Delhi High Court

Vijay Kumar Shukla vs State on 17 December, 2012

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 20th September, 2012
                                     DECIDED ON : 17th December, 2012

+                               CRL.A.No.912/2009

       VIJAY KUMAR SHUKLA                       ..... Appellant
                    Through : Mr.Vishal Gosain, Advocate.

                                Versus

       STATE                                               ..... Respondent
                                Through : Ms.Richa Kapoor, APP for the State.


+                               CRL.A.No.839/2009

       RAJESH RAJA                                         ..... Appellant
                                Through : Mr.D.C.Mathur, Sr.Advocate with
                                          Mr.Satish Tamta and Ms.Nisha
                                          Narayanan, Advocates.

                                Versus

       THE STATE                                           ..... Respondent
                                Through : Ms.Richa Kapoor, APP for the State.

        CORAM:
        MR. JUSTICE SANJIV KHANNA
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Vijay Kumar Shukla (A-1) and Rajesh Raja (A-2) impugn

judgment in Sessions Case No.09/2008 arising out of FIR

No.48/2001, Police Station Rajender Nagar by which they were convicted

for committing offences punishable under Sections 302/186/34 IPC; under

Section 68 Excise Act and under Section 25/27 Arms Act and sentenced

to undergo imprisonment for life with fine.

2. On 04.02.2001, Const.Krishan Kumar and Const.Kadam

Ganga Dhar were on patrolling duty on motorcycle bearing No.DL-1SM-

0597 (TR-33) from 09.00 A.M. to 09.00 P.M. Const.Krishan Kumar was

the driver and Const.Kadam Ganga Dhar was pillion rider. At about 07.30

P.M., at the corner of block No.27, they found a Maruti car in which two

boys were consuming liquor at a public place. Const.Krishan Kumar, in

the discharge of his official duties, went to check the car. He made

enquiries from the driver and asked him to show his licence. He also took

out a black colour bag from the car. On that, one of the boys (A-2)

exhorted A-1 to fire at Const.Krishan Kumar as they were caught. A-1,

thereafter, fired at him (Const.Krishan Kumar) twice on his chest and the

assailants fled the spot. Kadam Ganga Dhar took Krishan Kumar to Ganga

Ram Hospital where he was declared dead on arrival.

3. Insp.Mahipal Singh with staff reached Ganga Ram Hospital

and recorded Kadam Ganga Dhar's statement. He prepared rukka and

lodged First Information Report. He with his staff including Kadam

Ganga Dhar went to the spot from the hospital and conducted necessary

legal proceedings. Crime team and photographer were summoned. On

checking the bag, it was found containing .315 bore country-made loaded

pistol, four live cartridges (one of .315 bore and other three of .38 bore)

etc. Two vouchers/receipts dated 29.11.1999 and 30.11.1999 bearing the

name and address of Moolchand Sharma Building Material Supplier, Near

Vikas Furnitures, Sector-22, Noida were also recovered from the spot and

seized. Inquest proceedings were conducted and the body was sent for

post-mortem examination. Dr.P.C.Dixit (PW-9) conducted post-mortem

examination of the body on 05.02.2001.

4. The police on the strength of the vouchers/ building material

receipts (Ex.P1 and P2) went to Mool Chand Sharma and contacted

Richwan Singh. A-2 was produced at Police Station, Sector-20, Noida

from where he absconded and was arrested on 19.02.2001. A revolver

make Smith and Wesson with four cartridges was recovered from his

possession. A-1 was arrested on 14.02.2001. Applications were moved for

Test Identification Proceedings (for short TIP) but A-1 and A-2 declined

to participate in it. During the course of investigation, the exhibits

including the revolver, pistol, cartridges were sent to Forensic Science

Laboratory and reports were collected. The Investigating Officer recorded

statements of witnesses conversant with the facts and after completion of

the investigation submitted a charge-sheet against A-1 and A-2 for

committing the offences described previously. The accused were duly

charged and brought to trial. The prosecution examined forty-two

witnesses to prove charges against the accused. They pleaded false

implication in 313 Cr.P.C. statements. A-1 claimed that he was lifted from

Greater Noida-53B, Gama Sector-G2 on 12.02.2001 where he used to stay

with his brother. A-2 stated that he was lifted from Chandigarh in

February 2001. Revolver of his relative Kawaljit Singh was stolen in 1996

and was recovered from Delhi. Thereafter, he was falsely implicated in

this case.

5. Learned counsel for the appellants assailed the findings of the

Trial Court and urged that it did not appreciate the evidence in true

perspective. PW-4 (Const.Kadam Ganga Dhar) in his original statement

Ex.PW-4/A did not name and assign any role to A-2. Supplementary

statement at variance with FIR was introduced to secure conviction of A-

2. PW-4's presence at the spot was doubtful as he did not give description

of the assailants in his statement Ex.PW-4/A. His conduct as a police

officer was unreasonable and he did not attempt to apprehend the culprits

or flash wireless message. The service revolver was not used to protect

Const.Krishan Kumar. It was unbelievable that he could hear the

conversion/exhortation between A-1 and A-2 while standing at a long

distance from the car. No damage was caused to the motorcycle and its

mechanical inspection was not carried out. The vouchers Ex.P1 and P2

lacked in material particulars and were fabricated afterwards in

connivance with PW-3 (Mool Chand Sharma). PW-20 (Richwan Singh)

did not support the prosecution and turned hostile. A-1's finger prints

were not detected on the car. No finger prints of the accused were found

on the articles recovered at the spot on 04.02.2001. No independent public

witness was associated at the time of arrest of the accused. Parallel

investigation was carried out by Insp.K.P.Kukreti without any

authorisation. The Trial Court ignored vital discrepancies and

contradictions which emerged in the testimonies of the prosecution

witnesses. A-2 had no nexus with the revolver used in the crime. The

police did not produce any evidence to suggest how the revolver reached

to A-1. A-1 cannot be held guilty of having used the revolver in the

absence of any evidence of transfer of weapon to him. It was not

recovered subsequently from the possession of A-1. PW-4 (Kadam Ganga

Dhar) was not a reliable witness as he had made material improvements in

his deposition before the Court.

6. Learned APP supported the findings of the Trial Court and

urged that it does not call for interference. PW-4 (Kadam Ganga Dhar)

witnessed the occurrence and identified both the assailants in the Court.

On the exhortation of A-2, A-1 fired twice on the chest of the deceased

which proved fatal. Adverse inference is to be drawn against the accused

for refusal to join TIP. The revolver in possession of A-2 was used by A-1

to fire at Const.Krishan Kumar. A-2 was a previous convict.

7. We have considered the submissions of the parties and have

examined the Trial Court records. We have also gone through the written

submissions of the parties on record and have examined the citations

relied on by them.

8. Homicidal death of Constable Krishan Kumar is not under

challenge. PW-9 (Dr.P.C.Dixit) conducted post-mortem examination of

the body on 05.02.2001 and proved report Ex.PW-9/A. Two external

injuries (one firearm entry wound 1.2X1.1 cm over right side front of

chest and another 1.1X1.1cm over and outer part of left side front of

chest) were found. Cause of death was haemorrhage and shock

consequent upon firearm injuries to the lungs, liver and colon via injuries

No.1 & 2. The injuries were ante-mortem, recent and caused by firearm

(rifled) ammunition discharged from distant range. Injury Nos.1 and 2

were sufficient to cause death in the ordinary course of nature individually

and collectively. Undoubtedly, it is a case of culpable homicide.

9. Constable Krishan Kumar and PW-4 (Kadam Ganga Dhar)

were on official duty for patrolling on motorcycle No.DL 1S 597 (TR-33)

from 9:00 A.M. to 9:00 P.M. on 4th February, 2001 in the area of Police

Station Rajender Nagar. PW-8 (Manju Singh) deposed that on 04.02.2001

Const.Krishan Kumar and Const.Kadam Ganga Dhar were on duty and

she recorded DD No.23B (Ex.PW-5/C) by which five constables recorded

their departure for patrol duty. She further clarified that TR-33 was the

code of the motorcycle. PW-38 proved the duty roaster (Ex.PW-38/Y) by

which both of them were on duty. Similar is DD No.53B (Ex.PW-5/E)

recorded at 06.55 P.M. to prove that both the constables left police station

on motorcycle No.DL 1S 597 (TR-33) for patrolling. The genuineness of

the official record was not challenged.

10. PW-4 (Kadam Ganga Dhar) is a crucial witness as he was on

duty on motorcycle TR-33 from 09.00 A.M. to 09.00 P.M. with Krishan

Kumar. They found both accused A-1 and A-2 consuming liquor in a

white Maruti car. They stopped their motorcycle ahead of the car. Krishan

Kumar asked the driver of the car to show his driving licence and

enquired as to where they used to live. He (Const.Krishan Kumar)

thereafter, took out one quarter bottle containing liquor and one glass from

the car and kept on the dicky of the motorcycle. He again went to check

the car and recovered one black bag from inside the car and found

something 'amiss'. On that, A-2 sitting by the side of A-1 exhorted 'pakre

gaye, maar goli'. A-1 fired at Krishan Kumar two shots on his chest. Both

the accused hit the motorcycle and fled the spot. PW-4 took Krishan

Kumar to Ganga Ram Hospital in a private car and informed C-61 about

the incident on the way to the hospital. SHO and other staff reached there

and recorded his statement Ex.PW-4/A. He narrated the incident in detail

and disclosed that when Krishan Kumar during checking found a 'bag'

inside the car, A-1 fired twice on his chest and caused fatal injuries. PW-4

in supplementary statement Ex.PW-38/DX recorded on 04.02.2001

assigned a specific role to A-2 disclosing that he exhorted A-1 to fire at

Const.Kishan Kumar. He further gave description of the

occupants/assailants and claimed to identify them. In the cross-

examination, he elaborated that departure entry with Const.Krishan

Kumar was recorded in rojnamcha-'B'. The car was parked opposite

block No.27. The occurrence was witnessed by many people who had

collected there. His statement was recorded before he left the spot. He was

confronted with his statement under Section 161 Cr.P.C. on some facts.

He fairly admitted that he did not tell the doctor as to how Krishan Kumar

had sustained injuries. He admitted that he alone had arms and

ammunitions. It was somewhat dark and the street lights were 'on'. The

window-pane on the left side of the car was closed. He did not notice that

the light inside the car was 'on' or 'off'. Both the accused were taking

liquor. Krishan Kumar had taken out one glass from the car. The black

colour bag was taken by Krishan Kumar after the liquor bottle and the

glass. He (Krishan Kumar) did not ask him to check the car. They were

having one wireless set. He admitted that he did not take out his revolver

but explained that he had become nervous. He did not fire on the running

car. He flashed a message after putting Krishan Kumar in the car. He did

not note down the number of the car. His first statement was recorded in

the hospital and he did not tell the description of the occupants at that

time.

11. Presence of PW-4 at the place of occurrence is certain and

beyond doubt. He was on official duty with motorcycle rider. DD No.21A

(Ex.PW-5/A) corroborates his version. He had flashed a message soon

after the occurrence and DD No.21A was recorded at police station

Rajender Nagar at 08.00 P.M. It was informed that Const.Krishan Kumar

was admitted at Ganga Ram Hospital by Const.Kadam Singh No.844/C

vide MLC No.935 and was declared brought dead. The MLC Ex.PW-

33/A prepared at 09.45 P.M. on 04.02.2001 records that Const.Krishan

Kumar was brought dead to the hospital by Const.Kadam Ganga Dhar.

PW-38 (Insp.Mahipal Singh) when reached Ganga Ram Hospital found

him (Const.Kadam Ganga Dhar) present there. He deposed that Krishan

Kumar was on patrolling duty with Const.Kadam Ganga Dhar vide DD

Ex.PW-5/C, Ex.PW-5/D and Ex.PW-5/E. Const.Kadam Ganga Dhar went

to the spot from the hospital and participated in the proceedings conducted

there. The memos bear his signatures. PW-4 had no axe to grind to

volunteer to be a false witness to the incident. He was not acquainted with

the accused and did not name them in the statement (Ex.PW-4/A). The

accused did not attribute any ill-will or ulterior motive to him for making

a false statement. The incident happened at about 07.30 P.M. PW-4's

statement was recorded in the hospital soon after the occurrence at about

08.50 P.M in which he claimed to have seen the occurrence and in which

he narrated the incident with all details. It formed the basis of lodging

First Information Report under Section 302 IPC. There was no delay in

lodging the report with the police. The time gap between the occurrence

and the lodging of the FIR was very short and it ruled out

fabrication/concoction of a false story.

12. A-1 after arrest on 13.02.2001 was produced in the Court of

Sh.T.S.Kashyap, the then Additional Chief Metropolitan Magaistrate on

14.02.2001. Vide memo Ex.PW-38/M, an application was moved for

conducting TIP. On 16.02.2001, A-1 refused to participate in the TIP. An

adverse inference is to be drawn against A-1 for declining to participate in

the TIP without any plausible reason. In the Court, PW-4 identified him to

be the assailant who had fired twice at the chest of Const.Krishan Kumar.

PW-4 stood the test of searching cross-examination and nothing material

emerged to discredit his version. PW-4 gave vivid description of the

incident which is entirely consistent with medical evidence. The post-

mortem examination report (Ex.PW-9/A) reveals that there were two entry

wounds on the chest. The injuries were ante-mortem, recent and caused by

fire arm (rifled) ammunition discharged from distant range. Brief history

recorded by PW-9 in the post-mortem examination report reveals that

Krishan Kumar was fired at about 07.30 P.M. on 04.02.2001 by 'two

persons' and Krishan Kumar was brought dead to Ganga Ram Hospital at

07.45 P.M. We have no doubt that A-1 fired at Const.Krishan Kumar and

caused his death.

13. It is true that in the original statement Ex.PW-4/A, PW-4

(Kadam Ganga Dhar) did not assign specific words to A-2. However, in

the supplementary statement recorded on the same day i.e. on 04.02.2001,

he recorded that A-2, had exhorted A-1 to fire at Krishan Kumar after

being caught hold (pakre gaye, mar goli). He explained that he could not

give the description of the assailants as he had become perplex. The

supplementary statement is under criticism and it is alleged that it was

fabricated to implicate A-2. A-2 surfaced only in the so-called

supplementary statement.

14. It is well settled that FIR is not an encyclopedia. FIR puts the

police machinery into motion and detailed and exhaustive investigation is

carried out thereafter to find out the crime and the culprits. There is no bar

to record supplementary statement/ statements. There should not be major

variance/contradictions in the original and supplementary statements. If

true, it carries equal weight. In 'Harpal Singh vs. Devinder Singh and

another', AIR 1997 SC 2914, the Supreme Court observed :

„16. Another advanced by the trial court against evidence of Harpal Singh is that when he was interrogated by the Investigating Officer subsequently, he gave more details regarding the occurrence. Firstly, the said supplementary statement recording by the Investigation Officer could only have been used to contradict the witness in view of the interdict contained in Section 162 of the Cr.P.C. Secondly, that statement cannot be used for comparing it with the FIR. That apart, if the Investigating Officer elicited more details from the same person during any subsequent interrogation how could his evidence become suspect? It is not advisable

to throw the evidence of the informant overboard merely because the Investigating Officer succeeded in eliciting further details or even fuller details during subsequent interrogation.‟

15. PW-4 (Kadam Ganga Dhar) explained that he could not

narrate all the facts including description of the assailants in the initial

statement as he became perplexed and nervous. This explanation of the

witness inspires confidence as the occurrence was sudden and unexpected.

PW-4 (Kadam Ganga Dhar) had no time to react and use service revolver

to protect the victim or to apprehend the assailants. He could not even

note down the number of the car. He immediately took the victim to

Ganga Ram Hospital for medical assistance and on the way, flashed the

message. His whole conduct can't be treated unnatural or abnormal.

Supplementary statement (Ex.PW-38/DX) was recorded on the day of

incident i.e. 04.02.2001, in which PW-4 provided more information

including the role of the assailants and their description. At that time also,

neither A-1 nor A-2 were suspects. There was no ulterior motive for PW-4

to introduce a new version attributing role to the occupant sitting by the

side of the driver of the car. In Ex.PW-4/A, he did not name the assailants.

We find no good reasons to discard this supplementary statement. The

vital omission to attribute role to A-2 in the original statement is not a

flaw per-se to jettison his testimony. The omission appears to be due to

mental disposition of the witness at the time of occurrence, when A-1, all

of a sudden, caused death by firing gunshot on an unarmed Police Officer.

It is not reasonable to expect that the scared/perplexed eye witness would

always be able to give a meticulous and precise account of details of the

incident at the first instance. However, considering the blemish attached to

his supplementary statement, we believe that without reassurance from

other circumstances or materials, it would not be safe to make the

uncorroborated evidence of the witness, the sole basis of conviction of A-

16. PW-13 (Const.Kamal Singh) proved production of car

No.DL 2CG-0195 by Richwan Singh at Sector-20, Noida on 06.02.2001.

It was seized vide seizure memo Ex.PW-13/A. PW-10 (K.N.Singh) lifted

five chance prints from the car on 07.02.2001 (Ex.PW-10/A). PW-11

(Shiv Raj Singh) examined five chance prints Q1 to Q5 and specimen

finger prints of A-1 and A-2. Only chance print marked Q4 was identical

with the left thumb impression mark S1 on the finger impression slip of

A-2. Other chance prints were not identical with his finger prints. The

report is Ex.PW-11/B. Chance print Q4 which matched with the specimen

finger prints of A-2 establishes his presence in the car. The science of

identification of finger prints is an exact science (HP Administration vs.

Om Prakash, AIR 1972 SC 975) and it does not admit of any mistake or

doubt (Jaspal Singh vs. State, AIR 1979 S.C.1708). Presence of A-2 in

the car is therefore established.

17. A-2 was arrested on 19.02.2001 vide arrest memo Ex.PW-

24/D. He was kept in the muffled face and produced in the Court on

20.02.2001. An application for TIP (Ex.PW-38/Q) was made. A-2 did not

participate in the TIP. The proceedings are Ex.PW-38/R. A-2 did not

justify refusal to participate in the TIP. Adverse inference can be rightly

drawn against A-2. As already noticed A-1 was arrested earlier on

13.02.2001.

18. PW-19 (Kawaljit Singh) had a licenced revolver make Smith

and Wesson and he kept it with licence at the house of his sister in

Chandigarh in 1996. After one and a half year, Jagdip Singh, his nephew

informed him that in a theft in the house, the said revolver was stolen.

PW-19 (Kawaljit Singh) lodged First Information Report No.56/1996

under Sections 392/411/420 IPC, PS Sector-36, Chandigarh. PW-17 (SI

Janak Singh) proved the copy of the said FIR (Ex.PW-17/A). PW-31 (Dev

Ram Sharma) produced original record to prove that .32 bore revolver

No.H-153993 was allotted to Sh.Kawaljit Singh R/o House No.233,

Sector-21A, Chandigarh and it was renewed upto 27.03.1998 vide

Ex.PW-31/A. PW-37 (Maya Ram) produced record regarding issuance of

arms licence No.22/OD/DM/CH/95 to prove that the licence was issued in

the name of Kawaljit Singh. The copy of the record is Ex.PW-37/A.

19. This revolver was recovered from the possession of A-2 at

the time of his arrest on 19.02.2001 by PW-38 (Insp.Mahipal Singh). He

(PW-38 Insp.Mahipal Singh) deposed that on search of A-2, one loaded

revolver make Smith and Wesson, H-153993 was recovered from his left

dub. Four cartridges were inside the revolver and seized vide seizure

memo Ex.PW-24/B. The sketch of the revolver and cartridges was

Ex.PW-24/A. He identified revolver Ex.P22, cartridges Ex.P23/1-4

recovered from A-2. In the cross-examination, no material discrepancy

emerged to discredit the recovery of revolver. PW-24 (SI Joginder Singh)

denied in the cross-examination that A-2 was brought from Chandigarh by

the police in the presence of his wife. A-2 did not examine his wife in

defence to substantiate his defence. A-2 admitted in 313 Cr.P.C. statement

that PW-19 (Kawaljit Singh) was his relative and his revolver was stolen

in 1996. The revolver was recovered from Delhi. PW-19 (Kawaljit Singh)

did not depose about the recovery of stolen revolver. A-2 also did not

elaborate and explain as to when the stolen revolver was recovered and

from whose possession. He did not name the person from whom the

revolver was recovered and in whose custody it remained after its alleged

recovery. Apparently, A-2 has not presented true and correct facts.

20. During investigation, it transpired that A-2 was married to

PW-20 (Richwan Singh)'s sister. PW-20 (Richwan Singh) admitted that

A-2 was married to his sister. He claimed that they had no connection

with A-2 as he did not belong to their fraternity and his sister had married

outside their religion. In the disclosure statement (Ex.PW-38/P), A-2

disclosed that he married Naveen (PW-20's sister) who was earlier

residing in Chandigarh from where the revolver was stolen.

21. PW-14 (HC Harish Kumar) was Malkhana Moherer at police

station Rajender Nagar on 19.02.2001. PW-38 (Insp.Mahipal Singh)

deposited with him two sealed pullandas stated to contain a revolver and

four cartridges. He made entry at Sl.No.659, Register No.19. On

02.03.2001, Insp.Mahipal Singh deposited an envelope bearing seal of

MAM College stating to contain the bullet vide entry No.667. PW-14 (HC

Harish Kumar) sent the pullandas on 14.03.2001 to FSL, Malviya Nagar

vide Road Certificate 57/21. The relevant entries are Ex.PW-14/A1,

Ex.PW-14/A2 and Ex.PW-14/A3. A-2 did not challenge the testimony.

PW-22 (A.C. Varshney), Sr.Scientific Officer (Ballistics), FSL, Rohini

received nine sealed parcels on 14.03.2001 for examination and opinion.

Parcel No.1 contained one country-made pistol of .315 inch bore, one

cartridge of the same bore and one improvised cartridge marked as Ex.F1,

A1 and A2. Parcel No.2 contained three cartridges of .380 inch marked as

Ex.A3 to A5. Parcel No.4 contained two bullets marked as Ex.EB1 and

EB2. Parcel No.8 contained one revolver of .32 inch caliber marked as

Ex.F2. Parcel No.9 had four cartridges of .32 inch marked A6 to A9. He

examined the exhibits and submitted detailed report dated 27.04.2001

(Ex.PW-22/A). The report reveals that the country-made pistal Ex.F1 and

revolver Ex.F2 were in working order. He was of the opinion that bullets

Ex.EB1 and EB2 were fired through revolver Ex.F2. We have no reasons

to doubt the opinion of the expert in the report.

22. The prosecution proved and established that the

cartridges/bullets recovered from the body of the deceased were fired

from the revolver Ex.P22 on the day of incident. We have noticed and

observed that A-2 was present with A-1 in the Maruti car when the firing

incident took place. Apparently, the revolver of A-2 was used by A-1 to

fire at Const.Krishan Kumar. The said facts are established and proved

beyond doubt. In these circumstances, it was for A-2 to explain as to how

and under what circumstances revolver Ex.P22 came into possession of

A-1. A-2 did not offer any explanation whatsoever. Explanation, if any,

were in the exclusive knowledge of A-2 and the obligation was upon him

under Section 106 of the Evidence Act. Legitimate presumption/inference

can be drawn that revolver Ex.P22 belonging to A-2 was used to fire at

Const.Krishan Kumar. How and why it came into the hands of A-1 was

known only to A-2, but is not explained or adverted to.

23. Recovery of two vouchers Ex.P1 and P2 issued by Mool

Chand Sharma, supplier of building material at Noida proved crucial to

reach to the culprits. PW-29 (Insp.K.P.Kukreti) was associated with the

investigation of this case on the direction of DCP Central. He visited

Mool Chand Sharma at Sector-22, Noida and examined him. Mool Chand

Sharma produced a diary of the year 1999 (Ex.PX1) where he had noted

down the details of the slips (Ex.PW-20/1 and Ex.PW-20/2). The contents

revealed that on 29.11.1999, he had made entry for supply of the material

at H72, Sector-16. The diary was seized vide memo Ex.PW-3/A. It further

transpired that the building material was supplied at the site of Richwan

Singh on 29.11.1999 and 30.11.1999. Mool Chand Sharma further

disclosed that Richwan Singh was working at plot No.160, Sector-58 (as

on 05.02.2001). This information took PW-29 to the said site where

Richwan Singh met him and confirmed that he used to get building

material from Mool Chand Sharma. PW-29 (Insp.K.P.Kukreti), testified

that he directed Richwan Singh to produce A-2 and the Maruti car used by

him. A-2 was called at Sector-58 and was interrogated. A-2 became

nervous and did not give satisfactory reply. He informed that his brother-

in-law Richwan Singh had supplied him a white colour Maruti car No. DL

2 CG 0195 and he was assisting him (Richwan Singh) in his business. A-2

was set free with the direction to join the investigation next day at the site

at Sector-58, Noida. PW-29 (Insp.K.P.Kukreti) further deposed that when

on 06.02.2001, A-2 did not turn up to join the investigation, he contacted

Richwan Singh, and he informed that A-2 had made the confession before

him on the previous night and he had handed over his custody to the

police of PS Sector-20, Noida. PW-29 recorded his statement Ex.PW-

20/3.

24. The prosecution examined PW-16 (Const.Kali Ram) who

was posted as clerk constable PS Sector-20, Noida on 05.02.2001. He

admitted that SI S.P.Singh, SO handed over to him custody of A-2 at

about 05.30 A.M. He was instructed by SO to keep A-2 in custody and not

to allow anyone to talk to him. When his duty was over at 08.00 A.M. he

handed over the custody of A-2 to the official who assumed duty after

him. Later on, he came to know that A-2 had run away from the police

station. On 07.02.2001, he was suspended vide suspension order Ex.PW-

16/A. Apparently, PW-16 (Const.Kali Ram) cannot fake issuance of

suspension order. PW-35 (SI Bhopal Singh) handed over suspension order

Ex.PW-16/A to PW-16 (Const.Kali Ram) and that order was issued by

SSP, Gautam Budh Nagar on 07.02.2001. PW-20 (Richwan Singh)

admitted that he used to receive building material from M/s.Mool Chand

Sharma. He further admitted that A-2 was his sister's husband. He

elaborated that he was not having any ties with him as his sister had

married outside their religion without their consent. He further admitted

that Maruti No.DL 2 CG 0195 was registered in his name and it was taken

away by the police vide memo Ex.PW-13/A. He did not support the

prosecution on other facts and turned hostile. Since A-2 is closely related

to PW-20 it appears that he has not presented complete true facts to favour

A-2.

25. Delhi police was not aware that vehicle No.DL 2 CG 0195

belonged to PW-20 (Richawan Singh). A-2 was not a suspect and the

police had no clue about the identity of the assailants. They reached to

PW-20 (Richwan Singh) when PW-3 (Mool Chand Sharma) confirmed

that the building material was supplied to his construction site vide

vouchers Ex.P1 and P2 recovered from the spot. They were able to find

that A-2 and PW-20 were related to each other. There is overwhelming

evidence that A-2 was produced in Police Station Sector-20, Noida and he

absconded. PW-16 (Const.Kali Ram) had to suffer suspension on that

account. A-2 remained in hiding before he was arrested on 19.02.2001 in

Delhi. A-2 refused to participate in the Test Identification Proceedings.

PW-4 (Const.Kadam Ganga Dhar) identified him in the Court to be one of

the occupants of the car with A-1 at the time of incident in Maruti car No.

DL 2 CG 0195. His finger prints were also detected on the said Maruti

car. A-2 did not explain as to why he remained in hiding for so long. He

did not elaborate as to where he remained present during this period. He

did not examine his wife to establish that Delhi police had brought him

from Chandigarh in her presence as alleged. The circumstance of

abscondance is a material incriminating piece of evidence against A-2 to

connect him with the crime. Similarly, A-1 absconded after the crime and

could be arrested on 14.02.2001.

26. We are aware, that abscondence by itself may not be a

positive circumstance consistent only with the hypothesis of guilt of the

accused because it is not unknown that even innocent person may run

away for fear of being falsely involved in criminal cases. But in the

present case, in view of the circumstances which we have discussed above

and which have been established by the prosecution, it is clear that

absconding of the accused specially A-2 not only goes with the hypothesis

of guilt of the accused but also points a definite finger towards them. The

accused have not given reasonable excuse for being away from their

normal place of residence. In fact A-2 gave a slip to the police and

escaped from its custody resulting in suspension of a police official. He

was subsequently arrested and the weapon of offence Ex.P22 was

recovered.

27. It was pointed out that there was inconsistency between

ocular version and the medical evidence (Ex.PW-9/A). PW-4 claimed that

Krishan Kumar was fired from close range by the driver of the car but the

post-mortem report revealed that the bullets were fired from 'distant'

range. There was no blackening of the wounds. We find no major

inconsistency in it. PW-9 (Dr.P.C.Dixit) who conducted the post-mortem

examination, in the cross-examination was unable to give approximate

range. He explained that when it is outside the range of tattooing,

blackening, it is called 'distant' range. The range of blackening and

tattooing is approximately 60 cm. and it depends on a lot of factors

including the type of powder, length of the barrel, presence and absence of

choking etc. It is well settled that in case of contradiction between ocular

and medical, ocular evidence has to be given primacy. Minor variation

between the two is not relevant. Where direct evidence is satisfactory and

reliable, it is not liable to be rejected on the hypothetical medical

evidence. Use of Ex.P22 as the weapon of offence is established from the

bullets recovered from the body of the deceased as discussed in paragraph

22 above.

28. Learned counsel contended that the investigation by PW-29

(Insp.K.P.Kukreti) was tainted as he carried out a parallel investigation

without any authorization. It is true that the case was registered at police

station Rajender Nagar and PW-29, was posted as SHO, Police Station

Nabi Karim. We find no illegality or irregularity in the investigation

carried out by him under directions from concerned DCP. Delhi police is

one unit. Even if there was any irregularity, it will not bar or prohibit the

prosecution from relying upon the evidence/material collected. In 'Pooran

Mal Vs. Director of Inspection (Investigation), New Delhi and Ors.‟ AIR

1974 SC 348, it was held that :

"It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out."

29. It is further argued that A-1 and A-2 did not share common

intention to murder the victim. They had no prior enmity with him. A-2

did not use weapon. We find no merits in these submissions. A-1 and A-2

were present in the Maruti car and were consuming liquor at a public

place. When they were caught by police officials during routine checking

and unauthorized deadly weapons were recovered, in the car, A-1 on the

exhortation of A-2 fired twice on the vital organ of the victim with a

revolver. They both fled the spot and remained in hiding after the crime.

They did not explain to have in possession of arms without licence.

Apparently, the motive was to eliminate the victim by firing at him and to

escape from the spot to avoid arrest for keeping the country-made pistol

and cartridges without licence. A-1 and A-2 immediately thereafter drove