Delhi High Court
Mukesh Lal vs State on 15 May, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15.05.2019
+ CRL. A. 562/2014
MUKESH LAL ... Appellant
VERSUS
STATE ... Respondent
+ CRL.A. 629/2014
DHIRAJ SOLANKI ... Appellant
VERSUS
STATE ... Respondent
+ CRL.A. 635/2014
CHANDGI RAM ... Appellant
VERSUS
STATE ... Respondent
+ CRL.A.715/2014
PRAMOD KUMAR SHARMA ... Appellant
VERSUS
STATE ... Respondent
+ CRL.A. 817/2014
NARENDER CHAUHAN ... Appellant
Crl. A.562 of 2014 and connected matters Page 1 of 16
VERSUS
STATE ... Respondent
+ CRL.A. 838/2014
MANOJ ... Appellant
VERSUS
STATE ... Respondent
+ CRL.A. 1636/2014
STATE ... Appellant
VERSUS
SUNIL CHAUHAN ... Respondent
+ CRL.A. 53/2015
STATE (GNCT) OF DELHI ... Appellant
VERSUS
CHANDGI RAM & ORS. ... Respondents
Advocates appeared in this case:
For the Appellants: Mr. Joginder Tuli, Mr. Ashu Kr. Sharma, Ms. Joshini Tuli & Ms.
Babita Rana, Advocates in Crl. A. 562/2014.
Mr. Ravi Nayak, APP for the State in Crl. A. Nos. 1636/2014 &
53/2015.
Mr. Bharat Dubey, Mr. Paul N. Prem & Ms. Divyansha Dubey,
Advocates in Crl. A. Nos. 629/2014, 635/2014,
Mr. Neeraj Bhardwaj, Advocate in Crl. A. Nos. 817/2014 &
838/2014.
For the Respondents: Mr. Joginder Tuli, Mr. Ashu Kr. Sharma, Ms. Joshini Tuli & Ms.
Babita Rana, Advocates in Crl. A. 1636/2014 & 53/2015.
Mr. Ravi Nayak, APP for the State in Crl. A. Nos. 562/2014,
629/2014 & 635/2014.
Crl. A.562 of 2014 and connected matters Page 2 of 16
Ms. Rajni Gupta, APP for the State in Crl. A. Nos. 715/2014,
817/2014 & 838/2014.
Mr. Neeraj Bhardwaj, Advocate for R- 4 & 5 in Crl. A. 53/2015.
Mr. Ashok Kr. Singh, Sr. Adv. with Ms. Nikita Batra, Ms. Mona
Tomar, Advs. for complainant/ victim.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE NAJMI WAZIRI
JUDGMENT
NAJMI WAZIRI, J.
1. These eight appeals impugn the order on conviction and sentence dated
23.04.2014 and 29.04.2014, respectively passed by the learned Additional
Sessions Judge 01 (East), Karkardooma Court, Delhi wherein the five
accused, the appellants in Crl.A. 562/2014, Crl.A.629/2014, Crl.A.
635/2014, Crl.A.838/2014 and Crl.A.817/2014, have been held guilty.
The order has acquitted one accused viz Sunil Chauhan, which decision
has separately been challenged in Crl.A.715/2014 filed by the father of
the deceased and Crl.A.1636/2014 filed by the State. The State (GNCT of
Delhi) has also filed an appeal against the quantum of sentence passed
against the five convicts which is subject matter of Crl.A.53/2015.
2. It is the prosecution‟s case that DD No. 69B was registered at P.S. Anand
Vihar on 30.09.2009 at 10.51 p.m. regarding gun shots having been fired
at Masih Petrol Pump, Anand Vihar, in which one person had sustained
injuries. ASI Ramesh Chand (PW36) alongwith Ct. Ashok Kumar (PW-
9) reached the spot, where they met the accused Mukesh. He informed
the policemen that 4-5 persons in a Honda City motor car bearing
registration number UP 16A 3510, had come to the petrol pump at about
10.00 p.m.; that they were evidently inebriated and one of them started to
relieve himself in front of „In and Out‟-- a convenience shop located
within the premises of the petrol station. Mukesh objected to the
urination; it led to a quarrel, which became a scuffle and then a fight; the
security guard at the petrol pump fired his gun five times; one of the
gunshots hit one of the visitors- Himanshu. He died of the gun shot
injury.
3. Vineet Sharma (PW5) made a complaint to the police stating that at
around 10 p.m. he, alongwith his friends Anikesh (PW1), Rahul (PW2),
Manoj (PW4) and Himanshu, went to the Masih Petrol Pump in their
Honda City car bearing no. UP 16A 3510. After the car was parked,
Himanshu started relieving himself against the wall adjacent to the „In
and Out‟ outlet. A man, later identified as Mukesh Lal- accused,
attempted to stop him, which led to an altercation between the parties.
PW-5, alongwith his three other friends came to help the deceased,
meanwhile the accused, Mukesh Lal called his employees, who started
beating Himanshu with a stick and chains. Accused - Mukesh Lal also
exhorted co-accused Chandgi Ram to fire at Himanshu. About 4-5 shots
were fired from a double barrel gun by co-accused Changdi Ram, one of
the shots fatally hit Himanshu in his armpit.
4. With the help of his other friends complainant PW-5, rushed Himanshu to
Pushpanjali Hospital, where he was declared brought dead by the
attending doctor. On the basis of the Medical Report (PW36) of the
attending doctor the police prepared a rukka (Ex.PW5/A), later an FIR
bearing no.433/09 was registered at P.S. Anand Vihar under sections
302/34, 323/34, 325/34 IPC. Charges were framed against accused
Chandgi Ram, Mukesh Lal and Dhiraj Solanki vide order dated
25.03.2010, to which they pleaded "not guilty" and claimed trial. A
supplementary Chargesheet was also filed, and Charges were framed
against the other co- accused Narender Chauhan, Manoj and Sunil
Chauhan vide order dated 01.06.2010, to which, these co-accused too
pleaded "not guilty" and claimed trial. Chandgi Ram was additionally
charged under section 30 Arms Act, 1959 on 25.03.2010 and also under
section 27 Arms Act, 1959 on 04.04.2013 to which he pleaded "not
guilty" and claimed trial.
Crl.A.562/2014, Crl.A.629/2014, Crl.A. 635/2014, Crl.A.838/2014 and
Crl.A.817/2014
5. The convicts have preferred these five appeals under section 374(2) of the
Code of Criminal Procedure, 1973, seeking inter alia the setting aside of
the orders of their respective conviction and sentences. They have
assailed the prosecution‟s story, which formed the basis for the
conviction.
6. The common ground of challenge of all five appellants is that although
they have not denied the factum of death of Himanshu by the fifth round
fired from a fire arm by co-accused Chandgi Ram, the cause for the
shooting is sought to be justified on the ground that the deceased,
alongwith PW-1, PW-2, PW-4 and PW-5 were accompanied by two other
persons on a motorcycle and had attempted to commit theft at the fuel
station and were firing indiscriminately. Resultantly, as a protective
measure, the guard viz. accused Chandgi Ram, stationed there, first fired
four rounds in the air to scare away the assailants, but when the deceased
tried to snatch the rifle from Chandgi Ram, the fatal round was fired,
hitting the deceased.
7. The learned counsel for Chandgi Ram, contends that the said appellant‟s
fifth round became fatal as it was fired only in the extreme and inevitable
circumstance when the deceased attempted to snatch the rifle from him
although the appellant had shown extreme restraint and prudence in first
firing four shots in the air to scare and chase away the aggressive lot of
them who were attempting to loot the petrol pump. It is argued that the
fact of close range fire has been proved from the testimony of PW-20,
wherein blackening and tattooing is shown to be present around the
deceased‟s wounds. However, this Court is not persuaded by the said
argument as the MLC and Forensic Report show otherwise; in the Post
Mortem Report, it is clearly stated that there is no blackening or tattooing
present around the injury wound. It is also clear from the Report that 15
pellets were recovered from the body of the deceased, but the „wad‟ was
not recovered from the body. In a close range gun-shot wound, generally
there is presence of blackening and tattooing, and most of the pellets and
the „wad‟ are recovered from the body; but in the present case it was not
so, therefore, it could safely be deduced that the gunshot was not
accidental or resulting from a close range gun-shot wound. In the
circumstances, contention of the appellant that the injury to the deceased
was accidental, is untenable.
8. The Appellant-Chandgi Ram has further challenged his conviction under
Section 27/30 of the Arms Act for carrying a double barrel gun from
Uttar Pradesh to Delhi without a valid license. It is argued that the
appellant was unaware of the fact that the license was fake, as he was
given this license by his lawyer in U.P. This however, is not a valid
ground of defence under the IPC or Arms Act. Moreover, there is no
complaint on record filed by the appellant against the lawyer, for
cheating, as claimed by the appellant. The learned counsel for the State
contends that a separate FIR No. 543/09 dt.14.12.2009 was filed against
the appellant in P.S. Anand Vihar under Section 420/466/467/468/471
IPC for carrying forged document. However, the appellant Chandgi Ram
was acquitted in the said case. The said ground will not sustain as that
FIR was for a different offence, which was independent of the present
case. A copy of that judgment is not part of the record; even otherwise
acquittal from charges of keeping and using forged document is distinct
from the use of arms without a valid license. It has been established that
the appellant-Chandgi Ram had no license to carry his double barrel gun
to Delhi, yet he possessed and used it, in contravention of the Arms Act.
Hence, the conviction and order on sentence under Sections 27 and 30 of
the Arms Act shall sustain.
9. It has also been established that none of alleged first four shots fired by
Chandgi Ram, hit any of the witness or any object or machinery installed
or fastened at the fuel station. Nevertheless, the fifth and the fatal round
was the cause of death of the deceased, which as per the depositions of
PW1, PW2, PW4 and PW5, was on the exhortation of the appellant
Mukesh Lal to Chandgi Ram to „take proper aim and fire at the person‟.
This fact remains shaken in the cross examination of all the four
witnesses.
10. The learned counsel for the appellant Mukesh Lal, relying upon the
testimonies of PW-7, DW-1 and DW-7 states that the appellant had an
alibi at the time of occurrence of the incident; he has also alleged that he
offered a bribe of Rs. 10 lakhs to PW-36-the Investigating Officer (IO) on
October 01, 2009 to close the matter, but the IO demanded Rs. 20 lakhs;
on his failing to pay, he was unnecessarily arrayed and implicated as an
accused in the present case. Appellant Mukesh Lal‟s alibi is based on the
testimony of PW6, PW7 and DW7. However, PW6 has neither supported
the prosecution case nor the case of the defence. DW7 was produced
before the Court as a chance and independent witness, but even after a
careful reading to his testimony no reasonable person could be persuaded
to accept the testimony, because even after witnessing the shooting
incident, the said witness did not approach the police or any authority and
was introduced by the defence at a much later stage. PW7 has not been
completely relied by the learned Trial Court, because the said witness
retracted his earlier statements made to the investigating officer,
furthermore, he was a colleague of appellant Mukesh Lal, and therefore
was deposing in favour of the accused. The reasoning is cogent and
logical and calls for no interference.
11. Appellant, Dhiraj Solanki, contends that he was not named in the FIR;
that he was illegally kept in police lockup by the police from October 19
to 25, 2009, during which his photographs were shown to PW1, PW2,
PW4 and PW5 to falsely implicate him; later when he failed to oblige the
police officer, he was arrested on 25.11.2009. DW2 and DW6 were
produced in defence by this appellant, to state that Dhiraj was carrying a
mobile phone number 9899005109 ever since 2007 and from this number
he had called DW6 while in police custody. Both DW2 and DW6 were
colleagues of Dhiraj at the Masih Fuel Station and there is all likelihood
that they would be communicating with each other in the normal course,
but it is not established that the said calls were made by Dhiraj while in
alleged illegal police custody. It has also come on record that DW2 did
not make any formal request to the service provider for change of the
mobile number. It is odd that despite being in illegal confinement but
being able to call DW6, niether Dhiraj Solanki nor DW2 or DW6
reported the illegal act of the police to any authority or senior official,
nor brought it to the notice of their employer. Dhiraj claimed to have
been illegally confined alongwith other employees of the Masih Fuel
Station namely Jitender and Vijay Pal. It is contended that the latter two
were conveniently let off when they obliged the police officers with
illegal gratification. None of the said persons were produced in their
defence. It is also noteworthy that the danda was recovered from the roof
of the fuel station at the instance of the appellant Dhiraj.
12. Similarly, appellants Manoj and Narender have contended that they were
arrested after some time and falsely implicated that the only role assigned
to them is that of assault, but they had not fired any gun shot. It is further
argued that there are inconsistencies in the testimonies of the
prosecution‟s eye-witnesses; that there was a sudden quarrel between the
appellant-Chandgi Ram and the deceased; that appellants Manoj and
Narender did not share a common intention to cause death of the
deceased. It is further contended that PW1, PW2 and PW4 failed to
identify the appellants in judicial TIP, whereas only PW5 was able to
identify both of appellants. However, it is on record from the testimonies
of PW1, PW2 and PW4 that PW5 Vineet Sharma, was closest to deceased
Himanshu, in the whole incident. PW5 had more opportunities to see the
culprits and assign specific role apropos each accused. PW5 has
identified appellant Narender as well Manoj in the judicial TIP and also
before the Court. PW1, PW2 and PW4 have identified the appellants in
the Court only. Since each accused was assigned specific roles by the
four witnesses and their testimony has been consistent. There was thus,
no denying the involvement of the five accused in the alleged incident.
13. In their deposition, all the four witnesses had identified all the six accused
in the Court. The Ld. Trial Court found consistency in the depositions of
the four witnesses i.e. PW-1, PW-2, PW-4 and PW-5 and they remained
unshaken even after lengthy cross examinations which took place on
various dates spanning some months.
14. Correspondingly, the Post Mortem Report proves the time of death to be
around 11:15 pm. It noted six injuries and opined blunt assault before
death. The report further states that injury no. 1 and 5 are caused by blunt
force impact. Injury no.3 is caused by some sharp pointed object. Injury
no. 2 and 4 are imprint injuries caused by blunt objects like belt and
chain, etc. These injuries correspond to the testimonies of the four
witnesses that the accused were armed with deadly weapons namely knife
like object, broken glass bottle, danda, chain, belt, etc. The alleged
stick/danda was recovered from the roof of the fuel station at the instance
of appellant Dhiraj and the pieces of broken bottle was recovered by the
Investigating Officer.
15. PW49, Assistant Director, Ballistic, FSL Rohini proved the Ballistic
Report establishing that the pellets corresponded to gunshot no.1 from the
same rifle seized from appellant Chandgi Ram.
16. The appellants never stepped into the witness box to explain the incident
of alleged theft by the deceased along with PW1, PW2, PW4, PW5 and
two other persons who had allegedly accompanied them on a motorcycle.
The accused had contended that there were other employees present at the
fuel station, but none of them were examined by them. The appellants
have also not explained as to which person attempted to loot the fuel
station and how much cash was looted from which employee, if any. The
details of telephone calls made to the PCR, registered at DD no. 59B,
conspicuously do not mention any looting of cash. Interestingly, between
30.09.2009 to 5.10.2009, the managers and owners of the fuel station did
not act reasonably to preserve the video camera footage of 30.09.2009 or
otherwise report their being looted, to any police official. Furthermore,
neither was any weapon recovered from the possession of PW1, PW2,
PW4 or PW5 nor was any empty cartridge recovered from the spot or
from the car of the aforementioned witnesses, which could have shown
that shots were fired by the deceased or his friends to facilitate dacoity or
looting.
17. Exhibit marked as Ex. PW21/C is the DD Entry made on the basis of
information received from PW33, who was the first police official to
reach the spot. He specifically records that there was a quarrel at the fuel
station, during which the security guard of the said station had fired gun
shots. There is no report of a theft or looting having taken place. The said
information was received at 11:16 pm. The incident of firing took place
between 10:30 pm - 10:45 pm and the above said information was
gathered within one hour. There was no delay in filing of the FIR by the
police which was filed on the basis of the aforementioned rukka. The plea
raised by the appellants that the police officials have deliberately turned
the case on its head under the influence of the father of the deceased, is
not tenable.
18. As regards the plea against presence of „common intention‟ it is settled
law that for section 34 IPC to be invoked, the prosecution must prove (a)
presence of common intention; and (b) active participation. From the
evidence on record, it is proven that the deceased was assaulted by some
sharp weapon, stick, chain, etc. The Post Mortem Report stated that
injuries on the body of the deceased were caused by sharp weapons,
sticks, chains, etc., apart from gunshot wound. The appellants have not
been able to satisfactorily explain the cause of the said injuries. Whereas,
the friends of the deceased, the eye witnesses to the incident, have been
able to cogently explain the said wounds, as a result of the assault by the
appellants in various ways.
19. It is a settled proposition of law that: i) common intention can be formed
at the spot of the crime, and ii) there need not be actual participation of all
present to inflict the fatal blow. The accused were armed with deadly
weapons and overpowered the deceased who was not armed. The use of
deadly weapons, the act of surrounding the car, dragging the deceased out
of it on the exhortation of accused Mukesh Lal to kill the deceased,
establishes the common intention shared by the accused. The ingredients
of section 34 IPC are therefore, clearly established against appellant
Mukesh, Dhiraj, Manoj and Narender, whereas appellant Chandgi Ram
had himself inflicted the fatal wound. The finding of the learned Trial
Court that section 34 IPC incorporates the doctrine of vicarious liability
and no overt act is required to be attributed to the individual accused
cannot be faulted. The accused were acting upon the exhortation given by
accused Mukesh Lal and as proved from the aforementioned testimonies,
the exhortations were directly aimed at eliminating the deceased. The
accused did not allow the deceased and his four friends to leave the spot
and exhorted Chandgi Ram to aim specifically and fire the gun.
20. The appellants also contend that the charge of culpable homicide even if
made out, will be covered under Exception IV of the section 302 IPC,
since there was no premeditation and the injury was caused due to a
sudden quarrel and in the heat of the moment; that the accused took no
undue advantage of the deceased. The Court is unable to accept the above
reasoning, because no doubt the incident had a genesis in a sudden
quarrel when tempers flared-up, however the accused armed themselves
with deadly weapons; while the deceased who was unarmed attempted to
escape from the place in his car but the accused dragged the deceased out
of his car, grievously assaulted, wounded and then shot him fatally. The
defence of Exception IV therefore, cannot be accorded to the appellants
in this case.
21. What emerges from the preceding discussion is that the testimonies of
eye-witnesses PW-1, 2, 4 and 5 are consistent and have remained un-
rebutted. The Supreme Court has held in a catena of judgments, that if the
testimony of an independent witness is cogent, consistent and
corroborative, there would be no cause to discredit the same. Apropos
inconsistencies between the TIP and identification of the accused in
court, what is to be seen is whether the accused was identified correctly in
court. Keeping in mind that the TIP exercise is for the benefit of the
police when conducting investigations; that a specific role has been
assigned to each of the five accused by the four eyewitnesses; that there
is no evidence on record to show that the deceased and his friends were
part of a bigger conspiracy to commit theft on the petrol pump; that the
gun-shot injury sustained by the deceased is opined to be not from a close
range; that there existed common intention amongst the accused to harm
the deceased as can be seen, by the use of chains and sticks to assault the
deceased and also accused Mukesh Lal exhorting co-accused Chandgi Lal
to "take proper aim and shoot the deceased" and that the deceased was
unarmed and not in a position to retaliate, the charges stood duly proved.
22. As a result of the discussion above, the present appeals are dismissed and
the conviction and sentencing order passed by the learned Trial Court is
upheld.
CRL.A.715/2014 AND CRL.A.1636/2014
23. These two appeals: one filed by the father of the deceased under section
372 Cr.PC and another filed by the State under section 378 Cr.PC are
against the acquittal order of the sixth accused, Sunil Chauhan, by the
learned Trial Court. The appellant has based his appeal on the premise
that Sunil Chauhan was absconding since the date of incident and non-
identification in the Test Identification Parade during investigation will
not diminish the credibility of identification done during the deposition in
the court. The grounds of appeal are that the eye-witnesses have clearly
identified respondent Sunil during their deposition in the court and have
deposed that Sunil held a chain in his hand while assaulting the deceased.
The fact that injuries caused by a chain were proved from the medical
report of PW17 and that the name of the respondent is present in the
record of attendance submitted by the Manager of the fuel station is proof
enough to show the respondent‟s presence on the date of incident.
24. On the basis of the records, the Court would note that although it has
been alleged that during the roll call/attendance, other employees also
were marked present at the fuel station on the date of incident, in addition
to the accused, but the mere presence of Sunil Chauhan at the fuel station
would not prove his participation in the alleged incident. It is also on
record that the present respondent was arrested by the Investigating
Officer after almost six months of the date of incident and was subjected
to TIP through PW1, PW2, PW4 and PW5, but, all the above four
witnesses failed to identify the said accused. Moreover, no weapon was
recovered from the respondent.
25. In view of the above discussion, the present appeals are dismissed and the
order passed by the learned Trial Court, apropos Sunil Chauhan is upheld.
CRL.A. 53/2015
26. The State filed this appeal under section 377 Cr.PC seeking enhancement
of sentence. The State has pleaded that the offence which was committed
was done in an extremely brutal manner so as to arouse intense and
extreme indignation of the community and in the given case it was an
inhuman and merciless act of murder which shocked the conscience of
the society. Based on the above grounds the appellant- State have prayed
for enhancement of sentence for the offence punishable under section 302
IPC from life imprisonment to death penalty and also enhancement of
sentence for the offence under section 325/34 IPC from rigorous
imprisonment for three years to seven years.
27. It is a settled principle of law that where the State pleads for capital
punishment it is the duty of the Court to weigh all the aggravating as well
as mitigating factors of each case. The aggravating factors in the present
case are that the deceased was a young boy in his early twenties, he was
unarmed, and was mercilessly beaten by deadly weapons on a trivial issue
and then killed. The mitigating factors on the other hand are that there
was no previous enmity between the parties, only a single shot was fired
at the deceased, despite the accused having 13 other live cartridges, and
that there is no criminal antecedent of any of the five accused. From the
above factors, the mitigating factors outweigh the aggravating factors and
therefore this case would not warrant capital punishment.
28. In view of the above, this Court finds no reason to interfere with the
impugned judgment and this Court is of the view that the punishment
awarded by the learned Trial Court is to be upheld as being just and fair.
Accordingly, Crl. A. No. 53/2015 is dismissed.
29. In the circumstance, all the appeals are without merit and are accordingly
dismissed.
NAJMI WAZIRI, J.
SIDDHARTH MRIDUL, J.
th
15 May, 2019
