Mahesh Babu vs State
2011 Latest Caselaw 5919 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment delivered on 05.12.2011

+      CRL.A No. 258/1997


MAHESH BABU                                           ...     Appellant

                                           versus

STATE                                                 ...     Respondent

Advocates who appeared in this case:

For the Petitioner : Mr S.B. Dandapani For the Respondent : Ms Richa Kapoor

CORAM:

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

BADAR DURREZ AHMED (ORAL)

1. This appeal is directed against the judgment dated 28.05.1997 delivered by the learned Additional Sessions Judge, Delhi in Sessions case No. 29/1996 arising out of FIR No. 333/1992 of Police Station Railway Main Delhi (RMD) under section 302 IPC and Sessions case No. 46/1996 arising out of FIR no. 294/1992 of Police Station Lahori Gate under section 27 of the Arms Act, 1959. By virtue of the impugned judgment, the appellant was found guilty of having committed the offence punishable under section 302 IPC in respect of the murder of constable Raj Kishore of Delhi Police. The appellant was an officer of Uttar Pradesh police and he had used his service revolver for committing the aforesaid crime. As such, by virtue of the impugned judgment, the appellant was convicted under section 27 of the Arms Act as well.

2. The appeal is also directed against the order on sentence dated 29.05.1997 whereby the appellant has been sentenced to rigorous imprisonment for life and to pay a sum of Rs. 1000/- by way of fine under section 302 IPC, for having committed the murder of constable Raj Kishore. In respect of the unlawful use of the service revolver, the appellant was sentenced to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 1000/- . In default of the payment of fine he was required to undergo rigorous imprisonment for a further period of one year. The sentences were to run concurrently and the benefit of section 428 Cr. P.C. was given to the appellant.

3. The charges were framed on 06.04.1993. In the first instance the appellant was charged of having committed the murder of constable Raj Kishore on 09.11.1992 at about 4 a.m. near VIP Parking Road in an area of police station Railway Station Delhi Main, intentionally, by use of a revolver and thereby having committed the offence punishable under section 302 IPC. Additionally the appellant was also charged for having committed an offence under section 27 of the Arms Act.

4. The brief facts according to the prosecution are that in October 1992, the appellant was posted as Sub-Inspector, police station Sisa Mau, District Kanpur, Uttar Pradesh. On 30.10.1992 he left for 'mela' duty at Garh Mukteshwar. On the night intervening between 8/9.11.1992 he returned to Delhi en-route to Kanpur. At about 3.25 a.m. he went to the police station at Old Delhi railway station and asked the duty officer, PW-14 Head Constable Aashiq Ali, to arrange the reservation of a berth in the train to Kanpur. As per the prosecution, since the reservation counter was closed at that time, PW-14 Head Constable Aashiq Ali expressed his inability

to help the appellant and stated that he would arrange the same for him when the reservation counter opened in the morning. At about 4 a.m, PW-19 ASI Gauri Shankar, who was on patrol duty, saw the appellant abusing constable Raj Kishore (the deceased) near the gate of the first class waiting hall. The said constable Raj Kishore told PW-19 ASI Gauri Shankar that the appellant was annoyed because he could not comply with his request for arranging a railway berth on the train to Kanpur. It is further the case of the prosecution that PW-19 ASI Gauri Shankar tried to pacify the appellant. However, in the meanwhile, the constable Raj Kishore proceeded towards the bathroom. The appellant followed him and shortly thereafter PW-19 ASI Gauri Shankar heard shots being fired and he rushed to the spot and saw the appellant shooting at constable Raj Kishore from behind. Constable Raj Kishore fell down and the appellant ran towards the outer gate. It is the case of the prosecution that PW-13 Durga Prasad and some other persons chased him. However, he escaped. In the meanwhile PW-23 SI Chand Ram arrived at the spot and he along with PW-19 ASI Gauri Shankar took care of the deceased constable Raj Kishore who was subsequently taken to hospital where he was declared as having been brought dead.

5. At about the same time a patrolling party of police station Lahori Gate which was proceeding towards Katra Neel heard the sound of a fire arm shot which emanated from Bagh Diwar. They rushed in that direction, where they met a boy, PW-4 Shankar, who informed them that a man in uniform had fled toward Church Mission road after the firing. Thereafter the police party rushed towards Church Mission road and they saw a man in uniform turning towards Khari Bawli. Ultimately they found him standing on the balcony of shop No. 6541-48 Khari Bawli. According to the prosecution, the said man was the present appellant

Mahesh Babu and that he was holding a revolver and wearing a baniyan and pant. He was threatening to open fire if anybody advanced towards him. Thereafter he was apprehended. The revolver was unloaded and it was found to contain five empty cartridge cases and one live cartridge. The revolver and ammunition and the clothes of the appellant were seized and the aforesaid FIR No. 294/1992 was registered at police station Lahori Gate.

6. Thereafter the investigation ensued and after completion of the same the charge sheet was filed. The charges were framed and the appellant having pleaded not guilty to the charges, the matter proceeded for trial. The prosecution examined as many as 31 witnesses in support of its case. Thereafter the statement of the appellant Mahesh Babu was recorded under section 313 Cr.P.C. One defence witness B.N. Sehgal, Ex. Director, CBI, was examined on behalf of the appellant. After hearing the arguments and going through the case in detail, the learned Additional Sessions Judge delivered the impugned judgment and passed the impugned order on sentence.

7. The learned counsel appearing on behalf of the appellant, first of all, sought to argue that the appellant has been wrongly convicted. However, he laid stress on his alternative argument that the case of the appellant fell within Exception 4 to section 300 IPC and therefore according to the learned counsel for the appellant, the appellant ought to have been convicted under section 304 Part II IPC and not under section 302 IPC. Consequently, he pleaded that the appeal should be allowed in part and the sentence be reduced, commensurate with the offence as described under section 304 Part II IPC.

8. On the other hand, Ms. Richa Kapoor, appearing on behalf of the State submitted that this was an open and shut case insofar as the prosecution is concerned. First of all, there is an eye witness in the form of PW-19 ASI Gauri Shankar who has been supported by PW-13 Durga Prasad and other witnesses including PW-23 SI Chand Ram. She also submitted that PW-14 Head Constable Aashiq Ali also brought out the case of the prosecution inasmuch as he was the first person from the Delhi Police with whom the appellant had come in contact with at Old Delhi railway station, when he made a request for a reservation on the train bound for Kanpur. Apart from this, Ms Kapoor submitted that the ballistic report clearly indicated that the bullets found in the body of the deceased clearly matched the service revolver belonging to the appellant. She also submitted that this was a case of intentional murder and would definitely not be one which fell within any of the Exceptions set out in section 300 IPC. She submitted that the appellant had fired not once but four times. She referred to the testimony of PW-5 Dr. L.K. Barua, who conducted the postmortem examination on the dead body of the deceased, who indicated the following four injuries found on external examination:-

"1. One oval punctured wound was seen on the right angle of the chest 17 c.m. below the right axillary pit in the mid axillary line and the size of the injury was 1" x 1/2 "x ?. There was no tattooing, blackening, or charring around the wound. The margin of the wound was inverted and abraded. (2) One rounded punctured wound was seen 8" below the right shoulder top on the back side of the chest of size 0.9 c.m. This injury was placed 3" lateral to the mid-line. The margins of this wound were inverted and abraded. There was no charring, blackening, or tattooing around the wound. (3) one rounded punctured wound was seen on the back of chest 11" below the nap of neck and slightly on the right side to the back bone and the size of injury was 0.9 c.m. The

margins of the wound were inverted and abraded. There was no blackening charring around the wound. (4) One oval punctured wound was shown on the medical aspect of right thigh 3" below scrotum of size 1.3 c.m. x 1 c.m. x ?. The margins of this wound was inverted and abraded. There was no charring blackening or tattooing around the wound. No other external injury was seen on the body of the deceased.

The opinion of the Dr. Barua was that all the injuries mentioned in the post-

mortem were ante mortem in nature and caused by fire arm projectiles fired from a distant range. It was also opined that all the injuries found on the dead body of the deceased were the entry wounds of the fire arm projectiles and were individually sufficient to cause death in the ordinary course of nature. The detailed postmortem examination report has been exhibited as PW-5/A. Apart from this, Ms Kapoor also submitted that the issuance of the service revolver and the bullets have also been clearly established by virtue of the testimony of PW-11 Head Constable Ram Swaroop Gautam of Uttar Pradesh police who was posted as Head Arms Moharar, Kanpur, Uttar Pradesh.

9. Having considered the arguments advanced by learned counsel for parties and having gone through the testimonies of the witnesses and other exhibited documents we find that the case against the appellant stands clearly established both in respect of the offence punishable under section 302 IPC as well as under the Arms Act. PW-14 Head Constable Aashiq Ali has stated that on 09.11.1992 he was posted as duty officer at police station Old Delhi Railway Station Main. At about 3.25 a.m., the appellant, whom he identified in court, came to the duty room and asked him to arrange a reservation for a seat on the train to Kanpur. The appellant was said to be in uniform and the name plate was affixed on his shirt and he had a revolver in his holster. According to PW-14 Head Constable Aashiq Ali

he told the appellant that it was not possible to arrange a reservation at that time and that the reservation counter would open only at 8 a.m. and only then would he be in a position to help him. Thereupon, the appellant retorted and he said that in Uttar Pradesh he could arrange the reservation at any time and that PW-14 Head Constable Aashiq Ali was not co-operating with him. Saying this, the appellant went away. PW-14 Head Constable Aashiq Ali stated that at about 4 a.m. he heard gun shots and he also heard somebody shouting "pakro-pakro". He rushed out of the 'duty officer's room' and saw that PW-19 ASI Gauri Shankar was holding constable Raj Kishore in his arms and that constable Raj Kishore was bleeding. PW-23 SI Chand Ram was also seen rushing to the spot.

10. This part of the testimony of PW-14 Head Constable Aashiq Ali has not been disturbed in the course of cross examination. It clearly establishes the fact that the appellant had gone to the duty room and had asked PW-14 Head Constable Aashiq Ali to arrange for a reservation for him on the train to Kanpur. Since the said PW-14 Head Constable Aashiq Ali had expressed his inability to make the said arrangement, the appellant was displeased and said that in Uttar Pradesh they could arrange for the reservation at any time. He alleged that PW-14 Head Constable Aashiq Ali was not co-operating with him and thereafter he left in a huff.

11. PW-19 ASI Gauri Shankar, who is the crucial witness, has stated that on 09.11.1992 at about 3.50 a.m. when he reached the first class passenger hall in the course of patrolling duty he met constable Raj Kishore of Delhi Police as also the appellant Mahesh Babu at the gate of the first class passenger hall. The appellant was in the uniform of a Sub-Inspector of Uttar Pradesh police and he was also wearing a name plate indicating his name as Mahesh Babu. He identified the

appellant in court. He further stated in his cross examination that the appellant was telling constable Raj Kishore, "saale tum sipahi ho, tum nahi sudhar saktey" (You are a police constable and you cannot be reformed). PW-19 ASI Gauri Shankar inquired as to what was the matter and thereupon constable Raj Kishore told him that the appellant was insisting on securing a reservation for Kanpur and that he had explained to him that the reservation counter would open in the morning. The appellant told PW-19 ASI Gauri Shankar that in Uttar Pradesh a reservation could be arranged at any time and that Delhi Police was not co- operating with him. At that point of time constable Raj Kishore also told PW-19 ASI Gauri Shankar that he was abusing him and continued to abuse him and constable Raj Kishore requested PW-19 ASI Gauri Shankar to persuade the appellant to see reason and saying this he went towards the bathroom. PW 19 ASI Gauri Shankar tried to reason with the appellant but the appellant followed constable Raj Kishore. At about 4 a.m. he heard the sound of a gunshot coming from the side of the police station and he immediately rushed to the spot and saw the appellant holding a revolver in his hand and firing at constable Raj Kishore from behind. PW-19 ASI Gauri Shankar raised an alarm by shouting "pakro- pakro". On hearing the alarm, the appellant ran towards the outer gate. PW-13 Durga Prasad and some other TSR drivers chased the appellant while PW-19 ASI Gauri Shankar took care of constable Raj Kishore who was lying injured at a distance of about ten paces from the police station. In the meanwhile, PW-23 SI Chand Ram also arrived at the spot and the two of them, PW-19 ASI Gauri Shankar and PW-23 SI Chand Ram, removed the injured constable Raj Kishore to Hindu Rao Hospital where he was declared dead by the doctor. This testimony of PW-19 ASI Gauri Shankar has not been shaken in cross examination. In fact it has been corroborated by PW-23 SI Chand Ram and PW-13 Durga Prasad.

12. From the aforesaid evidence it is absolutely clear that the prosecution has been able to establish its case beyond reasonable doubt that the appellant has caused the death of the deceased constable Raj Kishore of Delhi Police. We have already adverted to the fact that the ballistic report is also in favour of the prosecution.

13. The only question that remains to be answered is whether the appellant's case could fall within any of the exceptions under section 300 IPC. The learned counsel for the appellant took the alternative plea that the case of the appellant fell within Exception 4. Exception 4 reads as under:-

"Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

In the instant case, we find that there is no evidence of there being any sudden fight or the offence having been committed in a heat of passion upon a sudden quarrel. Therefore, the necessary ingredients for invoking exception 4 are not established. We may also point out that it is not a case of the appellant having fired only once but of having fired four shots. One of the shots hit the deceased on the right side. Two shots were hit on the back and one shot on the right thigh. It is absolutely clear that the appellant wanted to finish constable Raj Kishore and he succeeded in doing so.

14. In view of the foregoing, the impugned judgment and the order on sentence are upheld and the appeal is dismissed. The appellant be taken into custody. The file be sent to the concerned trial court for compliance/ appropriate proceedings to ensure that the appellant is taken into custody to serve out the rest of his sentence.

The appeal is dismissed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J DECEMBER 05,2011 kb