Mahabir Singh vs State
2016 Latest Caselaw 2507 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.A. 498/2007
%                                          Judgment reserved on 29th March, 2016.
                                      Judgment pronounced on 31st March, 2016.

        MAHABIR SINGH                                      ..... Appellant
                     Through :              Mr. Harsh Prabhakar, Advocate
                             versus
        STATE                                                ..... Respondent

                             Through :     Ms. Aasha Tiwari, APP for the State.
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J

1. Pursuant to the order passed by the Hon‟ble Supreme Court of India, the present appeal is taken up for hearing. Crl.Rev.605/2007 has also been dismissed today by a separate order. Vide order dated 13th August, 2015 in Criminal Appeal No. 559 of 2010 the Hon‟ble Supreme Court passed the following order :

". . .we are of the opinion that it would be more appropriate if the judgement and order passed by the High court in Criminal Appeal No. 498/2007 is set aside and it is directed that the said appeal be heard along with the criminal revision petition that is pending in the High court. We order accordingly.

We request Hon‟ble the Chief Justice of High court to list the criminal appeal along with criminal revision petition before a Division Bench for hearing since the charge sheet was under Section 302 of the Indian Penal code.

We make it clear that we have not expressed any opinion one way or the other with regard to the decision passed by the High court in Criminal Appeal No.498/2007.

The criminal appeal is disposed of."

2. Present Criminal Appeal 498/2007 was filed before this court by the

appellant under Section 374(2) r/w 482 of the Code of Criminal Procedure against the impugned judgment dated 18.07.2007 and order on sentence dated 31.7.2007 passed by Additional Sessions Judge Patiala House Courts, New Delhi, whereby the appellant was held guilty and sentenced to undergo Imprisonment for life with fine of Rs.1,000/- for the offence punishable under Section 302 of the Indian Penal Code and in default of payment of fine Simple Imprisonment for a period of one month; for the offence punishable under Section 25(1B) of the Arms Act,1959, the appellant was sentenced to undergo Rigorous Imprisonment for one year with fine of Rs.1000/- and in default of payment of fine Simple Imprisonment for a period of one month; for the offence punishable under Section 27 of the Arms Acts,1959, the appellant was sentenced to undergo Rigorous Imprisonment for three years with fine of Rs.1000/- and in default of payment of fine Simple Imprisonment for one month. Three other accused namely Kartar Singh, Azad Singh and Surender were acquitted.

3. The process of law was set in motion when at 7:51PM on 20.8.2003 a wireless message was received at PS Sarita Vihar, contents whereof were noted vide DDNo.12-A, Ex.PW9/DA, that Ved Pal @ Jitu Pehlwan son of Shyam Lal had been shot in front of gate No.3, L Pocket, Madanpur Khadar . The message was sent by HC Ram Niwas PW-22 posted at the police control room who had received the message from telephone number 26946587.

4. On receipt of information, ASI Mahender Kumar PW-15 along with Ct Bhagirath PW-10 proceeded to the place of the offence. The SHO of PS Sarita Vihar Inspector G.L.Mehta PW-26 was patrolling in the area. He also received the wireless message and on reaching the spot came to know that injured Ved Pal had already been removed to Apollo Hospital.

5. Inspector G.L. Mehta PW-26 on reaching the hospital found that the doctor

had declared Ved Pal as „brought dead‟ .Inspector G.L.Mehta met Kashmir Singh PW-5 at the spot , who handed over a statement in writing, Ex.PW- 5/A, informing that at 7:30 PM, Ved Pal, Kripal, Rishipal and he were riding two motorcycles . He and Ved Pal were on motorcycle no. DL3SX- 0375 being driven by Ved Pal. Kripal and Rishipal were on another motorcycle and were ahead of them. When they reached the house of Suraj Bhan, Kartar, Azad, Mahavir and Surender fired at them from the roof of Suraj‟s house in standing position. Ved was hit by bullets and fell down .They managed to escape. Kripal informed the police by dialling 100 no. from the STD shop of Pawan Kumar.

6. Based on this statement FIR was registered. At the spot inspector G.L.

Mehta prepared rough site plan Ex.PW-20/C and lifted earth control , blood stained soil and shoe as recorded in the memo Ex. PW-5/B. The motorcycle DL 3 SX 0375 at the spot was seized vide memo Ex.PW -5/C.

7. Statement of Kripal Singh PW-8, the person who had given the telephonic information and also Rishipal Singh PW-14 were recorded u/s 161 CrPC on the same day.

8. Since Ved Pal was declared brought dead at the hospital, the body was sent for the post-mortem. Dr. Jayant PW-3 conducted the post-mortem on 21-8- 2003 and noted 3 bullet entry wounds; one on the frontal region of the scalp; the second on the right upper anterior chest wall and the 3rd at the back. All entry wounds had tattooing. 3 bullets, one from the skull, the second from the chest and the third from the abdominal cavity were recovered and handed over to the investigating officer on 21.8.2003, soon thereafter the post-mortem was conducted. The cause of death was opined to be a fire arm injury which was sufficient in ordinary course of nature to cause death. All the injuries were found to be ante mortem in nature.

9. After the post-mortem was conducted on 21.8.2003, supplementary

statement of the complainant as also Rishipal and Kripal Singh were recorded as per which they gave a modified version. In their earlier statements they had informed that the accused had fired from the roof top. But, guided by the post-mortem report which evidenced that the deceased was shot thrice at point blank range; evidenced by tattooing of the skin where the bullet entered, each of the three stated that after initial firing from the roof top, the accused came down and fired shots at them from a point blank range.

10. All the (four) accused persons were put to trial.

11. At the trial, the prosecution examined twenty eight witnesses. Three of these witnesses, PW-5, PW-8, PW-14 were tendered as eye witness to the occurrence.

12. In the statement under Section 313 Cr.P.C the accused Mahavir (appellant herein) denied all the accusations but did not lead any evidence in his defence. Whereas, the other three co- accused examined Jagdish DW1,Dr. Anjali Goel DW2, Mohan Chandar DW3 , Ms. Jyoti DW4 in their defence.

14. The learned Trial Judge has acquitted the 3 co-accused holding that the testimony of the 3 eye witnesses did not inspire confidence. The trial court observed that in their first statement made to the police they had stated that the firing took place from the roof top when the deceased and others were driving on motorcycles and were on the main road, and only in their supplementary statements recorded on 26.8.2003, had given a changed versions of initial firing being from the roof top followed by the accused coming down and firing at contact range. After the post-mortem of the deceased was conducted on 21.8.2003 it became apparent that the shots were fired at the contact range and not from a distance. Thus, since the dead body spoke for itself, finding material improvements made by the 3 alleged eye witnesses; improvements being guided by the post-mortem report, the

learned Trial Judge, held that the eye witness account was not creditworthy. Moreover these three co- accused with the aid of defence witnesses were able to prove alibi beyond reasonable doubt and thus were held to be innocent.

15. With respect to the appellant, the learned Trial Judge has held that his disclosure statement leading to the recovery of the weapon of offence and the same being linked to the bullets recovered from the body of the deceased was sufficient evidence to convict the appellant. Furthermore, the examination of the prosecution witnesses led to a clear conclusion that the appellant i.e Mahavir Singh had committed the murder of Vedu Pehlwan.

16. While arguing the appeal, the learned counsel for the appellant contended that appellant has been falsely implicated in this case, the judgement passed by the learned trial court is without proper appreciation of facts and law and is based on surmises and conjectures, thus it is liable to be set aside.

17. The learned counsel for the appellant contended that since the statement of PW 5 who is one of the eye witness and complainant in the present case is unworthy of credence, thus, the appellant cannot be convicted for the offence of having murdered the deceased based upon the testimony of PW

5. It is contended that PW 5 had deposed that all the accused were firing from the roof top of Suraj Bhan but after the investigation of the IO and the post mortem report of the deceased which very specifically revealed that firing was not from the roof top and the weapon would have been used from a very close range a contradictory statement was made. Thus, the material difference between the version of occurrence given by the PW 5 and the above mentioned reports leads to an irresistible conclusion that he is not the eye witness of the incident and does not know in what manner the incident actually took place. He additionally contends that all the circumstances have to be seen in the light of the fact that there was a long

standing bitter enmity between the appellant and the complainant.

18. It is further urged by the counsel for the appellant that the appellant has wrongly been convicted by placing reliance on the statement given by PW17 Ajit Kumar who initially deposed that he does not know the witness PW8 Kirpal and PW14 Rishipal but later on he admitted that he is the relative of the complainant. Statement of such related witness should not be taken into consideration.

19. Counsel further urged that in view of the disclosure statement of the appellant and the recovery of a country made pistol at his instance, the appellant can at best be convicted for the offence punishable under Section 25 and Section 27 of the Arms Act.

20. On the other hand counsel for the State submits that the prosecution has been able to prove its case beyond any shadow of doubt. The disclosure statement Ex. PW 23/J by which the appellant disclosed about the cartridges and the ammunitions with which the offence was committed, pursuant to the disclosure a country made pistol Ex.P3 and 3used cartridges Ex. P4 were recovered by the police in the presence of a public witness namely Ajit Singh PW17. As per the ballistic expert‟s report the bullets recovered from the body of the deceased were opined to have been fired from the pistol Ex. P3 was ample evidence to convict the appellant.

21. We have heard the learned counsel for the parties and considered their rival submissions and the perused the impugned judgement as well as the material available on record.

22. The main thrust of the arguments of learned counsel for the appellant is that while the trial court has acquitted three co-accused while taking into consideration that the testimony of the three eye-witnesses did not inspire confidence, the present appellant has been convicted. The trial court has highlighted the fact that in the first statement made to the Police, the eye-

witnesses had stated that the firing had taken place from the roof top when the deceased and others were driving a motocycle on the main road and its only in their supplementary statement recorded on 26.8.2003 that a completely changed version of initial firing being from the rooftop was changed that thereafter the accused came down and fired at close range.

23. Learned counsel for the appellant has also submitted that testimony of PW17 Ajit Singh cannot be relied on as he initially stated that he in no way is related to the other witnesses but later on admitted the fact of his being related to PW5 and PW8 and statement of such related witness cannot be relied upon. We are not impressed by this argument as merely being a relative would not make the statement of such a witness equivalent to that of an interested witness.

24. After the post-mortem was conducted on 21.8.2003, supplementary statement of the complainant as also Rishipal and Kripal Singh were recorded as per which they gave a change version. In their earlier statements they had informed that the accused had fired from the roof top. But, guided by the post-mortem report which evidenced that the deceased was shot thrice at point blank range; evidenced by tattooing of the skin where the bullet entered, each of the three stated that after initial firing from the roof top, the accused came down and fired shots at them from a point blank range.

25. The accused were apprehended. The appellant was arrested on 23.8.2003 and on interrogation by Inspector G.L.Mehta made a statement that the country made pistol Ex.P-3 with which he had fired 3 shots could be got recovered by him as also the 3 empty cartridges. He stated that after committing the crime he had crossed river Yamuna by swimming across and the country made pistol fell in the water of the river. Pursuant to the said disclosure statement he took the investigating officer to the spot at the

river bank wherefrom he claimed to have swum across. No weapon could be recovered. He was further interrogated on 28.8.2003 and his supplementary statement Ex.PW-23/J was recorded. Pursuant to this disclosure statement by the appellant, investigating officer recovered one country made pistol Ex.P3 and three empty cartridges Ex.P4 which were seized vide memo Ex. PW 17/B. This recovery was effected by the investigating officer in the presence of a public witness namely Ajit Singh PW-17. It is alleged that these articles were wrapped in a polythene of blue colour and concealed in the bushes on the bank of river near Shamshan Ghat , Madanpur Khadar.

26. The pistol Ex.P-3 and the bullets which were recovered from the body of the deceased were sent to a ballistic expert for opinion. In the ballistic expert report Ex.PW-26/I it was opined that the bullets recovered from the body of deceased were fired from the fire arm Ex. P3, which were recovered at the instance of the appellant.

27. As per opinion Ex.PW-26/I it was opined as under:-

" RESULT OF EXAMINATION

(1) The revolver .32" caliber marked exhibit „F1‟ is designed to fire a standard .32" cartridge. It is in working order in its present condition. Test-fire conducted successfully.

(2) The country made pistol .325" bore marked exhibit „F2‟ is designed to fire a standard 8mm/.315" cartridge. It is in working order in its present condition. Test-fire conducted successfully.

(3) The .32" cartridges marked exhibits „A1 & A2‟ are live ones and can be fired through .32" caliber firearm.

(4) The 8mm/.315" cartridge cases marked exhibits „EC1 to EC3‟ are fired empty cartridges.

(5) The bullets marked exhibits „EB1 & EB2‟ correspond to the

bullet of 8mm/.315" cartridge.

(6) No opinion can be given regarding exhibit „EBR3‟ due to insufficient data.

(7) The .32" cartridge marked exhibit „A1‟ above was test fired through the revolved .32" caliber marked exhibit „F1‟ above.

(8) The 8mm/.315" cartridge from laboratory stock was test fired through the country made pistol .315" bore marked exhibit „F2‟, test fired cartridge case was marked as „TC1‟ and the recovered test fired bullet marked as „TB1‟.

(9) The individual characteristic of firing pin marks and breech face marks present on evidence fired cartridge cases marked exhibits „EC1‟ to „EC3‟ and on test fired cartridge case marked as „TC1‟ were examined & compared under the Comparison Microscope Model Leica DMC and were found identical. Hence the exhibits „EC1 to EC3‟ have been fired through the country made pistol .315" bore marked exhibit „F2‟ above.

(10) The individual characteristic of striations present on evidence fired bullets „EB1 & EB2‟ and on the test fired bullet marked „TB1‟ were examined & compared under the Comparison Microscope Model Leica DMC and were found identical. Hence the bullets marked exhibits „EB1 & EB2‟ have been discharged through the country made pistol .315" bore marked exhibit „F2‟ above.

(11) The exhibits „F1 & F2‟/ „A1 & A2‟, „EC1 to EC3‟, „EB1‟ and „EB2‟ are firearm ammunition as defined in the Arms Act, 1959."

28. The trial court has also taken into account that this change of version became apparent after the post-mortem was conducted and it became apparent that the shorts were fired at a close range and not from a distance.

29. As far as the present appeal is concerned, the learned trial court has taken into account the disclosure statement, which led to the recovery of the weapon of offence and the same was linked to the bullets recovered from

the body of the deceased. Thus and rightly so was sufficient evidence to convict the appellant.

30. The submission of learned counsel for the appellant that since on his disclosure statement the weapon of offence was recovered and he could only have been convicted under Sections 25 and 27 of the Arms Act is without any force. It would be useful to refer to two decisions of this court in the case of Zahid v. State, Crl.A.No.974/2016, para 48 of which reads as under:

"48. A firearm which gets connected to a bullet recovered from the body of the deceased is extremely incriminating qua the person from whom the firearm is recovered unless he is able to satisfactorily explain his not being connected with the firearm when the crime took place. A firearm used as a weapon of offence establishes conclusively the presence of the firearm at the scene of the crime and since a firearm cannot move by itself, the owner or the possessor thereof must explain the circumstance under which the firearm reached the place of the occurrence and in the absence of any such explanation it would be permissible for the Court to presume that the owner or the possessor of the firearm was the offender."

31. Another decision rendered in the case of Nehru Jain v. State NCT of Delhi, reported at 2005 (1) JCC 261, more particularly in paras 14 and 15, it has been held as under:

"14. There is nothing in cross examination which could possible shatter or dislodge the opinion expressed by the witness either on the ground of deficient expertise of the witness or any other improbability whatsoever. The fact that the weapon used for firing the crime bullet was licensed in the name of the appellant and was recovered from his house with twenty live cartridges three of which were used for test firing by the expert is also firmly established by the evidence on record.

15. It was, in the above circumstances, difficult for the appellant to deny the used of the weapon in the commission of the crime. Confronted with this evidence, Mr.Tulsi, fairly conceded that in the

absence of any explanation as to how the weapon came to be used for the commission of the crime, the other circumstances proved in the case including the presence of the appellant in the marriage procession at the time of the occurrence was sufficient to connect the appellant with the weapon as also the injury resulting in the death of the deceased, Vikram, the retraction of the statements made by PW-1 Sanjay Sharma and PW-2 Jameel notwithstanding. We have, in that view of the matter, no hesitation in rejecting the first limb of Mr. Tulsi‟s argument and holding that the trial court had correctly come to the conclusion that the deceased had died because of a bullet injury sustained by him in the head and that the said bullet had been fired by the appellant from the Smith & Wason revolver licensed in his name and subsequently seized from his house."

32. PW 27/A Gopeshwar Haldhar and PW28 Hira Lal the fisher men at Yamuna river testified that on 20.08.2003 at about 8:00pm saved the accused / appellant from drowning who was trying to swim across the river Yamuna with a potly ( a small bag ) in his hand. They further testified that they dropped him on the UP side of the bank of river Yamuna in their boat and after a few days when police brought the accused/appellant they identified him, which also points to the guilt of the appellant.

33. For the reasons aforestated, we find no merits in the appeal and the same is accordingly dismissed.

G.S. SISTANI, J

SANGITA DHINGRA SEHGAL, J st March 31 , 2016