Delhi District Court
Orrisa vs Brahmanand Nanda, 1976, Crlj on 10 July, 2009
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO.119/2005
STATE
versus
ARVIND KUMAR
s/o SHRI HAKIKAT RAI
r/o VILLAGE PRAHLADPUR BANGAR,
DELHI.
FIR No. :476/94
Offence Under Section :302 IPC
Police Station : IP Estate
Date of committal: 06.12.1996
Date of taking up the matter for the first time: 25.05.2009
Date of conclusion of arguments: 03.07.2009
Date of judgment: 08.07.2009
Counsel for State: Sh.Rakesh Kumar, Additional Public Prosecutor
Counsel for Accused: Sh.K.Kaushik, Advocate
JUDGMENT
S.C. NO.119/05 Page 1 of 160 pages 2
1. As per prosecution case, on 28.12.94 the deceased Constable Mohd. Rashid and lady SI Shashi Bala were posted as Munshi Roznamcha and Duty Officer respectively in Police Station I.P. Estate. At about 5:45 pm the deceased came to the reporting room and sat on a chair in front of lady SI Shashi Bala. From there, the deceased started talking over the telephone with someone and after 5- 7 minutes he was interrupted by SI Shashi Bala who asked him to disconnect the official phone as some urgent phone call could be expected. But the deceased did not pay heed and continued over the phone. At about 5:55 pm, SI Shashi Bala casually asked the accused who was posted as guard in the police station to stop the deceased from continuing further on phone. Accused placed his hand on the shoulder of the deceased and asked him to disconnect the phone but the deceased jokingly S.C. NO.119/05 Page 2 of 160 pages 3 pushed him while holding the SAF carbine of the accused. On this, the accused tried to extricate his SAF and in the course of scuffle, chain of the SAF got entangled in the belt of the accused which led to firing of five rounds that hit the deceased on his neck. ASI Ram Singh who was present at the spot immediately rushed the deceased to LNJP Hospital where the deceased was declared as brought dead.
2. On the statement of SI Shashi Bala, a case for offence under section 304A IPC was registered against the accused and investigation was handed over to Inspector Inder Singh, Additional SHO of PS IP Estate, who arrested the accused. Spot of offence was got photographed, post mortem of deceased was got conducted and clothes of the deceased as well as his SAF were sent to CFSL Chandigarh for expert opinion.
3. In the meanwhile, Sh. Shaukat Ali, father of S.C. NO.119/05 Page 3 of 160 pages 4 the deceased submitted a complaint dated 29.12.94 to the DCP (Central) followed by complaint dated 01.02.95 to the Commissioner of Police, Delhi on the basis whereof investigation of this case was transferred to the SIT Section of Crime Branch, Delhi Police. During further investigation, statements of various witnesses were recorded, scene of crime was reconstructed and again photographed by the experts of CFSL Chandigarh.
4. The further investigation revealed that on 28.12.94 at about 6:00pm accused told the deceased not to keep the telephone engaged and when the deceased did not pay heed, accused fired five rounds from his SAF carbine that killed the deceased. Opinion of experts of CFSL Chandigarh ruled out the possibility of accidental fire from SAF carbine. In his complaint dated 29.12.94 also, father of the deceased had alleged that his son has been S.C. NO.119/05 Page 4 of 160 pages 5 murdered by the accused. In his subsequent complaint dated 01.02.95, father of the deceased disclosed that prior to the incident he had been informed by the deceased that the latter had caught the accused and SI Shashi Bala in objectionable condition as they had illicit relations, due to which the accused and SI Shashi Bala got annoyed and threatened to kill him; besides, SI Shashi Bala also had made objectionable advances to the deceased, which he repelled. On the basis of fresh evidence collected, offence under Section 304A IPC was converted into offence under Section 302 IPC. Since no sufficient evidence as regards involvement of SI Shashi Bala came up, she was kept in column no.2 of the chargesheet.
5. Upon committal of case, charge was framed by my learned predecessor on 30.08.99 for offence under Section 302 IPC, to which the accused S.C. NO.119/05 Page 5 of 160 pages 6 pleaded not guilty and claimed trial.
6. In support of their case, prosecution examined 30 witnesses, whereafter accused was examined under Section 313 CrPC; accused summoned and examined one witness in his defence. I have heard Sh. Rakesh Kumar, learned Additional Public Prosecutor for State and Sh. K. Kaushik learned defence counsel who took me through entire record. I have also perused the written arguments filed on behalf of the accused. Since the entire evidence had been recorded before my learned predecessor, in order to minutely analyze evidence, I specially summoned and studied the weapon of offence during the course of final arguments.
7. PW1 is ASI Siya Ram, who was posted as duty officer at Police Station I.P. Estate on 28.12.94 from 10:00am to 6:00pm and he handed over the S.C. NO.119/05 Page 6 of 160 pages 7 SAF alongwith one chain and 20 live cartridges to the accused after taking the same back from Ct. Kartar Singh who was on earlier duty; and same day at about 12:05pm he left for press area duty under the directions of the SHO after handing over duty officer's charge to SI Shashi Bala. PW1 was only partly examined in the beginning and his further examination was deferred since regarding destruction of roznamcha some clarification had to be obtained from the IO. Subsequently, ASI Siya Ram was again examined but as PW26 and after deposing again the abovesaid facts he placed on record as Ex. PW26/A, copy of an order dated 06.07.05 of the area ACP, whereby the diary and dispatch register no.2, roznamcha A and B were destroyed upto the year 2002.
8. PW2 is the draftsman, who prepared scaled site plan Ex. PW2/A. In cross examination PW2 S.C. NO.119/05 Page 7 of 160 pages 8 stated that after preparing the scaled site plan, he destroyed the rough notes and measurements.
9. PW3 Sh. Nazir Ahmed is a witness of motive of the alleged offence. Deceased Mohd. Rashid was son of brother in law of Mohd. Sayeed, who was a friend of PW3. As per PW3, about 15 days prior to the incident he was sitting in the house of Mohd. Sayeed where the deceased also used to reside. That day at about 7:00-8:00am the deceased told his paternal uncle (foofa) Mohd. Sayeed about the illicit relations between the accused and Shashi Bala and that the deceased had seen them in compromising position, so the accused and Shashi Bala had become his sworn enemy and threatened to kill him. On this, Mohd. Sayeed advised the deceased to go to his native place and ask his father to get him transferred. In his cross examination, PW3 stated that the deceased used to visit the house S.C. NO.119/05 Page 8 of 160 pages 9 of Mohd. Sayeed and used to meet whenever he visited and prior to the incident the deceased used to reside at the house of Mohd. Sayeed. In cross examination PW3 clarified that about the illicit relations between the accused and Shashi Bala, the deceased had not told him directly but he overheard as all these facts were told by the deceased in his presence to Mohd. Sayeed. PW3 stated that his statement was recorded by police about one month after the incident; his statement was recorded in the office of crime branch but he did not know the room number and name of the investigating officer. Although, PW3 was cross examined at length, his testimony remains unshaken.
10. PW4 SI Shyam Singh is a formal witness, who was posted as duty officer and registered FIR Ex. PW4/A on the basis of rukka and complaint of SI Shashi Bala.
S.C. NO.119/05 Page 9 of 160 pages 10
11. PW5 Zahir Ahmed is a witness of motive of crime, who was working as conductor on a private bus plying between Ghaziabad and Delhi. On the day of occurrence PW5 took his maternal uncle Abdul Khalid to PS I.P. Estate as the latter was looking for a matrimonial match for his daughter and wanted to see the deceased. When PW5 and Abdul Khalid were about 15 yards away from the police station, as per PW5 he heard noise of firing and a shout "mujhe bachao" of the deceased. When they proceeded further, he heard firing again and on entering the police station they found the deceased lying on chair in a room on the right side of entrance with bullet injury. As per PW5, he also saw the accused, holding gun in his hand and a lady police officer to whom the accused said "madam, apne isko to marva diya ab mera kya hoga?" and the lady police officer told him not to worry. By that time 10- S.C. NO.119/05 Page 10 of 160 pages 11 15 other police officials arrived in the room and the deceased was shifted to Irwin Hospital. Since PW5 and Abdul Khalid were not allowed to enter the hospital, they went back to their respective homes. PW5 stated that the deceased was the brother of wife of PW5's brother, so he informed about the incident to his family.
12. In his cross examination, PW5 Zahir Ahmed described the route and timings taken by him and his maternal uncle Abdul Khalid for reaching police station I.P. Estate on the day of occurrence. PW5 explained that since he had met the deceased hardly ten days ago, he was certain that the deceased would be available in the police station. From police station IP Estate, PW5 went to LNJP Hospital but was not allowed to enter there, so after staying outside the hospital for some time, he left back for home. PW5 explained that he did not lodge any S.C. NO.119/05 Page 11 of 160 pages 12 complaint regarding this case since the deceased himself was a police official.
13. PW6 HC Ram Kishore stated that on 28.12.94 while posted as DD writer in Police Station IP Estate, he came to his room and lied down on a cot. At about 5:45pm, while talking to Ct. Tanaji and Ct. Pane Singh, he heard shot of one fire, so all of them went near the room of duty officer and they saw that a bullet had hit the deceased and accused was present there. PW6 alongwith ASI Ram Singh took the deceased to hospital where the deceased was declared brought dead. After deposing these facts, PW6 stated: "I do not want to say anything as nothing happened in my presence." At this stage, PW6 was declared hostile to the prosecution. In his cross examination by learned prosecutor, PW6 admitted that accused was carrying his SAF and SI Shashi Bala also was present on the spot; he further S.C. NO.119/05 Page 12 of 160 pages 13 admitted that ASI Ram Singh came to the spot when accused was going to lift the empty cartridges from the ground.
14. PW7 HC Rajender Singh is a formal witness, who had handed over the SAF and 20 cartridges to Ct.Kartar Singh on 28.12.94 while discharging duties as MHC (M).
15. PW8 Mohd.Naseem stated that he did not recollect anything with regard to this case but whatever he stated to the police on 04.04.96 was his correct statement. This witness also was declared hostile and cross examined by the learned prosecutor.
16. PW9 HC Yogesh Kumar is formal witness, who received one sealed parcel from duty constable of LNJP Hospital and handed over the same to the investigating officer.
17. PW10 Ct. Krishan Gopal was motorcycle S.C. NO.119/05 Page 13 of 160 pages 14 rider with the first IO Inspector Inderjeet Singh and when after receivifficerng a wireless message he reached Police Station IP Estate along with the investigating officer, the duty officer SI Shashi Bala told them that accused had accidentally fired. In his presence, five empty cartridges lying on the ground and 15 live cartridges lying on table were seized. After deposing these facts, PW10 stated:
"nothing happened in my presence." Prosecution declared this witness hostile and cross examined him. In cross examination, PW10 admitted that blood was lying on the chair as well as floor and his statement Ex. PW10/A was recorded by the investigating oficer. He admitted that four spent bullets and five cartridges were seized vide seizure memo Ex. PW10/B and one carbine, five live cartridges and one barrat cap were also seized vide seizure memo Ex. PW10/C. He identified the SAF S.C. NO.119/05 Page 14 of 160 pages 15 as Ex. P1, five empty cartridges and four spent bullets as Ex. P2, Barrat cap as Ex. P3 and 10 live cartridges as Ex. P4/1-10.
18. PW11 Ct. Satyaveer is a formal witness, who collected three parcels on 05.10.95 from FSL Chandigarh and deposited the same in malkhana of Police Station IP Estate.
19. PW12 is SI Shashi Bala, who deposed that on 28.12.94 she was posted in Police Station IP Estate as duty officer from 12:00 noon to 6:00 pm and the deceased was on duty as roznamacha munshi till 8:00pm. At about 5:45pm the deceased came to her room and started making a phone call while sitting on a chair across the table. When the deceased continued on phone for 5-7 minutes, PW12 asked him not to keep the phone engaged but deceased paid no heed. At about 5:55pm, PW12 asked the accused who was posted as sentry to stop S.C. NO.119/05 Page 15 of 160 pages 16 the deceased from keeping the phone engaged. On this, accused asked the deceased to leave the phone by putting his hand on shoulder of the deceased, who jokingly caught the SAF of the accused. When accused tried to take back the SAF, in the course of scuffle, SAF of the accused got entangled with the chain attached with belt of the accused, due to which fire opened and bullets hit the deceased on neck and chest. As per PW12, she got the deceased sent to LNJP Hospital where he was declared as brought dead. PW12 further stated that the firing occurred because of negligence of the accused who did not keep it in proper condition and she proved her report as Ex.PW12/A. At the time of incident, as per PW12, Inspector Sehrawat of CISF and one public person Naseem were present and they helped in shifting the deceased to the hospital. PW12 also stated that from 09.12.94, she had been running on S.C. NO.119/05 Page 16 of 160 pages 17 leave and had joined on 28.12.94 only.
20. PW13 HC Karim Baksh stated that on 28.12.94 he was posted at PS IP Estate as record clerk and had gone to ACP office at Karol Bagh in connection with some departmental enquiry. At about 5:45pm on his return to the police station, he saw that accused was present as sentry as the gate of the police station while SI Shashi Bala was standing near the accused, who was either loading or removing the rounds in the magazine. When PW13 went inside the duty officers' room, he found the deceased making a telephone call. When PW13 asked the deceased to make entry of his arrival in the roznamcha, the deceased requested PW13 to make the entry himself since he was making some urgent call regarding surgery of his mother. As such, PW13 went to the place where roznamcha register was kept and started making entry. While S.C. NO.119/05 Page 17 of 160 pages 18 he was making entry of his arrival, PW13 heard a shout "mujhe bachao" and firing of 4-5 bullets at the same time. PW13 rushed towards the duty officers' room and found the deceased lying on the chair in injured condition. At that time, Ct. Ram Kishore, ASI Ram Singh and other staff members also reached. SI Shashi Bala and accused were also present in the room besides others and accused stated: "madam, apne ye kya karva diya, mere to bacche barbad ho jayge." And SI Shashi Bala replied: "tum fikar mat karo mai bhi tumare sath hu court tak tumara sath dungi." Thereafter, ASI Ram Singh and Ct. Ram Kishore rushed out to arrange a vehicle and shifted the deceased to LNJP Hospital. As per PW13, on the spot the SAF and cartridges were seized by HC Rajender Singh from the accused. On instructions of senior officers the spot was got photographed and investigation proceeded. PW13 S.C. NO.119/05 Page 18 of 160 pages 19 identified the SAF Ex. P1, bullets Ex.P2 and barrat cap Ex. P3.
21. In cross examination, PW13 stated that his statement was recorded only once after he was issued a notice under Section 160 CrPC by Inspector Prabhakar. He stated having made an entry in roznamcha at the time of taking out the record to be produced in enquiry before the ACP Karol Bagh and also recorded his arrival in the roznamcha at about 5:45pm on the day of occurrence. The place where he went to make entry of his arrival was at a distance of about 10-12 paces from the place where the deceased was sitting while making telephone call. As per PW13, after he had made his arrival entry, he heard firing and immediately he entered the room of duty officer. He stated that since SHO and the first IO did not make any enquiry from him, he did not make his S.C. NO.119/05 Page 19 of 160 pages 20 statement till he was served with notice under Section 160 CrPC. As per PW13, when he reached the spot after hearing the firing, he found that the telephone receiver was lying on the table and not in the hand of the deceased and that blood was scattered beneath the chair on which the deceased sat. When he lifted the deceased, his clothes did not get soiled with blood of the deceased at the time of shifting the deceased from the spot. As per PW13, the deceased was shifted from the spot along with the chair on which he had been sitting and after shifting the deceased, the chair was placed back.
22. PW14 ASI Vikram Singh is a formal witness who took photographs Ex. PW14/A1-A11 of the scene of occurrence on 24.05.95.
23. PW15 Ct. Karambeer is a formal witness who took a parcel from MHC(M) and deposited the same with LNJP Hospital.
S.C. NO.119/05 Page 20 of 160 pages 21
24. PW16 is Ct. Kartar Singh, who was posted in PS IP Estate as sentry at main gate till 10:00am on 28.12.94, whereafter he handed over the SAF and 20 live cartridges to the accused.
25. PW17 SI Ram Singh is a retired police official, who was posted as ASI in PS IP Estate on 28.12.94. He was declared hostile by the prosecution and cross examined. In his cross examination, PW17 admitted having made statement Ex. PW17/A to the police and admitted having removed the deceased to LNJP Hospital with the help of Ct. Ram Kishore. He also admitted having witnessed the seizure of the SAF, cartridges and barrat cap vide seizure memo Ex. PW10/B&C. He also identified the SAF Ex. P1, bullets Ex. P2 and live cartridges Ex. P4. But in his cross examination by the defence counsel, PW17 also proved as Ex. PW17/D, his statement recorded by the first IO Inspector Inder Singh. He admitted S.C. NO.119/05 Page 21 of 160 pages 22 that there is difference between his statements Ex. PW17/A and Ex.PW17/D. In cross examination, PW17 reiterated that in the course of scuffle between the deceased and the accused firing accidentally took place. PW17 specifically stated in cross examination having not seen PW13 HC Karim Baksh at the time or after the incident. He stated that at the time of incident, except SI Shashi Bala, Inspector Sehrawat, Ct. Ram Kishore, the deceased and the accused none else was present. But on being recalled for further cross examination after two days, PW17 stated that at the time of incident except SI Shashi Bala, the accused and the deceased, none else was present on the spot.
26. PW18 Sayeed Ahmad also is a witness of motive. He supported case of the prosecution in chief examination but turned hostile in his cross. In chief examination, PW18 stated having identified the S.C. NO.119/05 Page 22 of 160 pages 23 dead body of deceased who was son of his brother in law Shaukat Ali. PW18 stated that 13-14 days prior to his death the deceased had told that he had seen the accused and Shashi Bala in objectionable condition when the accused was touching her indecently and ever since then they had grudge against the deceased. As per PW18, the deceased also told that once SI Shashi Bala tried to behave indecently with him but he rebuked her. On the day of incident, father of the deceased had come to the house of PW18 at about 4:00pm, whereafter two constables, one of whom namely Ct. Fahimuddin was friend of the deceased, came and told that the deceased had suffered minor injuries in a road side accident; hearing this, father of the deceased accompanied those constables to the police station while PW18 and mother of the deceased followed them in a bus. At police station, father of the S.C. NO.119/05 Page 23 of 160 pages 24 deceased and PW18 came to know that the deceased had been killed and they found that the spot of accident had been cleaned with water.
27. In cross examination conducted after about two years, PW18 stated that at the police station he came to know that the deceased was shot accidentally and at that time neither he nor father of the deceased suspected any foulplay. During his cross examination, PW18 voluntarily added that for past one year he is on inimical terms with father of the deceased on account of some family matters. During his further cross examination conducted after few months, PW18 stated that to his knowledge Abdul Khalid did not come to Delhi and there was never any mention of fixing a matrimonial match between daughter of Abdul Khalid and the deceased. During this cross examination, PW18 also stated that Shaukat Ali, father of the deceased had dictated S.C. NO.119/05 Page 24 of 160 pages 25 the matter of an application which was intended to be his statement to the police. He admitted that the deceased had never mentioned to him about illicit relations between the accused and SI Shashi Bala. At that stage, PW18 was cross examined by the prosecution and he stated that his earlier statement recorded on 03.12.2004 was by mistake. My learned predecessor even recorded a court observation to the effect that PW18 was extremely reluctant for 5-10 minutes to answer the question put to him.
28. PW19 Inspector Inder Singh Addl. SHO of PS IP Estate was the first IO of this case, who recorded statement Ex. PW12/A of SI Shashi Bala and made an endorsement Ex. PW19/A for registration of case under Section 304A IPC and proceeded further with the investigation. On 29.12.94 he got conducted inquest proceedings vide S.C. NO.119/05 Page 25 of 160 pages 26 form Ex. PW19/E. In his cross examination, PW19 stated that on the night of occurrence, accompanied with 3-4 persons, Sh. Shaukat Ali , father of the deceased met him and was told about the incident but neither Shaukat Ali nor Sayeed Ahmed raised any suspicion of any foulplay. He handed over the investigation to crime branch in January-February 1995. During the period when he was investigating the case, none of the police official raised any suspicion of any foulplay in the incident.
29. PW20 ASI Jameel Ahmed is a formal witness who took two parcels pertaining to this case and deposited the same with FSL Chandigarh.
30. PW21 Inspector Raj Singh is SHO, Police Training School and was posted in the year 1994 as Group Incharge, Recruits of DAP IVth Battalion. Initially he stated that he did not know anything about this case but on being declared hostile, during S.C. NO.119/05 Page 26 of 160 pages 27 cross examination by learned prosecutor, PW21 stated that in the year 1988-89 he was posted as instructor at IVth Battalion at Kingsway Camp Delhi and had a duty to provide basic training to the newly recruited constables. During the training, they were taught handling of SAF Carbines and firing with the same.
31. PW22 Sh. Shaukat Ali is father of the deceased, who deposed about motive of the crime. As per PW22, when the deceased was on leave immediately prior to the incident, he informed about having seen the accused and SI Shashi Bala in compromising position for which he reprimanded them; having been approached indecently by SI Shashi Bala, the deceased rebuked her also; and that led to harassment of the deceased. On 21.12.94, deceased returned to Delhi along with his mother who had to be operated upon and dropped S.C. NO.119/05 Page 27 of 160 pages 28 her at the residence of sister of PW22. On 28.12.94, PW22 reached his sister's house where two constables came at 7:00 pm and asked him to accompany them stating that the deceased had suffered simple injuries in some accident. As per PW22, he said that his son would not call him for simple injuries and asked the constables as to whether Shashi Bala and the accused had done something wrong with his son. On reaching the police station, PW22 was told by the SHO that his son had suffered five bullet injuries. PW22 proved as Ex.PW22/A, his statement of identification of dead body of the deceased.
32. In cross examination, PW22 stated that SHO had not recorded his statement ever; his statement was recorded by the investigating officer at the time of identifying the dead body of the deceased, though he had narrated all the events to S.C. NO.119/05 Page 28 of 160 pages 29 the senior police officers present at mortuary and also at police station but he could not say as to whether they recorded his statement or not. He admitted having made statement Ex. PW22/DA under Section 161 CrPC but denied having stated the confronted portion that death of his son occurred by accidental firing. PW22 deposed having told the entire incident about involvement of Shashi Bala and accused to the SHO on the day of incident itself. He proved his complaint dated 29.12.94 addressed to the DCP as Ex. PW22/DC.
33. PW23 Ct. Mahabeer is a formal witness, who delivered copies of FIR to the senior police officers and the area magistrate.
34. PW24 Ms. Asha is the Director, Ballistic, FSL Chandigarh, who proved her reports Ex. PW24/A to Ex.PW24/E. In her cross examination, PW24 explained that she had received five queries S.C. NO.119/05 Page 29 of 160 pages 30 during the period from 13.01.95 to 20.12.95. She denied that firing in this case was accidental. PW24 explained that by scuffle of two persons, firing of the nature as in the present case could not occur accidentally. She also stated having inspected the scene of crime before giving her opinion.
35. PW25 Sh. Satbeer Singh Sehrawat, Assistant Commandant, CISF stated that on 28.12.94 he was camped at PS IP Estate where he saw at 6:00pm that the deceased was making a phone call while sitting in control room of the duty officer. As per PW25, he also was waiting to make an official phone call. The duty officer asked the deceased not to keep the phone busy for long but he did not pay heed, so duty officer requested the sentry to stop the deceased. But the deceased did not pay heed to request of the sentry also. Sentry held the right arm of the deceased, who casually S.C. NO.119/05 Page 30 of 160 pages 31 pushed the sentry. The sentry again requested the deceased to leave the phone but while making the call, the deceased caught SAF of the sentry and while making fun with each other, deceased pushed the sentry and at that time accidental fire took place from the SAF whereby five rounds of fire hit the deceased. PW25 identified the accused as the sentry from whose SAF the firing took place. Hearing the firing, staff of the police station gathered and shifted the deceased to hospital in a private vehicle arranged by ASI Ram Chander.
36. PW26 ASI Siya Ram, initially partly examined as PW1, as described above handed over the SAF with chain and 20 live rounds to the accused.
37. PW27 Inspector Ved Prabhakhar was the second investigating officer, posted at SIT Section, Crime Branch, Delhi, who recorded S.C. NO.119/05 Page 31 of 160 pages 32 statements of Shaukat Ali, Nazir Ahmed, Sayeed Ahmed, Abdul Khalid, ASI Siyaram and HC Kareem Baksh etc. and got conducted ballistic examination. He investigated the case from 09.02.95 to 05.07.95 whereafter he got transferred. In cross examination, PW27 stated that he had enquired from Shaukat Ali as regards contradiction regarding his claim about accidental firing in Ex.PW22/DA, to which Shaukat Ali told that this statement was written by the first io Inspector Inderjeet on his own.
38. PW28 Ct. Rajender Singh had taken photographs Mark A1-A9 of the spot of occurrence on 28.12.94 but he did not have the negatives.
39. PW29 Dr. Basant Lal is a professor of forensic department of PGI Rohtak, Haryana, who conducted post mortem on the dead body of the deceased and gave post mortem report Ex. PW29/A. As per his opinion, death of the deceased was due to S.C. NO.119/05 Page 32 of 160 pages 33 haemorrhage and shock consequent upon multiple fire arm injuries to the neck and chest, all injuries being antemortem and caused by bullet and sufficient to cause death in the ordinary course of nature singly or collectively. He also proved his opinion regarding examination of clothing as Ex. PW29/B as per which firing was from close range on the deceased.
40. PW30 Inspector O.P. Arora is the third and last IO, who concluded the investigation and after arresting the accused filed the chargesheet Ex. PW30/A.
41. Upon conclusion of prosecution evidence, the accused was examined without oath under the provisions of Section 313 CrPC by my learned predecessor, whereby the entire evidence was put to the accused, giving him opportunity to explain the same. Accused stated that the firing took place S.C. NO.119/05 Page 33 of 160 pages 34 accidentally due to scuffle and snatching of SAF by the deceased.
42. In his defence, accused examined only one witness DW1, who is a former Director of CFSL, CBI Delhi. In his chief examination, DW1 stated that despite taking precautions, accidental firing can take place and possibility of accidental fire increases if the firearm gets entangled in button of a shirt or a chain etc. But DW1, also fairly stated that since he had not examined the firearm, he could not say if report Ex. PW24/E is totally incorrect. In his cross examination also he fairly stated that since he had not examined the SAF, he could not opine as regards reason of pushing of the lever of the gun.
43. No other evidence was brought.
44. It would be pertinent to record that since the trial was conducted before my learned predecessor and only final arguments were S.C. NO.119/05 Page 34 of 160 pages 35 addressed before me, in order to fully appreciate the situation, I summoned the weapon of offence, the SAF along with chain attached to it as well as bullets. Along side the muzzle of SAF is fixed a collapsible stand which remains parallel to the muzzle in folded condition. One end of the chain is attached with the collapsible stand while the other end thereof is to be tied in the belt of the holder of SAF. On the top of the muzzle, there is a horizontal space containing spring with a cocker protruding out. Until and unless the cocker is pulled behind, firing cannot take place. Strong force is required to pull the cocker. On the handle of the gun, almost by the side of trigger is a lever, like a flat knob, which is shiftable to three positions namely S, R and A. Movement of the lever also needs substantial rotational pull by holding the flat lever knob. So long as lever is at position S, triggering cannot fire S.C. NO.119/05 Page 35 of 160 pages 36 the weapon; lever has to be at position A or R to make it fire. The positions of lever are S followed by R followed by A, in the sense that to come on A from S the lever first stops at R. Trigger of the weapon is encircled by an extended portion of the handle. To fire the weapon, all three movements are essential, viz. cocking by pulling the cocker behind, by shifting the lever to A or R and by pulling the trigger.
45. During final arguments learned counsel for accused took me through the entire evidence on record, mainly stressing that firing that killed the deceased was accidental when chain of the SAF got entangled during the scuffle; the case originally registered for offence under Section 304A IPC was converted into the offence under Section 302 IPC after a gap of three months.
46. Learned counsel for accused took me through the testimony of five witnesses examined by S.C. NO.119/05 Page 36 of 160 pages 37 the prosecution on the aspect of motive, these witnesses being PW3, PW5, PW13,PW18 and PW22. It was argued that PW12 and PW25 are eye witnesses who support the version of accidental fire but neither of them was declared hostile by the prosecution. As per PW29, all the four bullet injuries are in the middle of neck of the deceased which also goes to show that it was an accidental fire since not even the best of shooter can fire four bullets in such a small area. Report dated 28.12.94 of the ACP also shows that the firing was accidental.
47. Learned defence counsel pointed out that statement of Sh. Shaukat Ali father of the deceased was recorded under Section 161 CrPC while identifying dead body of the deceased on 29.12.94 but he did not allege any foulplay in the death of his son; even in his complaint dated 29.12.94 Ex. PW22/DC father of the deceased did not impute S.C. NO.119/05 Page 37 of 160 pages 38 any motive on the accused and rather gave a totally different version disclosing enmity between the deceased and one SI Maruti and SHO of PS Nabi Kareem.
48. Learned defence counsel submitted that till 09.02.95 it was a case of accidental fire, whereafter the case was transferred to crime branch and on 15.02.95 father of the deceased gave detailed statement alleging illicit relations between the accused and SI Shashi Bala. Why did Shaukat Ali not disclose the alleged illicit relations on 28.12.94 or 29.12.94 when as per him, the deceased had told about those relations a week ago? It was also contended that since prosecution did not bring any documentary evidence as regards leave of the deceased prior to his death, it cannot be believed that he was on leave and disclosed illicit relations between accused and Shashi Bala to his father. S.C. NO.119/05 Page 38 of 160 pages 39 Since prosecution did not examine Ct. Fahimuddin, who as per Shaukat Ali informed about accident of the deceased, defence argued that it has to be presumed that no person named constable Fahimuddin exists in PS IP Estate.
49. As regards witnesses Zahir Ahmed, Abdul Khalid, HC Kareem Baksh and Nazeer Ahmed, it was argued that they were examined after an unexplained delay simply to substantiate a fabricated motive; if these witnesses were not produced by Shaukat Ali before crime branch, how did the io reach them?
50. It was argued by learned defence counsel that testimony of PW22 Shaukat Ali, father of the deceased deserves to be discarded since he is an interested witness and keeps changing his version as regards motive. As regards PW18, Sayeed Ahmed, it was argued that he is a flip-flop witness against S.C. NO.119/05 Page 39 of 160 pages 40 whom prosecution has already filed an application for initiating perjury proceedings, so he is not reliable and in any case in his cross examination PW18 states that he did not express any suspicion regarding death of the deceased.
51. As regards PW3 Nazir Ahmed it was argued that this witness of motive also cannot be believed since he did not know name of the IO and even room number of the crime branch where his statement was recorded.
52. As regards PW5 Zahir Ahmed, another witness of motive it was argued that his conduct of returning home after the incident without informing father of the deceased is quite abnormal; he mentions date of incident wrongly as 29.12.94 instead of 28.12.94; he contradicts statement of independent eye witness PW12 Shashi Bala; he falsely states having met the deceased 10 days S.C. NO.119/05 Page 40 of 160 pages 41 before the occurrence, which was not possible as deceased was on leave; he gives a totally new version of words uttered by the deceased "mujhe bachao", which in any case is not possible to hear during peak hours of traffic outside the police station; and his statement was recorded two years after the incident. Failure of the prosecution to produce Abdul Khalid in the box also shows that nothing as deposed by PW5 had occurred, as per defence.
53. As regards PW13 HC Kareem Baksh, another witness of motive, it was argued that his presence is not corroborated by any other witness and there is no explanation for his silence till 22.03.95, despite his being a police official. It was argued that if there was no entry of his departure for going to ACP office Karol Bagh, where was the need to make his arrival entry, which shows that he had no reason to be present on the spot at the time of S.C. NO.119/05 Page 41 of 160 pages 42 occurrence. Since prosecution failed to place on record even a copy of the alleged arrival entry of PW13, it has failed to establish presence of PW13 on the spot. PW13 states that he had received notice under section 160 CrPC from second IO Inspector Prabhakar but the latter states that he did not issue any notice. PW13 did nothing to remove the deceased to the hospital, which shows that he was not present on the spot. ASI Ram Singh and HC Ram Kishore falsified statement of PW13. As such, it was contended that testimony of PW13 deserves to be discarded.
54. It was further argued by the defence that prosecution failed to prove the DD entry of handing over of the SAF to the accused. Since PW21 Inspector Raj Singh of PTS was declared hostile, his testimony deserves to be discarded and in any case he did not state specifically that he had trained the S.C. NO.119/05 Page 42 of 160 pages 43 accused in handling and firing the SAF.
55. Learned defence counsel took me through all the five reports of ballistic expert Ex. PW24/A-E and argued that clause 5 of report Ex. PW24/D contradicts the report Ex. PW24/E.
56. It was argued that since second IO PW27 Inspector Prabhakar did not lodge any complaint against the first investigating officer that the latter had written statement of Shaukat Ali on his own, PW27 has to be discarded. PW30, the third investigating officer Inspector O.P. Arora proved on record as Ex. PW30/DA1-DA4 statements under Section 161 CrPC, which statements demolish the motive part of the prosecution.
57. Thence, as per defence it was a case of accidental firing and at the most negligence on the part of the accused, which caused death of the deceased.
S.C. NO.119/05 Page 43 of 160 pages 44
58. Learned counsel for accused placed reliance on the judgments in the case of STATE OF ORRISA vs BRAHMANAND NANDA, 1976, CrLJ 1985; PANDA NANA KARE vs STATE OF MAHARASTRA, 1979 CrLJ 640; MARUTI RAM NAIK vs STATE OF MAHARASTRA, 2003 CrLJ 4326; BANDI MALLAIAH vs STATE OF ANDHRA PRADESH, 1980 CrLJ 914; LALLU MANJHI vs STATE OF JHARKHAND, 2003 (1) C.C. CASES (SC) 97; NARESH GIRI vs STATE OF MP, 2007 (2) CAR (SC) 1031; and P.V. NARSIMHA RAO vs STATE, through CBI, 2002 (2) CC CASES (SC) 162.
59. Almost throughout the proceedings before me, father of the deceased remained present; I was informed that throughout the trial father of the deceased remained present before my learned predecessor also. And the same is understandable in view of his relationship with the deceased. S.C. NO.119/05 Page 44 of 160 pages 45 Keeping in mind that he is one of the ultimate living victims of the incident, I allowed his request to be heard at the stage of final arguments and both the prosecution as well as the defence in all graceful fairness did not object. Father of the deceased argued only one point that the first bullet hit hand of the deceased and crossed through his arm; had the accused stopped, there would have been no further fire in the neck region of the deceased.
60. On behalf of prosecution it was argued that defence has assailed only motive part of the crime and none else. With the help of judicial precedents, learned Additional Public Prosecutor argued that none of the witnesses examined by him can be called interested witness, as defence fails to show as to what interest the prosecution witnesses had. It was further argued that conduct of a witness lacking courage cannot be a ground to reject S.C. NO.119/05 Page 45 of 160 pages 46 his testimony, as such PW5 Zahir Ahmed cannot be disbelieved merely because he did not take the deceased to the hospital. It was argued that motive, though significant, is not an absolute requirement to be proved for conviction of the accused.
61. As regards PW13 HC Kareem Baksh, learned Additional Public Prosecutor admitted that prosecution should have filed a copy of arrival entry of PW13 but for the fault of IO in preserving the records and prompt examination of PW13, the latter cannot be disbelieved. As regards PW22 Shaukat Ali, learned Additional Public Prosecutor took me through his complaint dated 29.12.94 and argued that PW22 had expressed deep rooted conspiracy behind killing of his son in the said complaint and that mental state of a person who lost his young son in violent death cannot be ignored while appreciating his evidence.
S.C. NO.119/05 Page 46 of 160 pages 47
62. In support of his arguments learned Additional Public Prosecutor placed reliance on the judgments in the case of VELMURUGAN vs STATE,2008 CrLJ 451; YAKUB ISMAILBHAI PATEL vs STATE OF GUJRAT, 2004 VIII AD (SC) 465; SONELAL vs STATE OF MP 2009 I AD (Cr) (SC) 263; INDRA PAL SINGH AND ANOTHER vs STATE OF UP 2009 I AD (Cr) (SC)295; and S. SUDARSHAN REDDY vs STATE OF ANDHRAPRADESH, 2006 (3) CC CASES (SC) 113.
63. One of the most stressed upon argument of learned defence counsel was that since the prosecution failed to place on record a copy of the arrival DD entry, allegedly made by PW13 HC Karim Baksh a few seconds prior to the incident of firing, it remains unestablished that PW13 was present at the spot. Initially, before my learned predecessor during cross examination of PW13 on 09.03.04, S.C. NO.119/05 Page 47 of 160 pages 48 defence sought production of the original Daily Dairy Registers containing DD entries dated 28.12.94, but my learned predecessor rejected the request of the defence to summon those registers on the ground that the prosecution has not relied thereon. PW26 ASI Siya Ram, in his testimony before my learned predecessor deposed that vide order Ex.PW26/A, the relevant DD registers have been destroyed. Even during the initial final arguments, stand of both the sides remained the same. But after part arguments had been addressed, it was noticed that even prior to the chief examination of PW13 HC Karim Baksh, vide order dated 10.01.01 prosecution had filed three original Daily Diary registers before my learned predecessor. Although the said original registers had been filed in the presence of the accused, no request was ever made to recall PW26 or even PW13, whose departure S.C. NO.119/05 Page 48 of 160 pages 49 entry no.20 and arrival entry no.43 both dated 28.12.94 are recorded in the DD register no. B pertaining to the period from 15.12.94 to 05.01.95. Even after the discovery of the registers in court at the stage of final arguments, no request came to recall any witness. It is not that the DD registers saw light of the day for the first time only on 10.01.01, when the same were filed before my learned predecessor. These registers had been seized by the second IO vide seizure memo dated 03.04.95, copy whereof was supplied to the accused along with the chargesheet. It appears that these registers had not been destroyed along with the other record vide Ex.PW26/A, which is a general order of record destruction.
64. The following portion, highlighted by the learned defence counsel in the case of P.V. NARASIMHA RAO (supra) cited by him illuminates S.C. NO.119/05 Page 49 of 160 pages 50 path of the trial courts in especially a case of the present kind as regards appreciation of evidence:
"73. Efforts should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of facts and circumstances as spelled out through the evidence, depending on the facts of each case. {JT 1999(1) SC 149 Mohan Singh and Another vs State of MP} "Falsus in uno, Falsus in omnibus" does not apply to criminal trials and it is the S.C. NO.119/05 Page 50 of 160 pages 51 duty of the court to disengage the truth from falsehood, Chand Khan and Another vs State of UP (1995) 5 SCC 448. The maxim Falsus in uno, Falsus in omnibus is not a sound rule to be applied in India (AIR 1973 SC 1409 Ranbir Singh and Others vs State of Punjab)
74. Inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to S.C. NO.119/05 Page 51 of 160 pages 52 the root of the matter. (AIR 1981 SC 1237 Krishna Pillai Sree Kumar vs State of Kerala). Exaggeration and falsehood in prosecution evidence on points which do not touch the core of the prosecution story are not to be given undue importance, Dharamdas and Others vs State of UP 1973 SCC (Crl)
765." (bold emphasis is mine)
65. Defence, in nut shell has assailed the prosecution case mainly on the ground that motive of the offence remains unproved since there is no explanation for belated examination of the witnesses pertaining to motive, who are even otherwise S.C. NO.119/05 Page 52 of 160 pages 53 interested witnesses and so not reliable. As regards the actus reus, stand of the defence is that the same was accidental and not intentional.
66. In the case of SONELAL (supra) cited by the learned Additional Public Prosecutor, Hon'ble Supreme Court held as under:
"6. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. S.C. NO.119/05 Page 53 of 160 pages 54 Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.......
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which S.C. NO.119/05 Page 54 of 160 pages 55 prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
...........
S.C. NO.119/05 Page 55 of 160 pages 56
13. The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. S.C. NO.119/05 Page 56 of 160 pages 57 Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also. [See: State of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776)]." (underlining emphasis is mine)
67. In the case of INDRA PAL SINGH (supra) cited by the prosecution, it was held as under:
"14. It is well-settled that if the eye witness is related to the deceased, his evidence has to be accepted if found to be S.C. NO.119/05 Page 57 of 160 pages 58 reliable and believable because he would honestly be interested in ensuring that real culprits are punished. We do no find any merit in any of the submissions of the appellants; therefore, we confirm the convictions."
68. As such, I fail to agree that the prosecution witnesses of motive, namely PW3Nazir Ahmed, PW5 Zahir Ahmed, PW13 HC Karim Baksh, PW18 Mohd. Sayeed or PW22 Shaukat Ali are interested witnesses. Merely because some of them are related to the deceased and all of them belong to a particular religion (as unfortunately suggested during their cross examination), it cannot be said that they are interested witnesses, as held in the cases of NAMDEO vs STATE OF MAHARASHTRA, 2007 III AD(SC) 717 and KALEGURA PADMA RAO vs STATE OF AP, 2007 III AD(SC) 198. S.C. NO.119/05 Page 58 of 160 pages 59
69. As regards, the defence question about initial silence of PW22 Shaukat Ali and other witnesses on the alleged motive, appreciation of evidence has to be keeping in mind the background of the offence as well as the then existing state of mind of the person concerned.
70. It cannot be ignored that PW22 had lost his young son in a violent death and at the time he wrote his complaint Ex.PW22/DC dated 29.12.1994, not even 24 hours had passed after the cruel incident. State of mind of PW22 Shaukat Ali was in utter confusion as regards the motive, though he was certain that it had been a planned killing. In his said complaint Ex.PW22/DC Shaukat Ali clearly mentioned his suspicion that his son had been killed in a planned manner, though at that time the reason behind killing of his son that came to his mind was enmity with SHO Nabi Karim. Where more S.C. NO.119/05 Page 59 of 160 pages 60 than one possible motive existed behind the killing, mentioning of only one of them cannot be a ground to discard testimony of the witness, who underwent such a traumatic experience hardly few hours prior to making his complaint.
71. As to why Shaukat Ali did not mention about the alleged illicit relations between the accused and Shashi Bala in his statement Ex.PW22/DA, dated 29.12.1994 while identifying dead body of the deceased, role of the first IO needs to be probed. In his testimony, PW22 Shaukat Ali stated that he had narrated all these facts to the IO as well as the senior police officers at the mortuary on 28.12.1994 itself, but the IO recorded only the dead body identification part of the statement.
72. In fact, effort of the local police, especially the first IO Inspector Inder Singh was to somehow hush up the matter and shield the accused. S.C. NO.119/05 Page 60 of 160 pages 61 Otherwise, how come is it that till the investigation of the case remained with the first IO, none of the crucial witnesses of motive of offence could be examined. If those witnesses were produced by Shaukat Ali before the crime branch second IO, as suggested by defence, these witnesses could be produced before the first IO as well.
73. Further, claim of PW22 Shaukat Ali (as reflected from testimony of second IO PW27) that his statement Ex.PW22/DA under section 161 CrPC had been written by the first IO Inspector Inder Singh on his own, declaring the firing as an accidental one does not sound untruthful. For, if in his signed complaint dated 29.12.1994, Ex.PW22/DC Shaukat Ali could at length describe reasons for his suspicion of foul play, it is unbelievable that in unsigned statement Ex.PW22/DA on same day Shaukat Ali would call it S.C. NO.119/05 Page 61 of 160 pages 62 an accidental firing. Besides, the natural course during investigations is that a statement of dead body identification is a formal one and never bears any part on merits; the first IO in his over keenness to shield the accused inserted the term "ittafaqiya" (accidental) in statement Ex.PW22/DA under section 161 CrPC, not expecting that PW22 Shaukat Ali would send signed complaint Ex.PW22/DC on the same day alleging foul play.
74. Investigation remained with the first IO Inspector Inder Singh till 09.02.95, by which time, admittedly Shaukat Ali, father of the deceased had given detailed complaints dated 29.12.1994 and 01.02.1995 suspecting foul play. But the first IO opted to ignore both the complaints and conducted no investigation on those lines. Even the suspected role of SHO Nabi Karim and SI Maruti, described in the complaints was not looked into. S.C. NO.119/05 Page 62 of 160 pages 63
75. Inspector Inder Singh did not even seize the roznamcha registers, the most crucial documentary record of presence of police officials in the police station at the time of incident. What to say of seizing the record, he did not even retain a copy of the entries dated 28.12.1994 during investigation. It is only to his misfortune and courtesy the act of nature to uphold the victory of truth that the roznamcha registers were not destroyed and were seized by the second IO, who filed the same before my learned predecessor, establishing the presence of HC Karim Baksh, who had been recording his arrival entry at the ill fated moment just a few paces away from the firing spot. Inspector Inder Singh deliberately did not record statement of HC Karim Baksh, knowing fully well about his presence through the roznamcha register.
76. Role of two other police officials of PS IP S.C. NO.119/05 Page 63 of 160 pages 64 Estate, namely PW6 HC Ram Kishore and PW17 SI Ram Singh also needs to be seriously looked into. Both of them in the witness box resiled from their previous statement, that too being police officials and tried to protect the accused. PW17 SI Ram Singh admitted having made two statements Ex.PW17/A and Ex.PW17/D during investigation and as further admitted by him, both the statements are different from each other.
77. The first informant PW12 SI Shashi Bala, the only witness, who as per both sides was present on the spot at the time of firing, also has distorted the event in order to make it look like an accident. Reasons for making such an observation are being discussed in detail hereafter.
78. Such a face of police is indeed bloodcurdling and repulsive. It is believed that S.C. NO.119/05 Page 64 of 160 pages 65 superior authorities would take a serious note of deliberate efforts of the first io Inspector Inder Singh and the then SHO of PS IP Estate at hushing up the matter.
79. So far as PW18 Sayeed Ahmed is concerned, in his chief examination he fully supported case of the prosecution stating that 13-14 days prior to death the deceased had told about illicit relations between the accused and SI Shashi Bala and that the latter had also made indecent advances, which were spurned by the deceased. But in cross examination, notably conducted after a lapse of two years, PW18 somersaulted to support the defence and admitted defence suggestion that the deceased never mentioned about the said illicit relations between the accused and SI Shashi Bala. During his cross examination, PW18 voluntarily S.C. NO.119/05 Page 65 of 160 pages 66 added that for past one year he was on inimical terms with father of the deceased on account of some family matters. And that explains the U turn taken by him in cross examination. Not just that, PW18 was also called upon to explain this self contradiction between his chief and cross examinations; he casually stated that whatever he stated in chief examination was by mistake. Perjury application of the prosecution against this witness is being separately taken up. Such a witness cannot be a reason to reject the entire prosecution case; nor can testimony of this witness be read totally in favour of the defence; nor can his testimony be totally discarded. Ligaments between true and false portions of his statement have to be surgically separated. Doing so, it clearly comes up that his subsequent testimony to shield the accused was a result of his subsequent enmity with the father of S.C. NO.119/05 Page 66 of 160 pages 67 the deceased, as described by PW18 himself.
80. As regards motive witness PW5 Zaheer Ahmed, merely because he did not take the deceased to hospital, his presence moments after the incident on the spot cannot be disbelieved. As held by the Hon'ble Supreme Court in the case of YAKUB ISMAILBHAI (supra) such a conduct of the witness does not discredit him. Hon'ble Supreme Court in that case held as under:
"38. The learned counsel for the appellant has argued before this Court as well as the Courts below that the conduct of this witness in not saving the life of his friend, the deceased, renders him an improbable witness. In our view, the act of this witness in running away to save his own life and not going S.C. NO.119/05 Page 67 of 160 pages 68 forward to help the deceased at the time of the incident is a most probable and natural human conduct which most men faced in such situation would resort to. In our view, the conduct of PW-2 in not having the courage to stop three persons armed with deadly sharp edged weapons is not and cannot be a circumstance or a ground to disbelieve his testimony particularly when the rest of his testimony is tested with cross-examination."
Moreover, in the present case, as deposed by PW5, he followed the deceased to the hospital but was not allowed to enter, so he went back and reported the incident to his family. It is not unexpected that a police official having been shot dead inside the S.C. NO.119/05 Page 68 of 160 pages 69 police station, no public person (not even a relative) would be allowed to move the injured. As regards Abdul Khalid, whose non examination, as per learned defence counsel belies the testimony of PW5 Zahir Ahmed, it is noticed that vide order dated 16.09.2000, my learned predecessor recorded that the said witness has died.
81. Merely because the motive witness PW3 Nazir Ahmed could not tell name of the IO and room number of the crime branch office, his testimony which otherwise remains unshaken despite substantial cross examination, cannot be rejected.
82. Regarding PW13 HC Karim Baksh, it was wrongly argued that if there was no departure entry, there was no need for an arrival entry. In his testimony, PW13 clearly deposed having made both the departure as well as arrival entries. Both the entries are present in the DD registers filed before S.C. NO.119/05 Page 69 of 160 pages 70 my learned predecessor, as described above.
83. But even if the said Daily Diary registers are ignored for the reason that prosecution failed to supply copies thereof to the accused, there is no reason to disbelieve the presence of PW13 Karim Baksh few paces away from the spot at the time of firing. Merely because the first IO did not record statement of PW13 promptly, testimony of this witness, which remains unshaken despite extensive cross examination, cannot be discarded. For, as described above the first IO did not investigate the case fairly and PW13 explained in his cross examination that since the first IO and the SHO did not make any enquiries from him, he did not make any statement till he was served with notice under section 160 CrPC.
84. As regards argument of the defence that PW17 SI Ram Singh specifically stated having not S.C. NO.119/05 Page 70 of 160 pages 71 seen PW13 HC Karim Baksh at the time or even after the incident, in my view testimony of PW17 who himself is a flip-flop witness cannot be used to discredit the testimony of otherwise sound witness PW13. As described above, PW17 was not just declared hostile, he even admitted having made statements Ex.PW17/A and Ex.PW17/D during investigation and further admitted that there is difference between these statements. Further, initially PW17 stated in his cross examination that at the time of incident, except SI Shashi Bala, Inspector Sehrawat, Ct.Ram Kishore, the deceased and the accused none else was present, but on being recalled for further cross examination just two days later, he stated that at the time of incident, except the deceased, the accused and SI Shashi Bala, none else was present.
85. So far as statements Ex.PW30/DA1-DA4 S.C. NO.119/05 Page 71 of 160 pages 72 are concerned, the same can not be looked into at all. For, as per settled law, statements under section 161 CrPC can be used only for contradicting the witnesses, who allegedly made these statements and cannot be allowed to be proved through the IO, as done before my learned predecessor.
86. At this stage, it would be appropriate to discuss the judicial precedents cited by the defence. There can certainly be no dispute as regards the ratio of those cases. But in my view, none of the precedents cited on behalf of accused supports his case, being distinguishable as described hereafter.
87. In the case of BRAHAMANANDA (supra) the entire prosecution case banked upon solitary oral testimony of a person who claimed himself to be eye witness of the offence but Hon'ble Supreme Court after analyzing his testimony felt it unsafe to rely on his statement in view of serious infirmities S.C. NO.119/05 Page 72 of 160 pages 73 cited in judgment of the Hon'ble High Court and rejected version of the witness that on account of fear she did not disclose name of the accused for two days after the offence.
88. In the case of PANDA NANA (supra) also the prosecution case banked upon solitary testimony of the alleged eye witness of the offence, which had been discarded by the learned trial court and the view was upheld by the Hon'ble Supreme Court observing that it is very difficult to identify a person who is running and showing only his back. It was observed that despite various opportunities and interactions of the alleged eye witness with number of persons including two doctors, he did not disclose name of the accused.
89. In the case of MARUTI RAMA NAIK (supra) testimony of the injured eye witness was discarded by the Hon'ble Supreme Court on the grounds of S.C. NO.119/05 Page 73 of 160 pages 74 delay on the part of IO in recording his statement and felt it unsafe to hold the accused guilty on the basis of such a statement, which suffered from omission to state names of the accused in the previous statement.
90. In the case of BANDI MALLAIAH (supra) case of the prosecution was rejected in view of specific contradictions of facts.
91. In the case of LALLU MANJHI (supra) the portion relied upon by defence is that where case of the prosecution rests on testimony of a solitary witness, the court may classify the testimony as wholly reliable or as wholly unreliable or as neither wholly unreliable nor wholly reliable and in the third category, court has to look for corroboration before acting upon the solitary testimony.
92. In the case of NARESH GIRI (supra) the distinction between an offence under Section 302 S.C. NO.119/05 Page 74 of 160 pages 75 IPC and Section 304A IPC was explained, describing as to what constitute negligence.
93. In contrast to the precedents cited by the defence, case in hand is not one of a solitary testimony. As regards the precise actus reus, there is no challenge from the defence side. It is not at all in dispute that firing that killed the deceased took place upon triggering of the SAF by the accused only. Sole challenge of the defence to support their plea of accidental firing is to the veracity of the prosecution witnesses of motive. Therefore, the precedents cited by defence do not help the accused.
94. Irrespective of the above discussion on veracity of the motive witnesses, so far as motive of crime is concerned, in a case of the present nature, where it is undisputed that death of the deceased was due to act of the accused, motive pales into insignificance.
S.C. NO.119/05 Page 75 of 160 pages 76
95. In the case of VELMURUGAN (supra) cited by the prosecution, it was held as under:
"17.1. Even assuming that the motive part of the occurrence has not been substantiated by the prosecution through P.W.1 in his chief-examination, it cannot be said that since the motive has not been established, the substratum of the prosecution case itself goes, as contended by the learned counsel for the appellant/accused.
17.2. It is true that in a case of circumstantial evidence motive plays a significant role. But, it is also well settled that if there are other circumstances which would lead to the only conclusion that it was the accused alone and none else who committed the murder, then the S.C. NO.119/05 Page 76 of 160 pages 77 motive becomes immaterial. At this juncture, it would be apt for us to refer the various decisions of the Apex Court on this point.
18.1. In Atley v. State of U.P. (A.I.R. 1955 SC 807), the Apex Court has held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Quoting this with approval, the Apex Court in its subsequent decision in Ganeshlal v. State of Maharashtra (1992 Crl.L.J. 1545), has held thus:
"In circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover S.C. NO.119/05 Page 77 of 160 pages 78 the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. The absence of motive, which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances."
18.2. Again in Mulakh Raj v. Satish Kumar (1992 SCC (Cri.) 482), it has been held as follows:
"Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an S.C. NO.119/05 Page 78 of 160 pages 79 indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case."
18.3. Further, in Jarnail Singh v. State of Haryana [(1993) SCC (Cri.) 869], the Apex Court held thus:
"7. It is true that normally there is a motive behind every criminal act and that is why the investigating agency as well as the court while examining the complicity of an accused, first try to ascertain as to what was the driving force which compelled the accused to commit the crime in question. But with complex growth of society and which has also produced complex characters, the actions and reactions of persons either on the accused side or on the prosecution side are not very easy to ascertain and judge. It is a matter of common experience that even a small or trifle incident has a different reaction on different persons. That is why it is not always easy for the court to weigh and judge as to whether under the circumstances brought on S.C. NO.119/05 Page 79 of 160 pages 80 record by the prosecution, in normal course the accused concerned could have acted as alleged by the prosecution.
8. That is why this Court has repeatedly expressed the view that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. But at the same time it must be impressed that motive behind a crime is a relevant fact and normally prosecution is expected to adduce evidence in respect thereof. Experience shows that one or other motive moves the culprit to a certain course of action. In cases where prosecution is not able to establish a motive behind the alleged crime it assumes importance especially in cases where the prosecution rests on circumstantial evidence or on witnesses who have an inimical background. Proof of motive on the part of the accused persons to commit an offence satisfies the judicial mind about the likelihood of the authoriship but in its absence it is only proper on the part of the court to have a deeper search. But if the court is satisfied that evidence adduced, oral or circumstantial, establishes the charge against the accused, the prosecution case cannot be rejected saying that there was no immediate impelling motive on the part of the accused persons to commit the crime."
S.C. NO.119/05 Page 80 of 160 pages 81 18.4. In Tarseem Kumar v. Delhi Admn. (1994 SCC (Cri.) 1735), it has been held thus:
"Normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him S.C. NO.119/05 Page 81 of 160 pages 82 to commit the crime in question."
18.5. In State of Gujaraj v.
Anirudhsing (1997 SCC (Cri.) 946), the Apex Court has held that the motive gets locked in the mind of the makers and it is difficult to fathom it and that if the motive is proved that would supply a chain of links but absence thereof is not a ground to reject the prosecution case. Again in Uday Kumar v. State of Karnataka (1998 SCC (Cri.) 1686), it has been held that in a case of circumstantial evidence, motive is one of the circumstances which assumes importance but it cannot be said that in the absence thereof, other proved circumstances although complete the S.C. NO.119/05 Page 82 of 160 pages 83 chain would be of no consequence.
18.6. In Mani Kumar Thapa v. State of Sikkim (2002) SCC (Cri.) 1637), the Apex Court held that if the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it is the accused alone who could have committed the murder, the absence of the motive will not hamper a safe conviction.
18.7. The Apex Court has reiterated the above view in Yuvaraj Ambar Mohite v. State of Maharashtra [(2006) 12 SCC 512], wherein it is held that circumstances brought on record by the prosecution clearly demonstrate that it was the appellant alone who committed the murder and in that view of the matter S.C. NO.119/05 Page 83 of 160 pages 84 absence of motive would be immaterial. 18.8. From the above decisions of the Apex Court, it is crystal clear and is also well settled that motive lacks its significance even in a case of circumstantial evidence if at all the other proved circumstances undoubtedly pointing to the guilt of the accused. Keeping the above well settled principles in mind, let us find out whether the prosecution is able to prove the other circumstances which would only lead to the guilt of the accused." (emphasis supplied)
96. Falling back to the present case, as reflected from the overall record described above, it is undisputed that the deceased suffered five bullet injuries that were fired from the SAF being carried S.C. NO.119/05 Page 84 of 160 pages 85 by the accused on duty as sentry and that four of the said bullet injuries have been objectively assessed to be sufficient in the ordinary course of nature to cause death singly as well as collectively. Defence has assailed mainly the motive part of the offence and tried to project from the prosecution evidence that the SAF of the accused opened fire accidentally, when in the course of scuffle between the accused and the deceased chain of the SAF got entangled in the belt. The core issue is to find out as to whether the firing that killed the deceased took place accidentally due to entangling of the SAF chain in the belt of the accused, as claimed by the defence or whether it was an intentional firing, as claimed by the prosecution.
97. So far as the defence plea of accidental firing is concerned, it would be important to notice legal position on the same. In the case of SHANKAR S.C. NO.119/05 Page 85 of 160 pages 86 NARAYAN BHADOLKAR VS STATE OF MAHARASHTRA, 2004 Cri.L.J. 1778 : 2004(2) R.C.R.(Criminal) 508 : 2004(2) Apex Criminal 648 :
2004(2) Crimes 498 : 2005(9) S.C.C. 71 Hon'ble the Supreme Court held as under:
"14. Section 80 IPC is a part of Chapter IV IPC dealing with "General Exceptions". The "general exceptions" contained in Sections 76 to 106 make an offence a non-offence. The "general exceptions" enacted by IPC are of universal application and for the sake of brevity of expression, instead of repeating in every section that the definition is to be taken S.C. NO.119/05 Page 86 of 160 pages 87 subject to the exceptions, the Legislature by Section 6 IPC enacted that all the definitions must be regarded as subject to the general exceptions.
Therefore, general exceptions are part of definition of every offence contained in IPC, but the burden to prove their existence lies on the accused.
15. Section 80 protects an act done by accident or misfortunate and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. The S.C. NO.119/05 Page 87 of 160 pages 88 primordial requirement of Section 80 is that the act which killed the other person must have been done "with proper care and caution". In Bhupendrasinh A. Chaudasama v. State of Gujarat, 1998(2) SCC 603 : 1998(1) RCR(Cr.) 573 (SC) it was held by this Court that where the accused shot his own colleague at close range without knowing the identity of his target, the act smacked of utter dearth of any care and caution.
16. The amount of care and S.C. NO.119/05 Page 88 of 160 pages 89 circumspection taken by an accused must be one taken by a prudent and reasonable man in the circumstances of a particular case. Where the act of the accused is itself criminal in nature the protection under Section 80 is not available. If the accused pleads exception within the meaning of Section 80 there is a presumption against him and the burden to rebut the presumption lies on him. (See K.M. Nancy v. State of Maharashtra, (AIR 1962 SC 605).
17. Here the evidence on record S.C. NO.119/05 Page 89 of 160 pages 90 as substantiated by the testimony of PWs 2 and 3 shows that the accused picked up the gun, unlocked it, loaded it with cartridges and shot the gun from a close range of about 4/5 ft. aimed at his chest.
Certainly in view of
unimpeachable evidence of
PWs 2 and 3, Section 80 has
no application.
18. Coming to the plea of the
applicability of Section 304A it is to be noted that the said provision relates to death caused by negligence. Section 304A applies to cases where there is no intention to cause S.C. NO.119/05 Page 90 of 160 pages 91 death and no knowledge that the act done in all probabilities will cause death. The provision relating to offences outside the range of Sections 299 and 300 IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person.
Rashness and negligence are essential elements under Section 304A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. S.C. NO.119/05 Page 91 of 160 pages 92 Doing an act with the intent to kill a person or knowledge that doing as act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304A IPC has to make room for the graver and more serious charge of culpable homicide.
19. In order to be encompassed the protection under Section 304A there should be neither intention nor knowledge to cause death. When any of these elements is found to be present, Section 304A has no S.C. NO.119/05 Page 92 of 160 pages 93 application. The accused- appellant not only picked up the gun, unlocked it for user but also put the cartridges and fired from very close range, aiming at a very vital part of the body.
20. In the background facts as highlighted above the inevitable conclusion is that Section 304A has no application."
98. As held in the case of UDAI SINGH vs STATE, 155(2008) DLT 275 DB, when there is nothing beyond the injury and that the accused inflicted it, the presumption is that the accused intended to inflict this injury, unless he proves that he did not intend to inflict that injury.
99. Falling back to the present case, in order S.C. NO.119/05 Page 93 of 160 pages 94 to decipher as to whether the firing was accidental or intentional, forensic evidence adduced in this case is of considerable significance and it would be most appropriate to record the same in the expressions used by the experts, though with special emphasis as highlighted by bold italicized letters.
100. The relevant description of the injuries suffered by the deceased, as explained in post mortem report Ex. PW29/A is as under:
1. Rifled firearm ammunition entry wound 0.6cm diameter situated on the middle front of neck, 6cm above the sternal notch and in the middle line with abraded collar around the margins.
2. Rifled firearm ammunition entry wound 0.6cm in diameter situated 2.5cm right of middle line and at the level of injury no.1 with abraded collar present around the margins.
3. Rifled firearm ammunition entry wound 0.8cm in size situated right side of neck 3cm from midline and just above injury no.2 with abraded collar.
S.C. NO.119/05 Page 94 of 160 pages 95
4. Rifled firearm ammunition entry wound 0.6cm in size situated 2 cm from midline on right front of neck and 1 cm below the level of injury no.2 with abraded collar.
5. Rifled firearm ammunition entry wound 0.6 cm diameter with abraded collar of 0.2 cm on its outer aspect more situated on the back of right hand 3cm proximal to web of thumb and index finger with tattooing in an area of 7 cm around.
6. Rifled firearm ammunition exit wound stellate shape 1 cm inside situated on the thinner eminence in line with the injury no.5, with margins everted and tissues coming out with fracture of first metacarpal on its proximal aspect. Direction of injuries no.5 to 6 was going downwards from back to front and slightly inwards.
7. Rifled firearm ammunition exit wound 0.6 cm diameter situated 6 cm from midline on the left front middle of chest and 4 cm above the level of left nipple and with grazed abrasion 2 cm on its inner aspect with no blackening and no tattooing present around.
8. Rifled firearm ammunition exit wound 1.2cm in size and directly above left nipple 3 cm above it, in direct contact with injury no.7.
9. Rifled firearm ammunition exit wound 1.2 cm in size blackish woolen fibres S.C. NO.119/05 Page 95 of 160 pages 96 were present in the wound and situated 5 cm below the axillary fold on the inner front aspect of left upper arm with abraded collar.
10.Rifled firearm ammunition exit wound 1.8cm with margins everted and tissues coming out of it situated on the outer front aspect of left arm 11cm above the lateral epicondyl of left humerous. The direction of injury no.7 to 8 to 9 to 10 was from right to left side slightly downwards and horizontal.
11.Rifled firearm ammunition exit wound 1.4cm in size situated on the upper outer back aspect of left arm 143 cm above the left heel.
12.Rifled firearm ammunition exit wound 1.1cm in size situated in upper outer back aspect of left arm below the injury no.11 and 142 cm above the left heel.
13.Rifled firearm ammunition exit wound 1.4 cm in diameter situated on the upper outer back chest on left side, 140 cm above the left heel.
14.Rifled firearm ammunition exit wound 1.4 cm in size situated on the upper outer back aspect of left side chest 138 cm above the heel level.
101. As per opinion of learned autopsy surgeon in Ex. PW29/A report, death of the deceased S.C. NO.119/05 Page 96 of 160 pages 97 occurred due to haemorrhage and shock consequent upon multiple firearm injuries no.1 to 11, 2 to13, 3 to 12 and 4 to 14 to the neck and chest, all the injuries being antemortem and recent in duration and injuries no.1 to 11, 2 to 13, 3 to 12 and 4 to 14 were sufficient to cause death in the ordinary course of nature singly or collectively.
102. As per opinion Ex. PW29/B on the basis of examination of clothings, firing on the deceased was from close range.
103. Relevant parts of five reports Ex. PW24/A-E of the ballistic expert are reproduced as follows:
Report Ex. PW24/A:-
1. The 9mm. carbine, Regd. No. 15220710, marked A is in working order.
2. On thorough examination and comparison of the individual characteristic marks on crime and test S.C. NO.119/05 Page 97 of 160 pages 98 cartridge cases and bullets under comparison microscope, I came to the conclusion that the fired crime 9mm.
cartridge cases marked C/1 to C/5 and fired 9mm. crime bullets marked B/1 to B/4 had been fired through 9 mm. carbine, Regd. No. 15220710 marked A and they could not have fired through any other firearm because every firearm has its own individual characteristic marks. Report Ex. PW24/B:-
The holes marked 1&2 on the shirt under reference had been caused by firing at close range.
Report Ex. PW24/C:-
1. Two holes marked 1&2 present in the right portion of the shirt of victim appear to have been caused by copper jacketed bullets fired from firearm. The pattern of powder charge particles due to combustion of gun powder available around these two suspected holes (1&2) on the shirt under reference indicates that the possibility of these shots being fired on the shirt from the distance approximately 2 feet could not be ruled out.
2. Injuries no.1,2,3 &4 present on the neck portion (as per post mortem report) appear to have been caused by S.C. NO.119/05 Page 98 of 160 pages 99 angular fire from right to left direction by the shooter who has probably fired the shots while in standing position with muzzle down position of the firearm towards the victim, who was in sitting position on the chair. These shots appear to have been fired from close range (i.e. within powder charge range).
3. Injury no.5 present on the right hand of the victim (as per post mortem report) and subsequently penetrated through the shirt and then on the left arm of the victim caused by firing at different angle as compared to injuries no.1 to 4 (as per PMR). The presence of gun powder particles (tattooing) as indicated in PMR of the victim indicates that the possibility of this shot being fired from close range (powder charge range) could not be ruled out.
Report Ex. PW24/D:-
1. Normally it is required to cock the 9mm carbine, S number 15220710, marked A before firing.
2. With the loaded magazine, it is also required to cock the 9 mm. carbine marked A under reference (if not already cocked) before firing.
3. The 9 mm carbine marked A under reference has the provision of single S.C. NO.119/05 Page 99 of 160 pages 100 shot as well as auto firing.
4. The 9 mm carbine marked A under reference received in the laboratory having change lever in A (i.e. auto) position, it could fire if the fire arm would have been cocked and the trigger was pressed and could go on firing as long as having trigger remain pressed.
5. The firearm under reference can be cocked by entangling with the chain provided, if the change lever is not at S (safety) position. If the trigger is pressed in cocked condition it will fire.
Report Ex.PW24/E:-
The possibility of simultaneously cocking and pressing of trigger of 9 mm carbine, registered number 15220710, marked A after entangling with the same chain resulting in fire is ruled out.
104. It is in order to reach the truth that, as mentioned above, I summoned the SAF specifically to study the placement of chain vis-à-vis the other components of the weapon. As described above, S.C. NO.119/05 Page 100 of 160 pages 101 firing has to precede cocking of the gun by pulling behind the cocker, which requires considerable force to pull; firing also precedes shifting of the flat lever knob from position S to position R or thereafter to the position A, on which the SAF was found at the time of ballistic examination; and firing precedes pulling the trigger. All the three movements, viz. cocking, shifting the lever and triggering are required to make the SAF fire.
105. The irresistible conclusion reached after my thorough examination of the weapon of offence is that the alleged entangling of chain during the alleged scuffle between the accused and the deceased could not have led to all the three movements, so as to make it fire accidentally. For, as described above pulling behind the cocker requires considerable strength; knob of the lever is flat and not a protruded one in which the chain S.C. NO.119/05 Page 101 of 160 pages 102 could get entangled; and the trigger being inside the C shaped cover over it, even the trigger could not get entangled. In any case, simultaneous movement of all the three said components by entangling is absolutely impossible. When at ease, i.e not in alert position, as the present case was, lever of the SAF is always at the safety point S and finger of the person carrying the weapon is never on the trigger so even if it is assumed that the chain somehow pulled the cocker, it remains unexplained as to under what circumstances lever knob was shifted from S to R and then to A position. Shifting of the lever knob and pressing of the trigger could not at all have occurred accidentally by entangling.
106. Even the ballistic expert in her report Ex.PW24/E opined that simultaneous cocking and triggering after entangling is ruled out. I fail to find any substance in the defence argument that clause S.C. NO.119/05 Page 102 of 160 pages 103 5 of ballistic report Ex.PW24/D contradicts the report Ex.PW24/E. For, clause 5 of report Ex.PW24/D simply expresses possibility of cocking by entangling, "provided if the change lever is not at S (safety) position", whereas report Ex.PW24/E rules out the possibility of simultaneous cocking and triggering.
107. Then, as per clause 4 of the ballistic report Ex.PW24/D, with the lever at position A (which happened in the present case) the SAF could fire if it was cocked and trigger was pressed and it could go on firing as long as the trigger remained pressed. The expression of the continuous firing upon the trigger remaining pressed would be very relevant in the light of four rounds that hit within a small area of neck of the deceased, in the sense that the accused did not remove his finger from the trigger immediately after the first round. S.C. NO.119/05 Page 103 of 160 pages 104
108. In fact, reliance of the defence on presence of all the bullet wounds being within a small area of the neck to show accidental firing goes against it. For, had it been an accidental firing upon scuffle followed by entangling of the chain of the SAF, firing would have been scattered all around the deceased, and not just localized to a small area of his neck.
109. Further, a very important aspect, ignored by both the sides during arguments was the bullet injury found on hand of the deceased. Entry of this bullet wound no.5, as per post mortem report Ex.PW29/A is on the back of the right hand of the deceased. As per defence case, firing took place upon entangling of the chain when the deceased caught hold of the muzzle of the SAF. If the deceased caught hold of the SAF by its muzzle with S.C. NO.119/05 Page 104 of 160 pages 105 his right hand, no bullet injury on his right hand would have been possible and if he held the SAF at the mouth of the muzzle, the entry wound on right hand would have been at front and not at back of the hand. If the deceased had been holding the telephone receiver with his right hand and caught hold of the muzzle with left hand, the bullet that passed through his hand would have blasted the phone receiver also and would have caused an entry wound around ear of the deceased, regarding which there is no evidence. Even as per clause 3 of the ballistic report Ex.PW24/C the bullet injury on hand of the deceased was caused by firing at an angle different from the angle at which other injuries were caused. Injury on the back of the right hand of the deceased fails to fit in the defence theory of accidental firing.
110. So far as the defence evidence in the S.C. NO.119/05 Page 105 of 160 pages 106 shape of solitary deposition of expert witness DW1 is concerned, as described above, the expert examined by the accused as DW1 fairly stated that he had not inspected the weapon used in this offence. In the absence of inspection of the weapon of offence, deposition of DW1 falls outside the purview of even expert evidence. As held in the case of STATE OF HP vs JAILAL & Ors., 1999(3) CCC 147 SC, expert should furnish scientific criteria for the judge to form his own independent opinion on the subject matter; credibility of expert witness depends on reasons stated by him in support of his conclusion and data furnished by him. Consequently, testimony of DW1 fails to inspire confidence.
111. The above discussion of the evidence on record leaves no scope of hesitation in holding that the firing from the SAF of the accused that killed the deceased was not at all accidental or even a S.C. NO.119/05 Page 106 of 160 pages 107 negligent act; it was clearly an act of intentional firing by the accused. It was certainly not an act protected by section 80 IPC. Accused has failed to rebut the presumption against him in order to bring his case within the protective umbrella of sec.80 IPC. Act of the accused in cocking the SAF, shifting the lever from position S to position R and then to position A, followed by his keeping the trigger pressed till five rounds were fired on the deceased from close range also takes the case much beyond the purview of negligent firing under section 304A IPC.
112. Death of the deceased having been on account of intentional firing of the SAF by the accused, the next query is as to whether it is a case of culpable homicide or murder or culpable homicide not amounting to murder.
113. In the case of RAJINDER vs STATE OF S.C. NO.119/05 Page 107 of 160 pages 108 HARYANA, 2006 A.I.R. (SC) 2257 2006(5) S.C.C. 425 : 2006(6) Scale 454 : 2006 Cri.L.J. 2926, Hon'ble Supreme Court held as under:
"16. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various S.C. NO.119/05 Page 108 of 160 pages 109 clauses of Sections 299 and
300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section Section 299 300 Subject to certain A person exceptions commits culpable culpable homicide is if the act murder if by which the act by the death which the is caused death is is done - caused is done - INTENTioN S.C. NO.119/05 Page 109 of 160 pages 110 (a) with the (1) With the intention intention of of causing causing death; or death; or (2) With the intention of (b) with causing the such bodily intention injury as of the causing offender such knows to bodily be likely to injury as cause the is likely to death of cause the person death; or to whom the harm is caused; or S.C. NO.119/05 Page 110 of 160 pages 111 (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE **** S.C. NO.119/05 Page 111 of 160 pages 112 (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause (c)with the death or knowledge such bodily that the injury as is act is likely to likely to cause cause death, and death. without any excuse for incurring the risk of causing death or such injury as is mentioned above. S.C. NO.119/05 Page 112 of 160 pages 113 17. Clause (b) of Section 299
corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that S.C. NO.119/05 Page 113 of 160 pages 114 the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.
18. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of S.C. NO.119/05 Page 114 of 160 pages 115 Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not S.C. NO.119/05 Page 115 of 160 pages 116 be murder, even if the injury which caused the death was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death"
have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between S.C. NO.119/05 Page 116 of 160 pages 117 clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ....... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable"
S.C. NO.119/05 Page 117 of 160 pages 118 result of the injury, having regard to the ordinary course of nature.
19. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.
Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point.
20. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for the S.C. NO.119/05 Page 118 of 160 pages 119 Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present;
secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are
S.C. NO.119/05 Page 119 of 160 pages
120
proved to be present, the
enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
21. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows :
S.C. NO.119/05 Page 120 of 160 pages 121 "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly".
First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the S.C. NO.119/05 Page 121 of 160 pages 122 offender."
22. The learned Judge explained the third ingredient in the following words (at page 468) :
"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is S.C. NO.119/05 Page 122 of 160 pages 123 not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
23. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is S.C. NO.119/05 Page 123 of 160 pages 124 murder, if both the following conditions are satisfied : i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted.
S.C. NO.119/05 Page 124 of 160 pages 125
24. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder.
Illustration (c) appended to Section 300 clearly brings out this point.
25. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate S.C. NO.119/05 Page 125 of 160 pages 126 much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for S.C. NO.119/05 Page 126 of 160 pages 127 incurring the risk of causing death or such injury as aforesaid.
26. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
The position was illuminatingly highlighted by this Court in S.C. NO.119/05 Page 127 of 160 pages 128 State of Andhra Pradesh v.
Rayavarapu Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh, 2002(4) RCR(Crl.) 265 : (2002 (7) SCC 175), Augustine Saldanha v. State of Karnataka, : 2004 Apex Criminal 565 : (2003 (10) SCC
472) and in Thangiya v. State of T.N. 2005(1) RCR(Crl.) 390 :
2005(1) Apex Criminal 220 :
(2005 (9) SCC 650)." (emphasis underlining is mine)
114. Same legal position was explained by the Hon'ble Supreme Court in the cases of SHANKAR S.C. NO.119/05 Page 128 of 160 pages 129 NARAYAN (supra) and STATE OF UP vs VIRENDRA PRASAD, 2004 AIR(SC) 1517 : 2004 CrLJ 1373.
115. In the present case, as discussed above, evidence on record establishes that the accused cocked the SAF, shifted the lever to position A and kept the trigger of the SAF pressed till five rounds were fired, which hit the seated deceased in his neck and right hand. Prosecution has succeeded in establishing that the bullet injuries on the neck of the deceased were caused by the accused neither accidentally nor unintentionally; the bullet injuries were caused in the neck region of the seated deceased by the accused with intention to cause those particular injuries, which injuries were objectively assessed by the doctor as sufficient singly as well as collectively to cause death in the ordinary course of nature. Thence, case brought by prosecution squarely falls within the definition of S.C. NO.119/05 Page 129 of 160 pages 130 the offence of murder under section 300 thirdly of the Indian Penal Code.
116. I have also examined the issue as to whether the present case is covered by any of the exceptions to sec.300 IPC. Exceptions 1, 2, 3 and 5 to sec.300 IPC are totally ruled out, since it is nobody's case that the accused acted under any grave and sudden provocation or that the accused acted in private defence or in capacity as public servant or the deceased took risk of death with consent.
117. So far as the exception 4 to sec.300 IPC is concerned, even that does not apply in the present case. In the case of BYVARAPU RAJU VS STATE OF ANDHRA PRADESH, 2007 A.I.R. (SC) 1904 : 2007 Cri.L.J. 3204 Hon'ble Supreme Court observed as under:
"6. For bringing in operation of S.C. NO.119/05 Page 130 of 160 pages 131 Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
7. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of S.C. NO.119/05 Page 131 of 160 pages 132 premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do.
There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties S.C. NO.119/05 Page 132 of 160 pages 133 puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious S.C. NO.119/05 Page 133 of 160 pages 134 turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two S.C. NO.119/05 Page 134 of 160 pages 135 to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a S.C. NO.119/05 Page 135 of 160 pages 136 sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, 2003(3) RCR(Criminal) 891 : 2004(1) Apex Criminal 412 :
(2003(5) Supreme 223]) and Parkash Chand v. State of H.P., 2004(3) RCR(Criminal) 818 :
2004(3) Apex Criminal 368 :
(2004(11) SCC 381)."
S.C. NO.119/05 Page 136 of 160 pages
137
118. The evidence on record fails to show any sudden fight between the accused and the deceased.
119. Merely because the accused did not have to go elsewhere to fetch a weapon, it cannot be said that the act of the accused was without any premeditation. Rather, as reflected from the testimony of PW13 HC Karim Baksh, when he reached the police station, he saw that the accused was either loading or unloading his magazine; there is no cross examination on this statement of PW13. As such, it was also not a case of the accused acting without any premeditation.
120. In view of the fact that the accused armed with a semi automatic firing weapon assaulted the unarmed deceased, it can also not be said that the accused did not take any undue advantage. In the case of KIKAR SINGH VS STATE OF RAJASTHAN, S.C. NO.119/05 Page 137 of 160 pages 138 1993(2) RCR(CRIMINAL) 576 : AIR 1993 SC 2426 it was held that if the accused used deadly weapon against the unarmed man and struck blows on the head it must be held that giving the blows with the knowledge that they were likely to cause death, he had taken undue advantage.
121. Thence, act of the accused fails to extend over him the protective umbrella of exception 4 to sec.300 IPC.
122. In view of above discussion, it is held that prosecution has succeeded in proving beyond reasonable doubt the charge framed against the accused. Accordingly, the accused is held guilty and is convicted for offence of murder under section 300 thirdly, Indian Penal Code. ANNOUNCED IN THE OPEN COURT ON 8th JULY 2009 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI S.C. NO.119/05 Page 138 of 160 pages 139 IN THE COURT OF SH. GIRISH KATHPALIA ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS) DISTRICT NORTH, DELHI SC NO.119/2005 STATE versus ARVIND KUMAR s/o SHRI HAKIKAT RAI r/o VILLAGE PRAHLADPUR BANGAR, DELHI.
FIR No. :476/94 Offence Under Section :302 IPC Police Station : IP Estate Convicted on: 08.07.09 Arguments on sentence concluded on: 10.07.09 Order on sentence: 10.07.09 ORDER ON SENTENCE
1. The choice between the convict's cry 'I want to live' and prosecutor's demand 'he deserves to die' (borrowing the expression of the apex court in S.C. NO.119/05 Page 139 of 160 pages 140 ALLAUDDIN MIAN vs STATE OF BIHAR, AIR 1989 SC 1456) is indeed a tough one, requiring high degree of sensitivity.
2. I have heard learned defence counsel as well as learned Additional Public Prosecutor on quantum of sentence. Learned defence counsel decided not to lead any evidence and submitted that only statement of the convict without oath be recorded as regards his circumstances since keeping the sword of sentence hanging over the convict would cause unnecessary torture. Accordingly, statement of convict was recorded, on the basis whereof learned defence counsel made his submissions.
3. The only argument advanced on behalf of State in support of their demand of death sentence to the convict is that he used official weapon to kill his colleague.
S.C. NO.119/05 Page 140 of 160 pages 141
4. On behalf of accused, it was submitted that he is the sole bread earner of his family consisting of his parents, wife and two minor children; besides the convict is also taking care of the family of his elder brother who has expired. It was submitted that convict is not a previous convict and even in service never suffered any punishment. Wife of convict is stated to be suffering with psychiatric ailments and is under treatment.
5. Section 302 IPC prescribes death or life imprisonment as the penalty for murder. The provisions of the Criminal Procedure Code related to this sentencing have undergone changes in the last three decades, which indicate that Parliament is taking note of contemporary criminological thought. It is not difficult to discern that in CrPC, there is a definite swing away from death sentence and towards life imprisonment. Death sentence is S.C. NO.119/05 Page 141 of 160 pages 142 ordinarily ruled out and can only be imposed for special reasons, as provided in Section 354(3) CrPC. Another provision in the Code which also uses the significant expression "special reason" is Section 361, which makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360 in the sense that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. It indicates that reformation and rehabilitation of offenders and not mere deterence are now among the foremost objects of the administration of criminal justice in this country.
6. Section 361 and Section 354(3) have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the S.C. NO.119/05 Page 142 of 160 pages 143 legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.
7. It should be borne in mind that prior to the amendment of Section 367(5) of the old Code, on a conviction for an offence punishable with death, if the court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of the old Code, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, S.C. NO.119/05 Page 143 of 160 pages 144 after the amendment, to the discretion of the court but the court must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in section 302 IPC.
8. Section 354(3) of CrPC marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons S.C. NO.119/05 Page 144 of 160 pages 145 for the sentence awarded and in the case of death sentence "special reasons" are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence.
9. Prescribing the rule of awarding death sentence in rarest of rare cases, in the case of BACHAN SINGH vs STATE OF PUNJAB, (1980)2 SCC 684, Constitution Bench of the Hon'ble Supreme Court held as under:
"132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provisions as to S.C. NO.119/05 Page 145 of 160 pages 146 death penalty in Section 302, Penal Code one the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners' S.C. NO.119/05 Page 146 of 160 pages 147 argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in S.C. NO.119/05 Page 147 of 160 pages 148 Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware - as we shall presently show they were - of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the S.C. NO.119/05 Page 148 of 160 pages 149 Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-
sentence hearing and
sentencing procedure on
conviction for murder and
other capital offences were
before the Parliament and
presumably considered by it
when in 1972-1973 it took up
revision of the Code of 1898
and replaced it by the Code of
Criminal Procedure, 1973, it is not possible to hold that the S.C. NO.119/05 Page 149 of 160 pages 150 provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19."
10. In the case of MACHHI SINGH AND OTHERS vs STATE OF PUNJAB, 1984(2) RCR(CRL.) 412 (SC) : 1983(3) SCC 470, it was held:
"38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case S.C. NO.119/05 Page 150 of 160 pages 151 where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case :
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only S.C. NO.119/05 Page 151 of 160 pages 152 when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of
aggravating and mitigating
circumstances has to be drawn
up and in doing so the
mitigating circumstances have S.C. NO.119/05 Page 152 of 160 pages 153 to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
11. The position was reiterated in the case of DEVENDER PAL SINGH vs STATE OF NCT OF DELHI, 2003(1) RCR(CRL) 255 SC : 2002(5) SCC 234 :
"58. From Bachan Singh v.
State of Punjab and Machhi Singh v. State of Punjab the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power S.C. NO.119/05 Page 153 of 160 pages 154 centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded.
The community may entertain such sentiment in the following circumstances :
(1) When the murder is
committed in an extremely
brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is
committed for a motive which
S.C. NO.119/05 Page 154 of 160 pages
155
evinces total depravity and
meanness; e.g. Murder by
hired assassin for money or
reward; or cold- blooded
murder for gains of a person
vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Schedule Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is S.C. NO.119/05 Page 155 of 160 pages 156 committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder
is an innocent child, or a
helpless woman or old or
infirm person or a person vis-a-
vis whom the murderer is in a S.C. NO.119/05 Page 156 of 160 pages 157 dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."
12. Falling back to the present case, there is nothing on record to clearly suggest that the murder committed by the convict had been elaborately S.C. NO.119/05 Page 157 of 160 pages 158 planned out. The weapon of offence was already in possession of the convict at the time of firing. After committing the offence, the convict did not try to abscond. Murder committed by the convict, like every offence is detestable, but there is nothing on record to justify calling it a rarest of rare cases.
13. Convict has already gone through the trauma of possibility of death sentence hanging over his head for 15 years during the trial; an undertrial knows no concepts of presumption of innocence of accused and duty of prosecution to prove their case beyond reasonable doubt; for an undertrial, the agony of hanging rope is a constant existence.
14. Another mitigating feature is the young age of the convict, presently aged about 42 years. Convict has a family consisting of his aged parents, ailing wife, two minor children and also an extended family of his now deceased brother; death to the S.C. NO.119/05 Page 158 of 160 pages 159 convict would be a punishment to his family members for no fault of theirs. Wife of the convict is not gainfully employed, as stated by him today in his statement.
15. In his statement recorded on oath today, convict described that earlier he was involved in a case FIR NO. 682/95 of PS Malviya Nagar, for offence under Section 452/323 IPC and case FIR NO. 21/96 of PS Civil Lines, for offence under Section 420/468/34 IPC and in both the cases he has been acquitted; presently no criminal prosecution is pending against him.
16. The above factors show that the convict is not intractable to reform.
17. In view of above discussion, the convict is awarded sentence of rigorous imprisonment for life and fine of Rs.25,000/-, in default whereof S.C. NO.119/05 Page 159 of 160 pages 160 he shall undergo simple imprisonment for six months and the fine, if deposited, shall be paid to Shri Shaukat Ali, father of the deceased.
18. Fine not deposited. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 10th JULY 2009 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI S.C. NO.119/05 Page 160 of 160 pages