Vinod vs State

Pradeep Nandrajog, J.—Seven accused; namely Vinod, Pramod, Mukesh Kumar, Rakesh @ Makhan, S.D. Sharma, Karan and Rajbir @ Chhanga were sent to trial for having murdered Ashok and Pappu Pehlwan. The case of the prosecution was that one Ami Lal, father of Devender, owned a piece of land admeasuring 1000 sq. yards at Ghonda Chowk where mini buses were being parked on daily basis. Ami Lal used to charge Rs. 20/- per day from the owners of the mini bus. That in the last week of February 2003, the bus operators made a complaint to Ami Lal that Vinod, Pramod, Rajbir, Makhan Singh and Karan Singh, all vagabonds of the area, were demanding money from them to park their mini buses. Devender, son of Ami Lal, discussed this with Pappu Pehlwan, a cousin of Devender, who in turn spoke to Vinod, Pramod, Rajbir, Makhan Singh and Karan Singh, but they threatened him with dire consequences if he created obstacles in their way. That, Devender and Pappu Pehlwan told the bus operators not to pay any money to the vagabonds and on said account the said vagabonds had a grouse against Devender and Pappu Pehlwan.

That on 27.2.2003, Devender along with Pappu Pehlwan were going towards Ghonda Chowk in connection with some work and at around 7-7:30 PM reached Madras Caffe where the said persons as also two more, namely Mukesh and S.K. Sharma met them. Karan exhorted Makhan that Devender and Pappu should not be left alive. Just at that point of time, Ashok and Ram Kumar who were sipping juice at a stall nearby reached. They intervened. At that junction Mukesh and S.K. Sharma exhorted that Devender, Pappu Pehlwan and their well-wishers should be finished. That on the exhortation of Mukesh and S.K. Sharma; Rajbir, Vinod and Pramod took out firearms from the dub of their pants and fired shots. Whereas Pappu Pehlwan and Ashok sustained injuries and fell down; to save themselves, Devender and Ram Kumar ducked and lay flat on the ground. The offenders ran away with their respective weapons. Sunder, a cousin of Devender reached and rescued them. A Maruti van coming from Ghonda Chowk side was stopped. Ashok and Pappu Pehlwan were put inside the van and were removed to GTB hospital where both of them were proclaimed dead on arrival.

The incident was first reported to the police when a telephonic information was noted by the duty constable, being DD No. 20-A, Ex.PW-3/C, at 7.30 PM on 27.2.2003 that two people have been shot near Maujpur juncture adjoining Parivar restaurant.

At 7.42 PM, vide DD No. 21-A, Ex.PW-3/D, information was recorded that the informant had informed that his brother had been shot at.

Inspector Veer Singh Tyagi PW-35, accompanied by other police officers reached GTB hospital where he met Devender, whose statement Ex.PW-2/A was recorded, in which he named the accused as the assailants of his brother Pappu Pehlwan and Ashok. He attributed various roles to the accused. Making an endorsement Ex.PW-3/B thereon, Inspector Veer Singh Tyagi forwarded the statement at around 9.15 PM for registration of an FIR and pursuant thereto the FIR was registered.

Since, vide impugned decision dated 30.4.2008, all the co-accused except the appellant have been acquitted of the charge of having murdered Pappu Pehlwan and Ashok, we would be noting the evidence held incriminating and relatable to the appellant, and while doing so, would be briefly noting the reasons why the learned trial judge has disbelieved Devender and Ram Kumar who were cited as the eyewitnesses to the incident by the prosecution; as also the reason for disbelieving Sunder that Ashok told him as to who had killed him.

Relevant would it be to note that the appellant has been convicted on the basis of a recovery of a country made pistol pursuant to a disclosure statement made by him followed by the appellant getting the said pistol recovered from a concealed portion in the wall of his house as also the recovery of a used cartridge, which as per the ballistic report Ex.PW-22/A, was opined to be fired through the country made pistol, Ex.F-1.

Pertaining to the testimony of Devender PW-2, at whose instance the FIR was registered, in paras 19 to 25 of the impugned decision, the learned trial judge has analyzed the worth of the deposition of Devender and has returned a finding that the evidence probablizes that Devender was not an eye-witness. It has been held that evidence suggests that Devender learnt about his brother being shot at and reached the hospital and from the hospital made a call to the police at 7.42 PM which resulted in DD No. 21-A being recorded.

In a nutshell, the reasoning of the learned Trial Judge is that, whereas in his statement Ex.PW-2/A Devender stated that when Sunder reached the spot, the accused ran away, but in court, he deposed that Sunder came after about 10 minutes of the accused having run away from the spot. The learned trial judge noted that it is strange that even after the assailants had run away Devender made no attempt to flag down a vehicle in which his brother and his brother�s friend Ashok, both of who were shot, could be removed to the hospital. The fact that the shirt of Sunder was stained with blood when the police reached the hospital and hence was dutifully seized by the police, the claim of Devender that even his clothes were stained with blood has been disbelieved, for the reason had it been so stained with blood, there was no reason why the police would not have seized the same. The inference drawn by the learned trial judge is that this shows that the Devender was not present at the spot and did not participate in transporting the injured to the hospital and his claim to the contrary was false. The learned Trial Judge has additionally noted that SI Jagbir PW-34 and Inspector Veer Singh Tyagi PW-35 have categorically deposed that they did not notice any blood on the shirt or the clothes of Devender and hence did not seize the same. Lastly, the learned Trial Judge has noted that in his statement Ex.PW-2/A, while informing the police at 7.42 PM, Devender informed the police that he made the call when his brother was declared brought dead at the hospital wherefrom an inference has been drawn that Devender, who admittedly had a mobile phone with him having contacted the police at 7:42 PM shows that he surfaced at the hospital just around said time and learnt about his brother being shot and having died.

The cumulative effect of the aforenoted is the finding returned by the learned Trial Judge, as noted above, that probably Devender was not an eye-witness and he surfaced for the first time when he learnt about his brother being shot and removed to the hospital. His first contact with his brother was at the hospital, unfortunately when his brother was dead.

Ram Kumar, the person named by Devender as having reached the spot along with Ashok, before the firing took place, was examined as PW-4. The learned Trial Judge has discussed the evidentiary worth and the credibility of the testimony of Ram Kumar in paragraphs 26 to 33 of the decision. In a nut shell, the learned Trial Judge has held that the fact that the clothes of Ram Kumar were not seized by the police shows that the same were not stained with blood and his claim that when he helped in removing his brother Ashok to the hospital, his clothes got stained with blood was false. As in the reasoning while discussing the evidentiary worth of the testimony of Devender, the learned Trial Judge has held that if the police seized the clothes of Sunder which were stained with blood, there is no reason why clothes of Ram Kumar would not be seized if even they were stained with blood. Similarly, the unnatural conduct of Ram Kumar to be sitting at the spot even after the assailants fled, to await Sunder reaching after 10 minutes and thereafter removing his brother to the hospital has been found to be unnatural. In a nut shell it has been held that the evidence probablizes that even Ram Kumar reached the hospital on learning that his brother has been shot.

The testimony of Sunder who claimed to have reached the spot where the incident took place soon after the firing was over and also claimed that Ashok had made a dying declaration to him inculpating the appellant, has been discussed by the learned Trial Judge in paragraphs 34 to 38 of the decision. Noting that according to Sunder he was present in his house at 7-7:30 PM on 27.2.2003 and that he learnt from his children that his brother was fired in front of Madras Caffe and at that he reached the place and found Pappu Pehlwan and Ashok lying in an injured condition and he saw Ram Kumar and Devender sitting in a sad mood and he consoled them and thereupon got stopped a Maruti van in which Pappu Pehlwan and Ashok were removed to the hospital, has been found to be a strange conduct by the learned Judge, for the reason, the immediate reaction of Sunder would have been to summon a rescue for the injured, before consoling the grieving relatives. Not only that. The learned Trial Judge has found that some time would have been consumed for the information to reach Sunder that a firing had taken place and Sunder reaching the place of the incident. Noting Sunder�s admission that the place of occurrence was 1� kilometer from his residence, the learned Trial Judge has held that Sunder would have reached the place of occurrence at least after 7-8 minutes of the firing being over, by which time the accused would have fled. The claim of Sunder that Ashok made a dying declaration to him telling him that the appellant had fired at him has been disbelieved by the learned Trial Judge with reference to the post-mortem report Ex.PW-7/A of Vinod which evidences that the bullet which had pierced the chest cavity of Ashok at the intercostals space, had pierced the upper lobe of the left lung; coming out of the lung it entered the heart and piercing through the heart, made an exit not only through the heart, but even through the back. The learned Trial Judge has opined that in such a situation, the heart would have contracted for not more than 4 to 5 times. That from the fact noted in the post-mortem report that the left chest cavity was filled with blood and the left lung had collapsed, the learned Trial Judge has opined that with the heart not pumping, oxygen supply to the brain would have diminished and due to severe anoxia of brain, Ashok would have died immediately at the spot and would not be in a position to speak to anyone after 4 to 5 minutes of being shot.

But, from the fact that the clothes of Sunder were found stained with blood and were seized by the police in the hospital as also the fact that the MLC of Pappu Pehlwan and Ashok records that Sunder had brought them to the hospital, the learned Trial Judge has concluded by holding that evidence establishes that on hearing about the firing, Sunder reached the spot. The assailants had run away by then. He flagged a vehicle in which Pappu Pehlwan and Ashok were removed to the hospital. He informed Devender and Ram Kumar who also reached the hospital.

Notwithstanding the fact that the State has not filed any petition seeking leave to appeal against the impugned decision in so far it has acquitted the six co-accused, we have thought it proper to briefly record the reasons why the testimony of Devender, Ram Kumar and Sunder has been discarded by the learned Trial Judge.

Pertaining to the appellant, the learned Trial Judge has noted that as per recovery memo Ex.PW-2/B a bullet and one empty cartridge stands shown as recovered from the scene of the occurrence on 27.2.2003 itself. The learned Trial Judge has further noted that after he was arrested, as claimed by the prosecution, the appellant made a confession and not only admitted to the crime but informed the police that he could get recovered the firearm which he had used to commit the crime. The statement of the appellant is Ex.PW-2/F. Pursuant to the said statement, the appellant, as claimed by the prosecution, took the police to his house and from within a wall, got recovered a country made pistol which was concealed in a wall and which was seized vide seizure memo Ex.PW-2/K. It stands recorded in the seizure memo that the chamber of the country made pistol had an empty cartridge, which was also seized.

When the autopsy was conducted on the body of Pappu Pehlwan, a bullet was recovered, which was handed over to the police by the doctor conducting the post-mortem.

The two bullets i.e. the bullet recovered from the body of Pappu Pehlwan and the bullet which was recovered from the spot i.e. EB-1 and EB-2, as also the empty cartridge which was recovered from the spot and the empty cartridge which was recovered from the barrel of the country made pistol i.e. EC-1 and EC-2, along with the country made pistol, were sent for ballistic opinion and as per the opinion, Ex.PW-22/A, it was opined that no opinion could be given with respect to the bullets EB-1 and EB-2 because individual characteristic of striations present were insufficient for comparison and opinion whether they were discharged through the country made pistol F-1 could not be given.

Pertaining to the empty and used cartridges, it was opined that both i.e. EC-1 and EC-2 have been fired through the country made pistol Ex.F-1.

Believing the evidence that the appellant did make the disclosure statement and pursuant thereto the recovery of the country made weapon Ex.F-1 was at the instance of the appellant and linking the same to the report of the ballistic expert, the learned Trial Judge has held that this establishes the fact that the country made pistol was used at the spot and also establishes the presence of the appellant and hence that the appellant was the assailant.

The discussion pertaining to the report of the ballistic expert is to be found in paragraph 47 of the impugned decision, which reads as under:

K.C. Varshney has examined exhibits in FSL on 27.09.04. He projects that on that day, 5 parcels were placed in his hand, which were bearing Nos. 2, 9, 11, 12 and 14. Parcels bearing No. 2, 9, 11 and 12 were sealed with seal of AKS, FSL, while parcel bearing No. 14 was sealed with seal of VST. On opening parcel No. 2, it was containing one bullet and one D-shaped cartridge case of 8mm. It was marked EV1 and EC1 respectively. Parcel No. 12 was containing one bullet, which was marked as EB2. Parcel No. 14 was containing one country-made pistol of 0.315 bore, two live cartridges of 8mm/0.315 bore and one cartridge case of 8mm/0.315 bore, which were marked as F1, M/s. Amar House Builders, A2 and EC2 respectively. He examined country made pistol F1, which was in working order and test fire was successfully conducted. Cartridges E1 and E2 were live and could be fired through 0.315 bore firearm. Mark EC1 and EC2 were fired empty cartridges. The bullet mark EV1 and EV2 were of bullets of 8mm/0.315 and were discharged through country made firearm. Cartridge mark M/s. Amar House Builders and 8mm cartridge from laboratory stock were test fired through the country made pistol mark F1 and test fired cartridge cases were marked EC1 and EC2 respectively. The individual characteristic of firing pin marks, breech face marks and chamber marks present on the cartridge cases EC1 and EC2 and on test fired cartridge cased TC1 and TC2 were compared under the comparison microscope and were found identical. He opined that cartridge cases EC1 and EC2 had been fired through country made pistol marked F1. The individual characteristics of striations present on evidence fired bullets make EB1 and EB2 were sufficient for comparison and opinion whether these had been discharged through the country made pistol F1 or not. Therefore, out of report of Sh. K.C. Varshney, it has been brought over the record that EC1 and EC2 were fired through F1. These facts come to establish that country made pistol mark F1 was used in commission of crime.

Mr. Mukesh Kalia, Learned Counsel for the appellant, has urged at the hearing today, that admittedly the bullets EB-1 and EB-2 have not been opined to be the bullets which were fired from the pistol Ex.F-1 and therefore the vital link evidence of the bullets being connected to the country made pistol is missing. That one cartridge was still in the chamber of the pistol is neither here nor there to connect the same with being used to fire either of the two bullets. That one cartridge was seized from the spot, urges the counsel, is insufficient to connect the appellant with the offence. In any case, urges the counsel, does not complete the chain of circumstances required, wherefrom the only inference which can be drawn is that of the guilt of the appellant. Not only that. Learned Counsel urges that there is serious doubt, whether at all the cartridge was seized from the spot. Learned Counsel draws our attention to the seizure memo Ex.PW-2/B which bears the witness of Devender and Ram Kumar. It stands recorded in the recovery memo that the same has been drawn at GTB hospital. The recovery memo commences as follows:

In the presence of the witnesses noted hereinbelow at GTB hospital SI Jagbir has handed over possession of a fired empty cartridge on which 8mm KF 01 is inscribed; which is made of brass as also a bullet and a small plastic bottle which were lifted from the public road where the occurrence took place....

Counsel urges that it is apparent that Devender and Ram Kumar witnessed the drawing up of the recovery memo and not the recovery itself. Counsel urges that the so-called recovery memo is actually a handing over memo. Learned Counsel further urges that from the deposition of Const. Hansraj PW-23 it is apparent that the country made pistol, the two used bullets and the two empty cartridges were sent to the FSL laboratory on 31.7.2003 and that they reached the ballistic expert in the laboratory on 27.9.2004. The opinion was given on 5.1.2005. Counsel urges that not only there is unexplainable and inordinate delay in sending the seized items for expert opinion, what happened in the laboratory for over one year i.e. between 31.7.2003 and 27.9.2004 is not known and therefore, the purity of the seizure is further tainted. To put it pithily, Learned Counsel urges, that the purity of the cartridge allegedly found at the scene of the occurrence is itself tainted not only on account of the belated transmission thereof to the FSL, but even the prolonged period for which it remained at the FSL laboratory. Counsel urges that this casts a serious cloud whether the cartridge sent to the laboratory was the same or changed.

Learned Counsel for the State urges that the appreciation of the testimony of Devender by the learned Trial Judge is vitiated. The fact that DD No. 20-A was recorded at 7.30 PM and that after statement of Devender was recorded, the rukka was sent at 9.15 PM, shows that Devender made his statement Ex.PW-2/A with utmost despatch and therefore, the same should be accepted is the submission made. If that be so, Learned Counsel argues that eye-witness account of Devender has to be kept in mind. Learned Counsel for the State submits that the conduct of the appellant of absconding has also to be kept in mind. Counsel points out that the appellant was arrested after about one month of the incident.

Responding to the submissions made by Learned Counsel for the State, Mr. Mukesh Kalia, Learned Counsel for the appellant urges that absconding by itself is not an incriminating circumstance. When a person apprehends false arrest, he absconds urges the counsel. Counsel urges that some of the co-accused had absconded for even larger periods, and if said fact of absconding is not incriminating qua them, it cannot be incriminating qua the appellant.

Pertaining to the submission made by Learned Counsel for the State that the testimony of Devender has been wrongly discarded by the learned Trial Judge, we express our disagreement with the said contention, for the reason, the learned Trial Jude has given very cogent reasons to disbelieve Devender and we concur with the view taken by the learned Trial Judge that the evidence suggests that Devender learnt about his brother Pappu Pehlwan being shot and at that, he went to the hospital and made a call to the police from the hospital at 7.42 PM and was not an eye witness. We have briefly noted the reasons given by the learned Trial Judge for disbelieving the version of Devender that he was an eye-witness. We fully concur with the reasoning of the learned Trial Judge in paras 19 to 25 of the decision and therefore, do not reiterate the same. Suffice would it be to state that where a trial court has probablized the evidence within legal parameters pertaining to appreciation of evidence and on two views emerging, has taken a view favourable to the accused, the appellate court would not lightly interfere with the findings returned by the learned Trial Judge.

It is not unknown to law that even innocent person absconds due to fear of being arrested. Thus, absconding by itself cannot be treated as an incriminating circumstance. In any case, its evidentiary worth is fairly minimal.

That requires us to consider the incriminating nature of the recovery at the instance of the appellant and pursuant to his disclosure statement i.e. of the firearm and it being linked to the crime.

That a firearm was recovered at the instance of the appellant is insufficient evidence to convict the appellant unless there is link evidence available to show that the firearm was the weapon of offence.

The best evidence of linking the firearm as the weapon of offence would be to link the two bullets which were recovered. As noted hereinabove, the opinion of the ballistic expert pertaining to the two bullets is an inconclusive opinion. Due to sufficient features not found on the bullets, the ballistic expert has opined that he could give neither an opinion in the affirmative nor in the negative. Thus, the neutral opinion has taken away the link evidence which could have linked the country made pistol as the weapon of offence.

No doubt, the used cartridge purportedly recovered from the place of the occurrence has been linked to the firearm. But, the purity of the cartridge being lifted from the spot, coupled with the purity of its identity being maintained reduces the probative value thereof. We note that no recovery memo has been prepared at the spot. The so called recovery memo prepared at the hospital is actually a handing over memo. Besides, it has not been explained as to why the cartridge was not sent to the FSL Laboratory soon after 27.2.2003. It is not in dispute that the cartridge was sent for forensic examination on 31.7.2003 i.e. after 5 months. We note that there is a delay of nearly 4 months even after the date when the appellant was arrested and got recovered the country made pistol.

We note that in the decision reported as 1991 SCC (Crl.) 61 Baldev Singh v. State of Punjab, on account of the cartridge being sent belatedly to the Forensic Science Laboratory, the Supreme Court opined that the said circumstance creates a doubt about the purity of the seizure. We note that in said case the delay was of about 18 days. We note that in the said decision, discarding the eye witness account, the only evidence before the Court was the recovery of a spent cartridge from the place of occurrence and the recovery of the firearm linked to the cartridge; the recovery being from the accused Baldev Singh.

The learned Trial Judge has only discussed the evidentiary worth and incriminating nature of the cartridge being linked to the weapon recovered pursuant to the disclosure statement of the appellant and on his pointing out the recovery of the country made pistol. The learned Trial Judge has not considered the effect of the bullets not being connected to the weapon of offence. The learned Trial Judge has not discussed the effect of the seizure memo not being drawn at the spot. The learned Trial Judge has not discussed the effect of the seizure memo actually being a handing over memo. The learned Trial Judge has not discussed the effect of the cartridge being sent to the FSL Laboratory with an unexplained delay. We note that the cartridge remained with the police for five months and four days before it was sent to the Forensic Science Laboratory.

Giving benefit of doubt to the appellant and seeking guidance from the decision of the Supreme Court in Baldev Singh�s case (supra), we allow the appeal. The impugned judgment and order dated 24.4.2008 convicting the appellant and order on sentence dated 30.4.2008 are set aside. The appellant is acquitted of the charge of having murdered Ashok or Pappu Pehlwan. He is directed to be set free, if not required in custody in any other case.

Copy of this order be supplied dasti to Learned Counsel for the appellant.