Ramesh Babu @ Bhandari vs State
2012 Latest Caselaw 598 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : JANUARY 19, 2012
                                    DECIDED ON: JANUARY 30, 2012

+                            CRL.A. Nos. 462/1997

RAMESH BABU @ BHANDARI                               ..... Appellant

                  Through : Ms. Nandita Rao, (DHLSC)

                                         Versus

STATE                                                ..... Respondent

                  Through : Ms. Richa Kapoor, APP for the State

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG



MR. JUSTICE S.RAVINDRA BHAT

%
1.     This appeal challenges a judgment and order of a learned Additional
Sessions Judge, dated 27-8-1996, in SC No. 81/1996. The impugned
judgment convicted the Appellant for committing the offences punishable
under Sections 302 IPC and 27 of the Arms Act. The Appellant was
sentenced to undergo life imprisonment and also a prison term for 3 years
rigorous imprisonment; both sentences were to run concurrently.
2.     The prosecution allegations were that on 19.09.1991, Police Station




CRL.A. 462/1997                                                      Page 1
 Seelampur received information ( DD 10A, marked as Ex. PW-11/A),             at
11.02 AM, about a shooting incident at Gali No.5, Subhash Mohalla. SHO,
PW-17 went to the spot with two constables and an ASI. He went to H.No.
E-139, Gali No.5, Subhash Mohalla, Maujpur where one Munna produced a
Katta, 3 live cartridges, he also handed over Ramesh Babu (the accused,
who has appealed to this court). Munna's statement Ex. PW6/F was
recorded, it formed the basis for registration of the FIR. The informant PW4
Munna @Samimul Rehman used to work in a factory; his younger brother
Chottey Mian worked in the factory of Jameel. The Appellant too used to
work in that factory about six months before the incident; he (the accused)
used to tease his sister. PW-4 claimed that he had advised the accused
several times not to so tease her, but he did not stop. As a result, Jameel
had removed the accused from the employment. On the date of occurrence at
about 10.30 A.M., the witness was at home with his friend Jaffar whilst his
sister was working on a sewing machine. The accused went to their house
armed with a desi katta (revolver); he sat near his sister. This was objected
to by PW-4 and his friend Jaffar too supported him. At this, the accused
fired at Jaffar with his revolver on the chest as a result of which Jaffar fell
down and the accused started running. PW-4 chased the accused and tried to
catch hold of him. With the help of Nissar Ahmed and Masloor Hussain, he
apprehended the accused and snatched the revolver from him.
3.     The injured was taken to the GTB hospital where he was declared
"brought dead". Proceedings under Section 174 Cr.P.C. were conducted and
the body was sent for the post mortem. The police arrested the Appellant
after conclusion of the investigation, he was charged for the offences




CRL.A. 462/1997                                                    Page 2
 mentioned above. He pleaded not guilty, and claimed trial. The prosecution
relied on the testimonies of 17 witnesses, besides several exhibits, including
the post mortem report, and the articles seized during investigation. After
considering all these, and the plea of the accused, the Trial Court convicted
the Appellant and sentenced him in the manner described previously in this
judgment.
4.     Ms. Nandita Rao, learned amicus curae who assisted the court during
the hearing, on behalf of the Appellant, urged that the motive urged by the
prosecution in this case is weak and unbelievable. It was submitted that the
Appellant's employment and the alleged incident of his teasing PW-4's
sister (the latter deposed as PW-5 in the trial) occurred about 6 months prior
to the incident. This was nowhere established because the employer, Jameel,
who allegedly terminated the Appellant's employment was never examined
during the trial. There was thus, no reason for the Appellant to even have
gone to the house of PW-4, and picked up a quarrel, and shot the deceased,
Jaffar, with whom, concededly he had no quarrel or against whom he bore
no grudge.
5.     It was argued that there are significant contradictions in the
testimonies of the four prosecution witnesses on the question of recovery of
the pistol and the live cartridges. Ms. Rao submitted that while PW-5 and
PW-6 deposed that Samim-ul-Rehman PW6 had snatched the weapon from
the accused's hands and that three live cartridges were recovered from his
right trouser pocket, on the other hand, PW7 Masloor Hussain stated that
two live cartridges were recovered from the accused and the country made
revolver as well as a spent cartridge was lying near the deceased. PW-16




CRL.A. 462/1997                                                   Page 3
 Nissar Ahmed deposed that two live cartridges were recovered from the
accused's trouser pocket and a katta too was recovered. The katta was lying
in Abdul Rehman's house, in the verandah on the first floor. This rendered
the prosecution story about recovery of the katta, the alleged weapon of
offence, entirely suspect.

6.     The amicus submitted that there was a fundamental contradiction
between the testimonies of the prosecution witnesses, even about how the
accused was nabbed, and later arrested. It was submitted that whereas PW-7
and PW-16 deposed that both of them caught hold of the accused, who
started fleeing from the spot, after the shooting incident and neither of them
mentioned that PW-6 too was with them, that witness claimed that he had
caught the accused. If this were appreciated in the background of the
circumstance, that PW-16 was declared hostile, and leading suggestions
given to him by the prosecution with leave of the court, the entire sequence
of facts, concerning the attack, chase given to apprehend the accused, and
his subsequent arrest, became suspect. The Trial Court fell into error,
submitted counsel, in not attaching any importance to these salient and
material aspects.

7.     Counsel argued that the contradictions and variations between the
various prosecution witnesses, with regard to how the accused was nabbed,
how many cartridges were recovered, and from where, who recovered the
pistol, and from where, were material and significant, and ought not to have
been glossed over or discarded by the Trial Court. It was argued that the
absence of any proof of motive, the explanation given by the accused, that
he was not involved in the incident, but falsely implicated and that he had




CRL.A. 462/1997                                                   Page 4
 been arrested from the factory of Jameel, explained the story. The failure to
examine Jameel, in fact, vindicated the Appellant's stand.

8.     It was submitted that the Trial Court fell into error, in holding that the
contradictions between depositions of the prosecution witnesses were minor;
on the other hand, they were serious and major enough for it to doubt the
allegations, and even the presence of the accused. It was submitted that the
sheer improbability of an individual, armed with a katta, walking into
someone's house, when they had a reason to be inimical to him, and fire at
someone, and attempt to flee had to be seen. Similarly, the accused would
never have entered the premises of PW-6, in the manner alleged, as he had
every likelihood of being nabbed. These, coupled with the complete lack of
motive, raised serious doubts about veracity of the prosecution witnesses;
the Trial Court ought not to have overlooked them, and should have instead
acquitted the accused.

9.     It was lastly urged that all the material prosecution witnesses were
relatives of the deceased, who could conveniently level allegations against
the accused, without any shred of objective evidence. Although the incident
occurred in broad daylight, in a fairly crowded or busy area, the prosecution
did not attempt to join any independent witness, whose testimony could be
unbiased, and worthy of credence.

10.    The APP argued that the Trial Court's findings do not call for any
interference. It was submitted that the discrepancies sought to be highlighted
in the testimonies of the prosecution witnesses were inconsequential, and did
not in any manner undermine the ocular testimony of the witnesses, who had
seen the attack on the deceased. These testimonies, particularly of PW-5 and



CRL.A. 462/1997                                                      Page 5
 PW-6 categorically proved the Appellant's role in the attack, as well as the
recovery of the articles in the immediate aftermath of the shooting incident.
It was submitted that in this case, the police was notified at the earliest
opportunity, and even the accused had been nabbed and handed over when
the police party arrived at the scene.
11.    The learned APP submitted that the prosecution had established the
Appellant's motive, which was revenge. In any case, submitted the APP,
motive did not assume such significance as to discard the credible testimony
of two witnesses. It was urged that the said two eyewitnesses were natural
witnesses, and their testimonies were corroborated by the depositions of
PW-7 and PW-16, who saw the accused fleeing from the spot immediately
after the shooting incident. At least one witness, PW-16 was independent; he
had no motive to falsely implicate the Appellant; in fact none was suggested.
12.    It was urged that the recollections of witnesses to the incident,
depended on what they saw; consequently, their differing perceptions about
rapidly changing events, could not be characterized as contradictions. Even
if they were to be regarded as contradictions, they were too minor to
undermine the prosecution version, which had proved the Appellant's
involvement in the incident, and his guilt, beyond reasonable doubt. As a
result, the court should not disturb the findings and sentence recorded in the
impugned judgment.
13.    The prosecution's mainstay in the present case is the testimony of
PW-5, the sister of the deceased; PW-6, the brother of the deceased, and two
others, who claim to have seen the Appellant, fleeing from the spot, in the
immediate aftermath of the attack. This court also notices that the police was




CRL.A. 462/1997                                                    Page 6
 intimated fairly early; according to the witnesses, the attack or incident
occurred at 10:30 AM; the police was intimated at 11:02 AM. PW5
Km.Chaman deposed that she knew the Appellant; he was working as
brasier maker in their street. He used to tease her. She reported the matter to
her brother Samim-ul-Rehman, PW-6, who told about this to Ramesh's
employer. Ramesh was removed from employment from that factory. She
deposed that on the day of incident, at 11.00 A.M., Ramesh suddenly went
to their house when she was working on a machine. Her brother was there
with his friend Jaffar, at home. The appellant had a country made revolver.
She was working on the machine on the first floor. PW-6 asked Ramesh to
come down but he did not do so. Jaffar also asked the accused to come down
but he refused. (The accused then told her brother as to "who he was to send
him out and instead he would send him out"). The accused fired a shot from
the revolver; the bullet hit Jaffar on his chest. The Appellant tried to run
away but he was over-powered by her brother and the country made pistol
was snatched from him. Police came at the spot and pistol was handed over
to the police along with the accused. PW6 has supported PW5's testimony,
broadly in relevant particulars. He is also an eye-witness. PW-6 had also
deposed that he had caught the accused and that latter managed to extricate
himself. He was able to catch him again with the help of PW-7 and PW-16.
Cartridges were recovered from the Appellant's pocket.
14.    PW7 Masloor Hussain deposed that he heard noise of a gunshot. He
ran from his hotel towards the gun shot and saw the accused running from
Munna'shouse after coming down the stairs. He and Nissar (PW-16) caught
the accused. They found two live cartridges in his pocket; a country made




CRL.A. 462/1997                                                    Page 7
 revolver and one spent cartridge was lying near the deceased. Munna was
not there. He informed the police and the police came there. He handed over
the accused as well as the live cartridges to the SHO. PW16 Nissar Ahmed
supported the version of PW7 Masloor Hussain in all the material
particulars. He deposed about having chanced upon the accused, when the
latter was fleeing from the place of incident; he corroborated the testimony
about how the accused was nabbed, and what was found on him, and where
the katta lay.
15.    The Appellant had urged that there was discrepancy about how many
cartridges were recovered; whether it were two or three, if so from where,
and importantly whether the katta was recovered from him or somewhere
else. This argument seems attractive, at the first blush, because PW-7 and
PW-16 do not mention that PW-6 was with them when the Appellant was
nabbed. Yet, a deeper and careful analysis of the evidence would reveal that
PW-6 had momentarily nabbed the Appellant; the latter was able to extricate
himself and flee the spot. PW-6, very significantly does not mention that he
recovered the katta. All that he says is that when the police reached the spot,
the katta and the cartridges were handed over; the accused too was handed
over to them. The testimonies of PW-7 and PW-16 about how the accused
was nabbed corroborate each other. Now, these two witnesses did not
actually see the incident, but their involvement, ie. their nabbing of the
accused, was part of the same transaction. Each of them testified having
helped the other, to catch hold of the accused; both also stated that the katta
had been flung away.




CRL.A. 462/1997                                                    Page 8
 16.    Section 6 of the Indian Evidence Act reads as follows:

       "XXXXXX                  XXXXXX                    XXXXXX

       6. RELEVANCY OF FACTS FORMING PART OF SAME
       TRANSACTION.

       Facts

which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

XXXXXX XXXXXX XXXXXX"

The object behind this was explained in the judgment of the Supreme Court, in Gantele Vijayavardhan Rao v. State of Andhra Pradesh, AIR 1996 SC 2791, as follows:

"XXXXXX XXXXXX XXXXXX

Section 6 of the Evidence Act and some of the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to „hearsay" rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it.

CRL.A. 462/1997                                                   Page 9
          XXXXXX                   XXXXXX                     XXXXXX"

In Sukhar v. State of Uttar Pradesh, (1999) 9 SCC 507, the effect of this provision was analyzed as follows:

"XXXXXX XXXXXX XXXXXX

6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore‟s Evidence Act reads thus:

"Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.

XXXXXX XXXXXX XXXXXX"

17. The testimonies of these two witnesses are of vital importance, because they saw and participated in the events which occurred immediately after the attack, almost in the same frame. Both of them saw the accused, but from different directions; their efforts led to his being nabbed. Crucially, they are consistent in all particulars about how the Appellant was caught,

CRL.A. 462/1997 Page 10 what was in his possession, and where the katta was lying. The testimonies of PW-5 and PW-6 are in regard to the actual incident. Though the Appellant sought to impeach their credibility, on the ground of remoteness or improbability of the motive, yet the court discerns no false note in their depositions. They withstood cross-examination. The testimonies of PW-7 and PW-16, especially the latter, establish and reinforce the ocular version of the other two witnesses. That one of them mentioned that three cartridges were recovered from the accused, whereas the other two mentioned that two were recovered, is not of much consequence. As noted earlier, PW-6 is silent how, and from where the katta was recovered; that fact is spoken to by PW- 7 and PW-16. No doubt, the latter two do not mention that PW-6 was with them when they nabbed the accused. However, the presence of PW-6 immediately after the appellant was nabbed by the other two, in close proximity of time, is highly probable. Therefore, his claimed involvement may not be as one who assisted the others in nabbing the accused, but as one who reached immediately after he was caught.

18. One of the established principles of criminal law is that motive assumes a secondary role, as it were, in cases where the prosecution is able to establish the crime, through direct evidence. (Ref. State of U.P. v S. Nahar Singh AIR 1998 SC 1328; Baitullah v State of U.P. 1998 (1) SCC 509). In this case, it cannot be said that the prosecution did not prove the Appellant's motive. No doubt, PW-5 and PW-6 mentioned about the "teasing" by the Appellant (of PW-5) six months before the incident. Yet both stated that PW-6 complained about this to the Appellant's employer, who removed him from his employment. Now, the appellant had complained that the employer

CRL.A. 462/1997 Page 11 Jameel, had not been examined. The simple answer to that is that Jameel was not an eyewitness. The appellant had alleged that he was arrested from Jameel's premises; if that were the position, he could have led evidence, and had that individual summoned to court. The testimonies of PW-5 and PW-6 showed that the Appellant had lost his job due to their complaint. That was sufficient motive for him to pick up a quarrel with the deceased's family, and PW-6.

19. Ex.PW17/H and Ex.PW17/J are the ballistic expert's report. These reveal that .12 bore cartridges (found at the spot) were fired from the same country made pistol seized from the accused and later sent to CFSL for opinion. This proved that the pistol was used to fire the shot at the deceased. The report says that the .12 bore country made pistol is a fire arm as defined in the Arms Act and was in working order. The cartridges, according to the report, were live and were ammunition as defined in the Arms Act. The report further states that the hole/blacking on the deceased's shirt could have been caused by firing a.12 bore cartridge recovered from the spot and sent to CFSL. The prosecution's version therefore, is also corroborated by the CFSL report that the same cartridge and country made pistol were used in firing at the deceased, Jaffar. These were recovered from the accused and from the spot.

20. In view of the above discussion, this court does not find any infirmity in the reasoning of the Trial Court, in the impugned judgment. The conviction and sentence recorded by it, are therefore, upheld. The Appellant was untraceable, and the present appeal was heard with the assistance of an amicus. The bail and surety bonds furnished in this case are cancelled; the

CRL.A. 462/1997 Page 12 records are directed to be transmitted to the Trial Court to initiate appropriate proceedings to ensure that the Appellant serves the remainder of his sentence. The Appeal is dismissed, in these terms.

(S.RAVINDRA BHAT) JUDGE

(S.P. GARG) JUDGE

JANUARY 30, 2012

CRL.A. 462/1997 Page 13