Usman vs State (N.C.T. Of Delhi)
2010 Latest Caselaw 2446 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: April 28, 2010
                              Judgment delivered on : May 06, 2010

+      CRIMINAL APPEAL NO. 1028/2009


       USMAN                              ....APPELLANT
                               Through:   Mr. Javed Hashmi, Advocate

                     Versus

       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. This appeal arises from the conviction of appellant Usman on the

charge under Section 302 IPC and Section 25/27 of the Arms Act

in Sessions Case No.66/2008, FIR No.408/2007 Police Station

Sarita Vihar in terms of the impugned judgment of the Additional

Sessions Judge dated 13.10.2009. The appellant has been

sentenced to undergo imprisonment for life and also to pay fine

of Rs.5,000/-, in default to undergo simple imprisonment for a

period of six months.

2. Briefly stated, case of the prosecution is that on 30.05.2007 at

3.24 p.m. information was received at P.S. Sarita Vihar from

Constable Rameshwar of PCR that one boy has been shot at B-

Block, Kacchi Colony, Madanpur Khadar. This information was

recorded in Daily Diary register maintained at P.S. Sarita Vihar

as DD No.18 dated 30.05.2007(Ex.PW-14/A). Copy of the DD

report was forwarded to A.S.I. Satbir Singh through Constable

Mam Chand and the information was also conveyed to the

Incharge police post, who proceeded for the spot of

occurrence.

3. On the receipt of the DD report, the Incharge Police Post S.I.

R.Y. Pandey(PW-8) along with Constable Prakash Chand (PW-

11) proceeded for the spot of occurrence. When they reached

near Samosa Chowk, they found the appellant being chased

by some public persons. He was holding a pistol in his hand.

In the meanwhile, PCR van Eagle 27 also arrived there in

which Head Constable Shakti Chand and Constable Hari Babu

Meena were present. S.I. R.Y.Pandey along with the said

police officials apprehended the appellant and seized the

pistol from his hand. On checking, the pistol was found to

contain one live cartridge in its magazine. S.I. R.Y.Pandey

prepared sketch of the cartridge as well as the pistol and,

thereafter, converted them into sealed pullandas and seized

the same. The appellant was sent to the police post in the

PCR van and S.I. R.Y.Pandey went to the spot of occurrence

where he met A.S.I. Satbir Singh (PW-1) and Constable Mam

Chand. Some blood was there on the ground. Injured had

been taken to the hospital. S.I. R.Y.Pandey, therefore, went to

All India Institute of Medical Sciences (AIIMS), New Delhi where

he met complainant Ms.Josphina (PW-3), mother of the child

Ashish who had been declared dead. S.I. R.Y.Pandey recorded

the statement of Ms.Josphina (Ex.PW-3/A) and came back to

the spot. From there he sent the said statement along with

his endorsement to the police station for the registration of

FIR. S.I. R.Y.Pandey, during investigation, lifted the blood

stained earth as well earth control and also recorded the

statements of the witnesses. When the appellant was

apprehended, his pant was found stained with blood which

was also seized. The case property was sent to FSL for

examination and the dead body of the deceased was sent for

post mortem examination. After collecting the reports of FSL

examination and post mortem examination and completing

the investigation, charge sheet was filed under Section 302

IPC against the appellant.

4. The appellant was charged under Section 302 IPC to which he

pleaded not guilty and claimed trial. Subsequently, a

supplementary challan against the appellant under the Arms

Act was filed on 02.08.2008. Thus, he was also charged under

Section 25/27 Arms Act to which also the appellant pleaded

not guilty and claimed to be tried.

5. The prosecution, in order to bring home the guilt of the

appellant, examined 24 witnesses. However, the important

witnesses for the purpose of this appeal are PW-2 Sitara, PW-3

complainant Ms.Josphina, PW-4 Ram Mohan Roy and PW-7

Abdul Bari who, as per the charge sheet, are the eye

witnesses to the occurrence. Besides the above four

witnesses, other important witnesses are PW-8 S.I.

R.Y.Pandey, PW-9 Constable Hari Babu Meena, PW-11 Prakash

Chand and PW-19 Head Constable Shakti Chand who are

claimed to be the witnesses of recovery of the weapon of

offence i.e. pistol (Ex.PW-8/1) loaded with a live

cartridge(Ex.PW-8/2), from the appellant when he was

allegedly apprehended near Samosa Chowk.

6. The appellant Usman, when examined under Section 313 of

the Code of Criminal Procedure (CrPC), claimed that he has

been falsely implicated in this case. The appellant stated that

he was present outside the shop of a lady when he heard a

cracker sound and saw that the child had sustained injury and

his mother had fainted. He, thus, picked up the child and took

him to a nearby doctor but his clinic was closed and he came

back to the spot. By that time, the mother of the child had

regained consciousness, who took the child from him and went

to the bus stop along with 2/3 persons from where the child

was taken to the hospital. He was arrested by the police from

the bus stop and falsely implicated in this case. In defence,

the appellant examined DW-1 Mukhtiyar Singh.

7. Before adverting to the rival contentions of the parties, we

may note some admitted facts. It is not disputed that the

child Ashish suffered fatal bullet injury on his head at the spot

of occurrence. It is also not disputed that the appellant

Usman was present near the spot of occurrence at the

relevant time. What is disputed is that the appellant did not

fire the fatal shot. The defence of the appellant is that he has

been falsely implicated on suspicion by planting the pistol

Ex.PW-8/1 loaded with a live cartridge Ex.PW-8/2.

8. The prosecution has endeavoured to prove its case by

examining the purported eye witnesses as well as the

witnesses to the recovery of weapon of offence i.e. pistol

Ex.PW-8/1 from the possession of the appellant shortly after

the occurrence while he was found being chased by the public

and also the report of ballistic examination linking the

recovered pistol with the empty cartridge found at the spot of

occurrence.

9. PW-2 Ms.Sitara, PW-3 Ms.Josphina, mother of the deceased,

PW-4 Ram Mohan Roy, father of the deceased and PW-7 Abdul

Bari are the purported eye witnesses examined by the

prosecution. All of them turned hostile and have failed to

support the case of prosecution. PW-3 Ms.Josphina, the

mother of the deceased testified in the Court that when, on

the fateful day she had gone to the shop of PW-2 Sitara,

somebody fired a shot which hit her son and on seeing the

blood of her son, she fainted. She was attended to by the

mother of PW-7 Abdul Bari and one neighbour and on

regaining consciousness, she along with those two neighbours

initially went to a local hospital, but the hospital authorities

refused to admit the child. Therefore, she took him to a big

hospital where the child was declared dead. She has proved

her statement Ex.PW-3/A. In her cross examination by learned

APP, she denied the suggestion that the appellant had fired

the fatal shot or that he thereafter ran away from the spot of

occurrence with the pistol. Similarly, the other eye witnesses,

namely, PW-2 Ms.Sitara, PW-4 Ram Mohan Roy and PW-7

Abdul Bari have also failed to support the prosecution case.

They were also cross examined at length by learned APP, but

they denied the prosecution case. From this, it is apparent

that the eye witnesses examined by the prosecution are of no

assistance to prove the charge against the appellant.

10. Now we are left with the circumstantial evidence regarding

purported conduct of the appellant as well as the public

persons immediately after the occurrence and the alleged

recovery of the weapon of offence i.e. pistol Ex.PW-8/1 from

the possession of the appellant.

11. Learned counsel for the appellant, while assailing the

impugned judgment, submitted that the learned Trial Court

has failed to appreciate that the evidence of the prosecution

regarding the arrest of the appellant and the recovery of

weapon of offence is full of embellishments. He submitted

that the Trial Court, while analysing the evidence pertaining to

the apprehending of the appellant and recovery of the pistol

Ex.PW-8/1 from his possession immediately after the

occurrence, has failed to appreciate that the aforesaid version

cannot be true in view of certain observations recorded in the

MLC of the deceased Ex.PW-5/A as also the testimony of PW-6

S.I. Naveen Kumar of the Crime Team which inspected the

spot of occurrence and prepared the report Ex.PW-6/A. We

are not elaborating the arguments of learned counsel for the

appellant in detail for the sake of brevity.

12. Learned counsel for the State, on the other hand, has

submitted that the Trial Judge has rightly relied upon the

testimony of PW-8 S.I. R.Y. Pandey, PW-9 Constable Hari Babu

Meena, PW-11 Constable Prakash Chand and PW-19 Head

Constable Shakti Chand regarding the apprehending of the

appellant by the police while he was being chased by the

public and the recovery of the weapon of offence Ex.PW-8/1.

Learned counsel for the State has further submitted that from

the aforesaid recovery coupled with the conduct of the

appellant in trying to escape from the spot of occurrence with

the weapon of offence in his hand and the report of ballistic

expert Ex.PW-24/A, the guilt of the appellant is amply proved,

irrespective of the eye witnesses turning hostile. Thus, he has

strongly urged for the dismissal of the appeal.

13. In order to appreciate the rival contentions on this aspect, it is

necessary to have a look upon the testimony of the relevant

witnesses relating to the recovery of weapon of offence from

the possession of the appellant. PW-8 S.I. R.Y.Pandey is the

officer who conducted initial investigation of this case. He

testified that on 30.05.2007 at around 3.20 p.m. while on

patrol duty, he received the information about a child having

been shot. Thus, he along with the motorcycle rider

proceeded towards the spot of occurrence. When he reached

near Samosa Chowk, he saw the appellant coming running

from the side of B-Block, who was being chased by the public.

In the meanwhile, a PCR van also arrived there and he, with

the help of PCR officials, apprehended the appellant who was

carrying a pistol Ex.PW-8/1 in his hand. He seized the pistol

and on checking, it was found to contain a live cartridge

Ex.PW-8/2. He, thereafter, sent Usman (appellant) to the

Police Post in the PCR van and went to the place of occurrence

where he found that the injured child had been taken to AIIMS

Hospital. Then he went to the AIIMS Hospital where the child

had been declared dead. He met PW-3 Ms.Josphina, mother of

the child in the hospital and recorded her statement Ex.PW-

3/A which statement he sent to the police station along with

his endorsement for the registration of the FIR. Subsequent

investigation of the case, as per this witness, was conducted

by PW-22 Inspector Subodh Kumar. PW-11 Prakash Chand

was the motorcycle rider along with PW-8 S.I. R.Y.Pandey and

PW-9 Constable Hari Babu Meena and PW-19 Head Constable

Shakti Chand were the officials of the PCR Van Eagle 27. All of

them have also deposed about the apprehending of the

appellant and recovery of the pistol in more or less similar

manner.

14. On careful consideration of their evidence, we do not find the

testimony of the above four witnesses trustworthy and reliable

for several reasons. Firstly, if these witnesses are to be

believed, then after the recovery of pistol the appellant was

sent to the Police Post along with the PCR officials. Had this

been true, there ought to have been some DD entry at the

Police Post regarding handing over the custody of the

appellant Usman by the PCR officials to the officials of the

Police Post. No such DD report is placed and proved on

record. Secondly, PW-8 S.I. R.Y.Pandey in his cross

examination has stated that he reached at AIIMS Hospital at

4.30 p.m. and he recorded the statement of PW-3 Ms.Josphina

(Ex.PW-3/A) at 4.45 p.m. It is also the stand of PW-8 S.I.

R.Y.Pandey that he had sent the said statement to the police

station after appending his endorsement for the registration of

the case. This endorsement is Ex.PW-8/A. On perusal of said

endorsement, it transpires that S.I. R.Y. Pandey while sending

the statement of Ms.Josphina to the police station for

registration of the case has recorded in his endorsement that

on reaching AIIMS Hospital, he collected the MLC No.62880/07

of the deceased Ashish and that there he met Ms.Josphina,

mother of the deceased and recorded her statement. If this

sequence of events is to be believed, then the MLC was

collected first and statement of Ms.Josphina was recorded

thereafter. PW-3 Ms.Josphina or the persons who had

accompanied her to the hospital were not aware about the

apprehending of the appellant and recovery of the pistol.

Therefore, they could not have given any information in that

regard to the doctor concerned at the time of preparation of

the MLC. However, perusal of MLC Ex.PW-5/A reveals that the

concerned doctor Era Chopra, while preparing the MLC at 4.30

p.m. has recorded thus:

"Alleged h/o Bullet Injury to the Head around 1 ½ hours back at Madanpur crossing N.D.

The patient was dyspnic and was gasping.

No pulses were felt.

The child had Bradycardia and was intubated.

CPR was done But the child could not be Resuscitated and was declared dead.

The weapon used was a 6 inch Revolver `katta „. The weapon is seized by the police."

15. It is a mystery as to how Dr.Era Chopra came to know about

the nature of the weapon used for killing the child and about

the seizure of the weapon by the police. Unfortunately, Dr.Era

Chopra has not appeared as a witness as she had left AIIMS

Hospital before she could be examined as a witness. This

circumstance has left a serious gap in the prosecution

evidence because the aforesaid entry regarding the nature of

weapon used and the seizure of weapon in the MLC remains

unexplained with regard to on whose information aforesaid

facts were recorded in the MLC.

16. Thirdly, case of the prosecution is that the deceased was

taken to the hospital by his mother Ms.Josphina(PW-3) before

the arrival of the police. If that is so, then the MLC ought to

have recorded that the deceased was brought to the casualty

of the hospital by PW-3 Ms.Josphina. This, however, is not the

case and as per the MLC, the deceased was brought to the

hospital by one Head Constable Abdul Qayum who has not

been examined as a witness. Thus, it remains unexplained as

to how he came into picture. From the fact that the deceased

was brought to the hospital by Head Constable Abdul Qayum,

it can be safely inferred that the police party on arriving at the

spot of occurrence found the injured child there and it casts a

strong doubt on the version of PW-8 S.I. R.Y.Pandey and the

other three police officials, namely, PW-9 Constable Hari Babu

Meena, PW-11 Constable Prakash Chand and PW-19 Head

Constable Shakti Chand regarding recovery of the weapon of

offence Ex.PW-8/1 from the possession of the appellant in the

manner in which the witnesses have deposed.

17. The doubt against the story of the prosecution regarding

recovery of the weapon of offence from the possession of the

accused in the manner projected by the above referred

witnesses is further compounded by the report of mobile

Crime Team Ex.PW-6/A proved by S.I. Naveen Kumar(PW-6).

The Crime Team Report Ex.PW-6/A records that the spot of

occurrence was inspected by the team on 30.05.2007 at about

5.15 p.m. In the column of "advice to the I.O.", it is, inter alia,

recorded "weapon of offence be recovered from the accused".

This implies that till the preparation of the Crime Team Report

Ex.PW-6/A, the weapon of offence was not recovered,

otherwise there was no occasion for such an advice by the

Crime Team.

18. Learned counsel for the State has tried to explain this infirmity

by commenting that as per the Crime Team report, the I.O.

was A.S.I. Satbir Singh and a possibility cannot be ruled out

that when this inspection was being carried out, A.S.I. Satbir

Singh might not have been even aware that PW-8 S.I.

R.Y.Pandey had already apprehended the appellant and

recovered the weapon of offence from him.

19. We do not find any substance in this argument for the reason

that according to A.S.I. Satbir Singh, he reached at the spot of

occurrence pursuant to the receipt of a call at 3.24 p.m. vide

DD No.18. He has also stated that S.I. R.Y. Pandey also

reached at the spot who directed him to protect the spot of

occurrence and went to AIIMS Hospital. According to PW-8 S.I.

R.Y.Pandey before reaching at the spot of the occurrence, he

had apprehended the appellant while he was being chased by

the public and recovered the weapon of offence. If the story

of recovery of weapon of offence and apprehending of the

appellant is true, then it is highly improbable that S.I.

R.Y.Pandey might not have told A.S.I. Satbir Singh about those

facts. Thus, we find that the prosecution evidence regarding

the manner of arrest of the appellant and recovery of pistol

Ex.PW-8/1 from him is highly suspect.

20. It is the case of the prosecution that when the appellant was

apprehended by S.I. R.Y. Pandey (PW-8) and police party with

pistol Ex.PW-8/1 in his hand, he was being chased by public

persons. Despite that, there is no independent witness to

corroborate the prosecution version regarding the arrest of

the appellant and the recovery the pistol from his possession.

PW-8 R.Y. Pandey in his cross-examination has tried to explain

the absence of public witnesses to recovery of the pistol from

the possession of the appellant by stating that he tried to

record the statements of public persons who were chasing the

appellant, but none of them came forward to become a

witness. The above explanation given by the Investigating

Officer S.I. R.Y. Pandey is not acceptable because of the

reason that if those 10/15 persons had guts to chase the

appellant who was carrying a pistol in his hand, it is

unfathomable that they would decline to be the witnesses to

the recovery of the weapon of offence from the possession of

the appellant.

21. The result of the above discussion is that the prosecution

evidence pertaining to the recovery of weapon of offence from

the possession of the appellant is highly suspect, as such we

do not find it safe to rely upon the prosecution evidence and

find that the prosecution has failed to establish the recovery

of weapon of offence from the possession of the appellant

beyond reasonable doubt.

22. Since the purported eye witnesses including the parents of the

deceased child have not supported the case of the prosecution

and the prosecution story regarding the recovery of weapon of

offence from the possession of the appellant is also not

reliable, we find it difficult to sustain the conviction of the

appellant on the charge under Section 302 IPC. We

accordingly accept the appeal and set aside the impugned

judgment of conviction as also the consequent order on

sentence and acquit the appellant, giving him benefit of

doubt.

23. The appellant is in judicial custody. He be released forthwith,

if not required in any other case.

24. The appeal is disposed of.

AJIT BHARIHOKE, J.

MAY 06, 2010                                 A.K. SIKRI, J.
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