Delhi District Court
State vs . Anil Bahuwa @ Hakla on 6 July, 2018
State Vs. Anil Bahuwa @ Hakla
FIR no. 1412/2015
U/s 302 IPC & 25/27/59 Arms Act
PS: Aman Vihar
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS JUDGE, FTC,
(NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No.53003/16
Unique Case ID:DLNW01-000807-2016
State
Vs
1. Anil @ Bahuwa @ Hakla
S/o Late Sh. Mool Chand
R/o A-19, Pravesh Nagar, Mubarakpur, Delhi.
2. Sonu Dabas @ Sunil
S/o Sh. Daya Nand
R/o Village Rani Khera Khurd, Delhi/A-5,
Pravesh Nagar, Mubarakpur Dabas, Delhi
FIR No. 1412/2015
PS: Aman Vihar
Under Section : 302 IPC and 25/27/59 Arms Act
Date of committal to Sessions Court : 25.02.2016
Date on which judgment reserved : 06.07.2018
Date on which judgment pronounced : 06.07.2018
JUDGMENT
1. This is a case under section 302 IPC of Indian Penal Code, 1860 (IPC) and section 25/27/59 Arms Act.
Page no.1/ 48State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar CASE OF THE PROSECUTION
2. In the intervening night of 11.11.2015 and 12.11.2015, the accused no. 1 shot dead Ghan Shyam Prasad (the deceased) in front of house no. D-6, Chowk CC Road, Parvesh Nagar, Mubarak Pur, Delhi.
3. The prosecution filed the charge sheet against the accused no. 1 by keeping him in column no.11. Sher Khan was kept in column no.12 of the said charge sheet alleging that the accused no. 1 took the pistol from him and after using the same, he returned it to him. Sher Khan was not summoned as an accused by the ld. Predecessor of this court. Later on, the pistol was recovered from Sher Khan, however, the prosecution pleaded that no in- criminating material had been found against him to implicate him in the subject incident. Accordingly, a separate proceeding has been initiated against Sher Khan for illegally pos- sessing the pistol.
4. During the proceedings, wife of the deceased Chinta Devi (PW18) moved an ap- plication under section 319 Code of Criminal Procedure, 1973 (CrPC) to summon Sonu Dabas @ Sunil as an accused before the ld. Predecessor of this court. Vide order dated 09.06.2017, the ld. Predecessor of this court allowed the said application and summoned Sonu Dabas @ Sunil as an accused for the offence under section 302 IPC read with sec- tion 120B IPC. Being aggrieved by the said order, the accused no.2 has preferred Crl. M.C. no.227/2018 titled as "Sunil Dabas vs. State" before the Hon'ble Delhi High Court and vide order dated 17.01.2018, the operation of the impugned order i.e. the order dated 09.06.2017 has been stayed.
CHARGES
5. Charges under sections 302 and 201 IPC were settled against the accused no.1. Charge under section 27 Arms Act was also settled against the accused. Accused no. 1 pleaded not guilty and claimed trial.
Page no.2/ 48State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar EVIDENCE
6. In order to discharge the onus, the prosecution has examined 25 witnesses.
PUBLIC WITNESSES
7. PW-3 Vijay Singh deposed that it was night of Diwali festival of 2015 and it was 11th day of that month. They were 4-5 persons i.e. Sonu (PW5), Asha Ram (PW6), Raju etc. who were playing cards at Parvesh Nagar near chowk. It was 12.45 am. The accused no. 1came there on the motorcycle and threatened that he would snatch the gambling money from them. The deceased who was also playing cards with them at that time, ob- jected and asked him as to why he would snatch such money from them. The accused no. 1 took out the pistol and immediately, shot the deceased on his kanpati (temple region). They all felt scared and ran away from there. He told all the facts to the police next evening i.e. on 12.11.2015. He deposed that the accused no. 1 was dead drunk at that time.
8. PW-5 Mritunjay Pandit @ Sonu deposed that in the night intervening of 11.11.2015 and 12.11.2015, he along with PW3, PW6 and the deceased was playing cards at chowk while sitting adjacent to a wall of a vacant plot situated at Parvesh Nagar. They were playing cards under the streetlight. The accused no. 1 had come there on the pulsar black color motorcycle and parked it at a distance of five steps from the place where they were playing cards. The accused no. 1 came to them and asked them that "main Mudka se jua chhinkar aa raha hun aur yahan par bhi tum logon se jua chhinuga". The accused no. 1 further told who would oppose the same, he would shoot him. On that pretext, the de- ceased asked the accused no. 1 that he would see how he would shoot. On that, the ac- cused no. 1 took out pistol and shot on the left side temple region of the deceased who collapsed on the spot. He along with his associates fled away from the spot due to fear. Police had inquired from him next day and recorded his statement.
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9. PW-5 also deposed that on 13.11.2015, he along with PW3 and PW6 was walking on the road in their area and saw some public persons had gathered near the said chowk. Some police persons were also present there and had caught hold of the accused. He iden- tified the accused no. 1at that time as the same person who had shot the deceased at night of Diwali. IO recorded his statement.
10. PW-6 Asha Ram deposed that the incident was of the night of Diwali festival of last year. He along with PW3, PW5 and the deceased was playing cards at the chowk. At about 11:00 pm, the accused no. 1came there on the motorcycle. The accused no. 1 was alone and started abusing them. The accused no. 1 was drunk and claimed that he had won jua in Mundka and asked them not to play, else he would kill them. The deceased told him not to abuse and also apprised him that they persons were of that locality. The accused no. 1 took out the pistol and shot the deceased on his left temple region. The accused no. 1 also claimed that if anyone else also dared to speak, then he would kill that person also. Thereafter, the accused no. 1 ran away from there. They also left to their respective homes.
11. PW-1 Sanjay Jamulkar (Informant) deposed that the incident took place in the in- tervening night of 11.12.2015 and 12.11.2015. That night, around 1.00 am, when he along with wife and children was sleeping, one neighbour Satish came to their house and in- formed that someone had shot the deceased. He had phone number of the deceased since he had done plumber work at his house and made a call on that mobile number. But the said call was picked up by his wife and he informed her about the aforesaid unfortunate incident. Satish had also talked to her on mobile phone as she was not able to understand him properly. After that, he made police call at 100 from his mobile number 9313246218.
12. PW-18 Chinta Devi (wife of the deceased) deposed that on 11.11.2015 at 1.15am, one call was received from PW1 on the mobile of her husband which he had left at the house. PW1 asked her to come to the chowk in front of her gali as her husband had been shot. She along with her children immediately went there. On the way, she met Sunil Dabas @ Sonu (the accused no. 2) who told her that he had taken the revenge. Then she Page no.4/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar reached at the chowk and saw her husband was lying in injured condition. When she asked him as to what had happened, he told her that the accused no. 1 had shot him. He also told her that the accused no. 2 had told her that he had taken the revenge. Her son brought the car from the home and they took the deceased to hospital where he was de- clared dead.
13. PW-4 Sandeep deposed that the deceased was his father. In the intervening night of 11.11.2015 and 12.11.2015, he along with her mother (PW18) and uncle (tau) Mohan (PW2) reached at the spot where his father was lying in pool of blood. He and his younger Manish had taken his father to SGM hospital in the car where the doctors had declared his father as dead. On 12.11.2015, he identified the dead body of his father at SGM Hospital mortuary and IO recorded his statement in this regard Ex. PW4/A. After postmortem ex- amination, they received the dead body of the deceased vide receipt Ex. PW2/B.
14. PW-2- Mohan Kumar deposed that on 12.11.2015, he along with his relatives had gone to SGM Hospital mortuary and identified the dead body of his brother i.e. the de- ceased. IO recorded his statement in this regard Ex. PW2/A. After postmortem examina- tion, they received the dead body of the deceased vide receipt Ex. PW2/B.
15. PW-10 Manjoor deposed that he knew the accused no. 1 as he used to drive his Gramin Sewa vehicle i.e. TATA ACE no. DL 2W-3933 on Nangloi-Mubarakpur route. The accused no. 1 had stopped coming on the duty approximately 6-7 days prior to Diwali fes- tival of 2015. On inquiry, the accused no. 1 told him that he was unwell. He was the reg- istered owner of the motorcycle no. DL 4S ND 3262. Whenever there was any require- ment, the accused no. 1 used to demand the said motorcycle from him and he always used to give him the said motorcycle.
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16. PW-20 Ct. Jitender deposed that in the intervening night of 11.11.2015 and 12.11.2015, he received telephonic information that one person had been shot at Mubarak Pur, Pravesh Nagar, Kirari. He proved copy of DD no.6PP Ex.PW-20/A.
17. PW-11 HC Rakesh Kumar proved the copy of FIR Ex. 11/A, endorsement on rukka Ex.PW11/B, certificate u/s 65B of Indian Evidence Act Ex.PW-11/C and kayami DD Entry No.4A & 5A regarding registration of FIR Ex.PW11/D and Ex.PW11/E respec- tively.
18. PW-12 Ct. Krishan Kumar (Special Messenger) proved delivery of the copy of FIR to the concerned authorities.
19. PW-14 ASI Ram Kumar deposed that on 12.11.2015, on receipt of DD no.6PP, he along with the crime team reached at the spot at 2:30am. He inspected the spot. One empty cartridge case; one green colour slipper; one live cartridge; slipper; one more live cartridge; other pair of slipper; one empty box of playing cards and two jokers of such playing cards were lying at the spot. Ct. Raj Kumar (PW19) was directed to take photo- graphs of the spot. They concluded the spot inspection by 3:30am. He proved his report Ex.PW-14/A and the photographs Ex.PW-14/B1 to B-13.
20. PW-19 Ct. Raj Kumar deposed on the lines of PW14 and relied upon the photo- graphs Ex.PW14/B1 to B13 and proved their negatives Ex.PW19/A.
21. PW-13-Ct. Naveen Kumar deposed that on 14.11.2015, he visited the place of oc- currence along with Insp. Rajender Prasad (PW23) and on his pointing out, he took rough notes and measurements at the spot. On 16.11.2015, he prepared scaled site plan on the basis of such rough notes and measurements and proved the scaled site plan Ex. PW13/A. Page no.6/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar
22. PW-8 HC Vijay deposed about the deposit of parcels in malkhana and proved the relevant entries in the register no. 19 Ex. PW8/A, Ex. PW8/B, Ex. PW8/E. He also proved the road certificate no. 60/21/15 Ex. PW8/C and copy of acknowledgement received by MHC(M) Ex.PW8/D. He also proved the copy of RC Ex. PW8/F and acknowledgement Ex. PW8/G.
23. PW-9 HC Naim Singh relied upon the Road Certificate no. 60/21/15 Ex. PW8/C, copy of acknowledgement Ex.PW8/D, entry in register no. 19 at serial no. 184 Ex. PW8/E, copy of RC Ex. PW8/F and acknowledgement Ex. PW8/G. (OSR).
24. PW-15 Ct. Ravinder deposed that on 22.01.2016, he collected five pullandas from malkhana vide road certificate no.60/21/16 and RC no.61/21/16 and deposited the same with FSL. He obtained the acknowledgement from the FSL and deposited the same with MHC(M). He relied upon copy of RC Ex.PW8/C and copy of acknowledgement Ex.PW8/D.
25. PW-16 Ct. Amit Ahlawat deposed that on 12.11.2015, he joined the investigation and accompanied PW23 to mortuary of SGM Hospital Mangolpuri for autopsy of the de- ceased. Relatives of the deceased identified the dead body and PW23 recorded their state- ments. After postmortem, the dead body was handed over to LRs of the deceased. He also deposed the autopsy surgeon had handed over four sealed pullandas to PW23 which in- cluded lead portion of fired bullet recovered from the skull of the deceased, blood sample of the deceased, clothes of the deceased and sample seal which were seized vide seizure memo Ex.PW16/A.
26. PW-16 also deposed that from the hospital, they went to the house of the deceased where they met his wife PW18 who handed over one mobile phone to them which was seized vide seizure memo Ex.PW16/B. Page no.7/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar
27. PW-22 ASI Naresh Kumar deposed that on 12.11.2015 at 1.28 am, on receipt of the call, he along with Ct. Niranjan and I/C PP SI Praveen Atri reached at the spot and saw the injured i.e. the deceased was being taken to hospital in the Maruti car. They saw that blood was lying at the spot besides empty cartridge, two live cartridges, a pair of slipper, a pack of cards. He sent the information to senior officers. PW23 reached at the spot. Crime team was summoned at the spot. Crime team inspected the spot. Photographs were taken. No eye-witness could be found at the spot.
28. PW-22 also deposed that he prepared sketches of all the three cartridges Ex. PW22/A. The cartridges were seized vide memo Ex. PW22/B. Bloodstained earth was picked-up. Earth control was also taken. Pack of card and slippers were seized vide memo Ex. PW22/C. From there, he went to SGM hospital and collected the MLC of the de- ceased who had been declared dead by the hospital by the gunshot injury. No eye-witness met in the hospital. He prepared the tehrir Ex. PW22/D and sent it to the police station through Ct. Niranjan for registration of FIR. He came back at the spot. Further investiga- tion was marked to PW23 who prepared site plan at his instance i.e. Ex. PW22/E. All the seized pullandas were deposited by him with the malkhana in intact condition. He identi- fied one pair of slippers of green colour Ex. P1; three Joker Cards Ex.P2; the pieces of earth control Ex.P3 and three empty cartridges Ex.P4, Ex.P5 and Ex.P6.
29. PW-23 Inspector Rajender Prasad (Investigating Officer/IO) deposed that in the in- tervening night of 11.11.2015 and 12.11.2015, at about 1.30 a.m., he received information that a person had been shot in Pravesh Nagar area. On receipt of the aforesaid informa- tion, he reached at the spot immediately and met PW22 and Ct Niranjan at the spot. He learnt that the injured had already been removed to SGM hospital. Crime team was sum- moned at the spot and examined the place of occurrence in his presence. PW22 collected the exhibits from the spot. After that, PW22 had left for SGM hospital. No eye-witness was available either at the hospital or at the spot. From the hospital, PW22 informed him that the injured had been declared brought dead and therefore, his body was shifted to the mortuary for postmortem. PW22 got the FIR registered. After registration of FIR, he took over the investigation. He prepared the site plan Ex. PW22/E at the instance of PW22.
Page no.8/ 48State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar PW22 handed over sealed exhibits along with seizure memos and sketch of live and empty cartridges which he had seized from the spot. He took them in possession and de- posited them in the malkhana. Same day, postmortem of the deceased was got conducted at the mortuary of SGM hospital and the dead body of deceased was identified by PW4 and PW2 vide identification statements Ex. PW4/A and Ex. PW2/A respectively. After the postmortem, the dead body was handed over to PW4 vide memo Ex. PW2/B. Concerned autopsy surgeon had handed over inquest papers along with clothes of the deceased, blood gauze, one bullet taken out from the body of the deceased which he seized vide seizure memo Ex. PW16/A and deposited in the malkhana.
30. PW-23 also deposed that he made thorough interrogation and investigation as to who were those persons who were present at the spot with the deceased and were playing cards with the deceased. They reached three eye-witnesses/spot witnesses who were play- ing cards with the deceased at the time of incident i.e. PW3, PW5 and PW6. He recorded their statements u/s 161 CrPC vide which it was revealed that the accused no. 1 who was residing in their area had committed the murder of the deceased. They visited the house of the accused no. 1 but he was found absconding. He met mother of the accused no. 1 who told him that the accused no. 1 had not come back to house for last two days. He seized the mobile of the deceased from PW18 vide seizure memo Ex. PW16/B.
31. PW-23 also deposed that on 13.11.2015, on secret information, the accused no. 1 was arrested from T-point Mubarakpur Majri Road and Rama Vihar Road at about 5.30 p.m. and was thoroughly interrogated and was formally arrested at 6.30 p.m. His disclo- sure statement was recorded Mark PW23/A. He proved his arrest memo Ex. PW23/B and personal search memo Ex. PW23/C. Information about arrest of the accused no. 1 was given to his mother Urmila Devi. The accused no. 1 led them to the place of occurrence and at his instance, pointing out memo Ex. PW23/D was prepared. When the accused no. 1was apprehended at T-point, he had come on the pulsar motorcycle bearing registration no. DL-4SND-3262 which was seized vide memo Ex. PW23/E. The accused no. 1 re- vealed that he obtained the country made pistol from his friend Sher Khan. They made ef- forts to reach said Sher Khan but he was not available as his house was found locked.
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32. PW23 also deposed that during the police remand on 15.11.2015, the accused no. 1 was put in lock-up of PS Begum Pur. Next morning, when the accused no. 1 was taken out from the lock-up, he was found bleeding from his neck and it was learnt that he had self- inflicted one injury on his neck with the help of tile piece of the lock-up. He was immedi- ately removed to SGM hospital where he was admitted. He was operated at SGM hospital and thereafter, was shifted to Max Hospital, Shalimar Bagh for further treatment. Scaled site plan Ex. PW13/A was got prepared. Exhibits were sent to FSL for obtaining expert opinion.
33. PW-23 also deposed that CDR of the deceased, the accused no. 1 and the accused no. 2 were collected during the investigation. CDR of the accused no. 2 was collected be- cause PW18 had expressed her suspicion regarding his involvement in the subject inci- dent. CDRs were thoroughly analyzed and it was learnt that there was no involvement of the accused no. 2, more so in view of the statements of eye-witnesses. As per CDR, the deceased had received a call from PW6 same night and pursuant to such call, the accused no. 1 had gone for playing cards with them. Such aspect was also got confirmed from the mobile which had already been seized from the house of the deceased which was given to them by PW18. He prepared and filed the charge sheet against the accused no. 1. PW-23 also deposed that Sher Khan had been arrested and the weapon of offence had been recov- ered.
34. PW-17 HC Rajesh proved the copy of FIR no.1236/2015 u/s 309 IPC Ex.PW17/A. MEDICAL EVIDENCE
35. PW-7 Dr. Vipin Dabas, CMO, SGM Hospital, Mangolpuri, Delhi deposed that in the intervening night of 11.11.2015 and 12.11.2015 at about 2:20am, the deceased was brought in the casualty. He examined him and declared him brought dead. Dead body was shifted to mortuary for postmortem. He proved MLC of the deceased Ex.PW-7/A. Page no.10/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar
36. PW-21 Dr. Anuraj Thapar deposed that on 12.11.2015, he along with Dr. Manoj Dhingra had conducted the postmortem on the body of deceased. On external examina- tion, he found one injury i.e. firearm entry wound, oval shaped 0.7 x 0.7 cm. in diameter over left side of face, 4 cm in front of ear and 4 cm below the outer angle of left eye sur- rounded by abrasion collar and grease collar seen around the wound margin. On explo- ration, the injury track was passing through underlying skin, sic tissue, muscles and frac- turing left temporal bone, lacerating left and right temporoparietal lobes. Bullet was found embedded in right parieto temporal bone. Injury track was running upwards and from left to right side with extensive blood extravasation along the track. Cause of death was shock as a result of head injury due to rifled firearm weapon. The said injury was ante-mortem in nature and was sufficient to cause death. He proved the autopsy report Ex. PW21/A.
37. PW-21 also deposed that during postmortem, one bullet was removed from the body from right parieto temporal bone and was sealed. Clothes of the deceased and his blood sample on gauze piece were also seized and sealed. All the exhibits were handed over to the concerned police official.
FORENSIC EVIDENCE
38. PW-24 Ms. L. Babyto Devi, Assistant Director, Biology, FSL Rohini, Delhi de- posed that on 22.01.2016, five parcels in intact condition were received. Parcel no.1 con- tained gauze cloth piece having brown stains described as blood stained cotton. Parcel no.2 contained concrete pieces described as bloodstained earth. Rest of the parcels were having seal of "SGMH Mortuary Mangol Puri Delhi 83". Contents of the parcels and were given exhibit number from Ex. 1 to 5a to Ex. 5e. Blood was detected on all the exhibits. All the exhibits were subjected to DNA isolation. Male DNA profile was generated from source of Ex. 1 and Ex. 4. As per STR analysis, DNA profile generated from source of Ex. 1 (gauze cloth piece) was similar to DNA profile generated from source of Ex. 4 (gauze cloth piece having bloodstains described as blood on gauze of the deceased). DNA profile Page no.11/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar could not be generated from other exhibits. Regarding the query no.4 raised by the police, the ballistic division was requested to give the opinion. PW24 proved her report dated 12.01.2017 Ex. PW24/A.
39. PW-25 Sh. V.R. Anand, Director (Ballistics), FSL Rohini, Delhi deposed that on 22.01.2016, one sealed parcel was received in intact condition. On opening the parcel, two 7.65mm cartridges and one 7.65 mm cartridge case were taken out and were marked as Al, A2 and EC1 respectively. He examined the said exhibits and found that cartridge case marked Ex. EC1 was a fired empty cartridge and the cartridges A1 and A2 were live ones. He proved his report dated 28.06.2016 Ex. PW25/A.
40. PW-25 also deposed that on 23.03.2016, two sealed parcels sealed were received. On opening first parcel, one improvised pistol 7.65mm bore was taken out and marked as F1. Second parcel contained one 7.65mm cartridge and was marked as A1. At request, the concerned police station had provided three 7.65mm cartridges for test fire purpose. He examined the said exhibits and found that the improvised pistol marked Ex. F1 was in working order and test fire conducted successfully. The cartridge A1 was live one and could be fired through 7.65 mm caliber firearm. Cartridge A1 and two 7.65 mm cartridges received for test firing were test fired through the improvised pistol marked Ex. F1. Test fired cartridges were marked as TC1 to TC3 and recovered bullets were marked as TB1 to TB3. He proved his report dated 28.09.2016 Ex. PW25/B.
41. PW-25 also deposed that on 08.12.2016, one sealed parcel serial no. 3 was re- ceived in ballistic division through the biology division. On opening the parcel, one bullet was taken out which was marked as EB1. He examined the said exhibits and found that the bullet marked EB1 corresponded to the bullet of 7.65mm cartridge. The exhibit EB1 was ammunition as defined in the Arms Act, 1959. He proved his report dated 22.12.2016 Ex. PW25/C. Page no.12/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar
42. PW25 also deposed that on 11.04.2017, two sealed parcels were received in the office of FSL and were marked to him for examination. On opening parcel no. 1, two 7.65 mm test fired cartridges exhibit A1 & A2 and one cartridge case exhibit EC1 in case FIR no. 1412/2015 PS Aman Vihar (FSL no. 2016/F0635) were taken out. On opening the par- cel no. 2, one bullet exhibit EB1 in case FIR No. 1412/2015 PS Aman Vihar (FSL no. 2016/B612) was taken out. Same were examined by him. The individual characteristic of firing pin marks and breech face marks present on the EC1 and on test fired cartridges TC1 & TC2 in case FIR No. 1412/2015 PS Aman Vihar (FSL 2016/F2253) were com- pared under comparison microscope and were found identical. Hence, the cartridge case EC1 had been fired through the improvised pistol 7.65 mm bore marked exhibit F1 of case FIR No. 1412/2015 PS Aman Vihar (FSL 2016/F2253). The individual characteristic of striation marks present on bullet marked exhibit EB1 and on TB1 & TB2 in case FIR No. 1412/2015 PS Aman Vihar (FSL 2016/F2253) were compared under comparison mi- croscope and were found identical. Hence, the bullet exhibit EB1 had been discharged through the improvised pistol 7.65 mm bore marked exhibit F1 of case FIR No. 1412/2015 PS Aman Vihar (FSL 2016/F2253). He proved his report dated 17.04.2017 Ex.PW25/D. STATEMENT OF THE ACCUSED NO. 1
43. After completing the prosecution evidence, statement of the accused no. 1 was recorded under section 313 CrPC in which all the incriminating evidence/material were put to him which he has denied. The accused no. 1has stated that he is innocent and has been falsely implicated in this case.
DEFENCE EVIDENCE
44. The accused no. 1 has failed to lead evidence despite given opportunity.
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45. I have heard the ld. APP for the State and Senior Advocate for the accused no. 1 and have perused the material available on record.
46. Firstly, it is to be seen as to how the wheel of the criminal justice system was set into motion.
47. It is evident from the record that the incident took place in the intervening night of 11.11.2015 and 12.11.2015. PW-1 made a call at phone no.100 from his mobile phone no.9313246218 and gave the information that one person had been shot. In pursuance to the said information, DD no.6PP Ex.PW-20/A was lodged at about 1:28am. PW22 and PW23 reached at the spot and noticed that the injured i.e. the deceased was being taken to the hospital in the maruti car.
48. PW-14 and PW-19 reached at the spot at 2:30am. As per the crime team report Ex.PW-14/A, they remained at the spot from 2:30am to 3:30am. In the said report, the time period is mentioned as 2:30pm to 3:30pm. From the testimony of PW-14, PW-19, PW-22 and PW-23, it is evident that PW-14 and PW-19 inspected the scene of crime in the intervening night of 11/12.11.2015 and the same is not disputed by the accused. There- fore, it can be held that due to over sight, the time period was mentioned as 2:30 pm to 3:30 pm instead of 2:30am to 3:30am.
49. From the spot, PW-22 went to SGM Hospital and collected the MLC of the de- ceased who was declared brought dead by the gunshot injury. PW-22 prepared the tehrir Ex.PW-22/D and got the FIR registered i.e. FIR Ex.PW11/A on 12.11.2015 at 7:10 am. PW-11 proved the said FIR. PW-12 delivered the copy of FIR to the competent authori- ties. In view of the foregoing discussions, it can be held that FIR was registered without any delay. Even otherwise, it is not the case of the accused no. 1 that there was delay in lodging the FIR.
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50. It is evident from the record that PW-1 also made a call at about 1:00 am on the mobile phone of the deceased and the said call was picked up by the wife of the deceased i.e. PW-18 whereby PW1 informed PW-18 about the incident. Consequently, PW-18 along with PW2 and PW4 reached at the spot and saw the deceased in the injured condi- tion. PW-4 along with his younger brother Manish took the deceased to SGM Hospital in the car. PW-7 proved MLC of the deceased Ex. PW7/A perusal of which reveals that PW4 brought the deceased in the hospital on 12.11.2015 at about 2:30am where he was declared brought dead. PW-2 and PW-4 identified the dead body of the deceased and their statements Ex.PW-2/A and Ex.PW-4/A were recorded to this effect. Simultaneously, the dead body of the deceased was sent for the postmortem which was conducted on 12.11.2015 at 2:00 pm. After postmortem, dead body of the deceased was handed over to PW2 and PW4 vide receipt Ex.PW-2/B. MEDICAL EVIDENCE
51. PW-7 proved MLC report of the deceased Ex.PW-7/A perusal of which reveals that the deceased was brought dead in the casualty.
52. PW-21 proved the postmortem report of the deceased Ex. PW21/A perusal of which reveals that on external examination, one injury i.e. firearm entry wound, oval shaped 0.7 x 0.7 cm. in diameter over left side of face, 4 cm in front of ear and 4 cm be- low the outer angle of left eye surrounded by abrasion collar and grease collar seen around the wound margin were found on the body of the deceased. On exploration, the injury track was passing through underlying skin, sic tissue, muscles and fracturing left temporal bone, lacerating left and right temporoparietal lobes. Bullet was found embedded in right parieto temporal bone. Injury track was running upwards and from left to right side with extensive blood extravasation along the track. Cause of death was shock as a result of head injury due to rifled firearm weapon. The said injury was antemortem in nature and was sufficient to cause death.
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53. In view of the foregoing discussions, it can be held that the connection of the bullet recovered from the body of the deceased with the injury sustained by the deceased and his death stands proved.
54. Ld. APP for the State pleaded that in the intervening night of 11.11.2015 and 12.11.2015, the accused no. 1 fired shot on the temple region of the deceased which re- sulted in his death. PW3, PW5 and PW6 are the eye witnesses of the said incident and have fully supported the case of the prosecution and their testimony remained consistent, trustworthy and reliable in nature. As such, the prosecution has proved its case beyond reasonable doubt that the accused no. 1 has committed the murder of the deceased.
55. On the contrary, Senior Advocate for the accused no. 1 pleaded that case of the prosecution is rested upon the testimony of PW-3, PW-5 and PW-6 (the eye witnesses) who claimed that the incident had taken place in their presence. However, the conduct of the said witnesses is highly suspicious in nature because firstly, they all fled away from the spot and secondly, they had not even tried to inform the family members of the de- ceased or the police about the incident. He also pleaded that PW23 had also not made any effort to record the statement of the eye witnesses at the very first instance. In fact, there was delay in recording the statement of PW-3 PW-5 and PW-6 and the prosecution has failed to justify the said delay. He also pleaded that there exists contradictions in the testi- mony of the said witnesses. Hence, their testimony is not reliable in nature. As such, the prosecution has failed to prove their presence at the scene of crime. In fact, PW-3, PW-5 and PW-6 have been planted in this case to solve a blind murder case. The fact is that the accused no. 1 was not present at the spot.
PRESENCE OF PW3, PW5 AND PW6 AT THE SCENE OF CRIME
56. First question arises as to how and when name of PW-3, PW-5 and PW-6 came into picture.
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57. It is evident from the crime team report Ex.PW-14/A that once the crime team reached at the spot, no eye witness was found and the crime team had advised the IO to record the statement of the victim or the eyewitnesses who were present there at the time of the incident. It is also evident from the testimony of PW-22 and PW-23 that once they reached at the spot, there was no eye witness to the incident.
58. It is evident from the crime team report Ex. PW14/A, statement of PW22 & PW23 and the photographs Ex. PW14/B4 to B9 that one empty playing cards box and some playing cards were found at the scene of crime.
59. According to PW-23, on 12.11.2015, he made thorough investigation to find out as to who were present with the deceased at the spot and were playing cards with him. It is evident from the record that PW23 seized the mobile phone of the deceased; and the ac- cused no. 1 has not disputed the said fact and identity of the mobile phone. PW23 de- posed that during investigation, he collected the CDR data of the mobile phone of the de- ceased and the accused no. 1 and found that the deceased received a call from PW-6 that night and pursuant to that call, the deceased had gone to play card with him. PW23 also confirmed the same from the mobile phone of the deceased which he seized from the house of the deceased. In his cross examination, no suggestions to the contrary were given by counsel for the accused. PW23 in his cross examination has denied a suggestion that he obtained CDR data of the mobile phone of the deceased and then planted PW-3, PW-5 and PW-6 as false witnesses due to their being the call record between their mobile phones. In his cross examination, PW3 also denied the similar suggestion given by coun- sel for the accused. Hence, vide the said suggestions, the accused no. 1 admitted that PW23 collected and analyzed the CDR data of the mobile phone of the deceased and on that basis, he approached PW3, PW5 & PW6 and examined them.
60. Regarding suspicion, in reply to a specific question, in his cross examination, PW23 denied a suggestion that he had falsely introduced PW3, PW5 and PW6 as the eye Page no.17/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar witnesses on the basis of suspicion expressed by PW-18 who informed him that the de- ceased used to play the cards with them. Hence, it can be held that the accused no. 1 ad- mitted that PW-18 had raised suspicion against the said persons as they used to play cards with the deceased.
61. In the case titled as " Abu Thakir & Ors. vs. State of Tamil Nadu ", reported in (2010) 5 SCC 91, the Hon'ble Supreme Court held that if the investigation did not reveal as to how the investigation officer came to know about the presence of the eye witnesses at the scene of crime, even then, that could be considered as a procedural lapses in the in- vestigation and was not sufficient in itself to discard the testimony of the said witnesses. However, in the present case, in view of the foregoing discussions, it can be held that the prosecution has proved as to how and when the names of i.e. PW3, PW5 and PW6 (the eye witnesses) came into picture.
62. Senior Advocate for the accused no. 1 strenuously pleaded that there was delay in recording the statement of PW-3, PW-5 and PW-6 and the prosecution has failed to justify the same.
63. Senior Advocate for the accused no. 1 pleaded as if PW-23 knew the names of PW-3, PW-5 and PW-6 at the very beginning, however, despite that he had deliberately not recorded their statement at earliest. As held above, there was no delay in lodging the FIR. It is also evident from the testimony of PW-23 that till 3:00 pm on 12.11.2015, he had not been able to contact any eye witness. On 12.11.2015, he recorded the statement of PW-6 between 3:00 pm and 4:00 pm. At about 6:00 pm, he recorded the statement of PW-18. Thereafter, he recorded the statement of PW-3 and PW-5 on the same day. No suggestions to the contrary were given by counsel for the accused no. 1 to PW-23 to this effect.
64. In view of the foregoing discussions, it can be held that it is not a case where PW23 knew about the eye witnesses at the very beginning but had delayed in recording Page no.18/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar their statements. But it is a case where once PW-23 got the clue, he recorded the statement of PW3, PW5 and PW6 on the same day of the incident at earliest that too before the ar - rest of the accused no.1. Therefore, the plea raised by Senior Advocate for the accused no. 1is not sustainable in law.
65. It is evident from the testimony of PW-3, PW-5 and PW-6 that they knew the de- ceased, being the local resident, for the last 3-4 years prior to the date of incident.
66. PW-6 in his cross examination specifically deposed that he did not try to contact PW-3 and PW-5 on the next day of incident i.e. the day time of 12.11.2015. No sugges- tion to contrary was given to him by counsel for the accused. In cross examination, PW6 deposed that the police recorded his statement 2-3 days after the incident. However, no such suggestion was given to PW-23 that statement of PW6 was not recorded on 12.11.2015 but it was recorded 2-3 days after the incident. Along with the charge sheet, the prosecution has filed two statements of PW5 recoded on 12.11.2015 and 13.11.2015. Hence, it can be held that first statement of PW6 was recorded on 12.11.2015.
67. PW-5 deposed that he did not know whether PW-6 was present in the mortuary or not. He attended the last rite of the deceased. He did not know whether the police in- quired from PW3 about the alleged incident in the mortuary or not. PW5 deposed that he was not detained in the police station for inquiry purpose. His statement was recorded by the police at his house on 12.11.2015 on the laptop and he had not signed that statement. No specific suggestions to the contrary were given to him. In his cross examination, PW5 deposed that the police recorded his statement only at once on 13.11.2015. Along with the charge sheet, the prosecution has filed two statements of PW5 i.e. statement dated 12.11.2015 and dated 13.11.2015. As mentioned earlier, according to PW5, his first state- ment was recorded on 12.11.2015 and it has not been rebutted by the accused no. 1in his cross examination. Further, no suggestion was given to PW23 that he recorded the first statement of PW5 on 13.11.2015. Hence, it can be held that first statement of PW5 was recorded on 12.11.2015 at his house and that time, he was not aware of the statement of PW3 or PW6.
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68. PW-3 deposed that in the morning, he along with PW-5 and 3-4 more persons had gone to SGM Hospital mortuary but he did not notice PW-6 over there. PW-3 deposed that he told the entire facts to the police in the evening of 12.11.2015. In his cross exami- nation, PW3 deposed that his statement was recorded at the police station. He also de- posed that his statement was recorded on 13.11.2015 and it was signed one. However, no suggestion was given to him that his statement was not recorded on 12.11.2015. No such suggestion was given to PW23 also.
69. In view of the testimony of PW-3, PW-5 and PW-6, it can be held that their first statement was recorded on 12.11.2015. PW-6 was not in contact of PW-3 and PW-5 after the incident till recording of his statement on 12.11.2015. As evident from the testimony of PW-5, his statement was recorded at his house. According to PW3, his statement was recorded in the police station. It is not the case of the accused no. 1 that after recording the statement of PW-6, PW-6 met PW-3 and PW-5 and had not informed them about his statement. Therefore, it can be held that PW-3, PW-5 and PW-6 had not discussed their statement with each other before making the same to PW23. It is also evident from their testimony that they made their respective statement at different places at different time in absence of each other without knowing the contents of the other's statement. Hence, it can be held that when PW3, PW5 and PW6 made the statement to PW-23, they were not aware of the fact that other two persons had made any statement to PW23 and the contents of the same. It is worth mentioning here that they made their statements before arrest of the accused no.1.
70. Testimony of PW-6 reveals that in the intervening night of 11.11.2015 and 12.11.2015, the accused no. 1 reached at the spot on the black motorcycle and abused them. Thereafter, the accused no. 1 raised some dispute as to the gamble money and on that some conversation took place between the deceased and the accused no.1. That time, the accused no. 1 took out the pistol and shot the deceased on his left temple region. Testi- mony of PW3 and PW5 corroborates the testimony of PW6 on material particulars. As held above, PW3, PW5 and PW6 made their statement in absence of each other without Page no.20/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar knowing contents of the statement made by another one. This fact substantiates their pres- ence at the scene of crime, otherwise, there was no occasion for them to know the said facts.
71. PW3, PW5 and PW6 in their initial statements as well as their testimony before this court specifically stated that the accused no. 1 shot the deceased on his left temple re- gion. PW5 in his cross examination deposed to that extent that the accused no. 1 fired the shot from point blank range. Place of injury sustained by the deceased is not in dispute. As evident from the record, after the incident, once, PW4, PW18, PW14, PW15, PW22 and PW23 reached at the spot, PW3, PW5 and PW6 were not there and by that time, the de- ceased had been taken to the hospital and then was shifted to the mortuary and after post- mortem, he was cremated. Therefore, there was no occasion for PW3, PW5 and PW6 to know about the exact place of injury because it is not the case of the accused no. 1 that PW23 had told the said fact to the said witnesses. This fact also substantiates the presence of PW3, PW5 and PW6 at the scene of crime, otherwise, there was no occasion for them to know the said fact.
72. Regarding the clothes worn by the deceased at the time of incident, PW-5 in his cross examination specifically deposed that the deceased was wearing yellow kurta and white pajama. PW-6 in his cross examination also deposed that the deceased was wearing yellow kurta and pant. It is evident from the post mortem report Ex. PW21/A, the de- ceased wearing the yellow colour kurta and white pajama. In view of the foregoing dis- cussions, it can be that there was no occasion for PW5 and PW6 to know about the clothes worn by the deceased and their colour except that they had observed so when they were present at the spot. This fact further substantiates the presence of PW5 and PW6 at the scene of crime, otherwise, there was no occasion for them to know the said fact.
73. In cross examination of PW3, PW5 and PW6, no suggestion was given by counsel for the accused that the initial statement made by them was false or was made at the in- stance of the IO. Even no suggestion was given to them in their cross examination that they falsely deposed before the court at the instance of PW23. Hence, it can be held that Page no.21/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar the statement of PW3, PW5 and PW6 is voluntary in nature and has been made without any coercion and pressure whatsoever.
CONDUCT OF PW3, PW5 AND PW6
74. Senior Advocate for the accused no. 1 strenuously pleaded that according to PW-3, PW-5 and PW-6, the deceased was known to them for last 3-4 years. However, they all fled away from the spot after the incident. Not the least, they remained silent for a considerable period without justification. Even they had not gone to the police station at their own to disclose the facts about the incident. Hence, the said conduct of the said witnesses is unnatural and highly suspicious in nature. Therefore, their testimony is not reliable in nature. In fact, PW23 has planted the said witnesses just to falsely implicate the accused no. 1in the present case in order to solve a blind murder case.
75. In the judgment titled as " Abu Thakir & Ors. vs. State of Tamil Nadu ", reported in (2010) 5 SCC 91, the Hon'ble Supreme Court held:
12. Shri N. Natarajan, learned senior counsel appearing on behalf of the appellants submitted that the presence of the so called eyewitnesses (PWs 2 to 4) at the scene of offence is highly doubtful. The submission was, their evidence is totally untrustworthy and suffers from material contradictions. It was further submitted that the theory of conspiracy set up by the prosecution was disbelieved by the High Court and on the same analogy, the High Court ought to have totally disbelieved PWs 2, 3 and 4 and if their evidence is not taken into consideration, there is no other evidence based on which the appellants could be convicted for the charge under Section 302, IPC. It was also submitted that there is enormous delay in submitting the statements recorded under Section 161, Cr.P.C. to the Court since they were received by the Court after eleven days of recording the statements. The cumulative effect of these factors makes the whole prosecution case Page no.22/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar doubtful and the appellants are at least entitled to benefit of doubt.
17. The short question that arises for our consideration in this appeal is as to whether the courts below committed any manifest error in relying on the evidence of eye witnesses, Natarajan (PW-2), Rajendran (PW-3) and Subramani (PW-4) to convict the appellants for the charge under Section 302, IPC.
21. Natarajan (PW2), is an automobile broker dealing with the sale and purchase of old trucks and cars. It is in his evidence that his friend Subramani (PW 4), who at the relevant time was doing business in sale and purchase of tomato in wholesale, intended to purchase a lorry and in that connection went to the house of Marudhachalam (PW 20), at Kovai Pudur. At that time, they have heard noise "ayyo amma" and he along with other two went running there and found that three persons were stabbing the deceased repeatedly and the time was 7.00 or 7.30 a.m. It is also in his evidence that one among the accused sustained a cut injury on his right wrist. On seeing the incident, they ran away from the place and went to several places. They have reached their house at about 5 p.m. and in the evening at about 8.30 p.m., the Inspector of Pothanur police inquired from him as to what he had seen in the morning of that fateful day. His statement was recorded. Thereafter, he was required to attend the identification parade to be held on 23rd April, 2002 at Salem prison and on that day, he identified the appellants 1 and 2 before the Judicial Magistrate and later identified appellant No.3 in the Court.
23. The evidence of Rajendran-PW3 and Subramani (PW 4) is more or less the same as that of PW2-Natarajan.
24. It is in the evidence of PWs 2 to 4 that after witnessing the ghastly incident of attack, they fled away from the scene of offence due to fear.Page no.23/ 48
State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar We are unable to appreciate the criticism levelled by the learned senior counsel appearing for the appellants that if PWs 2 to 4 were really present at the scene of occurrence, nothing prevented them from informing the police. The response, behavioural patterns of individuals in such a situation differs from person to person and it cannot be said that response of every and any human being would be similar on such occasions. May be PWs 2 to 4, were reeling under shock and nervousness. They were roaming here and there and as is evident from their evidence, they have reached their respective houses only in the evening after 5 p.m. The further criticism was that they were examined only in the evening of 28th March, 2002 and there is no reason offered by the I.O. for not examining them immediately but only in the night of 28th March, 2002. Be it noted, there was no question put in the cross- examination to PW30-Investigating Officer, as to why he did not chose to examine PWs 2, 3 and 4 immediately at the time of inquest or thereafter. The mere fact that they were not examined during the inquest is of no consequence. It is nobody's case that they were present at the time of inquest and yet their statement was not recorded by the I.O. On these grounds, the presence of PW2 at the scene of occurrence cannot be disbelieved.
36. We may have to deal with yet another submission made by the learned senior counsel for the appellants that the investigation was not fair as there were many missing links in the process of investigation. This submission was made by the learned counsel contending that the investigation does not reveal as to how the Investigating Officer came to know about the presence of PWs 2 to 4 at the scene of occurrence and for recording their statements in that regard.
37. This Court in State of Karnataka Vs. K. Yarappa Reddy held that "even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it.
Page no.24/ 48State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. ... Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit the investigating officer's suspicious role in the case". The ratio of ..............the judgment in that case is the complete answer to the submission made by the learned senior counsel for the appellants.
76. In the judgment titled as "Abuthagir and Ors. vs. State Rep. by Inspector of Police, Madurai", reported in (2009) 17 SCC 208, the Hon'ble Supreme Court held:
9. The prosecution version has to be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the Court must be integrated and not truncated or isolated. The Court has to appreciate in reaching the conclusion about the guilt of the accused, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of the witnesses. Much emphasis has been led by learned counsel for the appellants on the alleged delayed examination of the witnesses. It is well settled that delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution's case. So far as the delay in recording a statement of the witnesses is concerned no question was put to the investigating officer specifically as to why there was delay in recording the statement.
Unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect.
Page no.25/ 48State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar It would depend upon several factors. If the explanation offered for delayed examination is plausible and possible and the Court accepts the same as plausible there is no reason to interfere with the conclusion. (See Ranbir and Ors. v. State of Punjab (AIR 1973 SC 1409), Bodhraj @ Bodha and ors. v. State of Jammu and Kashmir (2002 (8) SCC 45), Banti @ Guddu v. State of M.P. (2004 (1) SCC 414) and State of U.P. v. Satish (AIR 1004 SC 261). It is seen that the PWs 3 and 4 disclosed that they had witnessed the incident. Before PW-22 their evidence was recorded. The incident took place on 29.8.1997 and the accused persons were arrested after about 8 months. Till the arrest of the accused the statements of PWs 3 and 4 were not recorded under Section 161 of Code. After arrest because their photos were published in the newspapers, that is how PWs 3 and 4 came to the police station on their own accord on two different occasions and gave statements. It has been submitted by learned counsel for the appellants that PWs 3 and 4 did not disclose the incident to any one. They have no interest either for prosecuting the accused or making a statement in the defence. They are independent witnesses. In such a case it is absurd to hold that investigating officer had erred in recording the statement of PWs 3 and
4. The investigating agency was making all possible efforts to know the names of the witnesses. This factor cannot be doubted. If really as contended by learned counsel for the appellants the prosecution wanted to tamper some witnesses they could have immediately done so after the incident.
11. It was noted by this Court in Vemireddy Satyanarayan Reddy and Ors. v. State of Hyderabad (AIR 1956 SC 379) that it requires a courage in case of atrocity for a simple man to come forward and proclaim the truth unmindful of the consequences to himself. A witness is normally considered to be an independent witness unless he springs from the sources which are likely to be tainted such as enmity. Here again it Page no.26/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar would depend upon the facts of each case. In the instant case, as PWs 3 and 4 have no enmity with the accused they are independent and natural witnesses. They are not under the control of the police and do not have in any sense any obligation to the police. Since they have revealed the truth after long time after seeing the photos of the accused persons, that cannot be a factor to discard their evidence. In Sardul Singh v. State of Haryana (AIR 2002 SC 3462) it was held as follows:
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyser sift and assess the evidence of record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting apt objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has been often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth... Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out. proof beyond reasonable doubt".
12. PW-3 was a mason by profession and PW-4 was a petty seller of sarees. Their courage in coming forward to depose against the accused persons needs to be appreciated. Here are two persons from the lowest status of the society who had taken courage to stand up, picked and identified the accused persons. PWs 2 and 3 have stated that they witnessed the incident from a place which is just near the Central Jail. In a bright day light the murder took place. Therefore, there is no infirmity in the identification.
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77. In the judgment titled as "State of Punjab vs. Karnail Singh", reported in (2003) 11 SCC 271, the Hon'ble Supreme Court held:
2. In a nutshell the prosecution version is as follows:
..........After some time, Piara Singh and Swaran Singh (PWs. 1 and 2 respectively) heard the cry for help made by the deceased. Immediately they went out and saw both accused persons armed with weapons dragging the deceased towards their Dera. At that time there was an electric bulb lighting their Dera. When they tried to help the deceased, Nirmal Singh fired at the deceased with his gun, as a result of which he fell down on the ground while accused Karnail Singh was assaulting the deceased with the Kirpan. When Piara Singh (PW 1) raised alarm pleading that the deceased should not be assaulted, the accused persons threatened them. Being frightened they ran away to their village. On the following morning, they told about the incident to Gurdip Singh, Sarpanch..............
7. ............................On consideration of the rival submission, we are of the view that the High Court is not justified in directing acquittal of the accused persons. It proceeded on an erroneous impression that the FIR was lodged at 2.00 p.m. after deliberations and discussions. No material has been indicted for coming to this conclusion. On the contrary, evidence on record clearly shows that the information was lodged at 8.00 a.m. at the police chowk, and the FIR was registered at the police station at 9.35 a.m. and it reached the Magistrate at 3.00 p.m. It is baffling as to how and on what material High Court came to the conclusion that the FIR came into existence at 2.00 p.m. Additionally considering the distance between the place of occurrence, police chowk, police station and the court of the Magistrate, it cannot be said that there was any unexplained delay so far as registration of FIR and Page no.28/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar dispatch to the Magistrate are concerned. Merely because the information was not lodged at the police chowk or the police station in the night, that cannot be a suspicious circumstance in view of the factual position noted by the Trial Court............... It is to be noted that there was no dispute by the accused regarding the presence of the dead body and the severed head in the field and in the tubewell of accused Karnail Singh. Though the prosecution has to lead evidence to substantiate its accusations, if factors within the special knowledge of the accused are not satisfactorily explained it is a factor against the accused. No explanation was given by the accused during examination under Section 313 of the Code except making bold denial. Though this factor by itself cannot be sufficient to fasten the guilt of the accused, while considering the totality of the circumstances this is certainly a relevant factor. The evidence of PWs 1 and 2 is clearly cogent and without even properly analyzing their evidence the High Court came to the conclusion that their presence was doubtful.
78. In the judgment Karnail Singh (supra), both the eye witnesses to the incident i.e. PW-1 and PW-2 were the brother of the deceased. However, being frightened, they ran away from their village and the following morning, they told about the incident to the Sarpanch. The accused no. 1 raised the doubt on the said conduct of PW-1 and PW-2.
79. In the judgment Abuthagir (supra), the accused no. 1 was arrested 8 months after the incident. Thereafter, the photographs of the accused no. 1 were published in the newspaper. On that basis, PW-3 and PW-4 (the eye witnesses) came to the police at their own on two different occasions and gave their statements. The accused no. 1 questioned the reliability of the statement of the said two witnesses.
80. In the judgment Abu Thakir (supra), case of the prosecution was rested on the testimony of three eye witnesses i.e. PW-2, PW-3 and PW-4. In that case also, the said witnesses had ran away from the place of incident after seeing the incident. The accused no. 1 questioned their testimony being highly doubtful, untrustworthy and suffering from Page no.29/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar material contradictions.
81. In the above cited judgments, the Hon'ble Supreme court held that mere running away from the spot and not reporting the incident immediately to the concerned authority or a person in itself is not to ground to doubt the testimony of the said witness because every person acts differently in the given circumstances.
82. In the present case, as evident from the testimony of PW3, PW5 and PW6 that they all knew the accused, being the local resident, prior to the date of incident. This fact is not disputed by the accused no.1.
83. PW-3 in his testimony specifically deposed that the deceased had collapsed immediately after the shot; and after the incident, they all got scared & ran away from there. No specific suggestion to the contrary was given in his cross examination by counsel for the accused. He also deposed that he had not gone to the house of deceased after the incident to inform his family about the same nor had informed about the incident to the police at his own.
84. PW-5 in his testimony also deposed that once the deceased collapsed, he along with his associates fled away from the spot due to fear. He went to his house but due to fear he did not come out. In his cross examination, no suggestion to the contrary was given. In his cross examination, PW5 deposed that he had not directly gone to his house after the incident due to fear but had gone to the park and hide himself in the bushes of the park. After one or two hours he went to his house. No suggestion to the contrary was given to PW-5. In the mean time, he did not disclose about the incident to his neighbors as well as of the family members of the deceased about that matter. Even in the mortuary, he did not disclose the said facts to the family members of the deceased.
85. PW-6 in his testimony deposed that after shooting the deceased, the accused no. 1 claimed that if anyone would also dare to speak then he would kill that person also. They all went from there to their respective houses. In his cross examination, PW6 deposed that after 15-20 minutes of the incident, he reached at his place. No suggestions to the Page no.30/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar contrary were given to PW6 in his cross examination.
86. From the above mentioned testimony of PW-3, PW-5 and PW-6, it is evident that being witnessed the killing of the deceased and due to threat given by the accused, after the incident, they all fled away from the spot due to fear and remained at different places.
87. In the present case, PW-3, PW-5 and PW-6 were not related to the deceased or the accused no. 1 though, they knew them being the local resident. Statement of PW-3, PW-5 and PW-6 was recorded the following evening without delay wherein they disclosed the name of the accused no. 1 and next day, the accused no. 1 was arrested. In other words, unlike the judgment Abuthagir (supra), in the present case, statement of PW-3, PW-5 and PW-6 was recorded before the arrest of the accused no. 1 wherein they disclosed the identity of the accused no. 1 at their own and by that time, PW23 was not aware of the identity of the accused no.1. Thereafter, on that basis, the accused no. 1 was arrested. If, PW23 wanted to falsely implicate the accused no. 1 in the present case on planting the said witnesses, then he would have planted them and recorded their statement after showing arrest of the accused and disclosing his identity to PW3, PW5 and PW6.
88. Like in the judgment Abu Thakir (supra), in the present case also, there are three eye witnesses and case of the prosecution is rested upon their testimony. Like in that case, PW3, PW5 and PW6 in the present case, had also fled away from the spot after the incident. In the present case, the prosecution has explained as to how PW23 has came to know the name of the said witnesses.
89. As held in the judgment Abuthagir (supra), it requires a courage in case of atrocity for a simple man to come forward and proclaim the truth unmindful of the consequences to himself. A witness is normally considered to be an independent witness unless he springs from the sources which are likely to be tainted such as enmity. Here again it would depend upon the facts of each case.
90. In the present case, PW-3 was dealing in the building material while PW5 was working in a shoe factory. PW 3, PW5 and PW6 have their families and the responsibility Page no.31/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar to maintain them. The accused no. 1 was known to them and they had seen him shooting the deceased on the temple region. They belonged to lower status of the society who had taken courage to stand up, picked and identified the accused. There was no infirmity in the identification. The response, behavioural patterns of individuals in such a situation differs from person to person and it cannot be said that response of every and any human being would be similar on such occasions. May be PW3, PW5 and PW6 were reeling under shock and nervousness. Therefore, they could not muster the courage to immediately report the incident to the police or thereafter.
91. Senior Advocate for the accused no. 1 pleaded that there exists contradiction in the version of PW-3, PW-5 and PW-6 as to what the accused no. 1 had actually stated when he reached at the spot where they along with the deceased were playing gamble. From the version of PW-3, PW-5 and PW-6, one thing is clear that the accused no. 1 had abused and had raised the dispute qua the gamble money and wanted to fetch the same. Therefore, the contradiction in exact wording what the accused no. 1 had stated is not the material contradiction.
92. Senior Advocate for the accused no. 1 also pleaded that according to PW-3, the incident took place at 12:45am. According to PW-5, it took place in the intervening night of 11/12.11.2015. On the contrary, according to PW-6, the incident took place at 11:00 pm. As such, there exists contradiction as to the time of incident.
93. Leela Ram (Dead) through Duli Chand vs. State of Haryana and another", reported in (1999) 9 SCC 525, the Hon'ble supreme Court held:
"11. The court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
12. It is indeed necessary to note that hardly one conies across a witness Page no.32/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar whose evidence does not contain some exaggeration or embellishments-
sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give slightly exaggerated account. The Court can sift the chaff from the corn and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness - If this element is satisfied, they ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same."
130. Every human being is not expected to act and react in the same manner in a particular situation."
94. It is an admitted fact that the incident took place in the intervening night of 11/12.11.2015. According to PW-1, he got the information at about 1:00 am and he immediately called PW-18 and also made a call at 100 number and DD no.6PP was recorded at about 1:28am. The accused no. 1 has failed to rebut the said facts. Therefore, it can be held that the incident had not taken place at about 11:00 pm on 11.11.2015. Even otherwise, it is not a material contradiction.
95. PW-3, PW-5 and PW-6 specifically stated that they along with the deceased were playing cards that night. PW-3 also named one Raju and stated that he was also present with them. However, name of Raju is not mentioned in his statement Ex.PW-3/DA. As such, it is a material improvement in the statement of PW3 to this effect only. But it is sufficient to discredit the testimony of PW3 in its totality.
96. In view of the foregoing discussions and on perusal of the record, it can be held that the investigating agency was making all possible efforts to know the names of the witnesses. This factor cannot be doubted. If really as contended by Senior Advocate for the accused, the prosecution wanted to tamper some witnesses they could have immediately done so after the incident. Statement of PW3, PW5 and PW6 was recorded at earliest. PW3, PW5 and PW6 have no interest either for prosecuting the accused no. 1 or making a statement in the defence. They are independent witnesses and natural witnesses. PW 3, PW5 and PW6 have no enmity with the accused no.1. They are not Page no.33/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar under the control of the police and do not have in any sense any obligation to the police. Testimony of PW3, PW5 and PW6 remained consistent, trustworthy and natural. They corroborated each other in material particulars. Therefore, it can be held that PW3, PW5 and PW6 were present at the spot at the time of incident and have witnessed the same.
IDENTIFICATION OF THE ACCUSED NO. 1 AND HIS PRESENCE AT THE SCENE OF CRIME
97. As held above, the presence of PW3, PW5 and PW6 at the scene of crime at the relevant time stands proved. They specifically named the accused no. 1 in their statement and deposed that they knew him prior to the date of incident. No suggestion to the contrary was given by counsel for the accused. As such, the identity of the accused no. 1 stands proved.
98. Testimony of PW3, PW5 and PW-6 reveals that the accused no. 1 reached at the spot on the black motorcycle and abused them. Thereafter, the accused no. 1 raised some dispute as to the gamble money and on that some conversation took place between the deceased and the accused no.1. That time, the accused no. 1 took out the pistol and shot the deceased. Their testimony to this effect remained consistent and corroborated each other in material particulars. As such, according to the said witnesses, the accused no. 1 was present at the spot at the time of incident and shot the deceased.
99. On the contrary, Senior Advocate for the accused no. 1 pleaded that the accused no. 1was not present at the spot at the time of incident.
100. In the case titled as " Dhananjoy Chatterjee @ Dhana Vs State of West Bangal", reported in 1994(2) SCC220, the Hon'ble Supreme Court held:
"10 (4)......... but it is well settled that a plea of alibi, if raised by an accused no. 1is required to be proved by him by cogent and satisfactory evidence so as to completely exclude the possibility of the presence of the accused no. 1at the place of occurrence at the relevant time. The belated and vague plea of alibi of which we find no whisper Page no.34/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar during the cross-examination of any of the prosecution witnesses and which has not been sought to be established by leading any evidence is only an afterthought and a plea of despair.
101. As held in the above cited judgment, onus to prove the plea of alibi is on the accused no.1. Now it is to be ascertained whether the accused no. 1 has discharged his onus to prove the same.
102. The accused no. 1 in cross examination of PW3, PW5 and PW6 gave a suggestion that he was not present at the spot but where was he, he had not put the same to the said witnesses. However, in reply to question no.18 of his statement u/s 313 CrPC, the accused no. 1 stated that on 11.11.2015 at about 4:00 pm, he along with wife of PW-10 namely Monti went to Rohtak in Santro car to deliver the goods. Again stated that the said lady was not the wife but was the friend of PW-10. As such, according to the accused no.1, he along with Monti an acquaintance of PW-10 had left for Rohtak to deliver the goods. Firstly, no such suggestion was given to PW-3, PW-5, PW-6 and PW23. Secondly, the testimony of PW-10 is completely silent to that effect. Thirdly, the accused no. 1 has not led any evidence nor examined Monti to prove the said fact. Fourthly, the said suggestion is vague in nature as to the nature of goods and to whom they belonged to and to whom he had delivered them at which address and at what time.
103. In view of the foregoing discussions, it can be held that on the one hand, the accused no. 1 has failed to discharge his onus to prove the plea of alibi and on the other hand, the prosecution has proved the presence of the accused no. 1 at the scene of crime at the relevant time. Hence, it stands proved that the accused no. 1was present at the scene of crime at the time of incident.
FALSE IMPLICATION
104. Senior Advocate for the accused no. 1 pleaded that PW-3, PW-5 and PW-6 have been planted as the eye witnesses to falsely implicate the accused no. 1 in the present case.
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105. Now the question arises as to whether PW-3, PW-5 and PW-6 are the planted witnesses to falsely implicate the accused no. 1 in the present case.
106. PW-3 in his cross examination denied a suggestion that he agreed to become a witness in the present case as he was friend of the deceased or that he was planted as there was call record of the conversation between his mobile and mobile of the deceased or that the police had threatened him to depose, otherwise, they would make him the accused no. 1in the present case. Similar suggestions were given to PW-5 and PW-6 also except the CDR suggestion.
107. According to the accused no.1, the police told PW-3, PW-5 and PW-6 to become witnesses in the present case and threatened that otherwise, they would implicate them in the present case as an accused. Another suggestion was given that they deposed being the friend of the deceased. Both the suggestions are contradictory to each other because as per the first suggestion, they were forced to become a witness and as per second suggestion, they voluntarily became witnesses. Further, no suggestion was given to PW-23 that he had pressurized the said witnesses that if they would not depose against the accused no. 1 then he would falsely implicate them as an accused in the present case.
108. To this effect, one suggestion was given to PW-23 that he had introduced the said persons as the witnesses to solve the blind murder case; and on the basis of suspicion raised by the PW-18. However, no such suggestions were given to PW-3, PW-5 and PW-
6.
109. PW23 denied a suggestion that PW-3, PW-5 and PW-6 were detained in the police station for 2-3 days and were pressurized to make the statement against the accused. However, no such suggestion was given to PW-3, PW-5 and PW-6.
110. In nutshell, according to the accused no.1, PW-3, PW-5 and PW-6 were planted and deposed against him under pressure of the police as they had been threatened that otherwise they would made an accused in the present case. If the IO wanted to solve the Page no.36/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar blind murder case then he would have falsely implicated PW-3, PW-5 and PW-6 once he had suspicion on them because by that time, PW23 had no clue about the assailant. Further, the accused no. 1 has failed to give any reason as to why PW23 would have let off all said persons and only implicated him in the present case. As evident from the testimony of PW-3, PW-5 and PW-6, they knew the accused no. 1 before the date of incident being the resident of the same locality. It is nowhere the case of the accused no. 1 that either PW23 or the said witnesses had any enmity with him. It is also nowhere the case of the accused no. 1 that PW23 had saved PW-3, PW-5 and PW-6 for some extraneous consideration. In the given circumstances, the accused no. 1 has failed to give any explanation as to why they would falsely depose against him.
111. Further, the accused no. 1 in his statement under section 313 CrPC, nowhere stated that PW-3, PW-5 and PW-6 are the planted witnesses and have deposed against him under pressure of the police as they had been threatened that otherwise, they would be made accused no. 1in the present case. He has also not stated that PW-3, PW-5 and PW-6 had an enmity with him. Further, in reply to the questions no.71 and 72, he stated that he did not know as to why the prosecution witnesses had deposed against him or the police has filed the present case against him.
112. In view of the foregoing discussions, it can be held that PW-3, PW-5 and PW-6 have not been planted as the eye witnesses to solve a blind murder case by falsely implicating the accused no. 1 in the present case.
ACCUSED NO. 1 WAS ABSCONDING AFTER THE INCIDENT
113. PW-23 in his testimony deposed that once they reached at the house of the accused no.1, the accused no. 1 was found absconding and his mother told him that the accused no. 1 had not come back to the house for last two days. In cross examination of PW-23, no suggestion to the contrary was given by counsel for the accused no.1. Hence, it can be held that PW-23 visited at the residence of the accused no. 1 but he was not present there, however, PW23 met mother of the accused no. 1 who informed that the accused no. 1had not come back to the house for last two days. The accused no. 1 has failed to disclose his Page no.37/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar whereabouts during the said period. The accused no. 1 in his statement u/s 313 CrPC though stated that he left for Rohtak on 11.11.2015 at 4:00 pm, however, he has not disclosed as to when he came back from there. Further, as held above, the accused no. 1 has failed to prove the said fact. Therefore, the accused no. 1 has failed to justify his absence from the time of incident till his arrest on 13.11.2015. As such, an adverse inference can be drawn against him.
114. In view of the foregoing discussions, it can be held that after the incident, the accused no. 1 remained absconded without justification.
CCTV FOOTAGE
115. Senior Advocate for the accused no. 1 pleaded that the crime team in its report Ex.PW-14/A had specifically advised the IO to "deeply watch the CCTV footage to know the offender" which shows that the CCTV was installed at the scene of crime and therefore, the crime team had specifically directed the IO to watch the footage of the same. Despite that the IO has not filed the said CCTV footage. If the said CCTV footage would have been filed on record, it would have been proved that the accused no. 1 was not involved in the subject incident. As such, the IO had withheld the vital piece of evidence i.e. the CCTV footage. As such, an adverse inference may be drawn against the prosecution.
116. In column no.11 of the crime team report Ex.PW-14/A, the crime team mentioned the exhibits found at the spot i.e. one empty cartridge, two live cartridge, the playing cards, and slipper. At the end of the report, the crime team advised IO to "deeply watch the CCTV footage to know the offender". It implies that the articles which according to the crime team could be relevant in the present case, were mentioned in column no.11 of the said report. Simultaneously, the IO was advised to take steps as mentioned therein.
117. If, the submission made by senior counsel for the accused no. 1 that CCTV footage was available at the spot that's why the IO was advised to watch it is accepted, then on the same analogy, it can be said that the victim was in position to give the Page no.38/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar statement and the eye witnesses were also present at the spot as mentioned therein and therefore, IO was simply advised to record their statements. As evident from the testimony of PW14, PW-22 and PW-23, no eye witness was present at the spot and the deceased was declared brought dead and the said facts are not disputed by the accused no. 1 also. Hence, it can be held that the crime team had only advised the IO to look for availability of the CCTV footage and if it would be available, then to watch it to know the offender.
118. Now the question arises as to whether the CCTV camera was installed in the vicinity and if yes, whether the CCTV footage was available and that was not collected by the IO.
119. PW-14 in his cross examination specifically deposed that the advice given in the crime team report regarding CCTV footage was general in nature and it was for the IO to see whether any CCTV camera was installed in the vicinity or not. PW14 denied the suggestion that the CCTV camera was installed near the spot. To this effect, PW-22 in his cross examination deposed that no CCTV camera was installed near /around the spot. PW-23 in his cross examination also deposed to that effect and that the crime team had advised only regarding collecting CCTV footage.
120. PW23 also denied the suggestion that there was a CCTV camera in the area but the footage was not purposely collected because the same would have reflected the innocence of the accused no.1. As evident from the record, the accused no. 1 was the resident of the same locality where the deceased was residing. Therefore, the accused no. 1 must be aware of the place where the CCTV was installed. In that scenario, at least, the accused no. 1 must have mentioned the place where CCTV camera was installed, however, that was not done. Further, as per the said suggestion given to PW-23 that he had not collected the CCTV footage purposely, according to the accused no.1, the CCTV footage remained at the spot itself, however PW-23 had not done anything towards collection of the same. As per record, the accused no. 1 was arrested on 13.11.2015 at about 6:30 pm. As such, the accused no.1 had ample opportunity to make an effort to collect the said CCTV footage to plead his innocence. However, this is not the case of accused no. 1 himself. It is Page no.39/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar also not the case of the accused no. 1 that at the time of his arrest or thereafter, he pleaded so to the police or any authority but was not heard to this effect.
121. In view of the foregoing discussions, it can be held that no CCTV Camera was in- stalled in the area and the crime team had only advised the IO to look for the CCTV cam- era and its footage. Therefore, once there was no CCTV camera, there cannot be any oc- casion for PW23 to collect its footage.
122. In view of the above cited judgments and foregoing discussions, it can be held that PW3, PW5 and PW6 are the independent and neutral witnesses. Their testimony can be relied upon because the same remained consistent, trustworthy and unimpeachable and corroborated each other in material particulars. The accused no. 1 has failed to shake their credibility. Therefore, the same inspires confidence of this court. Hence, it stands proved that PW3, PW5 and PW6 were the eye witnesses to the incident. It also stands proved that the accused no. 1was present at the scene of crime at the relevant time. The accused no. 1 shot the deceased. Consequently, the deceased sustained bullet injury as mentioned in the post mortem report and succumbed to death.
RECOVERY
123. Testimony of PW23 was recorded before the ld. predecessor of this court whereby PW-23 deposed that after arrest, the accused no. 1made the disclosure statement Mark- 23/A. In the present case, the original disclosure statement is on record and was put to PW-23 who identified his signature at point X there upon. Therefore, the said document should have been marked as an exhibited document which was not done. However, it is a marked document only. Once an explanation was sought from the ld. APP to this effect, he submitted that the ld. predecessor of this court was of the view since the disclosure state- ment is inadmissible in law, hence, it should be marked only. In my opinion, the disclo- sure statement is a document and once the original of it is on record and the competent person has proved the same, it should have been exhibited because the issue as to how far Page no.40/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar it is admissible in view of section 27 of the Evidence Act, is a matter of appreciation of evidence. Further, counsel for the accused no.1 has cross examined PW23 w.r.t. the disclo- sure statement of the accused no. 1. The accused no. 1 in his statement under section 313 CrPC has not denied his signature on the said disclosure statement. He has also not stated that his signature was obtained on the blank paper or he was forced to sign the same. Hence, the disclosure statement of the accused no. 1 can be considered in evidence.
124. In the disclosure statement, the accused no. 1 specifically stated that he took the pistol from his friend namely Sher Khan and after using the same, he returned that pistol to Sher Khan. Accordingly, PW23 along with the accused no. 1 searched for Sher Khan, however, he was not found at his house but he could not be traced out till filing of the charge sheet. As such, the accused no. 1 disclosed a fact that he arranged the pistol from Sher Khan and after using the same, he returned it to Sher Khan and could get that recov- ered. It is not the case of the accused no. 1 that the said fact was within the knowledge of PW23 before that.
125. PW-23 in his testimony specifically deposed that once they arrested Sher Khan, the pistol was recovered from him. In cross examination of PW-23, no suggestion was given that the said pistol was not recovered from Sher Khan or that the same was planted in the present case or that the same has no connection with the accused no.1 and the subject inci- dent. As such, the testimony of PW23 regarding recovery of the pistol on the basis of the disclosure statement of the accused no. 1 remained unrebutted. Even during the course of arguments, Senior Advocate for the accused no. 1 has not raised any question as to recov- ery of the pistol in the present case from Sher Khan on the basis of disclosure statement of the accused no.1 and its connection with the subject incident. In view of the foregoing dis- cussions, it can be held that the pistol sent to FSL was recovered at the instance of the ac- cused no.1. This also substantiates the involvement of the accused no. 1 in the subject in- cident.
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126. It is evident from the testimony of PW-8 and PW9 that on 15.03.2016, PW23 de- posited one sealed parcel containing the pistol vide entry no. 184 in register no.19 Ex.PW- 8/E and the said parcel containing the pistol was sent to FSL vide RC no.150/21/16 Ex.PW-8/F. PW8 also proved the acknowledgement issued by FSL Rohini Ex.PW-8/G perusal of which reveals that the same was deposited with FSL on 23.03.2016. The said testimony of PW-8 and PW-9 remained unrebutted.
127. To this effect, PW-25 deposed that on 23.03.2016, on opening the first parcel, he found one improvised pistol 7.65mm bore for the purpose of examination and the said parcel was intact and tallied with the specimen seal. The testimony of PW25 to this effect remained unrebutted.
128. In view of the foregoing discussions, it can be held that the pistol was deposited in the malkhana and later on, it was sent to FSL for examination. In the entire process, seal of the parcel containing the pistol remained intact and untempered.
129. It is evident from the testimony of PW25 and his reports Ex. PW25/B and Ex.PW25/D that the improvised pistol Ex. F1 was in working order. The individual char- acteristic of firing pin marks and breech face marks present on the empty cartridge EC1 and on test fired cartridges TC1 & TC2 were found identical. Hence, the cartridge case EC1 had been fired through the improvised pistol 7.65 mm bore Ex. F1. The individual characteristic of striation marks present on bullet Ex. EB1 and on TB1 & TB2 were found identical. Hence, the bullet Ex. EB1 had been discharged through the improvised pistol 7.65 mm bore Ex. F1. Testimony of PW25 to this effect remained unrebutted.
130. In view of the foregoing discussions, it can be held that the pistol Ex.F1 was in working condition and the bullet Ex. EB1 recovered from the body of the deceased was fired through the said firearm and had caused the injury to him and resulted in his death. Hence, the nexus between the cause of death of the deceased and the bullet recovered Page no.42/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar from the body of the deceased and its connection with the weapon of offence stands proved.
ARREST
131. According to the prosecution, on the basis of the secret information, the accused no. 1 was arrested from T-point Mubarakpur Majri Road and Rama Vihar Road on 13.11.2015 at about 6:30 pm vide arrest memo Ex.PW-23/B. To prove the same, the pros- ecution examined PW-23 who deposed to that effect. In cross examination of PW-23, no specific suggestion to the contrary was given. No suggestion was given that the arrest memo Ex.PW-23/B is a forged and fabricated document. However, in reply to question no.66 of his statement u/s 313 CrPC, the accused no. 1 stated that the police lifted him from his house. Firstly, no such suggestion was given to PW-23. Secondly, the accused no. 1 has not disclosed on which date and at what time he was lifted from his house, if not arrested on 13.11.2015 as deposed by PW-23.
132. In view of the foregoing discussions, it can be held that the accused no. 1 was ar- rested on 13.11.2015 following due process of law.
133. Senior Advocate for the accused no. 1 pleaded that PW-18 in her testimony tried to project as if the deceased made a dying declaration wherein he named the accused no. 1 who had shot him, but the testimony of PW18 to this effect is not reliable in nature.
134. PW-18 in his testimony deposed that once she reached at the spot, the deceased told him that the accused no. 1 had shot him. However, no such statement was made by PW-18 in her statement u/s161 CrPC. As such, she made the material improvement in her testimony to that effect. According to PW-4, he also reached at the spot. However, his testimony is completely silent to this effect. Hence, it can be held that the deceased had not made any dying declaration as stated by PW-18.
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135. Senior Advocate for the accused no. 1 pleaded that according to the prosecution, the deceased had left his mobile phone at his home. According to PW-1, he made a call on the mobile phone of the deceased to inform about the incident which was picked up by PW-18 and he informed her about the unfortunate incident. Hence, he pleaded that testimony of PW-1 is not reliable in nature because once the deceased had already died then why PW1 would have made the call on his mobile phone.
136. According to PW1, he was informed that someone had shot the deceased. There is nothing on record to suggest that PW1 was informed or that he knew that time that the deceased had died. Therefore, he made the call on the mobile phone number of the deceased to whom he already knew because he had done some plumber work at his place.
137. Senior Advocate for the accused no. 1 pleaded that according to PW-1, one Satish informed him about the incident. However, the IO has not examined Satish. As such, testimony of PW-1 is not reliable in nature. No doubt, the IO has not made Satish a witness in the present case. However, as evident from the record, PW-1 had only given the information about the fired shot, therefore, non examination of Satish from whom then how he had got the said information could be held as the procedural lapses on the part of the IO but that is not fatal to the case of the prosecution.
138. It is pertinent to mention here that as evident from the testimony of PW23, during the police custody, the accused no.1 had self-inflicted one injury on his neck with the help of tile piece of the lock-up. The accused no. 1 has disputed the fact in the cross examina- tion of PW23. As such, it can be held that the accused no.1 attempted suicide while in police custody. The accused no.1 has failed to assign any reason to attempt such an act. PW-17 proved the FIR no.1236/15 u/s 309 IPC PS Begumpur to this effect.
139. In the judgment titled Karnail Singh (supra)", the Hon'ble Supreme Court held:
12. ...................... Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the Page no.44/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.
[See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See: Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra (1974 (1) SCR 489), State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar Behera and Ors. v. State of Orissa (2002 (7) Supreme 276). Keeping in view the legal principles and the factual scenario in our view the inevitable conclusion is that the High Court was not justified in directing acquittal of the accused no. 1persons. Accordingly the judgment of the High Court is set aside and that of the Trial Court restored.
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140. In view of the foregoing discussions, it stands proved beyond reasonable doubt that the bullet injury sustained by the deceased was attributable to the accused.
141. Senior advocate for the accused no. 1 also pleaded that PW-3 in his testimony de- posed that at the time of incident accused no. 1 was dead drunk. However, as per record, no such fact was mentioned in his statement Ex.PW-3/DA. As such, PW3 has made mate- rial improvement in his statement to that effect. Even otherwise, the accused no. 1 has not raised any defence to this effect. Hence, the said statement is of no benefit for the accused.
142. Senior Advocate for the accused no. 1 pleaded that without prejudice to the right and contention of the accused no. 1 that he is innocent, the said incident took place in a spur of movement, therefore, no offence u/s 302 IPC can be made out and at best, it could be an offence u/s 304 IPC.
143. As revealed from the testimony of PW-3, PW-5 and PW-6, once the accused no. 1 reached at the spot, he abused them and raised a dispute as to gamble money. The deceased confronted the accused no. 1 and at that juncture, the accused no. 1 took out the pistol and fired shot on the deceased. There is nothing on record to suggest that the deceased at any moment instigated the accused no. 1 or the deceased himself was carrying any weapon and used or threatened to use against the accused no.1. There is nothing on record to suggest that the deceased ever tried to indulge in any fight with the accused. In nutshell, it can be held that there is nothing on record to suggest that the deceased at any point of time had instigated the accused no. 1or indulged in any act which had instigated the accused no. 1 to indulge in such an act.
144. Admittedly, the deceased succumbed to the bullet injury. Postmortem report of the deceased Ex. PW21/A proves that cause of death of the deceased was shock as a result of head injury due to rifled firearm weapon. The said injury was antemortem in nature and was sufficient to cause death. On external examination, one injury i.e. firearm entry wound, oval shaped 0.7 x 0.7 cm. in diameter over left side of face, 4 cm in front of ear and 4 cm below the outer angle of left eye surrounded by abrasion collar and grease collar Page no.46/ 48 State Vs. Anil Bahuwa @ Hakla FIR no. 1412/2015 U/s 302 IPC & 25/27/59 Arms Act PS: Aman Vihar seen around the wound margin were found on the body of the deceased. On exploration, the injury track was passing through underlying skin, sic tissue, muscles and fracturing left temporal bone, lacerating left and right temporoparietal lobes and bullet was found embedded in right parieto temporal bone. Injury track was running upwards and from left to right side with extensive blood extravasation along the track. Detail of injury shows that the accused no. 1 fired shot on the deceased at a very close range. As such, the injury sustained by the deceased, its cause and cause of death of the deceased stand proved. Bal- listic report Ex. PW25/B and Ex.PW25/D A prove that the pistol Ex.F1 was in working condition and the bullet Ex. EB1 recovered from the body of the deceased was fired through the said firearm and that bullet had caused the injury to him and resulted in his death. The accused no. 1was responsible for the said injury. There was no instigation on the part of the deceased. The accused no. 1 left the deceased in unattended at the spot and ran away from there and remained absconded. The accused no. 1 fired the shot from such a close range upon the deceased that there was no one nor any possibility of any to be in between the accused no. 1 and the deceased. Therefore, there was no chance of missing of fire shot or that it would not hit the deceased. It is not a case of mistaken identity also. As such, it can be held that the accused no. 1 while committing the act knew that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death of the deceased and committed such act without any excuse for incurring the risk of causing death of such injury. In view of the foregoing discussions, it can be held that the prosecution has proved beyond reasonable that the accused no. 1 com- mitted the murder of deceased Ghan Shyam. Hence, the accused no. 1 is held guilty under section 302 IPC.
145. Ballistic report Ex. PW25/B proves that improvised pistol Ex. F1 was a firm arm within the meaning of the Arms Act and was in working condition. It is also proved that the said pistol was used by the accused no. 1 to fire shot on the deceased and the bullet Ex. EB1 recovered from the body of the deceased was fired through the said firearm and had caused the injury to him and resulted in his death. In view thereof, it can be held that accused no. 1 used the pistol and the cartridge against the deceased in contravention of provisions of the Arms Act. Therefore, the accused no. 1 is held guilty under section 27 of Arms Act.
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146. In view of the foregoing discussions, it can be held that the prosecution has failed to prove the essential ingredients of section 201 IPC against the accused no. 1. Hence, the accuse no. 1 is held not guilty under section 201 IPC.
147. Accordingly, the accused no.1 is convicted for the offences under sections 302 IPC & 27 Arms Act. Accused no.1 is acquited for the offence under section 201 IPC.
Digitally signed by PANKAJ PANKAJ GUPTA
Announced in the open court GUPTA Date:
2018.07.06
on this 06th day of July, 2018. 16:35:12 +0530
(Pankaj Gupta)
ASJ, FTC, NorthWest
Rohini: Delhi
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