Delhi High Court
Mukesh vs State on 24 January, 2017
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IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 102/2013
Judgment reserved on: 20th January, 2017
Judgment pronounced on: 24th January, 2017
MUKESH ...Appellant
Through: Mr. K. Singhal, Mr. Siddharth Mittal,
Ms. Vani & Mr. Prasanna, Advocates.
Versus
STATE ...Respondent
Through: Ms. Aashaa Tiwari, APP for the State.
+ CRL.A. 401/2013
RAVINDER .....Appellant
Through: Mr. K. Singhal, Mr. Siddharth Mittal,
Ms. Vani & Mr. Prasanna Advocates.
Versus
STATE NCT OF DELHI ...Respondent
Through: Ms. Aashaa Tiwari, APP for the State.
+ CRL.A. 562/2013
VASU SHARMA @ BUNTY .....Appellant
Through: Mr. Javed Alvi, Advocate.
Versus
STATE NCT OF DELHI ...Respondent
Through: Ms. Aashaa Tiwari, APP for the State.
Crl. A. Nos.102, 401,
562 & 563/2013 Page 1 of 28
+ CRL.A. 563/2013
PARVESH @ RIMPY .....Appellant
Through: Mr. K. Singhal, Mr. Siddharth Mittal,
Ms. Vani & Mr. Prasanna, Advocates.
Versus
STATE NCT OF DELHI ...Respondent
Through: Ms. Aashaa 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. Since the present appeals arise out of a common judgment, the same
have been heard together and are being disposed of by a common
judgment.
2. Present appeals arise out of a judgment dated 17.12.2012 and order on
sentence dated 17.12.2012 passed by the Additional Sessions Judge in
Sessions Case No. 60/10, by virtue of which all the appellants have
been convicted under Section 302 read with Section 34 of the Indian
Penal Code and sentenced to undergo imprisonment for life and to pay
a fine of Rs. 20,000/- and in default of the payment of fine to further
undergo rigorous imprisonment for one month. The appellant Vasu
Sharma @ Bunty was further sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs. 20,000/- for the
offence punishable under Section 25 and 27 of the Arms Act and in
default of payment of fine to further undergo rigorous imprisonment
for one month. Both the sentences in respect of the appellant Vasu
Crl. A. Nos.102, 401,
Sharma @ Bunty were ordered to run concurrently.
3. The brief facts of the case are as under:
"The formal indictment against the accused persons is
that, on 19.07.2010, at about 2.00 pm in Gali no.2, near
House No. 1716, J-Block, Bhalaswa Village, Jahangir
Puri, Delhi, within the jurisdiction of P.S. Jahangir Puri,
they all in furtherance of their common intention caused
death of Bhim Singh by firing on his head. It has further
been alleged that on the said date, time and place,
accused, Vasu Sharma @ Bunty, was found in possession
of a country made pistol, without any permit or licence. It
has further been alleged that, on the said, date, time and
place, accused, Vasu Sharma @ Bunty, used the country
made pistol, in commission of murder, which was in his
possession. "
4. After completion of the investigation, charge sheet for the offence
punishable under Section 302 read with 34 of the Indian Penal Code
was framed against all the four appellants. Charge for the offence
punishable under Section 25 and 27 of the Arms Act was also framed
against the appellant Vasu Sharma @ Bunty. All the appellants
entered the plea of not guilty and claimed to be tried. The prosecution
relied upon 36 witnesses in all, besides the exhibits produced during
the trial. The statements under Section 313 of the Code of Criminal
Procedure were recorded wherein all the appellants denied all the
incriminating circumstances appearing in evidence against them and
claimed to be falsely implicated. Six defence witnesses were examined
by the appellants in their defence.
Common Arguments raised by the counsel for the appellants
5. Mr. K. Singhal, learned counsel appearing on behalf of the appellants
Mukesh, Ravinder and Parvesh @ Rimpy submits that the impugned
Crl. A. Nos.102, 401,
judgment and order on sentence is based on conjectures and surmises
and the trial Court has erred in reaching a conclusion of guilt against
the appellants and not appreciated the evidence brought on record in
the correct perspective. Counsel further submits that the case of the
prosecution is based on the evidence of interested witnesses and there
are material inconsistencies and improvements in their testimonies
which render the entire case of the prosecution unreliable.
6. Mr. K. Singhal vehemently argued that there is a serious contradiction
with respect to the place of occurence. As per the case of the
prosecution, the alleged place of inc ident was House No. J-1716,
however it emerged from the PCR form Ex.PW14/A that the alleged
place of incident was House No. J-1703 and not House No. J-1716.
The said Ex.PW14/A was recorded by PW14 W/Ct. Sulochana, who
categorically deposed that the call was received at 14:20 hrs from
PW7 Harpal Singh Yadav and the place of occurrence was recorded as
J-Block, House No. 1703. It is contended by the counsel for the
appellants that copy of log book record dated 19.07.2010, Ex.DW5/A,
further proved the place of incident as J Block, House No.1703. This
submission was also corroborated by the testimonies of PW7 Harpal
Singh Yadav (first informant), PW16 HC Raj Singh (PCR official),
whose statement was recorded after one month from the incident i.e.
on 19.08.2016, PW27 HC Mahender Singh (PCR official), PW28
Gulab Hussain (Police Official) and DW5 Ct. Surender Kumar.
7. It was further contended by the counsel for the appellants that the
investigation in the present case was faulty as the Investigating Officer
did not seize the blood stained clothes of the prosecution witnesses
Crl. A. Nos.102, 401,
who witnessed the incident and removed the deceased to the hospital.
In the absence thereof, the presence of eyewitnesses at the spot and
their version creates a serious doubt in the case of the prosecution. To
substantiate his argument, learned counsel for the appellants has relied
upon State of Rajasthan Vs. Teja Singh reported in 2001 (3) SCC
147, wherein the Hon'ble Supreme Court in para 5 and 6 made the
following observation:
"5. We have examined the evidence of the three eye-
witnesses as also that of Iqbal Singh (PW-10), the
Investigating Officer. We have also perused the evidence
of Ram Pratap Sarpanch (DW-1) and we do not find any
reason to differ with the finding of the High Court which
sitting as the first court of appeal on facts, had every
right to re-appreciate the evidence. In our opinion, the
High Court, in that process, has not committed any error.
As a matter of fact, the explanation put forth by the
learned counsel in regard to the delay in the FIR
reaching the court is not tenable because assuming that
there were some court holidays that cannot be a ground
for the delay in the FIR reaching the Magistrate, because
requirement of law is that the FIR should reach the
concerned Magistrate without any undue delay. We are of
the opinion that the explanation given by the prosecution
regarding the delay in the FIR reaching the Magistrate is
neither convincing nor acceptable.
6. In regard to the next argument of the appellant's
counsel that the High Court was wrong in assuming that
other villagers were sitting with PWs 6, 7 and 9,
assuming that it is an error even then there can be no
doubt as could be seen from the prosecution case that
other villagers whether sitting with PWs 6, 7 & 9 or not
did rush to the scene of occurrence, therefore, it is clear
that apart from the said eye-witnesses produced by the
prosecution many other villagers would have atleast seen
Crl. A. Nos.102, 401,
the last part of the occurrence including the escape of the
accused and the accused not being strangers to those
villagers could have easily identified by them. By not
examining those independent witnesses, the prosecution
has failed to produce the available independent
corroborative evidence to support the evidence of
interested witnesses, namely, PWs 6, 7 & 9 because of
which the High Court was justified in drawing adverse
inference against the prosecution. This lack of
corroboration of the evidence of PWs 6, 7 & 9 coupled
with the fact that PW-6 is admittedly a very old person
having problems with his eyes makes it difficult to believe
that he was really in a position to identify the accused
persons. The evidence of the eye-witness PW-9 also
becomes suspect because of the fact that though he was
available in the village, his evidence was recorded only
after 5 days of the crime for which the explanation given
by the Investigating Officer is not at all satisfactory. The
presence of the third eye-witness i.e. PW-7, Amrao, is
also doubtful because of the fact that even though she
stated that she had lifted the body of the deceased which
was bleeding and her clothes had become blood stained,
the Investigating Officer failed to recover the said
clothes giving room for a genuine complaint that her
presence is also doubtful. These factors coupled with the
evidence of DW-1 Ram Pratap who in his evidence has
stated that when he was told about the incident these eye-
witnesses did not mention the name of the accused
persons to him, also makes the prosecution case doubtful.
Therefore, in our opinion, the High Court was justified in
not placing any reliance on the evidence of these 3 eye-
witnesses without any independent corroboration."
8. The counsel for the appellants has fervently urged that there was
unexplained delay in sending the copy of FIR to the Metropolitan
Magistrate as required under Section 157 of the Code of Criminal
Procedure. The counsel clarified that there is an admitted delay of
Crl. A. Nos.102, 401,
more than 17-18 hours in sending the copy to the concerned
Metropolitan Magistrate, as per DD No. 24A, the copy of FIR was
sent at about 4.35 PM on 19.07.2010 however, as per the endorsement
made by PW6, the then Metropolitan Magistrate, he received it on
20.07.2010 at 10.00 AM. It was contended by the counsel for the
appellants that there is nothing on record to show that the incident
took place at the said spot and delay in filing the FIR defeats the
testimonies of the eye witnesses.
9. Mr. Singhal argued that despite the place of incident being crowded,
no independent witness was examined by the Investigating Officer
which clearly pointed towards the faulty investigation. It was
contended by the counsel for the appellants that all the witnesses were
closely related to the deceased and as such no reliance could be placed
on their testimonies.
10. To fortify his argument on this aspect, learned counsel for the
appellants has relied upon Jandel Singh vs. State of Madhya Pradesh
reported in 2003 (9) SCC 110, wherein the Hon'ble Supreme Court in
para 8,12 and 13 made the following observation:
"8. Ram Gopal, PW1 went to the police station at Dabra
and got the FIR recorded. Hukumsingh Yadav, SHO,
Debra Police Station after recording the first information
report came to the place of occurrence in the night itself.
There is nothing on record to indicate that a copy of FIR
was sent to the jurisdictional Magistrate as required
under Section 157 of the Cr.P.C. Prosecution case is that
the Investigating Officer could not carry on with the
investigation at night due to darkness. Early in the
morning the next day Panchnama of the dead body was
prepared and dead body was sent for post-mortem. Dr.
Crl. A. Nos.102, 401,
Dharampal katariya, PW3 conducted the post mortem at
9.00 O'clock the same day. In his opinion, Prakash died
due to damage to the vital organ i.e. brain. That the
injuries caused on the head of the deceased were
sufficient to cause death in the ordinary course of nature.
12. Investigating Officer reached the spot at about
10.00 p.m. He did not carry the investigation further at
night due to darkness. He did not make any effort to
search for the accused though their houses were a few
steps away from the place of occurrence. It is
unbelievable that an Investigating Officer who is going
for the investigation of a murder case at night would
not carry a torch with him or try to procure some other
source of light to carry on with the investigation. There
were houses all around and could have easily arranged
for some light. He had gone there in a jeep and if no
other source of light was available he could have at
least made search for the accused persons with the help
of the headlights of the jeep. He did not send a copy of
the first information report of the jurisdictional
Magistrate. He kept silent as to what time the first
information report was dispatched or received by the
jurisdictional Magistrate. Defence tried to elicit this
information by summoning Dak Book from the police
station and examined Constable Satish Kumar Mishra
as DW1 but the said witness did not bring the Dak Book
and stated that the same was not traceable. In the
requisition memo sent by the SHO to the hospital and in
the post mortem, date and time of receipt of dead body
has not been mentioned. Cumulatively all these facts put
a doubt on the prosecution version and it leaves an
impression that the prosecution has not come out with the
truth. In all probability the commission of crime came to
notice in the morning and thereafter the investigation
started. If that be so, the presence of the eye witnesses
becomes very much doubtful.
Crl. A. Nos.102, 401,
13. High Court has pointed out in its judgment that no
specific injury which could cause death in the ordinary
course of nature had been attributed to any of the
appellants. The main accused with whom the deceased
had litigation have already been acquitted in a
subsequent trial. In the absence of any independent
witness or any other corroborative evidence to support
the version put forth by the two eye witnesses, which we
find unsafe to rely upon, it would be unsafe to hold the
appellants guilty of charges leveled against them."
11. Mr. Singhal has drawn attention of this court to the FSL/viscera report
dated 18.02.2011 of the deceased which shows the presence of ethyl
alcohol in the blood.
Arguments raised by learned Counsel for the appellant Vasu Sharma
@ Bunty
12. Mr. Javed Ali, learned counsel appearing on behalf of the appellant
Vasu Sharma @ Bunty submitted that so far as recovery of country
made pistol Ex.F-1 from the appellant Vasu Sharma @ Bunty is
concerned, the prosecution's claim of recovering the country made
pistol at the instance of the appellant Vasu Sharma is difficult to
accept and not to be given any credence because the recovery thereof
was rendered doubtful in view of the absence of any independent
witness to the recovery thereof but also on account of a circumstance
that the recovery of the country made pistol was effected from the
house of the maternal uncle, that being so, if the recovery was effected
from the place which is accessible to the residents of the house, it
cannot be relied as an incriminating piece of evidence against the
appellant.
Crl. A. Nos.102, 401,
13. To substantiate his argument, learned counsel for the appellant Vasu
Sharma has relied upon Prem Singh Vs. State of Haryana reported in
(2013) 14 SCC 88, wherein the Hon'ble Supreme Court in para 14
held as under:
"14..... the doubt and suspicion with regard to the
bonafides of the recovery of the fire arms; the failure of
the prosecution to establish the linkage between the
weapons recovered and the bullets extracted from the
body of the deceased are facts and conclusions that can
be reasonably reached on the basis of the evidence and
materials on record. If the aforesaid conclusions are
possible to be reached and we are inclined to so hold, the
same cannot be characterized as unreasonable or
perverse so as to justify the interference made by the
High Court."
14. The counsel appearing for the appellant Vasu Sharma pointed out that
there was no immediate motive for commission of such a serious
offence in the facts and circumstances of the case and it shall not be
proper to accept the motive alleged on behalf of the prosecution that as
the appellant Vasu Sharma had a scuffle on 18.07.2010 with the
servant of the deceased i.e. PW8 Rakesh and he gave beatings to him
and when the deceased went before him and complained, the appellant
threatened him to teach a lesson as he was supporting his servant.
15. It was also contended by the counsel for the appellant that from
the report of the Ballistic Expert i.e. Ex. PW24/A, it could not be
established that the deformed bullet recovered from the dead body
which had hit the deceased was fired from the country made pistol
recovered at the instance of the appellant.
16. The counsel further relied upon the view taken by this Court in Kishan
Crl. A. Nos.102, 401,
Pal Vs. State reported in 2004 (2) JCC 1149, Shabbir Vs. State
reported in 2007 (98) DRJ 137, Abdul Sattar & Anr. Vs. State
reported in 2009 (4) JCC 3179, Niwas Vs State reported in 2010 (1)
ILR (Del) 342, Jaffar @ Raju Vs. State reported in 2013 (2) JCC
1175 and Kalicharan Vs. State reported in 2015 (2) JCC 1304.
Arguments raised by learned Counsel for the State
17. Ms. Aashaa Tiwari, Additional Public Prosecutor on the other hand
defending the conviction and sentence recorded against the appellants
by the trial court sought to maintain that the account of incident as
narrated by the two eye witnesses coupled with the appellants being
apprehended soon after commission of the crime and recovery of the
weapon of offence clearly proved beyond doubt the complicity of the
appellants. Ms. Tiwari submits that the inconsistencies in the
statements of the eye witnesses and the anomalies pointed out by the
learned counsel for the appellants with respect to the place of
occurrence are not good enough to dislodge the impugned conviction
and sentence. The counsel further submits that there are no major
contradictions and improvements in the deposition of the witnesses
warranting acquittal of the appellants and such improvements cannot
be treated as an attempt to falsely implicate the appellants.
18. Counsel for the State submits that merely because a witness is related,
his evidence cannot also be eschewed. The mere fact that the material
witnesses are related to the deceased is no ground to discard their
testimony inasmuch as they have no motive to falsely implicate the
appellants and to let the real culprits go scot free. It is the duty of the
Court to analyse evidence of such witnesses cautiously
Crl. A. Nos.102, 401,
and scrutinize the same with other corroborative evidence. It is further
contended by the counsel for the State that there are
minor contradictions in the testimonies which are not material in
nature so as to rule out its evidentiary value completely. The counsel
for the State further submits that the appellants had a motive to do
away with the deceased inasmuch as the appellants wanted to teach
the deceased a lesson for taking favour of his servant PW8 Rakesh.
19. We heard the learned counsel for both the parties and considered their
rival submissions and perused the impugned judgment as well as the
material available on record.
20. As is evincible, the entire case rests on the testimonies of the
witnesses who are related to the deceased. Undoubtedly, it is true that
relationship is not a factor to affect credibility of a witness. It is more
often that a relation would not conceal the actual culprit and make
allegations against an innocent person. Foundation has to be laid if a
plea of false implication is made. In such cases, the Court has to adopt
a careful approach and analyse evidence to find out whether it is
cogent and credible.
21. Before we deal with the rival submissions of counsel for the parties,
we deem it appropriate to analyse the testimonies of some of the
material witnesses in detail. The case of the prosecution rests on the
testimonies of PW20 Dharambeer and PW21 Manoj Yadav, who are
cousins of the deceased.
22. PW20 Dharambeer, one of the eye witness, in his examination-in-
chief testified as under:
"On 18.07.2010, at about 11.00 PM, Bhim Singh told me
Crl. A. Nos.102, 401,
that at about 9.00 PM, his servant Rakesh had a scuffle
(Jhagda) with Bunty @ Vasu Sharma, today present in
the Court (correctly identified) and Bunty had given
beatings to Rakesh. Bhim Singh further told me that when
after closing his shop, he went to the shop of accused
Bunty @ Vasu Sharma to convince him that he should not
have beaten his employee Rakesh. On this Bunty said,
"Tujhe Apne Naukar Ka Himayati Bankar Nahin Aana
Chahiye Thaa, Main Tujhko Iskaa Sabak Sikhaoonga".
Next day, i.e., on 19.07.2010, at about 2.00 PM, I
alongwith my younger brother Manoj and cousin Bhim
Singh were going to our house via J-Block and Bhim
Singh was about fifteen steps ahead of us. When we
reached in front of house no. J-1716, we noticed, all the
four accused namely Bunty @ Vasu Sharma, Ravinder,
Mukesh and Rumpy, present in the Court (correctly
identified), coming from opposite side. After seeing Bhim
Singh, accused Ravinder asked accused Mukesh and
Rumpy that, "Pakad Lo Aaj Saale Ko, Aaj Iska Kaam
Tamam Kar Dete Hain". Immediately, thereafter accused
Mukesh and Rumpy caught hold of Bhim Singh and
accused Vasu Sharma took out a Katta and fired a bullet
on the left side of the head of Bhim Singh. Before we
could proceed further, Bunty had already shot at the
Bhim and thereafter pointed the Katta on us. In order to
save ourselves, I alongwith Manoj ran in the streets of J-
Block and raised alarm, "Bachao, Bachao", and people
gathered there and thereafter, I and Manoj again reached
at the spot. By that time, Anup also arrived there and
Bhim was lying on the ground in injured condition,
bleeding profusely and by that time, accused persons had
already fled away. We hired an auto and I, Manoj and
Anup removed Bhim Singh to BJRM Hospital. Doctor
declared Bhim Singh dead. Police met us at the hospital
and recorded my statement/complaint, same is Ex.
PW20/A, signed by me at point A."
Crl. A. Nos.102, 401,
23. PW20 Dharambeer in his cross-examination stated as under:
"We ran upto about 500 yards from the spot and also
raised alarm. I do not know, if the house numbers are in
ascending order or desecnding order from that side. We
returned to the spot within 2/3/4 minutes and public also
gathered there as we raised alarm. My clothes were also
raised with blood. I had not changed my clothes on the
way to BJRM. IO had not taken my blood stained clothes.
Police did not seize the wearing clothes of Manoj and
Anoop. Vol. The entire clothes of Manoj were stained
with blood. I was having mobile number 9811044517 and
9212444517 at the time of incident. I did not call accused
Ravinder from my mobile phone on 19.07.2010.
xxx xxx xxx
I own a maruti car 800 bearing no. DL 8 CH 2472. My
car was at home on 19.07.2010. Mukesh and Ravinder
were not having any arm. Neither I nor Manoj tried to
apprehend Ravinder or Mukesh as Vasu Sharma pointed
the katta towards us. We neither noted down the number
of the TSR nor the name of the driver. We even did not
give the description of the driver of the TSR to the police.
It is correct that I did not inform the PCR or any other
person about the incident from my mobile. Vol. I was
perplexed after the incident. It is correct that Bhim Singh
was not removed to hospital in the car.
xxx xxx xxx
It is correct that on the main road, there are shops on
both the sides. It was not weakly off for the shops on that
day, but I do not know, if all the shops were opened."
24. PW21 Manoj Yadav, another eye witness to the incident deposed on
similar lines as PW20 Dharambeer. The cross-examination of PW21
reads as under:
Crl. A. Nos.102, 401,
"....My clothes were strained with blood, when I along
with Dharambir and Anoop removed Bhim to BJRM
Hospital. I did not hand over my blood stained clothes to
the police as the IO did not ask me to hand over my
clothes.
xxx xxxx xxxx
Dharambir was having a car maruti 800 at the time of
incident. Bhim or his family members were not owning
any car and Bhim is having a two-wheeler scooter. I was
having mobile number 9212780497 at the time of
incident. I did not make any call in the PS or in the Police
Control Room from my mobile phone. I do not know the
number of the TSR or the name of the driver."
25. After reading the testimonies of the eyewitnesses as mentioned above,
we are of the view that there is ample room to doubt whether PW20
and PW21 had actually witnessed the occurrence. Both the aforesaid
two witnesses had not bothered to make a call to concerned police
station or Police Control Room despite having mobile phone with
them. Also, PW20 and PW21 did not inform the family members of
the deceased. The aforesaid facts casts a serious doubt with regard to
the presence of PW20 and PW21 at the scene of occurrence
26. PW23 Anoop Singh, brother of the deceased Bhim Singh testified in
his examination-in-chief that he heard sound of a gun shot in the street
and when he came outside his house, he saw crowd in the street and
found his brother Bhim Singh lying on the ground in a pool of blood.
PW23 Anoop Singh in his cross examination stated as under:
"Ques. You told the doctor that when I reached the spot, I
found my brother lying in a pool of blood and you also
told the doctor that you do not know how he sustained the
Crl. A. Nos.102, 401,
gun shot?
Ans. I told this fact to the doctor. Vol. But on the way to
the hospital, Dharambir and Manoj told me that Bunty
fired on Bhim Singh.
It is wrong to suggest that Manoj and Dharambir did not
accompany me to the hospital or that they did not tell me
anything as they did not accompany me. Police met me in
the hospital, but I cannot say, if those police officers were
from the PCR. Those police officers asked me as to how it
had happened and I told them that I do not know as I was
not on the spot.
xxx xxx xxx
There were 150 to 200 persons in the street, when I
reached. Some persons known to me were also present in
the street. I did not tell the name of any person to the IO,
who were present in the crowd, when I reached there."
27. The lack of any credibility of the three main witnesses relied upon by
the prosecution during the trial casts a serious doubt with respect to
the case of prosecution. The testimony of PW23 depends upon the
version told by PW20 and PW21 and did not witness the actual
incident. The presence of the third witness i.e. PW23, Anoop Singh
Yadav, is highly doubtful because of the fact that even though he
stated that he along with PW20 and PW21 had removed the deceased
which was bleeding and their clothes had become blood stained, the
Investigating Officer failed to recover the said clothes giving room for
a genuine complaint that their presence is also doubtful. Therefore,
this lack of corroboration of the evidence of PWs 20 and 21 coupled
with the fact that apart from the above said witnesses produced by the
prosecution many other people from the crowd would have atleast
seen the last part of the occurrence including the escape of the
Crl. A. Nos.102, 401,
appellants and the appellants not being strangers to those people could
have been easily identified by them. By not examining those
independent witnesses, the prosecution has failed to produce the
available independent corroborative evidence to support the evidence
of interested witnesses. Moreover, the driver of TSR was neither
examined by the prosecution nor blood was lifted from the TSR hired
by the eyewitnesses for removing the deceased to the hospital. The
Crime team report, Ex.PW19/A, conspicuously do not make any
mention about the name of appellants which creates a doubt with
regard to the presence of the appellants.
28. As far as the submission with respect to the delay in sending the copy
of FIR to the Metropolitan Magistrate is concerned, we do not find
force in this argument and are of the considered view that the
special report was sent to the Magistrate in accordance to Section 157
of the Code of Criminal Procedure within reasonable time.
29. So far as the submission with respect to the contradiction in the place
of occurrence is concerned, it would be necessary to discuss the
relevant testimonies of PCR officials who reached the spot at the first
instance.
30. PW16 HC Raj Singh in his examination-in-chief testified as under:
"On 19.07.2010, my duty was on Commander-36, PCR
Van, from 8.00 AM to 8.00 PM. On that date, at about
2.29 PM, I received call from control room, that at J-
Block Jahangir Pur, at House No.1703, incident of firing
had been taken place, injured has been sent to hospital. I
reached the spot within four/five minutes. About 100-150
public persons were already present there. I was told by
the public persons present there that Bhim Singh had
Crl. A. Nos.102, 401,
been shot at by his neighbourer Bunty and Bhim Singh
had already been removed to BJRM Hospital. On the
spot, SHO of PS Mahindra Park and PS Jahangir Puri
were present. Control room again directed me to went to
the spot. There I alongwith PCR van reached BJRM
Hospital."
31. PW27 HC Mahender Singh in his examination-in-chief testified as
under:
"On 19.07.2010, I was posted at North West Zone, PCR,
as HC. On that day, my duty was on Commander-34 PCR
van as In charge from 8.00 AM to 8.00 PM. On that day,
on receiving call at about 2.58 PM, from control room
regarding firing at J Block, Jahangir Puri, at house
no.1703, I along with staff and PCR van reached the spot
within five minutes of receiving the call. There, I came to
know that injured had already been shifted to the hospital
and the persons who had collected there told me that
earlier a scuffle (Jhagda) had taken place. SHO Jahangir
Puri, SHO Mahendra Park and ACP Jahangir Puri along
with staff has also reached the spot. About 100 persons
had collected there near the house of Bhim. I passed on
this information to the control room at about 3.34 PM."
32. PW28 DHG Gulab Hussain in his examination-in-chief deposed as
under:
"On 19.07.2010, I was posted as DHG in PS Mahendra
Park. On that day, I was on duty from 9.00 AM to 5.00
PM. On that day, between 2.00 to 2.30 PM, on receiving
DD No. 15A regarding "Jahangir Puri H. No. 1703, Ek
Ladke Ko Goli Mari Hai, Jisko Hospital Le Gaye Hai", I
along with PSI Kaptan reachd at J Block i.e the spot at
about 3.00 to 3.30 PM. A crowd was there, as the police
staff of PS Jahangir Puri was also there and the area was
of PS Jahangir Puri, as such I alongwith PSI Kaptan
came back to PS Mahendra Park "
Crl. A. Nos.102, 401,
33. After reading the above mentioned testimonies, it has emerged that the
place of occurrence where the alleged incident took place was House
No. J-1703 rather than House No. J-1716 and was wrongly relied upon
by the prosecution.
34. So far as the recovery of alleged weapon of offence i.e. the country
made pistol is concerned, the testimonies of PW31 HC Rajender Singh
and PW33 Insp. Subhash Chand assume importance. Recovery of
firearm pursuant to the disclosure statement of a person in police
custody if linked with the crime, is evidence of a highly incriminating
nature for the reason that the disclosure statement of the said person
and the recovery of the firearm at his instance requires an inference to
be drawn against the maker of the statement of being responsible for
concealing the said weapon and unless he explains as to how he got
knowledge of the place where the weapon of offence was recovered.
The Court would be fully justified in attributing use of the weapon to
him. We clarify that this process of logical reasoning is premised on
the fact that by independent evidence the weapon in question is linked
to the offence. It is also true that the confessional statement that the
same was the weapon of offence and was used by the maker of the
statement is inadmissible in evidence being hit by Section 24 to
Section 26 of the Evidence Act.
35. PW31 HC Rajender Singh, who was a police witness to the recovery
of country made pistol in his examination-in-chief testified as under:
"On 01.08.2010, I again joined the investigation of the
present case. On that night, at about 1.00 AM, I
alongwith IO and accused Vasu Sharma in custody left
Crl. A. Nos.102, 401,
PS Jahangir Puri and reached PS Bawana at about 2.00
AM, from there SI Sumit of PS Bawana also joined the
investigation and thereafter accused Vasu Sharma led us
to the house of his maternal uncle namely Ishwar @
Leelu s/o. Sat Narain, at village Sultan Pur Dabas, at
about 2.30 AM. Accused Vasu Sharma entered the said
house of his maternal uncle and from one single
bed/Deewan, which was lying in the corner of inner room
of the house, he took out one country made pistol/Katta,
which was found wrapped in a newspaper and produced
the same before the IO."
36. PW33 Inspector Subhash Chand in his examination-in-chief deposed
as under:
"On the next day i.e. 31.07.2010, accused Vasu Sharma
was interrogated in the midnight and his disclosure
statement was recorded vide Ex. PW31/D, bearing my
signature at point B. in his disclosure statement, he
disclosed that he can get recovered the country made
pistol from the house of his maternal uncle namely
Ishwar, resided at Village Sultanpur Dabas (Objected to
by Ld. Defence Counsel). In pursuance of his disclosure
statement, in the intervening night of 31.07.2010-
01.08.2010, at about 1.00 AM, we left the PS and reached
PS Bawana. We lodged DD entry in respect of our arrival
there at PS Bawana and then local police SI Sumit also
joined in the investigation. Then we proceeded to Village
Sultanpur Dabas to the house of Ishwar Singh, maternal
uncle of Vasu Sharma. Accused Vasu Sharma led us to an
inner room at ground floor of that house and opened a
wooden box (Diwan) and lifted a country made pistol
wrapped in a newspaper and produced before me. I
prepared sketch of the country made pistol vide memo Ex.
PW31/E, attested at me point B."
37. In the instant case, we note that the appellant Vasu Sharma @ Bunty
made three disclosure on three different dates i.e. on 27.07.2010,
Crl. A. Nos.102, 401,
30.07.2010 and 31.07.2010. Firstly, the appellant Vasu Sharma made
disclosure to PW32 ASI Ishwar Dayal that he can get recovered the
country made pistol from Panipat, secondly, the appellant made
disclosure before PW33 Insp. Subhash Chand, Investigating Officer,
that the country made pistol is at Panipat. Finally, the appellant Vasu
Sharma stated that he can get recovered the country made pistol from
the house of his maternal uncle namely Ishwar at Sultanpuri. Pursuant
thereto, the weapon of offence was recovered. We may notice that the
three disclosure statements being spread over five days are required to
be viewed with suspicion qua the voluntariness thereof. Under these
circumstances, we hold that the disclosure statements Ex.PW32/A,
Ex.PW31/C and Ex.PW31/D do not inspire confidence and being not
explained as to why they were recorded in piecemeal, the same have
to be viewed with suspicion. Since the clouds of suspicion have not
been removed, in that, nothing has been shown to us by the
prosecution wherefrom we can independently gather that the same
inspire confidence, we hold that the recovery of the country made
pistol if any would be of no consequence and evidence relatable
thereto would be tainted evidence. We have also found that no person
of the house was joined at the time of recovery of country made pistol.
Moreover, the bullet recovered from the dead body did not match with
the country made pistol recovered at the instance of the appellant
Vasu Sharma.
38. As far as the medical evidence is concerned, PW12 Dr. K. Goyal
conducted the post mortem of the deceased on 19.07.2010, his
detailed report is Ex. PW12/A and deposed in his testimony as under:
Crl. A. Nos.102, 401,
"On external examination, there was one lacerated
punctured wound with inverted margins of size 3 X 1.5
CM, just 1.5 CM above and 1 CM behind the left ear over
left temporal region. Surrounding hairs showed burning
and singeing with blackening around the wound. On
exploration, there was 3 X 1 CM hole in left temporal
bone underneath the injury with chipping at internal plate
of the bone with bruising. Blackening also seen at
margins of hole. Track showed cherry red discolouration.
Also, there was radiating fissure fracture line from the
hole towards left occipital bone about 8 CM long. The
dura was found torn at left temporal area. The injury
track continued through left temporal lobe, both parietal
masses and exists through right temporal lobe, torn the
dura, made a hole in right temporal bone and a bullet
was recovered in same area at exit hole of right temporal
bone. Scalp tissues of right temporal area was not
pierced. Exit hole in right temporal bone was about 4
CM above the right ear. Subarachnoid hemorrhage was
seen over both temporals. Blood clots seen over base at
middle fossa around the pons. Further, there was fissure
fracture line transfers over base of skull middle cranial
fossa connecting both holes of temporal.
Opinion:
All injuries were antemortem in nature caused by fire
arm, which was rifled. Range of fire arm was within blast
effect range. Cause of death was cranio cerebral injuries,
as a result of fire arm injury. Fire arm injury was
sufficient to cause death in ordinary course of nature.
Time since death was less than four hours."
39. Perusal of the post mortem report reveals that the cause of death was
cranio cerebral injuries, as a result of fire arm injury. Fire arm injury
was sufficient to cause death in the ordinary course of nature. It is also
proved vide Ex.PW36/A, FSL/viscera report dated 18.02.2011 the
Crl. A. Nos.102, 401,
presence of ethyl alcohol in the blood of the deceased.
40. Yet, another circumstance running counter to the prosecution version
is the Scientific evidence. PW24 Sh. Punit Puri, Senior Scientific
Officer (Ballistic), FSL Rohini, gave a report Ex. PW24/A with
respect to the deformed Bullet Ex. EB-1 recovered from the body of
the deceased, cartridge case Ex. EC-1 recovered from the spot and a
country made pistol Ex. F-1 recovered pursuant to the disclosure
statement of the appellant Vasu Sharma @ Bunty. It may be noted
here that PW24 opined that the cartridge case Ex. EC-1 was a fired
empty cartridge and had been fired through the country made pistol
Ex. F-1 as the individual characteristics of firing pin marks present on
evidence cartridge case Ex. EC-1 and on test fired cartridge cases
marked as TC-1 and TC-2 were found identical, when examined under
the comparison microscope. The caliber of the country made pistol Ex.
F-1 was of 8mm/.315 caliber. To quote from his report Ex. PW24/A
he opined as under:
"(1) The country made pistol .315" bore marked exhibit „F1‟ is
designed to fire a standard 8 mm/.315" cartridge. It is in
working order in its present condition. Test fire conducted
successfully.
(2) The 8mm/.315" cartridge case marked exhibit „EC1‟ is a
fired empty cartridge.
(3) The deformed bullet marked exhibit „EB1‟ correspond to the
bullet of 8mm/.315" cartridge.
(4) Two 8mm/.315" cartridges from the laboratory stock were
test through the country made pistol .315" bore marked exhibit
„F1‟ above, the test fired cartridge cases were marked as „TC1‟,
„TC2‟ and the two recovered test fired bullets were marked as
„TB1‟ and „TB2‟ respectively.
Crl. A. Nos.102, 401,
(5) The individual characteristics of firing pin marks present on
evidence fired cartridge case marked exhibit „EC1‟ and on test
fired cartridge cases marked as „TC1‟ and „TC2‟ were
examined and compared under the Comparison Microscope
Model Leica DMC and were found identical. Hence the
evidence fired cartridge case marked exhibit „EC1‟ has been
fired through the country made pistol .315" bore marked
exhibit „F1‟ above.
(6) The individual characteristics of striations present on
evidence deformed bullet marked exhibit 'EB1' are
insufficient for comparison and opinion whether it has been
discharged through the country made pistol .315" bore
marked exhibit 'F1' above or not.
(7) The exhibits „F1‟/ „EC1‟ & „EB1‟ are firearm/ammunition
as defined in the Arms Act. 1959."
41. In a serious charge, as that of murder, where the life and liberty of an
accused is at stake, technical and doctrinal approach to problems has
to be eschewed and the matter has to be approached with prudence,
keeping in view that a fact is treated to be proved, as defined in the
Evidence Act, when after considering the matters before it, the Court
either believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exists. Expert evidence is admissible
under Section 45 of the Evidence Act and is treated as relevant
evidence. But, the same is nothing more than evidence and this means
that a Court has to evaluate the same as evidence and not treat it as
conclusive proof of the subject matter to which the opinion relates. For
treating it as binding, the Court would be delegating its judicial
function. In the decision of State of H.P. v. Jai Lal and Ors., reported
Crl. A. Nos.102, 401,
in 1999 (7) SCC 280 in para 18 it was observed as under:
"18. An expert is not a witness of fact. His evidence is
really of an advisory character. The duty of an expert
witness is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of the
conclusions so as to enable the Judge to form his
independent judgment by the application of this criteria
to the facts proved by the evidence of the case. The
scientific opinion evidence, if intelligible, convincing and
tested becomes a factor and often an important factor for
consideration along with the other evidence of the case.
The credibility of such a witness depends on the reasons
stated in support of his conclusions and the data and
material furnished which form the basis of his
conclusions."
42. Adverting to the facts of the case in hand, we have observed that
PW24 Sh. Punit Puri in his examination-in-chief categorically deposed
that the deformed bullet, Ex. EB-1 recovered from the dead body
correspond to the bullet of 8mm cartridge and no further opinion could
be given, whether the deformed bullet Ex. EB-1 had been discharged
through the country made pistol Ex. F-1 or not due to insufficient data.
43. After reading the testimony of PW12 coupled with the detailed report
Ex. PW24/A, we have found that no linkage could be established
between the bullet recovered from the dead body and the firearm
allegedly recovered at the instance of the appellant Vasu Sharma.
Hence, the evidence on record falls far short of proving that the fatal
shot had been fired by the appellant Vasu Sharma @ Bunty from the
country made pistol (Ex. F1) recovered at his instance. Thus, the
appellants would be entitled to the benefit of a doubt even with respect
to the report of the ballistic expert.
Crl. A. Nos.102, 401,
44. So far as the argument with respect to the defective investigation is
concerned. It would be appropriate to analyse the settled position of
law on this aspect. In Dhanaj Singh vs. State of Punjab reported in
AIR 2004 SC 1920, the Hon'ble Supreme Court laid down the
principle that an accused cannot be acquitted on the sole ground of
defective investigation; to do so would be playing into the hands of the
Investigating Officer whose investigation was defective by design.
The relevant para is as under:
"5. In the case of a defective investigation the Court has
to be circumspect in evaluating the evidence. But it
would not be right in acquitting an accused person
solely on account of the defect; to do so would
tantamount to playing into the hands of the investigating
officer if the investigation is designedly defective."
45. On the basis of the aforesaid evidence and faulty investigation by the
prosecution, in our view, it would not be safe to convict the appellants
for a serious offence of murder unless supported by other cogent
evidence. It is a well settled principle that when the direct testimony
of the eye-witnesses corroborated by the medical evidence fully
establishes the prosecution version, failure or omission on the part of
the Investigating Officer cannot affect credibility of the prosecution
version.
46. The stand of the appellants relate essentially to acceptability of
evidence. Even if the investigation is defective, in view of the legal
principles set out above, that pales into insignificance when ocular
testimony is found credible and cogent. In the present case, the
testimonies of the interested witnesses of the deceased do not inspire
Crl. A. Nos.102, 401,
confidence as they are in contradiction with the Scientific evidence
and the version given by the police officials before us. Undoubtedly,
the testimonies of the interested witnesses can be relied upon only if
there are other evidence supporting the case of the prosecution.
47. It is well settled that suspicion, howsoever grave, must not be allowed
to take the place of proof. In criminal trial, there is no scope for
applying the principle of moral conviction or grave suspicion. In
criminal cases where the oral evidence adduced against an accused
person is fully unsatisfactory and prosecution seeks to rely upon their
testimonies, the presumption of innocence which is the basis of
criminal jurisprudence assist the accused and compels the court to
render the verdict that the charge is not proved against him and so, he
is entitled to the benefit of doubt. That is precisely what has happened
in these appeals. We are of the considered view that the prosecution
has failed to establish the guilt of the appellants which could link the
appellants with the crime.
48. In the face of infirmities and inconsistencies as noticed above, the
finding of conviction against the appellants as recorded by the trial
court cannot be held to be well founded and on the strength of its
evidence on record, the prosecution cannot claim to have succeeded in
bringing home the guilt to the appellants beyond reasonable doubt.
Consequently, the impugned conviction and sentence are liable to be
set aside. The appellants shall be released forthwith, if not required to
be detained in any other case.
49. Trial Court Record be returned.
Crl. A. Nos.102, 401,
50. Copy of this decision be sent to the Superintendent- Central Jail, Tihar
for updating the jail record.
G. S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
JANUARY 24th, 2017
//
Crl. A. Nos.102, 401,
