Delhi High Court
Pramod Kumar vs The State (Gnct) Of Delhi on 16 March, 2007
Author: R.S. Sodhi
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT R.S. Sodhi, J.
1. Criminal Appeal No. 828 of 2003 seeks to challenge the judgment dated 05.08.2003 of the Additional Sessions Judge, New Delhi in Sessions Case No. 28/99 arising out of F.I.R. No. 138/99, Police Station, Vasant Kunj, whereby the learned Judge has held the appellant guilty for offence under Sections 302/353/186 IPC as well as under Sections 25 & 27 of Arms Act and further by a separate order dated 16.08.2003 has sentenced the appellant to undergo imprisonment for life under Section 302 IPC with a fine of Rs. 1,000/- (one thousand) and in default of payment of fine to further undergo simple imprisonment for a period of one month. He was also sentenced to undergo rigorous imprisonment for two years under Section 332 IPC and to further rigorous imprisonment for one year under Section 186 IPC. He was further sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act with a fine of Rs. 500/- (five hundred) and in default of payment of fine to further simple imprisonment for fifteen days. He was also sentenced to undergo rigorous imprisonment for one year under Section 25 of the Arms Act with a fine of Rs. 500/- (five hundred) and in default of payment of fine to further undergo simple imprisonment for fifteen days. All the sentences were directed to run concurrently. Benefit under Section 428 Cr.P.C. was given to the appellant.
2. Brief facts of the case, as have been noted by the Additional Sessions Judge, are as under:
...on 19.3.99 on receipt of DD No. 32A, SI Prahlad Singh Along with Ct. Baljit Singh went to Village Gittorni where Inspector Along with his staff also reached the spot and at that time, Asstt. Commissioner of Police also reached the spot. On enquiry, they came to know that one Constable of PS Hauz Khas named Maharaj Singh has been hurt with bullet and the injured has been taken to the hospital. They met HC Samar Singh on the spot who gave his statement to SI Prahlad Singh to the effect that he is Head Constable in P.S. Hauz Khas and on 19.3.99, he Along with SI Jaswinder Singh, Ct. Rajbir Singh, Ct. Maharaj Singh and Ct. Chander Shekhar got the information about the presence of Parmod Kumar who has been declared Proclaimed Offender in the records of P.S. Hauz Khas, in the house of Chander Pal and at about 4:30 P.M., they all reached village Gittorni and as per the instructions of SI Jaswinder Singh, Ct. Maharaj Singh & he (HC Samar Singh) were sent to get the information about the presence of Parmod Kumar and SI Jaswinder Singh Along with the remaining staff went at a distance of 100 meters from the house of Chander Pal. He Along with Ct. Maharaj Singh reached near the house of Chander Pal and when they reached at the chowk, accused Parmod Kumar was standing outside the room. Ct. Maharaj Singh disclosed his identity to the accused Parmod Kumar and also told him to surrender but accused Parmod Kumar became alert and took out one knife with his left hand from his shirt but he was immediately caught hold by Ct. Maharaj Singh in his arms from backside, both of them grappled with each other and HC Samar Singh also tried to snatch the knife from the hands of Parmod Kumar and ultimately he was successful in snatching knife from the hands of accused but Parmod Kumar got the opportunity to take out desi katta which he was having and fired with the same on Ct. Maharaj Singh and that bullet hit on the stomach of Ct. Maharaj Singh and on hearing the noise of fire, the villagers collected there and he (HC Samar Singh) told the crowd that Parmod Kumar is a 'Badmaash' and he has fired on the policewala and then, the crowd started beating Pramod Kumar. During that time, SI Jaswinder Singh also came to the spot Along with his staff and then, injured Ct. Maharaj Singh was taken to hospital through Ct. Chander Shekhar. He (HC Samar Singh) handed over the desi katta and knife which he had snatched from the accused to the I.O. Accused Parmod Kumar was apprehended and on taking his casual search, five live cartridges which were fixed in the charger were recovered. Two cartridges Along with one rifle of 303 were also recovered. He further stated that while controlling Pramod Kumar, he also sustained injuries and he wanted to get himself medically examined. The sketch of the cartridges as well as of the knife, desi katta was prepared and the recovered case property was kept in pulandas and was sealed with the seal of M.I. and was also taken into possession. On the basis of this statement, the FIR was got registered against the accused. During the investigation, the site plan was prepared, Ct. Maharaj Singh expired and then, the case was converted to be under Section 302 IPC. The Crime Team was called who inspected the spot and also got the scene of occurrence photographed, the statement of the witnesses was recorded, postmortem of the deceased was got conducted, postmortem report was procured and accused was arrested and on interrogation he disclosed facts and his disclosure statement was recorded. The bullet which had hit the stomach of the deceased was also taken into police possession and the same was kept in a pulanda and sealed with the seal of M.I. The exhibits were sent to F.S.L., Malviya Nagar on 9.4.99 and thereafter, permission under Section 195 Cr.P.C. was procured to file the case against the accused and after completion of the investigation, the challan was filed in the court. The case was committed to the court of Sessions.
After hearing the accused, charge under Section 186/332/302 IPC and a separate charge under Section 25/27 of Arms Act was framed against the accused Parmod Kumar to which he pleaded not guilty and claimed trial.
3. The Prosecution examined PW-1, Rajbir. S/o Bhup Singh, a retired Army Officer who states that on 09.03.1999 his nephew, Maharaj Singh died. He was murdered by Parmod Kumar. He was called to identify the dead body on 20.03.1993 at All India Institute of Medical Sciences' Mortuary. He identified the same and Memo Exhibit PW 1/A was prepared.
4. PW-2, Madan Pal, draftsman, prepared the site plan, Exhibit PW 2/A. PW-3, Dr. O. P. Murti, from the All India Institute of Medical Sciences, conducted the postmortem on the body of Maharaj Singh, son of Jodha Singh on 20.03.1999. He testifies to the ante mortem injuries on the body of the deceased as follows:
One lenear cresentric abrasions measuring 3 x 8 cms., 2 x 7 cms. And 1 x 3 cms with bruising in and around.
Gun shot entry wound of 2.5 x 1 cms. Over front of right side abdomen 5 cms. Above the embilicus 1 cm from mid line, 21 cms. From right nipple and 45 cms above right sole. margines were inerted blackened and surrounding hairs showed singeing, abdominal fact (omentum) protruded with effusion of blood in and around underneath the tissues. Omentum and small intestine were lacerated and showing cavitation consequent upon the fire arm injury with full of abdominal cavity blood bruising was also seen in other parts of intestine. Fire arm exit wound of 1x1.5 cm. Over the back side of right side abdomen 6.5 cm. From midline 3 cms. From waist line 20 cms. From right back bone anble, margines everted and protruded wound communicating with the entry and all intervention structure were lacerated and injury effect. All organs were pale. Rest was NAD.
Clothing examination: One shirt was having a tear of 2.5 x 2.3 cms. Soaked in block showing fire arm effect and the bullet entry had also fractured one button and half was present. The hole of the shirt was 28 cm. From lower margine on right side. The back part of the shirt shows corresponding to the exit wound of size 1x.7 cms. On the right lower part 18 cms. From the margine. The direction of wound was from front to back and slightly above to down.
The underneath banian showed tear of 1x 7 cm. On the back front tear was cut in the casualty.
Blood soaked pants and underwear.
Opinion:
Death in this case was due to haemorrhage shock as a result of gun shot injury which was sufficient to cause death in the ordinary course of nature and was fired from a close range showing powder and heat effect.
The postmortem report is is exhibit PW-3/A.
5. PW-4, Dr. Anita Verma, examined Head Constable Samar Singh and prepared the MLC, Exhibit PW-4/A, and opined that the nature of injuries were simply by a blunt object. PW-5, Chander Pal, claimed he saw nothing and knows nothing in the case. He was declared hostile.
6. PW-6, Constable Baljeet Singh, states that on 19.03.1999, he was working as Constable at Police Station, Vasant Kunj. On that day at about 4.50 p.m. he received D.D.No. 32 on which he accompanied S.I. Parhlad Singh to village Ghitorni, where he found Head Constable Samar Singh and S.I. Jasminder Singh present. On enquiry by the Investigating Officer, he came to know that the injured had been taken to the hospital. The accused was caught hold by the villagers and the Police Officials. The Investigating Officer recorded statement of Head Constable Samar Singh who produced one knife, one desi katta and one empty cartridge to the Investigating Officer which was seized. S.I. Jasminder Singh, also produced seven live cartridges before the Investigating Officer. Five live cartridges were in a charger and two were separate. A rukka was prepared and handed over to Constable Roshan Lal for registration of a case. The witness took Samar Singh to Safdarjung Hospital for medical examination. In cross-examination the witness states that he was present at the time when the Investigating Officer recorded the statement of Samar Singh. He also states that in his presence the sketch of the knife and the country-made pistol was prepared but he had not signed the same.
7. PW-7, Constable Roshan Lal, states that he was a Constable working in Police Station Vasant Kunj and accompanied Mohd. Iqbal at 5.00 p.m. to Village Ghitorni where he found crowd. S.I. Parhlad Singh handed over a rukka to him for registration of F.I.R. He went to the Police Station and after registration of F.I.R., returned to the spot with a copy of rukka and F.I.R. and handed over the same to SI Parhlad Singh.
8. The star witness of the Prosecution is PW-8, Head Constable Samar Singh. He states that on 19.03.1999 he was posted at Police Station Hauz Khas as Head Constable on which date he along with SI Jaswinder Singh, Constable Maharaj Singh, Constable Chander Shekhar and Constable Rajbir Singh had gone to village Ghitorni upon receiving information that accused Pramod (correctly identified in Court) could be arrested. On reaching Village Ghitorni at about 4.30 p.m., SI Jaswinder Singh instructed this witness and Constable Maharaj Singh to go to Village Ghitorni in civil dress and try to trace the accused in the house of Chander Pal, while SI Jaswinder Singh and his staff accompanied by Sanjay were standing at a distance of 100 yards there from. This witness goes on to depose that he entered the house of Chander Pal and found accused Pramod present in the courtyard in front of the house of Chander Pal. Constable Maharaj Singh challenged Pramod after disclosing their identity and required him to surrender upon which, Pramod took a knife from his shirt. Constable Maharaj Singh grabbed Pramod from the rear and asked the witness to snatch the knife from Pramod. Pramod and Maharaj Singh began grappling during which this witness snatched the knife from Pramod. Immediately thereafter Pramod took a country-made pistol from under his shirt and fired upon Maharaj Singh. The bullet hit Maharaj Singh in the abdomen. On hearing gun-fire the witness informed the villagers, who were standing close-by, that Pramod was a criminal and had shot Constable Maharaj Singh. The villagers began beating Pramod. In the meantime, the witness snatched the country-made pistol which Pramod was holding in his hand. SI Jaswinder Singh and his staff together with Sanjay entered the house. SI Jaswinder Singh immediately conducted personal search of Pramod, as a result of which he recovered five cartridges with charger. He also recovered two other cartridges separately from the person of Pramod. S.I. Parhlad Singh, a Constable and P.C.R. van also reached the spot. In the meantime, the villagers came to know that Sanjay was an associate of Pramod and began beating Sanjay as well. SI Jaswinder Singh sent Constable Maharaj Singh to the hospital through Constable Chander Shekhar. SI Parhlad Singh reached there and took Sanjay also to hospital in the P.C.R. van. This witness produced the knife with the words "Crystal Stainless Steel" and one country-made pistol which he had snatched from the hands of Pramod to SI Parhlad Singh. SI Parhlad Singh opened the pistol and found an empty cartridge shell inside its chamber. SI Parhlad Singh closed the pistol without removing the empty cartridge. Thereafter, SI Jaswinder Singh handed over seven cartridges of 303 bore, five in a charger and two separately to SI Parhlad Singh. These cartridges had been recovered by SI Jaswinder Singh from the pocket of the accused, Pramod. SI Parhlad Singh prepared sketches of the knife and the country-made pistol, marked Exhibit PW-8/A and Exhibit 8/B respectively. He thereafter converted both the articles into parcels, sealed them with a seal of 'MI' and took them into possession vide memo Exhibit PW8/E. The witnesses' statement was then recorded which is Exhibit PW-8/F and bears his signatures at point 'A'. Blood stained earth was lifted with the help of cotton, put in a phial, and taken into possession by means of a memo. This witness was then sent for medical examination and site plan was prepared at his pointing out. The witness identified the contents of the sealed parcels received from the CFSL. The knife is Exhibit P-1, the pistol and the empty shell inside the pistol as also the charger is Exhibit P-4 while the live cartridge is P-5 and two empty shells P-6. The witness was extensively cross-examined and states that accused, Sanjay, was with them as on his information they were going to village Ghitorni and thereafter went on to say that Sanjay was taken into custody from Katwaria Sarai where he was trying to run away. He also confirms that the accused was standing outside in the courtyard of the house of Chander Pal when he and Constable Maharaj Singh entered the house. He claims that he was in plain clothes and not armed with pistol or danda. He denied the suggestion that he was carrying a service revolver. He confirms that he and Constable Maharaj Singh had gone inside the village while the others remained outside. He confirms that on the lalkara of Constable Maharaj Singh, the accused took out the knife and warned that in case they came close to him he would use the knife. At this time Constable Maharaj Singh apprehended him. He also confirms that accused suddenly turned and tried to run away at the time when Constable Maharaj Singh had apprehended him and made him lie down, the accused fell down and was apprehended by Constable Maharaj Singh who was on the upper side. The accused was on the ground. He confirms that Constable Maharaj Singh and the accused were grappling with each other during which time the knife fell on one side when this witness snatched the same from the hand of the accused. In this process the witness suffered some injuries. He denied the suggestion that during grappling with the accused, Constable Maharaj Singh was on the ground while the accused was on top of him. He also denied the suggestion that to save Constable Maharaj Singh, he fired from his revolver which bullet hit Constable Maharaj Singh. He denied the suggestion that Constable Maharaj Singh died due to bullets fired from the service revolver and not due to firing of a bullet from the katta. He agreed with the suggestion that before SI Jaswinder Singh came to the spot, this witness was in possession of the knife and katta belonging to Pramod as he had snatched the same from the hands of the accused. He admitted the suggestion that on taking search of the accused by SI Jaswinder Singh, five cartridges in a charger and two separate ones were recovered. He denied that Jaswinder Singh came when the witness was being beaten by the public. He denied the suggestion that no katta, knife or cartridges were recovered from the spot in his presence. He denied that he had fired from his revolver and that too to save himself. The Police had not taken into possession his revolver.
9. PW-9, is SI Jaswinder Singh. He states that on getting information from Sanjay on 19.03.1999 about Pramod, who was proclaimed offender of Police Station Hauz Khas, they went to village Ghitorni along with Head Constable Samar Singh, Constable Chander Shekhar, Constable Rajbir and Constable Maharaj Singh, in order to arrest Pramod. They reached Ghitorni at about 4.30 p.m. and stopped short of the village. He sent Constable Samar Singh and Constable Maharaj Singh who were in plain clothes to the house of Chander Pal to ascertain whether accused was present there. Shortly thereafter they heard a gun-fire. They rushed to the house of Chander Pal where the villagers were already present and found Constable Maharaj Singh lying injured in the courtyard of the house. The villagers were beating Pramod. Head Constable Samar Singh had reported that Pramod had shot Constable Maharaj Singh. He immediately sent Maharaj Singh to the hospital. During this time villagers suspected Sanjay who was in custody, as Pramod's associate and started beating him. He deposes that he had conducted the search of the person of Pramod and found five live cartridges of 303 bore fitted in a charger and two other live cartridges from the right pocket of his trouser. The articles were handed over to SI Parhlad Singh, who took the same into possession vide memo Exhibit PW-8/E. In his presence Head Constable Samar Singh produced one country-made pistol and knife to SI Parhlad Singh which Head Constable Samar Singh had snatched from Pramod and informed SI Parhlad Singh that this was the same weapon which was used to cause injuries to Maharaj Singh. SI Parhlad Singh opened the pistol and found empty cartridge shell in the chamber. The empty shell was not taken out of the pistol. All the articles were converted into parcel and sealed. The pistol was taken into possession vide Exhibit PW-8/D. The sketch of the knife is Exhibit PW-8/A, the knife is Exhibit PW-8/C. Blood was lifted from the floor with the help of cotton, converted into a phial, sealed and taken into possession vide Memo Exhibit PW-8/G. The witness claims he can identify the case property. He identifies the knife, Exhibit P-1, the country-made pistol, P-2, empty cartridges, P-3, charger, P-4, five live cartridges, P-5 and two empty cartridges which were live at the time of seizure is Exhibit P-6. In his cross-examination he states that at the time they went to Court he was having a weapon. Head Constable Samar singh was carrying a revolver while he was carrying a pistol. He did not inform at the Police Station that he was going to apprehend Sanjay after getting information from Constable Chander Shekhar. He claims to have apprehended Sanjay who was trying to flee. He admits to have proceeded to village Ghitorni in a taxi which was stopped hundred meters away from the house of Chander Pal. He admits having sent Head Constable Samar Singh and Constable Maharaj to the house of of Chander Pal to ascertain the whereabouts of Pramod. He admits having heard a fire arm sound three, four minutes after departure of Constable Maharaj Singh. He admits that the Investigating Officer took the country-made pistol into possession from Constable Samar Singh which had been snatched by Samar Singh from Pramod as also the knife which was snatched from Pramod. This witness, in fact, re-asserts the case put up by him in examination-in-chief as also in the cross-examination.
10. PW-10, SI Dhan Singh states that on 19.03.1999 he was In-charge, Crime Team, South West District, when he received a call from Police Station Vasant Kunj to reach village Ghitorni. He reached there at 6.15 p.m. and inspected the spot. He prepared the Inspection Report, signed the same and handed it over to the Investigating Officer. The Inspection report is Ex. PW-10/A. In cross-examination he reiterates the facts.
11. PW-11, Constable Rajbir Singh deposes that on 19.03.1999 he had gone on a raid with SI Sukhbinder Singh. Constable Maharaj Singh, Constable Chander Shekhar and Head Constable Samar Singh had gone to Ghitorni village for apprehending Pramod who was a proclaimed offender. Constable Maharaj Singh and Head Constable Samar Singh were in civil dress and Sanjay was along with them. On the directions of SI Jaswinder Singh, Constable Maharaj Singh and Head Constable Samar Singh went to the house of Chander Pal. At about 4.30 p.m. a gun-shot was heard from the house of Chander Pal. The Police Party rushed to the spot and saw Constable Maharaj Singh lying with bleeding injuries. The public had caught hold of Pramod and were giving him a beating. Head Constable Samar Singh told them that Pramod fired a shot at Constable Maharaj Singh. Head Constable Samar Singh was holding a desi katta in his hands along with a knife which he had snatched from Pramod. Head Constable Samar Singh was also injured. A PCR Van came there which took Pramod, Sanjay, Maharaj Singh and Samar Singh to Safdarjung Hospital. In the meanwhile, cross-examination of this witness was done.
12. PW-12, ASI Ved Prakash deposes that on 19.03.1999 case F.I.R. No. 632/1996, under Section 307/34 IPC, was transferred to him for further investigation. On 19.03.1999, he arrested Pramod Kumar in F.I.R No. 632/1996. He deposes that Pramod had not been declared a Proclaimed Offender by the Court but the proceedings to declare him such were in progress. Under cross-examination he denied the suggestion that Pramod was not wanted in F.I.R. 632/1996.
13. PW-13, Head Constable Manmohan Singh, is the photographer who took photographs of the crime scene. PW-15, is SI Balram Singh, who deposes that on 19.03.1999 he accompanied the SHO and other staff to village Ghitorni and went to the house of Chander Pal where they found SI Parhlad Singh along with his staff from Police Station Hauz Khas present. The witness was directed by the SHO to conduct search of the house of Pramod. Upon search, he and his other staff found a katta from behind the a portrait of Hanuman ji and also a knife below the carpet. They also recovered two live cartridges. He prepared a rukka and F.I.R.No. 139/1999 was registered at Police Station Vasant Kunj. On the basis of the aforesaid recoveries on 30.03.1999, he accompanied the Investigating Officer in the present case and the IO of case F.I.R.No. 38/1999 for investigation to Safdarjung Hospital. Accused Pramod was admitted and arrested. His personal search was conducted vide memo Exhibit PW-15/A. In interrogation, Pramod made a disclosure which is Exhibit PW-15/B, pursuant whereto his blood stained T-shirt was taken into possession and sealed. Thereafter, they went to village Ghitorni and at the spot found lead/projectile of the bullet fired. It was having blood stains and was seized vide Exhibit Pw-15/E. He claims to be able to identify the case property. The bullet lead recovered from the spot and seized vide Memo Exhibit PW-15/E is Exhibit P-7.
14. PW-16, Inspector Mohd. Iqbal, deposes that on 19.03.1999 he was posted as SHO, Police Station Vasant Kunj. At 5.00 p.m. he received an information that a Constable had been shot dead in village Ghitorni, whereupon he deputed SI Parhlad Singh for enquiry. Later on, he along with SI Balram Singh and SI Sanjay Sharma proceeded to the spot. ACP Delhi Cantt. also reached the spot. There they found Police Party from Hauz Khas Police Station had come to the house of Chander Pal in village Ghitorni to apprehend a criminal Pramod Kumar. He also came to know that Pramod had shot Constable Maharaj Singh of the Police Party of Hauz Khas Police Station and the injured Constable as also Pramod had already been taken to the hospital. Head Constable Samar Singh who had come along with the Police Party gave a statement to SI Parhlad Singh about the incident. This witness along with staff took search of the room of Pramod Singh and found one desi katta, one knife, two cartridges (one live and one used) behind the portrait of Hanuman Ji. He then directed SI Balram Singh to initiate legal action about the recovery of the said articles and made a separate case vide F.I.R.No. 139/95.
15. PW-17, Inspector S.K.Patil, deposes that he was Additional SHO in Police Station Vasant Kunj. On 19.03.1999, when he received a message from DCP that firing took place at village Ghitorni he reached the spot and found ACP and SI Balram Singh as also other staff present. He was directed to take over the investigation. He collected all the papers from SI Parhlad Singh and started investigation. The Crime Team also reached the spot. He prepared the site plan, Exhibit PW-17/A. He received DD Entry from Constable Ajeet regarding the death of injured Constable Maharaj Singh and amended the Section in investigation from Section 307 to Section 302 IPC. He recorded the statement of Chander Pal and then went to Safdarjung Hospital along with SI Parhlad Singh and SI Balwant Singh. He arrested Pramod Kumar and conducted his personal search vide Memo Ex. PW-15/A and seized his shirt Ex. PW-15/C. He deposited the case property in the malkhana. He prepared inquest papers of Constable Maharaj Singh and after postmortem handed over the body to the relatives. The lead of the bullet was not found on the body of the deceased during the postmortem, hence he he along with SI Balram Singh went to the spot in search of the bullet lead. On search of the spot minutely, the bullet was found under the bundle of the dry wood lying on one side. It was seized vide memo Exhibit PW-15/E. During interrogation, the accused disclosed regarding other offences. Disclosure statement is Ex. PW-17/B. The case property was sent to CFSL and its report is Exhibit PX, PY and PZ.
16. PW-18, SI Parhlad deposes that on 19.03.1999 he was posted as SI at Police Station Vasant Kunj. On that day he received copy of DD No. 32/A which is Exhibit 18/A. He along with Constable Baljit Singh went to village Ghitorni where he found police staff present. On enquiry he was informed that the injured had been shifted to the hospital in a PCR Van. In the meantime SHO Vasant Kunj along with staff and ACP reached the spot. He recorded the statement of Head Constable Samar Singh vide Memo, Exhibit PW-8/F and gave endorsement, Exhibit PW-18/B which was handed over to Roshan Lal who got the case registered. Head Constable Samar Singh handed over one katta and one knife which he stated to have snatched from possession of the accused. On opening the katta he found one fire cartridge in it. He prepared the sketch of the katta vide memo, Exhibit PW-8/B and sketch of the knife vide memo, Exhibit PW-8/A. The articles were separately sealed vide memo, Exhibit PW-8/C and PW-8/D. SI Jaswinder Singh handed over one charger containing five live cartridges and another two live cartridges of 303 bore, which was recovered from the personal search of the accused. The charger was sealed and seized vide memo Ex. PW-8/E. Blood samples from front of the house were seized vide memo Exhibit PW-8/G. Constable Chander Shekhar handed over one trouser having blood stains which belonged to him which was seized vide Exhibit PW-18/C. Additional SHO S.K.Patil was joined in the investigation and went to Safdarjung Hospital where they recorded the statement of Pramod. He seized blood stained T-shirt from the accused vide memo, Exhibit 15/C. The Investigating Officer took the sealed pulandas from the Moharrar Malkhana and took the same to CFSL, Malviya Nagar. The witness identified the articles. In cross-examination he admits that no public witness was joined at the time of seizure. He denied the suggestion that Samar Singh was having a service revolver at the time of the occurrence.
17. PW-19 is Head Constable Satbir Singh. He deposes to have written the articles entered in his register which were later on handed over before sending to CFSL, Malviya Nagar. The entire property so long as it was with him remained in tact.
18. Parmod Kumar in his statement under Section 313 Cr.P.C. in answer to questions No. 7 states - "in fact Maharaj Singh and Samar Singh started beating me in this scuffle Maharaj Singh fell down. To save him Maharaj Singh fired on me from service revolver which hit Maharaj Singh. The accused has produced in defense DW-1, Sanjay, who states that he was having a restaurant in the name of 'Enrish Restaurant' at Katwaria Sarai. On 19.3.1999, two police officials came to him at Katwaria Sarai and told him that he was wanted in Police Station Hauz Khas. He accompanied them to the Police Station where he was asked regarding his other friends. The Police enquired about Mohender, Tej Pratap and Pramod. He told the Police that Pramod was his school friend and was staying as a tenant in his uncle's house at village Katwaria Saria and at present is in village Ghitorni. He was taken to the village where two officers in plain clothes and six others were present. The officers with plain clothes came in a scooter while six others accompanied him in a taxi to village Ghitorni. Two police officers had entered the boundary of the house and at that time Pramod was apprehended. The witness claims that later he came to know the names of the police officers as Samar Singh and Mahender Singh. The scuffle took place between Pramod and two police officers. During the scuffle sometime accused was on the ground and sometime Maharaj Singh was on the ground. Maharaj Singh raised alarm for help. At that time Samar Singh was present there. He took out his service revolver and fired at Pramod but the shot hit Maharaj Singh. At that time Maharaj Singh was lying on the ground. In cross-examination he states that he was in jail on 20.07.2002. He was in jail in a case under Section 392 IPC of Police Station Hauz Khas as also a case under Section 25 Arms Act was pending against him on the date of the incident. He admits that Pramod was residing at village Ghitorni, seven or eight months prior to 09.03.1999. He admits that when the Police Party came to his house they parked the vehicle 50 to 60 meters away from the house of Pramod. He denies that the place of occurrence was not visible from the place where the vehicle was parked. He also denies that after hearing bullet sounds he along with the Police did not go to the spot.
19. It has been argued for the appellant that the arrest of Sanjay in the matter stated appears to be doubtful and, therefore, the Prosecution story which is based on Sanjay's pointing out of the house of Pramod is unnatural and cannot be believed. He submits that the Prosecution's case that they went to arrest Pramod on the disclosure made by Sanjay is doubtful and, therefore, the story of a scuffle between Maharaj Singh and Pramod which has resulted in the death of Maharaj Singh is a concoction. He submits that Samar Singh is not a trustworthy witness since he denies having been armed with a revolver while SI Jaswinder Singh as also Constable Rajbir Singh specifically state that Samar Singh was having a revolver. He submits that the version put forth by the defense that it is Samar Singh who fired at Maharaj Singh from his service revolver killing him is more probable. Counsel submits that the very fact that public witnesses were not cited by the Prosecution shows that the case put up by the Prosecution is a trumped up version full of lies and totally baseless. He also submits that there is no scientific evidence to link the pistol allegedly recovered from the accused with the crime.
20. Having heard counsel for the parties, we have carefully examined the material on record as also the depositions placed before us. It is the case of the Prosecution, which is supported by evidence, that it was Sanjay who, on being apprehended, gave information about the presence of Pramod in village Ghitorni. The Prosecution also claims that Pramod Kumar was also a Proclaimed Offender of their police station. The Police Party went to Ghitorni in a taxi, 50 meters away from the house of Chander Pal while Samar Singh and Maharaj Singh who were in plain clothes were directed to go to the house of Chander Pal to find out whether Pramod was present there. Both the policemen found him in the courtyard of the house at which time Constable Maharaj Singh disclosed his identity and required Pramod to surrender on which Pramod took out a knife and veiled it threateningly at Maharaj Singh who caught hold of Pramod's hands. A scuffle ensued, during which Head Constable Samar Singh snatched the knife from Pramod. It is here that Pramod took out a katta from beneath his shirt and fired at Constable Maharaj Singh hitting him in the stomach. At this time, the other police persons, on hearing the gun-shot, reached and found Constable Maharaj Singh lying in a pool of blood. The weapon had been snatched by Head Constable Samar Singh. We also find from the evidence that the members of the public who had gathered beat up Pramod When Pramod was apprehended at the spot, a personal search was conducted upon which live cartridges of 303 bore were recovered from his person. Statements were recorded and case property deposited with the Moharrar Malkhana and later sent to FSL for examination. We also find that Constable Maharaj Singh was declared dead. His postmortem conducted which showed that death was as a result of the fire arm injury. Contentions of Counsel that the version of the Prosecution is inconsistent as regards the arrest of Sanjay appears to be valid but this in itself is not sufficient to throw out the Prosecution's case which hinges strictly on the testimony of Head Constable Samar Singh. The case of the Prosecution finds full support from the narration of the events by Head Constable Samar Singh which are further corroborated by testimony of SI Jaswinder Singh and Constable Rajbir. It is also interesting to note that the case put up by the defense while cross-examining Head Constable Samar Singh is that Samar Singh caused the death of Constable Maharaj Singh by firing from his service revolver. It is also the case of the defense that no injury was caused by the katta nor was the katta fired. This narrows down the analysis of material to whether the country-made pistol 303 bore was fired and whether the injury caused to Constable Maharaj Singh was of 303 bullet or otherwise. From the result of the Forensic Laboratory we find that the fire arm country-made pistol 303 bore, Exhibit F-1 was designed to fire a standard 303 cartridge and that the pistol was in working order. Its test fire was also successfully conducted. Empty cartridge of 303 bore, Exhibit C-1, found in the chamber of the country-made pistol was the empty cartridge fired from the country-made pistol Exhibit F-1. The other ammunition recovered from the personal search of the accused were live cartridges of 303 bore. Therefore, to say that no shot was fired from the country-made pistol is belied. The Prosecution's version that it was country-made pistol which was fired by the accused which caused injuries to Constable Maharaj Singh stands proved. The presence of Pramod at the scene of the incident is not denied. It is also not denied that Maharaj Singh died as a result of injuries at that time and at that spot. It is the version of the Prosecution that Maharaj Singh died as a result of the injuries caused by Pramod firing the country-made pistol which the defense taking up is that Maharaj Singh died as a result of firing from the service revolver of Samar Singh. No doubt SI Jaswinder Singh and Constable Rajbir Singh stated that Samar Singh was having a service revolver but no other witness states so nor is there anything on record to show that Head Constable Samar Singh was issued a revolver from the Police Station. Head Constable Samar Singh himself has denied having any weapon on him. There is no material on record to show that any weapon and ammunition corresponding to the weapon was recovered independently by Jaswinder Singh from the person of the accused on personal search.
21. In any event, the type of injury that has been caused by the fire arm is indicative that the same was by a fire from the front at close quarters and bullet went out from the back side. Surely, it is not being suggested that Samar Singh was armed with a country-made pistol and fired to help his comrade. There was plenty of police help available to apprehend the accused and no need to use fire arm.
22. There is positive evidence on record to show that cartridge 303 was fired from the country-made pistol whereas the case of the defense put forth to the witness is that no shot was fired from the country-made pistol but a shot was fired only from the service revolver of Samar Singh. From this we can safely deduce that the Prosecution's story is a correct one which is supported by scientific evidence as also by an eye-witness of the occurrence. A sequence of events unfolded in the testimony of Head Constable Samar Singh, SI Jaswinder Singh and SI Parhlad Singh show that the story of the Prosecution is truthful. The doubt sought to be introduced by the defense in the version of the Prosecution is a mere ingenuity of a fertile mind which clearly has no legs to stand.
23. From the entire depositions which we have set out and from an independent analysis thereto we find that the reasoning of the learned Trial Court based on such evidence and material cannot be criticized. The Trial Court has meticulously answered the contentions raised by counsel for the defense which have been merely repeated before us.
24. In this view of the matter, we find no infirmity in the judgment of conviction dated 05.08.2003 and order on sentence dated 16.03.2003 and uphold the same. Criminal Appeal No. 828 of 2003 & Criminal M.B.No. 1756/2005 are dismissed.