Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 26th August, 2009 Judgment Delivered on: 1st September,2009 + CRL.A.885/2005 GHANSHYAM @ JAVED ...Appellant Through: Mr.Ranbir Singh Kundu and Mr.Rajiv Sirohi, Advocates. Versus STATE …Respondent Through: Ms.Richa Kapoor, APP. WITH CRL.A.721/2005 KISHORE KUMAR …Appellant Through: Mr.Kaushal Kaushik, Advocate. Versus STATE ….Respondent Through: Ms.Richa Kapoor, APP. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 2 of 35 1. The appellants Kishore Kumar and Ghanshyam have preferred respective appeals against the impugned judgment and order of sentence dated 29.7.2005, whereby accused Ghanshyam has been convicted for the offence punishable under Sections 186/353/332/302/411, read with Section 34 of the IPC as also under Sections 25 & 27 of the Arms Act; Kishore Kumar has been convicted for the offence punishable under Sections 186/353/332/302 read with Section 109 IPC as also for the offence punishable under Section 411 read with Section 34 IPC. Both the appellants have been sentenced separately for each of the offences; convict Ghanshyam has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.5000/-, in default of payment of fine, further rigorous imprisonment for six months for the offence punishable under Section 302 of the IPC; convict Kishore has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.5000/-, in default of payment of fine further rigorous imprisonment for six months for the offence punishable under Section 302 read with Section 109 of the IPC. Both the convicts have been further sentenced to undergo rigorous imprisonment for three months for the offence punishable under Section 186 read with Section 34 of the IPC; rigorous imprisonment for one year for the offence punishable under Section 353 read with Section 34 of the IPC; rigorous imprisonment for two years for the offence Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 3 of 35 punishable under Section 323 read with Section 34 IPC; rigorous imprisonment for two years for the offence punishable under Section 411 IPC; rigorous imprisonment for two years for the offence punishable under Section 471 of the IPC. Convict Ghanshyam has been further sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1000/-, in default of payment of fine further rigorous imprisonment for one month for the offence punishable under Section 25 of the Arms Act; rigorous imprisonment for three years and a fine of Rs.2000/-, in default of payment of fine further rigorous imprisonment for two months for the offence punishable under Section 27 of the Arms Act. Benefit of Section 428 Cr.P.C. has been granted to both the convicts. 2. The facts as culled out by the prosecution are that on 07.1.2001, Inspector Rishi Dev PW-21 posted as SHO Police Station Civil Lines along with Const.Rajender and Const.Ramesh Chand PW- 17, reached Punjabi Basti, Club Road where they were joined by the deceased SI Vinod Kumar and Const.Bijinder PW-18. They proceeded towards Majnu Ka Tila in their Gypsy and reached Magazine Road at about 6.35PM. A white maruti car having number plate of DL-9CC-1595 was noticed standing in suspicious circumstances. Two persons were sitting in the car, one of whom was on the driver seat. PW-21 directed his staff to check the car. As soon as the staff reached near the car, the occupants started Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 4 of 35 running. The police party chased the said occupants and after a distance of about 50 to 60 yards SI Vinod managed to apprehend one of the two occupants whose name later on was revealed as Ghanshyam. The second person, Kishore Kumar was apprehended by PW-18. The appellant Kishore exhorted Ghanshyam and shouted “Maar Goli”; upon which Ghanshyam fired shot at SI Vinod Kumar who fell down on the ground. PW-17 ran after Ghanshyam who, however, managed to escape. Kishore Kumar was apprehended at the spot. 3. The PCR van reached the spot. ASI Santokh Singh PW- 12, posted Incharge of PCR Van Suger-53 along with H.C. Desh Pal PW-28, on receipt of intimation at 6.35 PM about firing at Majnu Ka Tila had reached the spot where they found a crowd gathered; SI Vinod Kumar was lying in an injured condition, PW-17 Const.Bijinder was also injured. PW-12 and PW-28 removed both the injured to the Trauma Centre, Civil Lines. Const.Rohtash Kumar PW-25 working as Duty Constable at Trauma Centre informed the local Police Station, Civil Lines that SI Vinod Kumar and Const.Bijinder had been brought to the hospital in an injured condition. This information was recorded in DD No.14 Ex.PW-4/A by ASI Yadav Chandra PW-14. The rukka Ex.PW-4/E was endorsed by PW-4 pursuant to which he had recorded the formal FIR i.e. FIR No.7/2001 Ex.PW-4/C, under Sections 186/353/323/307/411/471 read with Section 34 of the IPC Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 5 of 35 as also Sections 25 & 27 of the Arms Act. SI Mukesh Tyagi PW-19 had also reached the spot. He was joined by Const.Satinder PW-20 who had accompanied ASI Kesar Lal. The crime team was summoned. The photographer Const.Praduman Kumar PW-24 took six photographs of the spot negatives of which are Ex.PW-24/1 to Ex.PW-24/6. On 08.1.2001, at the Trauma Centre, he took three photographs Ex.PW-21/P to Ex.PW-21/R of the dead body from different angles; negatives of which are Ex.PW-2/7 to Ex.PW-PW-2/9. The rough site plan Ex.PW-20/B of the place of occurrence was prepared and thereafter the site plan to scale Ex.PW-11/A was prepared by Inspector Devinder Singh PW-11. The blood stained earth and earth control was lifted from the spot and seized vide memo Ex.PW-19/A. The MLCs of SI Vinod and Const.Bijinder Ex.PW- 21/C and Ex.PW-21/D were collected; SI Vinod was declared brought dead. The clothes of the deceased were also seized vide memo Ex.PW-18/A. 4. From the spot the maruti car, suspected to be stolen property was taken into possession vide memo Ex.PW-18/G. Accused Kishore Kumar who had been apprehended at the spot was arrested and his personal search was taken in the presence of PW- 18 vide memo Ex.PW-18/C. His disclosure statement Ex.PW-18/D was recorded. Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 6 of 35 5. On the following day i.e. 08.1.2001, the post mortem of the deceased SI Vinod was conducted by doctor Ashok Jaiswal PW- 23 who had noted the following injuries: “An oval punctured wound 2.2 cm x 1.6 cm on left upper chest on third inter costal space 6 cm from left nipple at 10: clock position, 6 cm below inner end of cievicte, medial border 4 cm from midline. The margins were inverted with singeing of chest hairs at its upper margins with blackening around it over an area 1.2 to 1.8 cm. There was tattooing seen on left upper chest and around punctured wound over an area 7 cm x 10 cm. Entry wound of fire arm projectile which was packed with gauge pieces. No other external injuries seen on the body.” 6. He opined the cause of death as haemohrrage shock consequent to injury no.1; which was an ante mortem entry wound caused by a fire arm projectile fired from near contact range. The dead body was identified by Dev Karan Yadav PW-2 father-in-law of the deceased, Om Prakash PW-3 father of the deceased as also by his neighbour SI S.S. Tyagi PW-15. The fired bullet retrieved from the dead body was handed over by PW-23 to PW-21 which was seized and sealed in a parcel having seal of KLS and deposited in the Malkhana. Accused Kishore Kumar made a subsequent disclosure statement Ex.PW-18/G and disclosed his involvement in Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 7 of 35 the commission of the theft of Maruti car bearing no.DL-2CF-4756 which had been seized from the spot. 7. On 10.1.2001 investigation of this case was handed over to ACP Bhag Singh PW-40. On 13.01.2001, PW-40 along with SI Ram Avtar PW-37, PW-17 and PW-18 reached near Police Station Seema Puri where they were informed that there was a secret information about accused Ghanshyam who would be coming to a petrol pump near Hapur on Garh Road. After about 10-15 minutes, on the signal of the informer accused Ghanshyam was apprehended and identified by PW-17 and PW-18 as the assailant of SI Vinod Kumar and Cont.Bijinder on 07.1.2001. His personal search Ex.PW- 17/A was prepared and he pointed out the place of occurrence vide memo Ex.PW-18/H. 8. He made three disclosure statements Ex.PW-35/C, Ex.PW-37/A and Ex.PW-8/A. No recovery was effected pursuant to the first disclosure statement. In pursuance of his second disclosure statement recorded on 16.1.2001 accused Ghanshyam took the police party to the house of Zulfikar but no recovery was effected from there; he then led the police party to the house in which C-27 was written and after taking the keys of the room from a small temple under the staircase he opened the room and got recovered two bags i.e. a black colour and a green colour bag. Photocopy of the RC of a maruti car bearing number DL-2CF-4756 belonging to Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 8 of 35 one Bijinder Aggarwal was also recovered besides cash of Rs.1,15,000/- and one gold chain as also one blood stained shirt and pant which were taken into possession vide memo Ex.PW-37/C, Ex.PW-37/D, Ex.PW-37/E, and Ex.PW-37/F. The third disclosure statement of accused Ghanshyam was made on 24.01.2001 and pursuant thereto in the presence of Renu Khanna PW-8 and Ram Charan PW-14 he got recovered one deshi katta with two live cartridges which were taken into possession vide memo Ex.PW-8/C. 9. The finger prints had been lifted from the spot by N.K. Sharma PW-1; Q1 to Q3 were the chance prints lifted from the left front door of the car, Q4 and Q5 were the chance prints lifted from the left rear door of the car, Q6 was the chance print lifted from the looking mirror near driving seat, Q7 was the chance print taken from the right side rear door of the car, along with the specimen finger prints of both the accused persons were sent to finger print expert Shri Sanjay Kumar Jha PW-36 who after examination opined that chance print Q3 is identical with the finger impression of Kishore Kumar and the chance print Q6 is identical with the right thumb mark of the finger impression of Ghanshyam. His report is Ex.PW-36/A. 10. The CFSL Expert Mr.K.C.Varshney PW-39 had examined the three parcels i.e. crime fired bullet, the country made pistol and the two cartridges which had been sent to him for examination and Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 9 of 35 had opined that the striation marks on the bullet marked EB-1 proved that it was discharged through the country made pistol Ex.F- 1 which had been got recovered by Ghanshyam. 11. Mr. Bijinder Aggarwal was the owner of the Maruti car bearing no.DL-2CF-4756. He was examined as PW-5. He had deposed that on 19.12.2000 he had parked his car at about 9.30 PM and when he came out after 30/45 minutes he found that his car was missing. Matter was reported to the police and FIR No.318/2000 under Sections 379/411 IPC was thereafter registered in Police Station Roop Nagar by HC Tejwati PW-6. The ownership of the vehicle in the name of PW-5 was proved by Sh.A.K.Singh PW-7. The number plate of the vehicle had been changed and the original number plate was replaced by the number plate DL-9CC-1595. This has come in the deposition of Const.Mahinder PW-22. 12. Since both these cases i.e. FIR No.7/2001 under Sections 307/302/353/186/332/411/471 read with Section 34 IPC and Sections 25/27/54 & 59 Arms Act and FIR no.318/2000 under Sections 379/411 IPC had arisen out of the same incident they were ordered to be clubbed together to avoid conflict of judgment. The impugned judgment has decided the fate of both these FIRs. 13. In the statement of accused persons recorded under Section 313 of the Cr.P.C. both of them pleaded innocence. Accused Kishore Kumar had stated that he had been picked up from Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 10 of 35 his house on 07.1.2001 and he was taken to Magazine Road where he was asked to put the palms of his both the hands on the maruti car which was already there and thereafter a false case has been planted upon him. Accused Ghanshyam also pleaded innocence. He had stated that the witnesses have deposed falsely as the victim was a police official. 14. Two witnesses have been produced in defence. Both of whom are shop keepers in the vicinity of Majnu Ka Tila. They both stated that on 02.1.2001 Kishore Kumar was not in the vicinity and not involved in the present case. 15. The trial Judge while convicting the accused has relied upon the testimony of the eye witnesses i.e.PW-18, PW-17 and PW- 21 of whom PW-18 was also the injured. The report of the finger print expert identifying the finger impressions of both the accused on the maruti car found at the spot was the additional incriminating circumstance qua both the accused. Kishore Kumar had been apprehended at the spot; Ghanshyam had been absconding and he had been apprehended six days later; he had got recovered his blood stained pant which had the same blood group as that of the deceased; a deshi katta and the cartridges got recovered at his instance was the most lethal circumstance held against him as the bullet which had been retrieved from the dead body of SI Vinod Kumar had as per the CFSL report, been fired from the same Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 11 of 35 weapon. In the second FIR i.e. FIR No.318/2000 under Sections 379/411 IPC, both the accused having been found to be in possession of the blue coloured maruti car, a stolen property, whose original number plate had been replaced with a fake number plate had led to their conviction under Section 411 IPC. 16. On behalf of the accused persons, it has been submitted that the testimony of the eye witnesses i.e. PW-17 and PW-21 is suspect as they were not present at the site; they have been roped in as witnesses only to build up a foolproof case as the victims of this case are police officials. Attention has been drawn to the versions of PW-12 and PW-28 i.e. the police officials of the PCR who had reached spot and removed the victims to the hospital; it is submitted that PW-12 categorically had admitted that he had not seen any police official at the site; if senior police officials i.e. of the rank of an Inspector were present at the spot, there is no answer as to why they had not accompanied the injured to the hospital and their presence had not been noted; the said witnesses have been planted. On behalf of accused Kishore, it has been argued that the only role attributed to him is that of exhorting Ghanshyam with “Maar Goli”; these words by themselves are not sufficient to nail Kishore for the offence of murder. It is submitted that no recovery has been effected from Kishore and the only other incriminating circumstance held against him is the report of finger print expert for Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 12 of 35 which Kishore has given a valid explanation in his statement under Section 313 Cr.P.C., wherein he had stated his palm impressions had forcibly been put on the maruti car to solve a blind murder case as he was in the bad books of the police and has been labelled as a B.C. ( bad character) of the area. Qua Ghanshyam, it has been argued that once the testimony of eye witnesses is discarded, the only other circumstance is of the recovery of the deshi katta which is demolished in view of the versions of PW-8 and PW-14 who are the stock witnesses of the police and their presence at the time of recovery is highly improbable; once this recovery stands demolished, the subsequent report of the CFSL would obviously have no value. The defence of the accused has all along been that he has been falsely implicated as the victims are police officials. 17. We have perused the record and noted the rival submissions of the parties 18. The first question to be answered is as to whether PW- 17 Const.Ramesh and PW-21 Inspector Rishi Pal were eye witnesses to the incident or they have been planted as eye-witnesses. To appreciate this argument we shall have to examine the versions of the eye witnesses, the other witnesses who had joined investigation at the spot, as also the documents which had been prepared contemporaneously. Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 13 of 35 19. ASI Santokh Singh PW-12 and HC Deshpal PW-28 both posted in the PCR were the first persons who had reached the spot and removed the injured to the hospital. PW-12 has deposed that on 07.1.2001 at about 6.35 PM while posted In-charge of PCR Van sugar 53, on receipt of information he went to Majnu Ka Tila where he found two injured persons and took them to the Trauma Centre. In his cross-examination he has stated that the injured were lying on the road and the public persons helped him in removing the injured in his vehicle; he did not notice, if any, police official were present there or not. PW-28 has corroborated the version of PW-12 and has stated that on receipt of information at 6.35 PM about firing in the market at Majnu Ka Tila he along with ASI Santokh Singh rushed to the spot i.e. B-41, Majnu Ka Tila where they found SI Vinod Kumar lying in an injured condition from a shot fired at him; Const.Bijinder was also in an injured condition; they were removed in the PCR van to the Trauma Centre, Civil Lines. In his cross- examination, he has stated that when they reached there no police official was present; thereafter SHO and other staff of the Police Station reached there. 20. PW-21 has deposed that on 07.1.2001 he was posted as SHO, Civil Lines. He along with Const. Rajinder i.e. his driver and Const. Ramesh, PW-17 while investigating the FIR No. 367/2000 of Police Station, Civil Lines reached the Punjabi Basti where they met Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 14 of 35 SI Vinod and Const. Bijinder who joined them in their vehicle and they all went to Majnu Ka Tila. They reached Magazine Road at 6.35 PM. Opposite B-Block, Majnu Ka Tila, a blue coloured maruti car having number plate of DL-9CC-1595 was noticed, standing in suspicious circumstances. PW-21 parked his government gypsy ahead of the Maruti car and asked his staff to check the car. Two persons were sitting in the car and one was in the driver seat whose name later on was revealed as Ghanshyam. As soon as his staff went to check the car, the occupant of the car started running towards B-Block. The staff i.e. the deceased SI Vinod, Const.Ramesh and Const.Bijinder chased the accused with PW-21 following them. At a distance of about 50-60 yards SI Vinod apprehended Ghanshyam and ten paces behind Const. Bijinder apprehended accused Kishore. Accused Kishore exhorted Ghanshyam by shouting “ Maar Goli”; Ghanshyam fired a shot at SI Vinod which struck him on the left side of his chest and he fell down. Const.Ramesh ran after Ghanshyam but he managed to escape. Five minutes later i.e. at about 6.45 PM, the PCR Van came to the spot and removed the injured i.e. SI Vinod and Const.Bijinder to the hospital. Message of the incident was flashed on the wireless to the ACP, Civil Lines. SI Mukesh Tyagi PW-19, ASI K.L.Meena, Const.Satinder PW-20, Const.Dharambir, Const. Virender also reached the spot. PW-21 sent ASI K.L. Meena, Const. Dharambir Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 15 of 35 and Const. Virender for search of Ghanshyam. SI Mukesh Tyagi and Const. Satinder were directed to remain at the spot. He i.e. PW-21 prepared the rukka and sent it through Const. Ramesh for the registration of the FIR. The crime team including photographer reached the spot at about 7.35 PM and the scene of occurrence was photographed, the maruti car was inspected. SI N.K. Sharma PW-1, In-Charge of the crime team gave PW-21 his report Ex.PW-1/A. At 7.45 PM Const. Parminder PW-26 reached the spot and handed over the copy of the DD No.4A to him regarding the admission of SI Vinod Kumar at the Trauma Centre. Const. Sant Ram PW-15 thereafter delivered copy of DD No.15A regarding admission of Const. Bijinder at the Trauma Centre to PW-21. Blood stained earth and earth control were lifted from the spot vide memo Ex.PW-19/A. MLCs of SI Vinod and Const. Bijinder Ex.PW-21/C and Ex.PW- 21/D were collected. SI Vinod was declared brought dead. Statements of the witnesses were recorded. Accused Kishore Kumar was interrogated and arrested; his disclosure statement Ex.PW-18/D was recorded; case property was deposited in the Malkhana. In his cross-examination, he has stated that he was at a distance of 7 to 8 steps from the car when the accused persons started running; he has admitted that it was a thickly populated area where the incident had occurred and there are shops on the ground floor. He has stated that entrance to the street of B-Block Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 16 of 35 market was at a distance of 6-7 yards from the car and between the gali and car, there is a road and central verge which does not have a partition. He has stated that he along with Const.Bijinder, Ramesh and ASI Santokh Singh had lifted SI Vinod Kumar into the PCR van; his clothes had not become blood stained; he has further stated that SI Vinod had caught hold of accused Ghanshyam from behind; at that time he had seen the revolver in the hand of Ghanshyam; immediately after firing the shot Ghanshyam had become free and had fled; two minutes after the firing, all the shops had closed. He returned back to the spot from the Trauma Centre at about 9.45 PM and remained there till midnight. He admitted that he had not received information at the spot that SI Vinod had been brought dead at the Trauma Centre. 21. The second eye witness is Const.Ramesh Chand PW- 17. He has deposed on the same lines as PW-1 and has corroborated his version. He has deposed that on 7.1.2001, he along with PW-21 joined by Const.Bijinder Singh PW-18 and SI Vinod, the deceased, had reached Majnu Ka Tila at about 6.30 PM. They noted one Maruti car no. DL-9CC-1595 parked in suspicious circumstances; when they proceeded towards the car, the occupants of the car started running. Const.Bijinder apprehended one of the said two persons and SI Vinod caught the other. At that time, one of the two persons whose name later on was revealed as Crl. A. No.885/2005 and Crl. A.No.721/2005 Page 17 of 35 Kishore Kumar exhorted Ghanshyam „Maar Goli‟ upon which he had fired shot at SI Vinod which struck on his chest and he fell down; PCR van came and removed SI Vinod and Const.Bijinder to the hospital. He further deposed that SI Mukesh with staff also reached the spot and he i.e. PW-17 took the tehrir for the registration of the FIR. In his cross-examination PW-17 has admitted that the place of the incident is a crowded place and there are shops on the ground floor; the gali where the incident had taken place is about 15