Shiv Kumar @ Pappi & Another vs State (Govt. Of Nct Of Delhi)
2014 Latest Caselaw 2144 Del

$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRIMINAL APPEAL NO. 500/1999

                                       Reserved on : 6th February, 2014
                                       Date of decision: 30th April, 2014

        SHIV KUMAR @ PAPPI & ANOTHER                ..... Appellants
                     Through Mr. Jaydeep Malik, Advocate for
                     appellant No. 1.
                     Mr. Aditya V. Singh, Advocate for Mr. Avninder
                     Singh, Advocate for appellant No. 2.

                          Versus

    STATE (GOVT. OF NCT OF DELHI)               ..... Respondent

Through Mr. Rajat Katyal, APP for the State along with SI Pradeep Sharma, P.S. Kamla Market.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J. :

One Mukesh Gupta at about 8.50 P.M. on 10 th April, 1997 was fired

upon and shot dead from point blank range at Minto Road red light by two

assailants on a motorcycle. As per the prosecution, the appellants herein

Shiv Kumar @ Pappi and Satbir Singh were the two motorcycle riders

sharing common intention involved in the said crime. Trial court by the

impugned judgment dated 12th August, 1999 has accepted the prosecution

version and held that the State has been able to prove the case or the charges

against the two appellants beyond reasonable doubt. By order on sentence

dated 12th August, 1999, Shiv Kumar has been sentenced to rigorous

imprisonment for life and fine of Rs.1 lakh and appellant-Satbir Singh has

been sentenced to rigorous imprisonment for life and fine of Rs.10,000/-. It

has been further directed that the fine upon recovery shall be disbursed to

the blind mother and mentally retarded brother of the deceased- Mukesh

Gupta.

2. At the outset, we record and observe that homicidal death of Mukesh

Gupta as a result of firearm wound has been proved beyond doubt and not

under challenge, though the firearm itself was not recovered and brought on

record. The said factum has been proved in the oral testimonies of Satish

Kumar Gupta (PW-18) and Constable Dalal Singh (PW-19) as well as MLC

report of Mukesh Gupta (Exhibit PW-22/A), but we shall refer to the said

evidence later on. Suffice, at this stage, to notice the post-mortem report of

the deceased-Mukesh Gupta (Exhibit PW-13/A) and testimony of Dr. Anil

Kumar (PW-13), Assistant Professor, Forensic Department, Maulana Azad

Medical College, who had conducted the post-mortem. PW-13 has referred

to the firearm entry and the exit wound, as the cause of death as the bullet

had entered the chest cavity through the left eighth inter costal space on the

back and had gone through the lower part of the lobe of the left lung causing

laceration. The cause of death was due to shock and haemorrhage

consequent upon injury to the heart and left lung, i.e., bullet discharge

entering the body through injury No. 1 and exiting via injury No. 2. PW-13

has further opined that the firearm was "near close range", i.e., within the

range of singeing and blackening effect, and about 6 inches from the body.

3. On the question of involvement of the appellants, the prosecution has

relied upon the testimony of two eye witnesses, i.e., Satish Kumar Gupta

(PW-18) and Constable Dalal Singh (PW-19). It also relied upon

circumstantial evidence in the form of ownership of Bullet motorcycle No.

DIW 5303 involved in the said occurrence and the motive i.e. the past

conduct specifically with reference to the history of disputes and differences

between the deceased and the appellant-Shiv Kumar.

4. The appellants were identified as perpetrators, who had come on the

motorcycle, by both PWs-18 and 19. Earlier the said appellants had refused

to join the Test Identification Proceedings (TIP proceedings). Vinod Kumar

Sharma (PW-11) had stated that the appellant-Satbir Singh even on being

warned that not joining the TIP would adversely affect him, had refused to

participate in the TIP proceedings held on 25th April, 1997 in Central Jail

No. 1 and had proved his report Exhibit PW-11/A. Similarly, appellant-Shiv

Kumar had refused to participate in the TIP proceedings conducted by

Madhu Jain (PW-16), on 17th April, 1997 at Central Jail Tihar and proved

the report/proceedings (Exhibit PW-16/B).

5. The FIR in question in the present case was recorded on the statement

of Constable Dalal Singh (PW-19) marked Exhibit PW-19/A. Constable

Dalal Singh (PW-19) was posted and performing duty at Minto Road from 8

P.M. to 8 A.M. when at about 8.40 P.M near the red light near Minto Road

picket, he noticed that scooter No. DL 5S 1616, had stopped. Immediately

thereafter, the scooter driver was shot at, by two young boys who came on a

Bullet Motorcycle. After firing, they drove away on the slip road towards

Deen Dayal Upadhyay Marg and in spite PW-19's effort to chase them, they

escaped. PW-19 deposed that he could identify the motorcycle as well as

the persons/ riders. He then identified the two appellants in the present case.

He had earlier identified appellant-Shiv Kumar on 24th April, 1997 in the

court in the room of Additional SHO. Similarly, on 26th April, 1997, he

identified appellant-Satbir Singh in the room of Additional SHO. The site

plans were prepared on his statement. He had, however, stated that he could

not note down the number of motorcycle at that time and in his examination

in chief had claimed that the appellant-Shiv Kumar was driving the

motorcycle and Satbir Singh was the pillion rider. Further, Shiv Kumar, the

driver had fired. Most importantly, PW-19 has stated that the pillion rider of

scooter had taken the injured, i.e., Mukesh Gupta in a TSR to the hospital.

Thus, he has confirmed the absence of the pillion rider on the scooter driven

by the deceased Mukesh Gupta. In the cross-examination PW-19 stated that

he ran after the motorcycle as he had seen the firearm in the hands of the

pillion rider of the motorcycle. He ran after the motorcycle for about half a

kilometer, however, he did not succeed in catching the culprits as he became

breathless and stopped. He had deposed that the motorcycle came near the

scooter and was at a distance of half feet.

6. Satish Kumar Gupta (PW-18) has stated that on 10th April, 1997 at

about 8.30 P.M. he had left with Mukesh Gupta on his scooter DL 5S 1616

to go to his Guru's ashram at Subhash Nagar. At about 8.49 P.M., they

reached the Minto Road red light and halted. Immediately, thereupon a

black colour bullet motorcycle came and stopped behind them. Appellant-

Shiv Kumar was sitting on the pillion then fired from his pistol at Mukesh

Gupta's back. He identified the appellant-Shiv Kumar in the Court.

Appellant Shiv Kumar was known to him. He also identified Satbir Singh

as the driver of the motorcycle. He gave the motorcycle number as DIW

5303. He took Mukesh Gupta to JPN Hospital in a three wheeler scooter

where he was declared as brought dead. Thereafter, he went to the house of

Mukesh Gupta and informed his relatives about the occurrence. He then

went to his own house to rest as he was perplexed and a blood pressure

patient. At about 2.30 or 3 A.M. he left for Minto Road Police Station and

reached the crossing of Minto Road, where his statement was recorded. In

the cross-examination, PW-18 accepted that he was a neighbour of Mukesh

Gupta but claimed he did not have thick relations with Mukesh Gupta or his

family members.

7. We have no doubt that Satish Kumar Gupta (PW-18) was the pillion

rider and was present with the deceased at the time of occurrence. He was a

witness and had identified the two appellants as the perpetrators. Learned

counsel for the appellants has tried to challenge the testimony of PW-18 as

an eye witness on the ground that he was not the author and had not made

any statement, which resulted in recording of the FIR. FIR certainly has not

been recorded on the statement of PW-18 but there are several and good

reasons why we should accept PW-18's version of the incident. Mukesh

Gupta, as noticed above, was taken by PW-18 to the hospital. The MLC

(Exhibit PW-22/A) specifically records that the patient was brought by

Satish Kumar (PW-18). The MLC also mentions the age, parentage and

other particulars of the patient. The details could have been given by a

known person. The MLC Ex.PW22/A mentions that it was PW-18, who had

given the alleged history that he was sitting behind on the two wheeler

scooter while the deceased was driving the scooter, which had stopped at the

red light. He heard a gunshot and that the deceased fell down. Police men

came there and he had brought the deceased to the hospital. The said MLC

was recorded at 9 P.M. on 10th April, 1997 i.e., within about ten minutes of

the occurrence. Unless PW-18 was present at the spot and sitting as a pillion

rider, he could not have given the said details and particulars to the doctors.

We also accept the version of PW-18 that from the hospital at about 9:30

P.M, he had gone to the residence of Mukesh Gupta and then to his own

house for taking rest. Later on at night he went to Police Station Minto

Road. The factum that PW-18 had gone to the house of Mukesh Gupta had

been deposed to and affirmed by Vinod Kumar Gupta (PW-23).

8. In the facts of the present case, we do not think there was any delay

on the part of the Investigating Officer in recording statement of PW-18

under Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C., for

short), which was recorded at night at about 3 A.M. on 11 th April, 1997.

Inspector Hanuman Singh (PW-28) deposed that Satish Kumar Gupta (PW-

18), the eye witness reached the spot and produced his clothes, i.e., pant and

shirt, which was seized vide memo Exhibit PW-18/A. The occurrence must

have shocked Satish Kumar Gupta (PW-18), made him nervous and anxious.

PW-18 has stated that he was a patient of blood pressure and, therefore,

rested before proceeding to the spot and the police station. The police in the

present case did not feel it appropriate to delay recording of the FIR and on

the basis of statement made by Constable Dalal Singh (PW-19), who was

present on the spot, rukka was recorded and the FIR in question was

registered at about 10.30 P.M. on 11th April, 1997 at Police Station Kamla

Market.

9. The clothes of Satish Kumar Gupta (PW-18) had blood stains and

were duly identified by him as Exhibit P-11 and P-12 in the court. The said

clothes had been sent to FSL, Delhi for examination and as per the FSL

report marked Exhibit PW-29/B and 29/C, human blood of blood Group A

was found on the pant and the shirt. A blood group matched with the blood

group of the deceased, i.e., the blood stained cotton and the blood stained

earth as well as the kurta pajama etc. worn by the deceased.

10. The clues given by Satish Kumar Gupta (PW-18) relating to the

motorcycle and the number as DIW 1503 (as stated in Section 161 Cr.P.C.

statement, the correct number was somewhat similar DIW 5303). and the

past history of enmity led to the arrest of appellant-Shiv Kumar as per the

police version on 11th April, 1979 at 6.30 P.M. and subsequently the

appellant-Satbir Singh was arrested on 13th April, 1997 at 4:30 P.M. As per

the police version and deposition of Inspector Ram Pal Singh (PW-29),

appellant-Shiv Kumar at the time of arrest was riding motorcycle DIW

5303, which was seized vide seizure memo Exhibit PW20/B. The said

motorcycle as per the testimony of Deepak Gupta (PW-27), LDC Regional

Transport Office was registered in the name of Ram Sewak Sharma S/o Ram

Hari Sharma, resident of 1950, Neelwali Gali Bazar Sita Ram, Delhi. The

registration memo was proved as Exhibit PW-27/A. Trial court records

reveal that in the bail bond dated 24th June, 1999 appellant-Shiv Kumar S/o

Ram Hari Sharma has given his residential address as house No. 1950, Gali

Neelwali, Bazar Sita Ram, Delhi and one Ram Hari S/o Santokhi Lal,

resident of house No. 1050, Gali Neelwali had stood as a surety. Said bail

bond was accepted by the Trial Court. Thus, there cannot be any doubt or

debate on the motorcycle involved in the incident and involvement of the

appellant Shiv Kumar.

11. At this stage, we record and notice that that both Satish Kumar Gupta

(pw-18) and Constable Dalal Singh (pw-19) had identified the said

motorcycle, i.e., black coloured Bullet motorcycle.

12. On the question of motive, long history of enmity between appellant-

Shiv Kumar and the deceased stands proved in the testimony of Ganga Devi

(PW-25). She deposed that Shiv Kumar had earlier as well fired at Mukesh

Gupta but the bullet hit her as a result she had lost her eye sight. The earlier

litigation inter se parties has been deposed to and referred by Head

Constable Balwan Singh (PW-6) and Vinod Kumar Gupta (PW-23). Head

Constable Balwan Singh (PW-6) stated that as per their records FIR No.

196/1992 was recorded in Police Station Haus Qazi in which Mukesh

Kumar S/o Geeta Devi was cited as a witness. The said FIR was registered

at the instance of Ganga Devi under Section 307/34 IPC. Vinod Kumar

Gupta (PW-23) brother of the deceased Mukesh Kumar had stated that on 8th

May, 1992 an attempt was made on the life of Mukesh Kumar and in that

process his mother Ganga Devi had received firearm injury. He also

referred to another complaint made by Mukesh Gupta under Section 506

IPC against the father, uncles and mother of the appellant- Shiv Kumar,

which was pending in the Court of Smt. Poonam Choudhary.

13. Several litigation inter se parties has been deposed and proved by

Harish Kumar, Ahlmad (PW-26), who had produced records relating to Suit

No. 80/1993 titled Mukesh Gupta v. Ram Sewak which was filed by

Mukesh Gupta for mandatory injunction against Ram Sewak and Mithilesh

Kumari wife of Ram Prakash.

14. We have gone through the statements of the appellants under Section

313 Cr.P.C. Appellant-Shiv Kumar has accepted that he knew Mukesh

Gupta and there was past history of litigation, including criminal

proceedings, but has denied his involvement. Appellant-Shiv Kumar further

claimed that he was apprehended from his house and the motorcycle in

question neither belonged to him nor was it with him. Satbir Singh has

denied the allegations and has stated that the facts deposed to were incorrect.

He was not aware of any enmity between the family of the co-accused Shiv

Kumar and the deceased- Mukesh Gupta. He had worked at the shop of the

father of Shiv Kumar till the end of March, 1997 and thereafter had gone to

his native village. He was arrested from his native village. No defence

evidence was led.

15. Learned counsel for the appellant Satbir Singh had submitted that the

case under Section 34 IPC is not made out. It was highlighted that there is

discrepancy whether the appellant-Satbir Singh was driving the motorcycle

and also whether the firearm could have been seen in the hands of Satbir

Singh as deposed to by Constable Dalal Singh (PW-19), who had stated that

he had seen firearm in the hand of the pillion rider, i.e., Satbir Singh. The

aforesaid discrepancy in the statement of PW-19 is inconsequential. The

confusion may have arisen because of lapse of time and also due to

imperfect recollection. Satish Kumar Gupta (PW-18) was the pillion rider

of the scooter driven by the deceased. Obviously, PW-18 had a far better

look at the perpetrators or the person riding the motorcycle. Firing had

taken place at point blank range and the shot was fired from a distance of

less than 6 inches. Statement and version given by PW-18 on the said

aspect is more reliable and trustworthy and should be accepted.

16. Contention of the appellant-Satbir Singh that Section 34 should not be

invoked in the present case is without merit. Before the Trial Court also

appellant-Satbir Singh in his application dated 26th August, 1997 seeking

bail claimed that as per the prosecution case Satbir Singh was driving the

motorcycle and the occurrence had taken place at red light signal. The firing

was neither deliberate nor intentional or pre-meditated and, therefore, the

said accused as per the prosecution version did not share the common

intention and no inference of common intention could be drawn. The said

submission is fallacious. In the present case, the nature and the manner of

firing shows and prove that the act of firing was deliberate and pre-

meditated. The deceased- Mukesh Gupta was specifically targeted. It is not

a case of robbery or chance/accidental firing, but a case wherein the

deceased Mukesh Gupta was fired upon and deliberately killed in a planned

and pre-meditated manner. We do not think, therefore, the contention of the

appellant Satbir Singh that Section 34 cannot be invoked or that there was

no common intention should be accepted. The crime was meticulously

planned and implemented. It could not have been committed by a single

person. Bullet motorcycle was used to fire and then hasten and flee from the

spot. It cannot be doubted in view of testimonies of PW-18 and PW-19 that

there were two persons on the motorcycle.

17. In view of the aforesaid discussion, we do not find any merit in the

present appeal and accept the prosecution version that the appellants were

the perpetrators of the crime. Involvement of the appellants has been proved

beyond reasonable doubt. Order of sentence is upheld.

18. The appellants were released on bail on suspension of sentence vide

order dated 12th February, 2004, after they had suffered incarceration for 6

½ years. They shall surrender within a period of one month from today and

undergo the remaining sentence. We uphold the direction of the Trial Court

on the quantum of fine and the directions given therein for payment of fine

on realisation to the widow mother and brother of the deceased-Mukesh

Gupta. In default of payment of fine, the appellant-Shiv Kumar will

undergo Rigorous Imprisonment for a period of one year and appellant-

Satbir Singh shall undergo Rigorous Imprisonment for a period of three

months. The appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE APRIL 30th, 2014 VKR/NA/KKB