Crl. A. No.677/2010 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A. No.0677/2010 % Date of Decision: 24.11.2010 Manoj Kumar …. Appellant Through Mr.I.A.Alvi, Advocate for the appellant Versus State (NCT of Delhi) …. Respondent Through Mr. Lovkesh Sawhney, APP for the State CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR.JUSTICE S.L.BHAYANA 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. The appellant has challenged his conviction in the above noted appeal in Sessions Case No.119 of 2007 arising from FIR No.95 of 2007, under Section 302 of Indian Penal Code read with Sections 25/54/59 of the Arms Act, PS Nangloi, by the judgment dated 3rd April, 2010 and his sentence by order dated 6th April, 2010 to life imprisonment along with a fine of Rs.5,000/- for offences punishable under Section 302 of Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for 6 months. Crl. A. No.677/2010 Page 2 of 32 2. The brief facts as contended by the prosecution are that on 1st February, 2007 at about 10:45 pm the appellant after an altercation with Ujaghar Singh who was running an STD Booth in front of House No.C-16/1, Street No.14 on the back side of Raja Public School, Nihal Vihar, Delhi fired a shot at him. The sister of the deceased, namely Laxmi with whom the deceased was living, on hearing the altercation came out and witnessed firing of the shot by the accused on deceased Ujaghar Singh. 3. The sister of the deceased, Mrs.Laxmi raised alarm and also chased him but the appellant succeeded in fleeing. The injured younger brother of Mrs.Laxmi was taken by her along with her brother-in-law, namely, Sh.Samarjit to Sanjay Gandhi Memorial Hospital, Delhi where he was declared brought dead. 4. The case of the prosecution is that on receiving the information a DD No.27 was recorded in the Roznamcha by the duty officer on 1st February, 2007 which was forwarded to PW17, ASI Joginder Pal for enquiry and he went to the place of incident along with PW11, Constable Balwan Singh. On reaching the spot i.e. the premises of PW1, Mrs. Laxmi, PW23, Sub Inspector Jai Prakash was also found along with PW14, Constable Khem Chand. Since the injured brother of Mrs. Crl. A. No.677/2010 Page 3 of 32 Laxmi, namely, Ujaghar Singh had already been removed to Sanjay Gandhi Memorial Hospital, Delhi. PW23,SI Jai Prakash along with PW17, ASI Joginder Pal and Constable Balwan Singh went to Sanjay Gandhi Memorial Hospital, Delhi and left Constable Khem Chand at the spot. On reaching the Sanjay Gandhi Memorial Hospital, Delhi, it transpired that Ujaghar Singh had already died. His dead body was shifted to mortuary. Mrs. Laxmi was taken back to her house after she received news of the death of her brother. At her house, Sub Inspector Jai Prakash made an endorsement in DD No.27 and sent the Rukka for registration of FIR and a case under Section 302 of Indian Penal Code was registered on 2nd February, 2007 with Police Station Nangloi. 5. From the information culled and on the basis of investigation, appellant was apprehended and he allegedly confessed to the crime. On the basis of his disclosure statement, Katta (local fire arm) which was used in committing the offence was recovered with one empty shell. At the instance of the accused/appellant, one live cartridge was also recovered which was seized by the prosecution and sent to FSL for analysis. 6. The charge sheet was filed against the accused/appellant and the case was committed to the Court of Sessions as the offence was punishable under Section 302 of Indian Penal Code and was triable Crl. A. No.677/2010 Page 4 of 32 exclusively by the Sessions Court. A charge under Section 302 IPC was framed against the appellant to which the appellant did not plead guilty and claimed trial. During the trial the prosecution examined 27 witnesses. The investigating officer of the case, Inspector Ishwar Singh, could not be examined as he died on 10th March, 2008 during the pendency of the case. The statement of the appellant was also recorded under Section 313 of Criminal Procedure Code in which he denied his involvement and stated that he had been falsely implicated, however, he did not opt to lead any evidence in defence. The Sessions Court after considering the pleas and contentions and the evidence on record of the case acquitted the appellant of the charge under Section 25/54/59 of the Arms Act, however, convicted the appellant under Section 302 of Indian Penal Code and awarded life imprisonment along with a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for 6 months by orders dated 3rd April, 2010 and 6th April, 2010 which are challenged by the appellant in the present appeal. 7. Learned counsel for the appellant relied on depositions of various witnesses on record and has contended that the prosecution has failed to make out the offense against the appellant. Referring to information received at Police Control Room, it is submitted that information was received on 1st February, 2007 between 2316 hours and 2315 hours. Relying on Ex.DX which is a Form 1 of Police Control Room, it is stated Crl. A. No.677/2010 Page 5 of 32 that the Police Van had reached the spot at 11.18 p.m. on the same day and the report was received from the Police Van at 11.25 p.m. 8. The learned counsel for the appellant Mr.I.A.Alvi has asserted that when PCR had gone to the spot Mrs.Laxmi, the sister of the deceased, had told that her brother had received injuries due to gunshot and he was removed to Sanjay Gandhi Memorial Hospital, however, she had not told as to who had injured her brother. Referring to DD No.27 dated 1st February, 2007 which has been exhibited as Ex.PW22/A, the learned counsel contended that while intimating the police by wireless on the basis of which the said DD entry was made, it was not intimated as to who had injured the deceased. 9. The learned counsel for the appellant has also relied on MLC which was exhibited as Ex PW5/A dated 1st February, 2007 showing the time of arrival as 11.45 p.m., stipulating that the deceased was brought dead in casualty and he was brought by Smt.Laxmi wife of Sh. Sant Ram, sister of the deceased. According to the learned counsel for the appellant, even before the concerned doctor at Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, it was not disclosed by Smt. Laxmi, sister of the deceased that her brother had been shot by the appellant. Emphasis has also been laid on the fact that MLC Ex.PW5/A Crl. A. No.677/2010 Page 6 of 32 only stipulates one incised wound on the right side of the neck of the dimension 6 cm x 1.5 cm whereas post mortem report vide Ex PW13/A, dated 2nd February, 2007 bearing No.90 of 2007 which was performed at 2.30 p.m. by doctor Vijay Kumar showed three external injuries which are as follows:- 1. Dislocation of upper central incisor tooth. 2. Incised looking lacerated wound on ® side of Neck just below mastoid region of size 6cm x 1.5cm x cavity deep. Abraded caller of size 0.5 cm present all around the circumference. Margins were inverted. (ENTRY WOUND OF FIREARM) 3. Laccerated wound on the back of neck just below posterior hair line 0.5cm x 0.5cm x cavity deep margins are inverted. (EXIT WOUND OF FIREARM) 10. According to the learned counsel for the appellant till 12.06 am the only thing disclosed was that deceased was injured and had died of a sharp weapon, as the name of the appellant was not disclosed. According to him in fact the name of the appellant was introduced later on and he has been implicated falsely. 11. The learned counsel for the appellant after referring to the testimonies of PW-1, Smt.Laxmi wife of Sh.Santram (sister of deceased) and PW-25, Shri Vishnu has contended that even in the examination- in-chief of said two witnesses there are contradictions and in view of the contradictions in the depositions of said two witnesses who are the Crl. A. No.677/2010 Page 7 of 32 alleged eye witnesses, the appellant cannot be convicted as these witnesses are not reliable. According to him whereas PW-1, Smt. Laxmi stated that when she heard the altercation with her younger brother, she came out of her house and saw accused firing gun shot on the neck of her brother whereupon she raised alarm and even chased the accused along with one Sh.Vishnu, PW-25, however, he succeeded in running away and thereafter she with her brother-in-law Sh.Sawarjit Prasad, PW-4 shifted the injured brother in Rickshaw to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi whereas Sh.Vishnu PW-25, deposed that he was standing outside his shop when a boy came and the deceased started talking with that boy. Thereafter, he left for the house and later on a tenant living near his house told him that someone had fired at Ujaghar Singh and the appellant present in the court was the person who was talking with the deceased Ujaghar Singh on that date. He also deposed that he had identified the appellant before the police as the person who was talking with the deceased Ujaghar Singh. The said witness was declared hostile and was cross- examined by the Additional Public Prosecutor as well as by the counsel for the accused. On the basis of these testimonies, it is contended that on account of inherent contradictions in the statements of these two witnesses who are alleged to be eye witnesses, no reliance can be placed on them to implicate the appellant. Crl. A. No.677/2010 Page 8 of 32 12. The learned counsel for the appellant next contended that merely on the basis of live cartridges and a fired cartridge allegedly recovered along with Katta at the instance of the appellant which recoveries have been disbelieved by the trial court, in absence of the pellet or, bullet which had allegedly killed the deceased, not being recovered by the respondent, the appellant cannot be linked with the commission of the offence. Relying on recovery memo Ex. PW-14/A, it is submitted that blood at the scene of the crime was lifted with the help of cotton and blood stained earth was also lifted and sent for investigation. Reference has also been made to Ex.PW-14/B another recovery memo in respect of a cap which was lying at a distance 5 to 6 ft from the place of incident. According to the plea of the learned counsel for the appellant since the recoveries have been disbelieved, on the basis of blood recovered from the place of incident and the blood stained cap found near the place of incident, the appellant cannot be linked with the commission of offense. The only evidence on which the prosecution has relied on is the testimonies of PW-1, Smt.Laxmi and PW-25, Sh.Vishnu which are unreliable and therefore, there is no cogent evidence to implicate the appellant and consequently, the impugned orders dated 3rd April, 2010 and 6th April, 2010 are liable to be set aside and the appellant is entitled to be set free. Crl. A. No.677/2010 Page 9 of 32 13. On behalf of the appellant, it is also contended that no motive as alleged by the prosecution has been established. According to the prosecution, there was a quarrel some time back between the appellant and 3-4 boys which was deposed by PW-21, Head Constable Sh.Rajinder. From the testimony of the head constable Sh.Rajinder, according to the learned counsel, what transpires is that there had been a quarrel between the Sh.Mukhram and Raju and an alleged misbehavior of Sh.Mukhram with head constable Rajinder. Sh.Mukhram and Raju are not connected in any manner to Smt.Laxmi or any other family member of the deceased Ujaghar Singh and consequently on the basis of the alleged quarrel on 31st December, 2006 and 1st January, 2007, it could not be held that the appellant had any grudge against the deceased Ujaghar Singh so as to shoot and kill him. 14. According to appellant, PW-25 was also a suspect and even the sister of the deceased was not known to Sh. Vishnu. In the circumstances it is contended that it was the case for conducting the tests identification parade which was not done by the respondent and therefore the identification in the court by the sister of the deceased was valueless. According to appellant if PW-25 was also a suspect and was kept in the police station for one or two days, which fact has also been admitted by the said witness, there was nothing to let him off and implicate the appellant. Crl. A. No.677/2010 Page 10 of 32 15. Emphasis has also been laid on the allegation that there was insufficient light at the scene of the crime and the sister of the deceased could not have seen and identified the appellant. It is contended that PW-2, Shri Prem Singh in his cross examination had admitted that one could not identify any person in the street after the sunset unless the said person was known. The plea of insufficiency of light was also advanced on the basis of the testimony of PW-16, HC Vijay the photographer who deposed that he took photographs with the help of an emergency light. Deposition of PW-7, SI Mahesh Kumar was also referred to deposing that that there was no bulb on the electric pool in the street and when the said witness had reached there the bulb on the roof was not on. Referring to PW 7/A it was asserted that the distance between the place where the deceased was allegedly fired upon and the sister of the deceased was 750 cm and only with the alleged roof light, she could not have seen the accused and identified him. Reliance was also placed on (2005) 10 SCC 614, Hem Raj & ors Vs State of Haryana where it was held that in absence of any evidence regarding the light available at the place of occurrence, version of the eyewitness that he had seen the accused attacking the deceased from a distance of 30 feet at night with only a tube light 20 feet away was not relied on. The said precedent has also been relied on by the appellant in support of his plea Crl. A. No.677/2010 Page 11 of 32 that FIR was not immediately lodged after the deceased was declared brought dead at the hospital. 16. According to learned counsel for the appellant, PW-25, Shri Vishnu had turned hostile and there are contradictions between the testimonies of the sister of the deceased and the said witness. In the circumstances on the basis of the sole testimony of the sister of the deceased whose statement was also recorded one day after the incident, without corroboration on material aspects with reliable evidence, the accused/applicant cannot be convicted. The conviction of the appellant is also sought to be set aside on the ground that all the incriminating facts were not put to the accused under section 313 of Crl.P.C. 17. The leaned counsel contended PW-25 Vishnu had deposed against the appellant and that prior to incident on 1st February, 2007 the appellant had come to the spot which facts were not put to the appellant under Section 313 of the Criminal Procedure Code. It was also asserted that medico legal report and post mortem report are contradictory inasmuch as medico legal report stipulated that injuries were from a sharp edged weapon whereas the post mortem report does not indicate so and there is apparent and inherent inconsistency between the two. Reliance was placed on 2009 (4) JCC 2544, ‘Sanjay Crl. A. No.677/2010 Page 12 of 32 Kumar Gupta v. State of Govt. of NCT’ holding that if the testimonies of the witnesses are inconsistent on crucial aspects, such testimonies become unreliable and it would not be proper to sustain conviction on the testimonies of the such witnesses. 18. Per contra, the learned Additional Public Prosecutor, Mr.Lovkesh Sawhney has contended that the case was registered at the instance of Sub Inspector and has relied on DD-27 dated 1st February, 2007 which was exhibited as Ex.PW-22/A. Referring to the said DD entries stipulating the relevant facts, the learned Additional Public Prosecutor has contended that it also categorically stipulated that PW-1, sister of the deceased was found in unconscious stage when the police officials had visited the residence. The said DD entry also incorporated that Laxmi Devi, sister of the deceased on coming to know about the death of her brother could not bear the news because of which her relatives had taken her back to the house as she had become unconscious. In the circumstances, it is asserted that the appellant cannot draw any benefit on account of any delay in recording the FIR. The incident of PW-1 becoming unconscious is also apparent from the testimony of PW- 1 Laxmi Devi deposing categorically that on hearing about the death of her brother, she had became unconscious and she regained consciousness next day in the morning and she narrated the whole incident at 11/12 am when the police personal came to her house. Crl. A. No.677/2010 Page 13 of 32 According to the learned Additional Public Prosecutor, the presence of the sister at home with whom the deceased was living at about 10.45 pm was natural and it cannot be inferred or contended that such a witness has been introduced. 19. Refuting the plea of the learned counsel for the appellant that at the place of incident there was no sufficient light and Smt. Laxmi could not have seen the deceased and the accused from a distance of 750 cms., it is contended very emphatically that on the basis of the record, it has been established that there was sufficient light. PW-1 Smt.Laxmi Devi had categorically deposed in her statement recorded on 24th April, 2008 that though there was no street light but outside the houses there were lights. She had stated that there was light installed outside her house and a light was also installed outside the house of the neighbour which is also apparent from the site plan exhibited as Ex.PW-7/A. 20. The learned Additional Public Prosecutor contended that to PW-1, sister of the deceased, it was not suggested on behalf of the appellant that the lights were not installed outside her house and outside the houses of the neighbors and there was no sufficient light so as to see the accused and the deceased. Rather a suggestion was given on behalf of the appellant that the bulb installed outside the house was of zero Crl. A. No.677/2010 Page 14 of 32 watt which was not sufficient to see the accused and the deceased. Learned counsel for the appellant had also submitted that though Head Constable Sh.Vijay, PW-16 had deposed that he had taken the photographs between 12.45 pm to 1.10 pm in emergency light, however, this fact does not negate that at the time of the incident at 10.45 pm, there was not sufficient light for the PW-1 to see the assailant and the appellant firing at her brother because the intensity of light required to see someone is different than the intensity of light required for taking photograph. It is contended that though the light may not be sufficient for taking photograph but the lights outside the houses were sufficient to see the appellant at the distance of 750 cms. where PW-1 was standing where she had come after hearing the altercation between her brother and appellant. 21. Regarding the plea of the appellant that motive has not been established by the prosecution, it is contended that since there are two eye witnesses to the incident, the motive becomes redundant. Mr.Lovkesh Sawhney submitted that even if PW-25 Sh.Vishnu had become hostile, however, his testimony to the extent it has supported the version of the prosecution can be relied on. The said witness has stated that the appellant was the person who was talking with the deceased on that date. He had further stated that he was standing outside the shop of the deceased at 10.45 pm and at that time her Crl. A. No.677/2010 Page 15 of 32 sister came to call him and thereafter he came back to his house and later on he came to know that the deceased had been fired upon. This part of the testimony of hostile witness PW-25 establishes that the appellant was present on 1.2.2007 at 10.45 pm and even PW-1 had come outside the house and thus corroborates the deposition of PW-1 to this extent. 22. Relying on testimony of PW-2, Sh.Prem Singh, it is contended that testimony of said witness also establishes the presence of PW-1 Smt. Laxmi Devi, sister of the deceased. According to the learned Additional Public Prosecutor, the said witness has also supported the deposition that he had heard a gun being fired and later on the brother in law and the PW-1, Smt.Laxmi had shifted the deceased to the hospital where he had died. According to the learned Additional Public Prosecutor the examination in chief of PW-2 was recorded on 25th April, 2008 when he categorically deposed on oath that he had heard the gun shot, however, in the cross-examination which was recorded about seven months later, he had become hostile and had denied that he had heard a gunshot or that he had seen any gunshot injury. He rather deposed that one could not identify any person in the street after sun set unless the person was known. Crl. A. No.677/2010 Page 16 of 32 23. The learned Additional Public Prosecutor has sought affirmation of conviction and sentence of the appellant on the ground that if eye witnesses’ account is trust worthy then it would not require any further corroboration and even if recovery of country made gun (Katta) is not connected to the crime as the recovery of Katta had not been believed by the Trial Court yet eye witnesses’ account will be sufficient to inculpate the appellant. 24. Regarding not putting the alleged relevant facts to the appellant under Section 313 of the Criminal Procedure Code, it is asserted by the learned Additional Public Prosecutor that though all the relevant facts were put to the appellant, however, in case some facts have not been put to him, the appellant had to show that not putting the particular facts have gravely prejudiced him. 25. This Court heard the learned counsel for the parties in detail and have also perused the trial court record specially the testimonies on record and the documents proved. The appellant was charged with causing death of Ujagar Singh by opening fire on his person from the country made pistol on 1st February, 2007 at about 10.45 pm at Gali Sareaam, near the house No.C-1/1, Chandan Vihar, Nihal Vihar, Delhi within the jurisdiction of police station Nangloi. According to the prosecution, there are two eye witnesses to the incident of firing the gun Crl. A. No.677/2010 Page 17 of 32 by the appellant on the neck of Ujaghar Singh, brother of PW-1. The two eye witnesses are Smt.Laxmi PW-1, sister of deceased Ujaghar Singh and PW-25 Sh.Vishnu, Merely because one of the eye witnesses i.e. Smt.Laxmi, PW-1 is the sister of the deceased, will not make her testimony unreliable or such that it would require corroboration. The Supreme Court in Rajesh Kumar v. State of H.P., AIR 2009 SC 1 had held that there is no proposition in law that relatives are to be treated as untruthful witnesses. It has been further held that on the contrary reason has to be shown for the plea of