Delhi High Court
Manoj Kumar vs State (Govt Of Nct Of Delhi) on 20 February, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 7th February, 2018
Decided on: 20th February, 2018
+ CRL.A. 1542/2014
MANOJ KUMAR ...Appellant
Through: Mr. Sacchin Puri, Sr. Advocate with
Mr. Varun Tyagi, Mr. Bharat Gupta, Mr. Kamil
Khan, Mr. Anuj Kapoor, Mr. Vishesh Chauhan,
Advocates.
versus
STATE (GOVT OF NCT OF DELHI) ...Respondent
Through: Ms.Radhika Kolluru, APP for the State
along with Insp. Meena Yadav, S.I. Yogender, P.S.
Aman Vihar.
Mr. Lovkesh Swahney, Advocate with Mr.
Durgesh Kumar Pandey, Mr. Harikishan Arora,
Advocates for the complainant.
+ CRL.A. 1650/2014
VINOD @ VICKY @ ANR. ..Appellants
Through: Mr. Manoj Ohri, Sr.Advocate with
Mr. Varun Tyagi, Mr. Bharat Gupta, Mr. Anuj
Kapoor, Mr. Vishesh Chauhan, Advocate for
Appellant Nos.1 and 2
versus
STATE (GOVT OF NCT OF DELHI) ...Respondent
Through: Ms. Radhika Kolluru, APP for the State.
Mr. Lovkesh Sawhney with Mr. Durgesh Kumar
Pandey and Mr. Harikishan Arora, Advocates for
the complainant.
Crl. A. Nos.1542/2014 & 1650/2014 Page 1 of 30
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT
%
Dr. S. Muralidhar, J.:
1.These appeals are directed against the impugned judgment dated
18th July 2014 passed by the learned Additional Sessions Judge, Dwarka
Courts, New Delhi in Sessions Case No.20/2012 arising out of FIR
No.240/2011 registered at Police Station („PS‟) Palam Village convicting
the three accused, i.e. Vinod @ Vicky („A1'), Pramod Vats @ Sanshyi
(„A2‟) and Manoj Kumar („A3‟), for the offence under Section 302 read
with Section 34 Indian Penal Code („IPC‟) and convicting A1 under Section
482 IPC.
2. The appeals are also directed against the impugned order on sentence
dated 19th August 2014 sentencing the Appellants for the offence under
Section 302 read with Section 34 IPC to undergo rigorous imprisonment
(„RI‟) for life with fine of Rs.60,000/- each and, in default of payment of
fine, to undergo simple imprisonment („SI‟) for one year; and A1 to
imprisonment for one year and fine of Rs.1,000/- and, in default of payment
of fine, to undergo SI for one month for the offence under Section 482 IPC.
The sentences were directed to run concurrently.
Case of the prosecution
3. At 10.01 pm on 6th September 2011, Rekha (PW7), wife of the deceased,
Balwan Solanki, made a call to the Police Control Room („PCR‟) from her
mobile number stating that at House No.WZ-608, near Shiv Mandir, Palam
Chopal, her husband had been shot by a firearm. In the said PCR form
(Ex.PW25/A), a noting was made on the right side that the call was true. At
10.26 pm, it was noted in the PCR form that Balwan, a resident of the said
place, had been shot at by Vicky (A1); that at the spot two cartridges had
been found; that the injured had already been taken to the Mata Chanan Devi
Hospital and that the Station House Officer („SHO‟) with his staff was
present at the spot. A further noting at 10.52 pm was that the SHO with the
staff as well as the crime team was at the spot.
4. At 11.29 pm, it was noted that the injured had been brought dead to the
Mata Chanan Devi Hospital. He had bullet wounds on his chest as well as on
the right side and there was a bullet wound in his knees. It was further
noticed, "Inki property ka mamla tha, paise ki len den thi". Inspector
Ramesh Khanka (PW35) was on patrolling duty with the staff. He was
Inspector at PS Palam Village. At around 10 pm, he received the above
information from the PCR. He then reached the spot, i.e. WZ-608, Badiyal
Mohalla, near Shiv Mandir, Palam Village. On the corner of the Shiv
Temple, he noticed blood and two empty cartridges. While he was still there,
some other police staff also arrived.
5. Then PW35 along with Head Constable („HC‟) Rakesh (PW36); Sub
Inspector Virender (PW28) and driver went to Mata Chanan Devi Hospital.
The deceased had been brought dead. PW35 then collected the Medico
Legal Certificate („MLC‟). Baljit Solanki (PW2) (the younger brother of the
deceased) met him in the hospital and informed PW35 that he along with his
relatives had brought the deceased to the hospital. PW35 then recorded the
statement of PW2 (Ex.PW2/A) and on that basis prepared the rukka
(Ex.PW35/A).
6. In his initial statement (Ex.PW2/A), PW2 informed PW35 that at around
9.30 pm, after dinner, he was standing with his elder brother (the deceased)
in the corner of the Shiv Mandir and chatting when a white colour Maruti
car proceeding towards Harijan Basti, came there and stopped in front of
them. From the driver side, A1 and from the rear seats, his brother Manoj
(A3) and Vinod (A2) got down. They all belong to the same village and
were known to PW2 from before. They then entered into a scuffle with the
deceased and before PW2 could intervene, A1 took out a pistol and fired
twice or thrice on the deceased. The three accused then ran away from the
spot in the same car in the direction of Lodhi Chowk. The other brother of
the deceased, Sandeep (PW8), came there; they then picked up the injured
and took him to Mata Chanan Devi Hospital where he was declared „brought
dead‟ by the doctors. PW35 then prepared the rukka and sent it with PW36
to the PS for the registration of the FIR.
7. At the hospital, the MLC was prepared by Dr. Rakesh Prasad Sahi (PW4).
He handed over to PW35 the shirt of the deceased in a sealed parcel along
with the sample seal. PW35 then returned to the spot and prepared a rough
sketch of the empty cartridges. The empty cartridge was also picked up and
preserved. One bullet was found near the electric pole which was also seized
in a similar manner. According to PW35, they then tried to trace those
involved but could not find anyone.
8. The post-mortem of the deceased was conducted by Dr. Yogesh Tyagi
(PW19). The post-mortem report (Ex.PW19/A) described the external
injuries thus:
(i) Firearm entry wound over the left knee-front. The track of the wound
was going backward, upwards and outwards after the lower end of
femur. A crater was present at the lower end of the femur due to
impact of bullet.
(ii) A firearm exit wound over the back of the left thigh, upper-third,
24cm above the knee joint of size 1.4 x 0.8 cm.
(iii) Firearm entry wound over the right chest, front with absent singing
and tattooing. The track was going through the lower lobs of both
lungs which were collapsed. About one litre blood was present in both
the chest cavities.
(iv) A firearm exit wound was present over the back of the left chest 11cm
outer to mid-line and 28cm from the top of left shoulder of size 1.4 x
1.0 cm.
(v) The cause of death was shock of firearm injury over chest. All injuries
were ante-mortem in nature. The time of death was 12-18 hours prior
to the post-mortem examination. The post-mortem took place at 11
am on 7th September, 2011.
Arrest and recoveries
9. According to PW35, on 27th September, 2011 he received information
from the Inter-State Crime Branch that A1 had been apprehended with some
illegal arms near Mundka Metro Line. He had admitted his involvement in
the present case. PW35 along with the staff reached the Court of the learned
ACMM at Tis Hazari and with the permission of the learned ACMM
interrogated A1 and arrested him (Ex.PW29/A). The disclosure statement of
the A1 was recorded. According to PW35, despite sincere efforts, the mobile
phone could not be recovered.
10. On 28th September, 2011, PW35 went to Bulandshahar, U.P and reported
to the local PS. A1 is supposed to have disclosed that after the incident, he
and his cousin Monu were fleeing in his car and after reaching
Bulandshahar, he fired a shot on the thigh of Monu. He learnt that Monu had
been referred to a better hospital on 8 th September, 2011 itself. On the next
day, A1 is supposed to have taken PW35 to Village Nangali Tigga and got
recovered the Maruti car having a fake number plate of DL-9CE-6934
whereas its actual registration number was DL-9CM-0457. Witnesses to the
seizure were constable Subhash (PW43), Pokhpal Singh (PW17) and
constable Rakesh (PW29). PW35 stated that he took photographs of the car
from his mobile phone.
11. Thereafter, A1 took the police to Hotel Sahil in Aligarh where he
supposedly stayed. The manager of the hotel, Shravan Kumar Sharma
(PW18), identified A1. Thereafter, A1 led the police to Rishikesh and
Neelkanth and to a lodge at Sidhibali. The manager of the hotel, Rajender
Singh Chauhan (PW32), identified the accused.
12. On 1st October, 2011, A1 led the police to Bahadurgarh and pointed out
the shop from where he purchased the fake number plate which was affixed
on the Maruti car. The owner of that shop Navin (PW12) also identified A1.
13. At the end of the investigation, a charge-sheet was filed. Initially, by an
order dated 14th February, 2012, only A1 was charged with the offence
under Section 302 IPC and Section 482 IPC (for using the fake number plate
on the car used by him). Subsequently, after the arrest of A2 and A3, by an
order dated 17th December, 2012, they too were charged for the offence
under Section 302/34 IPC and 482/34 IPC.
Statements of the accused
14. Forty nine witnesses were examined by the prosecution. In his statement
under Section 313 of the Code of Criminal Procedure („Cr PC‟), while
denying the circumstances put to him, A1 stated that he had been falsely
implicated; that he was on his way from Gola Dairy/ Shyam Vihar to his
residence when he was arrested. He maintained as under:
"I am innocent and I have been falsely implicated in this case.
Criminal case was pending against the deceased on the
complaint made by me as well as another case registered on the
complaint of my father. There was also a dispute between me
and opposite party (complainant party) on a plot in a Harijan
Basti. I used to be pressurized by the deceased to withdraw my
case in the court and for which I was not ready I and my
brothers have been falsely implicated after due deliberation
discussion by the complainant party. At the alleged time of
incident 1was present in the jurisdiction of Shyam Vihar near
Gola Diary which may be about15 KM from the place of
occurrence. The complainant rang me on my mobile no. on
6.9.2011 at 9.45 PM and talked for about three minutes without
telling the purpose however, I rang up from my mobile
telephone to the complainant at 9.53 PM Complainant after
verifying my presence on telephone in Delhi has falsely
implicated me in this case."
15. A supplementary statement was recorded on 31 st May, 2014 in which A-
1 denied that he was in the area of Pochanpur. He claimed that he was but
near the Gola Dairy/Shyam Vihar which was near Pochanpur tower.
16. A2, Pramod, too denied his involvement. According to him, there was a
dispute between the accused party and the complainant party over a plot in
Harijan Basti. The accused party used to pressurize the complainant party to
withdraw the case in the Court which they declined. As a result, the
complainant party had falsely implicated the accused. A2 maintained that at
the alleged time of the incident, he was present at home. According to him,
"The complainant rang up my brother Vinod @ Vicky on 6 th September
2011 at 9.45 PM on his mobile telephone and talked for about three minutes
without telling the purpose however, my brother Vinod rang up from his
mobile telephone to the complainant at 9.53 PM. Complainant after
verifying my presence on telephone in Delhi has falsely implicated his in
this case."
17. As far as Manoj (A3) is concerned, he too maintained likewise. A
supplementary statement was recorded of A3 on 31st May, 2014regarding
location of the mobile phone. No defence evidence was led.
Impugned judgment of the trial Court
18. In the impugned judgment dated 18th July, 2014, the trial Court came to
the following conclusions:
(i) The present case was based on the eye witness account of Baljit
(PW2), the younger brother of the deceased; Seema (PW6) the wife of
PW-2; and the other brother, Sandeep (PW8). It also hinged on the
evidence of Rekha (PW7), the wife of the deceased. From an analysis
of the evidence of PWs 2, 6 and 8, it could safely be concluded that
"the deceased was fired upon by accused Vinod @ Vicky after
sharing common intention with other accused persons before
10:00 pm. There is connectivity between the mobile phone of
deceased and accused Vinod @ Vicky first at 9:45 pm and
thereafter at 9:53 pm on 09.06.2011. In this regard, Pawan
Singh (PW14), Nodal Officer, Idea Cellular Ltd., has proved on
record that mobile no. 9911074656 is owned by Balwan Singh
(deceased) in terms of Ex.PW14/A and mobile number
9891787703 is owned by accused Vinod @ Vicky in terms of
Ex. PW14/C."
(ii) From the CDRs, it would be concluded that there was telephonic
contact between A1 and the deceased at 9.45 pm on 6 th September,
2011. Thereafter, at around 9.53 pm, on the same day i.e. 6 th
September, 2011, A1 had made a call from his mobile number on the
mobile number of the deceased. The location of both mobile phones
was near the spot. The defence taken by A1 to the contrary was not
substantiated by the cell ID location of his phone which shown it to be
near Pochanpur, a short distance from the spot. Thus, the plea of A1
that he was at Gola Dairy in Shyam Vihar was false which further
incriminated him.
(iii) The testimony of eye witnesses who spoke consistently about the
deceased having been shot at by A1 with the participation of A2 and
A3 was truthful and believable. The fact that PW2 did not intervene to
save the deceased who was scuffling with A1 to A3 does not throw
doubts on his testimony or his presence at the spot. The minor
contradictions did not affect the veracity of his deposition. Even the
depositions of PWs 2, 6, 7 and 8 were consistent. There were no
material contradictions or improvements.
(iv) The non-seizure of the bloodstained clothes of PWs 2, 7 and 8 by the
police does not create a doubt regarding their presence at the spot and
removing the deceased to the hospital.
(v) The testimony of PW8 was duly corroborated by Constable Shyam
Lal (PW25) who deposed that on 6th September, 2011 at about 10.01
pm he received information from the said mobile number regarding
bullet injury to the husband of PW8. This was received by Shyam Lal
(PW25) and later passed on to SI Shanti Prakash (PW30) vide DD
No.85B(Ex.PW16/A), the mere non-mention of the other two accused
in the very first information given by Rekha again does not throw any
serious doubt about the veracity of her deposition.
(vi) The car which was used in the commission of the offence was
recovered at the instance of A1 with a fake number plate. The motive
for commission of the crime was proved and in any event, with
criminal cases pending between the parties and the deceased facing
criminal charges in FIR No.17/2009 registered at PS Palam Village in
which A1 was the complainant, showed that there was motive for
commission of the crime. The eye witness account was corroborated
by both medical as well as forensic evidence.
19. As already noticed, by a separate order on sentence, the trial Court
sentenced the Appellants in the manner indicated hereinbefore.
Submissions on behalf of the Appellants
20. Mr. Manoj Ohri, learned Senior Counsel appearing for A1 and Mr.
Sacchin Puri, learned Senior Counsel appearing for A2 and A3 submitted as
under:
(i) Despite PW2 stating that the accused persons were known to the
victim‟s family since childhood, none of the names of the accused
persons were mentioned by PW8 in the first instance as indicated in
the left side of the PCR form recorded. Reliance is placed on the
decisions in State v. Lallu Ram III (2016) CCR 59 (Del) and
Rajender v. State 2011 (2) JCC 1134.
(ii) What was proved through Kartar Singh (PW13) was only Part-I of the
PCR form and not Part-II. Relying on the decisions in Purshottam
Chopra v. State (Crl.A. 121/1999, decision dated 23 rd May 2011) and
Pradeep Khatri v State 2014 (4) JCC 3003, it is submitted that what
was only proved was Part-I of the PCR form.
(iii) There was discrepancy in the time of recording of the statement of
PW2. According to him, his statement was recorded by PW35 at
10.45pm whereas the IO (PW35) stated that it was recorded at
1.15-1.30 am. The FIR was registered only at 2.30 am. Despite the
presence of PWs 6 and 7 at the spot, their statements have not been
recorded. The rukka was not prepared on that basis even though the
PCR call had been made by PW7. It is submitted that the delay in
lodging the FIR was fatal to the prosecution case.
(iv) The presence of the eye witness at the spot was doubtful particularly
since PWs 2, 6, 7 and 8 had not mentioned about the presence of each
other. In the rukka, PW2 had not mentioned the presence of PW7. In
her entire examination-in-chief as well as cross-examination, PW7
had not mentioned about the presence of PW2 and Sandeep (PW8)
and had also not mentioned about the presence of Seema (PW6).
Further, despite being in the same van, which took the deceased to the
hospital, PW2 did not mention about any dying declaration made by
the deceased to PW7. Even the dead body of the deceased was not
identified by the said eye witnesses. Throughout, the time of the
incident was recorded as 9.30 pm on 6 th September, 2011, i.e. both in
the charge as well as questions under Section 313 Cr PC, whereas the
PCR call was made only at around 10.10 pm.
(v) The call details were not specifically put to the accused persons in
their statements under Section 313 Cr PC but in a vague manner. This
too was fatal to the case of the prosecution. Reliance is placed on the
decision in Asraf Ali v. State of Assam (2008) 16 SCC 328.
(vi) The non-recovery of bloodstained clothes of PWs 2, 7 and 8 was fatal
to the case of the prosecution. Reliance is placed on the decision in D.
Thamodaran v. Kandasamy (2015) 16 SCC 758.
(vii) There was no matching of the weapon of the offence with the
gunshots as per the medical evidence of Dr. Yogesh Tyagi (PW19).
There was no charring, tattooing and scorching on the body of the
deceased. Further, the FSL report clearly showed that the recovered
bullets were not fired from the weapon recovered from A1
(Ex.PW47/A and PW47/X). Reliance in this regard was placed on the
decisions in Suchand Pal v. Phani Pal (2003) 11 SCC 527; Joginder
Singh v. State of Haryana 2014 (2) SCJ 537; Mahavir Singh v. State
of Madhya Pradesh (2016) 10 SCC 220; Vinod v. State (decision
dated 26th March 2009 of the this Court in Crl.A. No.670/2008); and
Mohinder Singh v. State AIR 1953 SC 415.
(viii) PW2, despite being the brother of the deceased, did nothing to save
the deceased and his conduct was, therefore, unnatural. Further,
despite the spot being surrounded by various shops that were
admittedly open at that time no public person was made a witness to
this. While PWs 16, 21, 22 and 28 talked about the presence of
Satyabir (PW49) at the spot, he himself stated that on the date of the
incident he was on leave.
(ix) Despite recovery of empty cartridges on 6 th September, 2011 and
arrest of the accused on 27th September, 2011, the cartridges were sent
to the forensic lab only on 13 th October, 2011. This weakens the case
of the prosecution. Reliance is placed on the decision in Vinod v State
(supra).
(x) The trial Court failed to discuss any particular role of A2 and A3 in
the entire judgment. Even as per the prosecution, except holding the
deceased, no other role was played by A2 and A3. The prosecution
has even failed to prove that they shared any common intention with
A1 to eliminate the deceased. Reliance is placed on the decisions in
Rahisuddin v. State 204 (2013) DLT 35; Shambhu Kuer v. State of
Bihar AIR 1982 SC 1228; Ajay Sharma v. State of Rajasthan AIR
1998 SC 2798; and Ramashish Yadav v. State of Bihar AIR 1999 SC
3830.
(xi) Lastly, it was submitted that there was no intention to cause the death
of the deceased as talks were taking place between the accused and
the deceased. One shot was fired on the knee of the deceased and that
too only following a scuffle. Therefore, there was no intention to
cause death of the deceased. Therefore, the offence under Section 302
IPC is not made out.
Submissions on behalf of the State and the complainant
21. Ms. Radhika Kolluru, learned APP for the State, and Mr. Lovkesh
Sawhney, learned counsel for the complainant however, supported the
judgment of the trial Court and submitted that:
(i) Where the eye witness testimony is truthful and reliable, even though
they may be interested witnesses, it was sufficient to bring home the
guilt of the accused. The three eye witnesses were natural witnesses
and have spoken consistently. They have stood the test of cross-
examination.
(ii) Where the eye witness testimony is clear and cogent, any lapses in the
recoveries or delay in the registration of the FIR, or even absence of
proof of motive, becomes insignificant.
(iii) There is no real inconsistency in the medical evidence and the occular
evidence. Reliance is placed on Modi‟s Jurisprudence (24th Edition) to
show that the distance from which the gunshot was fired need not
result in singeing and tattooing. Reliance is also placed on the
decision in Pattipati Venkaiah v. State of Andhra Pradesh AIR 1985
SC 1715 to submit that this is not a case where any interference is
called for with the impugned judgment of the trial Court. The nature
of the injury, i.e. gunshot wound to the chest, ruled out any other
offence except the one under Section 302 IPC.
Evidence of PW2
22. At the outset, it requires to be noticed that A1 is not at all disputing his
presence at the site. In his statement under Section 313 Cr PC, he took the
stand that it was PW2 who had called him on his mobile phone at 9.45 pm
"and talked for about three minutes without telling the purpose." He then
claims that he called back PW2 at 9.53 pm. Therefore, he does not dispute
the exchange of calls. If indeed, as was suggested by Mr. Ohri, the previous
incident involving A1 and the deceased was in 2009 and PW2 was calling
up at 9.45 pm, there is no way that in the three minutes time that they spoke,
he would not have known the purpose of the call. Also, he need not have
waited for eight minutes to call back PW2 in order to ascertain that purpose.
23. What appears to be a complete giveaway is the line of questioning of
PW2 in his cross-examination. PW2 denied the suggestion in his cross-
examination that he called A1 from the mobile of the deceased; that he had a
conversation with A1 for three minutes; that thereafter A1 called him at 9.53
pm to ask him the reason as to why he had called him.
24. In this regard, the evidence of Pawan Singh (PW14), a nodal officer of
Idea Cellular Limited is relevant. He has proved that the mobile number
9911074656 was owned by the deceased and mobile number 9891787703
was owned by A1. PW14 has proved the CDRs (Ex.PW14/B) and the call
locations of both phones, i.e. Ex.PW14/B and Ex.PW14/D respectively,
showing that the location of the mobile phone of the deceased was at Tower-
29223, i.e. Lodhi Chowk, Dwarka at 9.45 pm. The location of the phone of
deceased at 9.53 pm was of Palam Village. Likewise, the location of mobile
phone of A1 was at Tower-26101, i.e. Pochanpur, at about 9.55 pm and
Tower-28392, i.e. Palam Extension, at 9.53 pm. This belied the contention
of A1 that his location was at Gola Dairy, which is at a distance of 15 km
from the spot. His location was at Pochanpur at 9.45 pm. The fact that A1
himself called the deceased and spoke to him at 9.53 pm equally stands
proved by the CDRs. Clearly, therefore, the deceased was alive at 9.53 pm.
The story of PW2 having taken the mobile phone of his brother to give a call
to A1, after someone had shot the deceased, only to falsely implicate A1 is
totally unbelievable. On the other hand, the evidence of PW2 appears to be
natural. He appeared on the scene at 9.30 pm, after dinner.
25. It must be remembered that there was a second round of cross-
examination of PW2 after the arrest of A2 and A3. There was no suggestion
put to PW2 at this stage about his having called A1 from the mobile phone
of the deceased. As rightly analyzed by the trial Court, the CDRs disproved
the defence of A1 that he was at Shyam Vihar, Gola Dairy, a distance of 15
km from the spot at 9.45 pm when he received a call from the deceased. He
was at Pochanpur at that time. Later, when he gave a call to the deceased at
9.53 pm on the mobile phone of the deceased, he was at Palam Extension,
which was very close to the spot when the crime took place. He was,
therefore, clearly proceeding towards the spot at that time. It is A1 who had
reached the spot of the deceased along with A2 and A3 and he had no valid
explanation as to why he had reached that spot. Clearly, therefore, as held by
the trial Court, the incident took place at around 9.55-10 pm. The mention of
9.30 pm in the charge and in the 313 Cr PC statement cannot therefore be
relied upon by the accused to state that the incident took place at that time.
This coupled with the fact that the PCR form records the call of the wife of
the deceased i.e. Rekha (PW7) at 10.10 pm stands fully corroborated by the
above evidence.
26. Undoubtedly, the eye witnesses to the incident are interested witnesses
as they are closely related to the deceased. PW2 is the younger brother; PW6
is his sister-in-law; PW7 is the wife of the deceased. Their depositions,
therefore, deserve very close scrutiny.
27. In Hari Obula Reddy v. The State of Andhra Pradesh, (1981) 3 SCC
675, the Supreme Court observed:
".. it is well settled that interested evidence is not necessarily
unreliable evidence. Even partisanship by itself is not a valid ground
for discrediting or rejecting sworn testimony. Nor can it be laid down
as an invariable rule that interested evidence can never form the basis
of conviction unless corroborated to a material extent in material
particulars by independent evidence. All that is necessary is that the
evidence of interested witnesses should be subjected to careful
scrutiny and accepted with caution. If on such scrutiny, the interested
testimony is found to be intrinsically reliable or inherently probable, it
may, by itself, be sufficient, in the circumstances of the particular
case, to base a conviction thereon."
28. PW2 is very clear and consistent about the roles of the three accused. He
is clear that it was A1 who fired upon the deceased; that A2 and A3 caught
hold of the deceased from his neck and hands while A1 had fired at him.
PW2 watched this from a distance of around two and a half feet. The entire
incident took less than two minutes. Therefore, there was not enough time
for PW2 to intervene. In the considered view of the Court, this conduct
cannot be termed as unnatural. Neither the deceased nor PW2 were armed
whereas A1 was. PW2 himself stated that while there was a scuffle between
the accused and the deceased. Even PW2 did not expect that A1 would pull
out the weapon and fire on the deceased. All this has happened in an
extremely short span of time. What is certain, however, are the roles
assigned to each of the accused and the manner in which the killing took
place. Despite being subjected to extensive cross-examination, nothing was
elicited from PW2 which could cast any doubt on his identifying the three
accused whom he knew from before. Their house and the house of the
deceased were just opposite each other. The site plan also shows that there
was a street light and so the visibility of the incident itself was not in issue.
29. It was sought to be suggested that PW2 did not hear the dying
declaration supposedly made by the deceased to his wife PW7 in the van.
However, that dying declaration has not been relied upon by the trial Court,
and rightly so. The eye-witness account of PW2 itself was sufficient. This
account was fully corroborated by Seema (PW6) the wife of PW2 who
viewed the whole incident from the terrace of her house. This will be
discussed shortly.
30. In his cross-examination, PW2 stated: "I was sitting on the floor by the
site of my injured brother and my Bhabhi (sister-in-law) was sitting on the
seat which was on the back side of the driver‟s seat." Therefore, it is not
correct that PW2 did not mention the presence of PW7. He further stated,
"My bhabhi informed the police about the incident over phone while she
was sitting in the van." Further, "My bhabhi informed the police from her
mobile phone in my presence so I did not call the police." This is true
because indeed PW7 called the police from her mobile phone.
Evidence of PW6
31. Turning now to the evidence of PW6. She was on the roof checking the
water tank and noticed A1 come down in the Maruti car with A2 and A3
sitting on the rear seat. They got down and started quarrelling with the
deceased. She noticed A1 taking out a pistol firing two shots and thereafter
all three accused sitting in a Maruti car and fleeing towards Jaat
Dharamshala. PW6 noticed her husband PW2, her jethani Rekha (PW7);
dewar Sandeep (PW8) shift the deceased to the hospital. She knew the
accused persons as they were residents of the same village.
32. The cross-examination of PW6 by counsel for A1 did not yield anything
for the accused. There was electricity in the area and there was street light.
When again cross-examined after the arrest of A2 and A3, PW6 maintained
her version. There is very little confrontation of PW6 with her previous
statement under Section 161 Cr PC except to the extent that she said in that
statement that the car came from the side of Ramphal Chowk whereas in her
deposition in the Court she stated that it came from the side of Harijan Basti
road. However, she clarified that the gali which comes from Harijan Basti
side and the front half portion is outside the gali facing towards her house.
She too confirmed that the PW2 was standing at a distance of 3ft from the
deceased. She cried from the roof of her house and ran downstairs while
shouting. She was so nervous that she did not remember as to what
happened thereafter. Her viewing the incident from the terrace could not
have been noticed by PW2 as he was busy attending to the deceased.
33. PW6 did not dispute that the shops around the spot were opened at that
time. However, the failure by anyone from those shops to come forward to
speak about the incident is not surprising. There was no need for PW7 to
falsely implicate any of the accused. Her account corroborates the eye
witness account of PW2 in the material aspects following the firing. PW6 is
a natural witness who is truthful and reliable.
Evidence of PW7 and PW8
34. Turning now to Rekha (PW7) the wife of the deceased, she reached the
spot at the time when the deceased was already lying down in a pool of
blood. She claimed that on the way to the hospital while carrying him in the
van brought by PW8, the deceased had told her that A1 had shot him and
that A2 and A3 were also present. Any doubt regarding the presence of PW2
in the van was explained by her in her further cross-examination after the
arrest of A2 and A3. A suggestion was given to this witness to which she
answers, "It is wrong to suggest that I was sitting on the seat along with my
dewar Baljit." This was after she had stated that she was on the floor besides
the body of her husband. This clearly showed, therefore, that not only the
presence of PW8 is confirmed by this witness but even the presence of PW2.
A further suggestion to PW7, which she of course denied, was that after the
deceased was declared brought dead to the hospital all his family members
planned to take „revenge‟ and falsely implicated the accused. This question
in fact makes the version of PW7 both natural and truthful. She did not deny
that she did not in the first instance mention the name of the assailant but
that she found out about this only later on. The implication of „revenge‟ and
the suggestion of false implication were at cross purposes. It only reaffirmed
the identity of the main assailant i.e. A1.
35. The evidence of PW8 who also witnessed the incident while standing on
the first floor of their house fully corroborates the above versions. He
noticed three accused coming in a white Maruti van, stopped near the Shiv
Mandir; the three accused getting down from the car and then quarrelling
with the deceased and in that process A1 taking out a pistol and firing two
gunshots upon the deceased. He clearly states that PW7 reached the spot
thereafter; that he took out his vehicle and along with PW7 and PW2 took
the deceased to the hospital. He too was subjected to extensive cross-
examination but nothing came of it. He confirmed that PW7 called the
police even before they reached the hospital with the deceased.
36. With the eye witnesses speaking cogently and consistently, and with
nothing being elicited in their cross-examination to doubt their versions on
the actual incident, the Court sees no reason why their evidence cannot be
relied upon to convict the three accused.
Fire arm injuries
37. Much has been made about the confusion of the fact that the firearm
injuries on the dead body did not show any singeing or tattooing. In this
context, the following extract from Modi‟s Medical Jurisprudence and
Toxicology (24th Edition) states that when a firearm is discharged from very
close to the body or in actual contact the surrounding skin is usually
scotched and blackened with smoke and tattooed with unburned grains or
powder. However, the distance from which it fired also determines whether
there would be blackening, tattooing or singing. It is stated that:
"At a distance of one to three feet, small shots make a single aperture
with irregular and lacerated edges corresponding in size to the bore of
the muzzle of the gun, as the shot enter as one mass, but are scattered
after entering the wound and cause great damage to the internal
tissues. The skin surrounding the wounds is blackened, scorched and
tattooed, with unburnt grains of power. On the other hand, at a
distance of six feet, the central aperture is surrounded by separate
openings in an area of about two inches in diameter made by a few
pellets of the shot, which spread out before reaching the mark. The
skin surrounding the aperture may not be blackened or scorched, but
is tattooed to some extent."
38. It was further noted in conclusion that: "a definite opinion about the
distance from which a firearm was discharged should be given with
caution."
39. The mere absence of singeing and tattooing will not by itself therefore
throw doubts on the veracity of the version of the eye witnesses. In any
event, nothing prevented the defence from examining a ballistic expert in
this regard. Instead they chose to address all their questions to the doctor
performing the post-mortem, i.e. PW19. The questions to him and his
answers read as under:
"Q. What was the approximate distance from where the gun shot was
fired at the deceased?
Ans. According to post mortem findings, the fire arm probably shot
from a distance of more than six meters. However, exact distance is
the expertise of forensic ballistics because it depends on the fire arm
weapon used."
40. Clearly therefore PW19 was telling the defence counsel that they had to
address the question regarding exact distance to a ballistic expert. In the
opinion of this witness, it was a distant range shot more than from a distance
of six meters but clearly that could not have been concluded. PW19 was
clear that only one bullet was recovered from the body of the deceased but
there were two firearm injuries. There was a single entry wound in the body
of the deceased in both the injuries - one of those firearm injuries was over
the chest.
41. As regards one of the bullets recovered from behind the electric pole,
this could have easily been as a result of the bullet ricocheting of the wall as
is evident from the site plan. This again does not throw any serious doubt on
the veracity of the version of the eye witnesses.
Delay in registering the FIR
42. Much has been made of the alleged delay in the registration of the FIR.
While PW2 does state that his statement was recorded at 10.45 pm whereas
PW35 states that it was recorded at 1.13 to 1.15 am, it seems more likely
that the statement which was recorded at the hospital was definitely after
10.45 pm. The MLC itself records the time of bringing the deceased into the
hospital as 10.20 pm. By the time the IO reached the hospital and recorded
the statement it could have been well beyond 10.45 pm. In fact, the noting
on the PCR form on the right side to that effect is at 11.29 pm. The Court,
therefore, inclined to agree with the trial Court that the conjoint reading of
the testimonies of Sub Inspector Virender (PW28), HC Rakesh (PW29); HC
Hanuman (PW34) leads to the conclusion that all of them including PW35
left the spot at about 11 pm and thereafter the statement of PW2 was
recorded in the hospital by PW35. Therefore, even if PW2 had made a
statement after 11 pm, the registration of the FIR at 3 am after the rukka was
prepared cannot be said to be so delayed as to cause doubts on the case of
the prosecution. It is only where the delay is not satisfactorily explained that
doubts begin to arise. In this regard, the trial Court has rightly followed the
ratio of the decisions in Sahib Singh v. State of Haryana AIR 1997 SC
3247 and Gorige Pentaiah v. State of A.P. (2008) 12 SCC 531.
43. In State v. Lallu Ram (supra) the delay in registration of the FIR was
not explained to the satisfaction of the Court. That was a case where the
presence of the eye witnesses was not believed. Likewise, in Rajender v.
State of Delhi (supra), the delay was unexplained and it was in the context
of other circumstances surrounding the case not being satisfactorily proved
by the prosecution. The above two decisions are, therefore, distinguishable
on facts. The Court is of the view that in the present case the eye witness
evidence is clear, cogent and consistent. The delay in registration of the FIR
has been satisfactorily explained and does not vitiate the case of the
prosecution.
Other grounds
44. The Court is unable to agree with the contention that there was any
failure to put to the accused the call details. To begin with, Section 215 Cr
PC states that no omission to state particulars either in the offence or the
charge shall be considered material "unless the accused was in fact misled
by such error or omission, and it has occasioned in the failure of justice."
The case of the prosecution here rests essentially on the consistent and
uncontroverted testimony of three eye witnesses, PWs 2, 6 and 8. The call
details were meant to only corroborate the eye witness testimonies. This was
not a case based on circumstantial evidence. It is also not the case of the
accused that they were misled by the omission or that there was any failure
of justice on that score. Therefore, these factors will have to be borne in
mind while examining whether the failure to put the CDRs to the accused
would be fatal to the case of the prosecution.
45. Even the counsel for the accused do not dispute that the CDRs were
generally put to the accused. In the considered view of the Court, in a case
of the present nature, where the three eye witnesses namely PWs 2, 6 and 8
have clearly spoken consistently and truthfully, the failure to specifically put
to each of the incriminating calls to the accused would not be fatal to the
case of the prosecution. The decision in Asraf Ali v State of Assam (supra)
was a case of circumstantial evidence and not of direct evidence and
therefore distinguishable on facts.
46. Likewise, the failure to recover the bloodstained clothes of the eye
witnesses could at best point to a lapse on the part of the prosecution. It does
not, however, make the eye witness accounts doubtful. In D. Thamodaran v.
Kandaswamy (supra), there were serious discrepancies in the deposition of
the prosecution witnesses. The place of incident and the sequence of events
were not proved. Only one independent witness was examined and even that
witness was not found to be consistent or truthful. However, in the present
case the above infirmities are really missing. There is no ground made out at
all to disbelieve any of the eye witnesses. Therefore, the decision is again
clearly distinguishable on facts.
47. The failure on the part of the prosecution to match the recovered weapon
with the bullets recovered from the deceased is again not fatal to the case of
the prosecution. The fact that the death was homicidal has been clearly
proved and the fact that A1 used his firearm to fire two shots at the deceased
- one on the knee and the other on the chest has clearly been proved. Even
without the recovery of weapon of offence, there would be no weakening of
the case of the prosecution. The decisions cited by the learned counsel for
the accused, therefore, clearly distinguishable on facts.
48. The PCR form is computer generated and gives very little scope for the
tampering. There was no occasion for the PCR form to be fabricated as
suggested. The decision in Purshottam Chopra v. State (supra) and
Pradeep Khatri v. State (supra) appear to have turned on their own facts. In
the present case, the PCR form mentioned clearly the name of A1. It was
consistent with PW2 disclosing to the IO the name of the assailants and that
being passed on for being recorded in the PCR form.
49. It was submitted that the PCR form records on the right side that the
SHO and his team were present at the spot soon after the cal was made by
PW6 whereas the SHO who was examined (PW49) stated that he was on
leave on the date of the incident. It transpires that the reference in the PCR
form was not to the SHO on leave but to an Additional SHO who was
deputing in his place.
50. The last contention that there was no intention on the part of the accused
to cause death of the deceased has to be rejected for the simple reason that
there were two bullet wounds on the deceased - one on the knee and the
other on the chest. The firing on the chest could not have been without there
being any intention to cause the death of the deceased. The three accused
came to the spot where the deceased was in the car with one of them being
armed with a dangerous weapon.
A2 and A3
51. The Court has considered the plea on behalf of A2 and A3 that they did
not share a common intention with A1 to kill the deceased. It was contended
that while PW-2 stated that the caught hold of the deceased from both sides
by his arms, PW6 stated that it was dark and she could not state who caught
hold of the deceased and PW-8 stated that all three accused had a scuffle
with the deceased. The Court has also considered, in this context, the
decisions in Rahisuddin v. State; Shambhu Kuer v. State of Bihar; Ajay
Sharma v. State of Rajasthan; and Ramashish Yadav v. State of Bihar
(supra).
52. Each case turns on its facts. In Shambhu Kuer (supra) the eye witnesses
did not clearly state "that the appellant continued to hold the deceased till
the assault was completed by Mandip" who had stabbed the deceased. In
Ajay Sharma (supra) also, the exhortation was „to strike‟ and not to kill.
Further, it was noticed that the main assailant who stabbed the deceased took
out his kirpan from under his stockings. It was, therefore, held that the other
two accused may not have known that he was carrying the weapon. In
Ramashish Yadav (supra) the two co-accused merely came and caught hold
of the deceased while two others hit him on his head with a gandasa.
Therefore, the co-accused were held not to share a common intention. Again
in Rahisuddin (supra), the co-accused who were acquitted had not done any
overt act qua the deceased but caught others in the complainant party.
Further there was no evidence to show that they knew that the accused who
used the firearm was in fact carrying one. However, the present case turns
on a different set of facts.
53. The three eye witnesses PWs 2, 6 and 8 are consistent about all three
accused coming in the car to the spot where the deceased was. The three
accused are brothers. Two of them i.e. A2 and A3 were sitting in the rear
and A1 was driving. They came there for a specific purpose as is evident
from the fact that they immediately started quarrelling with the deceased. It
was not as if only A1 was quarrelling with him or that only A1 had a scuffle.
All three eye witnesses state that all three accused quarrelled with the
deceased. So this is not a case where A2 and A3 were mere spectators to
what A1 did to the deceased. And importantly it is not as if they were
merely holding the deceased as is sought to be projected by learned senior
counsel appearing for A2 and A3. This is evident from the following
description given by PW8 in his cross-examination:
"Baljeet was standing at a distance of about 6/7 feet away from
Balwan. All the three brothers (accused) were standing adjoining to
Balwan at a distance of about 1-1.5 feet. All die three brothers
(accused) were beating Balwan and they all had caught hold of him.
All the three brothers were grappling with Balwan. The back side of
Balwan was towards me. Again said, I could have seen Balwan from
back side as well as from front side as the accused persons were
grappling with the deceased. During the course of grappling they also
took number of turns. I had seen when Balwan was shot at. The face
of Balwan at the time of firing gunshot was on the side of accused
persons and not towards me. At the time of firing gun shot by accused
Vicky, both his brothers (accused Pramod and Manoj) were grappling
(chipktehue the to Balwan) with him."
54. It cannot, therefore, be said that A2 and A3 were merely holding the
deceased. They were all grappling with him. The fact that all three came
there in the same car and proceeded to quarrel with and in that process
grapple with the deceased speaks eloquently of their common intention. The
three were brothers. There was no possibility of A2 and A3 not knowing
where they were going with A1 or being unaware of A1 being armed.
Clearly they knew what would happen if A1 used that firearm. The fact
situation being this, the decisions discussed do not come to aid of A2 and
A3. The only conclusion possible is that they shared a common intention
with A1 to kill the deceased. In the circumstances, the judgment of the trial
Court finding A1 to A3 guilty of the offence punishable under Section 302
read with Section 34 IPC cannot be faulted.
Conclusion
55. For the aforementioned reasons, the Court finds no grounds are made out
for doubting the correctness of the impugned judgment of the trial Court,
which is hereby affirmed. The order on sentence also calls for no
interference.
56. As regards the offence under Section 482 IPC, it is only A1 who has
been convicted and that too correctly. The corresponding sentence awarded
to him also cannot be said to be disproportionate.
57. The appeals are accordingly dismissed, but in the circumstances, with no
orders as to costs. The bail bonds and surety bonds furnished by A2 and A3
are hereby cancelled. They are directed to surrender forthwith to serve out
the remainder sentence. The trial Court record be returned forthwith along
with a certified copy of this judgment.
S. MURALIDHAR, J.
I.S. MEHTA, J.
FEBRUARY 20, 2018
rd
