Babu vs State
2013 Latest Caselaw 2516 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 837/2010

       BABU                                        ..... Appellant
                            Through:    Mr. Imran Ahmed, Advocate.

                            versus

       STATE                                       ..... Respondent
                            Through:    Ms. Ritu Gauba, APP.


%                           Date of Decision: May 29, 2013

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: SUNITA GUPTA, J.

1. Subject matter of challenge in this appeal is the judgment dated

15.12.2009 in Sessions Case No.26/2009 arising out of FIR

No.170/2004, Police Station Khajuri Khas, Delhi. The appellant

has been convicted under Section 302 of the Indian Penal Code

(IPC), 1860 and Section 27 of the Arms Act, 1959 and sentenced

to rigorous imprisonment for life for the offence under Section 302

IPC and fine of Rs.1,000/-, in default to undergo rigorous

imprisonment for one month. He was further sentenced to 7 years

rigorous imprisonment and fine of Rs.500/-, in default 15 days

rigorous imprisonment for offence under Section 27 of the Arms

Act.

2. The case of the prosecution emanates from the fact that on

30.04.2004, DD No.4A, Exhibit PW6/B was recorded at Police

Station Khajuri Khas, Delhi regarding incident of firing at House

No.818, Gali No.6, E-Block, Shri Ram Colony. This DD was

marked to SI Sri Pal (PW19) for investigation, who along with

constable Maharaj Singh reached the aforesaid place and came to

know that injured Kohinoor has already been shifted to GTB

hospital. After leaving constable Maharaj at the spot, SI Sri Pal

went to GTB hospital, collected the MLC of injured Kohinoor.

She was having gunshot injuries. The doctor has mentioned the

injured „unfit for statement and injured was already shifted to

operation theatre‟. Roop Chand, son of injured (PW2) met SI Sri

Pal. He recorded his statement, Ex.PW2/A, wherein he stated that

he along with his mother and step father Ubed is residing at house

No.818 Gali No.6, E-Block, Shri Ram Colony, New Delhi. He is a

student of sixth standard in Varun Nursery School, Khajuri Khas.

His mother earlier used to reside with Babu. She got married to

Ubed about one week ago. Babu quarrelled with his mother on this

account several times. On that day, he had not gone to school as it

was raining and was present at the house. At about 8:15 a.m.,

Babu came to their house. At that time, his mother was cooking

food and his step father Ubed was lying on takhat. He was also

present on the takhat. Babu started quarrelling with his mother

Kohinoor and step father Ubed and demanded the articles. His

mother declined. Then, Babu grappled with his mother. Babu took

out a small gun from pocket of his pant and fired at his mother, a

result of which blood started oozing out from her abdomen. In the

meantime, he also heard a noise like bursting of cracker. Babu ran

away from the spot. On this statement, SI Sri Pal prepared rukka

Ex.PW19A and sent the same through Constable Maharaj Singh to

police station for registration of FIR. Inspector Vinita Tyagi

(PW6) registered FIR No.170/2004 under Section 307 IPC. SI Sri

Pal prepared site plan Ex.PW19/B at the instance of complainant.

He lifted blood from the spot, empty bullet lying beneath the table,

one patila of aluminium with bullet mark, broken red coloured

bangles vide seizure memo Ex.PW13/A. In the meanwhile,

DD No.12A-Ex.PW6/D was received from Constable Mukesh

Kumar of GTB hospital regarding death of injured Kohinoor in the

hospital. Thereafter, Section 302 of the Indian Penal Code was

added. Investigation was handed over to Additional SHO

Inspector Rajinder Pathania (PW18). Inquest proceedings were

conducted. Post-mortem of the dead body was conducted by

Dr.S.Lal (PW5) on 01.05.2004. Thereafter, the dead body was

handed over to the relatives of the deceased.

3. On 01.05.2004, accused Babu Khan was arrested vide arrest memo

Ex.PW18/F. He pointed out the place of incident vide

Ex.PW18/G. He had disclosed in his disclosure statement

Ex.PW18/F-2 that while fleeing away from the spot he reached at

Wazirabad bypass and threw the katta in ganda nala. He pointed

out the place where the weapon of offence was thrown. Pointing

out memo to that effect Ex.PW18/G-1 was prepared. The weapon

of offence could not be recovered. During investigation, the

Investigating Officer seized the nikahnama produced by Ubed

regarding his marriage with deceased Kohinoor. The scaled site

plan Ex. PW9/A was prepared by SI Mukesh Jain (PW9). Exhibits

were sent to FSL, Rohini, from where report Ex.PW21/A was

received. After completing investigation, charge sheet was

submitted.

4. Vide order dated 24.01.2005, charge for the offences under

Section 302 of the IPC and Section 27 of the Arms Act was

framed to which the accused pleaded not guilty and claimed trial.

In order to substantiate its case, prosecution examined 23

witnesses. The accused in his stated recorded under Section 313

Cr.P.C. denied the case of prosecution, claimed his innocence and

alleged false implication in the case.

5. By the impugned order dated 15.12.2009, the appellant was

convicted and sentenced separately, which has been assailed by

filing the present appeal.

6. We have heard Mr. Imran Ahmed, learned counsel for the

appellant and Ms. Ritu Gauba, learned APP for the State. It was

submitted by learned counsel for the appellant that the FIR is ante

timed in as much although the same was recorded on the statement

of Roop Chand (PW2), however, Roop Chand in his cross

examination has deposed that his statement was recorded on the

next day in the evening. Moreover, no reliance can be placed on

his testimony as he was only a child aged about 11 years. The

other prosecution witnesses, namely, Suleman and Ubed have not

fully supported the case of prosecution. As such, impugned order

deserves to be set aside. Rebutting the submissions of the learned

counsel for the appellant, it was submitted by Ms. Ritu Gauba,

Additional Public Prosecutor for the State that the testimony of

Roop Chand, who although was a child witness is wholly reliable,

prompt, untutored and finds corroboration in material particulars.

Reliance was placed on State of M.P. vs. Ramesh and Anr., 2011

(Cri) LJ 2297; Promode Dey vs. State of West Bengal, AIR 2012

SC 1598, Dinesh Prajapati vs. State of M.P., 2012 (Cri) LJ 1212,

Alagupandi @ Alagupandian vs. State of Tamil Nadu, AIR 2012

SC 2405 and Raj Kumar @ Guddu vs. The State of Delhi,

Crl. A.No.1472/2010 decided on 21.12.2012 by this Court. It was

further submitted that ocular testimony of the prosecution

witnesses find substantial corroboration from the medical as

well as scientific evidence. The impugned order does not

suffer from any anomaly which calls for interference. As such,

the appeal is liable to be dismissed.

7. As regards the actual incident, prosecution case hinges on the

testimony of (PW1) Suleman, (PW2) Roop Chand, (PW4) Uma

and (PW22) Ubed. As held in State of U.P. vs. Krishna Master

and Ors., AIR 2010 SC 3071, before appreciating evidence of the

witnesses examined in the case, it would be instructive to refer to

the criteria for appreciation of oral evidence. While appreciating

the evidence of a witness, the approach must be whether the

evidence of witness read as a whole appears to have a ring of truth.

Once that impression is formed, it is undoubtedly necessary for the

Court to scrutinize the evidence more particularly keeping in view

the deficiencies, drawbacks and infirmities pointed out in the

evidence as a whole and evaluate them to find out whether it is

against the general tenor of the evidence and whether the earlier

evaluation of the evidence is shaken as to render it unworthy of

belief. Minor discrepancies on trivial matters not touching the core

of the case, hyper-technical approach by taking sentences torn out

of context here or there from the evidence, attaching importance to

some technical error committed by the investigating officer not

going to the root of the matter would not ordinarily permit

rejection of the evidence as a whole. If the court before whom the

witness gives evidence had the opportunity to form the opinion

about the general tenor of the evidence given by the witness, the

appellate court which had not this benefit will have to attach due

weight to the appreciation of evidence by the Trial Court and

unless the reasons are weighty and formidable, it would not be

proper for the appellate court to reject the evidence on the ground

of variations or infirmities in the matter of trivial details. Minor

omissions in the police statements are never considered to be fatal.

The statements given by the witnesses before the police are meant

to be brief statements and could not take the place of evidence in

the court. Small/trivial omissions would not justify a finding by

the court that the witnesses concerned are liars. The prosecution

evidence may suffer from inconsistencies here and discrepancies

there, but that is a short-coming from which no criminal case is

free. The main thing to be seen is whether those inconsistencies go

to the root of the matter or pertain to insignificant aspects thereof.

In the former case, the defence may be justified in seeking

advantage of incongruities obtaining in the evidence. In the latter,

however, no such benefit may be available to it. In the deposition

of witnesses, there are always normal discrepancies, howsoever,

honest and truthful they may be. These discrepancies are due to

normal errors of observation, normal errors of memory due to

lapse of time, due to mental disposition, shock and horror at the

time of occurrence and threat to the life. It is not unoften that

improvements in earlier version are made at the trial in order to

give a boost to the prosecution case albeit foolishly. Therefore, it

is the duty of the Court to separate falsehood from the truth. In

sifting the evidence, the Court has to attempt to separate the chaff

from the grain in every case and this attempt cannot be abandoned

on the ground that the case is baffling unless the evidence is really

so confusing or conflicting that the process cannot reasonably be

carried out. In the light of these principles, this Court will have to

determine whether the evidence of eye-witnesses examined in this

case proves the prosecution case.

8. Most material witness, in the instant case, is PW2 Roop Chand,

whose testimony was attacked by learned counsel for the appellant

on the ground that he is a child witness. It is well settled that the

court can place reliance on the solitary testimony of a witness even

if it is a child, if the evidence is found to be true and correct

version of the case of the prosecution. The court, after careful

scrutiny of its evidence is required to be convinced about the

quality and reliability of the same (Ratan Singh Dalukhbai Nayak

vs. State of Gujarat, 2004 (1) SCC 64).

9. In State of M.P. vs. Ramesh (supra) it was held that a child would

not be a competent witness unless the trial court finds him

otherwise and that the court may rely upon the evidence of such

child witness in the event his deposition inspires the confidence of

the court and there was no embellishment or improvement. The

Court may also reject the testimony of such child witness if it is

found that the child has been tutored, which inference can be

drawn from the contents of the deposition. In this judicial

precedent, the court placed reliance on prior judgments related to

child testimony.

10.Reference was made to Rameshwar vs. State of Rajasthan, AIR

1952 SC 54, where Court examined the provisions of Section 5 of

Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872

and held that:-

"every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other casue of the same kind. There is always competency in fact unless the Court considers otherwise."

The Court further held as under:-

"..... it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate..... "

11.Reference was also made to Panchhi and Ors. Vs. State of U.P.,

AIR 1998 SC 2726, where while placing reliance upon a number

of earlier judgments, it was observed that:-

"the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a

witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

12.In Krishna Master (supra), Hon‟ble Apex Court held that:-

"there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."

13.Substantially, similar view was taken in Promode Dey (supra),

Dinesh Prajapati (supra), Alagupandi (supra) and Raj Kumar

(supra).

14.In view of the legal proposition enunciated above, a child witness

is a competent witness provided statement of such witness is

reliable and truthful. A conviction can be based on the sole

testimony of a child witness. The only precaution, which the Court

should bear in mind while assessing evidence of a child witness is

that witness must be a reliable one and his demeanour must be like

any other competent witness and that there exists no likelihood of

being tutored. There is no rule of practice that in every case

evidence of such a witness be corroborated by other evidence

before a conviction could be allowed to stand, but as a rule of

prudence, court always finds it desirable to seek corroboration to

such evidence from other reliable evidence placed on record.

15.In the instant case, at the very first available opportunity, the

witness had given a vivid picture of the entire incident which

formed the basis of registration of case FIR. Thereafter, when the

witness was produced in the Court, keeping in view his tender age

as he was only about 11 years and oath could not be administered

to him, several questions were put to him by learned Additional

Sessions Judge in order to ascertain his capability to understand

the questions. After recording his satisfaction, his statement was

recorded, wherein he deposed that his mother Kohinoor was killed

by fire shot by accused Babu. At the time of incident, he along

with his mother and step father Ubed were present in the house. At

about 8 a.m., his step father Ubed was lying on his bed and he was

switching off TV and his mother was cooking food. Accused

came to the house and demanded articles from his mother, but she

declined. Thereafter, accused took out a katta from his pocket and

fired shot at his mother. His mother received bullet injuries on her

stomach and started bleeding. His uncle Raju went to police

station to inform about the incident. He lodged complaint

Ex.PW2/A at police station which bears his signature at point A.

After firing shot at his mother, accused ran away. He identified the

dead body of his mother in the hospital and signed the statement

Ex.PW2/B in this regard. Before living with Ubed, his mother

used to reside with accused Babu. Before firing shot at his mother

accused had quarrelled with her and manhandled her. Only one

shot was fired at his mother. The witness was subjected to cross-

examination by learned counsel for the accused. However, nothing

material could be elicited to discredit his testimony and he

withstood the test of cross-examination. There was no question of

tutoring of the witness in as much as the witness was produced

from Children Home, Lajpat Nagar. He was son of Kohinoor from

her first husband. May be after the incident, he was not kept by

Ubed and therefore, he was living at Children Home, Lajpat

Nagar from where he was produced in the Court. In cross-

examination he deposed that nobody tutored him about the

statement given by him in the Court. His mausa and mausi,

namely, Reshma used to see him at Children Home at Lajpat

Nagar, however, they did not tell him anything about this case and

in fact they last met him 5 months ago prior to his deposition in

the Court. Under the circumstances, there was no question of

tutoring of the witness by anybody and he had given the exact

version of the incident. He is a totally truthful and reliable witness,

conviction of accused can be based on his sole testimony.

16.As regards the submission that in cross-examination witness stated

that his statement was recorded next day, therefore, the FIR was

ante timed, same is devoid of substance as being a small child, he

may have got confused regarding different statements as on the

next day, his statement Ex.PW2/B was recorded regarding

identification of dead body.

17.Furthermore, his testimony finds substantial corroboration from

other witnesses. PW1 Suleman is the landlord, where deceased

Kohinoor was residing along with her son as a tenant. The witness

has testified that accused Babu used to visit the house of deceased

Kohinoor. 10-15 days prior to the incident, a dispute had taken

place between the accused and Kohinoor. In pursuance to a query

made by him as to what was her relation with accused, she

informed him that Babu was known to her therefore he visits her

house. As regards the incident he has deposed that on 30.04.2004,

he had left the house at around 7:00 a.m. for Bhajanpura for his

work and returned back to his house at around 8/8:15 a.m. He was

present near the main gate of his house. Accused Babu came and

went inside the room of Kohinoor. He heard a noise as if a cracker

or a cycle tube had burst, from inside the room of Kohinoor. Ubed

was sitting in the room of Kohinoor at that time. He saw accused

coming out of the room of Kohinoor and he started running. He

was chased by Ubed by shouting „goli maar di, goli maar di‟.

After one or two minutes one Raju also reached the room of

Kohinoor. He saw Raju tying chunni on the stomach of Kohinoor

to stop flow of blood. On his inquiry, as to who had fired at her,

Kohinoor replied that accused Babu has fired on her. Ubed could

not apprehend accused Babu, though he chased him till the halwai

shop. When accused fired at Kohinoor at that time one neighbour

namely, Uma and son Roop Chand were also present. He brought

a three-wheeler scooter and removed Kohinoor to hospital with the

help of Raju. Ubed returned back to the room and informed him

that he is going to arrange money for the treatment. He informed

Police Control Room from nearby STD booth. He further stated to

the Police Control Room that he had given information that a

tenant had fired a shot to another tenant due to perplexed

condition. Since the witness did not support the case of

prosecution in regards to some particulars, he was cross-examined

by learned APP and in cross-examination, he admitted that Ubed

chased accused while shouting that he had fired at Kohinoor. He

also admitted that Ashiq Ali, whom he also knows as Raju was

also present in the room of Kohinoor and he tied a chunni on the

wound of Kohinoor to stop blood. He also admitted that Raju and

Roop Chand took Kohinoor to hospital and thereafter Ubed also

went to hospital.

18.It has also come in the testimony of PW4 (wrongly numbered as

PW3) Uma that in the year 2004 she was residing at Khajuri Khas,

Shri Ram Colony near the house of Kohinoor. She used to do

household work in the house of Kohinoor. On the date of incident,

she had gone to the house of Kohinoor for taking her child Roop

Chand to school, however, Roop Chand told her that after

finishing his homework he will go to school. She was standing

near the door of the house of Kohinoor waiting for Roop Chand,

when accused Babu reached there. After some time she heard the

noise of gunshot and Kohinoor immediately rushed and told her

that she was shot by Babu. She (Uma) went to call her mother

from her house and then went to hospital, however, she was not

allowed to see Kohinoor as she was shifted to the operation

theatre. Later on, she came to know that Kohinoor had died. In

cross-examination, she reiterated that at the time of incident

Kohinoor, her husband and her son were present in the house and

that when Kohinoor came out of the room, she shouted that she

had been shot by accused Babu.

19.It has come in the statement of PW22 Ubed that Babu was known

to him as he is of his village Kakrala, Police Station Allapur,

District Bidayaun, U.P. According to him, in the year 2004, he had

gone to leave his son Roop Chand to his school and when he

returned back from the school, he saw his wife Kohinoor having

gunshot injuries on her stomach and she was taken out by the

landlord from the premises. His wife asked him to call Roop

Chand from the school. Ashiq Ali brought back his son Roop

Chand from the school. Roop Chand and Ashiq Ali took his wife

to hospital, while he went to arrange money and reached hospital

after some time. According to him, the incident of firing did not

take place in his presence. He handed over the nikahnama

Ex.PW3/A of his marriage with deceased Kohinoor to the police.

Before his marriage with the deceased, she was residing with

accused Babu. He was earlier residing as tenant at the house of

accused Babu. Since witness did not support the case of

prosecution in all material particulars, as such, he was cross-

examined by learned prosecutor and in cross-examination he

admitted that accused Babu was residing with his wife Kohinoor

in Khajuri Khas. He also stayed in the said house as a tenant for

about six months and during this period, he developed a love

relationship with deceased and they decided to marry. Thereafter,

they got married and deceased Kohinoor along with her son Roop

Chand started living with him in E-Block, Shri Ram Colony,

Delhi. However, he denied the case of prosecution that in his

presence accused had demanded the articles from Kohinoor and on

her refusal he fired at her or that he chased Babu, but could not

succeed in apprehending him.

20.The law is now well settled that even if a witness does not wholly

support the case of the prosecution his testimony is not to be

discarded altogether, and that part of the testimony of the witness

can be considered and relied upon as supports the case of

prosecution. It is the consistent view taken by Apex Court and this

Court that the fact that the witness has been declared hostile at the

instance of public prosecutor and was allowed to be cross-

examined furnishes no justification for rejecting en block the

evidence of the witness. The evidence of such witness cannot be

treated as effaced or washed off the record altogether but the same

can be accepted to the extent his version is found to be dependable

on a careful scrutiny thereof, as held in State of Gujarat vs.

Anirudh Singh and Anr., (1997) 6 SCC 514; Radha Mohan

Singh @ Lal Sahib and Ors. Vs. State of U.P., (2006) 2 SCC 450;

Mahesh vs. State of Maharastra, (2008) 13 SCC 271; Rajender

and Anr. Vs. State of U.P., (2009) 13 SCC 480; Govindapa and

Anr. Vs. State of Karnatka, (2010) 6 SCC 533; Paramjit Singh @

Pamma vs. State of Uttrakhand, AIR 2011 SC 200; Rameshbhai

Moahanbhai Koli and Ors. Vs. State of Gujarat, (2011) 3 SCC

(Cri) 102.

21.In view of the same, even if Ubed has not supported the case of

prosecution in all material particulars and in fact has tried to show

that even Roop Chand was not present at the spot, there is other

clinching evidence available on record to prove the presence of

Roop Chand at the spot. PW1 Suleman and PW4 Uma have

deposed in categorical terms that at the time of incident Roop

Chand was present at the spot and in fact he had accompanied the

injured to hospital and was the first one to give the narration of the

incident to the police officials, which stands substantiated by SI

Sri Pal, who recorded his statement Ex.Pw2/A and got the case

registered. As such, testimony of Roop Chand finds substantial

corroboration from the ocular testimony of PW1 Suleman and

PW4 Uma. There is no reason to disbelieve their testimonies. A

vague suggestion was given to PW1 Suleman that Ubed was

running a gang of women from Bangladesh, who used to enter into

mock marriages with innocent persons, with a view to loot them

and Kohinoor was also a part the same gang and a person named

Suresh, son of Rajender had lodged a complaint to the DCP, North

East District naming him and others as part of the gang. Firstly

this suggestion had been denied by the witness, moreover, it does

not appeal to reason that even if the same has some ring of truth

then for that reason why accused would be falsely implicated in

this case, particularly when no enmity is alleged against Suleman

or Uma or for that matter Roop Chand. He was a child, who was

earlier residing with Babu along with his mother and after the

mother entered into nikahnama with Ubed, he started living with

him in Shri Ram Colony. Therefore, absolutely no animosity or ill

will has come on record against any of these witnesses for which

reason they would falsely implicate the accused in this case.

Rather the motive is apparent even from the testimony of PW22

Ubed that deceased Kohinoor was wife of Babu, who after leaving

him entered into nikahnama with Ubed and started residing with

him. She had also brought some articles with her. Babu was

claiming return of the articles and wanted her to come to reside

with him to which she declined and on the fateful day also the

accused came, demanded return of articles. On her refusal, he

manhandled her and ultimately fired shot at her in her abdomen,

which proved fatal. Even otherwise, since direct evidence

regarding assault is worthy of credence, motive assumes

secondary role as held in Bhagirath and Ors. vs. State of

Haryana, AIR 1996 SC 3431; Molu vs. State of Haryana, AIR

1996 SC 2499; Mohinder vs. State, 2010 VII AD (Delhi) 645.

22.The ocular testimony of witnesses finds substantial corroboration

from medical evidence. On receipt of DD No.4A, SI Sri Pal

(PW19) went to the spot, where he came to know that injured has

been shifted to GTB hospital. As such he went to GTB hospital

and collected MLC of Kohinoor where she was declared unfit for

statement. She was having gunshot injuries and was in operation

theatre. Ultimately, the injured succumbed to the injuries. Post

mortem on the dead body of Kohinoor was conducted by

Dr. S.Lal, who found following injuries on the dead body:-

"Firearm entry wound 2.5 x 1.5 cm x cavity deep

present on right side of upper abdomen over anterior

axillary line. The bone is placed 14 cm from the

right to midline, 24 cm below the armpit and 14 cm

above the iliac crest. The blackening present around

the margins with charred skin. The wound enter the

body in abdominal cavity to lacerate the inferior

aspect of right lobe of liver and then perforated the

bowel and stomach through and through and then

come out from abdominal cavity by making exit

wound in size of 1 x 0.5 cm on left side upper

abdomen. The wound is placed 10 cm left the

midline and 15 cm below the left nipple. The margin

on the wound is everted. About 3 lt. of blood present

in the abdominal cavity. The missile of firearm

again enter the left upper forearm on middle aspect

by making a entry wound, size 0.8 x 0.5 cm placed

8.5 cm below the elbow joint and 14 cm above the

wrist joint. The wound goes downward and

backward direction under the skin and comes out

from the dorsum of forearm by making an exit

wound in size of 0.6 cm x 0.5 cm placed 8 cm above

the wrist joint and 13 cm below the elbow joint. The

length of the track is about 6.5 cm. The injury is

caused by missile of firearm not by pellets as

mentioned in MLC No.A 1644/04 made by ACMO

of dated 30th April, 04."

23.The cause of death is haemorrhagic shock due to ante mortem

injury to abdominal organs produced by projectile of forearm and

sufficient to cause death in ordinary course of nature. The ocular

version given by PW2 Roop Chand that only one fire was shot at

his mother finds substantial corroboration from this post mortem

report, which reflect that the firearm entered the right side of upper

abdomen and came out from abdominal cavity by making an exit

wound. The missile of firearm again entered the left upper forearm

on middle aspect by making an entry wound and came out from

the dorsum of forearm by making an exit wound. It seems that

when the missile came out by making an exit wound above the

wrist joint, it hit the „bhagauna‟ lying in the room as the

„bhagauna‟ was also having mark of bullet which was seized from

inside the room. This corroborates the version of not only Roop

Chand that he heard a noise like that of a cracker but also the

testimony of PW1 Suleman and PW4 Uma, both of whom have

deposed that they heard the noise like bursting of cracker.

24.The testimony of the prosecution witnesses also finds support

from scientific evidence. It has come on record that from the spot,

broken pieces of red coloured bangles, one aluminium „patila‟

having bullet mark, one deformed bullet were seized vide seizure

memo Ex.PW13/A. After post mortem, Dr. S.Lal preserved the

deceased‟s blood soaked in gauze piece and handed over the same

to the Investigating Officer. Clothes of the deceased were also

taken into possession. During the course of investigation, all the

exhibits were sent to Forensic Science Laboratory, from where

report Ex.PW23/A was received given by Shri Naresh Kumar,

Senior Scientific Assistant. As per report blood was detected on

„bullet head‟, „blood stained earth‟, again „blood stained earth‟,

„blood soaked in gauze‟ and a „ladies shirt‟. As per serological

report Exhibit PW23/B, the bullet head, blood stained earth, blood

stained earth, bloodstained gauze and ladies shirt were opined to

have „human blood‟, however, no reaction could be found on

„earth control‟. The bloodstained gauze and the ladies shirt were

opined to be of „O‟ group.

25.The biology division had referred two parcels bearing Nos.1 and

10 containing „one deformed bullet‟ marked Ex.EB1 and one

„bhagauna‟ marked as Ex.C1. Same were examined by

Shri K.C.Varshney (PW21), who gave his report Ex.PW21/A and

found that deformed bullet marked EB1 corresponds to the bullet

of 8 mm/.315" cartridge. The hole marked H1 on „bhagauna‟

marked C1 was caused by a cupro jacketed bullet discharged

through a firearm. The deformed bullet marked „EB1‟ was part of

ammunition as defined in Arms Act. As such, the case of

prosecution finds substantial corroboration from scientific

evidence also.

26.The recovery of weapon of offence, however, could not be

effected in as much as it has come on record that on 01.05.2004,

accused was arrested from Anand Vihar, ISBT at about 9 p.m.

During interrogation, he made a disclosure statement Ex.PW18/F-

2 disclosing that he had thrown away the country made pistol used

in the offence in the ganda nala near Wazirabad bridge. The

weapon was searched in the ganda nala with the help of divers but

could not be traced out. However, non-recovery of weapon of

offence during investigation is not such an important factor to

neutralise the direct evidence of complicity of accused in the

murder of deceased as held in Mahender vs. State, 2010 (VII) AD

(Delhi) 645; Tejender Singh @ Kaka and Anr. Vs. State, 2013

(IV) AD (Delhi) 73. The accused did not give any plausible

explanation to the incriminating circumstances proved against

him. He did not examine any witness to prove false implication

due to any ill will or enmity with any of the prosecution witnesses.

27.In the light of the above discussion, the impugned judgment needs

no interference. The appeal filed by the appellant lacks merit and

is dismissed. The conviction and sentence of the appellant are

sustained.

SUNITA GUPTA, J

REVA KHETRAPAL, J May 29, 2013 aks