Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 1 of 31 * HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 18.04.2009 Judgment delivered on: 27.04.2009 + Crl. Appeal No.974/2006 ZAHID @ BALLU @ SALEEM ..... Appellant Through : Mr. K.B.Andley, Sr. Adv. with Mr. M.Shamikh, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. Appeal No.1005/2006 SHAHID @ LAMBU ..... Appellant Through : Mr. K.B.Andley, Sr. Adv. with Mr. M.Shamikh, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. Appeal No.29/2007 SAHIL @ ISRAEL ..... Appellant Through : Ms. Neelam Grover, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. Appeal No.30/2007 ABID & ANR. ..... Appellants Through : Ms. Neelam Grover, Advocate & Mr. Zaved Hashmi, Advocate VERSUS STATE .....Respondent Through : Mr. Pawan Sharma, Advocate Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 2 of 31 CORAM :- HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? PRADEEP NANDRAJOG, J. 1. Appellants Zahid @Ballu @Salim, Shahid @Lambu, Sahil @Israel, Abid and Pawan were charged with the offence of having entered into a conspiracy to commit murder of Udaivir and in pursuance thereof murdering Udaivir on 2.7.2000 at about 6:05 PM on the public street opposite House No.B-231 Old Seemapuri. Additionally, Sahil was charged with the offence of possessing a country made revolver without a licence i.e. the offence punishable under Section 25 of the Arms Act as also for the offence of having used the said firearm to cause firearm injury on Udaivir i.e. the offence punishable under Section 27 of the Arms Act. Shahid was charged with the offence of possessing a khukhri i.e. for the offence punishable under Section 25 of the Arms Act as also for the offence of having used the khukhri to cause injury to Udaivir i.e. for the offence punishable under Section 27 of the Arms Act. Abid and Pawan were charged with the offence of possessing a knife i.e. the Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 3 of 31 offence punishable under Section 25 of the Arms Act as also for the offence of having used the knife to cause injuries to Udaivir i.e. for the offence punishable under Section 27 of the Arms Act. 2. The case of the prosecution was that Zahid @Ballu @Salim, Shahid @Lambu, Sahil @Israel, Abid and Pawan entered into a conspiracy between the period 30.6.2000 to 2.7.2000 along with Furkhan for murdering Udaivir and in pursuance to the said conspiracy waylaid Udaivir when he was on the public street at B-Block Old Seemapuri, Sahil fired a shot at him from a country made pistol. In an attempt to save himself Udaivir started running and was chased by all accused. Shahid who was armed with a khukhri and Abid and Pawan who were armed with a knife each inflicted blows with their respective weapons on Udaivir who fell on the ground due to the assault. Two more shots with a country made pistol, one each by Sahil and Zahid were fired at him. The body of Udaivir which was lying face down was tossed over by Shahid who removed the mobile phone of Udaivir and all the accused fled. 3. It may be noted at the outset that Furkhan could not be arrested and hence his name was shown in column No.2 in the charge-sheet which was filed. 4. The process of law was set into motion when a telephonic message was received at the police control room by Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 4 of 31 Const. Asha PW-5 at 6:03 PM on 2.7.2000 about a man being shot near a school at B-Block, Old Seemapuri. The information was relayed to the police station Seemapuri as also to a PCR Van stationed at Apsara Border, a place nearby where the offence took place. ASI Balbir Singh PW-13 in-charge of the PCR Van received the wireless message from the police control room at 6:04 PM. At the police station the relayed message from the police control room was received at 6:05 PM as recorded in the DD Entry No.21A, Ex.PW-22/A. 5. ASI Balbir Singh PW-13 rushed to the place of the occurrence and found a male lying injured and a lady weeping next to him. He removed the injured to GTB Hospital along with the lady. Around the same time, since information had been received at the police station, SI Arun Kumar PW-24 accompanied by Const. Sohan Pal PW-16 left the police station for the spot where the incident had taken place and on reaching there were informed that the person injured had been removed in a PCR Van to GTB Hospital. Before the two could move on to the hospital, the Addl. SHO of the police station viz. Inspector Y.K.Tyagi PW-27 accompanied by Const. Rishiraj PW-17 and Const. Satender Kumar PW-25 reached the spot. SI Arun Kumar PW-24 and Const. Sohan Pal PW-16 remained stationed at the spot and the other police officers proceeded to GTB Hospital. Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 5 of 31 6. At the hospital Inspector Y.K.Tyagi PW-27 learnt that the injured, Udaivir Sharma who was admitted at 6:20 PM had died at around 7:30 PM. He obtained a copy of the MLC Ex.PW- 15/A of the deceased which recorded three gunshot wounds and various stab wounds and lacerated wounds on the person of the deceased. Thereafter, on the copy of DD No.21A which copy he had taken along with him from the police station made an endorsement Ex.PW-27/A recording therein that no eye-witness could be located and that the crime team and a photographer should be sent to the place where the offence took place. The said endorsement was transmitted through Const. Satender PW- 25 to the police station at 8:15 PM on 2.7.2008 for the FIR to be registered. At the police station the FIR Ex.PW-22/B was registered for the offence punishable under Section 302 IPC. 7. He seized the body and sent the same to mortuary for autopsy. 8. Returning to the spot Inspector Y.K. Tyagi PW-27 picked up blood, blood control earth and sample earth as recorded in the seizure memo Ex.PW-16/A. He found a bullet which he seized as recorded in the seizure memo Ex.PW-16/B, sketch whereof Ex.PW-16/D was drawn by him. He also picked up a used empty cartridge from the spot as recorded in the seizure memo Ex.PW-16/C, sketch whereof Ex.PW-16/E was Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 6 of 31 drawn by him. He prepared a rough site plan Ex.PW-27/C noting therein the spot where he saw a pool of blood and from where the blood and blood control earth was seized as also the spots where the bullet and the empty cartridge respectively were lifted by him. 9. Const. Rajesh Kaushik PW-18, a photographer reached the spot and took six photographs Ex.PW-18/A-1 to Ex.PW-18/A-6; negatives whereof are Ex.PW-18/A-7 to Ex.PW- 18/A-12. 10. At the mortuary Dr.N.K.Aggarwal PW-14 conducted the post-mortem of the deceased and prepared the report Ex.PW-14/A recording therein the injuries which he noted, being as under:- 1. Firearm entry wound of 2 x 1.8 cm obliquely present over the left upper and outer aspect of face in front of left ear. Outer margin of the injury was 5 cms away from the outer angel of left eye, blackening was present all over the wound in inverted margins, the injury had gone upwards, backwards and inwards at a distance of 16.5 cms in the brain tissue and a distorted blood was recovered with fracture of skull. The injury has made a lacerated wound of 5 x 1 x 0.5 cm over middle back of head. 2. Firearm entry wound over head 5.1 cm was present over the outer, upper, middle aspect of right side of neck with tatooing present inner area of diameter 16 cms around over face and head. The injury had gone upward, inward and forward in between the muscles of neck and cutting the structure of neck Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 7 of 31 and came out by making of wound of 1 x 1 cms over outer middle front of left side of face. 7 cms out to left angle of mouth. 3. A firearm injury wound of 2.5 cmX2 cm over left side of back of chest. Firearm injury wound of 2.5 x 2 cms present over inner upper aspect of left side of back of chest just 0.5 cms away from midline, the injury had entered the left pleural cavity by fracturing the 2nd and 3rd rib at costovertebral junction. It had entered the upper lobe of left lung. Multiple pellets are recovered from the left pleural cavity and entangled in between the left lung tissue. Parts of empty cartridge case are also recovered from left side of pleural cavity. 4. Stab wound of 3 x 1 cm obliquely present over the upper outer aspect of back of left side of chest in post axillary line. The injury has gone upwards, inwards and forwards and entered into the left side of pleural cavity and ended by making a cut into the upper lobe of left lung. 5. Incised wound of 3 x 0.7 cm vertically present over upper middle aspect of left side of front of chest. Lower margin of the injury is 6 cm above the left nipple. 6. Incised wound of 4 x 0.7 cm vertically present 1 cm above the injury No.5. 7. Stab wound of 3.5 x 1.2 cm vertically present over lower, inner front of chest in the middle. The injury has gone just in between the muscles for a distance of 3.8 cm. 8. Stab wound of 1.5 x 0.5 cm obliquely present over right shoulder, 5 cm inner in the tip of right shoulder. The injury has gone inwards and slightly downwards for a distance of 6 cm in the neck, cutting structure in between. 9. Stab wound of 2 x 1.5 cm present over the upper middle front of left side of abdomen. The injury has gone upwards and inwards for a distance of 4.5 cm and came out in the inner middle front of abdomen by making a wound of 2 x 1.2 cm. Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 8 of 31 10. Stab wound of 2.5 cm x 1 cm obliquely present over inner upper aspect of gluted region. The injury has gone upwards and inwards for a distance of 5 cm in between the muscles. 11. Lacerated wound of 2.5 x 0.6 x 0.5 cm obliquely present over right middle aspect of head 4.5 cm away and upwards from the tragus of right ear. 11. The cause of death opined was the firearm injuries caused to the internal organs affecting the brain and the lung. 12. Along with the post mortem report Dr.N.K.Aggarwal handed over an underwear, a kurta, a pyjama which he had removed from the dead body as also blood sample of the deceased which he had taken on a gauze. Bullet pellets and a deformed bullet which he had recovered from the left side of the pleural cavity of the deceased, which were seized by Inspector Y.K.Tyagi vide seizure memo Ex.PW-25/A. 13. What appeared to be a blind murder on 2.7.2000 resulted in a break through the next day when Shahjad PW-6 and Kabir PW-8, residents of the area came into contact with the investigating officer and disclosed to him that the deceased had been attacked by the appellants and Furkhan. They narrated the role played by each accused. Their statements under Section 161 Cr.P.C. were recorded on 3.7.2000. 14. Shahid @Lambu, Sahil @Israel and Abid were apprehended by Inspector Y.K.Tyagi, SI Arun Kumar, Const. Satender and Const. Rishiraj on 8.7.2000 from Khajuri Red Light Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 9 of 31 as recorded in the arrest memos Ex.PW-27/G, Ex.PW-27/J and Ex.PW-27/H. Their personal search yielded a khukhri Ex.P-4 from the left dub of Shahid which was seized vide seizure memo Ex.PW-17/D, sketch Ex.PW-17/A whereof was drawn by Inspector Y.K.Tyagi. The personal search of Sahil @Israel resulting in recovery of a loaded country made pistol Ex.P-3 from the right dub which was seized vide seizure memo Ex.PW-17/E, sketch Ex.PW-17/B whereof was drawn by Inspector Y.K.Tyagi. A button actuated knife Ex.P-5 was recovered from the pocket of Abid which was seized vide memo Ex.PW-17/F, sketch Ex.PW- 17/C whereof was drawn by Inspector Y.K.Tyagi. 15. The three were interrogated and their confessional statements were recorded. We need not note the contents of confessional statements inasmuch as the same are completely inadmissible in evidence as they admit of guilt. We note that no recovery were affected nor was a fact discovered by the police pursuant to the said statements made by the three. 16. Continuing with their efforts to apprehend the remaining accused viz. Pawan, Zahid and Furkhan, the investigation and related activities continued. 17. On 12.7.2000 SI Mukesh Kumar PW-10, a draftsman, was taken to the spot by Inspector Y.K.Tyagi under direction of whom the site plan to scale Ex.PW-10/A was prepared Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 10 of 31 identifying points ‘A’, ‘B’ and ‘C’ where blood sample was lifted; the cartridge was found and the spot where the bullet was found. 18. On 13.7.2000 the khukhri and the knife which were recovered from Shahid and Abid respectively were sent for opinion to Dr.N.K.Aggarwal PW-14 who, vide opinion Ex.PW-14/B opined that injuries 5, 6 and 7 noted in the post-mortem report were possible with the khukhri and that injuries 4 to 10 were possible with the knife. 19. On 12.9.2000 the country made pistol recovered from the person of Sahil along with the bullet recovered from the spot; the deformed bullet recovered from the pleural cavity of the deceased; the pellets recovered from the body of the deceased; the empty cartridge recovered from the spot where the crime took place were sent for ballistic opinion and as per report Ex.PW-30/A it was opined with reference to striation characteristics that both bullets were fired from the country made pistol and that the cartridge recovered from the spot had also been fired through the country made pistol. The report further records that the country made pistol has a bore of 0.315 inch and that the cartridge recovered could be fired from the said pistol. It was also opined that the two bullets i.e. the one recovered from the body of the deceased and the one Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 11 of 31 recovered from the spot corresponded to the bullet of 0.315 inch cartridge. 20. Three accused viz. Pawan, Zahid and Furkhan being not apprehended till 17.9.2000, a charge-sheet was filed against Shahid, Sahil and Abid. They were charged with the offence of having conspired along with co-accused to murder the deceased and in furtherance thereof to have murdered the deceased. They were also charged under the Arms Act as noted in para 1 above. 21. Before their trial could begin Zahid was apprehended in another case and on said information being received Inspector Narender Pal Singh PW-31, on 18.12.2000, obtained his custody by moving an appropriate application in the Court of the learned Metropolitan Magistrate. He was interrogated and his statement Ex.PW-31/B was recorded by Inspector Narender Pal Singh. We are not noting the contents of his statement as they are confessional of guilt and hence inadmissible in evidence. We note that no recovery was affected pursuant to the statement made by Zahid. 22. Pawan was arrested on 24.12.2000 as recorded in his arrest memo Ex.PW-29/E. His personal search yielded a knife from the right side pocket of his pant which was seized vide seizure memo Ex.PW-28/B, sketch Ex.PW-28/A was drawn by SI Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 12 of 31 Anand Prakash. 23. Needless to state supplementary charge-sheets were filed after Zahid and Pawan were arrested. 24. As noted herein above, Furkhan could not be arrested and till date remains a proclaimed offender. 25. We are not noting the testimony of all the witnesses who were examined at the trial, save and except the testimony of Shahzad PW-6 and Kabir PW-8 as also the testimony of ASI Balbir Singh PW-13 and the testimony of the initial investigating officer Inspector Y.K.Tyagi PW-27. 26. But, before noting their testimony we may note that during arguments of the appeal learned counsel for the appellants including Ms.Neelam Grover, learned counsel for Sahil conceded at the Bar that in view of the report Ex.PW-30/A of the ballistic expert viz. Shri K.C.Varshney PW-30, it stands conclusively established that the bullet which was recovered from the spot and the bullet which was recovered from the body of the deceased stand proved to be fired from the country made pistol which was found by the police on the person of Sahil when he was arrested. We hasten to add that learned counsel for Sahil urged during arguments in appeal that the country made pistol was planted on Sahil. We shall be dealing with the submission after noting the deposition of the four witnesses viz. Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 13 of 31 the two alleged eye-witnesses and ASI Balbir Singh PW-13 and Inspector Y.K.Tyagi PW-27. 27. PW-6 Shahzad deposed that he was a resident of F- 16 Shahid Nagar and on 2.7.2000 at around 5:30 PM he was present at B-Block Old Seemapuri and saw Sahil @Israel also a resident of Shahid Nagar, firing a shot at Udaivir who was present in front of his room. On receiving the bullet injury Udaivir started running and was chased by 5/6 persons one of whom i.e. Shahid was having a khukhri in his hand and another named Abid was having a knife in his hand. Both inflicted blows with the khukhri and the knife on Udaivir who fell on the ground. Sahil again shot Udaivir. Zahid, another person present, shot with a desi katta at the temporal region of Udaivir. Shahid turned Udaivir upside as he was lying face down and removed the mobile phone. Pawan was present at the spot and was having a knife in his hand. He deposed that several public people gathered at the spot and he left the spot as he became perplexed being a poor man. The next day his statement was recorded by the police. 28. On being cross-examined Shahjad PW-6 denied that he used to treat the deceased as his brother. He denied that any criminal case was pending against him. He denied that it was within his knowledge that Udaivir was a police informer. Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 14 of 31 The witness was cross-examined with reference to the sequence of events to which he had deposed and nothing of substance has been brought out to discredit his statements in examination-in-chief. 29. Kabir PW-8 resident of House No.D-113, New Seemapuri deposed that he was present at B-Block, Mochi Wali Gali, Old Seemapuri at 5:30 PM on 2.7.2000. The accused and Furkhan were present. He knew them as they used to visit the office of the deceased where he was employed. Sahil fired a shot at Udaivir which hit him on the shoulder at which Udaivir started running and all accused as also Furkhan started chasing Udaivir. Shahid gave blows to Udaivir with a khukhri and Abid gave blows with a knife as a consequence whereof Udaivir fell on the ground. Sahil fired a second shot on Udaivir. Zahid also fired a shot thereafter on the temporal region of Udaivir. Thereafter, Shahid up turned the body of Udaivir and removed his cell phone and thereafter all accused ran away. He saw Shahzad present at the spot. Several people have gathered. That he did not speak there due to fear. 30. Kabir PW-8 was cross-examined. Nothing much of substance has been brought out in the cross-examination except that his statement that Shahid had removed a mobile phone from the pocket of Udaivir was not disclosed by him as Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 15 of 31 per his statement recorded by the police under Section 161 Cr.P.C. 31. ASI Balbir Singh PW-13, the in-charge of the PCR van which had reached the place of the occurrence when the police control room flashed the message to the van deposed that on 2.7.2000 he along with the PCR van were stationed at Apsara Border and received a message from the police control room at 6:04 PM informing about a shooting incident at B-Block New Seemapuri. He reached the spot and saw a person lying on the ground and a lady present by his side who was weeping. People had gathered at the spot. He took the injured named Udaivir to GTB Hospital. One empty cartridge lying near the body of the injured was lifted by him and at the hospital when the SHO of the police station met him he handed over the same to the SHO who instructed him to go back to the spot and that he did so and kept the empty cartridge at the same place where he had picked it up. He deposed that the wife of the injured had accompanied in the PCR van. He identified the cartridge Ex.P-1 as the one he had lifted and kept back at the spot. 32. On being cross-examined he deposed that the cartridge was lying about one foot away from the body of the injured Udaivir. 33. Inspector Y.K.Tyagi PW-27 deposed that on 2.7.2000 Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 16 of 31 he was posted as the Addl.SHO PS Seemapuri and received DD No.21A when he was on patrolling duty and reached the place where the offence took place where he found SI Arun Kumar and Const. Sohan Pal. He proceeded to GTB Hospital and collected the MLC Ex.PW-15/A of Udaivir who was declared dead at 7:30 PM. He made the endorsement Ex.PW-27/A on copy of the DD entry 21A and sent the same through Const. Satender for FIR to be registered. 34. He deposed to the seizures affected from the spot and the recovery memos prepared in relation thereto as also the sketches drawn by him. 35. On being cross-examined he admitted that Munni, wife of the deceased met him at the hospital. He admitted that the head constable of the PCR van had lifted the used cartridge from the spot and had put it back at the same spot and it was thereafter he seized the same. We note that he could not answer the questions pertaining to the topology of the public street where from he claimed to have lifted the blood, the cartridge, blood, blood-stained earth and earth control sample. 36. The accused led defence evidence and examined Asan Mohd. DW-1 who just deposed that on 2.7.2000 when he was taking lunch at 2:00 PM he heard noise in the gali and on peeping through the jaali of his door he saw three outsiders Crl. A.Nos.974/06, 1005/06, 29/07 & 30/07 Page 17 of 31 quarreling. Shahid DW-2 deposed that on 8.7.2000 five police personnel came to his house and picked up Abid. He deposed that Abid and he had gone to Jammu on 1.7.2000 and had returned to Delhi on 4.7.2000. Jamila PW-3 deposed that six years back at 4:30 PM she saw 10-20 people running towards Shahid Nagar. Shahjahan DW-4 deposed that on 3.7.2000 police officers came to her house and took away her son Shahid. Shahid DW-5 deposed that Zahid is his brother and was in jail in connection with some offence under the Arms Act. 37. Pertaining to the witnesses of the defence suffice would it be to record that we fail to understand the purpose of the deposition of DW-1, DW-3 and DW-5. 38.