Maan Singh Alias Pappy vs State
2015 Latest Caselaw 5790 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on :04.08.2015
                               Judgment delivered on : 11.08.2015.
+      CRL.A. 737/2013

       MAAN SINGH ALIAS PAPPY
                                                        ..... Appellant
                          Through     Mr. Mukesh Sharma, Mr.
                                      Narender Gautam and Mr.
                                      Manisha Tanwar, Advs.

                          Versus

       STATE
                                                    ..... Respondent
                          Through     Mr. Varun Goswami and Ms.
                                      Kusum Dhalla, APPs for the
                                      State.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 02.02.2013 & 06.02.2013 respectively wherein the

appellant stood convicted for an the offence under Section 307/34 of the

IPC as also for the offence under Section 27 of the Arms Act. He had

been sentenced to undergo RI for a period of 10 years and to pay a fine

of Rs.50,000/- and in default of payment of fine to undergo SI for one

year for his conviction under Section 307 of the IPC; out of this total

amount of Rs.50,000/- Rs.30,000/- had to be paid to the victim. For his

conviction under Section 27 of the Arms Act, he had been sentenced to

undergo RI for a period of three years and to pay a fine of Rs.5,000/-

and in default of payment of fine to undergo SI for six month. The

sentences were to run concurrently. Benefit of Section 428 of the Cr.PC

had been granted to the appellant.

2 The version of the prosecution was unfolded in the statement

made by the complainant Bheem Singh. He was examined as PW-4. His

version was that on 28.07.2010 at about 10:45 pm when he was coming

home after getting his mobile phone recharged, he found that a crowd

had gathered outside his house. His younger brother Ghanshyam (PW-5)

was also present. On inquiry, he was told that the accused Maan Singh

@ Pappy had come along with his two friends and had threatended

Ghanshyam that since he had deposed against him in a previous case, he

would be killed. Thereafter PW-4 & PW-5, while returning to their

home, were again accosted by the appellant and his two friends. The

appellant fired a gun shot upon them as a result of which PW-4 received

an injury on his left shoulder. Efforts to apprehend the accused and his

accomplices were fruitless. The appellant had also fired 3-4 gun shot in

the area. He managed to escape.

3 PCR call was made. The injured was removed to the DDU

hospital. His injuries were opined to be grievous.

4 In the course of investigation, the appellant was arrested. The

appellant had in fact been arrested in FIR No. 114/2010 registered at PS

Crime Branch and in the course of that investigation, he had made a

disclosure statement disclosing his involvement in the present case. He

was formally arrested in this case.

5 The crime team was summoned. From the spot, three empty

cartridges and a metallic piece had been lifted. One metallic piece had

also been retrieved from the left shoulder of PW-4. The exhibits had

been sent to the CFSL i.e. both to the Biology Division and Ballistic

Division. Ballistic division however did not support the version of the

prosecution and it was noted that the empty cartridges could not be

matched with the country-made pistol alleged to have been recovered

from the accused. The Biology Division had noted that there was human

blood on the shirt of PW-4. The MLC of PW-4 had been proved as

Ex.PW-2/A.

6 In the statement of the accused recorded under Section 313 of the

Cr.PC, he had pleaded innocence. His submission is that he has been

falsely implicated in the present case because of the enmity which was

brewing between him and PW-4 & PW-5, both of whom were brothers.

7 On the basis of the aforenoted evidence collected by the

prosecution, the appellant had been convicted and sentenced as

aforenoted.

8 Learned counsel for the appellant at the outset has pointed out that

there are inherent discrepancies in the version of the prosecution and the

prosecution has not been able to prove its case to the hilt. PW-4 & PW-5

are admittedly interested witnesses, both of whom are brothers and

admittedly there was an earlier litigation pending inter-se the parties and

PW-5 (Ghanshyam) had deposed against the appellant in another case in

which he had been acquitted which has led to the false implication of the

accused in the present case. PW-4 & PW-5 have given inconsistent

versions. Their testimony is wholly suspicious. It cannot be relied upon.

Benefit of doubt must accrue in favour of the appellant. To support this

submission, learned counsel for the appellant has placed reliance upon a

judgment of this Court in (2009) 5 SCR 848 Mahtab Singh and Anr Vs.

State of U.P. Submission being that the testimony of an interested

witness has to be scrutinized very carefully and in this case, both PW-4

& PW-5 had implicated the appellant for the success of this false case.

There is also no explanation as to why public persons who were present

at the spot have not been examined which again throws doubt on the

version of the prosecution and to support this submission, he has placed

reliance upon AIR 1999 SC 3883 Sukhar Vs. State of Uttar Pradesh.

Submission being that even as per the prosecution, the incident had

occurred at 10:45 PM. The PCR call was made at 12:20 AM. There is no

explanation for this delay. This is a concocted version. Attention has

also been drawn to the MLC Ex.PW-2/A. It is pointed out that no blood

had been noted by the doctor. The Biology Division has not fully

supported the version of the prosecution. The trial Judge has noted that

the recovery of weapon of offence does not stand established and that is

why the appellant stood acquitted for the offence under Section 25 of the

Arms Act.

9 Arguments have been refuted. Learned Public Prosecutor has

pointed out that the impugned judgment calls for no interference. The

trial Judge has carefully scrutinized the evidence and testimonies of PW-

4 & PW-5 and has given a reasoned judgment.

10 Arguments have been heard. Record has been perused.

11 The star witnesses of the prosecution are PW-4 & PW-5.

12 PW-4 is the complainant. He has on oath deposed that on

28.07.2010 at about 10:45 PM when he was returning home after getting

his mobile phone recharged, he saw a crowd gathered there. His brother

(PW-5) was already present there. On inquiry, he learnt from PW-5 that

the appellant had extended threat to kill PW-5 as PW-5 had deposed

against the appellant in another matter. After 10-15 minutes when PW-4

& PW-5 were returning home, the appellant again accosted them; he

was on a motor bike with two other accomplices. The appellant fired at

him as a result of which PW-4 received a bullet injury on his left

shoulder. His brother tried to apprehend the accused but the accused

managed to flee away. A phone call was made at 100 number. After

about 10-15 minutes, a PCR van reached the spot and took him to the

DDU Hospital.

13 In his cross-examination, he has stated that he did not know the

result of the earlier case pending between him and the appellant. He

admitted that at the place of incident, there are residential houses and

street on both sides. He reiterated that he has gone to Balaji Mobile

Centre and there are other shops on that road as well. It took him 5-10

minutes to reach Balaji Mobile Centre from his house. He admitted that

he was not present when the accused had first extended the threat to his

brother. They had left the spot at about 10:45 pm.

14 PW-5 was the brother of the victim. He has also deposed that

on28.07.2010 at about 10:20 pm when he along with his brother were

coming back to his house and had hardly crossed 50 steps from Balaji

Mobile Centre, the appellant along with his two accomplices extended

threat to PW-4 as PW-4 had deposed against him in another criminal

matter. Thereafter the accused managed to flee away. After about 10-15

minutes, appellant along with the same boys again came on the

motorcycle. Appellant fired a gun shot. PW-4 received a gun injury on

his left shoulder. PW-4 made a call at 100 number. Police came there.

Crime team was also summoned.

15 In his cross-examination, he admitted that the appellant had

threatened him that he would kill him as he had deposed against him. He

could not state as to whether passersbys had heard the threat or not. The

appellant has fired from his left hand. 20-25 persons had gathered on the

spot at the time of firing. His brother had got blood stains on his clothes

and blood fell on the ground also. PCR was informed by his brother.

PW-5 admitted that there was a criminal case pending inter-se the

parties in which PW-5 had deposed against Maan Singh but he did not

know the fate of that case. He denied the suggestion that the accused has

been falsely implicated in the present case.

16 Testimony of PW-4 & PW-5 has to be tested on the anvil of

cogency and coherency keeping in view the fact that both the brothers

i.e. PW-4 & PW-5 are witnesses who would be interested in the success

of the case.

17 PW-4 had deposed that the time of incident was 10:45 pm. He had

deposed that when he reached the spot, his brother was already standing

there and his brother (PW-5) informed him that he received threat at the

hands of the accused. This is not the version of PW-5. PW-5 had stated

that both the brothers were going back towards the house when the

appellant came on his motorcycle and extended a threat to his brother

(PW-4) meaning thereby that both the brothers were present together at

the time when the threat was extended by the appellant to PW-4. These

versions of PW-4 & PW-5 are in conflict. According to PW-4, threat

had been extended to Ghanshyam; PW-4 was not present at that time.

According to PW-5 both the brothers were present when the threat had

been extended. Threat, as per PW-5, had been extended to PW-4 and not

to him as is the version of PW-5.

18 Further version of PW-4 is that he had reached the spot at 10:45

pm where his brother informed him that the accused had extended threat

to him. 10-15 minutes later the accused came to the spot and fired a

gunshot upon PW-4. He reported the matter to the PCR. Time of

reporting the incident would thus approximately would have been 11:00

pm. The report of the PCR (Ex.PW-5/A) however notes that the call to

the PCR was made by PW-4 at 12:20 pm. There was a gap of 1:20

minutes.

19 Learned defence counsel has submitted that this is also the

version of PW-4. He has also approximated the time of the incident at

about 11:00 pm when his brother had made a call to the PCR.

20 Learned defence counsel has highlighted this argument to support

a stand that the unexplainable delay of 1 hour 20 minutes in reporting

the matter to the PCR is unjustifiable; it was well for the reason that a

story has been concocted upon in this intervening period by both the

brothers and this was for the reason that the brothers had an earlier

enmity with the accused.

21 Let us now examine this angle. Both PW-4 & PW-5 have

admitted that there was a case pending inter-se the parties and as per the

prosecution, PW-5 had deposed against the appellant which was the

cause of the enmity brewing between the parties. Although on record,

PW-5 stated that he is not aware as to whether in that case, the appellant

had been acquitted or not, yet the learned Public Prosecutor under

instructions had conceded that the appellant was acquitted in that matter.

22 There is a conflict in this version of PW-4 & PW-5 as well.

Whereas PW-5 in his examination in chief has deposed that PW-4 has

deposed against the appellant in a criminal case; PW-4 had stated that it

was Ghanshyam (PW-5) who had deposed against the appellant in that

criminal matter.

23 PW-5 had stated that his brother had received injury on his left

shoulder. Blood was also noted on his injured brother. The MLC on the

victim (PW-4) was conducted at 12:50 pm. This was at the DDU

Hospital. At the cost of repetition, the incident was over by 11:00 PM; a

gunshot injury was alleged to have been received by PW-4; there was

blood oozing out from his shoulder; he was removed to the DDU

Hospital almost two hours later; time in the MLC is 12:50 PM. This

Court has been informed that the DDU Hospital is at a distance of 3-4

kilometers from the spot.

24 Be that as it may, the details in the MLC are also relevant. The

patient was found conscious and oriented. His vitals were stable. No

bony injury was noted. This MLC was prepared in the Casualty

Department and evidence of Dr.Narender Kumar examined as PW-6 is

relevant on this count. PW-6 had deposed that he had examined the

patient PW-4 who had an alleged history of a gunshot injury; blood was

oozing from his wound which was 9-10 mm on the left shoulder. He

was referred to the Emergency Surgery and Ortho Department. The

doctor from the Ortho Department was examined as PW-2. He was Dr.

Lalit Kishore. On examination of the patient, he found that there was an

entry wound on the left shoulder joint; movement of the shoulder was

however full and free; there was no distal neuro vascular deficit present.

The patient was advised X-ray. The X-ray of the patient was conducted

and a bullet like object was removed from his shoulder. The report of

PW-2 (Ex.PW-2/A) dated 23.09.2010 reflects this.

25 A further perusal of Ex.PW-2/A shows that on the date of the

incident itself, besides the fact that injured had come to the hospital

almost 2 hours after he had informed the PCR (PCR as per PW-4 having

being informed at 11:00 PM but Ex.PW-15/A which is the PCR report

noting the time of first report is 12:20 AM i.e. after 1 hour 20 minutes);

the injured was examined in the hospital at 12:50 AM. At the cost of

repetition, his vitals were normal. His left shoulder i.e. the injured

shoulder had a free and full movement. PW-6 had noted that wound

suffered was approximately 9-10 mm. No immediate medical attention

was required by the patient. The MLC further notes from the surgery

side, the injury was noted to be simple.

26 The scientific report which is the report of the CFSL from the

Ballistic Division (Ex.P-1) shows that three cartridge cases and one

metal piece had been sent to the CFSL and when examined with the

country-made pistol (alleged to have been recovered from the appellant),

the individual characteristics on the cartridges cases and the test fired

cartridges did not match; the report suggested that the three empty

cartridges had not been fired through this pistol. This pistol as noted

supra has been recovered from the accused when he was arrested in FIR

No. 114/2010.

27 The trial Judge in his judgment had recorded that the appellant

stood acquitted in FIR No.114/2010. The Court had noted that there was

no evidence on record to show that this country-made pistol belonged to

the accused. The finding being retuned that there was no evidence to

show that a pistol was recovered in FIR No.114/2010; the weapon of

offence in this case thus stood not proved. The accused was acquitted

for the offence under Section 25 of the Arms Act in FIR No. 114/2010.

The second reason for the rejection of this Ballistic report was that the

empty cartridges on scrutiny did not match the test fired cartridges and

hence it was concluded that these cartridges were not fired through this

pistol. No opinion could be given on EBR-1 i.e. the metallic piece which

had been referred for examination and which had recovered from the

spot. This Court also notes that the seizure memo (Ex.PW-14/H dated

02.08.2010) disclosed that a metallic piece had been recovered from the

left shoulder of the accused and had been seized but this piece of metal

had surprisingly not been sent by the Investigating Officer for

examination to the Ballistic Division. This had been sent to the Biology

Division of the CFSL. The report of the Biology Division did not note

any blood on this metal piece. The Ballistic Division also did not

support the version of the prosecution.

28 Whether a witness can be termed as an interested witness or not

depends upon the conclusion arrived at by a process of evaluation

based on the broad probabilities of the case. Merely because both the

witnesses of the prosecution (as is so in the instant case) are brothers

and the victim also being one of the injured and there being history of

admitted enmity between the appellant and the victim/eyewitness, would

not by itself be sufficient to discredit the testimonies of PW-4 & PW-5.

29 However applying the test of coherency to the versions of PW-4

and PW-5, this Court is persuaded to hold that their testimonies do

suffer from infirmities on not small but material particulars. These have

been discussed supra. At the cost of repetition, PW-4 & PW-5 were not

clear as to who was the person who had deposed against the appellant in

the criminal case pending inter-se the victim and the appellant. Whether

it was PW-4 or PW-5 was not clear. Both are contradictory on this

score. Another material contradiction which this Court notes is that PW-

4 had stated that Ghanshyam had already received threat at the hands of

the appellant when he reached there; the appellant had come 10-15

minutes later (around 11:00 PM) and again threatened both the brothers

and at that point of time, he had fired at PW-4. Version of PW-5 is

different. He had stated that both the brothers were coming together

when the appellant along with his two accomplices came to the spot and

threatened PW-4. As per PW-5, threat was given to PW-4 and not to

PW-5 which is the version of PW-4. Timing given by both the brothers

was around 11:00 pm; the matter was thereafter reported to the PCR.

The first call received in the PCR (Ex.PW-15/B) shows that it was

received at 12:20 AM. There is an unexplainable delay of 1- ½ hours.

This by itself may not be the reason enough to dislodge the version of

the prosecution but other dents which have been successfully created by

the accused in the version of the prosecution when cumulatively

assessed lead this Court to draw this conclusion.

30 The victim as per the prosecution had received a gun-shot injury

on his left shoulder. The DDU hospital was 3-4 kilometers from the

spot. The incident having being reported to the police (as per

prosecution) at 11:00 PM but the victim having being examined in the

Casualty Department of DDU Hospital at 12:50 AM i.e. almost two

hours later is again unexplained and this is especially when blood (as per

PW-5) was oozing out from the wound of PW-4. The Casualty

Department and the Emergency Department of the DDU Hospital did

not think it necessary to give immediate aid to the victim; it was not

required; the wound suffered by PW-4 as per the doctor (PW-6) was 9-

10 mm. The Surgery Department had noted the injury to be simple. The

victim was referred to the X-ray department. The X-ray department had

reported a small piece of metal in the left shoulder of the victim which

report was given by the department on 23.09.2010 i.e. two months after

the date of the incident. The medical evidence in fact shows that no

medical aid was required to be given to the victim as no actual injury

appeared to have been suffered by him.

31 The Ballistic Division of CFSL had exonerated the accused. The

expert evidence adduced by them had opined that the empty cartridges

did not match the individual characteristics of test fired cartridges which

had been fired from the pistol alleged to have been recovered from the

accused. Moreover, in that FIR No. 114/2010 offence under Section 25

of the Arms Act, the appellant stood acquitted. The trial Judge had noted

all these facts in the correct perspective. The recovery of the weapon of

offence did not stand proved. There was also no scientific evidence in

favour of the prosecution.

32 What therefore remains with the prosecution is the version of

PW-4 of PW-5. This Court had already noted that there were inherent

discrepancies in the versions of PW-4 and PW-5.

33 In this context the observations of the Apex Court in Mehtab

Singh (supra) are relevant. They read herein as under:-

"In these circumstances, the evidence of PW-1 that he witnessed the incident further becomes doubtful as admittedly he was sitting under thatached roof about 40-45 paces away from the place of incident. It is true that the evidence of PW-1 being brother of the deceased could not have been justifiably thrown out as an interested witness but in the backdrop of totality of his evidence, in our considered view, his testimony could not have been safely relied upon and the trial court cannot be said to have committed any error in this regard. The vital omissions in his testimony also shake the trustworthiness of this witness."

34 This Court again notes that the first reporting of the matter to the

police was at 12:20 AM when the incident had culminated at 11:00 PM

and the version of PW-4 & PW-5 being consistent that the PCR was

informed at that time itself by PW-4 but the record of the PCR showing

otherwise throws a doubt on the veracity of the version of the

prosecution. This creates a doubt on the truthfulness of the version of

the prosecution and cannot rule out false implication of the accused

especially in the backdrop that the accused and the victim were sharing

admitted enmity against one another.

35 Learned counsel for the appellant has also drawn attention of this

Court to the Crime Team Report (Ex.PW-7/A). In this report, it has been

recorded that three empty cartridges had been lifted from the spot. There

is no mention of any metallic piece having being lifted from the spot.

However the site plan (Ex.PW-5/A) shows that apart from three empty

cartridges, one piece of metal was also found at the spot. There is no

mention of this one metal piece in the report Ex.PW-7/A. The seizure

memo Ex.PW-8/B dated 29.07.2010 shows that apart from three empty

cartridges, one metal piece had been seized. Why this did not find

mention in the Crime Team Report again throws a doubt on the veracity

of the version of the prosecution.

36 All these facts when taken cumulatively do dent the version of the

prosecution. Rule of criminal jurisprudence is clear. The prosecution

must prove its case to the hilt which it has failed to do so in the instant

case. Benefit of doubt must accrue in favour of the appellant. Giving

him benefit of doubt, he is acquitted. He be released forthwith, if not

required in any other case.

37     Appeal is allowed.



                                      INDERMEET KAUR, J
AUGUST 11, 2015
A