Pramod vs State
2013 Latest Caselaw 4632 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :25.09.2013
                                    Judgment delivered on.07.10.2013
+      CRL.A. 417/1999
       PRAMOD
                                                            ..... Appellant
                           Through       Mr. V.K.Malik, Mr. Aman Khan
                                         and Mr. Rajeev Chauhan, Advs.

                           versus

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

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment dated

12.08.1999 and the order of sentence dated 13.08.1999 vide which he

had been convicted under Section 302 of the IPC; he had been sentenced

to undergo imprisonment for life as also to pay a fine of Rs.5,000/- and

in default of payment of fine to undergo RI for a period of six months.

The appellant is in appeal against the aforenoted finding.

2 The version of the prosecution is that on 22.09.1982, the appellant

along with the co-accused Ram Narayan (since expired) in a moving

DTC bus had fired two shots upon the deceased Baldev Singh pursuant

to which he succumbed to his injuries and had died. This was in

conspiracy with six other persons.

3 Charge-sheet was filed against eight persons under Section

302/34/120-B of the IPC. Ram Narayan and Dula Ram have since

expired; Rajinder Singh was declared a proclaimed offender. Four other

persons were acquitted. The appellant alone was convicted.

4 DD No. 9-A (Ex.PW-10/A) had been recorded in the local police

station Najafgarh. This was on the information given by Satbir Singh

(PW-10), conductor of bus No. DHP-3600 who while travelling on route

No. 822 at Bakar Garh had witnessed the incident. The incident was to

the effect that two persons in the aforenoted moving bus had fired upon

another. The victim had succumbed to his injuries on the spot.

5 Ex.PW-10/A was assigned to SI Bhim Singh (PW-31) who along

with constable Jag Ram (PW-12), constable Vijender and constable

Aman Kumar reached the spot i.e. Dhasa Road, near Bakar Garh mod.

The statement of the eye-witnesses Sube Singh (PW-4) (Ex.PW-4/A)

was recorded. The rukka was sent on this statement at about 11:05 AM

pursuant to which the FIR was registered by SI Jagat Singh (PW-21)

(Ex.PW-21/A).

6 The version of the prosecution was unfolded in this statement

i.e.Ex.PW-4/A. The deceased Baldev Singh was his cousin. He along

with Baldev Singh, Banni Singh (PW-5) and Chotu Ram (PW-17) had

on 22.09.1982 boarded the bus from Isapur for Delhi; this was bus No.

DHP-3600; at Qazi Pur bus stand, the appellant Pramod and co-accused

Ram Narayan (since expired) also boarded the bus. Pramod is the

brother of Chand Pradhan; Chand Pradhan had enimical terms towards

his deceased brother. Differences were not only because of political

rivalry as both of them were opposing one another in municipal

elections but also in Consolidation Proceedings, Chand Pradhan had

managed to get a plot in the abadi belonging to the deceased. About

three years ago, Chand Pradhan had been arrested on the complaint of

the deceased. A few months before this occurrence, a person by the

name of Baljit had been murdered where Chand Pradhan was an

accused. The witnesses of the prosecution in that case used to sit with

the deceased and because of the closeness of those witnesses with the

deceased, Chand Pradhan was sure that he would not be able to win

them over. Further deposition of PW-4 is that when bus started from

Bakar Garh and had covered only a short distance, PW-4 heard Pramod

that they should kill Baldev Singh who was sitting behind them in the

bus; thereupon the appellant took out a pistol and fired twice on the

deceased who died. The bus stopped. Two other persons Vedpal and

Rajinder came on a motor-cycle and the appellant and Ram Narayan

fled from the bus on that motorcycle threatening all other occupants of

the bus that if anybody would follow them, they would be done to death.

7 In his cross-examination, PW-4 has admitted that he was a

constable in the police for the last 11-12 years. He has further admitted

that in a murder case of Baljit, his brother Rohtash is a witness; he has

not appeared as a witness in any other case. He has admitted that the

conductor of the bus had gone to make a complaint to the police after

the occurrence had taken place. He admitted that after the deceased had

been fired upon, he did not go near him or touch him. He did not follow

the accused as they had managed to escape. His clothes did not receive

any blood stains. He denied the suggestion that he was not present at the

spot or that he is deposing falsely.

8 Another eye-witness to the incident was Banni Singh (PW-5). He

has also deposed on the same lines as PW-4. He has deposed that he

along with Sube Singh (PW-4) and the deceased Baldev Singh had

boarded the bus from Isapur for Delhi; near Bakar Garh, the co-accused

Ram Narayan told the appellant (Pramod) that Baldev Singh was sitting

behind them in the bus and they should kill him; Pramod thereupon took

out a pistol and fired twice at the backside of the head of the deceased;

both Ram Narayan and Pramod had threatened that if anybody tried to

catch hold of them, they would be done to death; there was commotion

in the bus. It stopped. Meanwhile, a motor-cycle came; Ved Pal and

Rajinder were sitting on that motor-cycle; Ram Narayan and the

appellant Pramod had managed to flee away; the bus was taken into

possession. PW-5 was subjected to a lengthy cross-examination. He

stuck to his stand that there were two fire shots from the pistol of the

appellant; after the passengers had got down, he along with PW-4 also

got down; Baldev Singh was lying dead in the vehicle. He did not touch

him. He has also admitted that the bus tickets had slipped from his hand

and he does not know where they were.

9 Both these eye-witnesses accounts i.e. the testimonies of PW-4

and PW-5 had been relied upon by the trial Judge to nail the accused.

That apart the trial Judge had also noted that the incident had occurred

on 22.09.1982 but the appellant Pramod had absconded from the scene

of crime; he was declared a proclaimed offender and he was finally

arrested only on 06.04.1983 which was pursuant to a disclosure

statement made by the appellant in another FIR under Section 25 of the

Arms Act where he was arrested on 19.12.1983 and had disclosed his

role in the present crime. The trial Judge had noted that this act of

abscondence on the part of the appellant also leads the Court to draw an

adverse inference against him.

10 The post-mortem on the victim was conducted by Dr.Bharat

Singh (PW-6) on 23.09.1982. External and internal injuries were noted

on the victim. Following three external injuries read as under:-

1. "One irregular lacerated wound over the occipital area of skull mainly on the right half size 4"x2"x ?. There was tattooing at the margin of the wound but no evidence of burning of skull hair. Clotted blood was present on the surface of the wound as well on the surrounding area. No foreign material was present in the surface of the wound.

2. Four rounded punctured wound on the nape of neck situated very close of each other 2" below injury no.1 Size of each wound was 2/10". Margins were inverted and abraded. There was no burning of hair. Tattooing was present in this area. These wounds were going deep in the tissues of the neck.

3. Abrasions all over the left lateral side of the chest and abdomen in an area of 18"x4" brown in colour. There was abrasion in the form of small patches and even pink point. "

11 Cause of death was opined as due to coma resulting from the

aforenoted injuries. All the injuries were ante-mortem. Injuries no. 1 & 2

were caused by fire arm such as short gun fired from a close range and

were wounds of entry. Injury No. 3 was possible by fall on the hard

surface. Injuries No. 1 & 2 were sufficient to cause death in ordinary

course of nature.

12 Further investigation included the recovery of the motor-cycle

from the front of the house of the appellant; it was a stolen vehicle.

However the trial Court did not believe the version of the prosecution

that this vehicle was connected with the crime. The CFSL had examined

the blood stained debri and exploded pieces of bomb which had been

recovered from the spot as also the cartridges of the desi katta. Trial

Judge did not connect them with the crime. The trial Court had also dis-

believed the theory of conspiracy which had been set up by the

prosecution about the role of other accused persons having hatched a

conspiracy to commit the murder of Baldev Singh.

13 Since on the aforenoted counts, the trial Judge has not placed any

reliance and there is no counter appeal by the State, it would not be

necessary to detail that part of the evidence.

14 In the statement of the appellant recorded under Section 313 of

the Cr.PC, he has pleaded innocence; he has stated that he has been

falsely implicated in the present case. No evidence was however led in

defence.

15 The trial Judge as noted supra had relied upon the aforenoted

versions of PW-4 and PW-5 to nail the accused. The trial Judge had also

noted that PW-17 although an eye-witness had turned hostile yet in one

portion of his testimony he had admitted that he had heard the name of

Pramod at the time when the incident was taking place, he had relied

upon his version to that extent. The act of abscondance on the part of the

appellant was another adverse circumstance against him.

16 On behalf of the appellant arguments had been addressed in detail

and in length. Written submissions and thereafter additional

submissions have also been filed. The whole thrust of the argument of

the learned counsel for the appellant is on the presence of PW-4 & PW-

5 on the spot. Submission being that neither PW-4 and neither PW-5

were present at the spot. They have been set up as witnesses by the

prosecution only to solve a blind case. Submission being that even as

per the version of the prosecution, both PW-4 and PW-5 were related to

the deceased and had they been present at the spot their priority would

have been to rush the victim to the hospital; they would have in fact

rushed to the police station in the first instance and not waited for the

bus conductor to inform the policy. The version of the son Jai Pal (PW-

3) and wife Sara (PW-22) of the victim also eliminate the presence of

PW-4 & PW-5. Attention has been drawn to their versions; submission

being that nowhere in the statement of PW-3 and PW-22 have they

stated that they had met either PW-4 or PW-5 at the spot when as per the

case of the prosecution both PW-3 and PW-22 had reached the spot

immediately after the occurrence. In fact PW-22 in her cross-

examination had stated that she could not remember the persons who

were present at the spot; this by itself dislodges the version of the

prosecution as admittedly PW-4 and PW-5 being related to PW-22, it

would be impossible to imagine that PW-22 had not noted the presence

of their cousin at the spot. PW-17 had also turned hostile; he has not

supported the version of the prosecution. Attention has also been drawn

to the statement of SI Bhim Singh (PW-31) who was the first person in

the investigating team who had reached the spot; submission being that

he had also not noted the presence of PW-4 & PW-5; PW-5 has been

roped in only to corroborate the unreliable version of PW-4. The entire

case set up by the prosecution is false. The contradictions between the

versions of the aforenoted witnesses cannot be reconciled. To support

his submission reliance has been placed upon several judgment of the

Apex Court i.e. JCC 1993 (Delhi) 430 Rishi Pal & Ors. Vs. State, AIR

1991 (SC) 1108 Mahesh Chander Vs. The State of Delhi, Crl. L.J. 1999

SC 467 Din Dayal Vs. Raj Kumar @ Raju, Crl.Law Rep. (Supl) SC

2010 Page 458 Siddanki Ram Reddy Vs. State of Andhra Pradesh, SCC

(Crl) 2004 page 1893 Narendra Singh & Anr. Vs. State of M.P., Recent

Crl.Rep (P &H) Pages 655 Harbhej Singh Vs. State of Punjab, Crl.L.J.

1981 (SC) 484 Ram Ashrit Vs. State of Bihar, JCC 2002 (2) 1304 Toran

Singh Vs. State of Madhya Pradesh, Crl. Law Rep SC 1981 Page 198

Badruddin Rukonddin Karpude Vs. State of Maharashtra, JCC 2010 (4)

SC Page 3040 Sunil Kumar Sambhudayal Gupta Vs. State of

Maharashtra, Crl.L.J. 1980 Page 1397 Randhir Singh Vs. State, AIR

1979 SC Page 1408 Suraj Mal Vs.State, AIR 2011 SC Page 349

Subhash Vs. State of Haryana, AIR 2001 SC Page 2302 A.Shankar Vs.

State of Karnataka, AIR 1975 SC Page 1026 Ram Kumar Pande Vs.

The State of Madhya Pradesh. The gist of the submission being that

where the testimony of the alleged eye-witness is suspicious which is

also evident from his conduct and where the said eye-witnesses are

related to the victim yet no attempt is made by them either to apprehend

the accused or to take the injured to the hospital, this conduct would

qualify nothing but as highly unnatural and such a strange conduct

belies their presence at the spot giving a benefit of doubt to the

appellant. Submission being that in this case, if the versions of the eye-

witnesses are excluded, there is no other evidence to nail the appellant.

Further submission being that PW-4 in his statement before the police

had named Mehar Singh as an injured but neither the statement of

Mehar Singh was recorded nor was he medically examined. PW-10

had also stated that 2-3 persons had been injured; there is thus no

explanation for the non-examination of Mehar Singh. On all counts the

appellant is entitled to a benefit of doubt and a consequent acquittal.

17 Submissions have been refuted by the learned public prosecutor.

Submission being that the testimony of PW-4 cannot be brushed aside;

he is a cogent and coherent witness. It is pointed that the rukka had been

sent in all promptness; the incident had been reported at about 09:55

AM; rukka had been sent at 11:05 AM, possibility of manipulation is

excluded. Versions of PW-4 and PW-5 were credible; so also that part

of the testimony of PW-17 upon which reliance has been rightly placed

upon by the trial Judge. Submission being that although the conspiracy

aspect against the accused is dis-believed, yet the motive of crime has

been spelt out in the version of PW-4.

18 Record has been perused. We have appreciated the submissions of

the learned counsel for the parties.

19 DD No. 9-A was the first information given by the bus conductor

(PW-12) of the fateful bus giving information that an incident of firing

had taken place in bus No. DHP 3600. This information was received in

the local police station at 09:55 AM. Investigation was entrusted to PW-

31 who along with PW-12 reached the spot. PW-31 and PW-12 have

both given corroborative versions on this point. As per the testimony of

PW-31, when he reached the spot i.e. Dhasa Road, near Bakargarh mod,

he met an eye-witness Satbir Singh. He recorded his statement Ex.PW-

4/A. Ex.PW-4/A was the version which has been noted in detail supra.

PW-4 had disclosed about an earlier enmity which was prevailing

between the deceased Baldev Singh (who was his cousin) and Chand

Pradhan (the brother-in-law of the appellant). In the moving bus at the

extortion of Ram Narayan, the appellant took out a pistol and fired twice

on the backside of the head of the deceased; the deceased succumbed to

his injuries. There was panic and chaos in the bus. The accused i.e. the

appellant and Ram Narayan managed to flee on a motorcycle which was

being driven by co-accused Vedpal and Rajinder was the pillion rider.

While escaping from the scene, the appellant along with his co-accused

had warned the passengers that if anybody would follow them, they

would be done to death.

20 The rukka was dispatched on this statement of PW-4 at 11:05 AM

pursuant to which the FIR was registered. This documented version of

PW-4 and the promptness with which rukka was sent i.e. within one

hour from the time of incident, excludes all possibility of a manipulation

or a falsity of the case as has been vehemently argued by the learned

counsel for the appellant.

21 The Courts have time and again reiterated that the FIR which is

the first information of the incident and which has been registered and

recorded at the earliest and without any undue delay, inspires

confidence. Such timely information lends credibility to the version of

the prosecution.

22 This statement was also signed by PW-4. There is thus no reason

whatsoever to accept the argument of the learned counsel for the

appellant that PW-4 was in fact not present at the spot.

23 That apart, the testimony of PW-4 inspires confidence. Merely

because he is a cousin of the victim would in no manner dislodge his

version. His version has been coherent and cogent. He has detailed the

manner of the incident which as noted supra was recorded with all

promptness when PW-31 met PW-4 at the spot.

24 Merely because PW-31 did not record the statement of the second

eye-witness i.e. PW-5 would again not be sufficient to discredit the

version of the second eye-witness. PW-5 was also related to the victim.

All along, both PW-4 and PW-5 have stated that they along with PW-17

and the deceased had boarded the aforenoted bus from Isapur for Delhi;

Ram Narayan and the appellant had boarded the bus at Qazipur Bus

stand. When the bus reached near Bakar Garh at the extortion of Ram

Narayan, the appellant fired twice on the victim who had died. PW-5 has

reiterated and corroborated the version of PW-4 that this had caused

commotion in the bus. The bus stopped. A motor-cycle had come in the

meanwhile which was being driven by Vedpal and Rajinder was its

pillion rider; Ram Narayan and the appellant managed to escape on that

motor-cycle. He has also been consistent and corroborative on the point

that the appellant and the co-accused had threatened that if anybody

tried to catch hold of them, they would be done to death.

25 Testimony of PW-5 has also been dealt with in detail supra. The

statement of PW-5 was recorded by the second Investigating Officer i.e.

PW-26 to whom the investigation was entrusted after PW-31. He was

the SHO of the police station Randhir Singh Malik and examined as

PW-26. He has on oath deposed that when he reached the spot, he saw

the dead body of the deceased lying in the bus. There were two gunshot

injuries on the backside of his scalp. Exhibits including blood stained

earth and stones lying around the spot were seized. PW-26 recorded the

statement of PW-5 (Banni Singh) as also the statements of other

witnesses found at the spot namely Sara (PW-22) the wife of the victim

as also Jai Pal (PW-3), the son of the victim. PW-26 had also recorded

the statement of Chotu Ram examined as PW-17. PW-26 has been

categorical in his version; he has stated that when he reached the spot,

he found PW-5 and PW-17 as also PW-3 on the spot. This witness was

also subjected to a lengthy cross-examination. Nothing has been pointed

out by the learned counsel for the appellant which could in any manner

evidence that this testimony of PW-26 was contrary or in conflict with

the testimony of any other witness.

26 The testimony of the eye-witnesses i.e. PW-4 & PW-5 is clear and

cogent. There are in fact no inconsistencies which can in any manner

advance the arguments of the learned counsel for the appellant. There

also appear to be no improvements and none have also been pointed out.

On almost all scores both PW-4 & PW-5 have been coherent. Both of

them have stated that they had boarded the bus from Isapur for Delhi;

when the bus had covered a short distance after starting from Bakar

Garh, the co-accused Ram Narayan had extorted the appellant to kill

Baldev Singh who was sitting behind in the bus; the appellant took out

his pistol and fired twice at the deceased. There was commotion and

chaos in the bus. All the persons in the bus were threatened that if

anybody would try to intervene, they would be done to death. Both the

appellant and Ram Narayan managed to escape on a motor-cycle which

had come near the bus in the meanwhile which was being driven by

Vedpal and the pillion rider was Rajinder.

27 PW-3 was Jai Pal, the son of the victim. His version is to the

effect that he had received information about the occurrence on

22.09.1982 and on reaching the spot, he found the dead body of his

father. In his cross-examination he has stated that he did not remember

the name of the informant; when he reached the spot, police was not

there; they arrived there five minutes later. This witness is silent upon

the presence of PW-4 and PW-5 at the spot.

28 Sara (PW-22) is the wife of the victim. She had also learnt about

the occurrence and had reached the spot. She has deposed that when her

husband had left the house he was alone. At the spot, she had found a

crowd collected there; she could not tell the name of the persons who

were present in the crowd. Vehement submission of the learned counsel

for the appellant being that if PW-4 & PW-5 were present at the spot as

is the version of the prosecution and they being cousins and related to

PW-22, it would be difficult to imagine that PW-22 has not noted their

presence in the crowd.

29 This submission of the learned counsel for the appellant is

without any force. One cannot forget the fact that PW-22 is probably the

closest relative of the victim; she was his widow; it is obvious that when

she witnessed the blood strewn dead body of her husband, there must

have been severe chaotic emotions flowing in her mind; she was in a

traumatic state of mind. Keeping in view this emotional turmoil that she

was facing, she may not have been in a position to relate the details of

the persons who were actually present there. This was but natural. In her

cross-examination she stated that when she returned from the spot, the

police has already taken away the body of her husband; her testimony

reflecting that the investigation was already in progress when she

reached there. This was probably after the statement of PW-4 had been

recorded and the rukka had been dispatched. In these circumstances, in

the "crowd" which she had noted at the spot, she may not have

specifically noted the presence or the absence of PW-4.

30 Thus a mere omission by PW-3 and PW-22 in not mentioning the

names of the eye-witnesses will not dent the version of the prosecution.

Until and unless the omission is material which would render the

version of the prosecution doubtful or otherwise contradict the case of

the prosecution it would not effect the convincing version of the said

eye-witnesses.

31 Testimony of PW-17 is also relevant. He was Chotu Ram. His

statement was recorded by the second Investigating Officer i.e. PW-26.

This has been so stated by PW-26. PW-17 had also boarded the bus

along with PW-4 & PW-5 from Isapur for Delhi. This has been admitted

by him. The entire incident has in fact been admitted by PW-17 yet he

had become hostile upon the identity of the accused. On a specific

question put to the witness, he admitted having heard "Parmod jaldi

neeche udhro nahin to pugre jayege"; meaning thereby that Pramod was

one of the persons who was involved in the incident. The name of the

appellant is Pramod. To this extent alone, the trial Court has relied upon

the version of PW-17.

32 The bus conductor (PW-11) was the first person to report this

incident at the local police station. Since the deceased had already died

PW-4 and PW-5 noting two bullet injuries on the backside of the scalp

which were on the vital parts of the body, the submission of the learned

counsel for the appellant that why the aforenoted person did not remove

the victim to the hospital has been answered by the fact that both the

eye-witnesses had noted that the victim is already dead; the two bullet

injuries had been fired from a close distance on his vital organ i.e. his

head. They had noted the blood oozing out from the scalp. That apart,

the police reached the spot within next 20-25 minutes. PW-31 had stated

that he reached the spot at 10:15 AM. He had recorded the statement of

the eye-witness PW-4 at about 10:30 AM. The rukka was dispatched at

11:05 AM and the FIR was registered with all promptitude. The medical

evidence i.e. the post-mortem report (Ex.PW-6/A) is also fully

corroborative of the aforenoted ocular versions.

33 The accused had remained absconded for a period of more than

one year. He was arrested only on 06.04.1983 pursuant to his disclosure

statement which he has made in an arm case. Abscondance by itself may

not be sufficient to nail a person but it is definitely one link in the chain

of circumstances establishing the guilt of the accused. It is a relevant

piece of evidence as was rightly noted by the trial Judge.

34 The angle of "conspiracy" was disbelieved by the trial Court. The

motive of crime was however coherently explained by PW-4. He has in

the rukka itself i.e. within one hour of the incident explained that the

motive of the crime was probably the dispute which was raging between

Chand Pradhan (brother-in-law of the appellant) and the deceased; the

reason for this was not only the political enmity but in Consolidation

Proceedings, the deceased had managed to get a plot belonging to Chand

Pradhan. The name of the appellant found mentioned in the first

information report itself. This was an additional factor in favour of the

prosecution.

35 The last argument pitched by the learned counsel for the appellant

is based on the non-examination of the so-called material witness i.e.

Mehar Singh whose name had emerged in the testimony of PW-4.

Submission being that he was also an injured and there is no

investigation qua this point. This submission of the learned counsel for

the appellant has to be noted only to be rejected. PW-31 who had first

reached the spot has been categorical in his version. He has stated that

there were 5-7 persons present; no person in an injured condition was

found when he reached there; he remained at the spot for one or 1- ½

hour. This version cannot be disbelieved. The name of Mehar Singh

even as per the appellant had emerged in the statement of PW-4 made

before the police; the learned defence counsel has not questioned this

witness as to why he did not name him in his deposition in court. PW-

31 had also categorically deposed that no other injured person had been

found. That apart even presuming that one Mehar Singh was at the spot

and had received some injuries and was not medically examined would

again not effect the version of the prosecution as the version of the

prosecution has been fully established through the aforenoted evidence

collected and discussed supra. No adverse inference can be drawn on

this count.

36 On all counts, the prosecution has proved its case. The testimony

of the eye-witnesses PW-4 and PW-5 coupled with the version of PW-

17 who was also an eye-witness together with the medical evidence

coupled with the act of abscondence on the part of the appellant as also

the enmity which has been spelt out in the version of PW-4, it was none

other than the appellant who has committed the murder. Fortunately or

unfortunately the other co-accused have been given benefit of doubt and

they have been acquitted. The prosecution has however proved

sufficient evidence to nail the present appellant. His conviction in no

manner calls for any interference.

 37     Appeal is without any merit. Dismissed.




                                             INDERMEET KAUR, J




                                            KAILASH GAMBHIR, J

OCTOBER 07, 2013
A