellant is established. The

above said utterance on the part of appellant Arvind Kumar,

immediately after the occurrence, is a relevant fact under Section 6

of the Indian Evidence Act as a part of res-gestae and definitely

points towards the guilt of the appellant. Not only this, the above

utterance on the part of SI Shashi Bala, even if it falls short of

establishing her complicity in the act of shooting the deceased,

shows her soft corner for the appellant which explains as to why she

has given a distorted version in her statement Ex.PW12/A made to

the Investigating Officer as well as in her testimony in the court.

25. Learned counsel for the appellant criticised the testimony of

PW13 Head Constable Karim Baksh for the reason that his statement

under Section 161 Cr.P.C. was recorded at a very late stage on

22.03.95 and there is no explanation for that unreasonable delay. It

was also submitted that if Head Constable Karim Baksh is a truthful

witness, there ought to have been his arrival entry in the daily diary

maintained at the Police Station. Since the prosecution has failed to

place on record even a copy of the said arrival entry, the presence

of PW13 at the spot of occurrence as claimed by him is highly

doubtful. Learned counsel thus submitted that it is unsafe to rely on

his testimony, particularly when there is no independent

corroboration to his version.

26. We are not convinced with the above argument for the reason

that on perusal of the Trial Court record, it transpires that original

daily diary register "B" of Police Station I.P. Estate was filed in the

court on 10.01.2001 as is apparent from the trial court proceedings

dated 10.01.2001 wherein it is, inter alia, recorded:

"It is submitted by Inspector Arora that the record as mentioned in the application filed today has been traced and brought in the court. Let the record be kept in the court in safe custody which consists of three registers. Police officers summoned today are discharged."

27. The above three registers include daily diary register "B"

maintained at Police Station I.P. Estate containing entries w.e.f.

15.12.94 till 05.01.95. On perusal of this register, it transpires that

as per DD No.20B dated 28.12.94 recorded in this register, Head

Constable Karim Baksh had departed for the office of ACP Karol

Bagh for attending departmental inquiry against SI Sher Singh at

10:30 am in the morning. Further perusal of this register reveals

that the arrival entry of Head Constable Karim Baksh at the Police

Station is recorded at 5:30 pm in the evening vide DD No.43-B,

which is in the hand of the Head Constable. These entries do

corroborate the version of Head Constable Karim Baksh and give an

assurance that he is telling the truth. Further, his version is also

corroborated by PW5 Zahir Ahmed who in his testimony claimed that

on the relevant day he had visited Police Station I.P. Estate to meet

the deceased along with his maternal uncle Abdul Khalid. They

reached there at about 5:45/6:00 pm and before they could enter

the Police Station, they heard noise of firing. He further stated that

on entering the Police Station, he found the deceased lying on the

chair. The appellant and a lady officer were also present there and

he heard appellant saying "Madam, aapne isko to marwa diya ab

mera kya hoga" and the lady officer assured that she would help

him upto the High Court. Thus, we find no reason to disbelieve the

testimony of Head Constable Karim Baksh. Once it is established

that immediately after the occurrence, the appellant was heard

saying to SI Shashi Bala ""Madam aapne yeh kya karva diya, Mere

to bache barbad ho jayenge", it can be safely inferred that the

occurrence - by no means- could be accidental and it was an act of

deliberate firing.

28. The next circumstance taken against the appellant by the

learned Additional Sessions Judge is the expert opinion Ex.PW24/E

given by the ballistic expert Ms. Asha Dhir (PW24). She is Assistant

Director, Ballistic, CFSL Chandigarh. She testified that she is M.Sc.

Honours in Physics and has been trained at NICFS Delhi, BARC

Bombay and FSL Rajasthan. She also stated that she had examined

hundreds of cases relating to Ballistic and submitted her reports and

she claimed herself to be expert in Ballistics. She has proved the

reports prepared by her of Ballistic examination of the SAF Carbine

and the material seized from the spot Ex.PW24/A to Ex.PW24/E.

Perusal of her opinion Ex.PW24/E reveals that as per this witness,

the possibility of simultaneously cocking and pressing of trigger of 9

mm Carbine Regd. No.15220710, marked A, after entangling with

the same chain resulting in fire is ruled out. It is on the basis of this

opinion, coupled with his own examination of weapon of offence, the

learned Trial Court came to the conclusion that this is a case of

deliberate firing and not an accidental firing.

29. Learned counsel for the appellant submitted that the learned

trial Judge has fallen in grave error in relying upon the reports of Ms.

Asha Dhir (PW24) which are contradictory in nature. In support of

this contention, he drew our attention to the testimony of Shri V.N.

Sehgal, Retired Director of CFRSL wherein he stated that he had

seen the reports Ex.PW24/D dated 26.04.95 and PW24/E dated

22.12.95 and that both reports are not similar and convey different

meaning. He also deposed that despite of taking precautions, a

possibility of accidental fire from a firearm cannot be ruled out and

the possibility of accidental fire increases if the firearm is entangled

in a button of a shirt or chain, etc. Learned counsel argued that the

learned trial Judge has fallen in error in relying upon the testimony

of Ms. Asha Dhir ignoring the expert opinion of DW1 Shri V.N.

Sehgal, who retired from the esteemed position of Director, CFSL,

CBI.

30. We do not find merit in the above contention of learned

counsel for the appellant. No doubt, DW1 Shri V.N. Sehgal retired as

Director CFSL, CBI, but this does not mean that he is an expert on

ballistics. Therefore, we find no infirmity in the approach of the

learned trial Judge in giving precedence to testimony of PW24 Ms.

Asha Dhir, who deposed about her credentials as ballistics experts

over the testimony of DW1 Shri V.N. Sehgal. Otherwise also, the

witness in his cross-examination submitted that he had not

examined the weapon of offence i.e. SAF Carbine pertaining to this

case, so, he was unable to say definitely as to what was the reason

for pushing of lever or if there was any pushing of lever or not. On

perusal of the reports of Ms. Asha Dhir Ex.PW.24/D and Ex.PW24/E,

we do not find any contradiction in these reports. In the report

Ex.PW24/D, Ms. Asha Dhir in response to additional query No.5 has,

inter alia, opined that the firearm under reference can be cocked by

entangling with the chain provided, if the change lever is not at „S‟

(safety) position. If the trigger is pressed in cocked condition, it will

fire and in the report Ex.PW24/E in answer to the additional query,

she has opined "the possibility of simultaneously cocking and

pressing of trigger of 9 mm Carbine Regd. No.15220710, marked A,

after entangling with the same chain resulting in fire is ruled out".

On bare reading of these two opinions, we find no contradiction in

the same. Therefore, we find no reason to discredit the opinion

given by the Ballistic Expert PW24 Asha Dhir.

31. The learned trial Judge while dealing with this aspect of the

matter also summoned and examined the weapon of offence and

after his inspection of the weapon, he, inter alia, observed thus:

"104. It is in order to reach the truth that, as mentioned above, I summoned the SAF specifically to study the placement of chain vis-à-vis the other components of the weapon. As described above, firing has to precede cocking of the gun by pulling behind the cocker, which requires considerable force to pull; firing also precedes shifting of the flat lever knob from position S to position R or thereafter to the position A, on which the SAF was found at the time of ballistic examination; and firing precedes pulling the trigger. All the three movements, viz. Cocking, shifting the lever and triggering are required to make the SAF fire.

105. The irresistible conclusion reached after my through examination of the weapon of offence is that the alleged entangling of chain during the alleged scuffle between the accused and the deceased could not between the accused and the deceased could not have led to all the three movements, so as to make it fire accidentally. For, as described above pulling behind the cocker requires considerable strength; knob of the lever is flat and not a protruded one in which the chain could get entangled; and the trigger being inside the C shaped cover over it, even the trigger could not get entangled. In any case, simultaneous movement of all the three said components by entangling is absolutely impossible. When at ease, i.e. not in alert position, as the present case was, lever of the SAF is always at the safety point S and finger of the person carrying the weapon is never on the trigger so even if it is assumed that the chain somehow pulled the cocker, it remains unexplained as to under what circumstances lever knob was shifted from S to R and then to A position, Shifting of the lever knob and pressing of the trigger could not at all have occurred accidentally by entangling.

106. Even the ballistic expert in her report Ex. PW24/E opined that simultaneous cocking and triggering after entangling is ruled out. I fail to find any substance in the defence argument that clause 5 of ballistic report Ex. PW 24/D contradicts the report Ex PW24/E. For, clause 5 of report Ex.PW24/D simply expresses possibility of cocking by entangling, "proved if the change lever is not at S (safety) position", whereas report Ex.PW24/E rules out the possibility of simultaneous cocking and triggering.

107. Then, as per clause 4 of the ballistic report Ex. PW 24/D, with the lever at position A (which happened in the present case) the SAF could fire if it was cocked and trigger was pressed and it could go on firing as long as the

trigger remained pressed. The expression of the continuous firing upon the trigger remaining pressed would be very relevant in the light of four rounds that hit within a small area of neck of the deceased, in the sense that the accused did not remove his finger from the trigger immediately after the first round.

108. In fact, reliance of the defence on presence of all the bullet wounds being within a small area of the neck to show accidental firing goes against it. For, had it been an accidental firing upon scuffle followed by entangling of the chain of the SAF, firing would have been scattered all around the deceased, and not just localized to a small area of his neck.

109. Further, a very important aspect, ignored by both the sides during arguments was the bullet injury found on hand of the deceased. Entry of this bullet wound no. 5, as per post mortem report Ex.PW 29/A is on the back of the right hand of deceased. As per defence case, firing took place upon entangling of the chain when the deceased caught hold of the muzzle of the SAF. If the deceased caught hold of the SAF by its muzzle with his right hand, no bullet injury on his right hand would have been possible and if he held the SAF at the mouth of the muzzle, the entry wound on right hand would have been at front and not at back of the hand. If the deceased had been holding the telephone receiver with his right hand and caught hold of the muzzle with left hand, the bullet that passed through his hand would have blasted the phone receiver also and would have caused an entry would around ear of the deceased, regarding which there is no evidence. Even as per clause 3 of the ballistic report Ex. PW 24/C the bullet injury on hand of the deceased was caused by firing at an angle different from the angle at which other injuries were caused. Injury on the back of the right hand of the deceased fails to fit in the defence theory of accidental firing".

32. We find no infirmity in the above approach adopted by the

learned trial Judge in ruling out possibility of accidental firing of SAF

Carbine as projected by the defence.

33. Learned counsel for the appellant submitted that as per the

charge sheet, the deceased had by chance seen the appellant and SI

Shashi Bala (PW12) indulging in indecent behaviour in police station

and for that reason, the appellant was annoyed with the deceased and

nursing a grudge against him. This, according to the prosecution, is

the motive for crime. Learned counsel submitted that the prosecution,

in order to prove the motive, has examined PW3 Nazir Ahmed, PW18

Saeed Ahmed and PW22 Shaukat Ali, father of the deceased. He

submitted that their testimony is not worthy of credence for the reason

and that the story of motive appears to be an afterthought and as a

result of deliberation. In support of this contention, learned counsel

drew our attention to the complaint statement Ex.PW22/DC dated

29.12.1994 purported to have been made by PW22 Shaukat Ali to the

SHO, I.P.Estate wherein, though he has expressed a suspicion that his

son might have been murdered in furtherance of a well-conceived plan,

but he did not raise any suspicion against the appellant nor he made a

whisper of above referred motive on the part of the appellant and SI

Shashi Bala (PW12). Learned counsel submitted that the story of the

above referred motive surfaced for the first time when PW22 Shaukat

Ali submitted a second complaint in the office of the Commissioner of

Police, Delhi on 01.02.1995 wherein, Shaukat Ali (PW22) claimed that

prior to his death, his son Mohd. Rashid (deceased) had told him that

he had seen the appellant in compromising position with SI Shashi Bala

(PW12) in police station and because of that reason, the appellant was

nursing a grudge against him. According to learned counsel for the

appellant, this circumstance in itself, raises a strong suspicion that the

story of motive put forth by PW22 Shaukat Ali is the result of due

deliberation and afterthought. He submitted that PW3 Nazir Ahmed

and PW18 Saeed Ahmed are also not worthy of credence because they

are interested witnesses, PW18 Saeed Ahmed being relative of the

deceased and PW3 Nazir Ahmed being the friend of Saeed Ahmed

(PW18). He further submitted that their version is also suspect because

there is an unexplained delay in recording of their statement under

Section 161 Cr.P.C.

34. There appears to be some substance in this contention of learned

counsel for the appellant and, in view of the circumstances pointed out

by him, we do not find it safe to rely upon the testimony of PW3, PW18

and PW22 pertaining to the motive for crime. Otherwise also, the

motive projected by the prosecution is not so strong which may impel a

person to kill someone.

35. At the same time, we are of the opinion that the failure of the

prosecution to firmly establish the motive however, is not so significant

as to reject the prosecution case. Of course, in a criminal trial, motive

plays a significant role to arrive at a just decision but it is not always

that the prosecution may get evidence of motive. Therefore, failure of

prosecution to prove the motive would not lead to a conclusion that the

appellant is not guilty of the offence. If there is other convincing

evidence on record to establish the guilt of the accused, the finding of

conviction can be returned. In our aforesaid view, we draw strength

from the decision of the Supreme Court in the matter of Ganeshalal

V. State of Maharashtra, 1992 Crl.L.J. 1545, wherein it was held

thus:

"In circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. The absence of motive, which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances".

36. Further, in the matter of Mulakh Raj Vs. Satish Kumar, 1992

SCC (Cri.) 482, it has been held as follows:

"Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time, it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case".

37. In view of the above enunciated position in law, absence of a

motive is of no avail to the appellant.

38. In view of the above discussion, we find no reason to interfere

with the impugned judgment and conclude that the learned trial Judge

has rightly convicted the appellant for the murder of the deceased

under Section 302 IPC on the strength of the circumstantial evidence

referred to above. Thus, we find no merit in the appeal.

39. The appeal is dismissed accordingly.

AJIT BHARIHOKE, J.

JULY 02, 2010                                 A.K. SIKRI, J.
pst/akb