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Judgment
Dr. S. Muralidhar, J
1.These appeals are directed against the impugned judgment dated 18th July 2014 passed by the learned Additional Sessions Judge, Dwarka Courts,
New Delhi in Sessions Case No.20/2012 arising out of FIR No.240/2011 registered at Police Station (“PSâ€) Palam Village convicting the three
accused, i.e. Vinod @ Vicky (“A1'), Pramod Vats @ Sanshyi (“A2â€) and Manoj Kumar (“A3â€), for the offence under Section 302 read
with Section 34 Indian Penal Code (“IPCâ€) and convicting A1 under Section 482 IPC.
The appeals are also directed against the impugned order on sentence dated 19th August 2014 sentencing the Appellants for the offence under
Section 302 read with Section 34 IPC to undergo rigorous imprisonment (“RIâ€) for life with fine of Rs.60,000/- each and, in default of payment of
fine, to undergo simple imprisonment (“SIâ€) for one year; and A1 to imprisonment for one year and fine of Rs.1,000/- and, in default of payment
of fine, to undergo SI for one month for the offence under Section 482 IPC. The sentences were directed to run concurrently.
Case of the prosecution
At 10.01 pm on 6th September 2011, Rekha (PW7), wife of the deceased, Balwan Solanki, made a call to the Police Control Room (“PCRâ€)
from her mobile number stating that at House No.WZ-608, near Shiv Mandir, Palam Chopal, her husband had been shot by a firearm. In the said PCR
form (Ex.PW25/A), a noting was made on the right side that the call was true. At 10.26 pm, it was noted in the PCR form that Balwan, a resident of
the said place, had been shot at by Vicky (A1); that at the spot two cartridges had been found; that the injured had already been taken to the Mata
Chanan Devi Hospital and that the Station House Officer (“SHOâ€) with his staff was present at the spot. A further noting at 10.52 pm was that
the SHO with the staff as well as the crime team was at the spot.
At 11.29 pm, it was noted that the injured had been brought dead to the Mata Chanan Devi Hospital. He had bullet wounds on his chest as well as
on the right side and there was a bullet wound in his knees. It was further noticed, “Inki property ka mamla tha, paise ki len den thiâ€. Inspector
Ramesh Khanka (PW35) was on patrolling duty with the staff. He was Inspector at PS Palam Village. At around 10 pm, he received the above
information from the PCR. He then reached the spot, i.e. WZ-608, Badiyal Mohalla, near Shiv Mandir, Palam Village. On the corner of the Shiv
Temple, he noticed blood and two empty cartridges. While he was still there, some other police staff also arrived.
Then PW35 along with Head Constable (“HCâ€) Rakesh (PW36); Sub Inspector Virender (PW28) and driver went to Mata Chanan Devi
Hospital. The deceased had been brought dead. PW35 then collected the Medico Legal Certificate (“MLCâ€). Baljit Solanki (PW2) (the younger
brother of the deceased) met him in the hospital and informed PW35 that he along with his relatives had brought the deceased to the hospital. PW35
then recorded the statement of PW2 (Ex.PW2/A) and on that basis prepared the rukka (Ex.PW35/A).
In his initial statement (Ex.PW2/A), PW2 informed PW35 that at around 9.30 pm, after dinner, he was standing with his elder brother (the
deceased) in the corner of the Shiv Mandir and chatting when a white colour Maruti car proceeding towards Harijan Basti, came there and stopped in
front of them. From the driver side, A1 and from the rear seats, his brother Manoj (A3) and Vinod (A2) got down. They all belong to the same village
and were known to PW2 from before. They then entered into a scuffle with the deceased and before PW2 could intervene, A1 took out a pistol and
fired twice or thrice on the deceased. The three accused then ran away from the spot in the same car in the direction of Lodhi Chowk. The other
brother of the deceased, Sandeep (PW8), came there; they then picked up the injured and took him to Mata Chanan Devi Hospital where he was
declared “brought dead†by the doctors. PW35 then prepared the rukka and sent it with PW36 to the PS for the registration of the FIR.
At the hospital, the MLC was prepared by Dr. Rakesh Prasad Sahi (PW4). He handed over to PW35 the shirt of the deceased in a sealed parcel
along with the sample seal. PW35 then returned to the spot and prepared a rough sketch of the empty cartridges. The empty cartridge was also
picked up and preserved. One bullet was found near the electric pole which was also seized in a similar manner. According to PW35, they then tried
to trace those involved but could not find anyone.
The post-mortem of the deceased was conducted by Dr. Yogesh Tyagi (PW19). The post-mortem report (Ex.PW19/A) described the external
injuries thus:
(i) Firearm entry wound over the left knee-front. The track of the wound was going backward, upwards and outwards after the lower end of femur.
A crater was present at the lower end of the femur due to impact of bullet.
(ii) A firearm exit wound over the back of the left thigh, upper-third, 24cm above the knee joint of size 1.4 x 0.8 cm.
(iii) Firearm entry wound over the right chest, front with absent singing and tattooing. The track was going through the lower lobs of both lungs which
were collapsed. About one litre blood was present in both the chest cavities.
(iv) A firearm exit wound was present over the back of the left chest 11cm outer to mid-line and 28cm from the top of left shoulder of size 1.4 x 1.0
cm.
(v) The cause of death was shock of firearm injury over chest. All injuries were ante-mortem in nature. The time of death was 12-18 hours prior to
the post-mortem examination. The post-mortem took place at 11 am on 7th September, 2011.
Arrest and recoveries
According to PW35, on 27th September, 2011 he received information from the Inter-State Crime Branch that A1 had been apprehended with
some illegal arms near Mundka Metro Line. He had admitted his involvement in the present case. PW35 along with the staff reached the Court of the
learned ACMM at Tis Hazari and with the permission of the learned ACMM interrogated A1 and arrested him (Ex.PW29/A). The disclosure
statement of the A1 was recorded. According to PW35, despite sincere efforts, the mobile phone could not be recovered.
On 28th September, 2011, PW35 went to Bulandshahar, U.P and reported to the local PS. A1 is supposed to have disclosed that after the incident,
he and his cousin Monu were fleeing in his car and after reaching Bulandshahar, he fired a shot on the thigh of Monu. He learnt that Monu had been
referred to a better hospital on 8th September, 2011 itself. On the next day, A1 is supposed to have taken PW35 to Village Nangali Tigga and got
recovered the Maruti car having a fake number plate of DL-9CE-6934 whereas its actual registration number was DL-9CM-0457. Witnesses to the
seizure were constable Subhash (PW43), Pokhpal Singh (PW17) and constable Rakesh (PW29). PW35 stated that he took photographs of the car
from his mobile phone.
Thereafter, A1 took the police to Hotel Sahil in Aligarh where he supposedly stayed. The manager of the hotel, Shravan Kumar Sharma (PW18),
identified A1. Thereafter, A1 led the police to Rishikesh and Neelkanth and to a lodge at Sidhibali. The manager of the hotel, Rajender Singh Chauhan
(PW32), identified the accused.
On 1st October, 2011, A1 led the police to Bahadurgarh and pointed out the shop from where he purchased the fake number plate which was
affixed on the Maruti car. The owner of that shop Navin (PW12) also identified A1.
At the end of the investigation, a charge-sheet was filed. Initially, by an order dated 14th February, 2012, only A1 was charged with the offence
under Section 302 IPC and Section 482 IPC (for using the fake number plate on the car used by him). Subsequently, after the arrest of A2 and A3, by
an order dated 17th December, 2012, they too were charged for the offence under Section 302/34 IPC and 482/34 IPC.
Statements of the accused
Forty nine witnesses were examined by the prosecution. In his statement under Section 313 of the Code of Criminal Procedure (“Cr PCâ€),
while denying the circumstances put to him, A1 stated that he had been falsely implicated; that he was on his way from Gola Dairy/ Shyam Vihar to
his residence when he was arrested. He maintained as under:
“I am innocent and I have been falsely implicated in this case. Criminal case was pending against the deceased on the complaint made by me as
well as another case registered on the complaint of my father. There was also a dispute between me and opposite party (complainant party) on a plot
in a Harijan Basti. I used to be pressurized by the deceased to withdraw my case in the court and for which I was not ready I and my brothers have
been falsely implicated after due deliberation discussion by the complainant party. At the alleged time of incident 1was present in the jurisdiction of
Shyam Vihar near Gola Diary which may be about15 KM from the place of occurrence. The complainant rang me on my mobile no. on 6.9.2011 at
9.45 PM and talked for about three minutes without telling the purpose however, I rang up from my mobile telephone to the complainant at 9.53 PM
Complainant after verifying my presence on telephone in Delhi has falsely implicated me in this case.â€
A supplementary statement was recorded on 31st May, 2014 in which A-1 denied that he was in the area of Pochanpur. He claimed that he was
but near the Gola Dairy/Shyam Vihar which was near Pochanpur tower.
A2, Pramod, too denied his involvement. According to him, there was a dispute between the accused party and the complainant party over a plot
in Harijan Basti. The accused party used to pressurize the complainant party to withdraw the case in the Court which they declined. As a result, the
complainant party had falsely implicated the accused. A2 maintained that at the alleged time of the incident, he was present at home. According to
him,
“The complainant rang up my brother Vinod @ Vicky on 6th September 2011 at 9.45 PM on his mobile telephone and talked for about three
minutes without telling the purpose however, my brother Vinod rang up from his mobile telephone to the complainant at 9.53 PM. Complainant after
verifying my presence on telephone in Delhi has falsely implicated his in this case.â€
As far as Manoj (A3) is concerned, he too maintained likewise. A supplementary statement was recorded of A3 on 31st May, 2014regarding
location of the mobile phone. No defence evidence was led.
Impugned judgment of the trial Court
In the impugned judgment dated 18th July, 2014, the trial Court came to the following conclusions:
(i) The present case was based on the eye witness account of Baljit (PW2), the younger brother of the deceased; Seema (PW6) the wife of PW-2;
and the other brother, Sandeep (PW8). It also hinged on the evidence of Rekha (PW7), the wife of the deceased. From an analysis of the evidence of
PWs 2, 6 and 8, it could safely be concluded that “the deceased was fired upon by accused Vinod @ Vicky after sharing common intention with
other accused persons before 10:00 pm. There is connectivity between the mobile phone of deceased and accused Vinod @ Vicky first at 9:45 pm
and thereafter at 9:53 pm on 09.06.2011. In this regard, Pawan Singh (PW14), Nodal Officer, Idea Cellular Ltd., has proved on record that mobile no.
9911074656 is owned by Balwan Singh (deceased) in terms of Ex.PW14/A and mobile number 9891787703 is owned by accused Vinod @ Vicky in
terms of Ex. PW14/C.â€
(ii) From the CDRs, it would be concluded that there was telephonic contact between A1 and the deceased at 9.45 pm on 6th September, 2011.
Thereafter, at around 9.53 pm, on the same day i.e. 6th September, 2011, A1 had made a call from his mobile number on the mobile number of the
deceased. The location of both mobile phones was near the spot. The defence taken by A1 to the contrary was not substantiated by the cell ID
location of his phone which shown it to be near Pochanpur, a short distance from the spot. Thus, the plea of A1 that he was at Gola Dairy in Shyam
Vihar was false which further incriminated him.
(iii) The testimony of eye witnesses who spoke consistently about the deceased having been shot at by A1 with the participation of A2 and A3 was
truthful and believable. The fact that PW2 did not intervene to save the deceased who was scuffling with A1 to A3 does not throw doubts on his
testimony or his presence at the spot. The minor contradictions did not affect the veracity of his deposition. Even the depositions of PWs 2, 6, 7 and 8
were consistent. There were no material contradictions or improvements.
(iv) The non-seizure of the bloodstained clothes of PWs 2, 7 and 8 by the police does not create a doubt regarding their presence at the spot and
removing the deceased to the hospital.
(v) The testimony of PW8 was duly corroborated by Constable Shyam Lal (PW25) who deposed that on 6th September, 2011 at about 10.01 pm he
received information from the said mobile number regarding bullet injury to the husband of PW8. This was received by Shyam Lal (PW25) and later
passed on to SI Shanti Prakash (PW30) vide DD No.85B(Ex.PW16/A), the mere non-mention of the other two accused in the very first information
given by Rekha again does not throw any serious doubt about the veracity of her deposition.
(vi) The car which was used in the commission of the offence was recovered at the instance of A1 with a fake number plate. The motive for
commission of the crime was proved and in any event, with criminal cases pending between the parties and the deceased facing criminal charges in
FIR No.17/2009 registered at PS Palam Village in which A1 was the complainant, showed that there was motive for commission of the crime. The
eye witness account was corroborated by both medical as well as forensic evidence.
As already noticed, by a separate order on sentence, the trial Court sentenced the Appellants in the manner indicated hereinbefore.
Submissions on behalf of the Appellants
Mr. Manoj Ohri, learned Senior Counsel appearing for A1 and Mr. Sacchin Puri, learned Senior Counsel appearing for A2 and A3 submitted as
under:
(i) Despite PW2 stating that the accused persons were known to the victimâ€s family since childhood, none of the names of the accused persons
were mentioned by PW8 in the first instance as indicated in the left side of the PCR form recorded. Reliance is placed on the decisions in State v.
Lallu Ram III (2016) CCR 59 (Del) and Rajender v. State 2011 (2) JCC 1134.
(ii) What was proved through Kartar Singh (PW13) was only Part-I of the PCR form and not Part-II. Relying on the decisions in Purshottam Chopra
v. State (Crl.A. 121/1999, decision dated 23rd May 2011) and Pradeep Khatri v State 2014 (4) JCC 3003, it is submitted that what was only proved
was Part-I of the PCR form.
(iii) There was discrepancy in the time of recording of the statement of PW2. According to him, his statement was recorded by PW35 at 10.45pm
whereas the IO (PW35) stated that it was recorded at 1.15-1.30 am. The FIR was registered only at 2.30 am. Despite the presence of PWs 6 and 7
at the spot, their statements have not been recorded. The rukka was not prepared on that basis even though the PCR call had been made by PW7. It
is submitted that the delay in lodging the FIR was fatal to the prosecution case.
(iv) The presence of the eye witness at the spot was doubtful particularly since PWs 2, 6, 7 and 8 had not mentioned about the presence of each
other. In the rukka, PW2 had not mentioned the presence of PW7. In her entire examination-in-chief as well as cross-examination, PW7 had not
mentioned about the presence of PW2 and Sandeep (PW8) and had also not mentioned about the presence of Seema (PW6). Further, despite being in
the same van, which took the deceased to the hospital, PW2 did not mention about any dying declaration made by the deceased to PW7. Even the
dead body of the deceased was not identified by the said eye witnesses. Throughout, the time of the incident was recorded as 9.30 pm on 6th
September, 2011, i.e. both in the charge as well as questions under Section 313 Cr PC, whereas the PCR call was made only at around 10.10 pm.
(v) The call details were not specifically put to the accused persons in their statements under Section 313 Cr PC but in a vague manner. This too was
fatal to the case of the prosecution. Reliance is placed on the decision in Asraf Ali v. State of Assam (2008) 16 SCC 328.
(vi) The non-recovery of bloodstained clothes of PWs 2, 7 and 8 was fatal to the case of the prosecution. Reliance is placed on the decision in D.
Thamodaran v. Kandasamy (2015) 16 SCC 758.
(vii) There was no matching of the weapon of the offence with the gunshots as per the medical evidence of Dr. Yogesh Tyagi (PW19). There was no
charring, tattooing and scorching on the body of the deceased. Further, the FSL report clearly showed that the recovered bullets were not fired from
the weapon recovered from A1 (Ex.PW47/A and PW47/X). Reliance in this regard was placed on the decisions in Suchand Pal v. Phani Pal (2003)
11 SCC 527; Joginder Singh v. State of Haryana 2014 (2) SCJ 537; Mahavir Singh v. State of Madhya Pradesh (2016) 10 SCC 220; Vinod v. State
(decision dated 26th March 2009 of the this Court in Crl.A. No.670/2008); and Mohinder Singh v. State AIR 1953 SC 415.
(viii) PW2, despite being the brother of the deceased, did nothing to save the deceased and his conduct was, therefore, unnatural. Further, despite the
spot being surrounded by various shops that were admittedly open at that time no public person was made a witness to this. While PWs 16, 21, 22 and
28 talked about the presence of Satyabir (PW49) at the spot, he himself stated that on the date of the incident he was on leave.
(ix) Despite recovery of empty cartridges on 6th September, 2011 and arrest of the accused on 27th September, 2011, the cartridges were sent to the
forensic lab only on 13th October, 2011. This weakens the case of the prosecution. Reliance is placed on the decision in Vinod v State (supra).
(x) The trial Court failed to discuss any particular role of A2 and A3 in the entire judgment. Even as per the prosecution, except holding the deceased,
no other role was played by A2 and A3. The prosecution has even failed to prove that they shared any common intention with A1 to eliminate the
deceased. Reliance is placed on the decisions in Rahisuddin v. State 204 (2013) DLT 35; Shambhu Kuer v. State of Bihar AIR 1982 SC 1228; Ajay
Sharma v. State of Rajasthan AIR 1998 SC 2798; and Ramashish Yadav v. State of Bihar AIR 1999 SC 3830.
(xi) Lastly, it was submitted that there was no intention to cause the death of the deceased as talks were taking place between the accused and the
deceased. One shot was fired on the knee of the deceased and that too only following a scuffle. Therefore, there was no intention to cause death of
the deceased. Therefore, the offence under Section 302 IPC is not made out.
Submissions on behalf of the State and the complainant
Ms. Radhika Kolluru, learned APP for the State, and Mr. Lovkesh Sawhney, learned counsel for the complainant however, supported the
judgment of the trial Court and submitted that:
(i) Where the eye witness testimony is truthful and reliable, even though they may be interested witnesses, it was sufficient to bring home the guilt of
the accused. The three eye witnesses were natural witnesses and have spoken consistently. They have stood the test of cross-examination.
(ii) Where the eye witness testimony is clear and cogent, any lapses in the recoveries or delay in the registration of the FIR, or even absence of proof
of motive, becomes insignificant.
(iii) There is no real inconsistency in the medical evidence and the occular evidence. Reliance is placed on Modiâ€s Jurisprudence (24th Edition) to
show that the distance from which the gunshot was fired need not result in singeing and tattooing. Reliance is also placed on the decision in Pattipati
Venkaiah v. State of Andhra Pradesh AIR 1985 SC 1715 to submit that this is not a case where any interference is called for with the impugned
judgment of the trial Court. The nature of the injury, i.e. gunshot wound to the chest, ruled out any other offence except the one under Section 302
IPC.
Evidence of PW2
At the outset, it requires to be noticed that A1 is not at all disputing his presence at the site. In his statement under Section 313 Cr PC, he took the
stand that it was PW2 who had called him on his mobile phone at 9.45 pm “and talked for about three minutes without telling the purpose.†He
then claims that he called back PW2 at 9.53 pm. Therefore, he does not dispute the exchange of calls. If indeed, as was suggested by Mr. Ohri, the
previous incident involving A1 and the deceased was in 2009 and PW2 was calling up at 9.45 pm, there is no way that in the three minutes time that
they spoke, he would not have known the purpose of the call. Also, he need not have waited for eight minutes to call back PW2 in order to ascertain
that purpose.
What appears to be a complete giveaway is the line of questioning of PW2 in his cross-examination. PW2 denied the suggestion in his cross-
examination that he called A1 from the mobile of the deceased; that he had a conversation with A1 for three minutes; that thereafter A1 called him at
9.53 pm to ask him the reason as to why he had called him.
In this regard, the evidence of Pawan Singh (PW14), a nodal officer of Idea Cellular Limited is relevant. He has proved that the mobile number
9911074656 was owned by the deceased and mobile number 9891787703 was owned by A1. PW14 has proved the CDRs (Ex.PW14/B) and the call
locations of both phones, i.e. Ex.PW14/B and Ex.PW14/D respectively, showing that the location of the mobile phone of the deceased was at Tower-
29223, i.e. Lodhi Chowk, Dwarka at 9.45 pm. The location of the phone of deceased at 9.53 pm was of Palam Village. Likewise, the location of
mobile phone of A1 was at Tower-26101, i.e. Pochanpur, at about 9.55 pm and Tower-28392, i.e. Palam Extension, at 9.53 pm. This belied the
contention of A1 that his location was at Gola Dairy, which is at a distance of 15 km from the spot. His location was at Pochanpur at 9.45 pm. The
fact that A1 himself called the deceased and spoke to him at 9.53 pm equally stands proved by the CDRs. Clearly, therefore, the deceased was alive
at 9.53 pm. The story of PW2 having taken the mobile phone of his brother to give a call to A1, after someone had shot the deceased, only to falsely
implicate A1 is totally unbelievable. On the other hand, the evidence of PW2 appears to be natural. He appeared on the scene at 9.30 pm, after
dinner.
It must be remembered that there was a second round of cross-examination of PW2 after the arrest of A2 and A3. There was no suggestion put
to PW2 at this stage about his having called A1 from the mobile phone of the deceased. As rightly analyzed by the trial Court, the CDRs disproved the
defence of A1 that he was at Shyam Vihar, Gola Dairy, a distance of 15 km from the spot at 9.45 pm when he received a call from the deceased. He
was at Pochanpur at that time. Later, when he gave a call to the deceased at 9.53 pm on the mobile phone of the deceased, he was at Palam
Extension, which was very close to the spot when the crime took place. He was, therefore, clearly proceeding towards the spot at that time. It is A1
who had reached the spot of the deceased along with A2 and A3 and he had no valid explanation as to why he had reached that spot. Clearly,
therefore, as held by the trial Court, the incident took place at around 9.55-10 pm. The mention of 9.30 pm in the charge and in the 313 Cr PC
statement cannot therefore be relied upon by the accused to state that the incident took place at that time. This coupled with the fact that the PCR
form records the call of the wife of the deceased i.e. Rekha (PW7) at 10.10 pm stands fully corroborated by the above evidence.
Undoubtedly, the eye witnesses to the incident are interested witnesses as they are closely related to the deceased. PW2 is the younger brother;
PW6 is his sister-in-law; PW7 is the wife of the deceased. Their depositions, therefore, deserve very close scrutiny.
In Hari Obula Reddy v. The State of Andhra Pradesh, (1981) 3 SCC 675, the Supreme Court observed:
.. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or
rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless
corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses
should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.
PW2 is very clear and consistent about the roles of the three accused. He is clear that it was A1 who fired upon the deceased; that A2 and A3
caught hold of the deceased from his neck and hands while A1 had fired at him. PW2 watched this from a distance of around two and a half feet.
The entire incident took less than two minutes. Therefore, there was not enough time for PW2 to intervene. In the considered view of the Court, this
conduct cannot be termed as unnatural. Neither the deceased nor PW2 were armed whereas A1 was. PW2 himself stated that while there was a
scuffle between the accused and the deceased. Even PW2 did not expect that A1 would pull out the weapon and fire on the deceased. All this has
happened in an extremely short span of time. What is certain, however, are the roles assigned to each of the accused and the manner in which the
killing took place. Despite being subjected to extensive cross-examination, nothing was elicited from PW2 which could cast any doubt on his
identifying the three accused whom he knew from before. Their house and the house of the deceased were just opposite each other. The site plan
also shows that there was a street light and so the visibility of the incident itself was not in issue.
It was sought to be suggested that PW2 did not hear the dying declaration supposedly made by the deceased to his wife PW7 in the van.
However, that dying declaration has not been relied upon by the trial Court, and rightly so. The eye-witness account of PW2 itself was sufficient. This
account was fully corroborated by Seema (PW6) the wife of PW2 who viewed the whole incident from the terrace of her house. This will be
discussed shortly.
In his cross-examination, PW2 stated: “I was sitting on the floor by the site of my injured brother and my Bhabhi (sister-in-law) was sitting on
the seat which was on the back side of the driverâ€s seat.†Therefore, it is not   correct that PW2 did not mention the presence of PW7. He
further stated, “My bhabhi informed the police about the incident over phone while she was sitting in the van.†Further, “My bhabhi informed
the police from her mobile phone in my presence so I did not call the police.†This is true because indeed PW7 called the police from her mobile
phone.
Evidence of PW6
Turning now to the evidence of PW6. She was on the roof checking the water tank and noticed A1 come down in the Maruti car with A2 and A3
sitting on the rear seat. They got down and started quarrelling with the deceased. She noticed A1 taking out a pistol firing two shots and thereafter all
three accused sitting in a Maruti car and fleeing towards Jaat Dharamshala. PW6 noticed her husband PW2, her jethani Rekha (PW7); dewar
Sandeep (PW8) shift the deceased to the hospital. She knew the accused persons as they were residents of the same village.
The cross-examination of PW6 by counsel for A1 did not yield anything for the accused. There was electricity in the area and there was street
light. When again cross-examined after the arrest of A2 and A3, PW6 maintained her version. There is very little confrontation of PW6 with her
previous statement under Section 161 Cr PC except to the extent that she said in that statement that the car came from the side of Ramphal Chowk
whereas in her deposition in the Court she stated that it came from the side of Harijan Basti road. However, she clarified that the gali which comes
from Harijan Basti side and the front half portion is outside the gali facing towards her house. She too confirmed that the PW2 was standing at a
distance of 3ft from the deceased. She cried from the roof of her house and ran downstairs while shouting. She was so nervous that she did not
remember as to what happened thereafter. Her viewing the incident from the terrace could not have been noticed by PW2 as he was busy attending
to the deceased.
PW6 did not dispute that the shops around the spot were opened at that time. However, the failure by anyone from those shops to come forward
to speak about the incident is not surprising. There was no need for PW7 to falsely implicate any of the accused. Her account corroborates the eye
witness account of PW2 in the material aspects following the firing. PW6 is a natural witness who is truthful and reliable.
Evidence of PW7 and PW8
Turning now to Rekha (PW7) the wife of the deceased, she reached the spot at the time when the deceased was already lying down in a pool of
blood. She claimed that on the way to the hospital while carrying him in the van brought by PW8, the deceased had told her that A1 had shot him and
that A2 and A3 were also present. Any doubt regarding the presence of PW2 in the van was explained by her in her further cross-examination after
the arrest of A2 and A3. A suggestion was given to this witness to which she answers, “It is wrong to suggest that I was sitting on the seat along
with my dewar Baljit.†This was after she had stated that she was on the floor besides the body of her husband. This clearly showed, therefore, that
not only the presence of PW8 is confirmed by this witness but even the presence of PW2. A further suggestion to PW7, which she of course denied,
was that after the deceased was declared brought dead to the hospital all his family members planned to take “revenge†and falsely implicated the
accused. This question in fact makes the version of PW7 both natural and truthful. She did not deny that she did not in the first instance mention the
name of the assailant but that she found out about this only later on. The implication of “revenge†and the suggestion of false implication were at
cross purposes. It only reaffirmed the identity of the main assailant i.e. A1.
The evidence of PW8 who also witnessed the incident while standing on the first floor of their house fully corroborates the above versions. He
noticed three accused coming in a white Maruti van, stopped near the Shiv Mandir; the three accused getting down from the car and then quarrelling
with the deceased and in that process A1 taking out a pistol and firing two gunshots upon the deceased. He clearly states that PW7 reached the spot
thereafter; that he took out his vehicle and along with PW7 and PW2 took the deceased to the hospital. He too was subjected to extensive cross-
examination but nothing came of it. He confirmed that PW7 called the police even before they reached the hospital with the deceased.
With the eye witnesses speaking cogently and consistently, and with nothing being elicited in their cross-examination to doubt their versions on the
actual incident, the Court sees no reason why their evidence cannot be relied upon to convict the three accused.
Fire arm injuries
Much has been made about the confusion of the fact that the firearm injuries on the dead body did not show any singeing or tattooing. In this
context, the following extract from Modiâ€s Medical Jurisprudence and Toxicology (24th Edition) states that when a firearm is discharged from very
close to the body or in actual contact the surrounding skin is usually scotched and blackened with smoke and tattooed with  unburned grains or
powder. However, the distance from which it fired also determines whether there would be blackening, tattooing or singing. It is stated that:
“At a distance of one to three feet, small shots make a single aperture with irregular and lacerated edges corresponding in size to the bore of the
muzzle of the gun, as the shot enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin
surrounding the wounds is blackened, scorched and tattooed, with unburnt grains of power. On the other hand, at a distance of six feet, the central
aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot, which spread out before
reaching the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to some extent.â€
It was further noted in conclusion that: “a definite opinion about the distance from which a firearm was discharged should be given with
caution.â€
The mere absence of singeing and tattooing will not by itself therefore throw doubts on the veracity of the version of the eye witnesses. In any
event, nothing prevented the defence from examining a ballistic expert in this regard. Instead they chose to address all their questions to the doctor
performing the post-mortem, i.e. PW19. The questions to him and his answers read as under:
“Q. What was the approximate distance from where the gun shot was fired at the deceased?
Ans. According to post mortem findings, the fire arm probably shot from a distance of more than six meters. However, exact distance is the expertise
of forensic ballistics because it depends on the fire arm weapon used.â€
Clearly therefore PW19 was telling the defence counsel that they had to address the question regarding exact distance to a ballistic expert. In the
opinion of this witness, it was a distant range shot more than from a distance of six meters but clearly that could not have been concluded. PW19 was
clear that only one bullet was recovered from the body of the deceased but there were two firearm injuries. There was a single entry wound in the
body of the deceased in both the injuries â€" one of those firearm injuries was over the chest.
As regards one of the bullets recovered from behind the electric pole, this could have easily been as a result of the bullet ricocheting of the wall as
is evident from the site plan. This again does not throw any serious doubt on the veracity of the version of the eye witnesses.
Delay in registering the FIR
Much has been made of the alleged delay in the registration of the FIR. While PW2 does state that his statement was recorded at 10.45 pm
whereas PW35 states that it was recorded at 1.13 to 1.15 am, it seems more likely that the statement which was recorded at the hospital was
definitely after 10.45 pm. The MLC itself records the time of bringing the deceased into the hospital as 10.20 pm. By the time the IO reached the
hospital and recorded the statement it could have been well beyond 10.45 pm. In fact, the noting on the PCR form on the right side to that effect is at
11.29 pm. The Court, therefore, inclined to agree with the trial Court that the conjoint reading of the testimonies of Sub Inspector Virender (PW28),
HC Rakesh (PW29); HC Hanuman (PW34) leads to the conclusion that all of them including PW35 left the spot at about 11 pm and thereafter the
statement of PW2 was recorded in the hospital by PW35. Therefore, even if PW2 had made a statement after 11 pm, the registration of the FIR at 3
am after the rukka was prepared cannot be said to be so delayed as to cause doubts on the case of the prosecution. It is only where the delay is not
satisfactorily explained that doubts begin to arise. In this regard, the trial Court has rightly followed the ratio of the decisions in Sahib Singh v. State of
Haryana AIR 1997 SC 3247 and Gorige Pentaiah v. State of A.P. (2008) 12 SCC 531.
In State v. Lallu Ram (supra) the delay in registration of the FIR was not explained to the satisfaction of the Court. That was a case where the
presence of the eye witnesses was not believed. Likewise, in Rajender v. State of Delhi (supra), the delay was unexplained and it was in the context
of other circumstances surrounding the case not being satisfactorily proved by the prosecution. The above two decisions are, therefore, distinguishable
on facts. The Court is of the view that in the present case the eye witness evidence is clear, cogent and consistent. The delay in registration of the
FIR has been satisfactorily explained and does not vitiate the case of the prosecution.
Other grounds
The Court is unable to agree with the contention that there was any failure to put to the accused the call details. To begin with, Section 215 Cr PC
states that no omission to state particulars either in the offence or the charge shall be considered material ""unless the accused was in fact misled by
such error or omission, and it has occasioned in the failure of justice."" The case of the prosecution here rests essentially on the consistent and
uncontroverted testimony of three eye witnesses, PWs 2, 6 and 8. The call details were meant to only corroborate the eye witness testimonies. This
was not a case based on circumstantial evidence. It is also not the case of the accused that they were misled by the omission or that there was any
failure of justice on that score. Therefore, these factors will have to be borne in mind while examining whether the failure to put the CDRs to the
accused would be fatal to the case of the prosecution.
Even the counsel for the accused do not dispute that the CDRs were generally put to the accused. In the considered view of the Court, in a case
of the present nature, where the three eye witnesses namely PWs 2, 6 and 8 have clearly spoken consistently and truthfully, the failure to specifically
put to each of the incriminating calls to the accused would not be fatal to the case of the prosecution. The decision in Asraf Ali v State of Assam
(supra) was a case of circumstantial evidence and not of direct evidence and therefore distinguishable on facts.
Likewise, the failure to recover the bloodstained clothes of the eye witnesses could at best point to a lapse on the part of the prosecution. It does
not, however, make the eye witness accounts doubtful. In D. Thamodaran v. Kandaswamy (supra), there were serious discrepancies in the deposition
of the prosecution witnesses. The place of incident and the sequence of events were not proved. Only one independent witness was examined and
even that witness was not found to be consistent or truthful. However, in the present case the above infirmities are really missing. There is no ground
made out at all to disbelieve any of the eye witnesses. Therefore, the decision is again clearly distinguishable on facts.
The failure on the part of the prosecution to match the recovered weapon with the bullets recovered from the deceased is again not fatal to the
case of the prosecution. The fact that the death was homicidal has been clearly proved and the fact that A1 used his firearm to fire two shots at the
deceased â€" one on the knee and the other on the chest has clearly been proved. Even without the recovery of weapon of offence, there would be
no weakening of the case of the prosecution. The decisions cited by the learned counsel for the accused, therefore, clearly distinguishable on facts.
The PCR form is computer generated and gives very little scope for the tampering. There was no occasion for the PCR form to be fabricated as
suggested. The decision in Purshottam Chopra v. State (supra) and Pradeep Khatri v. State (supra) appear to have turned on their own facts. In the
present case, the PCR form mentioned clearly the name of A1. It was consistent with PW2 disclosing to the IO the name of the assailants and that
being passed on for being recorded in the PCR form.
It was submitted that the PCR form records on the right side that the SHO and his team were present at the spot soon after the cal was made by
PW6 whereas the SHO who was examined (PW49) stated that he was on leave on the date of the incident. It transpires that the reference in the
PCR form was not to the SHO on leave but to an Additional SHO who was deputing in his place.
The last contention that there was no intention on the part of the accused to cause death of the deceased has to be rejected for the simple reason
that there were two bullet wounds on the deceased â€" one on the knee and the other on the chest. The firing on the chest could not have been
without there being any intention to cause the death of the deceased. The three accused came to the spot where the deceased was in the car with one
of them being armed with a dangerous weapon.
A2 and A3
The Court has considered the plea on behalf of A2 and A3 that they did not share a common intention with A1 to kill the deceased. It was
contended that while PW-2 stated that the caught hold of the deceased from both sides by his arms, PW6 stated that it was dark and she could not
state who caught hold of the deceased and PW-8 stated that all three accused had a scuffle with the deceased. The Court has also considered, in this
context, the decisions in Rahisuddin v. State; Shambhu Kuer v. State of Bihar; Ajay Sharma v. State of Rajasthan; and Ramashish Yadav v. State of
Bihar (supra).
Each case turns on its facts. In Shambhu Kuer (supra) the eye witnesses did not clearly state “that the appellant continued to hold the
deceased till the assault was completed by Mandip†who had stabbed the deceased. In Ajay Sharma (supra) also, the exhortation was “to strikeâ€
and not to kill. Further, it was noticed that the main assailant who stabbed the deceased took out his kirpan from under his stockings. It was, therefore,
held that the other two accused may not have known that he was carrying the weapon. In Ramashish Yadav (supra) the two co-accused merely
came and caught hold of the deceased while two others hit him on his head with a gandasa. Therefore, the co-accused were held not to share a
common intention. Again in Rahisuddin (supra), the co-accused who were acquitted had not done any overt act qua the deceased but caught others in
the complainant party. Further there was no evidence to show that they knew that the accused who used the firearm was in fact carrying one.
However, the present case turns on a different set of facts.
The three eye witnesses PWs 2, 6 and 8 are consistent about all three accused coming in the car to the spot where the deceased was. The three
accused are brothers. Two of them i.e. A2 and A3 were sitting in the rear and A1 was driving. They came there for a specific purpose as is evident
from the fact that they immediately started quarrelling with the deceased. It was not as if only A1 was quarrelling with him or that only A1 had a
scuffle. All three eye witnesses state that all three accused quarrelled with the deceased. So this is not a case where A2 and A3 were mere
spectators to what A1 did to the deceased. And importantly it is not as if they were merely holding the deceased as is sought to be projected by
learned senior counsel appearing for A2 and A3. This is evident from the following description given by PW8 in his cross-examination:
“Baljeet was standing at a distance of about 6/7 feet away from Balwan. All the three brothers (accused) were standing adjoining to Balwan at a
distance of about 1-1.5 feet. All die three brothers (accused) were beating Balwan and they all had caught hold of him. All the three brothers were
grappling with Balwan. The back side of Balwan was towards me. Again said, I could have seen Balwan from back side as well as from front side as
the accused persons were grappling with the deceased. During the course of grappling they also took number of turns. I had seen when Balwan was
shot at. The face of Balwan at the time of firing gunshot was on the side of accused persons and not towards me. At the time of firing gun shot by
accused Vicky, both his brothers (accused Pramod and Manoj) were grappling (chipktehue the to Balwan) with him.â€
It cannot, therefore, be said that A2 and A3 were merely holding the deceased. They were all grappling with him. The fact that all three came
there in the same car and proceeded to quarrel with and in that process grapple with the deceased speaks eloquently of their common intention. The
three were brothers. There was no possibility of A2 and A3 not knowing where they were going with A1 or being unaware of A1 being armed.
Clearly they knew what would happen if A1 used that firearm. The fact situation being this, the decisions discussed do not come to aid of A2 and A3.
The only conclusion possible is that they shared a common intention with A1 to kill the deceased. In the circumstances, the judgment of the trial Court
finding A1 to A3 guilty of the offence punishable under Section 302 read with Section 34 IPC cannot be faulted.
Conclusion
For the aforementioned reasons, the Court finds no grounds are made out for doubting the correctness of the impugned judgment of the trial Court,
which is hereby affirmed. The order on sentence also calls for no interference.
As regards the offence under Section 482 IPC, it is only A1 who has been convicted and that too correctly. The corresponding sentence awarded
to him also cannot be said to be disproportionate.
The appeals are accordingly dismissed, but in the circumstances, with no orders as to costs. The bail bonds and surety bonds furnished by A2 and
A3 are hereby cancelled. They are directed to surrender forthwith to serve out the remainder sentence. The trial Court record be returned forthwith
along with a certified copy of this judgment.