Vijay Pal vs State Of Delhi
2014 Latest Caselaw 3384 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     CRIMINAL APPEAL NO. 980/2010
                                      Reserved on : 7th July, 2014
                                      Date of decision: 30th July, 2014

        VIJAY PAL                                     ..... Appellant
                          Through Mr. M.L. Yadav, Advocate.

                     Versus
        STATE OF DELHI                            ..... Respondent

Through Mr. Rajat Katyal, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE V. KAMESWAR RAO

SANJIV KHANNA, J.:

Appellant-Vijay Pal has been convicted under Section 302 of the

Indian Penal Code, 1860 (IPC, for short) by the impugned judgment dated

20th July, 2010, for murder of Geeta. Appellant has also been convicted

under Sections 449 and 506 IPC and Section 27 of the Arms Act, 1959. By

order on sentence dated 22nd July, 2010, the appellant has been sentenced

to life imprisonment with fine of Rs.5,000/- for the offences under Section

302 as well as 449 IPC. For the offence under Section 506 IPC, the

appellant has been sentenced to Rigorous Imprisonment for two years with

fine of Rs.5,000/- and for the offence under Section 27 of the Arms Act

the appellant has been sentenced to Rigorous Imprisonment for seven year

with fine of Rs.5,000/-. The sentences are to run concurrently and benefit

of Section 428 Cr.P.C. has been granted. In default of payment of fine, the

appellant has to undergo Rigorous Imprisonment for six months on each

count.

2. By the impugned judgment, the trial court had acquitted Karan @

Gaura and Satish, who were also tried. We record that the State has not

preferred any appeal against their acquittal and the decision to this extent

has attained finality.

3. In short and brief, the case of the prosecution is that the appellant-

Vijay Pal had shot with a desi katta (firearm) and killed Geeta at about

01:30 hours on 18th October, 2007 in Jhuggi No. A-103, Jailorwala Bagh,

Ashok Vihar Phase-II, Delhi, in the presence of her husband Suresh (PW3).

4. At the outset, we notice and record that the appellant has not

questioned that Geeta had died unnatural and homicidal death as a result of

a bullet injury. The said fact even otherwise has been duly proved and

established beyond doubt from the testimony of Dr. K. Goel (PW-12), who

had conducted the post-mortem on the body of Geeta and had found one

lacerated punctured wound with inverted margins of the size 2.4 cm x 1.1

cm oval shape with contused abrasions at margin with blackening around

it. Marked tattooing was seen all over left face, left forehead and nose and

around the mouth and over right side of the face near the nose and the

mouth. Post-mortem report records and Dr. K. Goel (PW-12) has deposed

about the entry wound of the fire arm and stated that no external injury,

i.e., exit wound was seen upon examination. On exploration, it was

observed that the deceased had suffered communitted fracture on the left

side of maxilla with multiple broken teeth inside oral cavity and the injury

tract led towards cervical column. One bullet was found embedded

between the second and third cervical vertebrae in left lateral. The injury

had caused massive bruising and clots around and upto the depth of the

canal. Spinal cord was extensively lacerated. A bullet was recovered

and sealed. The firearm injury and spinal injury were sufficient to cause

death in the ordinary course of nature. The post-mortem report was

marked Exhibit PW-12/A. It may be noted that the dead body was

received in the mortuary as deposed by PW-12 on 18th October, 2007 at

8.15 A.M.

5. There is other material/evidence to show that the deceased had died

a homicidal death as a result of fire arm injury at about 1.30 A.M. in

Jhuggi No. A-103, Jailorwala Bagh, Ashok Vihar Phase-II, Delhi, but we

are not separately elucidating and referring to the said evidence in the

above paragraph to avoid prolixity and repetition.

6. In order to show and establish that the appellant was the perpetrator

of the crime, prosecution primarily relies upon oral testimony of purported

eyewitness Suresh (PW-3), husband of Geeta. In order to appreciate his

testimony, we shall be also referring to the statements of police officers

Hukam Singh (PW-7), Satish Kumar (PW-2) and Inspector Bahadur Singh

(PW-15). In addition, we will be referring to the forensic report Exhibit

PW14/A given by Puneet Puri (PW-14) relating to the weapon of offence

and the bullet recovered from the body of Geeta.

7. Suresh (PW-3), it has been correctly submitted, did oscillate in his

court deposition and the question is whether a part of Court deposition can

be relied to sustain appellant's conviction? In his examination-in-chief

PW3 has stated that he and his wife used to sell fruits in trains and on the

fateful night appellant-Vijay Pal along with two others had called out to his

wife Geeta as "bhabhi". Thereafter, appellant-Vijay Pal and others started

quarrelling with her. Geeta asked them to leave the spot. He along with his

wife moved to Jhuggi No. A-103, to avoid any altercation, but the

appellant and others followed them. It is apparent that Suresh and Geeta,

as per deposition of PW3, were residing in a different jhuggi and not in

Jhuggi No. A-103. This fact was accepted by the appellant-Vijay Pal as is

clear from the cross-examination and the questions put on behalf of

appellant-Vijay Pal, wherein PW-3 has accepted that he and his wife were

initially in Jhuggi No. 52. PW3 has deposed that the appellant with others

had then warned Geeta that they would return to kill her. PW-3 in his

examination-in-chief testified that the appellant had fired at his wife and

the bullet had hit her on the left cheek. PW-3 was threatened and warned.

However, PW3 made a phone call to the police. Police came to Jhuggi No.

A-103, where PW3 narrated the facts, which were recorded in Exhibit PW-

3/A. Said statement was signed by PW-3 at point X. Blood samples and

other evidence like blanket, shawl etc. were taken into possession and

Geeta's body was removed to Jagjivan Ram Hospital, Jahangirpur for post-

mortem and subsequently handed over to Suresh (PW-3). Suresh (PW-3)

identified various articles/material, which were seized from the spot and

were marked Exhibits P-1 to P-6.

8. However, in the examination-in-chief Suresh (PW-3) had deposed:

"My wife has already died. I have small children and there is no certainty of my wife (sic life), therefore, I request the court that accused persons may be pardoned."

9. Learned counsel for the appellant, however, has drawn our attention

to cross-examination of PW-3 wherein he accepted that the appellant and

other accused persons had not quarrelled with him or his wife prior to the

incident, but the quarrel had taken place as the appellant and others had

woken up Geeta by calling out bhabhi-bhabhi in spite of the fact that the

door of the jhuggi was closed. The appellant and others came to Jhuggi No.

A-103, ten minutes after they had left Jhuggi No. 52. Our attention was

also drawn to cross-examination after re-examination by the Additional

Public Prosecutor wherein PW-3 has stated that it was correct that due to

darkness he could not see who had fired at his wife. It was highlighted that

PW3 did not affirm and support the version given by him in the

examination-in-chief. Thus, we have two contradictory versions by PW3.

10. At this stage and before we examine and opine on the so-called

contradiction in the testimony of PW-3 as to whether the appellant had

fired the weapon, we would like to refer to the cross-examination of PW-3

on another aspect. PW-3 has stated that Jhuggi No. A-103 belonged to one

Jaggi, who was not present at the time of the occurrence but came

subsequently and the said Jaggi used to sell liquor in the locality and that

he (PW3), used to keep stock of liquor belonging to Jaggi because he was

scared of him (Jaggi). Even in his own house, he used to keep liquor. PW-

3 also accepted as correct that he used to take liquor with appellant-Vijay

Pal and others in Jhuggi No. A-103.

11. PW-3 was re-examined by the Additional Public Prosecutor after he

had oscillated by making reference to Jaggi etc. in his cross-examination

and, PW3, in his re-examination by the Additional Public Prosecutor had

again categorically asserted that he had seen appellant-Vijay Pal firing at

his wife. The appellant along with others were shouting before they came

to Jhuggi No. A-103 and he had identified the voice. Electricity

connection had been installed in Jhuggi No. A-103. But as recorded above,

on cross-examination on behalf of Vijay Pal, PW-3 had contradicted

himself and stated that due to darkness he could not see who had fired at

his wife.

12. We have already quoted statement made by PW-3 in his

examination-in-chief to the effect that his wife died and he had small

children and his life was uncertain, accordingly, PW-3 had prayed that the

appellant and others may be pardoned. We are inclined to accept and

believe statement of Suresh (PW-3) to the effect that appellant-Vijay Pal

had fired and killed Geeta, which was emphatically affirmed by him in

categorical terms in examination-in-chief and then again in the re-

examination by the Public Prosecutor. It is apparent that PW-3 did try to

somehow soften the blow and help the appellant as is clear from the cross-

examination after the examination-in-chief and after re-examination by the

Public Prosecutor. Our reason is that PW-3, it is apparent, was under

pressure to resile and exonerate the appellant. Possibly, he feared for his

life and, therefore, had gone to the extent of stating that the appellant killer

of Geeta, his wife, may be pardoned even when he had himself implicated

him as the person, who had fired and killed Geeta. We find that the

version given by PW-3 in his examination-in-chief is the true and correct

rendition of facts, which duly stands corroborated from the testimonies of

the police officers, Hukam Singh (PW-7), Satish Kumar (PW-2) and

Inspector Bahadur Singh (PW-15).

13. A witness who makes two inconsistent statements, it can be urged is

unreliable, but there can be instances where the court can rely upon the

earlier or verifiable statement if the same is true and the witness has falsely

resiled to protect the perpetrator. For this, there should be intrinsic

circumstances and/or corroborative circumstances or materials which

support and enables the court to draw the inference that the first or part

statement is true and correct. In Crl. Appeal No. 434/2011 titled Gopal @

Titu & Anr. Vs. State one of us (Sanjiv Khanna, J.) had made the

following observations:-

"2. At the outset we delineate that in the present case crucial witnesses have either partly or wholly turned hostile. There are some contradictions or omissions which also need to be considered upon. Due to these considerations, "see through" examination, of the witnesses' statements and evidence garnered, is required in the present case. We have referred to contemporaneous documentary records in form of DD entries/FIR, call data records etc. We have postulated the statement of witnesses with the contemporaneous record to reach an ineluctable conclusion. At this stage, we record that evidence of hostile witnesses, to the extent it is truthful and reliable, remains admissible and it is open to the Court, depending upon the facts of each case, to rely upon dependable and acceptable part of the statement made by a hostile witness, as is reiterated in Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111:

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

17. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996 SCC (Cri) 1278: AIR 1996 SC 2766] this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra[(2002) 7 SCC 543 : 2003 SCC (Cri) 112] , Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109] , Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661 : AIR 2006 SC 951] , Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188 : AIR 2008 SC 320] andSubbu Singh v. State [(2009) 6 SCC 462 : (2009) 2 SCC (Cri) 1106] .

18. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567: (2010) 3 SCC (Cri) 1402: JT (2010) 9 SC 95] this Court, after considering all the earlier decisions on this point, summarised the law applicable to the case of hostile witnesses as under: (SCC pp. 596-97, paras 83-85)

"83. ... the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are

admissible in law, can be used by the prosecution or the defence.

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

85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (Vide Sohrab v.State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819 : AIR 1972 SC 2020] , State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] , Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] , State of Rajasthan v. Om Prakash [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411 : AIR 2007 SC 2257] , Prithu v. State of H.P.[(2009) 11 SCC 588 : (2009) 3 SCC (Cri) 1502] , State of U.P. v. Santosh Kumar[(2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] and State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] .)"

14. Thus, accepting there were hostile and opposing statements, we have

examined the statement of Suresh (PW3) and then tried to ascribe whether

the correct version or truth is veritable on the basis of his deposition to

ascertain and sustain the conviction of the appellant. The present case is

one where it is possible to separate truth from untruth, exaggeration and

improvement from what is true and correct, after exercising due care and

caution because of other corroborating circumstances and evidences which

have been referred to below. Suresh (PW3) certainly can be classified as

oscillating and not wholly reliable or unreliable. PW3 is a witnesses

falling in the third category carved out by the Supreme Court in

VadiveluThevar v. State of Madras AIR 1957 SC 614, and therefore, we

have to circumspect and look for reliable direct and circumstantial

evidence to corroborate to authenticate and endorse the true and correct

version of his testimony. Suresh (PW3) was not a chance witness whose

presence at the spot was unnatural and unbecoming. His presence with his

wife, deceased Geeta, late at night past the midnight hour was natural and

normal.

15. Conviction of an accused can be sustained even on evidence of a

single eye-witness if the evidence given by the said witness is credible or

the implication made by the said witness when read with other

corroborative evidence and material, conclusively makes out a watertight

case against the accused. As noticed below, there is sufficient

corroborative evidence against the appellant Vijay Pal, when we read and

examine the truthful part of the version and deposition of Suresh (PW3),

along with the corroborative evidence referred and mentioned below.

16. Constable Satish Kumar (PW-2) and Hukam Singh (PW-7) were

first to reach the place of occurrence, i.e., Jhuggi No. A-103 on 18th

October, 2007 at about 3 A.M. after receiving a call that a woman had been

shot at the said location. PW-2 has mentioned that soon thereafter,

Inspector Bahadur Singh (PW-15) reached and on the statement

(Ex.PW3/A) made by Suresh (PW-3), Inspector Bahadur Singh prepared

the rukka and PW-2 (Constable Satish Kumar) took the rukka

(Ex.PW15/A) from the spot to the Police Station for the purpose of

registration of the FIR (Ex.PW4/D). Suresh (PW-3) was found and was

present at the spot, by the said police officers. Constable Hukam Singh

(PW-7) has similarly deposed on recording of the statement of Suresh

(PW-3), the tehrir and registration of FIR. PW7 had reached the spot at

about 3 A.M. Inspector Bahadur Singh (PW-15) has stated that at 3:05

A.M. on 18th October, 2007, he learnt about contents of DD entry No. 6A

and reached at the location/jhuggi, where Geeta lying dead in a cot with

blood all over. Suresh (PW-3) was present and on the basis of his

statement (Exhibit PW-3/A), tehrir (Exhibit PW-15/A) was prepared and

the FIR was registered. The FIR (Exhibit PW-4/D) was registered at 5.15

hours on 18th October, 2007. The FIR specifically named the appellant

Vijay Pal as a perpetrator, who had fired and had inflicted the fatal gun

shot injury. Interestingly, Suresh (PW-3) was not controverted and

questioned and it was not suggested that PW-3 did not know appellant-

Vijay Pal. Appellant-Vijay Pal in his statement under Section 313 Cr.P.C.

had stated that on the date of incident, Jaggi, a liquor vendor had picked up

quarrel with him and at his instance he had been implicated in this false

case. Thus from the beginning and at the first instance, Suresh (PW3) had

specifically and without hesitation named the appellant Vijay Pal, as the

person who fired the shot.

17. As noticed above, a bullet was recovered during the post-mortem

procedure by Dr. K. Goel (PW-12) from the body of the deceased. There

was no exit wound.

18. As per the prosecution version, Satish, who has been acquitted by

the trial court was apprehended and arrested vide memo Exhibit PW-7/A

on 18th October, 2007 at 6 P.M. Karan @ Gaura was arrested on 19th

October, 2007 at 5.30 P.M. vide arrest memo Exhibit PW-10/A and the

appellant-Vijay Pal was arrested on 13th November, 2007 at about 4 P.M.

vide arrest memo Exhibit PW-10/E. Thus, the appellant-Vijay Pal was

arrested, nearly 25 days after the occurrence and was the last one to be

arrested. PW-15 Inspector Bahadur Singh (Investigating Officer) has

deposed that upon interrogation appellant-Vijay Pal had made a disclosure

statement (Exhibit PW-10/G) on 13th November, 2007 itself and then had

led them to Holambi Kalan Railway Station, from where he had taken out a

desi katta from the bushes near the railway line and a telephone pole. The

katta had one used shell of cartridge. Sketch of the said katta (Exhibit PW-

10/H) was prepared. Deshi katta was taken into possession after taking

measurements etc. vide seizure memo (Exhibit PW-10/I). Site plan Exhibit

(PW-10/J) as to the place of recovery was also prepared. Identical

statement of the said recovery etc. has been made by Constable Sudhir

Kumar (PW-10), who was present with PW-15 at that time. Till 13th

November, 2007 the weapon of offence involved in the occurrence was

untraced and was unknown. Satish and Karan @ Gaura, who were arrested

on 18th and 19th October, 2007, apparently had no knowledge and did not

make any disclosure statement resulting in recovery of the weapon of

offence. The weapon of offence was recovered after arrest of the appellant

Vijay Pal and his disclosure statement lead to the recovery. Thereupon, the

bullet which had been recovered from the body of the deceased by Dr. K.

Goel (PW-12) along with the weapon of offence and the empty cartridge

were sent for forensic examination. The said examination was conducted

by Puneet Puri (PW-14), Senior Scientific Assistant, Ballistics, FSL

Rohini. His report is marked Exhibit PW-14/A. PW-14 in his report as

well as in his court deposition has stated that he had received two sealed

parcels one with the seal of BS and the other with the seal of KGBJRM

Hospital mortuary. The first parcel had a country made pistol of .315 inch

bore and one 8 mm/.315 inch cartridge. The second parcel had one

deformed bullet marked Exhibit EB1. The country made pistol was found

to be in working order and test fire was conducted by using two 8 mm/.315

inch cartridge from the lab stock. The recovered test fired bullets were

marked TB1 and TB2. On microscopic examination of the deformed bullet

Exhibit EB1, it was found that the marks correspond to the test fired bullets

TB1 and TB2. The test fired cartridge TC1 and the deformed bullet

Exhibit EB1 were ammunition under the Arms Act. Marks on the test fired

cartridges marked TC1 and TC2 matched with the empty cartridge Exhibit

EC1, found in the country made pistol F1. PW-14 and the FSL report

Exhibit PW-14/A prove beyond doubt that the bullet found in the body of

the deceased Geeta was fired from the pistol F1, which was recovered

pursuant to the disclosure statement made by Vijay Pal marked Exhibit

PW-10/G, which had resulted in recovery of the said pistol vide memo

Exhibit PW-10/I. This country made pistol F1, it has been established, was

used to fire the bullet Exhibit EB1, to kill Geeta.

19. In view of the aforesaid discussion, we accept the prosecution

version by relying upon the examination in chief of Suresh (PW3) that

appellant Vijay Pal had fired and killed his wife Geeta. The said version

mentioned in the complaint (Ex. PW3/A) which formed basis of the FIR

(Ex. PW4/D) stands duly corroborated with the subsequent recovery of the

weapon of offence i.e. desi katta (F1) after disclosure statement (Ex.

PW10/G). The recovery was made on 13th November, 2007 after the

appellant was arrested on the same day at about 4.00 PM. Bullet (EB1)

recovered from the body of the deceased had the same marking as the test

fired bullets (TB1 & TB2).

20. The conviction of the appellant under Section 302 as well as 449 IPC

is, therefore, upheld. The conviction of the appellant under Section 506

IPC and Section 27 of the Arms Act, 1959 is also upheld. We do not also

see any reason to interfere in the order of sentence or modify the same.

The appeal is accordingly dismissed

.

(SANJIV KHANNA) JUDGE

(V. KAMESWAR RAO) JUDGE JULY 30th, 2014 VKR/kkb