Om Parkash vs State (Govt. Of Nct Of Delhi)
2014 Latest Caselaw 245 Del

$~R-8
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision:15th January, 2014
+      CRL.A. 398/1998
       OM PARKASH                                              ..... Appellant
               Through:           Mr.K.B. Andley, Sr. Advocate with Mr. M.L.
                                  Yadav, Advocate

                         versus

       STATE (GOVT. OF NCT OF DELHI)                            ..... Respondent
                Through: Ms.Rajdipa Behura, APP

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

                              JUDGMENT

SANJIV KHANNA J.(ORAL)

1. The appellant Om Parkash, by the impugned judgment dated 27.07.1998, has been convicted under Section 302 of the Indian Penal Code, 1860(for short 'IPC') for murder of Vandana stated to be his second wife. Simultaneously, he has also been convicted under Section 27 of the Arms Act, 1959. By order on sentence dated 28.07.1998, the appellant has been sentenced to imprisonment of life and fine of Rs.10,000/- under Section 302 IPC and rigorous imprisonment for seven years and fine of Rs.10,000/- under Section 27 of the Arms Act. In default of payment of fine, he is to undergo rigorous imprisonment for three months for each of the above mentioned offences. The sentences run concurrently and benefit of Section 428 of the Code of Criminal Procedure, 1973 ('Code' for short) has been given.

2. The aforesaid conviction arises out of FIR No.904/1995 P.S. Patel Nagar which was registered under Section 302/498/304-B IPC and Section 27 of the Arms Act, 1959.

3. Homicidal death of Vandana by gunshot wound has been proved beyond doubt and is not challenged by the appellant. Vandana was taken to DDU Hospital at about 10:15 am on 13.12.1995 and was declared brought dead as per MLC Ex.PW12/L. The MLC records that the deceased had an alleged history of gunshot and gunshot wound was found on the left side of the chest and back side of the thoracic lower lumber region. Entry and exit wounds were present. The aforesaid MLC was proved by SI Mahinder Singh (PW12) whose testimony, we will refer to subsequently. Post mortem was conducted by Dr. L.T. Ramani (PW29). As per the post mortem report Ex.PW29/A, the deceased aged 25 years had one oval punctured wound on the left front side of the chest, but there was no blackening or tattooing around the wound. There were three punctured laceration on the lower part, back of the chest and upper back of abdomen. There were two round vulgining with pellets like feel beneath on the right side back of the chest. On internal examination, PW29 has opined that the injuries were ante mortem and caused by firearm (gunshot) and was sufficient in the ordinary course of nature to cause death. Injury No.1 was a wound of entry and injury No.2 and 3 were the exits. Death was due to shock, haemorrhage and consequent to the injuries. Time since death was about 30 hours. The post mortem was conducted between 2:30 pm on 14.12.1995.

4. The main ground raised pertains to involvement of the appellant or whether the appellant is the perpetrator who had committed the said offence i.e. had

fired the gunshot resulting in the death of Vandana.

5. At the outset, we observe that Hem Lata, Poonam, both daughters of appellant, Vidhya Devi wife and Sandeep son of appellant had appeared as PWs 1 to 4 but have not supported the prosecution case on involvement of the appellant. They have, however, accepted in their statements, though with reluctance, that Vandana was staying with them in House No. B-76, Pandav Nagar, Delhi. They have not accepted that Vandana was the second wife of the appellant. It has come on record that the appellant has six children from Vidhya Devi(PW3) including Hem Lata, Poonam and Sandeep who had appeared as PWs 1, 2 and 4 respectively.

6. Dr. Vinod Kumar Goyal (PW10) is affirmative and has given personal details with regard to Vandana. PW10 was working as Sr. Scientist at IV.R.I. Branch Bareli till 1989 and one Shankar Lal was his peon, who had expired in the year 1986. He had four-five children and Vandana was his second child from his first wife who had died. Vandana was ill-treated by the second wife of Shankar Lal and consequently Vandana started living with PW10 in 1986, when she was about 12 years of age. In the year 1987, the family of PW10 had shifted to Ghaziabad and Vandana continued to reside with them. In October or November, 1991, Vandana was admitted to Anatha Ashram and remained there for some time. In July 1993, she had expressed her desire to live of her own as she was a major. Vandana stayed in different places. In August 1995, Vandana had come to PW10's Palika Place office with a child in her lap and revealed that she had married one Om Parkash. She had stated that the said Om Parkash was standing outside his office on the ground floor. PW10 thereafter met Om Parkash, husband of Vandana. Following this, she came to his office two to three times,

alone or accompanied by Om Parkash. Vandana had informed PW10 that Om Parkash was already married with six children but this was initially concealed from her. She had stated this in the presence of Om Parkash but the earlier marriage of Om Prakash. On one such visit, Om Prakash requested for financial help which PW10 declined. PW10 deposed that once he went to the house of Om Parkash at Pandav Nagar to persuad him and his wife not to ill-treat Vandana. 10-12 days thereafter, he came to know about death of Vandana. He had claimed dead body of Vandana and cremated her. He had suggested that Vandana should get remarried.

7. The primary and main witnesses are the two police officials, namely, SI Mahinder Singh (PW12) and Inspector Mahinder Singh (PW26) who was the SHO of P.S. Patel Nagar. In addition, we have facts which speak for themselves. SI Mahinder Singh (PW12) has deposed that on 13.12.1995, he was asked to go to House No.B-76, Pandav Nagar after receipt of DD Entry 6A. Upon reaching the house he found an injured Vandana lying in the pool of blood. She was rushed to the hospital in a PCR van. One gun was lying in the same room. Appellant Om Parkash was also present in the room. Inspector Mahinder Singh, SHO (PW26) had arrived. Meanwhile, Constable Ganga Bir (PW13) arrived at the spot along with DD No.7. Thereafter, he with the SHO and other officers went to the Hospital, while some police officers were left to guard the scene of crime. The accused was arrested at the spot.

8. At the Hospital, the SHO collected the MLC of the injured on which the doctor had written 'brought dead'. As no eye-witness was available, they returned to the spot. The SHO made an endorsement on the DD for registration of the case and the rukka was sent to the Police Station through

Constable Ganga Bir. SHO inspected the scene of crime and the gun. Place of occurrence was photographed. Crime spot was examined by the Crime team. The gun, cartridge, mattress, bed sheet and pellets of cartridge, shirt which the appellant was wearing, the jacket with two cartridges were seized from the spot and taken into possession vide seizure memo Exs.PW11/A to PW11/H. He had signed the said seizure memo. (The jacket which the accused was wearing it turns out was in fact not seized but this is not material and does not displace the oral testimony of PW12). The gun licensed in the name of the accused was also seized and produced and taken into possession vide Ex.PW11/J. The accused was arrested vide his personal search memo Ex.PW11/K at the spot.

9. In cross-examination, PW12 has affirmed that the SHO had arrived at the spot simultaneously with him. The injured was lying about two feet away from the door of the room on the ground floor. Family members of the accused were present. However, no eye-witness was available at the Hospital. Rukka for registration of the FIR was sent. Kallu Ram (PW11) the only person who came forward and signed papers/Memos as public witness. Kallu Ram (PW11) has deposed that he was made to sign on blank papers and that he did not know any lady by the name of Vandana and had never seen any such lady living with the appellant. The latter part is apparently incorrect and false as even the family members of the appellant have accepted that Vandana was staying with them. Failure of Kallur Ram (PW-11) does not materially affect the prosecution case, in view of evidence as recorded.

10. Inspector Mahinder Singh (PW26), SHO who was also the Investigating Officer, has deposed on identical lines. After receiving DD No.6A, he had

proceeded to the spot, i.e., House No.B-76, Pandav Nagar, Delhi and appellant Om Parkash was present in the house. Vandana, the injured was the wife of Om Parkash. Meanwhile, some other police officers including Constable Ganga Bir (PW13) came along with DD No.7A. At the spot, one gun and one empty cartridge was lying. Bed sheet, sofa etc were blood stained. Vandana was taken to the Hospital and subsequently, her MLC Ex.PW12/L was collected. No witness was available at that time and, therefore, endorsement was made on the DD and rukka Ex.PW26/A was written and sent through Constable Ganga Bir (PW13) for registration of the FIR. The crime team and photographer were summoned at the spot. SDM Patel Nagar was informed about the case. The crime team came to the spot and prepared and had submitted their report. He testified about seizure of incriminating material including blood stained sofa cover, blood stained bed sheet, the gun etc. Appellant Om Parkash was interrogated and arrested as per personal search memo Ex.PW11/K. Statement of Dr. Vinod Kumar Goyal (PW10) was recorded. He had referred to the statement of other witness including PWs 1 to 4, i.e., family members of the appellant. On 14.12.1995, the appellant was produced in Court and at that time police case diary and statements of witnesses recorded were produced. The case diary was initialled and signed by the Metropolitan Magistrate.

11. The learned counsel for the appellant has submitted that Inspector Mahinder Singh (PW26) was not honest and had tampered with the case diary. He has drawn our attention to the statement of Inspector Mahinder Singh (PW26) Ex.D-1 recorded by the Magistrate on 27.03.1996. PW26 was cross-examined in respect of statements recorded under Section 161 of the Code of Hem Lata (PW1), Poonam(PW2), Vidhya Devi(PW3) and Bansi Lal (PW4)and Kallu Ram(PW11). It is highlighted that as per

statement ExD-1 there were discrepancies in the statements under Section 161 of the Code. We have examined the statement ExD-1 and the cross- examination of PW26. It cannot be assumed that the statements under Section 161 of the code recorded on 13.12.1995 were duly initialled or signed by the Metropolitan Magistrate. In any case, we do not rely upon the court deposition of Hem Lata (PW1), Poonam(PW2), Vidhya Devi(PW3) and Bansi Lal (PW4)and Kallu Ram(PW11) for the purpose of present decision.

12. The learned counsel for the appellant has submitted that SI Mahinder Singh (PW12) has deposed as to the presence of SDM K.S. Meena (PW9) at the place of occurrence, whereas K.S. Meena(PW9) in his cross-examination has accepted that he had not visited the place of occurrence/crime. In the cross-examination, K.S. Meena (PW9) had initially stated that he did not remember whether he had visited the crime spot or not, but subsequently denied having visited the place of occurrence. This divergence in the testimony of PW9 and PW12, does not effect and negate the main or core of the witnesses' deposition as to the visit of PW12 and PW26 to the crime spot and presence of the appellant. When he had visited crime spot on the morning of 13.12.1995, at that time Vandana was in a pool of blood. The appellant Om Parkash was present at the spot and the licensed gun was lying on the bed.

13. The learned counsel for the appellant has submitted that the appellant was not present at the spot or place of crime on 13.12.1995 and had gone to Jaipur with his wife Vidhya Devi (PW3) in a car. He has referred to the testimonies of PWs 1 to 4 as well as testimony of defence witness Harish Kumar (DW1). It is claimed that Hem Lata(PW1), Poonam(PW2) and

Sandeep(PW4) were also not present in House No.B-76 Pandav Nagar and had gone to the house of their grand-mother. Appellant Om Parkash had returned from Jaipur on 13.12.1995 at about 2:00 pm., when he was arrested.

14. We are not inclined to accept the said alibi or the defence of the appellant as we find the statements made by PW12 and PW26 confirm the presence of the appellant at the house No.B-76, Pandav Nagar, Delhi in the morning are reliable, credible and merit acceptance. The statements made by PW12 and PW26 are duly corroborated by both forensic and documentary. DD No.7A was recorded at 9:58 am on 13.12.1995 at Police Station Patel Nagar. The said DD entry has been proved and marked Ex.PW5/B and records that the wireless operator had informed that Om Parkash had shot his wife at House No.B-76, Pandav Nagar and report to the said effect was recorded in the daily diary (Roznamacha). This DD entry was made within eight minutes of the earlier DD No.6A recorded at 9:45 am on 13.12.1995 that an incident had taken place in House No.B-76 Pandav Nagar and an officer should be sent there. The crime team report Ex.PW6/C also mentions and records the DD entry No.7A recorded at 9:58 am on 13.12.1995 mentions that appellant Om Parkash had shot his wife. The said report was proved by Constable Hans Raj (PW6) who had taken the photographs. ASI Narinder Singh (PW19) had gone to the spot of occurrence on 13.12.1995 for the purpose of examination of finger prints. He found one gun lying on a sofa in the house and directed the Investigating Officer to send that gun for lacer beam examination at Finger Print Bureau. However, he could not lift any finger print impressions. His report is marked as Ex.PW19/A. The same was recorded between 11:45 am to 12:35 pm on 13.12.1995. The gun in question was also proved by

Constable Hans Raj (PW6). This was the licensed gun of the appellant, Om Prakash.

15. The learned counsel for the appellant submitted that the gun as seen from the photograph was broken into three parts. He has drawn out attention to the site map Ex.PW18/A and unscaled site plan Ex.PW26/C, wherein with reference to the gun, it is recorded that the same was broken.

16. PW26 in his cross-examination has amply and correctly clarified that position. He has testified that the gun was not broken but had been dismantled and opened up. This is true and correct as is apparent from the photographs marked as Ex.PW6/15-25. ASI Narinder Singh (PW19) who examined the gun immediately after the occurrence between 11:45 am to 12:30 pm has deposed that he took about one hour and prepared the report. He did not check whether the gun was functional but from the appearance and as clearly deposed by the said witness, the gun appeared to be functional and operational.

17. The CFSL report Ex. PW30/A affirmatively states that the gun bore serial No.55035, which was the number mentioned in the seizure memo Ex.PW11/A. The CFSL report Ex.PW30/A specifically records that the gun No.55035 was in working order. The gun was produced as Ex.P-1 but it was not suggested that it was not the gun which could be seen in photographs marked PW6/15-25 or was not in working order. As per CFSL report Ex.PW30/A on examination and comparison of individual characteristic marks on test and crime cartridge cases under microscope, 12 bore crime cartridge case marked C/1 it was opined had been fired through the Gun No.55035 and the crime cartridge could have not been fired through any other firearm because of individual characteristic marks. With

regard to the lead pellets and pieces, Ex.PW30/A records that the same could have been used for fire from gun No.55035. The gun and cartridges were examined by Mr. S.S. Baisoya, Jr. Scientific Officer(Ballistic) CFSL, Chandigarh PW30. The said officer was cautious and initially when the 12 sealed parcels and three specimen seals were received along with the forwarding letter, he had noticed that the seal specimen of MSD did not tally with the sealed parcels. Subsequently, the specimen seal of the impression MSD was sent to him and thereupon he examined various exhibits. He has stated that the seals which were intact and tallied with the specimen seal impression.

18. It was submitted that PW30 has stated that the lead of pellets could have been fired from another weapon. PW30 is clear and categoric that the led pellets could have been used for firing through the weapon Ex.P-1, i.e., gun No.55035. Report in respect of markings on the crime cartridge and the test cartridge are unchallenged and affirmative. As far as lead pieces are concerned, PW30 opined that these pieces were remnants of the cartridge which could have been used from the weapon in question. The gun Ex.P-1 was a licenced weapon possessed by the appellant and this has been proved by Head Constable Dinesh Kumar (PW15) who had produced records relating to grant of licence to Om Parkash in respect of .12 bore gun No.55035 and the same had been renewed upto 07.07.1998. The weapon was used in the crime and the appellant was present in the room where Vandhana had been shot dead.

19. The CFSL report Ex.PW31/A states that human blood was found on various articles and blood on articles 1,2,3,4 and 7 was of blood group A. Article 7 consists of stained gauze piece Ex.PY. This was the blood of the

deceased. Article 4 is the half sleeved cream colour shirt which the appellant, Om Parkash was wearing at the time of crime on 13.12.1995. It was seized as per memo Ex.PW11/H. Blood of group A was found on the shirt. The report Ex.PW30/A was proved by Dr. Sanjeev (PW31). Thus blood of the deceased was found on the shirt worn by the appellant.

20. We have also referred to the evidence of PWs1 to 4 on the presence of the appellant at the time when the crime was committed. PWs1 to 4 are wife and children of the appellant. We have read the testimony of Harish Kumar (DW1) and are not inclined to accept the same for various reasons. Presence of the appellant at the spot is ascertained and affirmed by PWs12 and 26. This is corroborated by various other contemporious DD Entry 7A Ex.PW5/B and forensic documents like CFSL report Exs.PW30/A and PW31/A and presence of the licensed gun Ex.P-1 at the spot. The alibi does not merit acceptance, as the deceased, as noticed above, was found in a pool of blood after having been shot from a licensed gun belonging to the appellant in his residential house. The deceased had a child aged 6-7 months at the time.

21. The learned counsel for the appellant submits that there is delay in recording the FIR as the incident is of 9:15 am but the FIR was recorded at 1:00 pm on 13.12.1995. We are not inclined to accept the said submission as a ground to acquit the appellant. The rukka was sent to the Police Station at 12:25 pm. In the present case, the deceased Vandana did not have any relative and no witness came forward. The rukka was endorsed by the Investigating Officer and the facts were recorded vide DD Entry 6A Ex PW12/A. Further, the deceased was first taken to the Hospital for examination, where Dr. Vinod Kumar Goyal (PW10) was called. The

police had to ascertain the details before the FIR was registered. In DD Entry 7A Ex.PW5/B recorded at 9:58am on 13.12.1995 name of the appellant is mentioned. Thus possibility of his name being introduced subsequently is ruled out.

22. In view of the aforesaid discussion, we are not inclined to accept the plea of the appellant that he was not present in Delhi at the time of commission of offence. Judgment and decision of the Trial Court are affirmed.

23. On the quantum of sentence and compensation, we were inclined to increase the fine and award compensation to the child of the deceased Vandana. The learned counsel for the appellant, on instructions, has stated that the child of Vandana has been brought up as a family member of the appellant and Vidhya Devi (PW3). The child regards and treats PW3 as her mother and is studying in second grade. It is stated that the appellant and his family has taken care of him as their own child. In view of the said submissions we do not modify the order on sentence and or enhance compensation. The same is maintained.

24. The appellant is directed to surrender before the Trial Court on 06.03.2014.

We have extended the date of surrender as it is pointed out that the eldest daughter of the appellant is to get married on 03.03.2014 and functions are scheduled in the month of February.

25. The Appellant has been on bail pursuant to suspension of sentence since 2001. He has not absconded. It is stated that the surety furnished by the appellant at the time of suspension of sentence is still valid. However, it is directed one of the children of the appellant will furnish second surety to ensure surrender of the appellant on or before 06.03.2014. The said child

will furnish surety in the sum of Rs.25,000/- to the satisfaction of the Trial Court within 21 days from today.

26. The appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE JANUARY 15, 2014 pst