Crl. A. No.340/2001 Page 1 of 45 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on:17th September, 2009 Judgment Delivered on:24th September, 2009 CRL.A. 340/2001 VIDYA SAGAR ANAND ………..Appellant Through: Mr. U.U. Lalit, Sr. Advocate with Mr. Bharat Dubey, Mr. K.K. Tyagi, Mr. Nitin Sangra, Ms. Pranchi Bajpai, Mr. Sidhesh Kotwal, Ms.Jesal Wahi and Mr. Mehul, Advocates. Versus ……..…Respondent STATE 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. 1. On 5.1.1990 at 12.02 PM information was received in Local Police Station Mandir Marg through Const.Usman Ali PW-2 that firing had taken place at Citizen Guest House. The said information was conveyed to the Addl. SHO as also to SI Satpal Yadav; it was reduced into writing vide D.D.No.10A Ex.PW-16/A recorded by SI Crl. A. No.340/2001 Page 2 of 45 Bans Bahadur PW-16. Ex.PW-16/A was marked to SI S.P.Yadav PW- 17 who along with Inspector Dalbir Singh reached the spot. ASI Lajja Ram PW-1 and Const.Usman Ali PW-2 were already present there. Vidya Sagar the owner of the guest house had been apprehended. PW-1 was holding a revolver in his hand which he had snatched from the hand of the appellant Vidya Sagar. The injured Mohinder Singh was lying unconscious in a pool of blood and was breathing heavily but was not yet dead. On the direction of PW-17, PW-1 removed the injured to Ram Manohar Lohia (RML) hospital. The injured was medically examined at 12.15 PM vide MLC Ex.PW-18/A by Dr.Sanjeev Aggarwal PW-18. Patient was declared brought dead. 2. PW-17 and PW-2 also followed PW-1 and the injured to the hospital. Statement of PW-1 Ex.PW-1/A was recorded by PW-17. As per this statement PW-1 along with PW-2 was on „bandobast‟ duty and were proceeding towards Raja Bazar; at about 12.00 Noon when they reached in front of Citizen Guest House they heard sounds of a bullet being fired; PW-1 saw that Vidya Sagar owner of the guest house was attacking a person whose name later on was revealed as Mohinder Singh; PW-1 and PW-2 apprehended Vidya Sagar and the .32” bore revolver held by him in his right hand bearing no.618450 was seized from him; up to this time appellant had already fired three bullets on the injured who was lying on the Crl. A. No.340/2001 Page 3 of 45 floor; H.C. Amar Singh PW-4 also reached the spot; PW-1 directed PW-2 to inform the SHO in the Police Station who reached the spot; on the direction of ASI Satpal Yadav the injured was removed to the hospital. 3. This statement was endorsed by PW-17 vide endorsement Ex.PW-17/A and the rukka was sent at 2.05 PM through PW-2 for the registration of the FIR. The FIR was registered by PW-16 under Section 302 IPC. The revolver which had been seized by PW-1 and handed over to PW-17; the chamber of which contained three empty cartridges and one live cartridge was taken into possession vide memo Ex.PW-1/B. The duty constable at the RML hospital Const.Rajesh PW-10 was handed over 13 articles by the duty doctor which included a revolver and the keys of a maruti vehicle which had been recovered from the deceased. The said articles were taken into possession by PW-17 vide memo Ex.PW-1/C. The dead body was sent to the mortuary. 4. Returning to the spot, PW-17 summoned the crime team. 14 photographs of the scene of crime Ex.PW-8/A-1 to A-14, negatives of which are Ex.PW-1/B-1 to B-14 were taken by H.C. Man Mohan Singh PW-8. The rough site plan Ex.PW-17/B was prepared at the pointing out of PW-2. A blood smeared bullet was lifted from the spot vide memo Ex.PW-2/E; a blood smeared button was also lifted from the spot vide memo Ex.PW-2/D; blood stained earth and earth control Crl. A. No.340/2001 Page 4 of 45 were lifted vide memo Ex.PW-1/D. These exhibits were deposited in the Malkhana with Mohorar Malkhana H.C. Manohar Singh PW-14 on the same day. 5. The accused who had already been apprehended was arrested; his personal search Ex.PW-2/F was conducted; it was found to contain the licence of the revolver issued in his name. On the same day i.e. on 5.1.1990, the accused got an empty cartridge recovered, from the almirah of his house at Ranjit Nagar, which was taken into possession vide memo Ex.PW-1/F. Accused made two disclosure statements, first disclosure statement Ex.PW-1/E is dated 6.1.1990 and the second disclosure Ex.PW-17/Z is dated 7.1.1990. In the first disclosure statement he disclosed that he could get certain property papers of Sita Ram Bazar recovered; which were taken into possession vide memo Ex.PW-17/D. In the second disclosure statement, the role of co-accused Ashok Kumar surfaced as per which Ashok Kumar had battered the head of the deceased with a hammer whereas the present appellant had pumped the bullet injuries on his person. No recovery had been effected pursuant to this disclosure statement. 6. Statement of Const. Usman Ali PW-2 also reported to be an eye-witness was recorded and he being the pillion rider of the scooter which was driven by PW-1, corroborated the eye-witness account of PW-1. Crl. A. No.340/2001 Page 5 of 45 7. The driver Khemchand PW-3 of the maruti vehicle No.DNC- 1734 i.e. the car of the deceased, had also witnessed this scene of occurrence and was the first person to inform the family members of the deceased. 8. H.C. Amar Singh PW-4 who had been posted in the Police Picket 50 yards away from the place of incident had also reached the spot on hearing the bullet sounds and saw the accused already apprehended by PW-1 and PW-2 with a revolver in his hand. 9. On 6.1.1990 the post-mortem on the deceased was conducted by Dr.Sanjay Dass PW-15 who vide his report Ex.PW-15/A had noted eight injuries on the person of the deceased:- “1.Circular wound 0.6 cm in diameter with abraided margins on the centre of the dorsum of left hand. There is tattooing by unburnt powdered partices around it spreading 5 cm in diameter (wound of entry). 2. Regular margined oval wound 0.8 cm.x0.9 cm on the centre the centre of palm of left hand corresponding to external injury no.1 ( would of exit). 3. Laceration 1.2 cm x 0.3 cm x slim deep (longitudinally placed) 1 cm distal to external injury no.2. 4. Compound fracture of middle phalanx of left middle finger with laceration around it. 5. Circular wound 0.6 cm in diameter with abrasion collar on right side of neck 4 cm above clavical and 0.5 cm posterior to the sterno cledo mastord muscle (wound of entry). Crl. A. No.340/2001 Page 6 of 45 6. Irregular margined wound 2.5 cm x 2 cm on midline of neck 2cm above the thyroid cartilage( wound of exit). 7. Lacerated wound 6cm x 0.5 cm x scalp deep(coronally placed) on centre of right parietal region. 8. Lacerated wound 6 cm x 0.5 cm x scalp deep (coronally placed) on right parietal eminence. 10. The dead body was identified by Kulvinder PW-5 brother of the deceased vide memo Ex.PW-1/C. 11. On 12.1.1990 ASI Abdul Kaleem PW-7 collected the post- mortem report and the clothes of the deceased and deposited them in Malkhana on the same day. 12. The site plan to scale Ex.PW-11/A was prepared on 15.2.1990 by Inspector Devender Singh. 13. On 16.1.1990 the exhibits of the case were sent through PW- 7 to the CFSL. The ballistic examiner Mr.B.Moitra vide his report Ex.PA dated 27.3.1990 opined on parcel nos.1 to 4 and parcel no.9 to 10. Parcel no.1 was the .32” bore revolver bearing no. 618450 of the accused; parcel no.2 contained three .32” cartridges marked C- 1 to C-3 and another .32” cartridge C-4; C1 to C3 were the cartridges which had been recovered from the chamber of the revolver of the accused. Parcel no.3 contained one .32” cartridge mark C-5 which had been got recovered by the accused pursuant to his disclosure statement; .32” damaged lead bullet mark BC-1 retrieved from the spot had also been examined; Parcel no.10 Crl. A. No.340/2001 Page 7 of 45 contained five .32” cartridges mark C-6 to C-10 which had been found in the chamber of the revolver of the deceased. 14. Ex.PA opined that the revolver of the accused mark W-1 was in a working order; the three .32” cartridge cases Ex.C-1 to C-3 and the .32” cartridge case C-5 as also the bullet BC-1 which had been retrieved from the spot had been fired from the said revolver in question i.e. the revolver of the accused. 15. Vide report Ex.PB dated 27.3.1990 the CFSL had examined a blood stained button in parcel no.5 which had been retrieved from the spot; this was compared with another grey colour stone piece which had been retrieved from the shirt of the deceased and the scientific examination of the same revealed that they were both similar to each other in physical character and the density distribution of particles establishing that the blood stained button which had been retrieved from the spot was the missing second button of the shirt of the deceased. 16. Serological examination of the exhibits vide report Ex.PD dated 28.3.1990 of C.M.Patel revealed that blood group „O‟ was detected on the clothes of the deceased which was also his blood group. 17. The various DD entries regarding the entry and arrival of various police officers at the Police Station Mandir Marg had been Crl. A. No.340/2001 Page 8 of 45 exhibited by Bans Bahadur PW-16 in his testimony and we shall revert back to them in the later part of the judgment. 18. This is the sum total of the evidence both oral and documentary which has been collected by the prosecution. 19. The Trial Judge vide his impugned judgment had convicted the appellant for the offence under Section 302 of the IPC for having committed the murder of Mahinder Singh as also for the additional offence under Section 27 of the Arms Act for having illegally used the weapon of offence i.e. his .32” bore Webley Scott revolver which had caused the death of the deceased. While returning the finding of guilt, the Trial Judge had relied upon the versions of the eye- witnesses i.e. SI Lajja Ram PW-1, Const.Usman Ali PW-2, Khem Chand PW-3 and H.C. Amar Singh PW-4. This evidence coupled with the medical report i.e. the post-mortem evidencing bullet injuries on the person of the deceased which corroborated the ocular version of the eye-witnesses, advanced by the report of the ballistic expert that the bullet retrieved from the spot was the bullet which had been fired from the fire arm of the accused were the cumulative factors which had led to the conviction of the accused. 20. On behalf of the appellant, arguments have been addressed at length. I. It is submitted that the presence of the eye-witnesses at the spot is suspect and it has not been proved that they have witnessed Crl. A. No.340/2001 Page 9 of 45 the incident as deposed to by them; in this regard the trial Judge has not appreciated their versions in the correct perspective. Learned senior defence counsel has assailed the presence of all the aforenoted eye-witnesses namely ASI Lajja Ram PW-1, Const.Usman PW-2, Khem Chand PW-3 and Const.Amar Singh PW-4. A. Qua the presence of PW-1, it has been submitted. (i) That as per the version of prosecution, PW-1 was the person who had removed the injured to the hospital and he being an eye-witness there is no explanation as to why in the „alleged history‟ recorded in the MLC there is no mention or detail of the incident; the name of the deceased Mohinder Singh has also been added later on. The explanation furnished by PW- 1 in his cross-examination that at that time when the MLC and death summary were prepared he had gone to make a telephone call, on the face of it appears to be false as it is a strange co-incidence that on both these occasions he had gone to make a telephone call; when otherwise he should have been in attendance as it was an urgent duty; he having brought a near dead person to the hospital. Attention has been drawn to the cross- examination of Dr.Sanjeev Aggarwal PW-18 who has prepared the MLC wherein he had admitted that no Crl. A. No.340/2001 Page 10 of 45 history of the injuries of the deceased had been given to him; in his cross-examination he had been confronted with his earlier statement which he had given to the police wherein he had enquired from PW-1 as to how the bullet injury had been found on the dead body to which PW-1 had replied that he had no knowledge about it. In these circumstances, it becomes clear that the PW-1 was not an eye-witness; he having no knowledge about the incident. ii. Presence of PW-1 and PW-2 has not been shown in the site plan Ex.PW-17/B obviously for the reason that they were not present at the spot, iii. Photographs had admittedly been taken at the spot but the photographs have neither depicted the presence of the accused nor of PW-1 and this was for the reason that neither of them i.e. neither the accused nor PW-1 were present at the spot. iv. Ex.PW-18/A has recorded that PW-1 had taken the deceased to the hospital and this fact is not disputed but the aforementioned discrepancies as pointed out clearly show that PW-1 has been planted as an eye-witness later on and he had not witnessed the incident. Crl. A. No.340/2001 Page 11 of 45 B- Qua the presence of PW-2, it has been submitted :- i. In his entire examination-in-chief he has not whispered a word that he had witnessed the incident; he has only deposed that when he along with PW-1 had heard the bullet sound they had reached the Citizen Guest House where in the verandah they saw a man lying there in a pool of blood and the accused was also standing there; in this version he had not stated that he had seen the incident; it is submitted that it was only when he had been permitted to be cross-examined by the Public Prosecutor that he had stated that he had seen the firing incident. ii. As per the prosecution version, the first D.D. i.e. D.D. No.10A Ex. PW-16/A was recorded on the telephonic message which had been transmitted by PW- 2 but the perusal of this document shows that there is no mention of any detail of the incident and had PW-2 been an eye-witness, his natural narration would have been to disclose the name of the assailant, the name of the deceased as also the spot of occurrence but none of these details have been mentioned in Ex.PW-16/A. Attention has been drawn to his cross-examination wherein he had admitted that in this telephonic Crl. A. No.340/2001 Page 12 of 45 conversation he had not revealed that he made the telephonic call from the reception of the guest house or that the person who had fired had been apprehended or that ASI Lajja Ram was present at the spot or about the religion of the victim. Attention has also been drawn to his version wherein PW-2 has stated that he did not see the bullet being fired but on hearing the bullet sound they had run towards the place of occurrence, obviously for the reason that he had not witnessed the incident. iii. Statement of this witness had not been recorded even up to the time when he had remained in the hospital for which again there is no explanation as up to that time the injured had been administered first aid and if PW-2 was an eye-witness he would have in the natural course disclosed the same to the Investigating Officer who was also present in the hospital. iv. Admittedly, MLC of the deceased Mohinder was prepared in his presence but no detail of the incident had been mentioned in the MLC, again throwing suspicion on the presence of the PW-2 at the spot. C- Qua the presence of PW-3, it is submitted:- Crl. A. No.340/2001 Page 13 of 45 i. If PW-3 was the driver of the deceased there is little answer with the prosecution as to how the car keys have been recovered from the person of the deceased i.e. from his pant pocket and not from PW-3. ii. Conduct of PW-3 is highly unnatural; as per his version after witnessing the incident he did not inform the police but he straight away went to the house of the deceased where he met his mother who on hearing the news became unconscious but admittedly he did not take her to the hospital; neither did he bring any doctor to the house to provide first aid to her; he returned back to the spot at 4.30 PM and in this entire intervening period from about 12.00 Noon i.e. the time of occurrence up to 4.30 PM he was sitting tight with no action or reaction on his part. iii. As per his version he had informed about the incident to the family of the deceased at 12.30 PM and the mother, „mausi‟ and Paramjeet Singh younger brother of the deceased had reached the spot but they had not gone to the hospital. PW-1 had also admitted that none of the family members of the deceased had come to the hospital up to the time when he stayed there which was up to about 3.00PM which again throws Crl. A. No.340/2001 Page 14 of 45 doubt on the veracity of the version of PW-3 as if the family members of the deceased had learnt about his death at 12.30 PM it is not possible to believe that none of them would have gone to the hospital to find out about his fate. iv. The role of co-accused Ashok who is admittedly a proclaimed offender has for the first time surfaced in the cross-examination of PW-3 and none of the preceding eye-witnesses i.e. PW-1 and PW-2 have mentioned about his presence. v. The deceased was also a proclaimed offender, he was a B.C.( bad character) of the area; admittedly he had suffered death at the hands of some person but who is that person has not been established by the prosecution. D- Qua the role of H.C. Amar Singh PW-4 it has been submitted:- i. He has claimed himself to an eye-witness yet he is not so and this is clear from his version on oath; he has admitted that when he reached the spot Vidya Sagar had disclosed the name of the deceased as Mohinder Singh meaning thereby that at the spot itself PW-4 knew about the identity of the deceased. He had Crl. A. No.340/2001 Page 15 of 45 admittedly remained at the spot till 7.00PM. As per his version Usman Ali PW-2 had also remained at the spot for 45 minutes before going to the hospital and he i.e. PW-2 had narrated the incident to SI S.P. Yadav and his statement was recorded but no such statement is on the record for which there is no explanation. ii. Admittedly, PW-4 was holding a wireless set; as per his statement he had handed over two wireless sets in the Police Station on his arrival back in the Police Station; there is no explanation as to why if he had a wireless set with him, no information was transmitted by him to the senior officers about the incident which throws doubt on his presence at the spot. II. Attention has been drawn to MLC Ex.PW-18/A, admission and discharge record Ex.PW-18/DS, the Death Report Form Ex.PW- 1/DB as also the entry page of the Mortuary Register of the hospital Ex.PW-18/DA wherein the name of the deceased was not known right up to 5.10 PM i.e. the time when the dead body had been taken to the mortuary and the deceased continued to remain unidentified upto that time which is contrary to the ocular testimony of the witnesses who have deposed otherwise. Attention has also been drawn to DD no.46B Ex.PW-16/DD showing the departure of SI Ishwar Singh at 3.15 PM for the RML hospital and his arrival entry Crl. A. No.340/2001 Page 16 of 45 i.e. DD no.52B Ex.PW-16/DE showing his arrival in the police station at 5.25 PM after depositing the dead body in the mortuary at 5.10 PM. It is submitted that SI Ishwar Singh had specifically been deputed to deposit the dead body of Mahinder Singh in the mortuary for which purpose he had left at 3.15 PM and even when the dead body had been deposited in the mortuary at 5.10 PM, his identity was still unknown which throws clouds of suspicion on the investigation. Kulvinder PW-5 the brother of the deceased had as per his version gone to the hospital in the afternoon; he had reached there at 4.30 PM and remained there upto 5.30 PM; he had met the doctor in the emergency ward; even up to that time there is no explanation as to why the identity of the deceased remained a secret. III. H.C. Man Mohan PW-8 was the photographer who had gone to the Citizen Guest House vide his vide his departure entry Ex.PW-8/DA which shows that he had left the Police Station at 11.55 AM. It is submitted that the first information of the incident had been recorded in DD No.10A at 12.02 PM and PW-8 leaving the Police Station to photograph the scene of crime at 11.55 AM shows that the offence had been committed prior in time to 11.55 AM thus throwing doubt on the veracity of the rukka. IV. SI S.P. Yadav PW-17 had taken the accused to the Police Station at 7.05 PM meaning thereby that the accused had remained Crl. A. No.340/2001 Page 17 of 45 at the spot till that time; PW-4 has also corroborated this version; attention has been drawn to the further testimony of PW-17 who has stated that at 4.30 PM, at the spot he had interrogated the accused in the presence of ASI Lajja Ram and wherein the accused had disclosed that he could get recovered an empty cartridge which was subsequently recovered from the almirah in his house; he led the police party there and got the recovery effected; it is submitted that if at 4.30 PM the accused had gone with the police party for the recovery how PW-4 had found the accused present at the spot up to 7.00 PM is not reconciled; the DD entry Ex.PW-16/DA recorded at 7.05 PM evidenced that the accused had been brought to the police station at that time; at 8.30 PM he was taken out of the lock up and interrogated; thereafter at 10.20 PM he had again been put back in the lock up; even presuming that the accused had been taken for the recovery after he had been taken to the police station there is no departure entry from the police station to the said effect; alleged recovery of the cartridge from his house on 5.1.1990 is clearly false. This recovery was also effected without any disclosure statement of the accused and cannot be a piece of evidence under Section 27 of the Evidence Act. Arrest memo of the accused has also not been proved. V. Qua the testimony of SI Bans Bahadur PW-16, learned defence counsel pointed out the various DD entries proved by him. DD Crl. A. No.340/2001 Page 18 of 45 no.10-A Ex.PW-16/A recorded at 12.02 PM on the commission of an offence in Citizen Guest House has not been disputed by the defence. Attention has been drawn to the second DD recorded