Delhi High Court
Naval Kishore @ Naval vs State on 19 February, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 12/2013
Reserved on: January 16, 2018
Decided on: February 19, 2018
NAVAL KISHORE @ NAVAL ..... Appellant
Through: Mr. Raj Pal Singh, Advocate.
versus
STATE ..... Respondent
Through: Ms. Radhika Kolluru and Ms. Kusum
Dhalla, APPs
Inspector Sunil Kumar, PS Anand Parbat.
AND
+ CRL. A. 184/2013 & CRL.MA. 6795/2017
DEVENDER @ PAPPU & ANR ..... Appellants
Through: Mr. K. Singhal, Advocate.
versus
STATE ..... Respondent
Through: Ms. Radhika Kolluru and Ms. Kusum
Dhalla, APPs
Inspector Sunil Kumar, PS Anand Parbat.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT
%
Dr. S. Muralidhar, J.:
1. These appeals are against the impugned judgment dated 9 th October 2012
passed by the learned Additional Sessions Judge-01, Central, Tis Hazari
Courts, Delhi in Sessions Case No.11/2011 arising out of FIR No.03/2011
registered at PS Anand Parbat convicting the Appellants for the offence
under Section 302 read with Section 34 Indian Penal Code („IPC‟) and
additionally, the Appellant Chander Prakash @ Chhotu (A-3) for the offence
under Section 27(1) of the Arms Act.
2. These appeals are also directed against the order on sentence dated
12th October, 2012 whereby the Appellants were sentenced to rigorous
imprisonment („RI‟) for life for the offence under Section 302 read with
Section 34 IPC. A-3 was sentenced with fine of Rs.1.5 lakhs and, in default
of payment of fine, to further simple imprisonment („SI‟) for three years. A-
1 - Naval Kishore and A-2 - Devender @ Pappu were sentenced to a fine of
Rs.75,000/- each and, in default of payment of fine, to undergo SI for one
year. For the offence under Section 27(1) of the Arms Act, A-3 was
sentenced to RI for five years with fine of Rs.15,000/- and, in default of
payment of fine, to undergo SI for six months.
Case of the prosecution
3. A call was received by the Police Control Room („PCR‟) at 2.35 am on
16th January 2011 from one Senthil Kumar stating that a quarrel had taken
place in front of 15/80, Gali No.5, Punjabi Basti. The PCR form is marked
as Ex.PW-15/A. Another call was made at 2.36 am, by one Naseem stating
that a quarrel had taken place in front of 3/98, Punjabi Basti, Gali No.5,
Anand Parbat. The PCR form in this regard is marked as Ex.PW-34/DA. In
the PCR form (Ex.PW-15/A), it is further noted in the right-hand column
that when the PCR van reached the spot at around 3.05 am it was noticed
that Babloo, son of Kishan, had had a fight with 3-4 boys and the injured
had been taken to the Lady Harding Hospital. Subsequently, it was noticed
that at 3.35 am on 16th January 2011 that at Lady Harding Hospital the
doctor had declared the injured dead and that there were three bullet wounds
in the back and there were injury marks on the wrist. It was further
mentioned at this time that Devender, Chander Prakash and Naval had fled
from the spot.
Post-mortem
4. The Medico-Legal Certificate („MLC‟) of the deceased (Ex.PW-17/A)
showed that he was brought to the hospital by Head Constable („HC‟)
Krishan Chand (PW-36) at 3.20 am on 16th January 2011. Two firearm
injuries were noticed on the anterior abdominal wall each of diameter 1 cm
near lateral border of rectus abdominus; a contaminated wound on the left
hand; cut skin on the proximal palmer crease of the left hand; 10 cm long cut
mark on the right cheek and 5 cm long cut mark on the anterior aspect of the
left leg.
5. The post-mortem was conducted by Dr. Devender Kumar Atal (PW-35).
In his report (Ex.PW-35/B), inter alia, two firearm entry wounds in the
abdomen were noticed apart from several other contused, lacerated, and
incised wounds. Firearm exit wounds on the left chest wall and right chest
wall was also found. While removing the clothes of the deceased from his
back, a firearm projectile, i.e. a metal-jacketed bullet except on the tip of 3
cm length and 2.5 cm circumference, was recovered in a distorted condition.
The cause of death was stated to be shock as a result of multiple injuries to
the chest and abdomen "caused by rifle firearm from a close range". The
two firearm entry wounds along with their corresponding exit wounds were
stated to be fatal in the ordinary course of nature collectively as well as
separately.
Investigation
6. On receipt of the PCR information, PW-36 reached the spot at Gali No.5,
Punjabi Basti, Anand Parbat and found the deceased in an unconscious
condition. Parking the van about 50-60 yards away from the dead body,
since the gali (street) was narrow and a van could not pass through, PW-36
along with the help of public persons removed the injured and shifted him to
the Lady Harding Hospital in the police van itself. According to PW-36,
Anju (PW-3), the wife of the deceased, and Virender (PW-2), the brother-in-
law of the deceased, and the mother-in-law of the deceased accompanied the
deceased in the police van, apart from two other public persons.
Version of PW-2
7. A key witness to the occurrence was Virender (PW-2) who stated that he
was sleeping in his house, which was G-17, Gali No.5, Punjabi Basti, and at
around 2.40 am he got up after hearing the sounds of a quarrel. After
opening the door of his house, he noticed that a quarrel was going on in
front of the house of Prem (PW-6) located at a distance of four houses from
his own house. He noticed that his brother-in-law, the deceased Dalip @
Babloo, was caught hold of by Devender @ Pappu (A-2) from behind
whereas Chander Prakash @ Chhotu (A-3) had a katta in his right hand and
was pointing it at the deceased. Naval Kishore @ Naval (A-1) was
assaulting the deceased with an iron patti. PW-2 claimed that he rushed to
save the deceased but A-3 had fired a shot from the katta. The deceased was
already lying on the road as he was already assaulted by the accused
persons.
8. PW-2 then rushed to call his sister Anju (PW-3), the wife of the deceased.
When PW-2 and PW-3 returned to the spot, they noticed that the deceased
was lying in a pool of blood. PW-2 noticed A-1, A-2, and A-3 escaping from
the place of occurrence on a motorcycle behind the gali from where the
murder had taken place. He claimed to have seen the incident in a street light
as there was an electric pole near the place of occurrence. PW-2 claimed that
PW-6 emerged from his house and gave a call to the police and thereafter
the PCR van reached the spot.
9. In his statement to the police, PW-2 claimed that he had heard A-3 say
that the deceased should be eliminated. He stated that A-2 had pushed the
deceased to the ground and A-3 had fired a shot at the deceased. He further
stated that the accused persons had told PW-2 that if anybody tried to depose
against them they would also meet the same treatment.
Version of PW-3
10. The other eye witness was Anju (PW-3), the wife of the deceased. She
claimed that about four days prior the incident, i.e. on 12th January 2011, A-
2 and A-3 had threatened to kill the deceased within three days. However,
no complaint was made to the police in that regard. She further claimed that
on 15th January 2011, at around noon, the three accused attacked the
deceased and PW-3. She claims to have made a PCR call and also lodged a
report in PS Anand Parbat.
11. PW-3 claimed that on the intervening night of 15 th-16th January 2011, at
about 2.40 am, PW-2 asked her to open the door and informed her that A-1,
A-2, and A-3 had killed her husband after firing upon him. As they left her
house and were going towards the place of the incident, PW-3 claims to
have seen the three accused fleeing from the spot on a red-coloured TVS
motorcycle. As they reached the spot they saw the deceased lying in front of
the house of PW-6 in a pool of blood having been injured by a bullet. The
door of the house was open but at that time PW-6 was in the bathroom.
Thereafter, PW-6 made a call to the PCR and the police reached the spot.
She claimed that she along with PW-2, PW-6, and his father, Ramesh Chand
(PW-9), took the deceased to the Lady Harding Hospital where he was
declared as having been brought dead.
Arrests and recoveries
12. The investigation of the case was entrusted to Inspector Birender Kumar
Singh (PW-37), the Investigation Officer („IO‟). At about 7.35 am, when he
received FIR No.3/2011 registered under Section 302/34 IPC, he reached the
spot along with Constable Suresh (PW-11). He prepared a rough site plan
(Ex.PW-30/C). There, Prem (PW-6) and his father, Ramesh Chand (PW-9),
met PW-37 and their statements were recorded by him.
13. On 17th January 2011, PW-37 conducted the inquest on the dead body
and prepared inquest report (Ex.PW-37/A). At that time Hoshiar Singh (PW-
1) brother of the deceased was also present and his statement was also
recorded by PW-37.
14. On 20th January 2011, at around 11.10 pm, PW-37 received secret
information that A-1 and A-2 would come near Anand Parbat Market.
Thereafter, PW-37 along with SI Bal Mukund (PW-24), Ramvir (PW-8) and
Ct. Shamsher left PS to apprehend the accused. At 11.20 pm, they noticed
two persons coming towards the fruit market. They were apprehended on the
pointing out of the secret informer as A-1 and A-2. Nothing was recovered
from A-2 while a mobile phone and a two rupee coin were recovered from
A-1.
15. A-1, in his statement, is supposed to have disclosed that he had thrown a
weapon of offence, i.e. a knife, near the CNG pump on Military Road while
fleeing from the spot on a motorcycle. Both A-1 and A-2 informed that A-3
was in the possession of country made pistol/katta and offered to get him
arrested and recover the said weapon. A-2 further stated that A-3 was in the
possession of a red-coloured motorcycle which belonged to A-2 and that he
could get it recovered.
16. The knife was recovered on 21st January 2011, at about 7.30 am, in the
barren area opposite the CNG petrol pump on Military Road. There were
blood-stained marks on the knife.
17. On 21st January 2011, secret information was received that A-3 had been
arrested in FIR No.11/2011 under Section 25 Arms Act wherein he had
disclosed his involvement in the present case. DD No. 15/A was lodged at
PS Anand Parbat and it was assigned to PW-37. A-3 was then arrested and
his disclosure statement was recorded. A-3 disclosed that he had parked the
motorcycle in F-Block, Mangolpuri. Pursuant thereto, his motorcycle was
seized.
18. From the spot, two fired cartridges and two bullets were recovered.
These were sent to Forensic Science Laboratory („FSL‟) for its report. The
pullanda containing biological exhibits was also sent on 28th February 2011
to the FSL. The scaled site plan was prepared on 18th March 2011.
Charge
19. At the conclusion of the investigation, a charge sheet was filed on
28th March 2011. By an order dated 21st October 2011, the following charge
was framed against the three accused:
"That on 16.01.2011 at about 2:40AM, in front of H. No. 576,
Gali no. 5, Punjabi Basti, Anand Parbat within the jurisdiction
of PS Anand Parbat you above mentioned all the accused
persons in furtherance of your common intention committed
murder by causing the death of Dilip @ Bablu by giving him
fire arm injury and thereby all of you committed an offence
punishable under Section 302/34 IPC and within the cognizance
of this court of Session."
20. By a separate order on the same date, a charge under Section 27/54/59
Arms Act was framed against A-3, Chander Prakash.
Defence of the accused
21. The prosecution examined 38 witnesses during the course of the trial. No
witnesses were examined on behalf of the Appellants. In his statement under
Section 313 Code of Criminal Procedure („Cr PC‟), while denying the
circumstances against him, A-1 claimed to have been falsely implicated by
PW-2 and PW-3 who he alleged were acting in collusion. He pointed out
that the witnesses examined during the course of trial were either interested
witnesses or police officials. A-1 claimed that the knife was falsely planted
on him and that he has been falsely arrested in this case.
22. A-2 also denied the circumstances against him. He too claimed to have
been falsely implicated by PW-2 and PW-3 and that all the witnesses who
spoke to the incident were police witnesses or those related to the deceased.
As regards A-3, he took the plea of alibi. According to him, at the relevant
time he was with his in-laws in Wazirabad. A-3 denied that any country
made pistol was recovered from his possession and that no motorcycle was
recovered on his pointing out and it had been planted on him to falsely
implicate him in this case.
Impugned judgment of the trial Court
23. By the impugned judgment dated 9th October 2012, the trial Court came
to the following conclusions:
(i) There was no delay on the part of the Complainant in giving the
complaint. The delay, if any, was on the part of the police in
registering the FIR. The mere fact that the police officials failed to
perform their duties diligently or fabricated DD No. 18A are not
sufficient to discard the entire prosecution case. In view of the law
laid down in Bijoy Singh v. State of Bihar AIR 2002 SC 1949, since
in the present case there was a delay of about 10 hours in sending the
copy of FIR to the concerned Metropolitan Magistrate („MM‟), the
version of the PWs had to be minutely examined.
(ii) There was no merit in the contention that PW-2 was not present at the
spot. Since the defence failed to adduce evidence to show that the
mobile phone mentioned in the complaint belonged to PW-2, no
adverse inference can be drawn against him. Although PW-2 was an
interested witness, there was no reason to believe that he had any
intention to falsely implicate them.
(iii) The mere fact that PW-6 and PW-9 turned hostile and that the other
neighbours, Om Prakash, Sharda, and Azad, were not examined were
not sufficient to discard the testimonies of PW-6 and PW-9. In any
event, the defence could have examined these witnesses.
(iv) The failure to examine the two callers mentioned in the PCR records,
Senthil Kumar and Naseem, was again not fatal to the case of the
prosecution. It is possible that PW-6 may have informed the police
while using the mobile phone of either of them.
(v) As regards the seal of BMR, i.e. SI Bal Mukand Rai, being in the
possession of PW-30, in the absence of any independent evidence,
adverse inference cannot be drawn that the case property was sealed
in the police station. However, in such a heinous crime, "such type of
lapse was not expected from the investigating agency."
(vi) The prosecution failed to prove that the accused were arrested at the
pointing out of secret informer as deposed by PW-37. However, this
lapse was not fatal to the case of the prosecution. Even the non-
mention of the time of arrest and mention of mobile phone which was
not belonging to any person in particular were lapses but were not
sufficient to prove the innocence of the accused.
(vii) The recovery of the knife was not pursuant to the information
provided by A-1 that he had thrown it near the CNG pump on
Military Road. The recovery is, therefore, not within the parameters
of Section 27 Indian Evidence Act („IEA‟).
(viii) Further, the FSL report (Ex.PW-38/A) showed that no blood could be
detected on the knife. Therefore, the testimony of PW-37 that there
was blood at tip of the knife when it was seized did not inspire
confidence. Even the opinion of the doctor who conducted the post-
mortem as to the possibility of the knife being used to inflict the
incised wounds found on the dead body was not taken. Therefore, the
prosecution had failed to prove recovery of the knife within the
parameters of Section 27 IEA.
(ix) As regards recovery of the motorcycle, the witnesses in this regard,
i.e. PW-7, PW-23, and PW-37, deposed that at that time, the
motorcycle was locked and the key was not with the accused.
Moreover, motorcycle was not recovered pursuant to the information
furnished by the accused as regards the place where it was supposed
to be parked, i.e. parking area of F-2 Block of Mangolpuri. Hence, the
recovery of motorcycle was not proved within the parameters of
Section 27 IEA.
(x) As regards recovery of the pistol from A-3, in the absence of any
independent witnesses associated by PW-19 and PW-25, it would not
be safe to believe the recovery of the pistol from A-3. That
circumstance, therefore, was not proved.
(xi) PW-2 had deposed that A-3 had fired a shot in his presence. He
nowhere deposed that A-3 never fired a second shot. Since both shots
were fired from the same pistol, this only meant that A-3 had fired the
second shot as well. There was some confusion in the mind of PW-2
in this regard when he deposed in the Court. Reading his testimony as
whole, it is plain that A-3 was the person who fired both shots at the
deceased. Although PW-2 was a close relation of the deceased there
was no need for him to falsely implicate the accused. PW-2 was,
therefore, a trustworthy witness and could not be disbelieved.
24. The trial Court, therefore, concluded that the three accused were liable
for the offence punishable under Section 302 IPC read with Section 34 IPC.
It was held that although the prosecution had failed to prove the connected
evidence such as recovery of knife, motorcycle and pistol, the sole testimony
of PW-2 was sufficient to convict the three accused. The trial Court, by a
subsequent separate order, sentenced the Appellants in the manner noticed
hereinbefore.
25. This Court has heard the submissions of Mr. K. Singhal and Mr. Rajpal
Singh, learned counsel for the Appellants, and Ms. Radhika Kolluru and Ms.
Kusum Dhalla, learned APP for the State.
Law relating to eye witnesses
26. This was essentially a case which relied on eye-witness testimony, i.e.
PW-2 (Virender Kumar), brother-in-law of the deceased, and PW-3 (Anju),
wife of the deceased. However, since they happened to be interested
witnesses the trial Court was expected to carefully scrutinize the version of
the two eye-witnesses for inconsistencies, contradictions and improvements.
27. As explained in State v. Saravanan AIR 2009 SC 152, the Court can
overlook "minor discrepancies on trivial matters" which do not affect "the
core of the prosecution case". It is further explained in State of U.P. v.
Krishna Master AIR 2010 SC 3071 that "it is the duty of the Court to
separate falsehood from the truth, in sifting the evidence".
28. As regards interested witnesses, it was explained earlier in Dalip Singh
v. The State of Punjab AIR 1953 SC 364 as under:
"A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted and
that usually means unless the witness has cause, such as enmity
against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real
culprit and falsely implicate an innocent person. It is true, when
feelings run high and there is personal cause for enmity, that
there is a tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts."
29. Again, in Ashok Kumar Choudhary v. State of Bihar AIR 2008 SC
2436, it was explained as under:
"The relationship per se does not affect the credibility of a
witness. Merely because a witness happens to be a relative of
the victim of the crime, he/she cannot be characterized as an
"interested" witness. It is trite that the term "interested"
postulates that the person concerned has some direct or indirect
interest in seeing that the accused is somehow or the other
convicted either because he had some animus with the accused
or for some other oblique motive."
30. It further explained in Jayabalan v. Union Territory of Pondicherry
(2010) 1 SCC 199 as under:
"We are of the considered view that in cases where the Court is
called upon to deal with the, evidence of the interested
witnesses, the approach of the Court, while appreciating the
evidence of such witnesses must not be pedantic. The Court
must be cautious in appreciating and accepting the evidence
given by the interested witnesses but the Court must not be
suspicious of such evidence. The primary endeavour of the
Court must be to look for consistency. The evidence of a
witness cannot be ignored or thrown out solely because it
comes from the mouth of a person who is closely related to the
victim."
31. The legal principles emerging from the above decisions can be
summarized as follows:
(i) The evidence of the eye-witness should not be disbelieved on account
of trivial inconsistencies that do not affect the core of the prosecution
case.
(ii) It is the duty of the Court to separate the chaff from the grain by
sifting out apparent falsehoods in the testimonies and arrive at the true
version of events.
(iii) The evidence of an interested witness who happens to be a close
relation must be closely scrutinized for any improvements and
inconsistencies. The mere relationship of the deceased will not
automatically give rise to an adverse inference. If the evidence is
otherwise trustworthy it should not be presumed that the interested
witness would falsely implicate the accused without foundation being
laid for such a false case.
Analysis of the evidence of PW-2
32. The key witness of the prosecution in the present case is PW-2. From the
site plan of the area, it is seen that the residence of PW-2 is G-17, Gali No.5,
Punjabi Basti, Anand Parbat, Delhi. However, in his cross-examination,
PW-2 states that he had vacated the said house after the death of his father
but he could not recall when his father had expired. He went on to state that
"I even do not remember the date, month when he expired. Presently, I am
residing at the house of my sister along with my mother. I had not handed
over any document to the police to show that at the time of incident I was
residing at G-17. Nor I have brought the same today in the Court. I am not in
the possession of any document to show that I was residing at that time at G-
17."
33. From the rough site plan (Ex.PW-30/C), it can be seen that G-17 is two
doors down from 5/167 (the house of PW-6 who turned hostile). The rough
site plan shows the spot „X‟ right in front of G-17 as "the place where eye
witness was present". If PW-2 was not residing in G-17 at the relevant time,
there was no occasion for him to be present in front of G-17 to view the
incident. It must be recalled that PW-6 did not support the case of the
prosecution and denied that he had actually witnessed the occurrence.
34. The scaled site plan (Ex.PW-16/A) shows G-17 as the house of Manak
Chand. The spot „B‟ in the scaled site plan, from where the PW-2 witnessed
the incident, is shown slightly down the road from where the spot „X‟
figures in the rough site plan. The important distinction is that the rough site
plan is prepared on 16th January 2011, i.e. on the very date of the incident,
whereas the scaled site plan was prepared on 30th March 2011 by SI Mahesh
Kumar (PW-16) on the instruction of IO Virender Kumar Singh (PW-37)
after visiting the site on 18th March 2011. The place where the crime is said
to have taken place is shown in front of 576, Gali No.5 and is more or less
similar to the location shown in the rough site plan.
35. The rough site plan does not indicate where the house of Babloo was
whereas in the scaled site plan it was shown at a spot perpendicular to the
houses of the accused and G-17.
36. The relevant portion of the deposition of PW-2 reads as under:
"After opening my door, I saw that my brother-in-law Dalip @
Babloo was caught hold by accused Devender from behind
whereas accused Chander Prakash @ Chhotu had a katta in his
right hand and he had pointed out the same at my brother-in-
law Dalip @ Babloo whereas accused Naval was assaulting my
brother-in-law by the means of the patti, which was of iron. My
brother-in-law Dalip was trying to save himself. I rushed
towards him to save my brother-in-law. However, accused
Chander Prakash had fired a shot from the katta which he was
carrying. Dalip was already on the road as he was being
assaulted by the accused persons. I rushed to call my sister
Anju. When I along with my sister rushed back to the place of
occurrence, I saw my brother-in-law was in pool of blood and I
saw accused Chander Prakash, Devender and Naval were
escaping from the place of occurrence on motor-cycle from the
gali behind where murder had taken place. I had seen the
incident in the street light was there was electric pole near the
place of occurrence.
Prem also came out from his house. Prem had informed the
police on 100 number. PCR van reached the spot. Since the
street was narrow, we took injured Dalip @ Babloo to the PCR
van on the cot. PCR van took the injured to Lady Harding
Hospital. I and my sister Anju accompanied the PCR officials.
After checking doctor declared him brought dead. I made a
statement to the police in the hospital. My statement is mark
Ex.PW-2/A which bears my signatures at point A. I do not
know why the accused persons had killed my brother in law.
(Vol. They might have some enmity with him). I am not aware
if some litigation was going on with my brother in law and the
accused persons.
Accused persons fled away from the spot on the red colour TVS
Motor Cycle. On the spot, two empty cartridges and one piece
of chain of wrist watch having yellow colour was also found on
the spot.
Though, two empty cartridges were recovered yet only one shot
was fired in my presence."
37. At this stage of the deposition, the learned APP, with the permission of
the Court, sought to cross-examine PW-2. He now added a crucial statement
that when PW-2 rushed towards the deceased to save him, A-3 stated that
"let Dalip be eliminated today". He further added that when A-3 fired a shot,
the deceased was caught hold of by A-2 and the deceased was lying on the
road and A-3 put his leg on the chest of the deceased and thereafter fired a
shot. However, PW-2 even at this stage was insisted that:
"Accused had fired only one shot in my presence. It is wrong to
suggest that Chander Prakash had fired twice at Dalip. It is
wrong to suggest that I stated before the police that Chander
Prakash had fired again and due to which Dalip fell down on
the road. (Confronted with portion B to B of Ex. PW-2/A
wherein it is so recorded)."
38. The Court finds that the trial Court has only extracted the first sentence
of the above paragraph that the accused had fired only one shot on the
deceased. It has failed to extract the next sentence where, despite the APP‟s
suggestion to PW-2 that A-3 had fired twice, he denied that suggestion. He
in fact denied having told the police anything to that effect in his previous
statement.
39. It appears that a supplementary statement was recorded of PW-2 on
25th March 2011, more than two months after the incident and when he was
confronted with that statement, he stated "I do not remember whether the
police had recorded my statement on 25.03.2011 or not". This statement was
marked „A‟ and the trial Court noted at this time of deposition as under:
"After explaining and read over the said statement to the
witness, witness states " I do not remember whether I stated so
before the police or not. I have not made any statement to the
police in March 2011.". The statement is mark A.
It is wrong to suggest that I had made the said statement to the
police. It is wrong to suggest that I am deliberately concealing
the said fact. It is wrong to suggest that accused persons had
threatened that if anybody try to depose against them, they
would meet the same fate. It is wrong to suggest that I stated
before the police that accused persons had threatened that if
anybody try to depose against them they would met the same
fate. (Confronted with portion A to A of mark A wherein it is
so recorded).
It is wrong to suggest that due to lapse of time I had forget
some facts, thus, I am unable to recall the same."
40. In the impugned judgment, the trial Court appears to have overlooked
this aspect of the matter. In this cross-examination by the counsel for the
accused, PW-2 maintained that the police had recorded his statement only
once, i.e. on 16th January 2011, at the hospital. According to PW-37, he
recorded the statement of PW-2 only as regards the identification (Ex.PW-
37/C) on 17th January 2011 after the inquest was completed.
41. A perusal of Ex.PW-2/A, which constituted the rukka, reveals that it was
recorded on 16th January 2011 by SI Sunil Kumar (PW-30). In the
Section 161 Cr PC statement, PW-2 has clearly stated that A-3 fired upon
the deceased for a second time but he was very categorical while deposing in
the trial that he had not made that statement. In his further cross-
examination, he stated that he had told the police about the injured having
been taken after the PCR had reached, but this fact is not recited in
Ex.PW-2/A.
42. Another important aspect was that in his previous statement to the police
(Ex.PW-2/A), PW-2 only stated that the three accused fled from the spot
whereas while deposing in the trial, he mentioned that they fled away on a
red-coloured TVS motorcycle. In the considered view of the Court, this
cannot be said to be just a minor improvement. As a result of this
improvement, the entire evidence pertaining to the circumstance of recovery
of the motorcycle becomes doubtful.
43. In his deposition in the trial PW-2 stated that A-3 had fired a shot after
putting his leg on the body of the deceased whereas this fact has not been
mentioned in Ex.PW-2/A is also significant because the dead body clearly
had two bullet wounds with two corresponding exit wounds. If the eye-
witness account is not corroborated by the medical evidence, it raises serious
doubts as to whether PW-2 was in fact an eye-witness to the happening.
44. The house of the deceased is not shown in the rough site plan whereas it
is shown in the scaled site plan. This has a bearing on the appreciation of the
depositions of PW-2 and PW-3. It is significant that when PW-2 witnessed
the incident, he did not raise an alarm as, according to him, there was no
occasion to do so since the shot had already been fired. He further offers an
explanation that he did not do so as the accused themselves had told him to
call his sister as they had killed his brother-in-law. The trial Court itself
notes that these explanations furnished by PW-2 "are not much convincing".
45. When the deposition of PW-2 in the Court is compared with his first
statement to the police, the discrepancies become even more evident. He
states that he ran to inform his sister and when they returned, they found the
deceased lying in an unconscious condition and by then "Chander Prakash,
Devender ve Naval wahan se bhag gaye the". This, literally translated,
means that by this time the three accused were already fled. He then claims
that he along with PW-3 took the deceased to the hospital. The deceased was
bleeding from two bullet wounds, there should have been bloodstains on his
clothes as well as on the clothes of PW-3. However, in his cross-
examination, he admits that his bloodstained clothes were not seized.
46. Another important facet which the trial Court appears to have
overlooked is the following statement made by PW-2 in his cross-
examination:
"It is wrong to suggest that I cannot read Hindi. (Vol. I can read
but with some difficulty). I had not gone through my statement
Ex. PW-2/A when I signed the same. Even the same was not
read over to me. (Vol. However police recorded my statement
when I made the same)."
47. Overlooking this, the trial Court has proceeded as if PW-2 himself made
the statement and that he was aware as to what was stated therein.
48. Another strange statement made by PW-2 is as under:
"I do not know whether my brother in law Dalip was facing
numerous criminal cases. I know Dalip for the last more than
two years when he married with my sister. Though, prior to that
Dalip was residing in the same Gali, yet I had no
relations/friendship with him. I did not know if Dalip @ Babloo
remained in jail during the month of March, April, June and
August 2010. Though, Dalip @ Babloo was residing in the
same Gali, yet I do not know his house number. It is wrong to
suggest that Dalip @ Babloo was also residing at Sadar Bazar.
It is wrong to suggest that Dalip @ Babloo had married my
sister after threatening her."
49. The fact of the matter is that the deceased and A-3 were both together in
jail in DD No.62B of 2007 under Sections 107/151 Cr PC. There is a history
of criminal activities of the deceased.
50. The following deposition by PW-2 has again been overlooked by the
trial Court:
"It is correct that after seeing Dalip in the pool of blood my
sister had embraced Dalip @ Babloo. I also helped in shifting
the deceased from the spot to the PCR Van. However, I did not
sustain any blood mark on my clothes. I am not aware whether
the clothes of my sister had any blood marks or not. Cot was
fetched by me from the house of my landlord. Cot was lying in
the street. There was no other person in the street except
myself, my sister, Prem, his father and my mother when we
shifted to Dalip in the PCR. It is wrong to suggest that my
mother had also embraced Dalip after seeing him in the pool of
Blood. My father also reached there.
I, Prem and his father put Dalip on the cot and took him to the
PCR Van. Blood was oozing out from the body of Dalip when
he was fired. When he was put in the PCR Van, blood was
oozing out from his body."
51. With blood oozing out from the body of the deceased, the failure to seize
the bloodstained clothes of PW-2 and PW-3 is a serious lapse by the IO.
Blood should have been even there on the cot and the PCR van. How this
could be missed is beyond one‟s comprehension.
52. This has to be read along with the cross-examination of PW-30 who
admits that he does not mention the presence of PW-2 and PW-3 in the PCR
van. The answers given by him to this effect in his cross-examination are as
under:
"I did not get mentioned in my statement U/s 161 Cr. P.C. that
one lady whose name was revealed as Anju, she was wife of
injured and one male member, whose name was revealed as
Virender were also in the PCR Van and they were ready to
leave for the hospital. I had not mentioned this fact even my
endorsement Ex. PW-30/B.
...
I had not stated in my statement U/s 161 Cr. P.C. that Virender
and Anju who accompanied the deceased also met me in the
hospital. Nor I mentioned this fact in the ruqqa Ex. PW-30/B.
(Vol. However, in my statement I disclosed that Virender met
me in the hospital).
I had not stated in my statement U/s 161 Cr. P.C. that in the
mean time 3-4 neighbours of Virender also reached there, I also
interrogated them: They told me that they had not seen the
incident and reached the hospital being the neighbours,
accordingly their statement was not recorded. Nor I mentioned
the said facts in my endorsement Ex. PW-30/B.
I had not stated in my statement U/s 161 Cr. P.C. that the seal
BMR was belonged to SI Bal Mukund Rai and said seal was
with me at that time.
I had not stated in my statement U/s 161 Cr. P.C. that
complainant Virender had explained me the spot, consequently,
'I also explained the same to Insp. B.K. Singh, who prepared the
site plan at my pointing out.
I had not stated in my statement U/s 161 Cr. P.C. that I
deposited the pullandas with MHC(M).
It is wrong to suggest that I had not stated the above all the
facts to the IO in my statement U/s 161 Cr. P.C. or I have not
mentioned the above facts in my endorsement Ex. PW-30/B
because I was not aware about the said facts or that I have made
the improvements in my statement in this regard."
53. The evidence of PW-2 must, therefore, be seen in the perspective of
whether at all his presence at the scene of occurrence has been firmly
established by the prosecution. In the first place, whether he resided at G-17
at all is in doubt because it is not indicated in the rough site plan which was
prepared by the IO after his statement was recorded in the hospital. He gives
a mobile number of 9582440322 in his statement to the police and yet that is
not even his mobile number. He gives his address as G-17, Gali No.5 but
although that house is shown it is not indicated that it is the house of PW-2.
In fact, the rough site plan merely puts a mark where the eye witness was
without mentioning that he was PW-2. The mobile number mentioned in the
statement does not belong to PW-2. Further, PW-2 has not read the
statement. It was also not read over to him but only his signatures have been
taken. This explains why he has not been able to substantiate or stand by
some of the crucial statements made by him in the previous statement to the
police.
54. The first police officer who took the injured in the PCR van, i.e. PW-30,
admits that in his own previous statement under Section 161 Cr PC he has
not mentioned about PW-2 and PW-3 accompanying him in the PCR van.
The deceased was blood-soaked and blood was oozing out from his body
and PW-2 and PW-3 were supposed to have lifted him after PW-3 had in
fact embraced the deceased and yet the bloodstained clothes, if any, of PW-2
and PW-3 have not been seized by the police. The deceased is supposed to
have been placed on a cot and then taking him by PCR van and yet that cot
is not seized. The bloodstains on the PCR van also have not been seized.
These are serious lapses which give rise to serious doubts as to the presence
of PW-2 at the spot.
55. The evidence of PW-3 is also not very convincing. With her blood
stained clothes not being seized, the prosecution deprived itself of an
important piece of evidence that would have established her presence in the
PCR van in which the deceased was taken to the hospital. In any event, she
was not a witness to the attack on the deceased. She is supposed to have
reached the spot after the firing took place.
No explanation for the bullet wounds
56. The Court is unable to subscribe to the analysis of this portion of the
statement by the trial Court that when he mentioned about the deceased
being pushed to the ground when A-3 fired a shot on him, that should be
taken as a second shot. The trial Court observed:
"Thereafter, accused Chander Prakash fired a shot targeting the
deceased, which hit in his abdomen. He further deposed that
when accused Chander Prakash fired a shot, at that time,
deceased was caught hold by the accused Devender and when
Dalip was lying on the road, Chander Prakash put his leg and
thereafter fired a shot with an intention to eliminate Dalip @
Babloo."
57. The trial Court also appears to have overlooked the trajectory of the two
shots and their respective entry and exit wounds and has failed to correlate it
with the deposition of the eye-witness. From the autopsy report (Ex.PW-
35/B), both entry wounds are in the abdomen with the exit wounds are in the
chest and not through the neck. For a person to be firing on either side of the
abdomen is a bit strange. Only one of the assailants was admittedly holding
a firearm. It is not clear how the firing took place. Unless the eye-witness is
able to clearly explain that there were in fact two shots fired and how they
were fired because of the trajectory of the two bullets, merely saying that he
saw A-3 fire once upon the deceased would not stand corroborated by the
medical evidence. If a person is lying on the ground when he is shot, the
trajectory of the bullet would not be such that the entry wound is in the
abdomen and the exit wound is in the chest. This trajectory of the bullet is
not explained at all by A-3 firing upon the deceased while the deceased is
lying on the ground with A-3 placing his foot on the chest of the deceased.
This aspect of the matter has been completely overlooked by the trial Court.
Therefore, even the medical evidence cannot be said to have corroborated
what PW-2 had stated.
Lapses in investigation
58. The trial Court itself noticed that there have been serious lapses in the
investigation by the prosecution. The recovery of the pistol, the recovery of
the motorcycle, and the recovery of the knife have all been shown to be
doubtful and therefore not proved. Whether at all the three accused left on a
motorcycle is in serious doubt and therefore the recovery of the motorcycle
in any event does not help the case of the prosecution. With there being
serious lapses in the investigation, to base the conviction of the Appellants
only on the sole testimony of PW-2, who does not inspire confidence, would
not be prudent.
59. The two persons who called the PCR first i.e. Senthil Kumar and
Naseem were not examined. Also, the mere mention in the PCR form of the
names of the three accused cannot by itself settle the issues when it is not
clear as to who gave those three names to the police. If the evidence of PW-
2 is kept aside, mere giving of three names to the police by PW-2, when he
himself had actually not witnessed the incident, would not carry the case of
the prosecution any further. If he was saying what had been told to him to
say by somebody else, and that somebody else has not been examined as a
witness, the case of the prosecution will not stand proved only by the fact
that the names of the three accused featured at the first instance to the PCR.
It can at best be a corroborative piece of evidence if there is some credible
convincing evidence.
60. Unfortunately for the prosecution, the other two witnesses who would
have supported the prosecution case, PW-6 and PW-9, have both turned
hostile. The incident happened right in front of the house of PW-9 and
therefore he was in the best position to speak about it. Yet he did not support
the prosecution. He was an uninterested witness whereas PW-2 was an
interested witness. With the uninterested witness not supporting the case of
the prosecution and the interested witnesses not inspiring confidence, the
benefit of doubt in the circumstances should be given to the accused.
Conclusion
61. For the aforementioned reasons, the Court sets aside the impugned
judgment of the trial Court and acquits the Appellants for the offence with
which they were charged. The order on sentence is also hereby set aside.
62. The bail bonds and surety bonds in the name of A-1 and A-2 stand
discharged. A-3 shall be released forthwith unless wanted in any other case.
The Appellants shall fulfil the requirements of Section 437A Cr PC to the
satisfaction of the trial Court at the earliest.
63. The appeals are accordingly allowed. The pending application also
stands disposed of. The trial Court record be returned forthwith together
with a certified copy of this judgment
S. MURALIDHAR, J.
I.S. MEHTA, J.
FEBRUARY 19, 2018
Rm
