Delhi High Court
Manoj Kumar vs State on 1 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: September 11, 2014
% Judgment Delivered on: October 01, 2014
+ CRL.A. 217/1998
MANOJ KUMAR ..... Appellant
Represented by: Mr.Vikrant Sarin, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari APP
Insp.Nand Kishor, PS Civil Lines
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
1. The police swung into action on March 27, 1993 at about 10.15 A.M.
when one Bhupinder Singh PW-21, came to PS Civil Lines and informed
Insp.B.S.Dahiya PW-50, that appellant Manoj is firing shots at his
(Bhupinder‟s) father near Quarter No.F-1, Police Colony, Civil Lines, Delhi.
2. Accompanied by SI Prakash Chand PW-24, SI D.D.Sharma PW-30, SI
Dharambir Singh PW-33, SI G.D.Pathak PW-23, Ct.Babu Lal PW-31,
Ct.Pradeep Kumar PW-40, Ct.Hari Sikander Singh PW-39 and HC Om
Prakash PW-12 and Insp.B.S.Dahiya reached the spot. What happened
thereafter is recorded in the endorsement (rukka) Ex.PW-50/A made by
Insp.B.S.Dahiya which reads as under:-
"Respected Duty Officer PS Civil Lines it is humbly submitted
that today Shri Bhupinder Singh came to the office and informed
me that Manoj is firing shots at his father. On receipt of said
information, I along with SI Prakash Chand, SI DD Sharma, SI
Pankaj Sharma, SI Dharambir Singh, SI GD Pathak, HC Ilam
Singh No.168/N, Ct. Babu Lal No.1978/N, Ct. Pradeep Kumar
No.421/N, Ct. Harisikander Singh No.555/N (Armed), HC Om
Prakash No.315/N and Wireless Operator Subhey Singh 893/N
and Bhupinder Singh reached the spot where Manoj was firing
indiscriminately from a gun and he was accompanied by Sunil
who was having a rod who was having an iron rod in his hand.
On seeing the things getting out of control I ordered HC
Harisikander Singh No.555/N (Armed) to fire a round in the air
whereupon Ct. Harisikander Singh fired a round in air from his
government vehicle. Manoj and Sunil were overpowered after
creating pressure upon them from all four sides. A single barrel
gun of 12 Bore No.14798/1981 on which Bharat Small Arms (P)
LTD Body and Barrel were inscribed and a dark brown raxine
bag containing 22 cartridges was found in the hand of Manoj.
On checking the gun a live cartridge was found therein. 12
special was inscribed on one live cartridge found loaded in the
gun and 22 cartridges recovered from possession of Manoj. The
aforesaid gun, cartridge found loaded in the gun, 22 cartridges
and raxine bag have sealed in separate pulindas with seal of
BSD and handed over to SI Prakash Chand who is present at the
spot. It has been known that Mrs.Kanta Sharma, Shri Vinod
Kumar Joshi, Smt. Bishambari Devi, Sudesh Kumar, Subash
Chander, Shri Onkar Prasad, Smt. Mani Devi, Ramesh Chand
Tyagi, Miss Indu, Miss Nisha, Shri Naresh Kumar, Sanjay, Shri
Mahendra Singh and Babu Lal who were witnessing the incident
from quarters and present at the spot have received injuries due
to firing of shots and been removed to Bara Hindu Rao hospital
by a PCR. Crime Team, photographers have been called. The
statements of witnesses reveal the commission of an offence
punishable under Section 307/34 IPC and Sections 25/27/54/59
of Arms Act. Hence, this writing is being sent to the Duty Officer
for registration of a case. I am conducting investigation.
Date and hour of occurrence: 27.3.93 at 8.30 A.M.
Place of occurrence: Police Colony Civil Lines near Q. No.F-1.
Date and hour of dispatch: 27.3.93 at 10.15 A.M." (Translated
Version)
3. The endorsement afore-noted on basis whereof the FIR was registered
was preceded by Insp.B.S.Dahiya recording the statement Ex.PW-21/A of
Bhupinder Singh, the gist whereof is that he resides with his parents at
Quarter No.72, Civil Lines, Delhi and his father is employed as an ASI
(Driver) in Delhi Police. On March 22, 1993 at about 06.30 A.M. he was
exercising in a park with his friends Rakesh and Satender, when his
neighbours Manoj and Sunil who are sons of Ct.Bishambhar Dayal came and
started abusing him for having defamed their sister Nisha in the colony. They
threatened him that they would kill him if he would not mend his ways and
went away. He returned to his house and apprised his brother Jitender Singh
about the incident at which Jitender Singh went to the house of Manoj and
Sunil and counselled them not to fight with him. Today i.e. March 27, 1993,
at about 08.30 A.M. when Rakesh, Satender and he were returning to their
respective houses after exercising they met his father at the gate outside PS
Civil Lines who also started walking along with them. As they reached
Quarter No.F-1 behind PS Civil Lines, Sunil who was already standing there
started abusing him and his father. Sunil took out a knife from the pant of his
pocket but he and his father overpowered him and proceeded towards the
police station at which Sunil started shouting. Suddenly they heard firing
sound from a firearm and saw appellant Manoj, brother of Sunil, coming from
his house with a gun. Manoj fired a shot at his father who fell down being hit
by a bullet on his left hip. Rakesh and Satender got busy in lifting his father
and he i.e. Bhupinder went to the police station to inform the police about the
incident. SHO PS Civil Lines along with his staff immediately came to the
spot. The sound(s) of firing of shots was still being heard when he along with
the police reached the spot. The police officers overpowered Manoj and Sunil.
He learnt that Manoj had injured many persons by firing shots from his gun.
4. The statement Ex.PW-21/A on which the endorsement Ex.PW-50/A
was made by Insp.B.S.Dahiya was forwarded at 10.15 A.M. to Police Station
Civil Lines where SI Rishi Ram registered the FIR bearing No.95/1993, at
10.30 A.M. on March 27, 1993.
5. As recorded in the endorsement, appellant Manoj and his brother Sunil
were apprehended at the spot. A single barrel shrapnel gun (charre wali gun in
Hindi) and a bag containing 22 live cartridges were recovered from appellant
Manoj. On checking the said gun, a live cartridge was found loaded therein.
The aforesaid articles i.e. gun, live cartridge loaded in the gun, bag and 22
live cartridges found in the bag were seized vide memo Ex.PW-24/A.
6. Thereafter the police officers examined the place of occurrence and
found eight fired cartridge cases at/near the place of occurrence and the same
were seized vide memo Ex.PW-24/D. The details of eight shells of fired
cartridges found at at/near the place of occurrence are as under:-
S. No. Number of fired Location of recovery of fired cartridge
cartridge cases cases
recovered
1. Four Near front of Quarter No.F-1.
2. One Front of Quarter No.59
3. One Rear of Quarter No.D4
4. One Front of Quarter No.33
5. One East side of Quarter No.33
7. As recorded in the endorsement, fourteen persons were injured and
removed to the Bara Hindu Rao Hospital for treatment. The details of the
fourteen injured persons and the injuries found on their person are as under:-
S. Name of injured person Injury found on MLC of injured
No. person of injured person
person
1. Indu (deceased) i) Multiple Ex.PW-3/C
punctured wounds
on the forehead and
face approximately
all over the face.
ii) Multiple
scattered punctured
wounds on neck
interior.
iii) Multiple
punctured wounds
on the dorhal aspect
of the left hand and
distal over arm.
2. Kanta Sharma PW-27 i) Punctured wound Ex.PW-3/A
over the head above
left eye brow
medial aspect.
3. Vinod Kumar Joshi PW-20 i) Scattered Ex.PW-35/C
puncture wounds 6
in number over
right lumbar region
posterior aspect
4. Bishamberi Devi PW-44 Multiple punctured Ex.PW-35/B
wounds - scattered
over
i) Right wrist joint
ii) Right middle +
ring finger
iii) Right thigh
lateral side
iv) Right lower leg
medial aspect
v) Laceration over
right wrist joint
5. Sudesh Kumar PW-14 i) Two punctured Ex.PW-3/B
wounds right side
umbilical region.
ii) Multiple
punctured wounds
right lower chest
iii) Multiple
punctured wounds
right thigh anti-
lateral aspect
iv) Left knee
medial aspects to
concern wounds
v) Punctured
wounds on right
forearm aistalend
and interior medial
aspect of upper arm
6. Subhash Chander PW-6 ---- MLC not on
record.
7. Onkar Prasad PW-8 Multiple punctured Ex.PW-35/A
wounds over
i) Forehead
ii) Above left
nasolabial fold
iii) Suprasternal
fossa
iv) Over the
marubrium sterni
v) 2nd ICS Right
MCL
vi) 3rd ICS Right 1
cm. away MCL
vii) 6th ICS Right
MCL
viii) 7th ICS Left
MCL
ix) 7th ICS Right
side 1 cm medial to
MCL
x) 6th ICS left side
MCL
xi) Anterior
superior (illegible)
xii) Anteromedial +
inferior (3cm)
illegible to spine
xiii) 2 wounds in
umbilical region
(illegible)
xiv) 2 wounds in
illegible
xv) illegible region
8. Mani Devi PW-17 i) Pellet (gunshot) Ex.PW-9/A
injury mark on
right parietal region
9. Ramesh Chand Tyagi PW-2 Multiple punctured Ex.PW-34/B
wounds (2 x 2 cm)
i) Left anterior
aspect of seltoid
region
ii) Left lateral
aspect of seltoid
region
iii) Left arm, lower,
anterolateral aspect
iv) 2 punctured
wounds at anterior
aspect of arm at 8"
from lateral end of
clavicle
v) Left forearm
approximately
upper middle right
position
10. Nisha (sister of appellant Lacerated wound Ex.PW-8/H
Manoj and Sunil) DW-1 near right of lumbar
spine
11. Naresh Kumar PW-43 Punctured wounds Ex.PW-3/E
over lateral aspect
of left thigh
12. Sanjay i) Left thigh - Ex.PW-3/D
multiple punctured
wounds lower part
interior aspect
ii) Leg-scattered
iii) Lower neck
interior aspect
punctured wound
iv) above right
patella - Multiple
punctured wounds
v) Right knee -
multiple punctured
wounds lateral
aspect and front of
shin, multiple
punctured wounds
13. Mahinder Singh PW-1 Multiple scarred Ex.PW-34/A
punctured wounds
over (27 in number)
extending from
inginal region to
anterlateral aspect
of right thigh
14. Babu Lal PW-11 i) Bullet wound Ex.PW-18/A
about 5 cm from
medial side of right
knee and calf.
ii) Abrasion on
knee
8. Indu (hereinafter referred to as the „Deceased‟) succumbed to her
injuries at about 12 noon on March 27, 1993. Dr.B.K.Barwa PW-25,
conducted the post-mortem of the dead body of the deceased and prepared the
post-mortem report Ex.PW-25/A. The external injuries found on the person of
the deceased as recorded in the post-mortem report Ex.PW-25/A are as
follows:-
"1. One punctured wound on the outer aspect on the left eye
size 0.5 cms. in diameter.
2. One punctured wound on left side of forehead close to the
hairline size 0.5 cms in diameter.
3. Punctured wound in the middle aspect on left eye 0.6 cms
in diameter.
4. Two punctured lacerated wound on lateral aspect on the
left cheek prominence of size 0.5 cm x 0.6 cms in diameter.
5. Two punctured wounds on the lateral aspect on the left
chin of 0.5 cms to 0.6 cms. in diameter.
6. One elongated grazing abrasion placed obliquely on the
left submandibular region of size 0.5 cms. to 0.8 cms.
7. One punctured wound on the middle of neck 2.5 cms.
about the base of neck of size 0.6 cms. in diameter.
8. One punctured wound on left side of neck 2.5 cms. lateral
to the injury No.7 of size 0.5 cms. in diameter.
9. Two punctured lateral wound on left shoulder front of size
0.5 cms. to 0.4 cms. in diameter.
10. 8 punctured wounds in chin area and submandibular area
of size 0.5 cms. to 0.6 cms.
11. 9 punctured wounds on the right cheek area size varies
from 0.5 cms. to 0.6 cms. involving in area of 10 cms. X 7 cms.
12. One punctured wound on right shoulder front 3 cms. right
to base of neck size 0.6 cms. in diameter.
13. One punctured wound on the left arm front side at its
upper third of size 0.5 cms. with bruising around.
14. 9 numbers of punctured wounds on the left hand on its
dorsal aspect including fingers and its size varied from 0.4 to 0.6
cms."
9. The post-mortem report Ex.PW-25/A records that all the injuries found
on person of the deceased were ante-mortem caused by firearm projectiles
fired from a distant range and that death of the deceased was caused due to
hemorrhagic shock resulting from gunshot injuries.
10. During the course of investigation, the police recorded the statements
of all afore-noted thirteen injured persons (fourteenth injured person Indu i.e.
the deceased had died) who were all residents of Civil Lines, Police Colony
under Section 161 Cr.P.C. Save and except Mahinder Singh PW-1, all the
other injured persons stated in their statements under Section 161 Cr.P.C. that
on March 27,1993 at about 09.00-09.15 A.M. appellant Manoj had fired shots
at them when they were standing in the balconies of their quarters and Sunil,
brother of appellant Manoj, was exhorting Manoj to kill them at that time.
The statement of Mahinder Singh PW-1, under Section 161 Cr.P.C. was on
the lines of the statement Ex.PW-21/A of his son Bhupinder Singh.
11. The gun recovered from the possession of appellant Manoj and live
cartridge found loaded in said gun, twenty two cartridges found in bag
recovered from the possession of appellant Manoj and eight fired cartridges
cases recovered from/near place of occurrence were sent to CFSL for ballistic
examination.
12. Vide CFSL report Ex.PW-13/A it was opined that the gun recovered
from the possession of appellant Manoj was in working condition and had
been fired and eight cartridges cases recovered from/near place of occurrence
were fired from the gun recovered from the possession of the appellant
Manoj.
13. Armed with the aforesaid material, a challan was filed accusing
appellant Manoj and his brother Sunil of having murdered the deceased and
attempting to murder afore-noted thirteen injured persons. Charges were
framed against the appellant and his brother Sunil for having committed
offences punishable under Sections 302 and 307 IPC read with Section 34
IPC. Additionally, charge was framed against the appellant for having
committed offence punishable under Section 27 of the Arms Act.
14. At the trial, the prosecution examined as many as fifty witnesses. We
need not note in detail the testimonies of the witnesses associated with the
investigation of the case for they have deposed on the lines, of factual
narratives, noted by us in the foregoing paragraphs, but would be highlighting
such testimonies or other evidence which needs to be brought out for
evaluating the creditworthiness of the evidence led at the trial.
15. Mahinder Singh PW-1, deposed in harmony with the statement Ex.PW-
2/A of his son Bhupinder Singh with regard to the incident of March 27,
1993. Being relevant, we note the following portion of the cross-examination
of the witness:-
"It is correct that Insp.Bharat Singh is father-in-law of
Insp.Bhagwan Sing Dahiya. My elder son is Jatinder. Brother-
in-law of Jatinder (Sala) is Ravipal. My son Jatinder used to live
with us in those days (when the occurrence took place). He is
still living with us. His brother-in-law (Sala) Ravipal is also in
Delhi Police. The said Ravi Pal earlier used to live in barracks
P.S. Civil Lines but not when this occurrence took place. We are
on cordial terms with said Ravipal. He visits us often. Ravipal
has got a licensed double barrel gun. It is correct that in a single
barrel gun after one shot is fired, the gun has to be re-loaded. It
is wrong to suggest that on that day I alongwith Bhupinder my
son, and Sanjay attacked the accused persons after procuring the
double barrel gun from Ravipal. It is also incorrect that we also
procured cartridges from Ravi Pal.
On 25.3.1993 my elder son Jatinder had gone to the house of
accused Manoj because earlier on that very day there had been a
confrontation between my son Bhupinder and both the accused
persons Manoj and Sunil. It is wrong to suggest that cause for
confrontation was protest from accused Manoj and Sunil to
Bhupinder asking him as to why he was defaming their sister
Nisha. It is wrong to suggest that on the date of incident in the
morning when we found Sunil passing through the side of the
place of occurrence I, my son Bhupinder and Sanjay surrounded
him and started thrashing him. It is further incorrect to suggest
that at that time Bhupinder was carrying the Double Barrel Gun
of Ravi Pal along with some cartridges and when he tried to fire
upon Sunil he ran towards his house. It is further incorrect to
suggest that while chasing Sunil Bhupinder went on firing
several shots which missed the target and hit many residents of
the area as a result of which it caused injuries to several people.
It is further incorrect to suggest that Sunil entered his house to
save his life and at that time also Bhupinder fired upon him
which hit a bread seller and when he fired another shot upon
Sunil in his house, Nisha the younger sister of Sunil and Manoj
received injuries through that gun shot. It is further incorrect to
suggest that seeing this attack Manoj who was present in his
house picked up the single barrel gun of his father and in self
defence fired upon us as a result of which I received pellet
injuries when I tried to run away from the spot or that one pellet
hit Sanjay also who was also with us. (Emphasis Supplied)
16. Ramesh Chand Tyagi PW-2, deposed that he is employed as Sub-
Inspector in Delhi Police and was residing at Quarter No.D-4, Second Floor,
Police Colony, Civil Lines, Delhi in the year 1993. On March 27, 1993 at
about 08.30 A.M. he heard the sound of firing of a gunshot whereupon he and
his daughter Nisha i.e. the deceased went to the balcony of their quarter and
saw the appellant Manoj with a gun in his hand and a bag around his neck.
Accused Sunil was exhorting Manoj to shoot everybody at that time.
Thereafter Manoj fired a shot at Mahinder Singh. Manoj then fired a shot at
Sanjay who was a resident of Quarter No.80, Police Colony, Civil Lines.
Manoj then fired one or two shots and started going towards his quarter. He
asked Manoj not to fire whereupon Manoj and Sunil fired at him and his
daughter who was standing by his side. (The witness later stated that accused
Sunil was not having a gun at that time). The pellets hit him and his daughter.
Thereafter Manoj fired at his own sister Nisha and a person named Babu Lal
who was running a bakery.
17. Jitender Singh PW-3, deposed that on March 25, 1993 at about 09.00-
09.30 P.M. his brother Bhupinder Singh had informed him that Manoj and
Sunil had threatened to kill him earlier in the day. Thereafter he went to the
residence of Manoj and Sunil and counseled them to not to fight with his
brother Bhupinder.
18. Subhash Chander PW-6, deposed that he was residing in Quarter No.E-
1, Third Floor, Police Colony, Civil Lines in the year 1993. On March 27,
1993 at about 08.30 A.M. he was taking a bath when he heard the sound of
firing of a gunshot. He came out of the bathroom and saw his mother Mani
Devi and father Onkar Prasad standing in the balcony of their quarter.
Appellant Manoj was having a gun and bag at that time. Manoj was firing at
that time and Sunil was shouting „kill kill‟. They i.e. he and his parents asked
Manoj and Sunil as to what were they doing upon which they i.e. Manoj and
Sunil fired at him as a result of which they (he and his parents) sustained
gunshot injuries.
19. Onkar Prasad PW-8, deposed in harmony with the testimony of his son
Subhash Chander PW-6. Additionally, he stated that accused Sunil was
exhorting Manoj to fire at the time when he was firing shots from his gun.
20. Insp.Bhim Singh PW-10, deposed that on 27.03.1993 at about 08.30
A.M. he had seen appellant Manoj firing shots at Mahinder Singh, Ramesh
Chand Tyagi and his daughter Indu i.e. the deceased, Onkar Prasad, Subhash
and his mother Mani Devi, Vinod and Kanta Sharma. Accused Sunil was
exhorting Manoj to fire at people at that time.
21. Babu Lal PW-11, who was one of the fourteen persons who had
sustained gunshot injuries on March 27, 1993 turned hostile and did not
support the case of the prosecution. He deposed that he cannot identify the
person who was firing shots on March 27, 1993.
22. HC Om Prakash PW-12, deposed that on March 27, 1993 he
accompanied Bhupinder Singh, Insp.B.S.Dahiya, SI Prakash Chand, SI D.D.
Sharma and other police officials to the spot. On reaching the spot, he saw
Manoj firing from his gun. Sunil was exhorting Manoj to shoot everybody at
that time. Thereafter the police officers overpowered accused Manoj and
Sunil.
23. Sudesh Kumar PW-14, deposed that on March 27, 1993 he was staying
with his relative HC Sudesh Sharma at Quarter No.59, Police Colony, Civil
Lines, Delhi. Bishambari Devi and her son Naresh were already standing
there. He, Bishambari Devi and her son Naresh sustained gunshot injuries but
he cannot identify the person who had fired shots at them.
24. Save and except one difference, Mani Devi PW-17, essentially deposed
in harmony with the testimony of her son Subhash Chander PW-6 and
husband Onkar Prasad Sharma PW-8. The difference between the three
testimonies was that Mani Devi did not state in her examination-in-chief that
Sunil was exhorting Manoj to kill everybody at the time when Manoj was
firing shots. However, Mani Devi stated in her cross-examination by the
prosecutor that Sunil was exhorting Manoj to kill everybody at the time when
Manoj was firing shots.
25. Satinder Singh PW-19, deposed in harmony with the statement Ex.PW-
21/A of Bhupinder Singh with regard to incident of March 25, 1993. He
however did not support the case of the prosecution with regard to incident of
March 27, 1993.
26. Vinod Kumar Joshi PW-20, deposed that on March 27, 1993 he had
gone to meet his brother Nathu Ram who was residing at Quarter No.F-4,
Police Colony, Civil Lines. On said day at about 08.30 A.M. he was standing
in the balcony of quarter of his brother when he saw appellant Manoj firing a
shot at Mahinder Singh. He and his sister-in-law Kanta asked Manoj to desist
from firing upon which Manoj aimed his gun towards them and fired shots at
them. He and his sister-in-law sustained gunshot injuries were removed to the
hospital by the police.
27. Bhupinder Singh PW-21, deposed in harmony with his earlier
statement Ex.PW-21/A. Being relevant, we note the following portion of the
cross-examination of the witness:-
"It is correct that the name of brother in law of my elder brother
is Ravi Pal and he is posted in Delhi Police. It is correct that
Ravi Pal had a licensed gun. I do not know if the said gun is a
double barrel. It is correct that I have been married to the sister
of Ravi Pal and he is my brother in law also. It is incorrect to
suggest that I, my father and my companions had fired upon
Sunil on the date of incident from the gun of Ravi Pal. It is
further incorrect to suggest that when we were firing upon Sunil,
he ran towards his house in order to escape. It is also incorrect
to suggest that due to that firing many persons in the area
received pellet injury. It is further incorrect to suggest that when
firing upon Sunil, we reached at his house and caused injury to
his sister Nisha.
It is incorrect to suggest that prior to the occurrence I had
outrage the modesty of the sister of accused persons Nisha. It is
correct that earlier dispute had taken place between me and the
accused persons and my elder brother Jatinder had gone to the
house of the accused persons for compromise and matter was
compromised. It is incorrect to suggest that that dispute had
taken place because I had made advances towards Kumari
Nisha."
28. Sanjay PW-22, deposed that on March 27, 1993 he was present near
Quarter No.F-1, Police Colony, Civil Lines, Delhi when a bullet came from
front and after touching the hips of Mahinder Singh the pellets (chare in
Hindi) hit him. The police removed him to the hospital. Initially, the witness
stated Appellant Manoj was firing the bullet but subsequently he changed his
version and stated that he had not seen appellant Manoj firing the bullets but
was informed at the hospital that appellant Manoj was firing the bullets.
29. SI G.D.Pathak PW-23, SI Prakash Chand PW-24, SI D.D. Sharma PW-
30, Ct.Babu Lal PW-31, SI Dharamvir PW-33, Ct.Harsikander Singh PW-39,
Ct.Pradeep Kumar PW-40 and Insp.B.S.Dahiya PW-50, deposed on the lines
of recordings contained in the endorsement Ex.PW-50/A. Additionally, SI
G.D.Pathak PW-23, SI D.D.Sharma PW-30, Ct.Babu Lal PW-31,
Ct.Harsikander Singh PW-39 and Ct.Pradeep Kumar PW-40, deposed that
accused Sunil was exhorting appellant Manoj to shoot everybody at the time
when Manoj was firing shots.
30. Kanta Sharma PW-27, who was one of the fourteen persons who had
sustained gunshot injuries on March 27, 1993 turned hostile and did not
support the case of the prosecution. She deposed that he cannot identify the
person who was firing shots on March 27, 1993.
31. Naresh Kumar PW-43 and his mother Bishamberi Devi PW-44, who
were two of the fourteen persons who had sustained gunshot injuries on
March 27, 1993 turned hostile and did not support the case of the prosecution.
They deposed that they cannot identify the person who was firing shots on
March 27, 1993.
32. In their statements under Section 313 Cr.P.C. the accused persons
pleaded false implication and innocence. They stated that Bhupinder had
attacked their house and firing indiscriminately on March 27, 1993.
Bhupinder had fired at them i.e. accused persons, Nisha and other injured
persons.
33. In defence, accused persons examined three witnesses viz. Nisha DW-
1, Dr.Arun Kakkar DW-2 and R.K. Gauba DW-3.
34. Nisha DW-3, the sister of the accused persons, deposed that on March
27, 1993 she was sitting with her brother Manoj Kumar in a room in their
house when she heard some loud noises upon which she came out of the
room. She saw that her brother Sunil was being chased by Bhupinder and his
associates and shouting for help. Bhupinder was armed with a gun. Thereafter
she and her brother Sunil entered their house at which time Bhupinder fired
from his gun. The shot hit her and she fell unconscious. She does not know
what happened thereafter.
35. We need note the testimonies of remaining two witnesses for the same
are not germane for the purposes of disposal of the present appeal.
36. Vide judgment dated April 23, 1998 the learned Trial Judge convicted
appellant Manoj and acquitted his brother Sunil. On the aspect of conviction
of appellant Manoj, it was held by the learned Trial Judge that:-
(i) Testimony of Bhupinder Singh PW-21, inspires confidence inasmuch
as no material contradictions appeared in his testimony despite his being
subjected to lengthy cross-examination by the defence.
(ii) Testimony of Bhupinder Singh PW-21, has remained uncontroverted
on material aspects.
(iii) Testimony of Bhupinder Singh PW-21, has been fully corroborated by
witnesses; Mahinder Singh PW-1, Ramesh Chand Tyagi PW-2 (father of the
deceased), Subhash Chander PW-6, Onkar Prasad PW-8, Mani Devi PW-17
and Insp.Bhim Singh PW-10; the presence of which witnesses and factum of
injuries found on person of said witnesses have not been controverted by the
accused persons.
(iv) No suggestions were given to Bhupinder Singh PW-21, by the accused
persons to the effect that gun in question was not found in the possession of
appellant Manoj at the time of his apprehension; gun in question was not used
by appellant Manoj for firing and that he had used the gun in question for his
self defence.
(v) Defence sought to be projected by accused persons that Bhupinder had
attacked the accused persons by using gun of his relative Ravi Pal was not put
to Bhupinder Singh PW-21, in his cross-examination.
(vi) Accused persons were holding a grudge against Mahinder Singh PW-1
and Bhupinder Singh PW-21 inasmuch defence itself suggested to Bhupinder
Singh and Mahinder Singh that Bhupinder Singh had outraged the modesty of
sister of accused persons Nisha.
(vii) Plea of accused persons that accused Manoj had used the gun in self-
defence does not inspire confidence in view of the fact that no injury was
found on the person of Bhupinder Singh PW-21, who was the main enemy of
the accused persons and had allegedly attacked them.
(viii) Witnesses; Sanjay PW-22 and Rakesh PW-46 were present at the place
of occurrence at the time of occurrence but no suggestion was given to them
by the accused persons that accused Manoj had used the gun in question in
self-defence.
(ix) Ramesh Chand Tyagi PW-2, the father of the deceased, has
corroborated the testimony of Bhupinder Singh PW-21, in all material
particulars.
(x) It is highly inconceivable that Ramesh Chand Tyagi PW-2, the father of
the deceased, would spare the assailants of his daughter and instead falsely
implicate the accused persons, particularly when no motive has been assigned
to Mahinder Singh and Bhupinder Singh (who as per accused persons had
caused the death of the deceased) to fire at the deceased.
37. On the aspect of acquittal of accused Sunil, it was held by the learned
Trial Judge that it cannot be concluded that accused Sunil shared common
intention with accused Manoj to cause death of the deceased and injuries on
the person of injured persons for the following reasons:-
(i) No overt act has been attributed by Bhupinder Singh PW-21, to
accused Sunil in his statement Ex.PW-21/A.
(ii) There is nothing in the testimonies of Bhupinder Singh PW-1 and
Mahinder Singh PW-1, to infer that accused Sunil shared common intention
with accused Manoj to cause death of the deceased and injuries on the person
of injured persons.
(iii) There is nothing on record to show that accused Sunil called accused
Manoj at the spot and asked him to bring the gun.
(iv) There is nothing on record to show that accused Sunil asked accused
Manoj to fire at any person including the deceased.
(v) There is nothing on record to show that accused Sunil participated in
the occurrence in any manner or facilitated accused Manoj to fire when he i.e.
Manoj was firing indiscriminately.
(vi) Sudesh Kumar PW-14, Satinder Kumar PW-20 and Mani Devi PW-17
(in her examination-in-chief), did not depose that accused Sunil had
exhorted/instigated accused Manoj to fire at anyone.
(vii) Allegations leveled by Ramesh Chand Tyagi PW-2, Subhash Chander
PW-6, Insp.Bhim Singh PW-10 and Onkar Prasad PW-8, that accused Sunil
had asked accused Manoj to fire are vague and do not prove beyond
reasonable doubt that accused Manoj had fired at the instigation of accused
Sunil.
(viii) The words allegedly uttered by accused Sunil that "Fire at everybody
(sakbo goli mardo in Hindi)" are vague and lead nowhere.
(ix) Accused Sunil was not having any enmity with the injured persos to
instigate accused Manoj to fire at them.
(x) There is nothing on record to show that accused Sunil who was
younger to accused Manoj had any control over accused Manoj to restrain
him i.e. Manoj from firing indiscriminately.
(xi) The claim of the police officers that accused Sunil was exhorting
accused Manoj to fire is not creditworthy in view of that fact that it has not
been mentioned in rukka Ex.PW-50/A that accused Sunil was exhorting
accused Manoj to fire.
38. Aggrieved by the impugned judgment, accused Manoj has filed the
above captioned appeal.
39. During hearing of the present appeal, following two arguments were
advanced by the learned counsel for accused Manoj:-
A The testimonies of Mahinder Singh PW-1 and Bhupinder Singh PW-
21, bring out when accused Sunil had taken out a knife from the pocket of his
pant accused Mahinder Singh and Bhupinder Singh had overpowered him and
were taking him to the police station. Accused Sunil was shouting at that
time. It was at this time accused Manoj arrived at the place of occurrence. On
seeing his brother i.e. accused Sunil being in the clutches of Mahinder Singh
and Bhupinder Singh and shouting for help it was reasonable for accused
Manoj to assure that life of his brother is in serious danger. In this view of the
matter, accused Manoj fired a shot from his gun „upwards‟ to scare off
Mahinder Singh and Bhupinder Singh so that they would leave his brother.
Since gun used by accused Manoj was a shrapnel gun the pellets spread out in
different directions and hit the persons standing in the balconies of their
quarters and present near the place of occurrence. It was thus argued by the
learned counsel the evidence on record probablizes that accused Manoj had
fired from his gun in private defence in order to save the life of his brother
Sunil. As a necessary corollary thereof, accused Manoj cannot be held guilty
for the offence of murder punishable under Section 302 IPC. Counsel further
argued that even though the aforesaid defence was not taken by accused
Manoj at the trial it is still open to him to raise said defence in the present
appeal. In support of said submission, reliance is placed upon the decision of
Supreme Court reported as (1974) 3 SCC 639 Thakarda Lalaji Gamaji v.
State of Gujarat.
B The second submission advanced by the learned counsel was that the
evidence on record clearly establishes that accused Manoj had not pre-
meditated or had any intention to fire at any person including the deceased.
On hearing the shouts of his brother accused Manoj came to the place of
occurrence armed with a gun. In the heat of passion accused Manoj fired
indiscriminately in the air and unfortunately one of the pellets hit the
deceased and caused her death. It was argued that in view of circumstances
pointed by him the offence committed by Manoj would be culpable homicide
not amounting to murder punishable under Section 304 IPC and not culpable
homicide amounting to murder punishable under Section 302 IPC. In support
of said submission, reliance was placed by the counsel on the decisions of
Supreme Court reported as IV (2008) SLT 342 Kesar Singh and Anr. vs. State
of Haryana, AIR 1995 SC 2466 State of Punjab vs. Tajender Singh and AIR
1977 SC 664 Ram Swaroop vs. State of Haryana and decision of this Court in
Criminal Appeal No.886/2010 titled „Vijay Lama vs. State‟ decided on
November 16, 2012.
40. In the decision reported as AIR 2001 SC 2902 Kashi Ram & Ors. Vs.
State of M.P., in paragraph 24 it was observed by the Supreme Court that
notwithstanding that at neither three stages: (i) when witnesses of the
prosecution are cross-examined; (ii) when examined under Section 313
Cr.P.C.; and (iii) entitled to lead defence evidence, an accused introduces a
plea, it can still be raised during the course of submissions by relying on the
probabilities and circumstances emerging in the case. In the decision reported
as AIR 1990 SC 1459 Vijayee Singh Vs. State of U.P. the Supreme Court held
that the flimsy, fantastic plea and unreasonable plea taken by the defence is to
be rejected altogether.
41. Counsel appearing for accused Manoj has not disputed firing of shots
from his gun by accused Manoj. He has also not disputed that as many as
fourteen persons including the deceased received gunshot injuries as a result
of shots fired by accused Manoj.
42. The defence sought to be set up by accused Manoj while cross-
examining the prosecution witnesses was that on March 27, 1993 Mahinder
Singh and Bhupinder Singh had surrounded Sunil and thrashed him.
Bhupinder Singh was armed with a double barrel gun and tried to fire at Sunil
upon which he i.e. Sunil ran towards his house. Bhupinder Singh chased
Sunil. While chasing Sunil Bhupinder fired several shots at him which missed
Sunil but hit many residents of Police Colony. Sunil entered his house and
Bhupinder also followed him in his house. Bhupinder fired a shot at Sunil
which hit Nisha, sister of Manoj and Sunil. On seeing his brother Sunil and
sister Nisha being attacked, Manoj who was present in the house picked up
the single barrel gun of his father and fired at Bhupinder and Mahinder Singh
and a bullet/pellet hit Mahinder Singh. (See the cross-examination of
Mahinder Singh PW-1, noted by us in the foregoing paragraphs).
43. In his statement under Section 313 Cr.P.C. accused Manoj tweaked his
defence a little. He stated that on March 27, 1993 Bhupinder Singh had
entered his house and fired shots at him, his brother Sunil and sister Nisha.
Accused Manoj stopped here and stated nothing about self defence.
44. Now, in the present appeal accused Manoj has come up with a
completely new defence that he had fired upwards from his single barrel gun
to scare off Bhupinder and Mahinder Singh as he was fearing for the life of
his brother Sunil who was caught hold by Bhupinder and Mahinder Singh and
shouting for help.
45. Apart from being contradictory with the (first) defence taken by
accused Manoj at the trial, the theory of private defence now sought to be
propounded by accused Manoj completely fails in the light of testimonies of
injured persons/witnesses viz. Ramesh Chand Tyagi PW-2, Subhash Chander
PW-6, Onkar Prasad PW-8, Vinod Kumar Joshi PW-20 and Mani Devi PW-
17 and police officials viz. HC Om Prakash PW-12, SI G.D.Pathak PW-23, SI
Prakash Chand PW-24, SI D.D. Sharma PW-30, Ct.Babu Lal PW-31, SI
Dharamvir PW-33, Ct.Harsikander Singh PW-39, Ct.Pradeep Kumar PW-40
and Insp.B.S.Dahiya PW-50.
46. The injured persons/witnesses viz. Ramesh Chand Tyagi PW-2,
Subhash Chander PW-6, Onkar Prasad PW-8, Vinod Kumar Joshi PW-20 and
Mani Devi PW-17, have clearly deposed that accused Manoj had fired at them
when they had asked him i.e. Manoj who was firing indiscriminately to stop
firing. Meaning thereby, accused Manoj had not fired in air in order to scare
off Bhupinder Singh and Mahinder Singh as claimed by him but had targeted
and fired shots at the persons who were present in the balconies of their
quarters and asked Manoj to stop firing. Further, the police officers viz. HC
Om Prakash PW-12, SI G.D.Pathak PW-23, SI Prakash Chand PW-24, SI
D.D.Sharma PW-30, Ct.Babu Lal PW-31, SI Dharamvir PW-33,
Ct.Harsikander Singh PW-39, Ct.Pradeep Kumar PW-40 and Insp.B.S.Dahiya
PW-50, have deposed that accused Manoj was firing indiscriminately when
they reached the place of occurrence after getting information about Mahinder
Singh getting shot by accused Manoj from Bhupinder Singh. By the time
police arrived at the scene the so-called threat to the life of Sunil was over
inasmuch as Mahinder Singh had already sustained gunshot injury at that time
and Bhupinder Singh had gone to police station to call the police. Thus, where
was the occasion for accused Manoj to fire in air to scare off Mahinder and
Bhupinder Singh.
47. In dealing with second submission advanced by counsel appearing for
accused Manoj, we note clause "Fourthly" of Section 300 IPC and illustration
„d‟ appended to said section.
"S.300. Except in the cases hereinafter excepted, culpable
homicide is murder,
4thly. -- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
ILLUSTATIONS
(d) A, without any excuse fires a loaded cannon into a crowd of
persons and kills one of them. A, is guilty of murder, although
he may not have had a premeditated design to kill any
particular individual."
48. Where the act by which the death is caused is so imminently dangerous
that the accused must be presumed to have known that it would, in all
probability, cause death or such bodily injury as is likely to cause death, then
unless he can meet said presumption the offence committed by the accused
would be culpable homicide amounting to murder in view of clause
"fourthly" of Section 300 IPC. Clause "fourthly" of Section 300 IPC is
applicable where the knowledge of the offender as to probability of death of a
person or persons in general - as distinguished from a particular person or
persons - being caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender must be of the
highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as
aforesaid. Clause "fourthly" has been designed to provide for the class of
cases where the acts resulting in death are calculated to put the life of many
persons in jeopardy without being aimed at any one in particular and are
perpetrated with full consciousness of the probable consequences.
49. In order to determine the offence committed by accused Manoj, let us
reconstruct the scene of incident.
50. On March 27, 1993 at about 08.30 A.M. Bhupinder Singh PW-21 and
Mahinder Singh PW-1, had caught hold of accused Sunil at the place of
occurrence near Quarter No.F-1, Police Colony, Civil Lines, Delhi and taking
him to nearby police station. Accused Sunil was shouting at that time. On
hearing the shouts of his brother Sunil, accused Manoj who was present in his
house situated near the place of occurrence came at the place of occurrence
armed with a single barrel shrapnel gun. (Shrapnel is a projectile that consists
of a case provided with powder charge and large number of lead balls
designed to explode in flight. The gun which uses shrapnel is shrapnel gun).
On seeing this, accused Manoj went completely berserk and started firing
indiscriminately. Four shots were fired by accused Manoj at the place of
occurrence. The shots fired by accused Manoj hit Mahinder Singh PW-1,
Sanjay PW-22 and Babu Lal PW-11 who were present near the place of
occurrence. Mahinder Singh PW-1, the enemy of accused Manoj sustained
gunshot injury and fell on the ground but this did not end the fury of appellant
Manoj. On hearing the sounds of gunshots, people viz. Ramesh Chand Tyagi
PW-2, deceased, Subhash Chand PW-6, Onkar Prasad PW-8, Mani Devi PW-
17, Sudesh Kumar PW-14, Bishamberi Devi PW-44, Vinod Kumar Joshi PW-
20, Kanta Sharma PW-27 and Naresh Kumar PW-43, came in the balcony of
their quarters and asked to stop firing. This fuelled the fury of accused Manoj
who fired four shots at said eleven innocent persons whose only fault was to
ask Manoj to stop the firing. Sunil added fuel to the fury of his brother Manoj
by exhorting him to fire at people. (We note that one of the factors which has
led the Ld. Trial Court to conclude that Sunil did not share common intention
with Manoj to fire at anyone was that he had not exhorted Manoj to fire at
anyone. The Ld. Trial Court has not appreciated the evidence of prosecution
witnesses on the aspect of giving of exhortation by Sunil inasmuch as we find
that as many as four injured witnesses viz. Ramesh Chand Tyagi PW-2,
Subhash Chander PW-6, Onkar Prasad PW-8 and Vinod Kumar Joshi PW-20,
have clearly deposed that Sunil was exhorting Manoj to fire at the time when
Manoj was firing indiscriminately.) Accused Manoj stopped firing only when
the police arrived at the police of occurrence and overpowered him. As many
as fourteen persons sustained gunshot injuries and deceased lost her life due
to indiscriminate firing by accused Manoj.
51. In these circumstances, accused Manoj can be attributed with the
knowledge committed by fourth limb of Section 300 that as a result of the
indiscriminate firing which is an act so imminently dangerous that in all
probability would cause death or such bodily injury as is likely to cause death.
Accused Manoj had no excuse for incurring the risk of causing death or the
injury. The act of accused Manoj is akin to the situation contemplated by
illustration "d" appended to Section 300 IPC. Firing eight shots from a single
barrel gun is akin to throwing a loaded cannon. That the shots were fired in a
residential colony when the people were standing in their balconies and near
the place of occurrence can certainly be said to be a crowd of persons around.
We highlight that the evidence brings out that accused Manoj removed the
empty/fired cartridge and loaded live cartridge in the gun each time he would
fire a shot and continued firing, in spite of being told, by shouts, by injured
persons to refrain from so doing.
52. In the decision reported as AIR 2005 SC 3120 Suresh Chandra vs.
State of U.P. an auspicious occasion of marriage turned out to be a funeral
ceremony, following a quarrel that ensued between the invitees on flimsy
grounds. A quarrel ensued between invitees of groom on one hand and bride
on the other on trivial grounds. The three accused persons who were invitees
of groom were carrying arms started firing indiscriminately as a result of
which two persons died at the spot and three persons got injured. It was held
by the Supreme Court that even if the appellants had fired indiscriminately
without targeting any particular individual, they cannot escape the
punishment for offence of murder.
53. In Criminal Appeal No.5878/2011 „Ex. Ct./GD Rana Pratap Singh vs.
Union of India & Ors‟ decided on September 13, 2011 a Division Bench of
this Court, of which one of us is a member, namely Pradeep Nandrajog J, the
petitioner who was enrolled as Constable with Border Security Force and
fired indiscriminately at the residents of a village in Bangladesh causing death
and several injuries of/to several villagers. The petitioner was held guilty of
having committed the offence of murder punishable under Section 300 IPC.
The act of petitioner of indulging in indiscriminate firing by a rapid fire
assault rifle was held to be akin to the situation contemplated in illustration
„d‟ appended to Section 300 IPC.
54. In Criminal Appeal No.415 of 2000 „State of U.P. vs. Vineet Kumar
Chauhan‟ decided on October 07, 2005 an accused had a quarrel with his
neighbour due to which he indiscriminately fired from his revolver from the
door of his house towards the house of his neighbour. The wife of the
neighbour of the accused sustained gunshot injuries on her vital organs and
died. A Division Bench of Allahabad High Court noted clause fourthly of
Section 300 IPC and illustration „d‟ appended to said Section and held that the
act of accused of firing bullets from the door of his house was so imminently
dangerous that anybody (even a passer-by) could be hit and died and thus
accused is guilty of committing of offence of murder punishable under
Section 302 IPC.
55. The judgments relied upon by the counsel for accused Manoj have no
application in the present case for they do not relate to clause fourthly of
Section 300 IPC and indiscriminate firing by an accused person.
56. In view of above discussion, the present appeal is dismissed.
57. The bail bond and surety bond furnished by the appellant are cancelled.
The appellant shall surrender to suffer the remaining sentence.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 01, 2014
mamta
