Crl.A. No.38/2008 Page 1 of 37 i.11 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : January 23, 2009 + CRL.A. 38/2008 BRIJESH KUMAR ..... Appellant Through: Mr. Sanjay Sharma, Advocate versus THE STATE NCT OF DELHI ..... Respondent Through: Mr. Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. (Oral) 1. Heard learned counsel for the parties. 2. At 11:50 AM on 7.8.2002 at P.S. Shahdara, DD Entry No.9-A, Ex.PW-14/A was recorded by the duty officer, ASI Poonam Tomar, to the effect that an information has been received from Const. Murari on telephone that at a shop B-50 near Harkishan Public School a person named Sonu has been shot at. Soon thereafter vide DD No.10-A, Ex.PW-14/B, recorded at 11:55 AM same information was received and recorded. 3. SI Rang Lal PW-23, accompanied by two police Crl.A. No.38/2008 Page 2 of 37 officers, one of whom was Const. Rambir PW-13, left for the spot where Sonu was stated to have been shot; as disclosed in the DD Entry, and on reaching the site of the occurrence learnt that the injured named Rajiv was removed to GTB Hospital. SI Rang Lal proceeded to GTB Hospital and in the meanwhile Const. Rajender PW-16, also reached soon thereafter along with a copy of DD No.10-A. 4. The injured was declared unfit for statement and hence his statement could not be recorded. 5. Evidenced by Ex.PW-1/A, the MLC of Rajiv Jain, he was admitted at GTB Hospital at 11:45 AM. As recorded in the MLC, he was brought by his brother Pradeep Jain PW-5. 6. PW-1 Dr. Pancho Lapcha examined the injured whose name was disclosed as Rajiv Jain and pertaining to the history of the injury recorded on Ex.PW-1/A:- “Alleged h/o gun shot injury, history given by brought by.” He noted on the MLC that the patient was gasping and had an entry wound on the right chest in infraclaricular region and an exit wound on the right arm. He referred the injured for emergency surgery. Unfortunately, before any medical assistance could be rendered, Rajiv died at around 12:25 noon. 7. Const. Lakhbir, on duty at GTB Hospital informed the Crl.A. No.38/2008 Page 3 of 37 duty officer at the police station that Rajiv Jain had died, which information was recorded vide DD No.32-B at 1:15 P.M. 8. Since Sanjay Jain PW-2, the brother of the deceased, was at the hospital, SI Rang Lal recorded the statement, Ex.PW- 2/A, of Sanjay Jain and made an endorsement thereon, Ex.PW- 23/A, and forwarded the same to the police station for registration of a FIR. Ex.PW-2/A and the endorsement Ex.PW- 23/A were transmitted from the hospital to the police station by Const. Rajender PW-16, upon which PW-8 ASI Kishan Dutt, registered FIR Ex.PW-8/A at 2.25 PM. 9. In his statement Ex.PW-2/A, Sanjay informed that he was a resident of House No.B-95 Gali No.1, Jyoti Colony, Shahdara and that at House No.D-50, West Jyoti Nagar, Shahdara they had a shop, at the rear of which work of powder coating used to be conducted. That they were three brothers and all used to manage the shop and the work of powder coating. He stated that his brother Rajiv Jain @Sonu was at his seat in the retail shop and that he i.e. Sanjay was standing on a slab of the shop. The time was around 11:00 AM. A boy named Brijesh (accused) came there. That he knew Brijesh quite well as Brijesh was residing in the neighbourhood; two streets away and used to visit the shop for making purchases. He stated that Crl.A. No.38/2008 Page 4 of 37 Brijesh had a conversation with his brother and started abusing his brother, telling him that he i.e. his brother was defaming him in the locality and that today he would not spare his life. So stating, Brijesh took out a katta (country made pistol) and fired at his brother and fled. He i.e. Sanjay raised a hue and cry that his brother had been shot at and ran after the assailant. On hearing his cries, his younger brother Pradeep Jain and some workers doing powder coating reached the shop. That he continued to run after the assailant but could not catch him. That when he came back to the shop his brother Pradeep Jain, with the help of a neighbour Ashish had already removed Rajiv Jain on a scooter to GTB Hospital. 10. The police took possession of MLC Ex.PW-1/A and sent the dead body of Rajiv Jain for post-mortem to UCMS and GTB Hospital, where post-mortem was conducted by Dr.S.K.Verma PW-4, who prepared the post-mortem report Ex.PW-4/A. 11. We have noted the injuries on the deceased as recorded in the MLC, in para 7 above; we note the injuries recorded in the post-mortem report Ex.PW-4/A. The same read as under:- “1. An oblique firearm entry wound, oval in shape of size 3.8 x 2.0 cms placed on Rt. shoulder posteriorly Crl.A. No.38/2008 Page 5 of 37 11 cms below the tip of Rt. shoulder and 3.5 cms from post axillary fold. Blackening present around the margins that were inverted. No tattooing seen. The wound was going anteriorly and to the left passing through the upper arm, Rt. chest cavity and Rt chest wall making an exit wound, tangential oval in shape of size 4.2 x 2 cms in Rt. midclaricular line 5 cms below the lower border of Rt. claricle and 3 cms to the Rt of midline. Blood was present all along the track. 2. Vensection wound over Lt. medical mallcolus.” 12. Proceeding to the spot on the day of the incident itself, rough site plan Ex.PW-23/C was prepared by SI Rang Lal. Blood samples, earth control, blood stained earth, blood stained pulses, blood sample from the road were lifted and seized vide seizure memo Ex.PW-2/B. The accused was apprehended the same day at 8:00 P.M. from his sister‟s house. 13. Investigation continued. Statements of persons under Section 161 Cr.P.C. were recorded. 14. On 27.9.2002 SI Mukesh Jain PW-10 went to the spot as directed by SI Rang Lal and as per information given by Sanjay Jain PW-2, and on his pointing out, prepared the site plan Ex.PW-10/A. 15. Since arguments have been advanced in appeal today with reference to the site plan, we may note that the same shows the house No.D-50 is a corner house and the shop inside the precincts of the house is in the right corner. The shop Crl.A. No.38/2008 Page 6 of 37 opens towards a road on the west. The said road runs from the south to the north. The northern boundary of the shop abuts a road running from the west to the east. In the site plan, the rest of the house i.e. at the rear of the shop as also towards its southern side has been shown as a factory. (We may note that according to the prosecution the factory is the place where powder coating job is done, reference whereof has been made in the statement Ex.2/A). 16. The place wherefrom the assailant fired at Rajiv has been marked at „A‟ on the road on which the shop opens. The said point „A‟ is on the road leading from the south to the north and is just at the opening of the shop on the road. It is towards the northern boundary of the shop. The place where Rajiv was shot has been marked at point „B‟ which is within the shop, at a distance of approximately 1/3rd of the length segment of the shop from the opening on the road in front. The place where Sanjay Jain was standing has been shown at point mark „C‟; which we note is towards the southern direction from point „A‟, i.e. where the assailant is stated to have fired from. The point is just in front of the southern boundary of the shop at its junction with the road in the front. 17. As per PW-20 SI Ashvir Singh and Investigating Crl.A. No.38/2008 Page 7 of 37 Officer SI Rang Lal PW-23, the appellant was arrested from the house of his sister at around 8:00 PM on 7th August 2002 i.e. on the day of the incident. 18. As per PW-20 and PW-23 the appellant made a disclosure statement Ex.PW-20/A in which he disclosed that he could get recovered the katta wherefrom the fatal shot was fired on deceased Rajiv Jain and informed that the same could be recovered from a drain near a corner of a street in Jagat Puri. 19. Since arguments have been advanced with respect to two facts disclosed in Ex.PW-20/A, the disclosure statement of the appellant, we note the said facts disclosed in Ex.PW-20/A. 20. It stands recorded in the disclosure statement that before going to the shop of Sonu the appellant had purchased corex medicine from a medical store at Durga Puri Chowk. The second statement recorded is that 5/6 months ago the appellant had purchased the weapon of offence from a Muslim boy at Garh Mukteshwar. 21. As per PW-20 and PW-23 no recovery could be effected from the drain, wherein as per disclosure statement Ex.PW-20/A, the weapon of offence was thrown. 22. The appellant was further interrogated and as per PW-20 and PW-23 he made a second disclosure statement Crl.A. No.38/2008 Page 8 of 37 Ex.PW-20/C in which he stated that the weapon of offence was hidden in bushes near a bus stand in front of Jagat Puri colony near a red light and that the appellant could get the same recovered. 23. The appellant led PW-20 and PW-23 to the bushes near the bus stand of Jagat Puri and got recovered a polythene sheet in which the katta and two cartridges were wrapped. One cartridge was spent and the other was a live cartridge. The same were seized vide seizure memo Ex.PW-20/E and before they were sealed a sketch, Ex.PW-20/D, of the katta was prepared by PW-20. 24. The witnesses to the incident, cited as witnesses of the prosecution, were Sanjay Jain PW-2, Bhagwat Prasad PW-3, Pradeep Jain PW-5 and Ashish Jain PW-6. 25. Since submissions have been made during hearing of the appeal with reference to the testimony of said witnesses, we propose to note their testimony. 26. Sanjay Jain PW-2, deposed that their family was running a kiryana shop and was carrying on work of powder coating at B-50, West Jyoti Nagar. That the work of powder coating used to be conducted from behind the shop. That the deceased Rajiv Jain was his brother. That Rajiv used to sit at Crl.A. No.38/2008 Page 9 of 37 kiryana shop. On 7.8.2002 at about 11:15 AM, during the day time, he was standing near a tea shop and Rajiv was sitting at the kiryana shop. At that time accused Brijesh came to the shop. He knew Brijesh as he was living in the neighbourhood and used to visit the shop to purchase goods. He stated that when Brijesh arrived at the shop he started abusing Rajiv Jain stating that Rajiv Jain had defamed him in the locality and so stating he took out a country made pistol and fired at his brother Rajiv Jain. He deposed that the bullet hit his brother on the right side chest. He stated that since Brijesh attempted to flee, he chased him while shouting that his brother was hit by a bullet. On hearing his noise, his younger brother Pradeep Jain arrived. He deposed that the accused could not be apprehended despite best efforts made by him and succeeded to flee. He deposed that he came back to the shop and learnt that with the help of one Ashish, his younger brother Pradeep Jain had taken his injured brother Rajiv Jain to the hospital on a scooter. He also went to the hospital where police met him and he gave a statement to the police which is Ex.PW-2/A and that it bore his signature at point „A‟. He deposed that after about one hour of reaching the hospital his brother Rajiv expired. He deposed that police officials brought him to the place of occurrence and at his Crl.A. No.38/2008 Page 10 of 37 instance the Investigating Officer prepared the site plan and lifted blood and blood stained earth which were seized in his presence as recorded in the memo Ex.PW-2/B. He identified his signatures on the memo at point „X‟. He deposed that Brijesh was arrested in his presence as per arrest memo Ex.PW-2/C which bore his signature at point „X‟. 27. Sanjay Jain was cross examined and on cross examination he stated that there was no tea shop nearby his shop. He admitted knowing the accused prior to the occurrence. He admitted that there was no dispute with the accused prior to the occurrence. He was partially cross examined on 31.5.2004. His cross examination continued on 2.8.2004. On said date, on being again questioned as to where was he standing at the time of the occurrence, he responded by saying that he was standing on the slab outside his shop and that his brother Rajiv Jain was present inside the shop. He stated in his cross examination that he was outside the shop when the accused came to the shop. He stated that the accused remained at the shop for one to two minutes. On being questioned as to how long did he chase the accused, he responded that he chased the accused for about 4-5 minutes. He went on to state that when he came back to the shop he saw that many persons had gathered outside the shop, Crl.A. No.38/2008 Page 11 of 37 but could not recollect their names. On further cross examination, he stated that the opening of the shop was towards the western direction and that the accused ran towards the south side on the road. 28. Bhagwat Prasad PW-3 deposed that on 7.8.2002 at around 11:00 AM he was proceeding to collect his dues and while on the way back he went to the factory of one Sunil Sharma but could not meet him. He said that he proceeded to shop of Sanjay which was in front of the factory of Sunil Sharma and that the accused was present at the shop of Sanjay and that he i.e. the accused was exchanging hot words with Sanjeev. That the accused threatened to see Sanjeev and fired a shot from a katta in his hand. He stated that Rajiv Jain brother of Sanjay Jain took Sanjeev to the hospital. He deposed that he followed them on his cycle. He stated that the person who was hit was known as Sonu. Since the witness was probably confusing on the names, at that point of time, the learned APP requested to cross examine the witness. 29. Deviating a little from the statement of PW-3, we want to record that if a witness is not able to recollect a fact which is sought to be proved by the prosecution, the witness should not be declared hostile and permission be sought to Crl.A. No.38/2008 Page 12 of 37 cross examine the witness. The correct approach is to seek leave of the Court to put a leading question or a suggestion to the witness. We are so recording because we are coming across large number of matters where we are noticing that a witness who is not able to correctly recollect a fact is immediately cross examined by the public prosecutor, of course, with the permission of the Court. This is not a correct approach in law. 30. Reverting back to the deposition of Bhagwat Prasad PW-3, he deposed that it was correct that the accused fired a shot at Sonu and not at Sanjay. He deposed that in the earlier part of his deposition he had committed a mistake when he said that the person shot at was Sanjay. He went on to depose that Sanjay chased the accused but could not apprehend him and hence returned. He deposed that he and Sanjay followed the victim to the hospital. 31. On being cross examined by the counsel for the accused he deposed that the factory of Sunil was at a distance of 1/1.5 kms from his shop and that he was having business dealings with Sanjay for last 1 year. He deposed that Sanjay, Sonu and accused were present when he reached Sanjay‟s shop. He deposed that Rajiv, elder brother of the victim also came there and he saw Rajiv a second after the shot was fired. He Crl.A. No.38/2008 Page 13 of 37 deposed that the police recorded his statement at around 4:00 PM at the spot. He deposed that he remained at the hospital till 3/3:30 PM and that the police did not meet him in the hospital. 32. PW-5 Pradeep Jain, deposed that on 7.8.2002 while he was working in a room adjacent to their shop at House No.D- 50, West Jyoti Nagar, clarifying that the shop is situated in the house, clarifying further that they were doing powder coating at that time, he deposed that his younger brother Rajiv @ Sonu was sitting at the shop and at about 11:15 AM he heard a bang (Dhamaka) and hence came out of the shop. He saw his elder brother Sanjay Jain running after accused Brijesh shouting that the accused had shot his brother Rajiv Jain. He deposed that he saw his brother Rajiv Jain lying smeared in blood near a bag of dal and a stool. He deposed that neighbours gathered on hearing the gun shot and one Ashish a neighbour, also came there. He deposed that with the help of Ashish he took his injured brother Rajiv in a two wheeler to GTB Hospital. 33. On being cross examined he stated that Rajiv was aged 18-20 years and was sitting in the shop since 7:00 AM. He stated that he used to start his work at the room at about 8:30 AM and that he used to work only on powder coating job. He stated that his brother Sanjay Jain also used to work on powder Crl.A. No.38/2008 Page 14 of 37 coating. To the question as to what distance did he see Sanjay running after the accused, he responded that the distance was 30-35 paces. He stated that Sanjay was running towards the north. He stated that the door of his shop is towards the east and the door of the room opens towards the road (The witness was referring to the room/shop where powder coating job used to be done). He stated that their house was situated on the corner of the road and that there was a road on three sides of their house. He stated that there is no road at the rear side of the house. He stated that his brother Rajiv was not having any enmity with the accused. He admitted that his brother Sanjay Jain was arrested in a case connected with teasing of a girl and was produced before a Magistrate at PS Seelam Pur and that he was apprehended by the police of Shahdara. 34. The last eye witness examined by the prosecution is Ashish Jain PW-6, who deposed that on 7.8.2002 at about 11/11:15 AM he was present at his shop and heard a noise of gun shot. He came out of his shop and saw Sanjay Jain and 10/12 person running with Sanjay shouting “goli mar di, goli mar di”. He deposed that he reached the shop of Rajiv Jain by which time Pradeep Jain had also reached and that Rajiv Jain was in an injured condition and was smeared with blood. He deposed that Crl.A. No.38/2008 Page 15 of 37 Pradeep Jain and he took out Rajiv Jain from the shop and took him to GTB Hospital on a two wheeler. Rajiv Jain was admitted at said hospital where he died after about an hour. At that point of time he was cross examined by learned APP. Once again we note that there was no need to cross examine the witness. He appears to be failing in his memory and hence the correct thing ought to be, after seeking permission of the Court, to put a leading question or give a suggestion. 35. A suggestion was put to him by the learned Public Prosecutor whether while chasing the accused Sanjay was shouting “Brijesh had shot dead Rajiv”, he denied having heard so. He stated that he knew the accused who was present in Court. He denied that he was won over by the accused. 36. On being cross examined by counsel for the accused he denied knowledge of any quarrel having taken place between the family of Rajiv Jain and some other persons about a girl a year ago. He denied any quarrel having taken place between Rajiv Jain and the accused prior to the date of the incident. 37. The appellant who was facing the charge of murder of Rajiv Jain i.e. for the offence punishable under Section 302 IPC, denied his involvement and either disclaimed knowledge or denied the incriminating circumstances and evidence put to him Crl.A. No.38/2008 Page 16 of 37 while being examined under Section 313 Cr.P.C. To the last question as to whether he had something to say, he responded that the case against him was false; that the deceased was killed due to some enmity with a person whose girl was teased by the deceased and in respect whereof proceedings under Section 107/151 Cr.P.C. were pending and that he i.e. the appellant was falsely implicated. 38. The appellant examined Bishamber Singh DW-1, who deposed that the appellant was a son of his friend Tika Ram and that Tika Ram came to his house on 7.8.2002 and informed him that the police was searching for his son and that he told Tika Ram to produce his son in the Police Station and let inquiry be made. He deposed that on the same day he accompanied Tika Ram and Tika Ram‟s daughter to the police station where accused Brijesh was produced by all of them at Police Station Shahdara and that next day he learnt that the accused Brijesh was implicated falsely in a murder case. 39. On being cross examined by the learned Public Prosecutor, Bishamber Singh stated that he did not know the house number of Tika Ram. He stated that Kamlesh, daughter of Tika Ram had accompanied them to the Police Station. He Crl.A. No.38/2008 Page 17 of 37 stated that he remained in the Police Station for about one to two hours. He denied deposing falsely. 40. By a cryptic decision, relying principally upon testimony of PW-2; holding that his presence at site cannot be doubted and that there was no reason to disbelieve PW-2; further recording that Rajiv Jain was hit on the chest with a bullet and the resultant injury was opined by the doctor to be sufficient in the ordinary course of nature to cause death; the learned trial Judge has convicted the appellant for having murdered Rajiv Jain. The appellant has been convicted for the offence punishable under Section 302 IPC. Sentence imposed is of imprisonment for life and to pay a fine in sum of Rs.10,000/-; in default to undergo simple imprisonment for two months. 41. At the hearing held today, Shri Sanjay Sharma, learned counsel for the appellant has inter alia urged the following:- (a) Presence of PW-2 at the spot at the time of the occurrence is doubtful and said fact stands established by his answers given in cross examination. Drawing our attention to the answer given by PW-2 on being cross examined, when he was asked to state the place Crl.A. No.38/2008 Page 18 of 37