Delhi High Court

Tunda Ram Dagar vs State on 28 March, 2011

Author: G.P. Mittal

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Reserved on: 18th March, 2011
                                               Date of Decision: 28th March, 2011
+    CRL. A. 44/1998

        TUNDA RAM DAGAR                                    ...APPELLANT
                 Through:             Mr. K.B. Andley, Senior Advocate with
                                      Mr. M.L. Yadav, Advocate

                                      Versus
        STATE                                      ...RESPONDENT
                       Through:       Mr. Lovkesh Sawhney, APP for the State.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE G.P.MITTAL
      1. Whether reporters of local papers may be
         allowed to see the Order?                                  Yes
      2. To be referred to the Reporter or not?                     Yes
      3. Whether the Order should be reported
         in the Digest?                                             Yes
                               JUDGMENT

G.P. MITTAL, J.

1. Appellant Tunda Ram challenges the judgment dated 12.01.1998 and the order on sentence dated 15.01.1998, whereby he was held guilty of the commission of the offence punishable under Section 302 of the Indian Penal Code („IPC‟) and sentenced to undergo life imprisonment and to pay fine of `1000/-. In default of payment of fine, the Appellant was sentenced to further undergo Rigorous Imprisonment for one month.

2. This is an unfortunate case where deceased Constable C.H. Demudu Babu met his death at the hands of his colleague Constable Tunda Ram Dagar (both working together in CISF) on a small issue of switching on/off the lights.

3. According to the prosecution on 13.07.1992 at about 11:00 P.M., there was a quarrel with a resultant scuffle between the Appellant and the deceased on the question of switching on/off of the light. Both were

quartered in the same barrack. PW-2 Head Constable Mohd. Abdul Khawaja intervened, pacified and separated them (the Appellant and the deceased). The quarrel was reported to the Duty Officer Inspector B.N. Kharakwal, who visited the barrack to gain firsthand knowledge of the incident. But, both the Appellant and the deceased informed him i.e. Inspector B.N. Kharakwal (PW-8) that there was no quarrel between them. He, therefore, left.

4. On the next morning i.e. 14.07.1992 at about 4:32 A.M. the Appellant came to the Kot (arms store) for issuance of ammunition to him for his duty in „A‟ shift. PW-11 accordingly issued to him one rifle 7.62 mm bolt action butt no.58 and 50 rounds of cartridges and made an entry Ex.PW- 11/A, at Serial no.1 in the register. At about 4:45 A.M. on the same date, PW-2 Head Constable Mohd. Abdul Khawaja who used to stay in barrack No.3 (i.e. the same barrack in which the Appellant and the deceased had their cots adjacent to each other) while coming out of the barrack, to get ready for the shift duty commencing from 5:00 A.M., noticed the Appellant entering the barrack from the Eastern Gate, with a rifle in his hand. He saw the Appellant placing the barrel of his rifle on the left of the deceased‟s chest and firing a bullet. Constable C.H. Demudu Babu (the deceased) screamed exclaiming the words "margaya -margaya". The Appellant ran out from the same gate with his rifle. PW-2 and PW-1 ran out of the barrack from the middle gate and caught hold of the Appellant along with his rifle in the basket ball court just outside the barrack. Constable K.Y. Reddy (PW-7) and Constable L.M.V. Apparao (PW-6) lifted the injured. He, however, breathed his last before he could be taken to the hospital.

5. Inspector D.V.Singh (PW-22) who was working as Sub Inspector in Police Station Punjabi Bagh on the date of the occurrence received DD No.24-A (Ex.PW-4/C) regarding the incident. He along with Constable Randhir Singh and Head Constable Jeet Singh reached the spot i.e. CISF Unit,

Shakurbasti. PW-2 Head Constable Mohd. Abdul Khawaja showed him the dead body of the deceased lying on a cot near the truck. He recorded statement Ex.PW-2/A of Head Constable Mohd. Abdul Khawaja; made his endorsement Ex.PW-4/A and sent the rukka through Constable Randhir Singh to the Police Station on the basis of which formal FIR Ex.PW-4/B was recorded.

6. Inspector D.V. Singh inspected the spot, prepared site plan Ex.PW-22/A with correct marginal notes. He called the crime team and police photographer. Head Constable Mohd. Abdul Khawaja (PW-2) also produced the service rifle of the Appellant, the bandolier containing 45 live cartridges, one magazine containing four live cartridges and one fired empty cartridge. All these articles were seized by memo Ex.PW-14/A. Four live cartridges and one fired empty cartridge were taken out by Inspector D.V.Singh from the magazine of the Appellant‟s rifle. The fired empty cartridge was kept in a match box, whereas four live cartridges were kept in the charger and then in the bandolier, which already contained 45 live cartridges. Thus, total 49 live cartridges and bandolier were sealed by PW-22 with the seal of „DVS‟. The service rifle and the magazine belonging to the Appellant were converted into a separate parcel and sealed with the seal of „DVS‟. The match box containing the fired empty cartridge was separately sealed with the seal of „DVS‟. PW-22 also seized the bullet lead from the iron box belonging to the deceased by memo Ex.PW-2/E.

7. The Appellant was arrested and his personal search conducted by memo Ex.PW-14/B. Inquest proceedings containing inquest papers Ex.PW- 22/C-1 to C-5 (collectively) was conducted by PW-22.

8. Autopsy on the dead body of deceased Constable C.H. Demudu Babu was conducted by Dr. L.T.Ramani (PW-19). DR. L.T. Ramani found the following two injuries on the dead body of the deceased:-

"1. A rounded punctured wound of 0.5cm diameter on the left side front of chest, 3.5 cm above the left nipple. There was a collor of abrasion 2mm wide along medial border of the wound and was absent on upper pouter part. Wounds margins were inverted. There was evidence of tattooing around more medially over the upper part of sternum.

2. Laceration on left side back of chest over scapular area almost at the same level as injury No.1. Size 4cm x 2cm x? Skin margin of the wound were iverted, no evidence of blackening or tattooing seen around it".

9. The injuries on the person of the deceased were opined to be "ante mortem caused by firearm projectile, fired from near range. Injury No.1 was the entry wound and injury No.2 was the exit wound of the bullet. Injury No.1 was further opined to be sufficient to cause death in the ordinary course of nature."

10. Scientific investigation too was carried out, by summoning crime team at the spot which gave report Ex.PW-22/B.

11. Dr. B. Moitra, Senior Scientific Officer, Grade-I cum Assistant Chemical Examiner, CFSL, CBI, New Delhi examined the 7.62 mm rifle, one 7.62 mm cartridge case and one 7.62 mm damaged bullet. The rifle Ex.P-3 was opined to be in working order. The Assistant Chemical Examiner whose report is admissible under Section 293 of the Code of Criminal Procedure, further opined that the 7.62 mm cartridge case sent in parcel No.2 and the 7.62 mm damaged bullet of parcel no.3 was fired from 7.62 mm rifle Ex.P-3.

12. The Appellant pleaded not guilty to the charge for the offence punishable under Section 302 IPC against him.

13. In order to establish its case, the prosecution examined 22 witnesses. PW-

1 Lance Naik Bachan Ram, PW-2 Head Constable Mohd. Abdul Khawaja, PW-6 Constable L.M.V. Apparao, PW-7 Constable K.Y. Reddy, PW-8

Inspector B.N.Kahrakwal of CISF, PW-11 HC Kumerdin , PW-17 Dr. L.T. Ramani, PW-21 Inspector Surinder Kumar (IO) and PW-22 Inspector D.V. Singh (second IO) are important witnesses examined by the prosecution.

14. On close of prosecution evidence, the Appellant was examined under Section 313 Cr.P.C. to enable him to explain the incriminating evidence led against him. The Appellant denied that any quarrel had taken place between him and the deceased on 13.07.1992. He, however, admitted that he and the deceased did assure PW-8 that no quarrel had taken place. The Appellant showed his ignorance, if entry Ex.PW-8/A had been recorded in the Roznamcha vide GD No.572 at 12:15 A.M. regarding the quarrel. The Appellant denied that on 14.07.1992 at about 4:45 A.M. he was seen emerging from Barrack no.3 with his service rifle Ex.P-3 in his hand by PWs 1 and 2 and was apprehended by them. He even denied that the rifle Ex.P-3 of 7.62 mm bolt action and 50 rounds of cartridges were issued to him by PW-11 HC Kumerdin and a contemporaneous entry Ex.PW-11/A was made in the register. The Appellant took up the plea that he was innocent. He stated that it was PW-2 who was responsible for the alleged occurrence. He (PW-2) had fired a shot at the deceased and he (the Appellant) was implicated falsely in this case at the instance of PW-2 in connivance with the other PWs. The Appellant declined to produce any evidence in defence.

15. Though the prosecution version was that PWs 1 and 2 had seen the Appellant opening fire at the deceased while the deceased was asleep, however, neither PWs 1 and 2 nor any other witness stated a word during evidence that the Appellant was seen firing any shot at the deceased. PWs 1, 6 and 7 did depose about the circumstances in which the Appellant was apprehended by PWs 1 and 2. Though, PWs 1, 6 and 7 did not support the prosecution version on certain aspects of the case, yet, the Trial Court, believing their version coupled with the testimony of PW-8 regarding the

altercation, the previous night (supported by DD Ex.PW-8/A), issuance of the rifle Ex.P-3 along with 50 rounds, post mortem report Ex.PW-19/A and the report of the Senior Scientific Officer Ex.PX that the bullet was fired from the rifle Ex.P-3 (issued to the Appellant), concluded that the prosecution case has been established against the Appellant. Thus, he was held guilty, convicted and sentenced.

16. We have heard Mr. K.B. Andely, Senior Advocate assisted by Mr. M.L.

Yadav counsel for the Appellant and Mr. Lovkesh Sawhney, learned Additional Public Prosecutor for the State.

17. The incident can be divided into two parts. First, an altercation took place between the Appellant and the deceased on the night of 13.07.1992 resulting into hurling of abuses and scuffle. Second, in the wee hours of 14.07.1992, the bullet was fired by the Appellant on the chest of the deceased from a very close range while he (the deceased) was asleep.

18. PWs 1,2,6,7 and 8 are relevant on this aspect.

19. PW-1 deposed that he had heard some altercation between the Appellant and the deceased on the issue of switching on/off of the light. But, he (PW-1) himself was not present. Therefore, his testimony does not help the prosecution, on this aspect.

20. PW-2 Head Constable Mohd. Abdul Khawaja deposed that the Appellant and the deceased had a quarrel on the night of 13.07.1992 on the matter of switching on/off of the light. He testified that the duty officer Inspector B.N.Kharakwal intervened and pacified the Appellant and the deceased. The Appellant and the deceased told them that they did not have any dispute. The Appellant, however, could not avail the opportunity to cross examine this witness as he had expired before he could be called for his cross examination.

21. PW-6 Constable L.M.V. Apparao claimed that he was not present at the time of the alleged altercation and, therefore, his testimony is of no help.

22. PW-7 Constable K.Y.Reddy did testify in his examination-in-chief about an altercation between the Appellant and the deceased and supported the version of PW-2. However, in his cross-examination this witness deposed that the actual quarrel between the deceased and the Appellant did not take place in his presence.

23. PW-8 Inspector B.N. Kharakwal testified that he was on duty as a duty officer from 7:00 A.M. on 13.07.1992 to 7:00 A.M. on 14.07.1992. He knew the Appellant and the deceased who were staying in barrack no.3. On 13.07.1992 he was on night checking. He received information from the control room about altercation which took place in the lines. He, along with the duty officer from the control room went to Barrack no.3. He was apprised that some altercation had taken place between the Appellant and the deceased over the issue of switching on/off of the light in the barrack. He was further informed that some force was used. He made enquiries from both of them (the Appellant and the deceased). They separately informed him that they did not have any quarrel. The Appellant and the deceased assured him that they had no ill-will against each other, or any inter se quarrel. The witness also proved a GD entry No. 572, Ex.PW-8/A recorded in the control room by PW-8 after his return from barrack no.3 where all these facts were recorded. During cross examination PW-8 was confronted with his statement recorded under Section 161 Cr.P.C., to show that he had made certain improvements in his deposition in the Court. The same, however, is not of any avail in view of the fact that the testimony of PW-8 is corroborated from Ex.PW-8/A regarding this quarrel. It is specifically stated in Ex.PW-8/A that though the Appellant and the deceased had denied about the quarrel, yet others in the barrack had confirmed the same. Thus, from the testimony of PW-8 which is duly corroborated by the entry Ex.PW-8/A, it can safely be concluded that

there was an altercation between the Appellant and the deceased on the issue of light being switched on/off.

24. In respect of the testimony of PW-2 who had expired before his cross-

examination could be recorded, the Trial Court held that the same is not admissible in evidence. We are, however, of the view that the evidence of a witness, who dies before his cross-examination is recorded, is admissible in evidence. But, the weight to be attached to such evidence would vary and depend upon the circumstances of each case. We are supported in this view by a judgment of our own High Court in 'Krishan Dayal v. Chanu Ram, ILR (1969) 1 Del 1090, where after analyzing the judgment of Madras High Court in Maharaja of Kolhapur v. S. Sundaram Ayyar & Ors., AIR 1925 Mad. 497 and a Division Bench judgment of Allahabad High Court in Ahmad Ali v. Joti Prasad, AIR 1944 All 188, it was held as under:-

".................I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that

as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity."

25. This view is also supported by 'Srikishun Jhunjhunwala v. Emperor, AIR 1946 Patna 384 where it was held that where a witness dies after Examination-in-Chief and before cross-examination, the evidence is admissible. The weight to be attached to such evidence however should depend upon the facts and circumstances of each case.

26. The Appellant has not alleged any animosity against PW-2 in the cross-

examination of all the witnesses of the occurrence i.e. PWs 1,6 and 7 as also PW-8 Inspector B.N. Kharakwal, who was posted in the CISF at the time of the incident. We are of the opinion that the testimony of PW-2 regarding the altercation between the Appellant and the deceased on the night of 13.07.1992 can be used for the purpose of corroboration of the evidence to which we have adverted earlier. This is inspite of the fact that we are of the view that even without corroboration from the testimony of PW-2, the evidence is sufficient to conclude that there was an altercation between the Appellant and the deceased on the night of 13.07.1992.

ACTUAL INCIDENT

27. According to the prosecution version, PW-1, PW-2 and PW-7 had seen the appellant firing the shot by placing the rifle on the deceased‟s chest. None of them supported the prosecution on this aspect. We shall refer to the testimony of each of them to find out if from the circumstances a

conclusion can be drawn that it was the Appellant who had fired upon the deceased.

28. PW-1 Lance Naik Bachan Ram testified that on 14.07.1992 at about 4:45 A.M. he was sitting on a cot. The light was switched on. He was preparing his dress when he suddenly heard the noise of a blast. He saw the Appellant coming out of the door with his service rifle in his hand. He along with PW-2 ran to apprehend the Appellant along with his rifle and took out the magazine from the rifle. As stated earlier, the witness during cross-examination by learned APP denied having seen the actual incident of firing. The examination-in-chief of the witness was recorded on 16.02.1993 and while this witness was cross-examined on 27.07.1995 he tried to change his statement.

29. It has been urged by the learned senior counsel for the Appellant that this witness cannot be relied upon as he did not stand the test of cross- examination. We do not agree. Although, this witness admitted in his cross-examination that he had not witnessed the incident on 14.07.1992, this admission of PW-1 has to be read in relation to the prosecution version according to which he was a witness of the actual incident of firing by the Appellant on the deceased. No question was put during cross-examination that PW-1 did not hear the noise of any blast nor did he notice the Appellant coming out of the door with his service rifle in his hand and his apprehension by PWs 1 and 2.

30. PW-6 Constable L.M.V. Apparao did not support the prosecution version about the identity of the person who ran out of the barrack. But, his testimony does show that he did hear the sound of a blast. On account of hearing the sound, he woke up and peeped outside the gate of the barrack and saw one man running with the rifle. He deposed that there was insufficient light at that time and therefore, he could not identify the person running with the rifle. He found that Head Constable Mohd. Abdul

Khawaja and Lance Naik Bachan Ram (PW-2 and PW-1) had caught hold of that person and pinned him to the ground. He further deposed that in the barrack, he found the deceased tossing up in the bed while putting his hand on his chest. He went near him and saw him bleeding profusely.

31. Not even a single question was put in cross-examination to this witness.

Thus, this witness corroborated the testimony of PWs 1 and 2 except about the identity of the person who ran with the rifle.

32. PW-7 Constable K.Y. Reddy also supported the substratum of prosecution version regarding hearing of the sound of firing on 14.07.1992 at about 4:30 A.M.; the deceased struggling for life while lying in the bed and PWs 1 and 2 having caught hold of the Appellant along with his rifle.

33. Nothing could be elicited in the cross-examination of this witness to discredit his testimony. He was merely given a suggestion that he had deposed falsely against the Appellant as the deceased was his batch-mate and belonged to his District.

34. Thus, the testimonies of PWs 1,6 and 7 establish that there was a sound of firing on 14.07.1992 at about 4:30/4:45 A.M. and that the Appellant was caught with a rifle just outside the barrack, whereas, the deceased was found writhing in pain with a bullet injury on his cot. On the basis of Krishan Dayal (supra), in our view, the testimony of PW-2 Head Constable Mohd. Abdul Khawaja can also be used for the purpose of corroboration to the testimony of other witnesses, though he could not be cross examined because of his death.

35. From the testimony of PW-11 Head Constable Kumerdin it is established that the rifle 7.62 mm, bolt action, butt No.58 (Ex.P-3) was issued to the Appellant. He was further issued 50 rounds of cartridges. Forty nine rounds along with the rifle were taken from him by PW-2 and handed over to PW-22 IO of the case. As per report Ex. PX of Dr. B. Moitra, Senior

Scientific Officer, Grade-I cum Assistant Chemical Examiner, CFSL, CBI, New Delhi, the fired cartridge was found to be issued from the 7.62 mm rifle Ex.P-3.

36. Thus, though the prosecution failed to produce any evidence that any witness had seen the Appellant firing a gun shot on the deceased, yet, the following circumstances are established:-

(a) Rifle Ex.P-3 was issued to the Appellant along with 50 rounds of 7.62 mm cartridges on 14.07.1992 at 4:32 A.M. by PW-11 vide entry Ex.PW-11/A;

(b) the Appellant was seen running outside the barrack No.3 by PWs 1 and 2;

(d) the rifle and the 49 cartridges were taken from him by PW-2 and handed over to the IO; at that very time;

(e) the deceased was found to have suffered the gun shot injury while lying on his cot;

(f) the empty cartridge found in the magazine corresponds with the cartridges issued to the Appellant. In other words, one cartridge was fired on the deceased from the rifle out of the 50 cartridges issued to the Appellant.

37. It has been urged by the learned senior counsel for the Appellant that some other person and perhaps PW-2 could have fired from the rifle issued to the Appellant. Of course, the Appellant did not have any opportunity to cross-examine PW-2 on this aspect but no such suggestion was given to any of the PWs (PWs 1,2, 6 and 7) examined with regard to the apprehension of the Appellant immediately after firing of the gunshot. It is very unfortunate that it was much after the demise of PW-2 when the Appellant was examined under Section 313 Cr.P.C. where the Appellant

came out with the plea that it was PW-2 Head Constable Mohd. Abdul Khawaja who had fired the shot at the deceased. But, there is no explanation from the Appellant as to how the rifle and the cartridges issued to the Appellant reached PW-2. It is, therefore, clear that the Appellant after the death of PW-2 wanted to make capital out of it and raised a false plea without any basis.

38. It is true that an accused is not expected to prove his defence through standard of proof expected by the prosecution, yet, he has to provide a reasonable explanation for his conduct, if the basic ingredients of the charged offence are made out, which the Appellant has failed to do in the face of testimony of PW-11 supported by the entry Ex.PW-11/A.

39. When the prosecution case rests upon circumstantial evidence, the circumstances unerringly should be conclusively proved and point to the guilt of the accused. The circumstances so proved should not be compatible with any hypothesis except the guilt of the accused. We would like to extract five principles from the often quoted report on circumstantial evidence by the Supreme Court in Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, as under:-

"1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established,

2. All the facts so established should be consistent only with the hypothesis of the guilt of the accused.

3. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

4. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and

5. It must be such as to show that within all human probability the act must have been done by the accused."

40. In State of U.P. v. Ashok Kumar Srivastava, 1992 (2) SCC 86, it was held as under:-

"9........The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise".

41. In this case, the circumstances conclusively and unerringly point towards the guilt of the accused. The circumstances clearly show that it was the Appellant and the Appellant alone who had opened fire at the deceased resulting in his instantaneous death.

42. The prosecution as stated by us earlier has also established the motive which though was trivial i.e. the altercation on the previous night between the Appellant and the deceased on the switching on/off of the light in the barrack.

43. We do not find any error or infirmity in the impugned judgment and order.

The Appeal is devoid of any merit. It is bound to fail and is accordingly dismissed. The Appellant shall surrender before the Trial Court on 18 th April, 2011 to serve the balance of his sentence. The Registry shall transmit the Trial Court records and this judgment, forthwith, to ensure compliance.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 28, 2011 vk