Delhi High Court
Inderjeet vs State on 30 October, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11th October, 2018
Decided on: 30th October, 2018
+ CRL.A. 1197/2013
INDERJEET .....Appellant
Through: Mr. Javed Alvi with Mr. Subrat
Chouhan, Advocates.
versus
STATE ....Respondent
Through: Mr. Hirein Sharma, APP for the State.
+ CRL.A. 1534/2013
VIKAS TOKAS @ VICKY .....Appellant
Through: Mr. Ram Singh Soni & Mr. Ashok
Kumar Soni, Advocates.
versus
STATE ....Respondent
Through: Mr. Hirein Sharma, APP for the State.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
Dr. S. Muralidhar, J.:
1. These two appeals are directed against the judgment dated 16th July, 2013
passed by the learned Additional Sessions Judge-II, South District, Saket
Courts in Sessions Case No. 50/2011 arising out of FIR No. 139/2011
registered at Police Station (PS) Vasant Vihar convicting both Appellants
for the offence punishable under Section 302 read with 34 IPC and
additionally Appellant Vikas Tokas @ Vicky (Accused No.1: A-1)
(Appellant in Crl. A. No. 1534/2013) under Section 25 of the Arms Act. The
appeals are also directed against the order on sentence dated 20 th July, 2013
whereby for the offence punishable under Section 302 read with Section 34
IPC, A-1 and the co-accused Inderjeet (A-2, the Appellant in Crl. A. No.
1197/2013) was sentenced to Rigorous Imprisonment („RI‟) for life and fine
of Rs.25,000/- and for the offence under Section 25-B of the Arms Act, A-1
was additionally sentenced to RI for two years. Both sentences were directed
to run concurrently.
2. The charge against the two Appellants was that on 8 th May, 2011 at about
8.20 pm at the jungle opposite Baba Gang Nath Mandir, Nelson Mandela
Marg, Vasant Vihar, both of them in furtherance of their common intention
murdered Lalit Kumar @ Sunil @ Pappal (the deceased) thereby committing
the offence punishable under Section 302 read with 34 IPC.Additionally A-1
was charged with having been found in possession of a country-made pistol
which he used in the commission of the above offence, thereby committing
an offence punishable under Section 27 of the Arms Act.
Information to the police
3. DD No. 37A recorded on 8th May, 2011 at PS Vasant Vihar noted that one
Hari Singh (PW-3) had come at 8.23 p.m. to the PS and informed that in the
jungle on the left side of the road opposite the Baba Gang Nath Mandir a
young male was lying in a severely injured condition and was probably shot
dead with a fire arm.
4. This information was passed on to the Station House Officer („SHO‟)
Inspector Vijay Pal (PW-22). Inspector Pawan Kumar along with Constable
(„Ct.‟) Naresh and Manoj Dahiya (PW-15) left in a police jeep for the spot.
They took the injured person to the Trauma Centre at the All India Institute
of Medical Sciences („AIIMS‟). The MLC (Ex.PW-1/A) shows that the
deceased was brought there at 8.46 p.m. on 8 th May, 2011 by PW-15 with
alleged history of a gunshot injury.
5. The deceased was examined by Dr. Devendra Garg (PW-1). He clarified
that although in the original MLC (Ex.PW-1/A), it was not mentioned that
the patient had been brought dead, it had been mentioned in the extra copy
kept at the centre. PW-1 noticed entry and exit injuries caused by a firearm
of the size 1x1 cm at the exit point of the wound.
At the scene of crime
6. Inspector Vijay Pal (PW-22) accompanied by Ct. Ashok (PW-21) reached
the Trauma Centre. PW-22 took the photographs of the dead body with his
mobile phone. Thereafter he returned to the spot and on the way dropped
PW-21 at Munirka for getting the photographs developed. Present at the spot
already were Inspector Ved Prakash, SHO and the other police staff
including Inspector Pawan Kumar, Sub-Inspector (SI) Manoj Kumar (PW-
19) and Head Constable („HC‟) Gulab Singh (PW-23).
7. PW-22 called the crime team. He also met PW-3 at the spot. The mobile
crime team report (Ex.PW-9/A) shows that the crime team was present from
10.30 pm to 11.30 pm. In the column titled 'details of exhibits lifted' it was
noted: "as per seizure memo prepared by IO." SI Naresh Kumar (PW-9), in
charge of the mobile crime team, deposed that at some distance from the
jungle, just stepping down from the road, some blood was found scattered.
PW-9 photographed the crime scene.
8. The seizure memos of the exhibits lifted from the spot were marked as
Ex.PW-19/A and Ex.PW-19/B. Ex.PW-19/A pertained to the seizure of the
blood soaked earth, the control earth, the blood stained stone and the control
stone whereas the Ex.PW-19/B pertained to the lifting of a blue coloured cap
with the letters DEA written on it and which was blood stained. The Court
has been shown photographs taken at the spot which form part of the trial
Court record. These show the presence of the blood stained cap at the spot.
Statement of PW-3
9. A rukka (Ex.PW-3/A) was prepared on the statement of PW-3 who stated
that he was working in a private firm. At around 8.20 pm after dinner he was
walking towards the Coolie Camp on Nelson Mandela Marg, near Vasant
Vihar on the footpath. When he reached the opposite side of the Baba Gang
Nath Mandir, from his left side he could hear the sound of firing. He heard
the cries of a boy „Bachalo Bachalo‟. When PW-3 turned towards the
jungle, he noticed two young boys running from that spot. They crossed in
front of him and ran towards the Coolie Camp which too was to his rear.
One of them was thin, tall and fair wearing Jeans Pant and T-shirt. The other
boy was shorter and he too was wearing Jeans Pant and T-shirt. PW-3 then
quickly went to the PS and informed the police about the deceased lying in
an injured condition.
10. The time of the recording of this rukka was at around 11.15 p.m. It was
sent to the PS for registration of FIR No. 139/2011. The said FIR was
registered at 12.30 am on 9th May, 2011. Ct. Ajay (PW-12), who was a beat
constable in the area, identified the deceased from the photograph as Lalit,
who was known to take smack and lived in Munirka Village. Later PW-22
ascertained the exact address of the deceased and reached his house. There
they found his mother Uma Devi (PW-6) present. She identified her son
from the photographs (Ex.PW-22/D-1 to D-6). There is some confusion
whether the police met PW-6 at 2 am or 6 am on 9th May, 2011.
Statement of PW-6
11. PW-22 recorded the statement of PW-6 (Ex.PW-6/DA). In this statement
PW-6 inter-alia stated that both A-1 and A-2 were friends of the deceased.
The three would go out in the evenings for dinner. A-1 and A-2 were
frequent visitors to the house of the deceased for the past two years. All
three were drug addicts. About two and a half months earlier A-2 had called
the deceased to his room and accused him of stealing a mobile phone. A-2 is
stated to have physically assaulted the deceased; burnt his hands with the
soldering machine and broken his finger. Since she was a poor woman, PW-
6 was not able to muster the courage to give a police complaint.
12. From that time onwards A-2 bore a grudge against the deceased. As a
result of his drug addiction the deceased had to quit his job at a CNG Station
and was not earning anything. A-2 would often take meals at their place and
sometimes would buy food stuff for the kitchen. A-2 then requested PW-6 to
let him stay in the house and she also agreed. On 7th May, 2011 A-2 had
brought some of his personal belongings to the room of PW-6. When the
deceased came to know of this he got angry with A-2 and refused to permit
him to stay at their place. A-2 then returned to his place.
13. At around 5.30 pm on 8th May, 2011 when she was present in the room
with her son, A-2 called from his mobile number ending with 0284 on her
mobile number ending with 1578. However, this call was picked up by the
deceased. After a while, A-2 came to the house and called the deceased out
and asked him to accompany A-2. The deceased then replied that he would
freshen up and join him. A-2 then left. At that time PW-6 came outside the
house and noticed that A-1 was also standing there and both of them i.e. A-1
and A-2 left. 10-15 minutes later, the deceased told PW-6 told that he was
leaving to join A-1 and A-2. The deceased did not return even late at night.
14. While PW-6 kept waiting, at around 1 am A-2 came and told her that the
deceased had met with an accident and that A-2 was going to the hospital to
meet him. At this point A-2 left some of his belongings, including clothes,
in the room. When PW-6 stated that she wanted to accompany A-2, he
refused. He did not give her any information regarding the hospital where
the deceased was admitted. PW-6 then called her brother-in-law Ram
Prakash (PW-7) and told him about the deceased having met with an
accident. PW-7 asked her to go to sleep and that they would take care of it in
the morning. Thereafter, in the early hours of 9th May 2011, the police came
there and showed her the photograph of the dead body of the deceased. In
her statement PW-6 stated that she suspected A-1 and A-2 as being
responsible for the murder of her son.
Post mortem
15. The post mortem of the deceased was conducted by Dr. Raghvendra
Bagla (PW-24). In the post mortem report (Ex.PW-24/A), PW-24 noted the
following injury:
"Gunshot wound measuring 3x2cms over the right lateral aspect
of chest 14 cms below the axilla and 18cms right to midline.
After piercing the skin, subcutaneous tissues and muscles, it
entered the lateral aspect of right lung and then came out on the
medial aspect of right lung and then entered the medial aspect of
left lung and then it came out of the lateral aspect of the left lung.
The it came out through an exit wound measuring 3xlcm on the
posterolateral aspect of left chest, 12cms below the axilla and
15cms lateral to midline. The lungs and soft tissues of the track
severely contused and lacerated. The chest cavity contained about
2 litres of blood."
16. The cause of death was given as "respiratory failure due to ante mortem
injuries to lungs produced by a projectile fired from a fire arm."
Arrests, disclosures, recoveries
17. The clothes of the deceased were seized. While PW-22 was returning
from AIIMS after the post-mortem examination, and reached near Aggarwal
Sweets in Munirka, PW-19 met him and stated that he had got some
information that A-1 and A-2 were present in the park of Baba Gang Nath
Market. PW-22 organized a raiding party and requested four or five
passersby to join. They declined and went away without leaving their names
and addresses. PW-22 along with his team went to the spot indicated in the
secret information and at the instance of the informer, A-1 and A-2 were
apprehended.
18. PW-22 noticed some burn marks on the hands of A-1 and asked him
about it. A-1 is supposed to have inter-alia disclosed that he had used a fire
arm and in that process had received the burn injuries. A-1 was then taken to
the Safdarjung Hospital. The MLC (Ex.PW-28/B) noted: "patient brought by
Constable Ajay for medical examination at the Safdarjung hospital
casualty". Importantly it was noted that there was "alleged history of
shooting by a desi gun to someone as stated by the police". The notings were
by Dr. Mohammad Rakibuddin whose hand writing was identified by Dr.
Hari Shankar Niranjan (PW-28).
19. An important observation by Dr. Rakibuddin in the MLC was that he
found "pin head size multiple red colour tattooing in the right distal forearm
and dorsum of right hand and left hand." He also found a stitch mark on
A-1‟s buttock 7 x 5 cm. He noted that A-1 had told him that this happened at
a private hospital (Kapoor Hospital, Munirka). A-1 was advised review in
the casualty of Safdarjung hospital.
20. A-1 was taken to PW-24 on 9th May, 2011 for examination. PW-24 took
a swab from the injured portion of the forearm as well as from the hands. A
control swab was also taken from the back. The injuries in the forearm were
found to be about one day old. In his noting (Ex.PW-24/B), PW-24 opined
that such injuries, as found on A-1, were possible by a firearm.
21. PW-22 then returned to the spot with A-1. Both A-1 and A-2 were
arrested vide memos Ex.PW-19/G & Ex.PW-19/H. Both these memos show
that they were apprehended at 2pm from the park behind Baba Gang Nath
Mandir and the time of arrest was shown as 4.30 p.m. Disclosure statements
of both Appellants were recorded. Pursuant thereto, the clothes which A-1
and A-2 were wearing at the time of incident were got recovered. A-1
further disclosed that he could get recovered the country-made pistol and the
treatment papers including OPD slips.
22. The admissible part of the disclosure by A-1 was that he had fled from
the crime scene, gone to the Tikona Park and concealed the country made
pistol there. While scaling the grill of the park, he got injured. First he went
to a local hospital in Munirka and thereafter to the Safdarjung hospital for
treatment. A-1 stated that he intended to get his wound stitched at the
Safdarjung Hospital but seeing the presence of the police he left there and
went to the Daya Memorial Hospital at Munirka.
23. Two rough site plans, without scale, were drawn up by PW-22. One was
for the recovery of the pistol from the corner of the Tikona Park (Ex.PW-
23/DB) and the other for the scene of crime (Ex.PW-22/C).
24. It must be mentioned at this stage that when A-1 first went to the
Safdarjung Hospital for treatment he was given a slip (Ex.PW-12) stating
that he had got injured. When they told him that it was a medico legal case
he tried saying that he got injured accidentally. It also appears that two
treatment slips were issued to him: one by Safdarjung hospital and the other
by the Daya Memorial Hospital. These were found in the rear pocket of the
pant of A-1 which was seized pursuant to his disclosure.
25. As far as the Daya Memorial exhibits are concerned, this was provided
to IO by Dr. R.K. Kapoor (PW-5) in-charge of the Daya Memorial Hospital
in Munirka. In response to a letter of the IO dated 25th May, 2011, PW-5
replied by a letter dated 31st May, 2011 enclosing the OPD prescription with
diagnosis issued to A-1 and the note of Dr. B.K. Mohanty (PW-4) who
treated him. The payment receipt issued by Daya Memorial Hospital at
11.18 p.m. on 8th May, 2011 to A-1 in the sum of Rs.3,000/- was also
furnished to the IO (Ex.PW-5/B). But for the above disclosure by A-1, the
IO could not have known of the treatment received by A-1 at the Daya
Memorial Hospital; that he received treatment there for the wound on his
buttocks as a result of scaling of the wall of Tikona Park.
FSL Reports
26. The report dated 2nd September 2011 of the Biology Division of the
FSL (Ex.PW-22/J, K) showed that while on the earth control and the pant
and shirt of A-2 no blood could be detected, it was detected on all the other
exhibits. Human blood was found on all exhibits except Ex.2 (vegetative
material along with earth control) and Ex.9 (underwear of the deceased).
Human origin blood was found on the piece of stone, the T-shirt and pant of
the deceased and the jeans pant of A-1 (Ex.13/A). It stood confirmed by the
FSL report that the blood group of the deceased (Group „O‟) matched the
blood group „O‟ found on the jeans pant of A-1. Ex.PW-22/K described all
the exhibits sent including the cap (Ex.5) which was shown to have blood of
human origin.
27. The Ballistics Division of the FSL gave its report (Ex.PW-22/L) on 23rd
December, 2011. Parcel No.11 was the swab (S-1) taken from the forearm of
A-1. The report concluded on the basis of the chemical examination that fire
arm discharge residue was detected on S-1. It was further found that the hole
on the right portion of the back side of the T-shirt (Ex.C-1) could have been
caused by bullet discharged through a fire arm. The country made pistol was
test fired successfully "using the cartridge in the laboratory stock and found
to be in working order."
28. The main charge sheet was filed on 29th July, 2011. After the FSL
reports were received a supplementary charge sheet was filed on 24 th
January, 2012.
29. By an order dated 20th August, 2011 the charges were framed against
both accused in the manner indicated hereinbefore. On behalf of the
prosecution, 30 witnesses were examined.
Statements under Section 313 Cr PC
30. In his statement under Section 313 Cr PC, A-1 denied the incriminating
circumstances, including knowing the deceased or even visiting him. A-1
claimed to have been arrested from his house in the night of 8 th May, 2011
and not at the park. He denied the injury marks on his hands or receiving
treatment at the Daya Memorial Hospital. He admitted to refusing to
participate in the TIP since, according to him, his photographs had already
been taken and shown to the witnesses. A-1 denied the CDRs collected by
the IO. He claimed to have been falsely implicated and did not wish to lead
the defence evidence.
31. As far as A-2 is concerned, he stated that he knew the deceased 'very
well' and 'was on visiting terms with him'. He denied all other circumstances
including his arrest. He too justified his refusal to participate in the TIP by
stating that his photographs had already been shown to the witness. He too
claimed to have been falsely implicated and did not wish to lead evidence.
Impugned judgment of the trial Court
32. In the impugned judgment the trial Court came to the following
conclusions:
i) The helplessness of PW-6 in not going to the police immediately after
being informed that that the deceased had met with an accident was
understandable. PW-7 lived elsewhere and therefore he did not feel the
urgency that she felt. Her conduct cannot be termed as questionable.
ii) The non-compliance, if any, by the police with the procedural rules was
not shown to be deliberate and in bad faith or to have caused prejudice to the
accused. Therefore, there was no merit in the contention that the entire
investigation should be held to be vitiated.
iii) As regards the discrepancies and contradictions in the statements of the
PWs, they did not go to the heart of the matter and shake their basic version.
The evidence of the PWs could not, therefore, be rejected in toto.
iv) The lapses in the investigation also were not such that the entire
prosecution case should fail.
v) The conduct of A-2 in coming in the dead of the night; leaving his
belongings and misleading PW-6 about what happened to the deceased
betrayed his involvement in the crime.
vi) The CDR shows that the calls were exchanged between the deceased and
the two accused and these substantiated the prosecution case.
vii) With there being two site plans, one for the place of the incident and the
other for the recovery of the weapon, it could not be said that the fire arm
was planted. In any event this happened not too long after the arrest of the
accused and the incident itself.
viii) The sanction to prosecute A-1 under Section 25 of the Arms Act
appeared to have been granted after considering relevant facts.
ix) The refusal by the accused to participate in the TIP, A-1 denying that he
knew the deceased, A-2's misleading statement to PW-6 that the deceased
had met with an accident, the details of the injury of A-1, the blood on the
clothes of A-1, the blood stain on his T-shirt, the gunshot injury on both
hands of A-1 were all factors that cumulatively pointed to the guilt of the
accused.
x) The opinion of PW-24 as to the approximate time of death also matched
the sequence of events The altercation between the deceased and A-2 as
referred to in the statement of PW-6 provided the motive for the offence.
33. For the aforementioned reasons, the trial Court held both the Appellants
guilty of the offence punishable under Section 302 read with 34 IPC and
proceeded to sentence them accordingly. Additionally A-1 was held guilty
for the offence under Section 25 of the Arms Act and sentenced separately
for it.
34. This Court has heard the submissions of Mr. R.S.Soni, learned counsel
appearing for A-1 and Mr. Javed Alvi, learned counsel appearing for A-2.
Mr. Hirein Sharma, learned APP appeared for the State.
Law relating to circumstantial evidence
35. This is a case based on circumstantial evidence and the law in this regard
is fairly well settled. The following observations made by the Supreme
Court in C. Chenga Reddy v. State of Andhra Pradesh (1996) 10 SCC 193
are instructive on the manner in which the circumstantial evidence is to be
weighed:
"21. In a case based on circumstantial evidence, the settled law
is that the circumstances from which the conclusion of guilt is
drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be
complete and there should be no gap left in the chain of
evidence. Further, the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and totally
inconsistent with his innocence. In the present case the courts
below have overlooked these settled principles and allowed
suspicion to take the place of proof besides relying upon some
inadmissible evidence."
36. The following observations were made in Sattatiya v. State of
Maharashtra (2008) 3 SCC 210:
"10. We have thoughtfully considered the entire matter. It is
settled law that an offence can be proved not only by direct
evidence but also by circumstantial evidence where there is no
direct evidence. The Court can draw an inference of guilt when
all the incriminating facts and circumstances are found to be
totally incompatible with the innocence of the accused. Of
course, the circumstances from which an inference as to the
guilt is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances...
... 17. At this stage, we also deem it proper to observe that in
exercise of power under Article 136 of the Constitution, this
Court will be extremely loath to upset the judgment of
conviction which is confirmed in appeal. However, if it is found
that the appreciation of evidence in a case, which is entirely
based on circumstantial evidence, is vitiated by serious errors
and on that account miscarriage of justice has been occasioned,
then the Court will certainly interfere even with the concurrent
findings recorded by the trial court and the High Court Bharat
v. State of M.P. (2003) 3 SCC 106. In the light of the above, we
shall now consider whether in the present case the prosecution
succeeded in establishing the chain of circumstances leading to
an inescapable conclusion that the appellant had committed the
crime."
37. In G. Parshwanath v. State of Karnataka (2010) 8 SCC 593, the
Supreme Court made the following observations when considering a case
hinging on circumstantial evidence:
"23. In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established. Each fact
sought to be relied upon must be proved individually. However,
in applying this principle a distinction must be made between
facts called primary or basic on the one hand and inference of
facts to be drawn from them on the other. In regard to proof of
primary facts, the court has to judge the evidence and decide
whether that evidence proves a particular fact and if that fact is
proved, the question whether that fact leads to an inference of
guilt of the accused person should be considered. In dealing
with this aspect of the problem, the doctrine of benefit of doubt
applies. Although there should not be any missing links in the
case, yet it is not essential that each of the links must appear on
the surface of the evidence adduced and some of these links
may have to be inferred from the proved facts. In drawing these
inferences, the court must have regard to the common course of
natural events and to human conduct and their relations to the
facts of the particular case. The Court thereafter has to consider
the effect of proved facts. In deciding the sufficiency of the
circumstantial evidence for the purpose of conviction, the court
has to consider the total cumulative effect of all the proved
facts, each one of which reinforces the conclusion of guilt and
if the combined effect of all these facts taken together is
conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that one or
more of these facts by itself or themselves is/are not decisive.
The facts established should be consistent only with the
hypothesis of the guilt of the accused and should exclude every
hypothesis except the one sought to be proved. But this does
not mean that before the prosecution can succeed in a case
resting upon circumstantial evidence alone, it must exclude
each and every hypothesis suggested by the accused,
howsoever, extravagant and fanciful it might be. There must be
a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act
must have been done by the accused, where various links in
chain are in themselves complete, then the false plea or false
defence may be called into aid only to lend assurance to the
court."
38. Finally, in Rajendra Pralhadrao Wasnik v. The State of Maharashtra
(2012) 4 SCC 37, the Supreme Court held:
"12. There is no doubt that it is not a case of direct evidence but
the conviction of the accused is founded on circumstantial
evidence. It is a settled principle of law that the prosecution has
to satisfy certain conditions before a conviction based on
circumstantial evidence can be sustained. The circumstances
from which the conclusion of guilt is to be drawn should be
fully established and should also be consistent with only one
hypothesis, i.e. the guilt of the accused. The circumstances
should be conclusive and proved by the prosecution. There
must be a chain of events so complete as not to leave any
substantial doubt in the mind of the Court. Irresistibly, the
evidence should lead to the conclusion which is inconsistent
with the innocence of the accused and the only possibility is
that the accused has committed the crime.
13. To put it simply, the circumstances forming the chain of
events should be proved and they should cumulatively point
towards the guilt of the accused alone. In such circumstances,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of
any other person."
Last seen
39. The case of the prosecution as spoken by PW-3 is that while he was
returning from dinner and walking along the pavement opposite the Baba
Gang Nath Mandir he heard the sound of gun fire and the scream of a young
male asking to be saved. He then noticed two boys run from that spot from
within the jungle towards his left. They ran past him and then towards the
Coolie Colony which was to his rear. PW-3 then went to the PS and it is on
his information that the police reached the spot. It was on his statement that
the rukka was drawn out and the FIR registered. PW-3 was therefore one of
the significant witnesses for the prosecution.
40. Unfortunately for the prosecution PW-3 turned hostile and claimed that
he had given no statement to the police. He also claimed that he was made to
sign blank papers. It will be recalled that a rough site plan (Ex.PW-22/C)
was purportedly drawn up by PW-22 on the statement of PW-3. Yet, where
PW-3 was standing on the pavement from where he saw the incident, was
not indicated in the said plan. It was only indicated in the scaled site plan. In
any event with PW-3 having turned hostile, one important piece of evidence
to prove the circumstance of last seen of the accused with the deceased was
unavailable to the prosecution. Therefore it would be prudent to keep aside
the evidence of PW-3 in toto.
41. At this stage it must also be noted that Mr. Soni, learned counsel
appearing for A-1 pointed out that the signatures of PW-3 as appearing in
the rukka did not tally with his signatures on the transcript of his deposition.
He accordingly contended that there was a doubt whether PW-3 was at all
present and saw the occurrence.
42. The above submission is to no avail since the Court proposes to proceed
as if evidence of PW-3 ought not to be taken into consideration at all. The
fact of the matter is that when the information was entered in the PS as DD
No. 37A at 8.23 pm, it was promptly attended to by the police. We have
PW-15 speaking about what happened when they reached the spot. He
accompanied Inspector Pawan to the AIIMS Trauma Centre where the
deceased was declared brought dead. The MLC also confirmed the presence
of PW-15 at the AIIMS Trauma Centre at around 8.46 p.m.
43. Further we have the evidence of PW-1 who confirms that the deceased
suffered a gunshot wound on his chest. The post-mortem report prepared by
PW-24 also confirms this.
44. With PW-3 not being a reliable witness as to the last seen, we have to
fall back on the evidence of PW-6 herself. She states that on her mobile
number ending with 5178 she received a call from A-2 whose mobile
number ended with 0284 and this call was attended by the deceased. The
CDR of the phone of A-2, which was exhibited by Israr Babu (PW-20) of
Vodafone confirms that A-2 had indeed called a mobile phone used by PW-
6 at 5.19 pm. PW-6 is consistent that this call was attended by the deceased
who himself did not have a mobile phone.
45. The CDR of A-1 who was using a mobile number ending with 5560
which was again exhibited by PW-20 (with no cross-examination) shows
that a call was made from the mobile phone of PW-6 to the number of A-1
at 5.32 pm. Then we have a call from A-1 to A-2 at 6.09 p.m. The cell
location details show that all of these calls were made from locations in and
around Munirka Village which is the area where all three i.e. A-1, A-2 and
the deceased, were. In fact there were numerous calls exchanged during the
period between 8.28 pm and 10.38 pm on 8 th May, 2011 between A-1 and
A-2. They apparently were in constant touch with each other soon after the
incident. Likewise, the CDR of the mobile phone used by A-2 confirms this
exchange of calls. In between he also called PW-6 at 8.32 p.m.
46. The anxiety of PW-6 about her son by calling A-2 at 1.09 am is also
reflected in the CDR of A-2. The CDRs themselves tell a story about the
deceased and the two accused being in touch with each other in and around
the time of the incident. The CDRs also corroborate the statement of PW-6
that after A-2 had called the deceased on her mobile he came to the house to
take the deceased away. The deceased did not immediately leave but after a
while. A-2 calling A-1 and both of them then taking the deceased away is a
scenario that is certainly supported by the CDRs.
47. Consequently, although the evidence of PW-3 is not available to the
prosecution, the evidence of PW-6 in regard to A-2 having come and called
the deceased and then A-1 and A-2 taking the deceased away has been
conclusively proved by the prosecution. The deceased died within less than
three hours of being last seen in the company of A-1 and A-2.
48. The FSL reports also support the case of the prosecution about A-1
being in the company of the deceased at the time of the firing. The jeans
pant of A-1 contained blood of human origin the group of which was „O‟,
which is the blood group of the deceased. Apart from the bare denial, A-1
had no explanation to offer as to how his jeans pant could have the blood
group of the deceased.
Recovery of the weapon
49. The next important circumstance is the conduct of A-1 in running away
after the incident and concealing the weapon of offence in the Tikona Park.
But for the disclosure of A-1 the police would not have been able to know
that the weapon of offence was hidden in one corner of Tikona Park. It was
vehemently argued on behalf of A-1 that just next to Tikona park was a
residential colony and the park itself was a public park.
50. The time of the recovery was after the arrest of both the accused i.e. after
4.30 in the evening of 9th May, 2011. It should have been possible for the
police to try and associate independent witnesses in the recovery. The
evidence of PW-22 however points to the reluctance of the public to join in
the recovery. Moreover, as pointed out by the learned APP the one person
who came forward to support the prosecution i.e. PW-3 ultimately turned
hostile.
51. With the injury being caused by fire arm and the FSL report confirming
that the injury was possible from the fire arm recovered at the instance of
A-1, which firearm was to be in working condition, the evidence regarding
recovery of the fire arm upon the disclosure of A-1 deserves acceptance.
Injury to A-1
52. What also probablises the recoveries is the disclosure by A-1 about the
injury on his buttocks which he received by scaling the wall and jumping
into the Tikona Park. This could not have been discovered but for A-1's
disclosure. His further disclosure that he first went to a Doctor in Munirka
who asked him to go to Safdarjung Hospital; going to the Safdarjung
hospital and then coming back for treatment to the Daya Memorial Hospital
all stand established by the evidence gathered by the prosecution. As rightly
noticed by the trial Court, the documents proving the treatment received by
A-1 at the Daya Memorial Hospital and the payment made by him for such
treatment have been proved without any contra diction. His false denial of
such treatment also raises serious questions about his conduct. A-1's
mandatory MLC subsequently at Safdarjung Hospital further confirms that
he received the injury on his buttocks which required stitches.
53. Another important circumstance is the presence of gunshot injuries on
the right forearm and both hands of A-1. The swab (S-1) taken by PW-24
when sent to the FSL confirmed presence of gunshot residue. The blank
denial of A-1 of all these incriminating circumstances was least helpful to
his case. The gunshot residue injuries on the hands of A-1 connects him with
the weapon of the offence and therefore to the murder of the deceased.
54. Learned counsel for A-1 submitted that the request by the IO to PW-24
to give an opinion on the fire arm injuries was received by PW-24 on 10th
May, 2011 at 3 pm whereas in his opinion he states "victim has produced for
physical examination on 9th May, 2011 and swabs of the forearm (right)
dorsal aspect of the both hands are taken". Mr. Soni asked the Court to
carefully peruse the date „9th May, 2011‟ written in this document titled
„opinion‟ (Ex.PW-24/B). According to him, that date appeared to have been
inserted subsequently thus making the entire document of doubtful validity.
55. The Court finds that in the cross-examination of PW-24 no question was
asked of him about the above seeming contradiction viz., that the request for
his opinion was received by him on 10th May 2011 whereas A-1 was
produced before him for collection of swabs on 9 th May, 2011. In the
absence of any cross-examination on this aspect, the contention of the
learned APP that this could be a genuine mistake of PW-24 writing the
wrong date i.e. 10th May, 2011 instead of 9th May, 2011 appears plausible.
The fact of the matter is that there was no need for PW-24 to fabricate the
evidence in this regard. The swabs taken from the gunshot injuries on the
hands of A-1 did test positive for gunshot residue in terms of the report of
the FSL. These documents are not shown to have been manipulated.
56. It was then contended by learned counsel for A-1 that the chain of
custody for the swabs to finally reach the FSL has not been satisfactorily
explained by the prosecution. In other words, the handing over of the swabs
with the seal of the hospital to the IO, his depositing them in the malkhana
and then taking it from the malkhana to the FSL has not been proved.
57. While these could be termed as lapses in the investigation, they do not,
in the considered view of the Court, affect the credibility of the evidence of
the prosecution taken as a whole. The FSL report notes the receipt of the
parcel bearing the seal of AIIMS. There was no opportunity for tampering
with such seal. Therefore, the objections raised by learned counsel for A-1
in this regard require to be rejected.
Cases cited by counsel for A-1
58. Mr. Soni placed reliance on the decision in Deepak Chadha v. State
(decision dated 20th January, 2012 of this Court in Crl. A. No. 138/1999).
That was a case based on circumstantial evidence. It was held there that the
mere seizure of blood stained clothes and recovery of the possible weapon
of offence would not by itself be sufficient to sustain the charge of murder.
In the present case, however, these two are not the only circumstances which
have been proved against the accused and therefore the decision is
distinguishable on facts.
59. The next decision relied upon is the one in Mukeem v. State (NCT of
Delhi) (decision dated 21st September, 2012 in Crl. A. No. 123/2012) in
which it was inter alia held that the recovery of a knife from an open place
six days after the incident would render such recovery suspicious. In the
present case the recovery of the firearm was within a few hours of the arrest
of the accused. It was less than 24 hours after the occurrence. Also, this is
not the only circumstances in the present case which stands proved against
the accused.
60. The decision in Arun @ Khadak Singh v. State (decision dated 5th
August, 2010 in Crl. A. No. 1052/2009) was relied on to submit that it was
unlikely the both accused would remain in the vicinity of the place where
the murder took place. Each case turns on its own facts. In the present case it
is possible that the accused were under a delusion that they would not be
apprehended and therefore chose to remain in and around the same area.
Clearly the decision is distinguishable on facts.
Role of A-2
61. Turning now to the role played by A-2, Mr. Javed Alvi, learned counsel
appearing on his behalf, sought to urge that there is nothing to show that A-2
was actually involved in the commission of the crime except some exchange
of calls with the deceased.
62. As already noticed, PW-6 in her statement to the police (Ex.PW-6/BA)
spoke of a quarrel between the deceased and A-2 a few months prior to the
incident over A-2 accusing the deceased of stealing his mobile phone. She
also in her previous statement to the police spoke of the deceased being
unhappy with PW-6 having permitted A-2 to stay with them in their room.
63. Learned counsel for A-2 drew attention to the testimony of PW-6 where
in her cross-examination she states as under:
"I had not stated to the police that Inderjeet had requested me to
live in my house for about 10-15 days. I had not allowed accused
Inderjeet to stay in my house. I had not stated to the police that
Inderjeet and Vikas had come to my house on 08.05.2011 to call
my son at about 6.30pm. I had stated to the police in my
statement that before that at about 5.30pm, accused Inderjeet had
called on my mobile phone and the same call was received by my
son Lalit. It is incorrect to suggest that no such call was received
on my mobile phone which was being heard by my son Lalit."
64. Mr. Alvi also referred to the confrontation of PW-6 with her previous
statement and what has been noted in the transcript by the trial Court which
reads as under:
"I had stated to the police in my statement that accused
Inderjeet had called my son outside the house on 08.05.2011 at
about 6.30pm (Confronted with statement Ex.PW6/DA, where
it not so recorded). I had stated to the police that when Inderjeet
and Vikas had come to my house on 08.05.2011 at about
6.30pm, my son told me that he was coming within 10-15
minutes(Confronted with statement Ex.PW6/DA, where it not
so recorded). I had told the IO in my statement that Inderjeet
and Vikas were standing outside my house. I had not stated to
the IO that I had inquired from Inderjeet as to where Vikas was
as I had also seen him in the company of my son and Inderjeet.
I had not stated to the IO that Inderjeet had replied to me that
Vikas was also injured and sustained injury to his hand and how
he could take Lalit to hospital. I had stated to the police that
lnderjeet had taken some of his belongings and left my house
saying that he was going to hospital (Confronted with statement
Ex.PW6/DA, where it not so recorded). I had stated to the IO
that police had come to me at my house at about 6.00am on
08.05.2011 (Confronted with statement Ex.PW6/DA, where the
time has not been mentioned specifically)."
65. There appears to be some mistake in what has been recorded by the trial
Court about certain statements not being found in Ex.PW-6/DA. A careful
perusal of Ex.PW6/DA in fact shows to the contrary. It appears to the Court
that PW-6 was subjected to avoidable confusion by counsel for the defence
in her cross-examination. In fact she stated to the police that A-2 had
requested her that he may be permitted to live in her house. She further
stated that she had allowed him to stay in the house. She also did tell the
police that A-1 and A-2 had come to her house at around 6.30 pm.
Statements to the contrary were elicited from her in her cross-examination
without actually drawing her attention to her previous statement. This shows
that she was confused. However, it cannot be said that she was being
untruthful.
66. What is plain is that PW-6 was misled. Subsequently, when she was
confronted with her previous statement, it turned out that she had in fact
stated those very things which counsel was suggesting that she had not. In
sum, but for the confusion created in the mind of PW-6 by counsel for the
defence, PW-6 actually deposed in Court more or less what she had told the
police earlier (Ex.PW-6/DA). PW-6 was, therefore, both a truthful and a
reliable witness.
67. Contrary to what is submitted by Mr. Alvi, the role of A-2 in the crime
was as pivotal as that of A-1. While it was A-1 who wielded the fire arm, the
instigation for the murder appears to be at the instance of A-2. It is he who
bore a grudge against the deceased both on account of the false accusation
against the deceased stealing his mobile phone and over the deceased
resenting PW-6 allowing A-2 to stay at their place.
68. At this stage, a reference should also be made to the evidence of Smt.
Chanderwati Tokas (PW-8) who was a landlady of the house which A-2 had
taken on rent. She confirms that he took away some of his belongings from
the rented room just one day prior to 8th May, 2011. This corroborates PW-6
stating that he had come to leave some belongings in her house.
69. The conduct of A-2 also points to his guilt, as correctly concluded by the
trial Court. His being constantly in touch with both the deceased and A-1
has been proved by the CDRs. PW-6 calling him at around 1.10 am to
enquire about the deceased is also confirmed by the CDR. He is coming to
the house of PW-6 at an odd hour and then misleading her by saying that the
deceased has met with an accident indeed points to his guilt. With both A-1
and A-2 simply denying all the circumstances, even those which stood
conclusively established by the forensic and medical evidence, the guilt of
both of them stands proved by the prosecution beyond reasonable doubt.
Conclusion
70. The circumstances discussed by this Court as well as by the trial Court
do form a complete chain with each of the links in the chain being
conclusively established by the prosecution. Those circumstances taken
cumulatively unmistakeably point to the guilt of both the accused.
71. Consequently, the Court finds no merit in either of the appeals. They are
accordingly dismissed. The bail bonds and the surety bonds furnished by
A-2 stand cancelled. He is directed to be taken into custody forthwith. The
trial Court record be returned together with a certified copy of this judgment.
72. A copy of this judgment, and a soft copy of the paperbook, also be sent
by the Registry through a Special Messenger forthwith to the Secretary,
Delhi State Legal Services Authority (DSLSA) to inquire into whether and
what compensation, the legal representatives (LRs) of the deceased victim
might be entitled to in terms of the Victims‟ Compensation Scheme framed
under Section 357 A Cr PC. The amount, if any, found payable should be
disbursed to the LRs without delay. This entire exercise be completed by the
Secretary DSLSA preferably within three months from today.
S. MURALIDHAR, J.
VINOD GOEL J.
OCTOBER 30, 2018
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