Manoj & Ors. vs State
2010 Latest Caselaw 1537 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on :15th March, 2010
                    Judgment Pronounced on:19th March, 2010

+                       CRL APPEAL NO.583-84/2006

        MANOJ & ORS.                          ..... Appellants
                 Through:      Mr.S.K.Sharma, Advocate with
                               Mr.Mayank Bansal and Mr.Hari
                               Prakash, Advocates

                               versus

        STATE                               ..... Respondent
                    Through:   Mr.M.N.Dudeja & Ms.Richa Kapoor,
                               Advocates

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to Reporter or not?           Yes

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

PRADEEP NANDRAJOG, J.

1. Holding that since Bhopa @ Bhupender did not

have any previous enmity with the deceased and did not

actively participate in the commission of the crime, there

being some evidence of his exhorting the accused, giving him

the benefit of doubt, vide impugned judgment and order dated

20.5.2006, appellants Manoj and Sunder, both brothers, have

been convicted for the offence of having murdered Harpal

Singh, the brother of Gaje Singh. Since Gaje Singh claimed to

be an eye witness to the incident, learned Trial Judge has

believed the testimony of Gaje Singh. The country made pistol

Ex.P-1 recovered at the instance of Manoj being linked to the

two cartridges lifted from the scene of the crime by means of

ballistic examination, it has been held that there is further

incriminating evidence against Manoj. Thus, Manoj and his

brother Sunder have been convicted for the offence

punishable under Section 302/34 IPC. Manoj has additionally

been convicted for the offence punishable under Section 27 of

the Arms Act.

2. Sunder has died during pendency of the appeal and

noting said fact, vide order dated 15.3.2010 it was held that

qua Sunder the proceedings stand abated.

3. The first documentary record of Harpal being shot

with a firearm on his chest is Ex.PW-10/A i.e. Harpal‟s MLC

prepared by Dr.S.B.Jangpangi PW-10, on duty in the

emergency of L.B.S.Hospital Delhi. It records that Harpal was

brought to the hospital in an injured condition at 10:25 PM on

7.1.2003 by Jitender Kumar who informed that he was residing

in the neighbourhood of the patient.

4. Information about an incident of firing was received

at PS Kalyanpuri and recorded vide DD No.66B, Ex.PW-14/A at

22:13 hours on 7.1.2003. The investigation was entrusted to

SI V.K.Sharma who left the police station accompanied by

Const.Shravan Kumar. Insp.S.M.Khan PW-14 the SHO of the

police station who was on patrolling duty received the

information over the wireless and even he proceeded to the

place where the incident had taken place i.e. 8/66, Extra Block,

Trilokpuri. Insp.S.M.Khan and SI V.K.Sharma reached the spot

together, by which time the injured had already been removed

to the hospital. They saw blood on the road and two fired

cartridges as also pellets. Leaving behind Const.Shravan

Kumar to guard the place of the crime, Insp.S.M.Khan and SI

V.K.Sharma left for L.B.S.Hospital where they found Harpal

being brought to the hospital and declared dead as per his

MLC Ex.PW-10/A as also that his brother Gaje Singh being

treated for a grazing gun shot injury on his chin.

Insp.S.M.Khan recorded the statement Ex.PW-1/A of Gaje Singh

and after penning the endorsement Ex.PW-14/A beneath the

statement dispatched the same through Const.Parshuram who

was with Insp.S.M.Khan in the police jeep for FIR to be

registered, recording on the tehrir that the same was

dispatched from the hospital at 00:30 hours on 8.1.2003 i.e. at

around midnight of the intervening night of 7th and 8th January,

2003.

5. The statement Ex.PW-1/A of Gaje Singh which has

formed the basis of the FIR reads as under:-

"Statement of Gaje Singh S/o Sh.Inderjeet Singh, aged 25 years, R/o House No.8/214, Trilokpuri, Delhi.

I reside at the aforesaid address and ply T.S.R. My brother Harpal Singh is a constable C.R.P.F. I know very well Sunder and Manoj both son of Baraf Singh, R/o 8/66, Extra Trilokpuri, Delhi. One week ago, Sunder and his brother Manoj had taken a sum of rupees one hundred from me forcibly for consuming liquor. Today at about 8:15 PM, Sunder and Manoj met me in the park situated at 8, Block, Trilokpuri. They were also accompanied with a boy aged about 25-26 years. I do not know the name of that boy. Sunder and Manoj demanded money from me for consuming liquor. I showed my incapability in paying money by telling that I did not have money. Both of them asked me to get my pocket checked. At this, I allowed them to check my pocket. Sunder and Manoj checked my pocket but they did not find any money. Thereafter, Manoj and Sunder asked me to bring the money from my house to which I forbade them. I came back to my house and laid. At about 8:45 PM, my brother Harpal returned home from his duty. I told my brother that Sunder and Manoj used to harass and threatened me and demands money from me for consuming liquor. My brother asked me as to who were they. At this, I revealed their identity to my brother. My brother Harpal suggested that they should go to the house of Manoj and Sunder in order to make them understand. I alongwith my brother Harpal reached 8/66, Extra Trilokpuri i.e. the house of Sunder and Manoj where they were already found present. I called both of them Harpal Singh, my brother asked Sunder and Manoj as to why they were harassing his brother Gaje Singh. At this, Sunder and Manoj asked us (my brother Harpal & myself) to do whatever we can. Thereafter, Sunder scuffled with me. My brother intervened and told me, let us go and that we would call police by a call making at telephone No.100. As soon as my brother Harpal Singh and myself started returning from there, the third accomplice of Sunder and Manoj shouted while saying that we (my brother and myself) should not be spared. At this, my brother and myself started moving swiftly

from there to our house. Before we could cover 20- 25 paces, we heard a sound of firing from behind. At that time it would be 9-9:30 PM. My brother told me that fire had taken place so we should run inside gali in order to escape ourselves from being hit. Then, my brother and myself started running in the gali. Manoj, Sunder and their accomplice while running followed my brother and myself. All the three were shouting while saying that we would not be able to escape. My brother was behind me. When I turned the neck round in order to see behind, Manoj fired at me which hit me on my chin. At the same time Sunder fired at my brother with the katta (country made pistol) as a result whereof my brother fell down just after he came out of gali. Ample blood was oozing out of his body. There was sufficient light in the gali. My brother sustained bullet injury on his chest. On hearing the sound of firing a huge crowd gathered over there. Jitender Kumar, my neighbour rushed my brother to hospital. I, while fleeing went to my house and dialed at phone No.100. P.C.R. van brought me to the hospital. Manoj and Sunder in furtherance of their common intention and at the instance of their accomplice fired at me and at my brother with the kattas (country made pistols). My brother has expired. Manoj, Sunder and third person in furtherance of their common intention have committed murder of my brother. They have also attempted to murder me. Legal action may be taken against them.

I have heard the statement and the same is correct."

6. Since Gaje was not very seriously injured he

accompanied Insp.S.M.Khan to the spot where the incident

took place i.e. the street abutting House No.8/73, Extra Block,

Trilokpuri i.e. the residence of Manoj and Sunder. From the

spot two empty cartridges were seized as recorded in the

memo Ex.PW-14/C. Some pellets were lifted from the spot.

Blood sample, blood smeared earth and earth control were

also lifted from the spot as recorded in the memo Ex.PW-1/B.

Rough site plan Ex.PW-14/D was drawn with the assistance of

Gaje Singh.

7. Being relevant to deal with the argument advanced

by learned counsel for the appellant Manoj, the site plan may

be pen profiled. Two streets running parallel to each other are

joined in the middle by another street; the three streets form

the letter „H‟. Spot G marked on the plan is the drain opposite

House No.8/66. At a little distance from spot G towards the

street joining the two parallel streets is the spot marked E i.e.

the place from where the first shot was fired. At the junction

of the street in the middle with the street where spots G and E

have been marked is spot D from where blood was lifted. At a

little distance from the said spot, on the street where spot G

and E have been marked is spot F from where pellets were

lifted. At the junction of the middle street with the street

opposite to the street where spots F, E and G have been

marked, are spots B and C where blood was lifted. The

direction in which Gaje and his brother ran has been marked

with arrows commencing from near spot marked G, showing

the directions towards the lane in the middle; taking a right

turn on to the middle lane, the arrows terminate at spot B on

the lane in the opposite parallel direction.

8. It is thus apparent that as per the site plan Gaje and

his brother walked from the place in between spot G and E and

as per Gaje‟s statement ducked into the middle lane when the

shot was fired, pellets whereof have been found at the spot

marked F. It is apparent that somebody was injured at the

junction of the two streets for the reason blood has been lifted

from spot D which is at the junction. The fact that blood has

been lifted from spot B and C at the other end of the middle

street where it forms the junction with the street running in

parallel, shows that the injured ran towards said direction. We

may note that as per the report of the serologist human blood,

group whereof could not be ascertained was detected on the

concrete material lifted from the street from the spots B, C and

D.

9. Post-mortem was conducted on the dead body of

Harpal by Dr.Vinay Kumar Singh PW-15 who prepared the post-

mortem report Ex.PW-15/A noting therein a single firearm

entry wound on the left side of the chest. The bullet pierced

the left lung and the heart between the 7th and 8th rib and

came out of the chest cavity at the rear where an exit wound

was noted. Gaje Singh PW-1 was also sent for examination

before Dr.Vinay Kumar PW-15 who gave a report encircled at

point X on the MLC Ex.PW-10/B of Gaje Singh opining that the

injury on the chin of Gaje Singh could be caused by any sharp

edged weapon.

10. Manoj was arrested on 11.1.2003 and he made a

disclosure statement pursuant whereto he got recovered a

country made pistol Ex.P-1, which as noted in para 1 above,

with reference to the report of a ballistic expert was opined to

be the weapon used to fire the two used cartridges which were

recovered from the place of the crime.

11. Arguing the appeal, learned counsel for the

appellant conceded that he has no submission to make with

respect to the report of the ballistic expert. Counsel submitted

that the possibility of the assailant throwing the pistol at the

spot or the police recovering the same otherwise and planting

the same on Manoj cannot be ruled out.

12. The said submission hardly impressed us for the

reason no suggestion was given either to Gaje Singh or

Insp.S.M.Khan that they had picked up a country made pistol

from the spot but not entered its recovery in the seizure

memo.

13. From the fact that the pistol is linked to the two

cartridges which were seized from the spot, any prudent

person would draw the conclusion that the pistol was used by

somebody at the spot to fire two shots. From the fact that the

pistol was not found at the spot, any reasonable person would

conclude that after being used to fire two shots, the pistol was

removed from the scene of the crime.

14. We shall revisit this aspect of the pistol in question

a little later.

15. While deposing in Court, Gaje Singh PW-1 spoke in

the same tune as his statement Ex.PW-1/A recorded by

Insp.S.M.Khan soon after the incident, but using different

words and expressions, as to how in the past Manoj and his

brother used to extort money from him and his complaining

about the same to his brother i.e. Harpal the deceased. He

deposed in sync with his earlier statement till he narrated facts

which took place in the street on 7.1.2003 till the stage Manoj

and his brother became physical with Harpal and he and

Harpal withdrawing to report the matter to the police. He

made a variation thereafter.

16. As noted in para 5 above, in his statement Ex.PW-

1/A he narrated: „Before we could cover 20-25 paces, we heard

a sound of firing from behind. At that time it would be 9-9:30

PM. My brother told me that fire had taken place so we should

run inside gali in order to escape ourselves from being hit.

Then, my brother and myself started running in the gali.

Manoj, Sunder and their accomplice while running followed my

brother and myself. All the three were shouting while saying

that we would not be able to escape. My brother was behind

me. When I turned the neck round in order to see behind,

Manoj fired at me which hit me on my chin. At the same time

Sunder fired at my brother with the katta (country made pistol)

as a result whereof my brother fell down just after he came out

of gali. Ample blood was oozing out of his body. There was

sufficient light in the gali. My brother sustained bullet injury

on his chest.‟ But, while deposing in Court he deposed:

„Before we could return towards our house for about 15-20

paces accused present in the Court (Bhupender @ Bhupa)

shouted that myself and my brother should not be permitted

to leave and that we should be caught hold. On hearing the

same I suggested my brother to escape from the side gali that

fall on right side. But as soon as we entered the said gali all

the three persons reached there. Accused Manoj and his

brother Sunder were having „Kattas‟ (country made pistols) in

their hands and the co-accused Bhupender @ Bhupa was not

having anything in his hand but this co-accused Bhupender @

Bhupa, present in the court, was again shouting not to let us

leave that place. By this time all the aforesaid 3 had come in

front of us. First of all, accused Sunder, who is not present in

the court, fired at my brother Harpal Singh and without escape

my brother shouted "Run Fire had taken Place" my brother

and myself started running from there but before we could run

for 5 paces my brother Harpal Singh fell down near the service

drain. He was not able to run but was swiftly moving his hands

and legs in pain and I was trying to take care of my brother

right then accused Manoj, present in the court, came from the

front and fired at me with the Katta (country made pistol)

which he was holding. I tried to save myself by giving the jerk

to my neck on the back side but despite that a bullet fired by

accused Manoj flew in the air injuring my chin. (This witness

has showed the scar caused by the said bullet on a chin and

the same is quite visible). Thereafter the co-accused

Bhupender @ Bhupa present in the court started shouting "Lag

Gai Lag Gai".

17. Challenging the presence of Gaje Singh at the spot,

it was urged that from the fact that the deceased was brought

to the hospital by one Jitender Kumar and not Gaje Singh, it

was urged that had Gaje Singh been with his brother, Gaje

Singh being recorded as the person who brought Harpal to the

hospital was the natural thing to have been recorded.

18. The argument is hardly impressive for the reason

the MLC of Harpal Singh bears No.3698 and that of Gaje Singh

bears No.3699. Both MLCs have been prepared on 7.1.2003 at

L.B.S.Hospital. It is apparent that Gaje and Harpal were being

simultaneously examined by two different doctors and for said

reason in Harpal‟s MLC the person who brought both brothers

to the hospital has been recorded as the one who brought

Harpal. That Gaje and Harpal were examined at the same

time at L.B.S.Hospital i.e. at 10:25 PM and 10:30 PM

respectively shows that both brothers were in the company of

each other.

19. With reference to the opinion of Dr.Vinay Kumar

Singh, encircled X on the MLC Ex.PW-10/B of Gaje Singh, it was

urged that as per the same it was possible that the injury on

the chin of Gaje Singh was caused by a sharp edged weapon

and thus Gaje Singh‟s version that the bullet grazed his chin

was false, meaning thereby, Gaje Singh was not present when

his brother received gun shot injuries.

20. We reject the argument for the reason Gaje Singh

was examined after 10 days of his injury. The wound had

healed. It is difficult for any doctor who examines a patient

after 10 days, with reference to a superficial injury, whether

the same was the result of a bullet grazing past or whether it

is the result of being hit by a sharp edged weapon.

21. It was then urged that the testimony of Gaje, who

has given a different version of the incident while deposing in

Court, vis-à-vis his statement recorded by the investigating

officer, renders him a witness worthy of no credit.

22. In para 16 above, we have extracted what Gaje told

the police about the incident and as recorded in his statement

Ex.PW-1/A and what he deposed in Court. Indeed, there are

variations in the two versions and at the first glimpse seem to

be more than innocuous. The differences are apparent to the

eye and we need not repeat them.

23. But the question arises whether on account of the

difference in the two versions, can it be said that Gaje Singh is

a witness worthy of no credit?

24. Material improvements or contradictions have been

held by the Court to be worthy of being held as discrediting a

witness. The plain and simple English meaning of the two

words „material improvements‟ would mean to produce

something essentially different. We highlight that the

emphasis is on the word „essentially‟ and not the word

„different‟. Thus, merely because something „different‟ is

stated would not make the same „materially different‟.

Similarly material contradictions would be such variations as

result in the same version being disclosed in two different

manners which are so contradictory to each other that they

cannot be reconciled.

25. How has the law treated something to be materially

different i.e. contradicting the witness himself?

26. Way back in the year 1959, in the decision reported

as AIR 1959 SC 1012 Tahsildar Singh Vs. State of UP, it was

observed that to hold that a witness has contradicted himself,

there must be something to discredit the particular version of

the witness. With reference to former statements of the

witness, it was observed that if the former statement has the

potency to discredit the present statement, only then it would

be a case of a witness contradicting himself. The decision

guides further as to when latter variances vis-à-vis the former

would have the potency to discredit. It was observed that

merely because the latter statement is at variance with the

former to some extent, it would not be a case of a witness

contradicting himself.

27. Thus, the decision highlights that variances to some

extent would not amount to a witness contradicting himself. It

is relevant to note that the decision uses the expression „to

some extent‟. This means that even more than minor

variations spanning variations to some extent have been held

not having the potency to discredit a witness.

28. There can be no mathematical formula to

determine as to when would a variation be potent to discredit

a witness. But one safe formula could be to see whether the

witness has made to modulate his version to suit the

prosecution case vis-à-vis what he stated on an earlier

occasion. The other safe formula could be to see whether the

two statements are containing facts which are mutually

contradictory and stand in opposition to each other thereby

demolishing each other or the changed version renders it

improbable for the crime to be committed. An illustration of

the applicability of the second formula would be the decision

of the Supreme Court reported as 2009 (3) SCC 391 Jarnail

Singh Vs. State of Punjab, where in para 27 it was noted that if

the facts were as narrated in Court, it was just not possible to

believe that the deceased could have suffered the injuries as

were found on his person.

29. Viewed with reference to the principles hereinabove

extracted, as we understand the law to be, we do not find that

Gaje Singh has modulated his previous statement to suit the

case of the prosecution.

30. It is in this context it assumes importance that the

pistol got recovered by Manoj is the weapon of offence proved

through the medium of the report of the ballistic expert. The

two cartridges which were seized from the place of the crime

have been opined to be fired from the pistol in question.

31. Gaje Singh making variations while narrating the

same incident on two occasions is explainable under two

counts. Events overtook him when his brother was shot. Gaje

Singh is an auto rickshaw driver and his halting signatures in

Devnagari script tell us that he is not much literate. His

narratives would lack the communicative skills of a well-

educated person. The twin effect i.e. Gaje Singh having poor

vocabulary and his mental condition at the time of the crime

could be responsible for Gaje Singh disclosing facts in a

particular manner which is different from what he stated when

he deposed in Court after 7 months of the incident.

Alternatively, it could be that, while deposing in Court after 7

months, his low literacy level and imperfect recollection led

him to speak differently.

32. We find no merit in the appeal which is dismissed.

33. Since the appellant is in jail we direct that a copy of

this order be sent to Superintendent Central Jail Tihar to be

made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 19, 2010 mm