Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 04th August, 2009 Judgment Delivered on: 10th August, 2009 + CRL.A.662/2008 MED SINGH @ MEDU PEHALWAN ...Appellant Through: Mr. R.P. Kasana, Advocate. Versus STATE …Respondent Through: Mr.Pawan Sharma, APP. WITH + CRL.A.646/2008 BRIJESH MAWI …Appellant Through: Mr. Chetan Sharma, Sr. Advocate with Mr. Neeraj Walia, Advocate. Versus STATE …Respondent Through: Mr. Pawan Sharma, 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 1. Both these appeals have been preferred against the impugned judgment dated 08.7.2008 whereby the appellants Med Singh and Brijesh Mawi had been convicted under Section 302 read with Section 34 of the IPC as also for the offence under Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 2 of 25 Section 460 read with Section 34 of the IPC. Appellant Brijesh Mawi had additionally been convicted for the offence under Section 25 of the Arms Act. 2. The case of the prosecution as unfolded is that on 06.6.2001 H.C. Brij Pal PW-11 who was posted in PCR received an information at 10.35 PM from the Control Room that firing is taking place at Savitri Nagar near a sweet shop. He i.e. PW-11 alongwith his staff reached the said place where a crowd had gathered inside the STD Booth, blood was lying and some articles were scattered in broken condition. The STD booth belonged to Omiyo Das of Malik Communications. The injured i.e. Omiyo Das had already been removed to the hospital. 3. This information was passed on to the local Police Station which was recorded in D.D.No.15A and marked to SI Sudhir Sharma PW-24 who alongwith Const. Bajrang Bahadur PW-10 reached J-10 Savitri Nagar. Injured had already been removed to the AIIMS Hospital. On reaching there it was learnt that victim Omiyo Dass had been brought dead to the hospital. 4. Vicky Malik PW-1 was the witness to the occurrence. His statement Ex.PW-1/A was recorded wherein it was stated that on 06.6.2001 at about 10.20 PM when he i.e. PW-1 was sitting on the road outside their STD Booth and Sweet Shop at J- 196, Savitri Nagar he noticed a white maruti car stop on the other side of the road; two men had alighted and they came towards the STD Booth and forcibly entered the booth; they started firing bullets at his maternal uncle Omiyo Dass; he i.e. PW-1 tried to Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 3 of 25 intervene and brought a palta from his nearby sweet shop but his mama told him to run away and save his own life; blood was oozing out from injuries of his maternal uncle; he i.e. PW-1 ran towards his house no. 86B shouting for help; assailants had fled away. He i.e. PW-1 alongwith his younger brother Raj Kumar Malik PW-3 and other maternal uncle Ravi Kumar Dass PW-4 removed the injured to the hospital; out of the two assailants one was Satish Kumar who lives in Chirag Delhi; about 2½ years ago Satish Kumar had murdered his father and he had been acquitted about one month ago in that case; the second assailant was about 25-26 years of age and was well built and they both had murdered his uncle Omiyo Dass. 5. Endorsement Ex.PW-24/A was made on Ex.PW-1/A and the rukka was handed over to Const. Rakesh PW-16 pursuant to which the FIR Ex.PW-6/A was registered in the handwriting of H.C. Rangrav PW-6. Site plan Ex.PW-24/B was prepared. From the spot three live cartridges of 0.38 bore, one empty cartridge of 0.38 bore and four lead pieces of fired bullet were seized and sealed in separate pullandas with the seal of SKS and were taken into possession vide memo Ex.PW-1/B. One iron palta was also seized and sealed vide memo Ex.PW-1/G. The blood stained baniyan of Raj Kumar Malik PW-3 was also seized and sealed vide memo Ex.PW-1/F, blood stained earth and earth control were lifted from the spot vide memo Ex.PW-1/C besides pieces of glass of the counter which were taken into possession vide memo Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 4 of 25 Ex.PW-1/D. The STD Code Directory was taken into possession vide memo Ex.PW-1/E. 6. Crime Team was summoned and Ram Pal Singh PW-2 prepared his report Ex.PW-2/A. Const. Bharat Lal PW-7 took photographs of the scene of occurrence from outside as well as inside of Malik Communications; the reel is Ex.PW-7/A. Copy of the FIR was taken by HC Jagbir PW-8 and handed over to Elaka Magistrate as also to the Joint Commissioner of Police. 7. Dr.T.Milo PW-9 had conducted the post-mortem on the body of the deceased on the following day i.e. 7.6.2001. Nine ante-mortem bullet injuries were noted; and four bullets had been extracted from the body which along with one cotton underwear, one cotton baniyan with tear, one long pant with tear along with the blood gauze of the deceased had been handed over to the Investigating Officer PW-24 SI Sudhir Sharma which had been taken into possession vide memo Ex.PW-10/A. The cause of death was opined as coma due to head injuries caused by fire. The dead body was thereafter handed over to the relatives of the deceased. 8. On 16.11.2001, SI Sudhir Sharma PW-24, formally arrested accused Satish in this case who had already been arrested by the Faridabad Police in FIR No.339/2004 Police Station G.R.P., Faridabad under Section 25 of the Arms Act. ASI Pyare Lal PW-14 posted in Police Station G.R.P., Faridabad, Haryana had joined investigation with SI Randhir Singh in that case. Accused Satish made his disclosure statement Ex.PW-24/D Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 5 of 25 in the instant case and disclosed about the involvement of his other accomplices i.e. co-appellant Med Singh and co-appellant Brijesh. 9. On 3.12.2001, three sealed parcels had been received by Shri K.C.Varshney PW-21, Sr. Scientific Officer, FSL, Rohini, Delhi and vide his report Ex.PW-21/A, after examining the 8 bullets marked EB-1 to EB-8, which had been sent to him, he had opined that striation of riffling marks were present on exhibits EB-1, EB-3 to EB-8 and had been discharged through a standard .380” calibre firearm. 10. On 9.1.2002, SI Sanjeev Sharma PW-25, formally arrested appellant Med Singh in this case vide memo Ex.PW-25/B. He had already been arrested on 5.1.2002 by Police Station Ashok Vihar in a case under the Arms Act by SI Subhash and Const. Ramesh Chander PW-15; Med Singh was found in possession of a buttondar knife, investigation of that case had been handed over to ASI Desh Raj PW-5. Med Singh made a disclosure statement disclosing his involvement in the present case. He was put up for TIP before the court of Smt.Bimla Kumari PW-18 by SI Sudhir Sharma PW-24 but Med Singh refused to participate in the proceedings; said proceedings are Ex.PW-18/B and Ex.PW-18/C. The certificate of the concerned court is Ex.PW-18/E. No recovery was effected from appellant Med Singh. 11. On 24.1.2002, Sh.A.K. Srivastava, PW-23 had examined 6 parcels which had been sent to him sealed with the seal of MSL, Department of Forensic Medicine, AIIMS, New Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 6 of 25 Delhi. His detailed biological and serological reports are Ex.PW- 23/A and 23/B, respectively. As per Ex.PW-23/A human blood of `A’ group had been detected on the torn baniyan, underwear and pant and blood which was also the blood group of the deceased. On 28.1.2002, PW-21 had also examined this torn underwear and pant which had been sent to him by the Serology department, detailed report of which is Ex.PW-21/B. 12. On 12.8.2003, appellant Brijesh Mawi had been arrested by HC Rajiv Mohan PW-19 an officer of the Crime Branch in FIR No.575/2003, Police Station Malviya Nagar, under Section 307/183/353 IPC. On his interrogation he had disclosed his involvement in the present case and stated that he could get recovered the .38 revolver used by him in this case. 13. On the same day i.e. 12.8.2003 appellant led the police party comprising of SI Satish Kumar, ASI Ravinder and HC Rajiv Mohan, all officers of the Anti-Robbery Cell, Crime Branch to the second floor, F-4/64, Sector 16, Rohini and from the roshandan of the bathroom he took out a key and after opening the lock of the room he got recovered a .380 bore revolver from underneath a mattress lying on the floor which was containing four live cartridges. This revolver was taken into possession vide memo Ex.PW-1/C and sketch of the same was prepared vide memo Ex.PW-1/B. 14. FIR No. 456/2003 under Section 25 of the Arms Act, Police Station Prahsant Vihar was accordingly registered against Brijesh Mawi. SI Satish Kumar has been examined as PW-1, ASI Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 7 of 25 Ravinder Kumar has been examined as PW-2 and H.C.Rajiv Mohan has been examined as PW-3 in the said proceedings. Thereafter both the cases i.e. FIR No.438/2001, under Section 302/34 IPC, Police Station Malviya Nagar i.e. the present case and FIR No.456/03 under Section 25 of the Arms Act, Police Station Prashant Vihar were clubbed together by orders dated 01.4.2005 of the Additional Sessions Judge and proceedings were thereafter recorded in the main case i.e. in FIR No.438/2001. H.C. Rajiv Mohan was again examined in the said proceedings as PW-19. 15. SI Sanjeev Sharma PW-25 sought production warrant of Brijesh Mawi from the concerned court and formally arrested him on 19.8.2003 in this case vide memo Ex.PW-25/C; his disclosure statement Ex.PW-25/D was recorded and he pointed out the place of incident vide memo Ex.PW-25/E. On 28.3.2003 he had refused to join TIP. 16. On 28.8.2003 and again on 29.9.2003, Dr.P.Siddamabary PW-20 Junior Scientific Officer (Ballistic) CFSL, Chandigarh, received one sealed parcel and four sealed parcels respectively in the laboratory. Vide his report Ex.PW- 20/B he had opined that the fired bullets mark B-1, B-3 and B-4 had been fired through a .38” revolver bearing no.25502 and they could not have been fired through any other firearm because every fire arm has its own individual characteristic marks. No opinion on the bullet mark B-2 was possible. Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 8 of 25 17. On 12.11.2003, Sh. Dipender Pathak PW-26 posted as Deputy Commissioner of Police, had accorded sanction for prosecution of appellant Brijesh Mawi @ Shekhar under section 39 of Arms Act for having been found to be in conscious possession of Webley .38 revolver with the four live cartridges; the said sanction is Ex.PW-26/A. 18. Accused Satish had died during pendency of trial and proceedings against him stood abated. 19. Both the co-appellants Med Singh and Brijesh Mawi pleaded innocence in their statements under Section 313 Cr.P.C. and stated that they have been falsely implicated in the present case; appellant Med Singh stated that he had refused TIP for the reason that his photographs had been taken in the Police Station and shown to the persons in the Police Station. Appellant Brijesh Mawi had stated that the revolver was falsely planted upon him. 20. Brijesh Mawi had produced two witnesses in defence. Vijay Gupta, DW-1 being a resident of ground floor of F-4/64, Sector-16, Rohini had deposed that on 11.8.2003 he alongwith Brijesh Mawi had been picked upon by the Crime Branch officer of R.K.Puram where they had been beaten; the second floor was under the occupation of his tenant Rajeev Chauhan who had been examined as DW-2; he has corroborated this version and has stated that the police had not come to their house at 2nd floor of F- 4/64, Sector-16, Rohini either on 11.8.2003 or on 12.8.2003. 21. The Trial Judge had convicted both the aforestated appellants. Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 9 of 25 22. Qua Med Singh, eye witness Vicky PW-1 had deposed that he was the person who was sitting on the driver seat of the car from which two persons had alighted and fired on his maternal uncle Omiyo Das who had subsequently died. Testimony of PW-1 had been fully relied upon by the Trial Judge to hold that there was no reason as to why he would falsely implicate Med Singh and the description of Med Singh having been mentioned by PW-1 under section 161 Cr.P.C. and thereafter PW-1 correctly identifying Med Singh in the Court coupled with the fact that Med Singh had refused TIP for which an adverse inference has to be drawn against him, this evidence was held sufficient to nail appellant Med Singh. 23. Qua Brijesh Mawi, although PW-1 the eye witness had not identified Brijesh Mawi in the court, yet it had been held that recovery of the .38 revolver by the appellant which had been sent to the CFSL for examination alongwith fired bullets B-1 to B-4 and the report of CFSL having opined that bullets B-1, B-3, and B-4 had been fired from the said .38 revolver, it had been fully established by the prosecution that this was the same revolver which had been used to murder Omiyo Dass; thus the onus of the prosecution to connect Brijesh Mawi with the crime had been discharged. 24. On behalf of the appellant Med Singh, it has been argued that admittedly there is no recovery effected from him, he has not been named in Ex.PW-1/A which was the first statement of the eye witness pursuant to which the FIR had been registered; Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 10 of 25 it was only in the supplementary statement of Vickey that it had figured that one other person was sitting in the driver seat of the maruti car from where two persons had got down and fired at the deceased; it is argued that no description of Med Singh had been given in this version of the witness; the witness PW-1 had come into witness box after a gap of more than two years and has identified Med Singh for the first in the court which is a useless identification as admittedly PW-1 the eye witness was not known to appellant Med Singh. It is argued that the refusal of TIP by Med Singh was for a valid reason as he had categorically stated that he had refused TIP for the reason that his photographs were taken in the Police Station Ashok Vihar and had been shown to the persons. Attention has been drawn to the cross-examination of ASI Desh Raj PW-5 wherein he has stated that photographs of Med Singh had been taken in Police Station Ashok Vihar. It is stated that in this circumstance there being a valid ground for appellant Med Singh to have refused TIP and the eye witness having identified Med Singh in Court after a lapse of more than two years and no description having been given by the eye witness Vickey in his statement under Section 161 Cr. P.C.; and eye witness admittedly not knowing Med Singh from before, such identification is a useless identification having no sanctity of law and appellant Med Singh could not have been convicted on this ground alone; he is entitled to benefit of doubt. 25. On behalf of the appellant Brijesh Mawi, it has been argued that Vickey PW-1 had not identified appellant Brijesh Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 11 of 25 Mawi in the court; he is otherwise not a hostile witness and has attributed a specific role to appellant Med Singh but had omitted any role to co-appellant Brijesh; it is argued that testimony of PW- 1 is otherwise reliable and reliance must also be placed on that part of his version wherein he had refused to identify Brijesh Mawi. It is stated that the solitary circumstance against appellant Brijesh Mawi i.e. the recovery of the .38 revolver is shattered in view of the defence adduced by him; attention has been drawn to the version of DW-1 and DW-2; it is argued that both these witnesses have categorically stated that the police had not come to the second floor of F-4/64, Sector-16, Rohini on either 11.8.2003 or on 12.8.2003; defence witnesses have to be given the same weightage as the witnesses of the prosecution and their testimony cannot be brushed aside lightly; Ex.PW-1/B the alleged recovery memo bears the signatures of the attesting witness Pradeep Rawat who has not been brought into the witness box which again makes this document a suspect. It is argued that the prosecution has failed to connect all the links in the chain of evidence to exclude the possibility of non-tampering of the exhibits i.e. the bullets which had been sent to CFSL for expert examination. Admittedly in this case there were eight bullets which had been sent to the CFSL in the first instance and this is clear in terms of the first report of the ballistic expert Ex.PW- 21/A; thereafter after the arrest of appellant Brijesh Mawi and the alleged recovery of the .38 revolver at his instance, the .38 revolver with the four bullets had again been sent to CFSL for Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 12 of 25 examination and this is evident from the subsequent reports of the FSL Ex.PW-20/A and Ex.PW-20/B which show that only four bullets had been sent for the second examination i.e. the bullets mark B-1 to B-4 and there is no explanation with the prosecution as to why the other four bullets had not been sent, the Malkhana Mohorar with whom these exhibits had been deposited in this intervening period had not been examined; Register No. 19 containing entries of the deposit and withdrawal of the said exhibits from the Malkhana and the road certificate vide which the said exhibits had been sent to CFSL has not been proved; these links in the chain of evidence having remained incomplete, there is every possibility that these exhibits had been tampered with and in the absence of positive evidence to the contrary, no reliance can be placed upon this circumstance. 26. Learned defence counsel had placed reliance upon judgment reported as Des Raj Alias Dass Vs. State 2000 I AD (Delhi) 945 and also another judgment of the Apex Court Palia Vs. State of Punjab 1997 SCC(Cri) 383 to substantiate his submission that in the absence of this link evidence the possibility of the sample being tampered cannot be ruled out, appellant is entitled to benefit of doubt and a consequential acquittal. 27. The star witness of this case is PW-1 Vickey who was the eye witness to the incident. He had on oath reiterated the version as set up by him in his statement Ex.PW-1/A which had formed the basis of the rukka. He has deposed that on 06.6.2001 at about 10.20 PM when he was sitting outside the STD booth and Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 13 of 25 restaurant at J-196, Savitri Nagar, he saw a maruti car stop on the other side of the road; two men alighted from the car and came towards the STD booth; one of them was accused Satish and other was a man 5 feet 8 inches tall, well built and about 25 years in age. Both the said persons were armed with pistols; his maternal uncle Omiyo Dass who was running the STD booth was fired at by both the said persons. His uncle bent down to protect himself; the two men fired again; PW-1 i.e. Vickey rushed to bring an iron palta from his adjoining sweet shop to save his uncle who shouted at him “Bhag Ja”; his uncle had already been hit by bullets and he was bleeding; the appellant fled away from the scene; at that time PW-1 i.e. Vickey saw Med Singh (present in the court) sitting in the driver seat. 28. This is the role which has been attributed by the eye witness to appellant Med Singh. PW-1 had also identified the four bullets sealed with the seal of KCV/FSL contained in a glass bottle with a seal of AIIMS on the cap as also another set of four fired bullets produced from an envelope sealed with the seal of KCV/FSL. 29. In his cross-examination, he has admitted that he did not know Med Singh before the incident; he has stated that in his statement Ex.PW-1/A he had not mentioned that Med Singh or any person was sitting on the driver seat of the maruti car. It has also come in his cross-examination that even in his second statement recorded under Section 161 Cr. P.C. Ex.PW-1/H there is no mention of PW-1 having seen any person in the driver seat of Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 14 of 25 any maruti car. It was only in the third statement which was confronted to the witness Ex.PW-1/DA that there is a mention by the witness that while he was running he saw a man sitting in the driver seat of the maruti car. 30. SI Sudhir Sharma PW-24 has admitted that he had recorded three statements of Vickey. It has come in the categorical version of Vickey PW-1 that it was only in his third statement Ex.PW-1/DA before the Investigating Officer that he had mentioned that while he was running he saw a man sitting on the driver seat of a white maruti car; no detailed description or features of the said person had also been given; from this version what can be made out is that Vickey only had a fleeting glance of the person sitting in the driver seat of the said maruti car who was allegedly Med Singh. Incident had admittedly taken place at 10.00 to 10.20 PM when the sun had set and it had become dark. The vehicle i.e. maruti car was parked on the other side of the road. This is the categorical version of PW-1; as per the site plan the width of the road is 13 paces i.e. about 10 feet approximately. Vehicular traffic was moving; visibility was poor for the reason that it being night time coupled with the fact that the vehicle in which Med Singh was allegedly sitting was at a distance of more than 10 feet away from him; Vicky could thus have seen the said person only for a fleeting moment; at that time he was running from the scene of occurrence and obviously in a perplexed and confused state of mind. Crl. A. No.662/2008 and Crl. A.No. 646/2008 Page 15 of 25 31. It is in this background that we shall now consider the circumstance of the refusal of TIP by the appellant and identification of Med Singh by Vickey in the Court after a lapse of more than two years. 32. Smt. Bimla Kumari,M.M.,PW-18 had deposed that on 10.1.2002 an application had been filed before her for holding TIP of appellant Med Singh vide Ex.PW-18/A but on that day and also on the subsequent days i.e. 14.1.2002 and 18.1.2002 TIP could not be held. On 19.1.2002 appellant Med Singh had been produced before PW-18 but the appellant had refused to participate in the TIP proceedings stating that he had been shown to the witness by the police who had taken his photographs when he was in Police Station Ashok Vihar. The report of refusal in the handwriting of Med Singh is Ex.PW-18/C; a perusal of which endorses this deposition of PW-18. 33. In this context statement of ASI Des Raj PW-5 is relevant. He had arrested Med Singh on 5.1.2002 at Police Station Ashok Vihar in a case under Arms Act. In his cross- examination this witness had admitted that he had taken photographs of Med Singh for preparing his dossier.