Crl.A.No.522/2005 Page 1 of 30 * IN THE HIGH COURT OF DELHI % Judgment Reserved on: 7.8.2009 Judgment Delivered on:31.8.2009 + Crl. APPEAL No.522/2005 NIWAS @ PATEL …Appellant Through : Mr.Rajesh Mahajan, Advocate. versus STATE …Respondent Through : Ms.Richa Kapoor, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes PRADEEP NANDRAJOG, J. 1. It was exact midnight i.e. 00:00 Hours of the intervening night of 28th February 2001 and 1st March 2001. It was 12:00 midnight. Gian Prakash PW-3 along with his friend Jyoti Prakash (hereinafter referred to as the „Deceased‟) were proceeding to Mandir Kali Mata, Sainik Vihar. They were on a motor-cycle. Gian Prakash was driving the motor-cycle. Jyoti Prakash was on the pillion seat. The colony Sainik Vihar was barricaded by the residents i.e. as is usually seen in the Crl.A.No.522/2005 Page 2 of 30 colonies in Delhi, for security purposes, gates with barricades, were installed/erected by the residents. Gate No.2 was one such gate at Sainik Vihar and during the night was manned by Anil Tiwari PW-4, employed as a chowkidar by the Delhi Sainik House Building Cooperative Society i.e. the society which had developed the colony Sainik Vihar. Gian Prakash entered the colony through the gate and unfortunately for him and the deceased, at the same time, a white coloured Fiat car was rashly reversed at the gate itself. The car nearly hit the motor- cycle. Gian Prakash and Jyoti Prakash lost balance and fell down from the motor-cycle. A verbal quarrel ensued between the occupants of the car, being four in number, and Gian Prakash and Jyoti Prakash. Gian Prakash left the spot to report the accident to the police and proceeded to the police picket Rani Bagh attached to PS Saraswati Vihar as the said police picket was nearby. He reported the accident at the police picket, which information was noted in DD No.41, Ex.PW-41/A at 12:20 in the midnight. 2. SI Nipun Kumar PW-41, Const.Lokender Singh PW- 22, Const.Devender PW-14 and Const.Ajay Singh PW-38 left the police picket in the company of Gian Prakash and proceeded to gate No.2 Sainik Vihar. When they reached gate No.2 they found that Const.Sunil and Const.Balwan PW-35 were already at gate No.2 Sainik Vihar for the reason they had Crl.A.No.522/2005 Page 3 of 30 left the police station Saraswati Vihar for night picket duty and proceeding to the picket where they had to be on duty, had to cross gate No.2 Sainik Vihar. Jyoti Prakash was found lying on the road with blood oozing from his ear. 3. The first act of the police officers was to rush Jyoti Prakash to a hospital so that medical aid could be given to him. Ravinder Singh PW-13 was driving in his Maruti van No.DL 2CJ 3719. He was flagged down. He took Jyoti Prakash in his van to Jaipur Golden Hospital. Gian Prakash, Const.Devender and Const.Balwan accompanied in the van. Const.Sunil and Const.Balwan remained stationed at the spot to guard the same. SI Nipun Kumar proceeded to the hospital in a different vehicle. In the meanwhile Anil Tiwari and Bhajan Singh PW-12 the President of the Delhi Sainik House Building Society also reached the spot because Anil Tiwari had left the spot to call Bhajan Singh. 4. At the hospital i.e. Jaipur Golden Hospital the doctor on duty declared Jyoti Prakash brought dead as per MLC Ex.PW-33/A. SI Nipun Kumar obtained a copy of the MLC of Jyoti Prakash and recorded the statement Ex.PW-3/A of Gian Prakash in which he stated that he was driving his bullet motor-cycle No.DEW 9238 with his friend Jyoti Prakash on the pillion seat and they were going to Kali Mata Mandir. At 12:00 in the night he reached gate No.2 Sainik Vihar near Punjab Crl.A.No.522/2005 Page 4 of 30 National Bank when a white coloured Fiat car reversed in a rash manner nearly banging into his motor-cycle due to which he lost balance and the motorcycle fell. He rebuked the driver of the car. At which, two out of the four persons in the car who were sitting on the front seat came out of the car and a minor physical quarrel (jostling) ensued between them. He told the chowkidar at the gate, whose name he later on learnt was Anil Tiwari, to see that the car remains stationed at the spot till he summoned the police. He reached police picket Rani Bagh on his motor-cycle. When he returned to the spot in the company of the police he saw his friend Jyoti Prakash lying smeared with blood on the road. Blood was oozing from his ear. The chowkidar informed that the four boys in the car attempted to drive away at which his friend prevented them from fleeing and hence they shot his friend and drove away towards Mangolpuri. SI Nipun Kumar made an endorsement Ex.PW- 41/B on the statement Ex.PW-3/A and dispatched the same for FIR to be registered at 3:00 AM, a fact so recorded in the endorsement Ex.PW-41/B. At the police station FIR Ex.PW-17/B was registered for an offence punishable under Section 302/34 IPC. 5. Being a case of murder, information was conveyed to Inspector Sachdev Dahiya PW-47 posted as the SHO of PS Saraswati Vihar. He left in the company of HC Vinod PW-19. Crl.A.No.522/2005 Page 5 of 30 Both officers reached Jaipur Golden Hospital. The body of the deceased was seized and sent to Subzi Mandi Mortuary for autopsy. Sachdev Dahiya, SI Nipun and Gian Prakash thereafter returned to the spot where the crime was committed. 6. Blood on the road was lifted on cotton. Blood stained earth and control earth were lifted as recorded in the memo Ex.PW-3/B. Statement of Anil Tiwari PW-4 under Section 161 Cr.P.C. was recorded and the register Ex.PX maintained at the gate to note the vehicles entering the colony was seized as per memo Ex.PW-4/A. It may be noted that in the register Ex.PX an incomplete entry is made recording: “MPT-75”. 7. At Subzi Mandi Mortuary Dr.Ashok Jaiswal PW-6 conducted the post-mortem on the body of the deceased on 1.3.2001 and opined that the cause of death was the brain injury caused due to the bullet which was fired at the ear of the deceased. The bullet Ex.P-1 was retrieved by him. He recorded that the injury caused by the firearm was a rifled one. Blood sample of the deceased as also the clothes of the deceased along with the bullet recovered and the post-mortem report Ex.PW-6/A were handed over by the doctor to the investigating officer who deposited the clothes, blood sample and the bullet in the malkhana. Crl.A.No.522/2005 Page 6 of 30 8. The police had a problem since four unknown suspects had to be brought to justice. 9. In the course of investigation, Sachdev Dahiya the investigating officer learnt that a lady Poonam Kapoor PW-15 was waylaid near Richi Rich Restaurant Ring Road. Hoping to get some clues from her, he contacted her, who informed that in the intervening night of 28th February 2001 and 1st March 2001, at midnight, a boy tried to snatch her gold chain but could not do so as she offered resistance. The boy was chased by her brother who was with her but he managed to flee in a vehicle in which some persons were sitting. It is obvious that Sachdev Dahiya could hardly get any worthwhile lead. 10. As per the prosecution, breakthrough came when Deepak @ Deepu (Accused No.2) was arrested in FIR No.199/2001 PS Rohini and purportedly made a confessional statement to the investigating officer of said case, disclosing his involvement in the instant case as also the involvement of the appellant and two other co-accused namely Rakesh @ Andy (Accused No.3) and Vijay @ Pinak (Accused No.4). Said information was conveyed to Inspector Sachdev Dahiya who after obtaining the orders from the Court of the competent Metropolitan Magistrate took Deepak on police remand and formally arrested him. On 29.3.2001, he recorded the statement Ex.PW-26/A of Deepak. Ignoring the confessional, Crl.A.No.522/2005 Page 7 of 30 and hence inadmissible part of Ex.PW-26/A, it may be noted that Deepak disclosed that the car in which all accused were travelling when the crime was committed belonged to Chiranji Lal, PW-16, and bore registration No.MPT 7503. That the car was borrowed from Chiranji Lal and returned to him on 1st March 2001 and that he could get the car recovered. He also stated that the weapon of offence used to commit the crime was purchased from one Kamal at Aligarh. 11. Appellant was arrested the next day i.e. on 30.3.2001. On interrogation his confessional-cum-disclosure statement Ex.PW-19/X was recorded. Ignoring the confessional, and hence inadmissible part of the statement, it stands recorded in Ex.PW-19/X that the car No.MPT 7503 belonged to Chiranji Lal and was returned to him on 1st March 2001 and that he could get the car recovered. He also stated that the weapon of offence used to commit the crime was purchased from one Kamal at Aligarh. 12. On 30.3.2001, the car Ex.P-10 bearing registration No.MPT 7503 was seized from the custody of Chiranji Lal whose place of residence was pointed out by the appellant as recorded in the pointing out-cum-seizure memo Ex.PW-16/A which records the seizure of the car. 13. On 30.3.2001, a second disclosure statement Ex.PW-19/Y of the appellant was recorded by the investigating Crl.A.No.522/2005 Page 8 of 30 officer to the effect that the clothes which he i.e. the appellant was wearing at the time of the commission of the offence were hidden by him in his house and that he could get the same recovered. Thereafter, the appellant led the investigating officer to House No.B-241, Phase-I Budh Vihar, Delhi and got recovered a coat Ex.P-6/1 and a pant Ex.P-6/2 as recorded in the seizure memo Ex.PW-19/A. 14. When the appellant was in the police custody, on 31.3.2001, he suffered a serious head injury. As per the appellant the investigating officer brutally assaulted him to extract a forced confession to plant the recovery of the weapon of offence on him. He refused. He was hit on his head. As per the police, appellant attempted to commit suicide by banging his head on the iron bars at the lockup. FIR No.246/2001 under Section 309 IPC being Ex.PW-36/A was registered against the appellant. 15. On 1.4.2001 a third disclosure statement Ex.PW- 41/C1 of the appellant was recorded by the investigating officer as per which nothing but a reiteration of the confession of the appellant was recorded. 16. On 4.4.2001 a fourth disclosure statement Ex.PW- 41/C of the appellant was recorded by the investigating officer in which he disclosed that he could get recovered the weapon of offence which he had thrown at the rooftop of a shop in Crl.A.No.522/2005 Page 9 of 30 Wazirpur Industrial Area. Appellant thereafter took the investigation officer to a shop at Wazirpur Industrial Area and pointed out the same as the one on the roof of which he had thrown the weapon of offence, a country made pistol. A pistol Ex.P-2 along with an empty/used cartridge Ex.P-3 and a live cartridge Ex.P-4 were recovered and seized as recorded in the seizure memo Ex.PW-41/D. 17. An application Ex.PW-11/O for test identification of co-accused Deepak was moved by the Investigating Officer on 29.3.2001. Vide proceedings Ex.PW-11/N, Deepak refused to participate in the TIP, alleging that the police had already shown him to the witness. 18. On 31.3.2001, vide application Ex.PW-11/A, the Investigating Officer sought to conduct the test identification of the appellant. Same day, the appellant refused to participate in the TIP as he alleged that the police had already shown him to the witness. The same was noted in the TIP proceedings Ex.PW 11/B. 19. Co-accused Rakesh @Andy and Vijay @Pinak were arrested in another case. Said information was made known to the police station Saraswati Vihar i.e. the place where the FIR pertaining to the instant case was registered. 20. SI Chander Pal Singh PW-45 received DD-11A regarding the production of co-accused Rakesh @Andy and Crl.A.No.522/2005 Page 10 of 30 Vijay @ Pinak in another case. After obtaining production warrants for the two accused, they were formally arrested in the instant case on 18.1.2003. 21. On 18.1.2003 itself, SI Chander Pal Singh PW-45, moved an application Ex.PW-11/D for conduct of TIP of Rakesh. In the TIP proceedings Ex.PW-11/E, the witness Gian Prakash, wrongly identified Rakesh i.e. pointed out another person named Raju Singh and said that he was Rakesh. 22. On 31.1.2003 vide application Ex.PW-11/G request was made to conduct the test identification of co-accused Vijay. Witness Gian Prakash wrongly identified the accused Vijay in the proceedings, as recorded in Ex.PW-11/K. One Dharmender was identified as Vijay. 23. The blood stained clothes of the deceased, his blood sample and the bullet recovered from his body as also the coat Ex.P-6/1 and the pant Ex.P-6/2 recovered as recorded in the memo Ex.PW-19/A at the instance of the appellant and the country made pistol recovered at the instance of the appellant as per memo Ex.PW-41/D were sent for forensic examination i.e. to a serologist and a ballistic expert. 24. Shri A.K.Srivastava PW-2, a serologist gave reports Ex.PW-2/A and Ex.PW-2/B opining that the blood group of the deceased was „A‟ and that human blood of same group was detected on the coat Ex.P-6/1. Crl.A.No.522/2005 Page 11 of 30 25. Shri K.C.Varshney, Sr.Scientific Officer (Ballistic), FSL Malviya Nagar, PW-1, gave a report Ex.PW-1/A with respect to the bullet Ex.P-1 recovered from the body of the deceased, the country made pistol Ex.P-2 recovered pursuant to the disclosure statement of the appellant and at his instance as also the used cartridge Ex.P-3 and the live cartridge Ex.P-4 recovered along with the pistol. It may be noted here that the used cartridge i.e. the cartridge case Ex.P- 3 was of 8 mm/.315” caliber and the same was the caliber of the live cartridge. The caliber of the pistol Ex.P-2 was reported to be .303”/.315”. To quote from his report he opined as under:- “1. The firearm country made pistol .303” / .315” bore marked exhibit „F1‟ is designed to fire a standard .303” / 8 mm / .315” cartridge. It is in working in its present condition. Test-fire conducted successfully. 2. The 8 mm / .315” cartridge marked exhibit „A1‟ is live one and can be fired through .315” bore firearm. 3. The 8 mm/ .315” cartridge case marked exhibit „EC1‟ is fired empty cartridge. 4. The bullet marked exhibit „EB1‟ corresponds to the bullet of .303” cartridge. 5. The 8 mm / .315” cartridge marked exhibit „A1‟ above was test fired through the firearm country made pistol .303” / .315” bore marked exhibit „F1‟ the test fired cartridge case and recovered test fired bullet were marked as „TC2‟ and TB2‟ respectively. 6. One cartridge of .303” from the laboratory stock was test fired through the country made pistol .303” / Crl.A.No.522/2005 Page 12 of 30 .315” bore marked exhibit „F1‟ above, the test fired cartridge case and recovered test fired bullet were marked as „TC2‟ and „TB2‟ respectively. 7. The individual characteristic marks present on evidence cartridge case exhibit „EC1‟ and on test fired cartridge case exhibit „TC1‟ were examined and compared under the Comparison Mircroscope Model Leica DMC. The firing pin marks present on exhibits „EC1‟ and on „TC1‟ were found identical. Hence exhibit „EC1‟ has been fired through the country made pistol .303” / .315” bore marked exhibit „F1‟ above. 8. The individual characteristic of striations present on evidence bullet marked exhibit „EB1‟ and on test fired bullet marked exhibit „TB2‟ were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence exhibit „EB1‟ has been fired through the country made pistol .303” / .315” bore marked exhibit „F1‟ above. 9. The exhibit „F1‟ / „A1‟, „EC1‟, „EB1‟ are firearm / ammunition as defined in the Arms Act 1959.” 26. Being relevant, it may be noted here that deposing as PW-1, Shri K.C.Varshney stated that the cartridge of .303” which was test fired through the pistol Ex.P-2 and was used from the laboratory stock was retained in the laboratory. Further, the photographs pertaining to the striation i.e. individual characteristics on the bullet Ex.P-1 i.e. the bullet recovered from the body of the deceased and the test fired bullet referred to as Ex.TB-2 in the report were not forwarded with the report and hence are not a part of the judicial record. 27. To a reader of the judgment, with reference to the narratives herein above which throw light on the investigation conducted, it is apparent that against the four accused the Crl.A.No.522/2005 Page 13 of 30 prosecution would be seeking to bring on record incriminating evidence in the form of testimony of Gian Prakash and Anil Tiwari to prove an altercation involving the four accused on the one side and Gian Prakash and deceased Jyoti Prakash on the other as also the fact that the appellant and co-accused Deepak refused to participate in the Test Identification Proceedings and lastly the fact that the weapon of offence was recovered pursuant to the disclosure statement of the appellant which got linked to the crime through the report of the ballistic expert as also that the coat got recovered by the appellant was stained with human blood of the same group as that of the deceased and that the appellant pointed out the residence of Chiranji Lal from where car No.MPT 7503 was recovered. 28. Anil Tiwari PW-4 as also Gian Prakash PW-3 were obviously the star witnesses of the prosecution. The next important witness was Chiranji Lal PW-16 who owned the car bearing No.MPT 7503. Further link evidence of the prosecution was the register Ex.PX in which an incomplete entry recording „MPT-75‟ was entered. 29. Chiranji Lal PW-16 denied that the car in question i.e. bearing No.MPT 7503 was lent by him to the accused. He stated that the car was in no position to be driven on 28.2.2001. Crl.A.No.522/2005 Page 14 of 30 30. Anil Tiwari PW-4 who was firstly examined on 26.10.2002 when the charge-sheet was filed only against the appellant and co-accused Deepak (co-accused Rakesh @Andy and Vijay @Pinak were not even arrested by then and hence their names were shown as proclaimed offenders in the charge-sheet) deposed that at 12:00 in the night he was on duty at Gate No.2 and heard noise of a car probably triggered due to a remote control device and he proceeded to the house where the car was parked to ask the owner to set it right. On the way back he heard an explosion and got frightened. He ran to the house of the President of the Society who told him to manage the gate. When he reached back to the gate he saw that a crowd had gathered. Anil Tiwari was declared hostile by the learned APP and was confronted with his statement recorded by the investigation officer wherein he had stated that when the deceased used his i.e. Anil Tiwari‟s ball pen to enter the number of the car i.e. MPT 7503 and had partially written the same in the register Ex.PX one of the four boys in the car who had an altercation with the deceased and PW-3, shot the deceased in the ear and all four sped away. 31. Needless to state, the testimony of Anil Tiwari hardly inculpated the appellant and his co-accused as Anil Tiwari did not identify them at all. Crl.A.No.522/2005 Page 15 of 30 32. At the second stage after Rakesh @Andy and Vijay @Pinak were arrested and supplementary charge-sheet was filed, Anil Tiwari was re-examined on 15.9.2003. He changed his version a little by deposing that he saw four persons alighting from the car in the night when the deceased was shot, but added that he could not identify them because it was dark and hence he could not see the said four persons very properly. Anil Tiwari was again declared hostile and was confronted with his statement recorded by the investigating officer. He denied having said what was recorded therein. 33. Gian Prakash PW-3 was examined twice and on both occasions stated the facts disclosed and recorded in his statement Ex.PW-3/A and identified the appellant and the accused as the four boys with whom the altercation had taken place. 34. Needless to state, Gian Prakash had not claimed to have seen the actual shooting incident which, as per him had taken place when he had left the gate to go to the police picket and summon police help and by the time he returned with the police, his friend had been shot dead and the assailant had escaped. 35. We eschew reference to various witnesses of the prosecution who proved recoveries at the instance of the appellant and the disclosure statements (four in number) Crl.A.No.522/2005 Page 16 of 30 made by the appellant. But would be referring to the credibility thereof while discussing the submissions made by learned counsel for the appellant. 36. The learned Trial Judge has held that the fact of Gian Prakash PW-3 having wrongly identified Rakesh @Andy and Vijay @Pinak during test identification proceedings rendered it unsafe to convict them on their being identified by Gian Prakash as two of the four boys who had an altercation in the night. There being no other evidence against Rakesh and Vijay, both have been acquitted. 37. Pertaining to Deepak, against whom the incriminating circumstances have been discussed, before discussing the incriminating evidence against the appellant, the learned Trial Judge has held that notwithstanding the conduct of Deepak in refusing to participate in the test identification proceedings was indicative of a guilty mind entailing an adverse inference and also his being identified by PW-3 as one out of the four boys present, it could not be said that Deepak had shared any common intention with the appellant who had fired the shot. Since the death of the deceased could be attributed to only one shot which was treated as having been fired by the appellant, the learned Trial Judge opined, in para 41 as under:- Crl.A.No.522/2005 Page 17 of 30 “41. But it must be borne in mind that the charge against the accused Deepak is not for causing affray or using criminal force or committing assault. The charge against him is of having shared a common intention to murder. There is no eye-witness account of his having instigated or abetted the murder of Jyoti Prakash, leave alone of having shared a common intention to cause his death. There is no circumstantial evidence either against him to prove such a charge against him. Thus, even if the testimony of PW-3 is accepted that the accused Deepak had been the driver of the Fiat Car who had rashly reversed the car leading to the quarrel, there is nothing on the basis of which it could be concluded that he also had a hand in causing the death of Jyoti Prakash.” 38. Convicting the appellant, the learned Trial Judge has held that the car in question in which the four accused boys were travelling was got recovered pursuant to the disclosure statement of the appellant. The learned Trial Judge has further held that the country made pistol recovered at the instance of the appellant pursuant to his disclosure statement was proved to be the weapon of offence as per the report of the ballistic expert and it was proved by the report that the bullet recovered from the head of the deceased was fired from the firearm. That blood of the same group as that of the deceased was found on the coat got recovered by the appellant was another piece of incriminating evidence as the appellant failed to explain presence thereof on the coat. Lastly, the fact that the