Ram Dass vs State
2013 Latest Caselaw 1561 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRIMINAL APPEAL No. 75/2011

                                     Reserved on: 9th January, 2013
%                                 Date of Decision: 8th April, 2013

RAM DASS                                                   ....Appellant
                     Through Mr. Rajiv Dutta, Sr. Advocate with Mr.
                     Narendra Kumar Choudhary, Mr. Kumar Dushyant
                     Singh and Mr. Ajeet Singh, Advocates.

                      Versus

STATE                                                   ...Respondent

Through Mr. Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J.:

1. The impugned judgment dated 18th November, 2010 convicts

Ram Dass under Section 302 of the Indian Penal Code, 1860 (IPC, for

short) for murder of Sunil and Somnath, sons of Om Prakash, by

causing injuries on them with firearm on 22 nd April, 2006. The

appellant has been convicted under Section 323 IPC, for injuries on

Om Prakash, by giving him a push, when he tried to intervene. By

order of sentence dated 20th November, 2010 he has been sentenced to

life imprisonment under Section 302 IPC with fine of Rs.25,000/- and

in default of payment of fine undergo Simple Imprisonment for one

year. He has been sentenced to Simple Imprisonment for a period of

six months under Section 323 IPC. He has been acquitted under

Section 25/27 of the Arms Act, 1957 for having used and for having

been found in possession of country made pistol.

2. The State or victims have not preferred any appeal against

acquittal of the appellant under Section 25/27 of the Arms Act.

3. At the outset, we notice that the homicidal death of Sunil and

Somnath was not disputed or challenged before us. Even otherwise,

their homicidal death as a result of fire arm injuries stands established

and proved from the post-mortem reports of Sunil and Somnath

marked Exhibits PW-13/A and PW-13/B respectively. The said

reports were proved by Dr. Manoj Dhingra (PW-13), who has deposed

that he, along with Dr. Ashish Jain, had conducted the said post-

mortems on 23rd April, 2006. Bodies of Sunil and Somnath were sent

by Inspector Ishwar Singh of Police Station Nangloi with the alleged

history of gun shot wounds and the two of them were declared

brought dead on 23rd April, 2006 at SGM Hospital at 11.55 P.M. The

following external and internal injuries were noticed on the dead body

of Sunil:

"1. Abrasion 2 cm x 1 cm over inside back with clotted blood.

2. Entry wound of fire arm 1.5 cm x 1 cm, lacerated punctured wound present over front of chest on left side 2 cm from left nipple above and 8 cm from mid line with abrasion collar and tattoing in

an area of 8 cm x 7 cm around wound margins inserted.

3. Exit wound of fire arm 0.7 x 0.6 cm, punctured wound present over back of chest just left of mid line 14 cm from right and 12 cm from left scapuler lower and with margin everted. Track:- Bullet entered through anterior chest wall through 5th intercostal space pears upper and lower lobe of the lungs. Infroposterial chest wall near vertebra into 6th intercostal space and came out through posterior wall.

Internal injury:-

Chest: Chest cavity filled with partially clotted blood about 1.5 meter."

4. The cause of death of Sunil, as opined by PW-13, was asphyxia

and shock as a result of fire arm injury due to short gun firearm.

5. The following external and internal injuries were noticed on the

dead body of Somnath:

"1. Entry wound of fire arm 0.9 x 0.6 cm over front of chest at xiphisternum 12 cm from right and 16 cm from left nipple and 23 cm from umblicus just right to the mid line with abrasion collar present with tatooing all over the chest. Upper abdomen and biletral arm in an area of 15 cm x 14 cm above. After exploring the wound it enters into the stomach through left lobe of liver and then pierces into oesophagus and after piercing oesophagus to pharyngs and after it pierces the tongue and roof of mouth cavity and enters into the skull through middle cranial fossa and lodged at posterior cranial fossa.

2. Entry wound of fire arm:- 0.8 x 0.5 cm, lacerated punctured wound present over back

10 cm from mid line towards left and 11 cm from lower part of scapula at 8th intercostal space with abrasion collar all around. On further exploration it enters into the chest wall fractured 9th rib in 8th intercostal space and then pierces the upper part of spleen and diaphram near stomach.

Internal Injury:-

Head: Subdural heamatoma and subarrachnoid heamorrage over inferior surface of occipital region and bullet was recovered from posterial cranial fossa. Hole in middle cranial fossa. Abdomen cavity filled with blood and food material.

Chest: Left side of chest cavity contained blood."

6. PW-13 similarly opined that Somnath had died due to

Hemorrhagic shock as a result of fire arm injury to the chest and

abdomen. The fire arm used was a shot gun. PW-13 had recovered

one bullet from the dead body of Somnath. The said bullet was shown

to him after opening a sealed packet having seal of SGM mortuary.

He identified the bullet as one recovered from the body of deceased

Somnath and the same was marked Exhibit P-9.

7. The MLCs of Sunil and Somnath have been marked Exhibits

PW-4/A and PW-4/B respectively. These were proved by Dr. Binay

Kumar (PW-4), Medical Officer, SGM Hospital, Mangol Puri, Delhi,

who had examined Sunil and Somnath and prepared the said MLCs.

He has deposed that the two of them were brought to the hospital at

11.50/11.55 P.M. with the alleged history of fire arm injury. On

examination their pulse was not palpable, BP was not recordable and

their ECG showed straight line. They were declared brought dead and

shifted to mortuary. Both Dr. Binay Kumar (PW-4) and Dr. Manoj

Dhingra (PW-13) were not cross-examined in spite of opportunity

provided. Their testimonies went unrebutted.

8. The core issue raised by the appellant pertains to his

involvement as a perpetrator of the said crime. As per the prosecution

version, there are three eye witnesses; Om Prakash, Babli and

Poonam, i.e., father, mother and cousin sister of the deceased. The

prosecution relies upon their examination-in-chief which was recorded

on 29th May, 2008. The appellant, on the other hand, relies upon their

cross-examination which was conducted on 16th November, 2009 and

it is submitted that the three eye witnesses have exonerated and denied

that the appellant was the perpetrator of the crime.

9. Om Prakash (PW-1) in his deposition on 29th May, 2008 has in

categorical terms stated that he along with Babli (PW-2) and Poonam

(PW-3) were sitting outside their house on 22nd April, 2006 while his

son Sunil was sleeping on the cot outside the house when, at 11 P.M.,

the appellant, who was identified by PW-1, came and fired a shot at

Sunil. They raised an alarm and chased the appellant who ran towards

Rohtak Road. The appellant gave a push to PW-3 and PW-1. As a

result of the push, he fell down and sustained injuries on both knees.

On hearing the commotion, his second son Somnath, who was

upstairs, came down and chased the appellant. When Somnath was

about to apprehend him, near the corner of the street, close to Narang

Hospital, the appellant fired at Somnath. After receiving the bullet

injury, Somnath fell down. The appellant again fired second shot at

Somnath. Thereafter, the appellant boarded a car, which was parked

at Rohtak Road. One or two persons were already present in the car.

Somebody informed the police and his sons were taken to the SGM

Hospital but were declared brought dead. He had sustained injuries

on his knee and was medically examined. At this stage, we may note

that the MLC of Om Prakash (Exhibit PW-13/C) was proved by Dr.

Manoj Dhingra (PW-13). The medical examination of PW-1 was

conducted by Dr. Ritesh who had worked under PW-13 but had since

left the hospital and his whereabouts were not known. PW-1 proved

his statement (Exhibit PW-1/A), which formed basis of the rukka. He

has further deposed that on his pointing out the site plan (Ex. PW-

22/A) was prepared. He had identified the dead bodies of Sunil and

Somnath vide identification statement Exhibits PW-1/C and PW-1/D,

which were signed by him. He identified the pant (Exhibit PW-1/B),

which was worn by him when he had taken his two sons to the

hospital.

10. Babli (PW-2)‟s statement is identical. In her testimony recorded

on 29th May, 2008 she has implicated the appellant as the culprit who

had fired the gun shot at Sunil at about 11 P.M. on 22nd April, 2006

when she was sitting with PW-1 and PW-3 outside their house. At

that time, Sunil was sleeping on the cot outside the house. She has

deposed that on hearing the commotion, her son Somnath came down

and chased the appellant. When he was about to apprehend the

appellant in the street opposite Narang Hospital, the appellant fired a

gun shot. Somnath fell down and was again fired upon. The appellant

escaped in a car parked on Rohtak Road. One-two persons were

present in the car but she could not state who they were. Sunil and

Somnath were taken to SGM Hospital where they were declared

brought dead. She had not sustained any injury in person and was not

medically examined.

11. Poonam (PW-3) in her deposition on 29th May, 2008 identified

the appellant as a perpetrator. She has stated that at 11 P.M. on 22nd

April, 2006 her cousin Sunil was sleeping on the cot when he was shot

at by the appellant. She became emotional and starting weeping in the

court. She was consoled and her statement was recorded after some

time. She went on to further narrate that she, her uncle and aunt

chased the appellant. On hearing the commotion, Somnath, who was

upstairs, came down and tried to apprehend the appellant. Near

Narang Hospital, the appellant grappled with her when she was trying

to apprehend him. The appellant pushed her and shot at Somnath and

then fired another shot at Somnath when he fell down. She deposed

that father of the appellant was standing there and she rushed and

pleaded with him. He caught hold of her hair and thrashed her. She

started weeping again, during her deposition in the court and was

consoled. She has testified that the appellant boarded a car parked on

the Rohtak Road behind tractors and fled away. There was another

boy in the car but she did not know/identify him. She has affirmed

that she had certainly seen the appellant who had shot at her brothers

and had grappled with her. The two brothers were taken to SGM

Hospital by Om Prakash (PW-1). She did not accompany them to the

hospital. Later on she was informed that her brothers had died. She

had sustained minor abrasions but was not medically examined.

12. Learned counsel for the appellant has submitted that the

testimony of PW-3 on 29th May, 2008 is doubtful and debatable. She

has referred to the father of the appellant, who was purportedly

present at the spot and has stated that she had grappled with the

appellant while trying to apprehend him. Reference is made to the

testimony of PW-1 and PW-2 and the difference is pointed out. PW-1

and PW-2, in their depositions on 29th May, 2008, have not referred to

the father of the appellant being present at the spot. We note that the

father of the appellant was not prosecuted or charged. To this extent,

PW-3 may have exaggerated and tried to implicate the father, i.e., an

elder family member of the appellant but this by itself cannot be a

ground to disbelieve her entire testimony. PW-1 and PW-2 have

clearly affirmed presence of PW-3 at the spot. PW-1 has stated that

he fell down after being pushed by the appellant and sustained injuries

on his knees. He has deposed that Poonam (PW-3) was ahead of

them. PW-2 the mother due to her age could not have chased the

appellant. PW-2 has admitted that her husband and Poonam were

chasing the appellant faster than her. The presence of one or two

persons in the car, as deposed by PW-1 and PW-2, and one person, as

stated by PW-3, is not really a contradiction. PW-3 had a better view

and look at the car as she ran faster and had tried to grapple with the

appellant. The site plan placed on record marked Exhibit PW-22/A

and PW-9/A show the two spots where Sunil and Somnath were shot.

Sunil was shot in front of the house whereas Somnath was shot in

front of Narang Clinic which was at some distance and at the T-point

where the street meets the Rohtak Road. The car was apparently

parked on the Rohtak Road.

13. As noticed above, the examination-in-chief of PW-1, PW-2 and

PW-3 the three eye witnesses, who belong to the same family, was

recorded on 29th May, 2008. On the said date, the counsel for the

appellant was stated to be unwell and the counsel appearing made a

prayer and was granted adjournment. In other words, the cross-

examination of PW-1, PW-2 and PW-3 was deferred till 20th August,

2008.

14. On 20th August, 2008, the appellant engaged another counsel

Mr. Mahipal Singh. However, the previous counsel Ms. Bindia

Malhotra, Advocate was present and stated before the court that she

was ready for cross-examination. Mr. Mahipal Singh, Advocate,

claimed that he was engaged only on the said date and was not in a

position to carry out cross-examination. The trial court passed the

following order:

" The counsel submits that he has been engaged only today and won‟t be able to carry on the cross examination. The examination of this witness was already recorded on 29.05.08.

Thereafter, the accused sought adjournment for today as his counsel was not available on 29.05.08. Today, the accused has brought new counsel. The previous counsel Ms. Bindiya Malhotra is also present who is ready for cross

examination but the new counsel seeks adjournment.

It appears from overall circumstances that accused is deliberately avoiding the recording the cross examination of this witness. He even failed to inform his previous counsel who is ready with brief to cross examine the witness regarding the engagement of a new counsel by him. The witness is to be treated like a guest as per the judgment of Hon‟ble Supreme Court of India he should not suffer any harassment or humiliation.

In these circumstances, the witness is again put to the accused and his new counsel for cross examination but he has expressed his inability.

XXX by accused Nil (opportunity given).

RO&AC."

15. Order sheet of the trial court reveals that on 20 th August, 2008

the appellant had filed an application for interim bail on the ground

that his wife was unwell. This application was dismissed on 20 th

August, 2008 recording that counsel for the appellant was not inclined

to cross-examine witnesses and his conduct was not appropriate as he

was avoiding cross-examination. It was recorded that there appeared

to be something amiss and fishy. The appellant was subsequently

granted interim bail vide order dated 30th September, 2008 by the

High Court in Bail Application No. 1820/2008 for a period of six

weeks on the ground that his wife was undergoing treatment. Om

Prakash (PW-1) and Babli (PW-2) thereupon filed an application for

cancellation of bail wherein it was alleged that after the release the

appellant had started threatening them. The said application was

disposed of vide order dated 8th October, 2008 requiring PW-1 and

PW-2 to move to the High Court, and through legal aid, if required.

The appellant surrendered thereafter on 15th November, 2008. There

was another change in counsel and on or about 7th March, 2009 an

application under Section 311 Cr.P.C. was moved for recalling of PW-

1, PW-2 and PW-3 for their cross-examination. This was allowed

vide order dated 20th July, 2009 recording that only one opportunity

would be granted and in case the said witnesses were present, no

further date would be given.

16. PW-1, PW-2 and PW-3 were thereafter cross-examined on 16th

November, 2009. PW-1 and PW-2 in their cross-examination took a

somersault and deposed that it was dark and they had covered

themselves with the sheet to avoid mosquitoes. They uncovered their

face after hearing the noise of the gun shot. Assailant had already left

the spot and was at a distance. Due to darkness and distance they

could not identify/see the assailant. They deposed that the appellant

was never shown to them by the police after the occurrence at the time

of investigation. PW-1 went to the extent of stating that he had seen

the appellant for the first time in the court when his statement was

recorded on 29th May, 2008. PW-1 and PW-2 deposed that their

earlier statements made on 29th May, 2008 was at the behest of the

police officers present outside the court who had tutored them and had

asked them to identify the appellant as the person who had committed

murder of their son. PW-1 went to the extent of stating that he had

not signed papers of arrest of the appellant and police had never made

any inquiry from him. Appellant was innocent and had been falsely

implicated. PW-3 had stated that it was night time, there was no

electricity at the spot and the deceased was sleeping at a distance from

their house. At the time of occurrence she was sleeping and woke up

after hearing the gun shot noise. She had not seen the person who had

fired the gun shot at her cousins, as the assailant had absconded. The

appellant, who was present in the court was never shown to her by the

police at any point of time before her deposition in the court and in

fact she had seen the appellant for the first time in the court when her

statement was recorded on 29th May, 2008. She has claimed that her

earlier statement was tutored and she had identified the appellant at

the behest of the police. She claimed that the appellant had never

grappled with her and never pushed her and she had not received any

injuries. She had not seen the appellant at the spot and

he had not uttered any word to her after the occurrence. She has

claimed that the appellant was innocent and had been falsely

implicated by the police.

17. There are number of reasons why we feel that the statements

made by PW-1, PW-2 and PW-3 in the cross-examination are not the

true and correct version and the earlier depositions made on 29th May,

2008 should be relied upon as truthful and correct. We have narrated

the court proceedings and how and in what manner the appellant

failed to and did not cross-examine the three witnesses. After he was

released on interim bail for six weeks, PW-1, PW-2 and PW-3 were

specifically recalled for cross-examination. PW-1 and PW-2, during

this time, had moved an application alleging that the appellant had

threatened them. This is clearly a case in which the appellant had

succeeded in threatening the eye witnesses PW-1, PW-2 and PW-3.

The change in stand cannot be explained for any other reason. PW-1

and PW-2 are the parents and it is difficult to perceive that they would

have made a false statement for monetary consideration. Similarly,

PW-3 is the cousin sister and obviously was close to the two brothers

who have died. She was emotionally attached and had broken down

twice when her examination-in-chief was recorded on 29th May, 2008.

18. PW-1, PW-2 and PW-3 were re-examined by the Public

Prosecutor on 16th November, 2009 in view of the testimonies in their

cross-examination. PW-1 and PW-2 admitted in the re-examination

by the Additional Public Prosecutor that they knew the appellant from

before as he was residing in premises No. E-39, Camp No. 2, Nangloi.

PW-1 further accepted that the appellant was granted interim bail by

the High Court vide order dated 30th September, 2008 and he had filed

an application for cancellation of the interim bail (Exhibit PW-1/PX),

which was signed by him at point A. On the question, who had

pressurized or tutored him to make a false statement, PW-1 has stated

that he did not remember whether the police officer was Head

Constable, ASI, SI or IO. He has further deposed that he had not

made any complaint to the senior police officers that he had been

pressurized to make a statement against the appellant or that the

appellant had not killed his two sons. PW-2, in her re-examination by

the Public Prosecutor, denied having moved any application for

cancellation for interim bail which is factually untrue and false. She,

however, accepted that she had not complained to any police officer

about pressure being put on her to implicate the appellant as the

murderer of her two sons. PW-3 who had resiled from her earlier

statement, in her re-examination, accepted that she was residing at E-

17, Camp No. 2 Nangloi which is adjacent to the residence of PW-1

and PW-2, E-18, Camp No. 2, Nangloi. She has accepted that the

appellant was residing in the same street but claimed that his house

was at a distance. She has accepted that on 29th May, 2008 she had

not stated that a police officer had pressurized her and she did not

remember whether the said police officer was a Head Constable, ASI,

SI, Inspector or IO of the case. She did not make any complaint to a

senior police officer.

19. It has come on record that the investigating officer of the present

case Inspector Ishwar Singh expired on 10th March, 2008 and this has

been recorded in the order of the trial court dated 20th July, 2009.

Consequently, he was directed to be deleted from the list of witnesses.

Thus, there was no possibility of the investigating officer, Inspector

Ishwar Singh trying to tutor and pressurize PW-1, PW-2 and PW-3 to

make false allegations against the appellant for having committed

murder of Sunil and Somnath, sons of PW-1 and PW-2 and brother of

PW-3. Even otherwise, there is enough corroborative evidence and

material to support the statement of PW-1, PW-2 and PW-3 recorded

on 29th May, 2008. PW-1 is the complainant and on his statement

(Exhibit PW-1/A) rukka was recorded and the FIR was registered.

PW-1 has admitted his signatures on PW-1/A at point A. The said

complaint PW-1/A specifically refers and mentions the name of the

appellant as the perpetrator who had fired the shots. It states that PW-

2 and PW-3 were present at that time. First Sunil was shot while he

was sleeping on the cot, at 11.00 P.M. at night and then Somnath

came running from upstairs and was shot at, when he tried to catch

him. The appellant had fired another shot at Somnath when he fell

down after he was given a push.

20. The appellant was arrested vide arrest memo (Exhibit PW-

12/D) on 23rd April, 2006 at 5 A.M. The place of arrest as shown is

"Kirari Phatk". Thereafter, the accused was searched and one fire arm

and an empty cartridge was recovered from him vide seizure memo

Exhibit PW-12/E. The seal of IS was put (Exhibit PW-12/F). The

aforesaid seizure memos (Exhibits PW-12/E and PW-12/F) were

proved by Constable Bijender Kumar (PW-12) who was examined on

11th September, 2009. The defence counsel did not examine the said

witness on the ground that first he would like to cross-examine the

public witnesses. Thereafter, the counsel for the appellant did not ask

for re-examination of PW-12 till the trial was over. However, before

us, contention raised is that PW-12 was not produced and permitted to

be cross-examined. The said contention was raised on 8th January,

2013 and was never raised before the trial court, i.e., during the final

arguments. It appears to be an argument of convenience. However,

even if we ignore the statement of PW-12, we have on record

statement of Inspector Rajeev Gunwant (PW-22). He was posted, at

the time of occurrence, as SI in Police Station Nangloi and has

deposed that he had visited the crime spot soon after he had received

call vide DD No. 72B (Exhibit PW-14/A) which was recorded at

11.20 P.M. in the Police Station, on the basis of information given by

Police Control Room. PW-22 has further deposed that when he

reached the spot he came to know that the victims had been removed

to SGM Hospital. At that time he had seen pool of blood and two

used cartridges. Constable Bijender and Constable Raj Kumar also

reached the spot in the meanwhile. He left for the hospital with

Constable Bijender. Constable Vijay and Constable Raj Kumar were

left at the spot. At the hospital, he met Additional SHO Inspector

Ishwar Singh and came to know that Sunil and Somnath were declared

as brought dead vide their MLCs. Om Prakash (PW-1) was present in

the hospital and PW-22 recorded his statement as Exhibit PW-1/A.

He made endorsement on the said statement (Exhibit PW-5/B) which

was signed by him at point A and sent it to the Police Station with

Constable Bijender. Thereafter, along with Inspector Ishwar Singh he

came to the spot, crime team was present and photographs were taken.

He referred to the site plan (Exhibit PW-22/A) which was prepared.

He specifically deposed that Inspector Ishwar Singh had expired on

10th March, 2008. He identified his signatures. He identified the two

used cartridges which were marked Exhibits P-6 and P-7. Those two

used cartridges were produced in a parcel with the seal of FSL Rohini

and were opened. He has deposed that sketches of the empty

cartridges P-6 and P-7, were taken (marked Exhibit PW-22/B) which

was signed by him at point A. The IO seized led of the bullet (Exhibit

P-5) from near the staircase (seized vide memo Exhibit PW-12/C)

which was signed by him at point B. He has deposed that they had

secret information that the appellant was present near "Kirari Fatak"

and they apprehended him and a pistol (Exhibit P-2) along with one

used cartridge (Exhibit P-3) was recovered from him. The sketch

(Exhibit PW-12/E) was prepared and was signed by him at point B.

He proved the arrest memo of the appellant (Exhibit PW-12/D). The

investigating officer thereafter collected the FSL results Exhibits PW-

15/A and PW-15/B and PW-16/A. A green colour Maruti car without

any number plate was seized vide Exhibit PW-18/A and he identified

the photographs of scene of occurrence Exhibit PW-4/A-1 to A-6.

There is nothing in the cross-examination to dent his testimony. The

FSL ballistic report (Exhibit PW-16/A) and the expert opinion as

discussed below supports the prosecution case that the pistol (Exhibit

P-2) was used for firing used cartridges Exhibits P-6 and P-7

recovered from the spot.

21. It is apparent from the aforesaid statement and the statement of

PW-1 (Exhibit PW-1/A) that the appellant was named as the assailant,

immediately after the occurrence.

22. It was submitted and argued before us that there was delay

between the occurrence and when the rukka was sent to the police

station at 1.15 A.M. and thereafter the FIR was recorded at 1.35/2.05

AM. We do not agree. The occurrence had taken place at about 11

P.M. Thereafter, DD entry 72B was recorded in the Police Control

Room at 11.20 P.M. Police officials, including PW-22, then reached

the crime spot but found that the injured had been taken to the

hospital. PW-22 then reached the hospital where he found that the IO

Ishwar Singh was already present there. The two injured were

declared brought dead. The mental condition and status of PW-1 at

that time can be understood as within a span of 50 minutes he lost his

two young sons. PW-1 has deposed that he had earlier lost his third

son Jai Prakash. It would have taken time for PW1 to compose

himself and make statement to the police. PW-22 has stated that he

reached the hospital only at 11.45 P.M. at night. We do not think the

time gap between when the police officer/PW-1 reached the hospital

and when the rukka was sent to the police station, i.e., at 1.15 A.M. is

belated or delayed to create suspicion that the appellant would have

been falsely implicated. In the present case, only one person was

named in the FIR, i.e., the appellant and no one else. The contention

of the appellant, therefore, that there was a time gap between the

occurrence and when the FIR was registered has to be rejected.

23. Another contention raised, on behalf of the appellant, was with

regard to the recovery of the empty cartridges and the led. During the

course of arguments before us, our attention was specifically drawn to

the findings recorded by the trial court in paragraph 28 of the

impugned judgment to the effect that arrest of the accused and

recovery of the country made pistol etc. have been disbelieved. It is

highlighted that the trial court has not relied upon the ballistic report

(Exhibit PW-16/A). We have considered the said contentions but find

that we cannot agree with the findings recorded by the trial court in

paragraph 28 of the impugned judgment. As per PW-22, the appellant

was arrested immediate in the morning at about 5.00 A.M. after the

occurrence had taken place at 11.00 P.M. at night. The FIR was

registered at 2.05 A.M. in the intervening night between 22nd and 23rd

of April, 2006. The fact that the public witnesses did not participate

when the appellant was arrested vide memo (Exhibit PW-12/D) does

not create any doubt. The arrest had taken place early in the morning.

It would be difficult to find a public witness who would have agreed

to join the proceedings at that hour. Regarding the recovery of the

cartridges, there is enough evidence to show that two cartridges were

and one led of a fired bullet were recovered from the spot in question.

As per the police version and as deposed by PW-22 and PW-12, one

used cartridge was found in the fire arm. However, we may note that

the police had not sent the bullet/led recovered from the body of

Somnath for FSL examination. However, this does not mean that the

FSL report (Exhibit PW-16/A) and the findings recorded therein

should be disbelieved. Exhibit PW-16/A was proved by V.R. Anand,

Senior Scientific Officer, Ballistics, FSL, Delhi (PW-21) and

Inspector Prakash Chand (PW-16) who had collected the said report.

PW-21 has submitted that he had given the report after conducting test

of the fire arm and ammunition. He was not cross-examined and his

report, as well as, the testimony remained completely unchallenged.

Exhibit PW-16/A records that the individual characteristics of

striation marks present on fired bullets (Exhibits EB1 and EB2) were

insufficient for comparison on whether they have been fired through

the country made pistol (Exhibit F1) which was seized from the

accused. Exhibit EB1 is a deformed bullet or the led which had been

found at the spot and was identified and given Exhibit No. P-5 in the

statement of PW-22. Eb2 was the intact bullet which was fired from

the said pistol for the purpose of comparison. To this extent,

therefore, the fired led EB1 or Exhibit P-5 could not be collated with

the weapon/fire arm Exhibit P-2 which was recovered from the

appellant. However, paragraphs 2, 4 and 5 of Exhibit PW-16/A read

as under:

"2. The 8 mm/.315" cartridge cases marked exhibit „EC1‟ to „EC3‟ are fired empty cartridge.

4. The three 8 mm/.315" cartridges from laboratory stock were test fired through the .315" bore country made pistol marked exhibit „F1‟ above and test fired cartridges Marked as „TC1‟ to „TC3‟ and the recovered test fired bullets marked as „TB1‟ to „TB3‟.

5. The individual characteristic of firing pin and breech face marks present on evidence fired cartridge cases marked exhibits „EC1‟ to „EC3‟ and on the test fired cartridge cases marked as „TC1‟ to „TC3‟ were examined and compared under the comparison Microscope Model Leica DMC and were found identical. Hence exhibit „EC1‟ to „EC3‟ have been fired through the country made pistol .315" bore marked exhibit „F1‟ above."

24. As noticed above, two fired or empty cartridges Exhibit P-6 and

P-7 were recovered from the spot and the third empty cartridge

Exhibit P-3 (one used cartridge) found in the country made pistol

when seized. Exhibit PW-10/D records that three cartridges of .315

bore were made available to the FSL for test firing. These were test

fired. The test fired cartridges were marked TC1 to TC3. The

microscopic examination of the test fired cartridges TC1 to TC3 and

EC1 to EC3 reveal that they were fired from the same country made

pistol F1, i.e., Exhibit P-2, which was seized from the appellant. The

FSL Report, therefore, clearly corroborates that the empty cartridges

found at the spot (Exhibit P-5 and P-6) were fired from the arm which

was recovered from the possession of the appellant Exhibit P-2. The

cartridge (Exhibit P-3) found in the pistol was fired from the said

pistol.

25. The malkhana moharar Head Constable Tarif Singh has

appeared as PW-10. He has deposed with regard to the deposit of the

seized material. 15 pullandas were sent to FSL for examination and

thereafter the report was received. It was submitted that three

cartridges of .315 bore were deposited belatedly on 30 th June, 2006 by

Inspector Ishwar Singh. The appellant is trying to obfuscate the issue.

PW-10 has clearly deposed that on 23rd April, 2006 ten pullandas with

seal of IS and five pullandas with seal of AJ were deposited vide entry

in register No. 19 with serial No. 5138. Photocopy of the register was

marked Exhibit PW-10/A. On 29th May, 2006, 15 sealed pullandas

were sent to FSL and relevant entry was made in register No. 19.

Subsequently, three cartridges of .315 bore were deposited at serial

No. 5360, in register No. 19, and on 3rd July, 2006 these were sent to

FSL. This is clear from the malkhana register (Exhibits PW-10/C and

PW-10/D). The three cartridges referred to as Exhibit PW-10/C,

which were deposited on 30th June, 2006 were the three cartridges

which were required and subsequently used for test firing. This is

clearly mentioned in document Exhibit PW-10/D.

26. During the course of hearing before us, the counsel for the

appellant had relied upon two extracts. One extract is from "Forensic

Retrieval of Striations on Fired Bullets by using 3D Geometric

Data" sourced from www.firearmsID.com "bullet identification".

The second article is of no relevance as far as the contention of the

appellant is concerned. It was important for the appellant to cross-

examine PW-21 V.R. Anand, Senior Scientific Officer, Ballistics in

case they wanted to question and challenge his report but he was not

cross-examined. The first article relates to striation marks on the fired

bullets. In the present case, as noticed, the striation marks on the one

fired led, which was found at the spot Exhibit P-5, could not be

compared with the test fired led/bullet. There can be number of

reasons for the same. In case the report of PW-21 was incomplete or

he had deliberately favoured the prosecution, the appellant it is

reiterated should have cross-examined and questioned PW-21 in that

regard. We have relied upon FSL report PW16/A in respect of

markings, on the recovered cartridges Ex. P-6 and P-7 and the pistol

Ex. P-2.

27. The clothes and belongings of the deceased and PW-1 were sent

for FSL examination and as per the FSL report (Exhibit PW-15/A and

PW-15/B) blood was detected on all exhibits except on the earth

control. The blood ascertained was of group „A‟ or „O‟. In the case

of blood stained clothes there was no reaction. The blood group and

the origin of the blood could not be ascertained.

28. We may now deal with some other contentions raised by the

appellant and citations relied upon by them. It is submitted that the

neighbours from the colony were not cited as witnesses. It is

submitted that PW-1, PW-2 and PW-3 had pointed out that one-two

persons were present in the car but no investigation was done by the

police in that regard.

29. The appellant was a neighbour and the occurrence had taken

place at night at about 11 P.M. PW-1, PW-2 and PW-3 were not

cross-examined on whether the neighbours had seen the occurrence.

Further, the fact that no details or identity of one or two others who

were in the car could be ascertained, is inconsequential in the present

case. Decision of this Court in the case of Udhal Singh versus State

(Criminal Apppeal No. 394/2009 decided on 3rd December, 2009) is

on the factual matrix in the said case. It cannot be said that any legal

principle has been culled out or expounded. Similarly, reliance placed

upon Rai [email protected] Deepu versus State of NCT of Delhi (Criminal

Appeal No. 2486/2009 decided by the Supreme Court on 7th August,

2012) is misconceived. In the said case, it was noticed that the

prosecutrix had taken u-turn in her cross-examination and had gone on

to say that she did not know the accused prior to the incident and had

also stated certain other exculpating facts. Keeping in view the facts

of the said case, observations were made in paragraph 15 of the said

judgment wherein it has been observed that truthfulness of the

statement made by witness is an important circumstance. Statement

of the witness should be natural and consistent with the case of the

prosecution, qua the accused, and the witness should be able to

withstand the cross-examination and then only it can be relied upon.

On the said aspect we would like to refer to Khujji @ Surendra

Tiwari versus State of Madhya Pradesh, (1991) 3 SCC 627. In the

said decision, it has been observed that evidence of witnesses declared

hostile is not wholly effaced from the record. That part of evidence,

which is otherwise acceptable, can be acted upon. This, of course,

requires careful scrutiny and the court has to be satisfied about the

credibility of the truth stated in the version, on the part they are

accepting. To the extent their version is found to be dependable and

acceptable, the statements can be read and used for conviction. Even

in case of witnesses who are related to the deceased or victim, their

evidence is not to be overlooked on this ground. Statements of such

witnesses may require strict scrutiny but can be accepted when the

court is satisfied that they were present at the spot and had seen the

occurrence. In such cases, care has to be taken that in addition to the

accused, others related or close to the accused are not implicated.

Regarding hostile witnesses, it was elucidated in Rameshbhai

Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111:

"16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singhv. State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7 : AIR 1976 SC 202] ,Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] , Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59 : AIR 1979 SC 1848] and Khujji v. State of M.P. [(1991) 3 SCC 627 : 1991 SCC (Cri) 916 : AIR 1991 SC 1853] )

18. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402 : JT (2010) 9 SC 95] this Court, after considering all the earlier decisions on this point, summarised the law applicable to the case of hostile witnesses as under: (SCC pp. 596-97, paras 83-

85) "83. ... the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (Vide Sohrab v.State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819 : AIR 1972 SC 2020] , State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] , Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] , State of Rajasthan v. Om Prakash [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411 : AIR 2007 SC 2257] , Prithu v. State of H.P.[(2009) 11 SCC 588 : (2009) 3 SCC (Cri) 1502] , State of U.P. v. Santosh Kumar[(2009) 9 SCC 626 :

(2010) 1 SCC (Cri) 88] and State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] .)"

30. Before we part, it would be pertinent to reiterate the observation

of the Supreme Court in Zahira Habibulla H. Sheikh v. State of

Gujarat (2004) 4 SCC 158:

41. "Witnesses", as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clout and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There

comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert the trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short "the TADA Act") have taken note of the reluctance shown by witnesses to depose against dangerous criminals/terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before courts mere mock trials as are usually seen in movies.

42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not

more, as the interests of the individual accused. In this courts have a vital role to play.

31. In view of the aforesaid findings, we uphold the conviction and

sentence awarded to the appellant under Sections 302 and 323 IPC.

The appeal is dismissed.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(SIDDHARTH MRIDUL) JUDGE APRIL 8th, 2013 VKR