Crl.A.No.605/2009 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: April 20, 2010 Judgment delivered on: July 02,2010 + CRIMINAL APPEAL NO. 605/2009 ARVIND KUMAR ....APPELLANT Through: Mr. K.K.Manan, Sr. Advocate with Mr. Sangram S. Saron, Advocate Versus THE STATE (N.C.T. OF DELHI) .....RESPONDENT Through: Mr. Lovkesh Sawhney, APP CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J. 1. Appellant Arvind Kumar has preferred this appeal against the impugned judgment dated 08.07.2009 of the learned Additional Sessions Judge in Sessions Case No.119/2005, FIR No.476/94 under Section 302 IPC, Police Station I.P. Estate holding him guilty and convicting him for the offence of murder punishable under Section 302 IPC as also the order on sentence dated 10.07.2009 in terms of which the appellant has been awarded sentence of rigorous Crl.A.No.605/2009 Page 2 of 27 imprisonment for life and to pay a fine of Rs.25,000/-, in default whereof he shall undergo SI for further period of six months. 2. Briefly stated, the case of the prosecution is that on 28.12.1994 SI Shashi Bala was posted as Duty Officer in the Police Station I.P. Estate. Constable Mohd. Rashid (hereinafter referred to as the “deceased”) was on duty as Munshi Roznamacha. On the said day at about 5:45 pm, the deceased came to the reporting room and started talking on the telephone with someone. After 5-7 minutes, SI Shashi Bala (PW12) advised him not to keep the official telephone engaged as some urgent phone call may come. The deceased did not pay heed to the advice and continued to talk on telephone. At about 5:55 pm, SI Shashi Bala requested the appellant, who was posted as a Guard at the Police Station to ask the deceased to desist from continuing with his phone call. The appellant, on the request of SI Shashi Bala, came to the duty room and put his hand on the shoulder of the deceased and advised him to put an end to his call. The deceased, however, playfully pushed him while holding the muzzle of SAF Carbine of the appellant. The appellant tried to extricate his carbine and in the process, the chain with which the SAF was tied with the belt of the appellant got entangled with the trigger, which led to firing of five rounds that hit the deceased. ASI Ram Singh, who was present at the spot, Crl.A.No.605/2009 Page 3 of 27 immediately rushed the deceased to LNJP Hospital where he was declared brought dead. 3. PW19 Inspector Inder Singh, Additional SHO, Police Station I.P. Estate, who was on arrangement duty at Vikas Bhawan, was summoned through wireless. On reaching the Police Station, he noticed blood lying in the reporting room. Five empty cartridges were found there, three were lying inside the reporting room and two empty cartridges were lying near the door of the reporting room. One empty automatic semi carbine and 15 live cartridges were lying on the table of the Duty Officer, four fire bullets were also lying in the interrogation room adjacent to the reporting room. He recorded the statement of SI Shashi Bala Ex.PW12/A, on basis of which formal FIR was registered at the Police Station under Section 304A IPC. Inspector Inder Singh got the spot of occurrence photographed. He also prepared the rough site plan Ex.PW19/B, on the basis of information supplied by SI Shashi Bala. He took into possession the above referred incriminating articles found in the duty room. 4. After recording the statement of SI Shashi Bala, Inspector Inder Singh went to the LNJP Hospital and collected the MLC of the deceased. At the Hospital, Duty Constable Balbir Singh handed over the personal belongings of the deceased to him, which were taken Crl.A.No.605/2009 Page 4 of 27 into possession vide memo Ex.PW19/C. Inspector Inder Singh also recorded the statements of the witnesses, arrested the appellant and deposited the case property in the Malkhana. 5. On 29.12.1994, Inspector Inder Singh conducted inquest proceedings at the mortuary of LNJP Hospital and prepared the inquest form Ex.PW19/E. He also sent the dead body for post mortem and after the post mortem, dead body was handed over to Shaukat Ali, father of the deceased. 6. In the meanwhile, Shaukat Ali, father of the deceased, filed a complaint dated 29.12.94 to DCP, Central followed by a complaint dated 01.12.95 to the Commissioner of Police wherein he expressed the suspicion that his son Mohd. Rashid had been murdered in furtherance of a well-planned conspiracy. In view of the said complaint, investigation of this case was transferred to SIT Section of Crime Branch and the investigation was taken over by PW27 Inspector Ved Prakash, who recorded statements of witnesses during further investigation and got the scene of crime reconstructed and again photographed by the experts of CFSL, Chandigarh. Opinion of experts of CFSL, Chandigarh was obtained which ruled out the possibility of accidental fire from the SAF carbine. Crl.A.No.605/2009 Page 5 of 27 7. We may note, at this stage, that in his complaint dated 29.12.94, Shaukat Ali, father of the deceased alleged that his son had been murdered, but he did not express his suspicion against the appellant. However, in his subsequent complaint dated 01.12.95 Shaukat Ali, father of the deceased disclosed that prior to the incident, he was told by the deceased that he happened to see the appellant and SI Shashi Bala in a compromising position due to which they were annoyed with him and they had threatened to kill him. He also alleged that the deceased told him that Shashi Bala, SI had also made objectionable advances to seduce him, which he repelled. 8. On the basis of the fresh evidence collected in the investigation conducted by the SIT, Crime Branch, the offence under Section 304A IPC was converted into the offence under Section 302 IPC and the appellant was charge sheeted and sent for trial. SI Shashi Bala was shown in Column 2 of the charge sheet for the reason that sufficient evidence as regards her involvement in the crime was not there. 9. The learned Additional Sessions Judge, on consideration of the charge sheet, charged the appellant for the murder of the deceased punishable under Section 302 IPC. The appellant pleaded not guilty to the charge and claimed trial. Crl.A.No.605/2009 Page 6 of 27 10. In order to bring home the guilt of the appellant, the prosecution has examined 30 witnesses in all in support of its case. However, the witnesses material for the adjudication of this appeal are PW1 ASI Siya Ram, PW3 Nazir Ahmed, PW5 Zahir Ahmed, PW12 Shashi Bala, PW13 Head Constable Karim Baksh, PW17 SI Ram Singh, PW18 Saeed Ahmed, PW22 Shaukat Ali, PW24 Ms. Asha Dhir and PW25 Satbir Singh Sherawat. Before adverting to the rival contentions of the parties, we feel that it would be useful to have a look over the testimony of said witnesses. 11. PW1 ASI Siya Ram was Duty Officer, police station I.P.Estate on 28.12.1994 from 10:00 am onwards. He has stated that in the said morning, he took one SAF Carbine, 20 live cartridges and a chain from Constable Kartar Singh after he completed his sentry duty and handed over change of these items to the appellant Constable Arvind, who took over the sentry duty from Constable Kartar Singh. He also stated that at 12:05 pm on 28th December, 1994, he was relieved as Duty Officer by SI Shashi Bala (PW12) as he was directed by the SHO to go to the press area for official duty. When he returned back to the police station at about 06:20 pm, he came to know that Constable Mohd. Rashid has died due to firing by the appellant. Crl.A.No.605/2009 Page 7 of 27 12. PW3 Nazir Ahmed is a witness of motive for the crime. He has stated that about 15 days prior to the occurrence, he was present at the house of his friend Mohd. Saeed, who is uncle of the deceased. He stated that on that day, deceased Mohd. Rashid told his uncle Mohd. Saeed (PW18) that he by chance had seen Shashi Bala (PW12) and the appellant behaving in an indecent manner at the police station and because of that they were annoyed with him and they had even threatened to kill him. PW18 Mohd. Saeed is the uncle of the deceased. He has also deposed to almost similar effect by stating that 13-14 days prior to his death, the deceased, who was the son of his brother-in-law, told him that he had by chance, seen the appellant and SI Shashi Bala (PW12) behaving in an indecent manner and because of that, they were nursing a grudge against him. PW18 further stated that the deceased also told him that SI Shashi Bala (PW12) had even tried to behave in an indecent manner with him but he resisted her advances by telling her that she was a senior officer and was not expected to behave in such a manner. 13. PW22 Shaukat Ali is the father of the deceased. He has testified that his son Abdul Rashid (deceased) was on leave from 17 to 21st December, 1994. During his leave, he stayed with him in the village. The deceased, during the short stay, had told him that he had by chance seen the appellant and SI Shashi Bala (PW12) in a compromising position at the police station and reprimanded them Crl.A.No.605/2009 Page 8 of 27 that they should not indulge in such indecent activities in the office. He further stated that his son also told him that SI Shashi Bala (PW12) had even made indecent advances towards him which he resisted and told her that she being a senior should not behave in such a manner. 14. PW13 Head Constable Karim Baksh, as per the case of the prosecution, reached at the spot of occurrence immediately after the firing. He has testified that on 28.12.1994, he had gone to the office of ACP Karol Bagh in connection with some departmental inquiry. He returned back to the police station I.P.Estate at about 05:15 pm. When he reached at the police station, he saw the appellant at the gate on sentry duty. SI Shashi Bala (PW12) was standing near the appellant and appellant was either putting or removing the rounds in the magazine of SAF. When he enquired from SI Shashi Bala as to why she was standing at the gate, she responded that she was just talking with the appellant. Thereafter, he went to the room of Duty Officer where he saw the deceased talking on telephone. He requested the deceased to record his arrival at the police station in the relevant daily diary. The deceased told him that he was busy in making a call as his mother was to be operated upon in RML Hospital on the next day and requested him to make the arrival entry in the register himself. The witness further stated that then he went to make his arrival entry in the Crl.A.No.605/2009 Page 9 of 27 „roznamcha‟ (Daily Diary). While he was recording his arrival entry, he heard a cry and sound of firing of bullet at the same time. On hearing the cry “Mujhe bachao”, he rushed towards Duty Officer room. On reaching there, he found the deceased lying on the chair and blood oozing from his neck, back and his hand. Other staff members including Constable Ram Kishore and ASI Ram Singh also came there. He further stated that Constable Arvind Kumar and SI Shashi Bala (PW12) were also present in the room and the appellant Arvind was saying “Madam, aapne ye kya karwa diya, mere toh bache barbad ho jayenge” and upon this, SI Shashi Bala (PW12) replied “Tum phikr mat karo, main bhi tumhare saath hun, court tak tumhara saath doongi”. He stated that at that time, SAF Carbine was in the hand of the appellant. ASI Ram Singh and Constable Ram Kishore rushed the deceased to JPN Hospital. As per PW13, at the spot of occurrence, the SAF and cartridges were seized by Head Constable Rajender Singh from the appellant. On instructions of senior officers, the spot was got photographed and investigation proceeded. PW13 identified the SAF Ex.P1, bullets Ex.P2 and barrat cap Ex.P3. 15. PW12 Shashi Bala was posted as Duty Officer, Police Station I.P. Estate at the relevant time. She has testified that on 28.12.1994 at about 5:45 pm, the deceased, who was on duty as Roznamacha Munshi, came to her room and started making a phone call while Crl.A.No.605/2009 Page 10 of 27 sitting on a chair across the table. He continued with the call for 5 or 7 minutes. She advised him to cut short his call and not to keep the phone of duty officer‟s room engaged but the deceased continued with his phone call. At about 5:55 pm, she requested the appellant who was posted as Sentry to ask the deceased to put down the phone. On this, the appellant came to the duty room and asked the deceased to leave the phone. The deceased jokingly caught hold of the SAF of the appellant. When the appellant tried to extricate the SAF from the grip of the deceased, in that scuffle the SAF got entangled with the chain attached to the belt of the appellant. As a result, accidental fire from the SAF took place and the deceased was hit with the bullets on his neck and chest. PW12 Shashi Bala further stated that the firing occurred accidentally because of negligence of the appellant who had not kept the SAF in proper mode. According to this witness, one public witness Naseem and Inspector Sherawat of CISF were also present at the time of incident and they helped in shifting the deceased to the hospital. She has proved her statement which she made at the spot to the Investigating Officer Inder Pal as Ex.PW12/A. 16. PW17 SI Ram Singh (retired) is a hostile witness and he has not supported the case of prosecution. In his cross-examination on behalf of the appellant, he stated that on 28.12.1994 at about 05:45 pm, he was passing through the reporting room of police station I.P. Estate. He saw the deceased making a telephone call and the Crl.A.No.605/2009 Page 11 of 27 appellant was telling him to put down the phone. He further stated that the deceased brushed aside the suggestion of Constable Arvind (appellant) and there was a scuffle and all of a sudden, bullets were fired from SAF of Constable Arvind and hit the chest and neck of the deceased. He further stated that he stopped a private vehicle at the road and in the said vehicle, he took the deceased to the hospital where he was declared dead. 17. PW25 Satbir Singh Sherawat, Assistant Commandant, CISF Unit has also supported the version of SI Shashi Bala (PW12) regarding the accidental firing in the scuffle resulting in fatal injuries to the deceased. 18. PW24 Ms. Asha Dhir, Assistant Director, Ballistic, CFSL is another important witness. She examined the weapon offence and has proved her reports Exhibits PW24/A to Ex.PW24/E. In her cross- examination, she explained that she had received five queries from the Investigating Officer during the period with effect from 13.01.1995 till 20.12.1995. In her opinion, the possibility of simultaneous cocking and pressing of trigger of 9 mm Carbine, registration No. 15220710 i.e. the SAF after entangling with the same chain resulting in fire is ruled out. This implies that according to the report, the theory of accidental fire is not plausible. Other Crl.A.No.605/2009 Page 12 of 27 witnesses examined by the prosecution are formal in nature, who participated in the investigation at one stage or the other. 19. The appellant, when examined under Section 313 Cr.P.C. claimed that he was innocent and explained that the deceased had sustained fatal injuries because of accidental firing of the SAF due to scuffle and snatching of the SAF by the deceased. In his defence, the appellant examined Sh. V.N.Sehgal, Ex-Director (CFSL), CBI, New Delhi (DW1). He stated that despite taking precautions, accidental firing can take place and a possibility of accidental firing increases if the fire arm gets entangled in buttons of the shirt or a chain etc. This witness, however, stated that since he had not examined the fire arms, he was not in a position to say if the report of Ex.PW24/E is totally incorrect. For the same reason, he showed his inability to give an opinion as regards the reason for pushing of lever of the gun. 20. Before we advert to the rival contentions, we note that it is undisputed that on the fateful day the appellant was on Sentry duty at P.S. I.P. Estate and the weapon of offence i.e. SAF Carbine was in the charge of the appellant. It is also undisputed that the deceased sustained bullet injuries as a result of fire from the aforesaid SAF Carbine in the duty officer room of the Police Station and as a result of those injuries, he expired. As per the prosecution, the appellant has deliberately fired the SAF carbine resulting in fatal injuries to the Crl.A.No.605/2009 Page 13 of 27 deceased, whereas the defence of the appellant is that he, on the asking of PW12 SI Shashi Bala, had gone to the duty room to advise the deceased to disengage the telephone but the deceased caught hold of the muzzle of his carbine and when he tried to extricate the carbine from the hold of the deceased, in the scuffle the chain which was attached to his belt got entangled with the SAF Carbine resulting in accidental firing of 5 bullets from the SAF carbine, which bullets hit the deceased and the injuries proved to be fatal. 21. Learned counsel for the appellant has assailed the impugned judgment on the ground that it is based upon improper appreciation of evidence. He took us through the evidence on record and the impugned judgment and pointed out that the learned Additional Sessions Judge has returned the finding of the guilt of the appellant on the basis of circumstantial evidence, ignoring the fact that PW12 SI Shashi Bala and PW25 Coy. Codr. S.S. Sherawat of CISF who, as per the case of the prosecution, had witnessed the occurrence, did not support the theory of intentional firing and categorically stated that the SAF Carbine of the appellant was accidentally fired during the scuffle when the appellant was trying to extricate his SAF Carbine from the grip of the deceased. Learned counsel further submitted that perusal of the impugned judgment would show that the learned Trial Court, while returning the finding of guilt, has been influenced by the opinion of ballistic expert PW24 Asha Dhir Crl.A.No.605/2009 Page 14 of 27 Ex.PW24/E wherein she has ruled out a possibility of accidental fire from the SAF Carbine in this case. Learned counsel submitted that the learned trial Judge has committed a grave error in accepting said report, ignoring the eye witness account given by PW12, SI Shashi Bala and PW25 Coy. Codr. S.S. Sherawat as well as the testimony of DW1 V.N. Sehgal who retired as Director CFSL and who stated that accidental fire from a firearm is possible if it gets entangled with button of a shirt or chain etc. Learned counsel submitted that other factors which contribute to the finding of conviction are the motive for crime purportedly established by the testimony of PW3 Nazir Ahmed, PW5 Zahir Ahmed, PW18 Saeed Ahmed, PW22 Shaukat Ali and the evidence of Res-gestae provided by the testimony of PW5 Zahir Ahmed and PW13 Karim Baksh. Learned counsel submitted that even the aforesaid evidence of motive and Res-gestae is not reliable. 22. Learned counsel for the State, on the other hand, has argued in support of the impugned judgment and submitted that the learned Trial Court has rightly relied upon the testimony of the witnesses of motive as well as res-gestae and the expert opinion, which conclusively establish the guilt of the appellant. Thus, he has urged us to dismiss the appeal. Crl.A.No.605/2009 Page 15 of 27 23. In order to appreciate the contention of the appellant that the learned Additional Sessions Judge has committed a grave error in giving circumstantial evidence precedence over the eye witness account of the occurrence given by SI Shashi Bala and Inspector S.S. Sherawat, one must keep in mind the background of this case. Admittedly, this is a case in which a Police Constable was killed in the Police Station due to firing from SAF Carbine, which was in the charge of the appellant. The question for determination is whether the firing took place accidentally or deliberately? The FIR in this case was registered in the first instance on the basis of the statement of SI Shashi Bala under Section 304A IPC. Perusal of the FIR Ex.PW4/A reveals that it was registered at 07:12 pm on 28.12.94 vide DD No.15A on the basis of rukka Ex.PW19/A sent to Duty Officer by the first Investigating Officer Inder Singh at 07:10 pm. The incident, admittedly, took place at about 05:55 pm within the Police Station. As per the testimony of the Additional SHO, Inspector Inder Singh, on the fateful evening at about 06:00 pm, on receipt of the wireless message, he reached at the Police Station where he recorded the statement of SI Shashi Bala. In the cross-examination, he stated that he reached the Police Station within 3/4 minutes of the receipt of wireless message. This means that he must have reached the Police Station by sometime around 6:05 pm. That being the case, it remains unexplained as to why it took almost an hour for Crl.A.No.605/2009 Page 16 of 27 registering the FIR despite of the fact that the incident had taken place within the Police Station in the duty officer room. This unexplained delay is clear indication that statement Ex.PW12/A of PW12 is a result of deliberation to save the police from the embarrassment which the news of commission of murder within the police premises would have caused. 24. Further, the story put forth in the statement of SI Shashi Bala Ex.PW12/A is belied by the testimony of PW13, Head Constable Karim Baksh. He has categorically stated that on 28.12.94, he returned back to Police Station I.P. Estate after attending an inquiry in the office of ACP Karol Bagh and he noticed the deceased talking on telephone in the room of the duty officer. He also stated that he requested the deceased to record his arrival entry in the daily diary. The deceased, however, told him that he was busy on telephone and requested him to go and himself make an entry of his arrival in the daily diary. Thus, he went to the room in which daily diary register was kept to make the entry and while recording the arrival entry, he heard the cry of Mujhe Bachao and firing of SAF. On this, he came to the duty officer room and found the deceased lying on the chair with bullet injuries. Appellant Arvind was saying to Shashi Bala “Madam aapne yeh kya karva diya, Mere to bache barbad ho jayenge” and on this SI Shashi Bala replied “tum phikr mat karo may bhi tumhare saath hu, court tak tumhara saath dungi”. From the Crl.A.No.605/2009 Page 17 of 27 above version of Head Constable Karim Baksh, the complicity of SI Shashi Bala in an effort to save the appellant is established. The above said utterance on the part of appellant Arvind Kumar, immediately after the occurrence, is a relevant fact under Section 6 of the Indian Evidence Act as a part of res-gestae and definitely points towards the guilt of the appellant. Not only this, the