Punjab-Haryana High Court
Wazir Singh And Another vs State Of Haryana on 9 July, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
In the High Court for the States of Punjab and Haryana
At Chandigarh
CRA-461-DB-2005 (O&M)
Date of Decision:-9.7.2024
Wazir Singh ... Appellant
Versus
State of Haryana ... Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present:- Mr. S.S. Narula, Advocate with
Mr. Gurinder Singh Dhillon, Advocate,
for the appellant.
Ms. Sheenu Sura, DAG, Haryana.
*****
GURVINDER SINGH GILL, J.
1. Appellant - Wazir Singh assails his conviction for offence under Section 302 of Indian Penal Code and Section 25 of Arms Act as recorded by learned Additional Sessions Judge, Gurgaon vide judgment dated 14.5.2005. The appellant had faced trial in respect of a case arising out of FIR No.427 dated 7.7.2000 registered at Police Station City Gurgaon, under Section 302 of Indian Penal Code and Section 25 of Arms Act, wherein pursuant to his conviction he has been sentenced as under:
Name of Offence Under Imprisonment Fine In default of the Convict Section payment of fine 302 IPC Imprisonment of Rs.2,000/- Rigorous life Imprisonment for 4 months Wazir Singh 25 of Arms Act Rigorous Rs.500/- Rigorous Imprisonment Imprisonment for 1 year for 1 month Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (2)
2. The FIR (Ex.PA) was lodged at the instance of Harjinder Singh, wherein it is alleged that on 7.7.2000 when he along with Bishan Singh reached near the shop of Manoj Malik at about 09:45 P.M., they noticed two young boys standing there. Upon seeing them Bishan Singh told the complainant that one of those boys had earlier been seen by him roaming near the house of Manoj Malik. Upon getting suspicious, the complainant alongwith Bishan Singh went up to the said two persons and asked them as to why they were standing there. The said persons replied that they were residents of the village and had come there in connection with some work. In the meanwhile, Manoj Malik also came there and one of those two persons, upon seeing Manoj Malik, took out a pistol and fired 2-3 times at Manoj Malik, as a result of which Manoj fell down. The complainant and Bishan Singh raised alarm upon which the other boy fired 2-3 shots towards the complainant and Bishan Singh while saying that the complainant and Bishan Singh be also finished. In the meantime, another young boy came on a motorcycle and the two assailants sat on the said motorcycle and fled away from the spot. Although Manoj Malik was taken to General Hospital, Gurgaon, but he breathed his last on account of bullet injuries sustained by him. The complainant further alleged in the FIR that during last year, the brother of Sunil Malik had been murdered by Vijay Singh @ Boda, Ram Chand @ Leela, Krishan and Kulbir and that although some accused had been arrested but Kulbir had not been arrested and was absconding. It is alleged that Sunil, Manoj (deceased) and Anup were eye-witnesses in the said murder and they were being pressurized for compromise by the accused and were being threatened of dire consequences in case they deposed against them. The complainant thus alleged that they Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (3) strongly suspected that Vijay Singh etc., who were in custody, and Kulbir, who was absconding, had conspired to eliminate Manoj Malik. It is also alleged that one Anil, who is cousin of Vijay, had also been pressurizing them for compromising the matter.
3. The matter was investigated by the police during the course of which inquest proceedings were conducted and inquest report (Ex.PE) was prepared. The post mortem was got conducted on the dead-body. A bullet, an empty shell and blood stained soil was lifted from the place of occurrence. Rough site plan was prepared. While Anil, who was in custody in connection with another case, was formally arrested on 25.7.2000 pursuant to issuance of production warrants, another accused namely Vijay Singh @ Boda was arrested on 4.8.2000. Accused Kulbir and Wazir Singh were arrested on 21.8.2000 while they were travelling on a motorcycle driven by Kulbir. It is the case of prosecution that a pistol loaded with 7 cartridges was recovered from Kulbir and a revolver of .38 bore loaded with 6 cartridges was recovered from Wazir Singh. It is further the case of prosecution that on 22.8.2000 Wazir Singh suffered a disclosure statement (Ex.PY) and got recovered a .12 bore gun alongwith two live cartridges. Accused/appellant Wazir Singh as well as co-accused Kulbir refused to give consent for test identification parade when they were produced in the Court.
4. Upon conclusion of investigation challan was initially filed against appellant
- Wazir Singh as well as co-accused Anil, Vijay Singh @ Boda and Kulbir.
Subsequently, upon arrest of Ram Niwas a supplementary challan was filed against him as well. Similarly, a supplementary challan was filed against another co-accused Joginder Singh later. Pursuant to commitment of the case Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (4) to the Court of Sessions vide commitment order dated 4.12.2001 passed by learned Chief Judicial Magistrate, Gurgaon, the Trial Court framed charges against the accused for offences punishable under Sections 302, 307, 411 of Indian Penal Code and Section 25 of Arms Act on 13.3.2001 to which the accused pleaded not guilty and claimed trial.
5. It will not be out of place to mention that the trial qua accused Wazir was ordered to be separated from the trial of remaining accused vide order dated 10.10.2002 as he had been awarded death sentence in connection with some other case in Rajasthan and under provisions of Rajasthan Jail Rules, he could not be produced before the Trial Court. However, subsequently when he was produced from Central Jail, Jaipur on 28.1.2004, the witnesses who had been examined in his absence, were recalled and were examined afresh.
6. The gist of testimonies of PWs is being briefly referred to hereinunder:
PW-1 - Harjinder Singh (complainant) stated that on 7.7.2000 when he was present at the shop of Manoj alongwith Bishan, then two boys had come there and that he heard a sound of a cracker being burst and when he turned around, he noticed that two persons were running from that place. However, he stated that the accused present in the Court were not the said persons. The said witness/complainant was declared "hostile" and the prosecution was permitted to cross-examine him.
PW-2 - Bishan Singh, who was present alongwith the complainant, also stated that on 7.7.2000 when he and Harjinder had gone to the shop of Manoj, they had seen two boys standing outside the shop of Manoj and that one of them had fired shots at Manoj as a result of which he fell down. However, he Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (5) also did not identify the accused to be the said assailants and consequently was declared "hostile".
PW-3 - Constable, Rajpal is a formal witness, who stated with respect to the delivery of special reports to the Court of learned Chief Judicial Magistrate and other authorities.
PW-4 - Ghansham Dass, Reader to District Magistrate, Gurgaon proved the sanction order (Ex.PC) pertaining to prosecution of the accused under Arms Act.
PW-5 - Dr. Rajesh Kumar Sharma, M.O., G.H., Gurgaon, who had conducted the post mortem examination on the dead-body of deceased Manoj Malik, stated with respect to the injuries found on the person of the deceased. He opined that the cause of death was due to shock and haemorrhage resulting from the injuries to brain. He proved the post mortem report as Ex.PD.
PW-6 Head Constable Shamshudin, PW-7 Constable Rishi Pal, PW-8 Constable Krishan Kumar, PW-9 Constable Kulbir Singh and PW-10 Constable-cum-Draftsman Naresh Kumar, who were all formal witnesses, tendered their affidavits in evidence deposing therein the role played by them during investigation of the case.
PW-11 ASI, Raj Karan, who had recorded formal FIR (Ex.PA), deposed about the same.
PW-12 ASI Raj Singh stated that on 11.9.2000, when he was posted as ASI at CIA, Sector-15, Gurgaon then Satpal had produced a Honda City car without Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (6) registration plate, which had been taken into possession vide recovery memo Ex.PM.
PW-13 Head Constable, Mohan Lal, who had photographed the place of occurrence, proved the photographs and negatives as Ex.P-1 to P-14. PW-14 Satpal stated that on 5.2.2000, when he was going on his Honda car bearing registration No.DL-BCB-9899 to his brick kiln, then three persons, who were carrying revolvers, forcibly took away his car at gunpoint. He stated that it was incorrect to suggest that the culprits were addressing each other by name. In view of the witness having stated contrary to his earlier statement, the Public Prosecutor was permitted to cross-examine the witness, but nothing could be elicited during the course of his cross-examination by Public Prosecutor.
PW-15 Shiv Bhagwan, Warder, District Jail, Sonepat, who had brought the register of undertrial prisoners maintained in District Jail, Sonepat, proved his report as Ex.PP.
PW-16 Inspector, Rajinder Singh stated that on 7.7.2000 when he was posted as SHO, P.S. City, Gurgaon, he received information to the effect that Manoj Malik had been murdered by some unknown persons and that when he reached at the spot he saw blood and some empty shells lying at the spot. He stated with respect to the investigation conducted by him and proved various documents prepared during the course of investigation. He further stated that subsequently the investigation was conducted by CIA staff. PW-17 L.N. Jindal, L.R. (U.T.) Chandigarh deposed that on 22.8.2000, when he was posted as C.J.M. Gurgaon, the police had produced accused Kulbeer Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (7) Singh and Wazir Singh before him alongwith an application for issuance of directions to them to associate themselves with test identification parade, but both of them refused to participate in the test identification parade. He proved the statements of accused Kulbeer Singh as Ex.PQ/1 and that of accused Wazir Singh as Ex.PQ/2. He further stated that subsequently when accused Kulbeer Singh @ Sunil was produced before him on 26.8.2000, the police moved an application seeking issuance of directions for obtaining his specimen handwriting and that he permitted the police to take his specimen handwriting. He further stated that on 19.9.2000, when an identical request was made qua accused Vijay Singh @ Boda, he refused to give his specimen handwriting.
PW-18 Rohtash Singh Kharb, SDM, Gurgaon stated that on 26.8.2000 when he was posted as SDM, Gurgaon, the police produced Kulbeer Singh before him alongwith order of CJM, Gurgaon for taking his specimen handwriting and he accordingly took specimen handwriting of accused Kulbeer Singh on three sheets.
PW-19 Inspector Randhir Singh stated that on 8.8.2000 he was posted as Incharge, CIA Staff, Gurgaon-I and had partly investigated the case. He stated with respect to the proceedings conducted by him. PW-20 Inspector Sumer Singh, who had also remained associated with the investigation of case proved various memos/documents prepared during the course of investigation so as to corroborate the testimony of PW-18.
7. Inspector Rajinder Singh, Shri L.N. Jindal, Shri Rohtash Singh Kharb, Inspector Randhir Singh and Inspector Sumer Singh were recalled and Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (8) examined afresh after the presence of the accused Wazir Singh was secured as the said witnesses had earlier been examined in his absence. Another witness i.e. PW-21 - L.S. Yadav, Senior Scientific Officer (Ballistics)-cum-Ex.-office Assistant, Chemical Examiner to FSL, Madhuban, was also examined pursuant to an application having been moved by the accused. The said witness proved the ballistic report as 'Ex.PO'.
8. Upon conclusion of evidence of prosecution, statement of accused in terms of provisions of Section 313 Cr.P.C. was recorded, wherein he denied the prosecition case in toto and pleaded innocence. The accused, however, did not lead any evidence in his defence.
9. Learned Additional Sessions Judge, Gurgaon, upon marshalling the evidence on record, held that the accused had committed offence punishable under Section 302 of Indian Penal Code as well as offence under Section 25 of Arms Act and imposed punishment accordingly vide judgment dated 14.5.2005 and order of sentence dated 18.5.2005, which is under challenge before this Court.
10. Learned counsel for the appellant vehemently argued that it is a case where there is no substantive evidence against the appellant inasmuch as neither the complainant nor the eye-witness has supported the case of prosecution. It has been submitted that the appellant has been convicted solely on the basis of report of ballistic expert (Ex.PO) without there being any other evidence to establish the involvement of the appellant. It has been submitted that apart from the fact that the report of ballistic expert itself is not fully in consonance with the case of prosecution, a conviction cannot be based solely on the basis Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) (9) of one piece of circumstantial evidence and that the prosecution is required to establish all the links in the chain of circumstantial evidence. It has thus been submitted that the impugned judgment cannot sustain and is liable to be set aside and the appellant is entitled to be acquitted.
11. This Court has considered rival submissions addressed before this Court.
12. Since it is the case of the prosecution that the accused had fired at the deceased from his pistol leading to his death, it is apposite to first of all refer to the relevant extracts from the post-mortem report, which could shed some light on the cause of death. PW-5 Dr. Rajesh Kumar Sharma, M.O., G.H., Gurgaon, who had conducted the post mortem examination on the dead-body of deceased Manoj Malik proved his report as 'Ex.PD', wherein he has recorded the injuries found on the dead body as under:
"1. Abraided contusion of size 4.5x3 cm on the right upper arm, on dissection subscutaneous ecchymosis was present.
2. A bluish contusion 8.5x7 cm on the lateral aspect of right shoulder.
On dissection subcutaneous ecchymosis was found present.
3. Raddish abrasion on the left knee anterior aspect. On dissection subcutaneous ecchymosis was present. Size 3x3 cm.
4. The entry wound. There was an oval 1.5x1 cm wound on the right side of the forehead at the level of right angle of orbit. There was no tattoo mark of blackening around the wound. The margins of wound were inverted.
5. Exit wound: there was a star shaped wound of size 2.1x2.3 cm on the left occipital region. The margins were ragged and everted. On further dissection there was a hole in the skull corresponding to injury no.4 with fracture of frontal bone and lateral orbital plate. There was also a hole corresponding to injury no.5 in the skull with Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 10 ) fracture of left occipital bones. On further dissection there was corresponding tears to injury no.4 and 5 in the meninges a track was found through brain tissue connecting injury no.4 and 5. The cranial cavity was full of fluid and clotted blood. "
13. PW-5 Dr. Rajesh Kumar Sharma opined the cause of death to be shock and haemorrhage resulting from the injuries to brain. Although an opportunity was afforded to the accused to cross-examine the witness, but they chose not to cross-examine him. A perusal of the description of injuries particularly injury Nos.4 and 5 is indicative of the fact that the injury had been caused with a firearm inasmuch as while injury No.4 is an entry wound with inverted margins and blackening around the wound, injury No.5 is exit wound with everted margins, with a hole in the skull corresponding to injury No.5, as were as corresponding tears in brain tissue.
14. Though the complainant in the FIR stated about the incident of firing by two accused and that in case the said persons are produced before him he could identify them, but when he stepped into the witness-box, he resiled from his statement and stated that some unknown persons had fired at Manoj Malik. Similarly, PW-2 Bishan Singh also resiled from his statement and did not identify the accused to be the assailants. Under these circumstances, the Court is left only with circumstantial evidence.
15. Primarily it is the factum of recovery of .38 bore pistol from the appellant when he was apprehended by the police and also the factum of recovery of a bullet and an empty cartridge from the spot upon which the prosecution is relying upon to establish charges against accused. According to the prosecution, the recovered bullets are relatable to the weapon recovered from Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 11 ) the appellant. While the incident had taken place on 7.7.2000, the appellant had been apprehended by the police on 21.8.2000 when he alongwith Kulbir was going on a motorcyle bearing registration No.HR-26E-4789. While from the search of the appellant a .38 revolver loaded with 6 cartridges was recovered, the co-accused Kulvir was found in possession of a pistol loaded with 7 cartridges.
16. The arrest and aforesaid recovery is proved by two PWs. PW-19 Inspector Randhir Singh while in the witness box stated that on 21.8.2000 when he was posted as Incharge, CIA Staff, Gurgaon-I, he alongwith SI Sumer Singh received telephonic information that Wazir Singh and Kulvir Singh would be coming from Bijawasan to Gurgaon via Katarpuri. Pursuant to receipt of said information barricading was laid on Katarpuri-Bijawasan Road and the police was able to apprehend the two accused, who were travelling on a motorcycle. He categorically stated regarding the recovery of .38 revolver having 6 cartridges from the appellant. He further stated that upon interrogation Wazir Singh suffered a disclosure statement leading to recovery of one .12 bore gun as well from the area of Meham. The aforesaid statement of Inspector Randhir Singh is corroborated by the testimony of PW-20 Inspector Sumer Singh, who was present alongwith PW-19 Inspector Randhir Singh, when the appellant was apprehended and the revolver alongwith cartridges was recovered from him.
17. PW-16 Inspector, Rajinder Singh stated that on 7.7.2000 when he was posted as SHO, P.S. City, Gurgaon, he had received information to the effect that Manoj Malik had been murdered and that he rushed to the spot where he saw Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 12 ) blood and some empty shells lying on the ground and a bullet was also lying at the spot, which were taken into possession.
18. The aforesaid articles recovered from the spot were got examined from the ballistic expert PW-21 Shri L.S. Yadav, Senior Scientific Officer (Ballistics)- cum-Ex.-office Assistant, Chemical Examiner to FSL, Madhuban, who stated that in the present case 7 sealed samples had been received in the laboratory on 28.7.2000 and 12.9.2000 through Constable Krishan Kumar and Constable Rishipal respectively and that the seals were found to be intact and tallied with the specimen seals. He deposed that upon checking he found the firing mechanism of weapons to be in working order. He proved his report as 'Ex.PO'.
19. PW-21 further deposed that the .38 inch fired bullet collected from the place of occurrence (marked as BC/1) was compared with the test-fired cartridge cases and it was opined that .38 inch fired-bullet marked as 'BC/1' had been fired from .38 revolver (marked as W/1) and not from any other weapon because every weapon has its own individual characteristic marks. The relevant extract from the analysis report is reproduced hereinunder:
".38" revolver marked W/1 and .45" pistol marked W/2 were firing mechanism were in working order.
.45" fired pistol cartridge case mark C/1 had been fired from .45"
pistol W/2 and not from any other firearm even of the same make and calibre, because every firearm has got its own individual characteristics marks.
.38" fired bullet marked BC/1 has been fired from .38" revolver W/1 and not from any other fire arm even of the same marks and calibre, because every firearm has got its own individual characteristic marks. Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document
CRA-461-DB-2005 (O&M) ( 13 ) .38" misfired revolver cartridge marked MC/1 has missed fire from .38" revolver W/1."
20. During the course of cross-examination PW-21 Shri L.S. Yadav, Senior Scientific Officer (Ballistics)-cum-Ex.-office Assistant, Chemical Examiner to FSL, Madhuban stated that the characteristic of every weapon, which are noticed upon examination are different and that lands and grooves marks present on the fired bullet had been examined by him although the same were not mentioned in the report. He, however, stated that the same were available in the worksheet, which he had brought in the Court. However, he was not asked any further question with respect to the said worksheet. The cross- examination of the witness could not shatter his testimony nor could show anything to doubt his competence or opinion in any manner. The aforesaid scientfic evidence indicates that the bullet, which had been recovered from the spot lying near the dead-body on the day of occurrence itself had been fired from the weapon, which was recovered from the accused when he was apprehended by the police.
21. Although the complainant while recording the FIR had also attributed a strong motive to the accused to eliminate the deceased inasmuch the deceased was an eye-witness to his brother's murder wherein some of the accused in the present case had been arrayed as accused, but somehow the complainant as well as eye-witnesses having resiled from their statements when they were examined in Court, there is no specific evidence to this effect. The deceased being complainant in FIR No.119, dated 25.7.1999 under Sections 302/34 of Indian Penal Code registered at Police Station Farukhnagar, Gurgaon, was the prime witness of his brother's murder. In any case, the antecedents of the Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 14 ) appellant can easily be discerned inasmuch the Trial Court had separated his case from the remaining accused, when it was found that he stood sentenced to death by a Court in Rajasthan and on account of which he could not be produced in the Courts in Haryana as the provisions of Rajasthan Jail Rules did not provide for the same. The custody certificate filed by learned State counsel shows that the appellant stands involved in a large number of cases for serious offences in the nature of offences under Sections 302, 364-A, 223 and 224 of Indian Penal Code.
22. Apart from aforesaid clinching evidence in the shape of report of FSL, which shows that the bullet recovered near the dead-body had been fired from the pistol, which was recovered from the accused, when he was arrested, this Court finds that when the accused was produced before the Illaqa Magistrate, he refused to give consent for participation in the test identification parade.
23. The question as to whether refusal to participate in test identification parade can be treated as an adverse circumstance against the accused or not came to be adjudicated upon by a three Judges Bench of Hon'ble the Supreme Court in 2021(1) SCC 118 titled Rajesh @ Sarkari Vs. State of Haryana, wherein while discussing the case-law on the issue, it has been held as under:__ "43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinize the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 15 ) identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarized as follows:
43.1 The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye-witness to the crime;
43.2 There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP;
43.3 Identification parades are governed in that context by the provision of section 162 of the CrPC, 1973;
43.4 A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held;
43.5 The identification of the accused in court constitutes substantive evidence;
43.6 Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act; 43.7 A TIP may lend corroboration to the identification of the witness in court, if so required;
43.8 As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 16 ) when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration; 43.9 Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;
43.10 The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;
43.11 Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and 43.12 The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP.
However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused."
24. In somewhat similar circumstances as in the present case, a Division Bench of Delhi High Court dismissed an appeal filed by the accused i.e. Criminal Appeal No.773 of 2003 titled Mukesh @ Girdi Versus State (GNCT) of Delhi, wherein the presence of the eye-witnesses had been seriously doubted, but the bullet leading to death of the deceased was found to have been fired from the pistol of one of the appellants namely Surender. The relevant extracts from the said judgment reads as under:
"8. Mukesh made a disclosure statement Ex.PW-9/B admitting his involvement in the crime and disclosed that the two other boys with him were appellant Manjeet @Kuldeep and appellant Surender..............
Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document
CRA-461-DB-2005 (O&M) ( 17 )
10. Surender was apprehended on 28.2.2001 at 5:15 PM as recorded in the arrest memo at page 479 of the Trial Court Record, which we note has remained unproved. He made a disclosure statement Ex.PW-22/F and informed that he could get recovered the country made pistol with which the deceased was shot from a place at Village Chandpur where he had hid the same.............
12. The three accused were sent for TIP proceedings which were fixed on 1.3.2001 and as recorded in the proceedings Ex.PW-21/2, Ex.PW-21/3 and Ex.PW-21/4 all the three accused refused to participate in the test identification proceedings on the ground that they were shown to the witness.
13. The country made pistol recovered from the spot and pursuant to the disclosure statement of Surender as also the bullet recovered from the body of the deceased were sent for ballistic examination and as per report Ex.PW-25/A, the bullet recovered from the body of the deceased was opined to be fired from the country made pistol recovered at the instance of Surender.
21. The conduct of PW-10 is strange. He admits during cross-examination that the deceased was a resident of Village Pooth Khurd and so was he. Kinship bonds are strong in villages. It is just not possible that the death of the deceased, in the tragic circumstance in which it took place, did not spread like fire in the village. Thus, PW-10 surfacing the next day and claiming to be an eye-witness is a matter of intrigue.
23. The circumstances, under which PW-10 has surfaced, render it prudent for this Court to look for some corroboration to the testimony of PW-
10........
25. We have noted herein above good reasons for Mukesh not to participate in the TIP proceedings. Thus, there is no incriminating evidence against Mukesh. The only incriminating evidence against Manjeet would be his refusal to participate in the TIP proceedings. It is settled law that the sole incriminating evidence of refusal to participate in the TIP proceedings is insufficient to draw a conclusion of guilt. Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document
CRA-461-DB-2005 (O&M) ( 18 )
26. Against Surender, the incriminating evidence of recovery of the weapon of offence proved through his disclosure statement, the recovery effected pursuant thereto and the report of the ballistic expert connecting the bullet recovered from the body of the deceased to the firearm in question is good evidence to establish the authorship of the weapon of offence with Surender.......
27. Appellant Surender has failed to render any satisfactory explanation.
28. Thus, the appeal filed by appellant Surender has to be dismissed."
25. The present case is almost identical to the aforesaid case inasmuch while in the present case, the witnesses had resiled, in the cited case the presence of the witness had been seriously doubted and it was mainly report of FSL to the effect that the recovery of weapon and the bullet in question had been fired from the said weapon, which was found to be sufficient to nail the accused.
26. The recovery of a "fired bullet" from the spot cannot be said to be padded evidence inasmuch as the same was found lying at the spot where the dead- body was lying. The post-mortem report shows that there is an entry and exit wound in the head meaning thereby that the bullet after entering the head had come out from the other side of head. The said bullet upon its examination and upon being compared with other test fired bullets was found to have been fired from the weapon recovered from the possession of appellant. No explanation is forthcoming in respect of the same on behalf of appellant. Under these circumstances, there is no room to doubt that it is the bullet fired from the pistol of the appellant, which led to the death of deceased.
27. Having regard to the backdrop of the case particularly the fact that the deceased in the present case was a prime witness in the murder of his brother, which is alleged to be the motive for his murder, and infact the deceased Pankaj Kakkar 2024.07.11 09:43 I attest to the accuracy and authenticity of this document CRA-461-DB-2005 (O&M) ( 19 ) himself had lodged the FIR in respect of his brother's murder coupled with the antecedents of the appellant, who happens to be involved in a large number of cases and that the factum of recovery of weapon from the accused, when he was arrested and also the factum of recovery of the bullet which was found near the dead-body, which had pierced through his head have been fully established and also the report of FSL as per which the bullet had been fired from the recovered weapon, there is no room to doubt the involvement and guilt of the appellant. The present appeal is thus found to be sans merit and is hereby dismissed.
28. Since substantive sentence of imprisonment as imposed upon the appellant had been suspended during pendency of the appeal, he be arrested immediately to undergo his remaining part of the sentence. Intimation be sent to the quarters concerned.
( GURVINDER SINGH GILL )
JUDGE
9.7.2024 ( N. S. SHEKHAWAT )
Pankaj JUDGE
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
Pankaj Kakkar
2024.07.11 09:43
I attest to the accuracy and
authenticity of this document