Delhi District Court
State vs . Jagdish @ Jaggi on 23 May, 2015
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 56/13
State Vs. Jagdish @ Jaggi
FIR no. 722/95
PS Punjabi Bagh
U/s 302/307/452/120B of IPC
SC No. 19/15
State Vs. Jagdish
FIR no. 116/96
PS Punjabi Bagh
U/s 27 Arms Act
State
Versus
Jagdish @ Jaggi
S/o Sh. Dhunda Ram Sharma
R/o H. No. 499/3, Paschim Puri, Delhi.
Date of receipt : 12.09.2007
(Received in this court) : 17.12.2013
Date of arguments : 16.05.2015
Date of announcement : 23.05.2015
JUDGMENT
1. This judgment is directed against accused Jagdish @ Jaggi only. In the FIR No. 722/95 total six accused were charge sheeted. The SC no. 56/13 & SC No. 19/15 Page 1 of 63 2 other five accused were; Pankaj @ Kaka, who is a proclaimed offender, so declared on 1.04.2003; Rajbir Singh, who was acquitted by the Ld. Predecessor vide judgment dated 27.08.2003; Rajender Kumar @ Ganja, who was convicted by the Ld. Predecessor vide the said judgment dated 27.08.2003; Raj Kumar @ Suman, who was convicted by the Ld. Predecessor vide the said judgment dated 27.08.2003 and; Narayan Singh, who expired and proceedings against whom stood abated on 29.11.2001. At the time when my Ld. Predecessor passed the earlier judgment on 27.08.2003, the present accused Jagdish @ Jaggi was also a proclaimed offender. Initially this accused Jagdish faced trial and he appeared in the court up till 13.07.2001 and thereafter he stopped appearing in the matter and was ultimately declared a proclaimed offender on 29.11.2001. He was again apprehended on 05.07.2007.
1.1 Brief facts of the case are that on receipt of a wireless message in police station Punjabi Bagh regarding gunshot fires at 618, Pocket- 3, Paschim Puri, Delhi, Inspector Ashok Tyagi along with the staff reached the place of incident. ASI Balbir Singh and SI Ashok Kumar met him at the spot. Dead body of Chandar Shekhar & Smt. Omi Devi were found lying at the spot. Blood, fired bullets, a sword and a dagger etc. were also noticed. Complainant Jawahar Lal the eye witness of the incident met Inspector Ashok Tyagi at the spot and gave his statement.
1.2 Jawahar Lal stated that accused Narayan Singh had a cable T.V.
SC no. 56/13 & SC No. 19/15 Page 2 of 63 3business. Complainant also had same business at that time. 10-12 days prior to 1.10.1995, accused Narayan, Vimal and Jagdish had threatened complainant that complainant should stop his cable network business in the said area, otherwise, he would be killed. The complainant did not give any complaint about the said incident of intimidation and ignored it. On 1.10.1995 complainant was present in his house with his brother ChandarShekhar (deceased), mother Smt. Omi Devi (deceased) and his another brother Ved Prakash. His friends Hari Singh Yadav and Pramod were also present in the house. Complainant Jawahar Lal, Smt. Omi Devi, Chandar Shekhar and Pramod were sitting on the ground floor, watching T.V. Whereas Ved Prakash and Hari Singh Yadav were on the upper floor. The door of the house was open. At about 3.30 PM, six persons entered the house, including accused Jagdish, Vimal, Rajender, Narayan Singh and Rajbir Singh, but he did not recognise the sixth accused. Accused Jagdish and Narayan Singh were holding one revolver like weapon each in their hands. Accused Rajender and Vimal were carrying knives, and accused Rajbir and the sixth person were standing behind them. Accused Jagdish told the complainant that the complainant had not stopped cable T.V. business in the area despite being asked and immediately thereafter he fired a bullet which closely missed the ear of complainant. The complainant in order to save himself started running, upon which accused Rajbir exhorted to beat them all stating "maaro saalon ko, yeh aise baaz nahin ayenge". Upon it, accused Jagdish and Narayan Singh started firing from their SC no. 56/13 & SC No. 19/15 Page 3 of 63 4 revolvers towards Omi Devi, Chandra Shekhar and Pramod. Accused Vimal started stabbing Chandra Shekhar with dragger. Accused Rajender inflicted knife injuries upon Omi Devi. In order to save himself Chandra Shekhar picked up one sword and thereafter accused Vimal and Chandra Shekhar started fighting and grappling. The complainant fled upstairs to save his life. He saw from upstairs that after assault all accused, except Vimal, sat in a white colour Tata Siera vehicle whereas accused injured Vimal fell on the road outside the house. Chandra Shekhar lay dead on the door of the house. Smt. Omi Devi lay dead near door frame of the room. When the complainant came downstairs, he saw Pramod was also injured. Someone called the police. Vimal and Pramod were taken to the hospital. Chandra Shekhar and Omi Devi died at the spot itself.
1.3 The case was got registered on the complaint of Jawahar Lal.
Exhibits were collected from the spot. During investigation statements of Ved Prakash and Pramod were also recorded. They also supported the version of Jawahar Lal. Vimal expired in the same incident. He was a companion of the accused. During investigation, the present accused Jagdish was apprehended on 5.2.1996. At the time of his apprehension, he was found in possession of a country made revolver. Regarding the said recovery of revolver, another FIR no. 116/1996 was registered in police station Punjabi Bagh itself.
1.4 On completion of investigation of FIR no. 722/95, the charge sheet SC no. 56/13 & SC No. 19/15 Page 4 of 63 5 was filed for offences U/s 120B/302/307 of IPC. It may be mentioned here that the charge sheet in FIR no. 116/1996 Police station Punjabi Bagh qua the recovery of country made revolver from accused Jagdish on the date of his arrest on 5.2.1996, was also later on committed to the court of sessions and was tried together with the present charge sheet.
2 Accordingly, charge U/s 120B, U/s 302 r/w 120B, U/s 452 r/w 120B, and, U/s 307 r/w 120B of IPC was framed against the present accused and other accused persons on 4.6.1998. The charge U/s 120 B of IPC against the accused is for entering into a conspiracy to commit murder of Jawahar Lal and to criminally intimidate him. The charge U/s 302 r/w 120 B of IPC is for committing murder of Smt. Omi Devi and Chandra Shekhar, pursuant to the conspiracy. The charge U/s 307 r/w 120 B of IPC is for attempting to commit murder of Jawahar Lal and Pramod, pursuant to the conspiracy. The charge U/s 452/120 B of IPC is for having committed the house trespass for committing the above mentioned offences, pursuant to the conspiracy.
2.1 The accused is also charged U/s 302/34 IPC with deceased accused Narayan for causing murder of Vimal.
2.2 Additionally, a charge U/s 27 of Arms Act, 1959 was framed against this accused for being in possession of a fire arm & ammunition on 5.2.1996 i.e. the date of his arrest.
2.3 All the accused including the present accused pleaded not guilty SC no. 56/13 & SC No. 19/15 Page 5 of 63 6 and claimed trial.
3 As mentioned above, during trial Narayan Singh expired and proceedings against him stood abated; accused Rajender and Raj Kumar were convicted U/s 302/307/120B of IPC and; accused Rajbir Singh was acquitted by the Ld. Predecessor vide judgment dated 27.08.2003. Accused Pankaj is still a proclaimed offender.
3.1 Present accused Jagdish appeared in the trial initially up to 13.07.2001 and, PW1 Ranjan Kukreti, PW2 HC Ranjeet, PW3 Jawahar Lal (complainant), PW4 Satpal Singh, PW5 Ved Prakash (eye witness), PW6 Dr. G. S. Soin, PW7 Lady Ct. Veena and PW8 ASI Balbir Singh were examined in presence of this accused Jagdish, before he stopped appearing and was declared proclaimed offender on 29.11.2001. It may be mentioned here that examination in chief of PW8 Balbir Singh was recorded on 14.03.2001 when accused Jagdish was appearing and facing trial. After the accused Jagdish was declared proclaimed offender, PW9 to PW37 were examined against other accused and against this accused also under section 299 Cr.P.C., including the injured witness Pramod, who was examined as PW13. After the accused was apprehended, from amongst the witnesses examined U/s 299 Cr.P.C., 21 witnesses were examined and they were given afresh PW numbers 8A to 28A.
4 Amongst the witnesses examined by the prosecution against accused Jagdish, the eye witnesses are PW3 Jawahar Lal; PW5 SC no. 56/13 & SC No. 19/15 Page 6 of 63 7 Ved Prakash; PW13 Pramod Kumar and; PW17 Harish Yadav. The investigating officer Inspector Ashok Tyagi is examined as PW28A (Old no. PW37). Other witnesses are more or less formal in nature.
4.1 PW1 Ranjan Kukreti identified the dead body of Vimal, the associate of accused.
4.2 PW2 HC Ranjeet Singh proved that on 3.10.1995 Ct. Pargan Goma, Ct. Ashok Kumar and, Ct. Rajpal deposited certain parcels in the malkhana. Ct. Pargan Goma deposited two parcels and one sample seal. Ct. Ashok Kumar deposited three parcels and one sample seal and, Ct. Rajpal deposited two parcels and one sample seal. All the parcels were bearing seals of CMO Civil Hospital. In this regard, memos Ex.PW2/A, B & C, respectively, were prepared. These parcels contained blood stained clothes, blood samples etc. of the three deceased, namely, Vimal, Chandra Shekhar and Omi Devi, collected during post mortem of those three deceased by the doctor conducting post mortem.
4.3 PW4 HC Satpal Singh was the concerned duty officer who registered FIR no. 722/95 at 6.00 pm on 1.10.1995 and proved the FIR as Ex.PW4/A. The witness deposed that the rukka Ex.PW3/A was brought by Ct. Rashid Khan and after registration of FIR, he handed over copy of FIR and original rukka to the same constable to be taken to Inspector Ashok Tyagi. The witness also deposed that Ct. Om Prakash was given copies of FIR for delivering the SC no. 56/13 & SC No. 19/15 Page 7 of 63 8 same to the senior police officers including the Ilaka Magistrate. This witness was not cross examined by the accused despite opportunity and therefore, the testimony of this witness as to the time of registration of the FIR remains unrebutted.
4.4 PW6 Dr. G. S. Soin identified hand writing of Dr. Rakesh Gupta qua endorsement of Dr. Rakesh Gupta made on the X-ray no. 5981-82 of injured Pramod in which no fracture was seen. Dr. Rakesh Gupta also endorsed that in X-ray no. 5984-85 of Pramod, radio opaque shadow is seen, indicating presence of bullet in his body. The witness deposed that as per endorsement made by Dr. Yashpal on MLC no. 07709 of Pramod, a bullet was seen in the part of L1-L2, i.e. the Lumber back. The MLC is proved as Ex.PW6/A. 4.5 PW7 Lady Ct. Veena accompanied Inspector Ashok Tyagi to the house of accused Rajbir on 23.11.1995 from where articles as mentioned in Seizure memo Ex.PW7/A, were taken into possession.
4.6 PW8 ASI Balbir Singh reached the spot on 1.10.1995 on receipt of the wireless message, prior to the reaching of Inspector Ashok Tyagi. This witness was examined in chief on 14.03.2001 when accused Jagdish @ Jaggi was appearing in the trial before absconding. However, his cross examination was deferred on that day. Later on, after apprehension of accused Jagdish @ Jaggi, this witness was again examined as PW21A. His testimony is being discussed herein below at the appropriate stage.
SC no. 56/13 & SC No. 19/15 Page 8 of 63 94.7 PW9 Manoj Kumar was examined against the accused U/s 299 Cr.P.C. This witness concerned accused Narayan Singh as to recovery of articles from house of accused Narayan Singh and therefore, this witness was not recalled after arrest of accused Jagdish @ Jaggi and his testimony can be safely ignored.
4.8 PW10 Ct. Ravinder Kumar was recalled and again examined as PW13A. This witness was a duty constable on 1.10.1995 at DDU hospital. He deposed that the doctor handed over total 5 sealed parcels along with sample seals to him, which he handed over to the investigating officer and the investigating officer prepared seizure memos in this regard. Those seizure memos are Ex.PW27A/A-1, A-2 & A-3 (Old Ex.PW10/A, B & C).
4.9 PW11 Anil Talwar was recalled and again examined as PW15A.
When this witness was examined as PW11 u/s 299 Cr.P.C against this accused, the witness deposed that accused Jagdish gave a Tata Seira vehicle no. DL2C D 0023 for sale as the witness was dealing in sale and purchase of vehicles at the relevant time and later on the said vehicle was seized from his office. But when the witness was again examined as PW15A, though the witness supported that the vehicle was so given for sale by a person, but he denied that it was accused Jagdish @ Jaggi who gave that vehicle for sale. The witness however admitted that the vehicle was seized by the police from his shop vide Ex.PW11/A but claimed that his signatures were obtained on the said document when that document was blank. The witness was declared hostile by the SC no. 56/13 & SC No. 19/15 Page 9 of 63 10 prosecution and was cross examined but nothing material came out qua identity of accused Jagdish.
4.10 PW12 Inspector Devender Singh was again recalled and examined as PW16A. This witness prepared scaled site plan of the place of incident after taking measurements of the crime scene on 1.12.1995. The scaled site plan is proved as Ex.PW12/A (new Ex.PW16A/A).
4.11 PW15 SI Jagmal Singh was again recalled and examined as PW22A. This witness was malkhana moharrar of the police station Punjabi Bagh at the relevant time. He deposed that on 1.10.1995 Inspector Ashok deposited case property in the malkhana vide entry in Register no. 19 Ex.PW22A/A; on 3.10.1995 HC Ranjit deposited case property in the malkhana vide entry in Register no. 19 Ex.PW22A/B; on 7.10.1995 Inspector Ashok deposited case property in the malkhana vide entry in Register no. 19 Ex.PW22A/C; on 21.12.1995, the case property was sent to FSL, Malviya Nagar through Ct. Balwan Singh; on 13.03.1996 four sealed parcels were sent to FSL, Chandigarh through Ct. Arjun; FSL result was received on 30.04.1996 through Ct. Suresh and; on 04.01.1999 Ct. Ajay Kumar deposited 19 sealed parcels in the malkhana. The road certificate dated 21.12.1995, is proved as Ex.PW22A/D. This witness was not cross examined by accused Jagdish @ Jaggi, leaving his testimony as unrebutted.
4.12 PW16 ASI Janak Raj was examined U/s 299 Cr.P.C. This witness SC no. 56/13 & SC No. 19/15 Page 10 of 63 11 was concerning recovery of articles from the house of accused Rajbir and does not concern the present accused, therefore, this witness was not recalled after arrest of accused Jagdish @ Jaggi and his testimony can be safely ignored.
4.13 PW18 Ved Priya was recalled and examined as PW8A. This witness deposed regarding seizure of certain articles from the house of accused Jagdish in the attachment proceedings U/s 83 of Cr.P.C vide memo Ex.PW9/B. 4.14 PW19 J. C. Vashisht, the record clerk from DDU Hospital, proved the MLC of deceased Om Wati as Ex.PW19/A; MLC of deceased ChandarPrakash as Ex. PW19/B; MLC of deceased Vimal as Ex. PW19/D and; the MLC of Pramod as Ex. PW19/F. The witness also proved death report of ChandarPrakash, Vimal and Omi as Ex. PW19/C, PW19/E & PW19/G, respectively.
4.15 This witness PW19 J. C. Vashisht was not recalled after arrest of Jagdish @Jaggi but instead of examination of this witness, Dr. Nisha Dhawan was examined as PW11A, to prove MLCs of the three deceased which are proved as PW11A/2, A/3 & A/4.
4.16 In order to prove MLC of injured Pramod, prosecution examined Dr. Sushma Dureja as PW14A, who proved MLC of Pramod as Ex.PW14A/1. She deposed that Pramod was brought to the hospital at about 4.20 PM with alleged history of bullet injury. On his examination, one circular wound approximately 1 cm diameter on dorsal on left arm, four fingers above elbow joint with blackening SC no. 56/13 & SC No. 19/15 Page 11 of 63 12 of skin measuring approximately 0.5 cms all around the wound with slight fresh bleeding was found. Another circular wound approximately 1 cm diameter on left chest wall, 1 inch lateral to left nipple, with blackening of skin approximately 1 cm around the wound with slight bleeding edema of skin was found. The witness also deposed that as per X-Ray no fracture was found, but bullet was noticed at L1-L2 region.
4.17 PW12A Dr. Aruna Singh from DDU hospital proved the radiology report of injured Pramod as Ex.PW12A/1 and 12A/2 vide which no fracture was seen in the X-ray of Pramod but one oval shaped metallic radio opacity was seen on left side below the ribs, which was bullet. As per the X-ray of LS Spine, bullet was seen in the L1- L2.
4.18 PW20 HC Rangro was recalled and re-examined as PW23A. This witness deposed that he worked as DD Writer on 1.10.1995 in police post Madipur under Police Station Punjabi Bagh and on that day one information about the incident was received at 3.50 PM received through wireless which was recorded in DD no. 11 Ex.PW23A/B, and ASI Balbir Singh, Ct. Azad and Ct. Yudhvir were sent to the spot. Subsequently, SI Ashok, Ct. Satyavir, Ct. Rashid Khan and HC Hoshiyar were also sent at the spot. This witness was not cross examined by the accused leaving the testimony of this witness as unrebutted qua the factum of receipt of the first information in the police station.
SC no. 56/13 & SC No. 19/15 Page 12 of 63 134.19 PW21 Ct. Rashid Khan was recalled and re-examined as PW17A. This witness deposed that on the date of incident, he carried rukka from the spot to the police station and got the present FIR registered. After registration of FIR, he carried copy of FIR and original rukka back to the spot and handed over the same to the investigating officer at the spot.
4.20 PW22 HC Rajpal was recalled and re-examined as PW20A. This witness deposed that on 2.10.1995 he along with Ct. Pargan Goma, Ct. Ashok shifted the dead bodies of Omi Devi, Chandra Shekhar and Vimal from DDU Hospital to the mortuary at Sabzi Mandi for post mortem. The witness also deposed that after the post mortem, the witness was handed over two sealed parcels with sample seals by the concerned official and he handed over the said parcels and sample seals to HC Ranjit, the duty officer of the police station, regarding which a seizure memo Ex.PW20A/A (Old Ex.PW2/C) was prepared.
4.21 PW23 Ct. Pargan Goma accompanied PW22 HC Rajpal while the bodies of the three deceased as mentioned above were taken to the mortuary. This witness was examined against the accused U/s 299 Cr.P.C. But this witness was not recalled after arrest of accused Jagdish @ Jaggi and his testimony can be safely ignored.
4.22 PW28 HC Ashok accompanied PW22 HC Rajpal and PW23 Ct.
Pargan Goma while the bodies of the three deceased as mentioned above were taken to the mortuary. This witness was SC no. 56/13 & SC No. 19/15 Page 13 of 63 14 examined against the accused U/s 299 Cr.P.C. But this witness was not recalled after arrest of accused Jagdish @ Jaggi and his testimony can be safely ignored.
4.23 PW24 Sh. M. R. Sethi, the then Ld. Metropolitan Magistrate conducted Test Identification Parade of accused Raj Kumar, and is not concerning the present accused. This witness was examined against the accused U/s 299 Cr.P.C. But this witness was not recalled after arrest of accused Jagdish @ Jaggi and his testimony can be safely ignored because the witness does not concern the present accused.
4.24 PW25 HC Balwan Singh was recalled and re-examined as PW19A. This witness collected total 18 sealed parcels and two sample seals from the malkhana on 21.12.1995 and deposited them in the FSL, Malviya Nagar vide road certificate no. 146/21.
4.25 PW29 Dr. L.K.Barua was recalled and re-examined as PW10/A. This witness conducted post mortem on the bodies of Chandra Shekhar, Omi Devi and Vimal. He proved the post mortem report of Chandra Shekhar as Ex.PW10A/1 (Old Ex.PW29/B) and post mortem report of Omi Devi as Ex.PW10A/2 (Old Ex. PW29/A).
Following injuries were noticed on the dead body of ChandarShekhar:
1. Incised wound on left occipital region near hairline size 3 cm x 2 cm.SC no. 56/13 & SC No. 19/15 Page 14 of 63 15
2. Incised wound on left side from the neck size 6 cm x 3 cm.
3. Incised wound on the right side base of neck just above medial aspect of right collar bone size 4 cm x 1 cm.
4. One rounded puncture wound on right side of chin size 1 cm x 1 Cm with inverted margins. There was no blackening charring or tattooing around the wound.
5. Another oval punctured wound on right sub-mental area with everted margin size 1 cm x 1.3 cm. This incident was placed
5 cm apart.
6. One brown colour abrasion was observed on the right side base of neck placed on the lateral aspect on right collar bone 1.5 cm x 1.6 cm.
7. Incised wound on the right side lower part front side of neck size 2.5 cm x 1.5 x ? deep.
8. Incised wound size 1.2 x 1 cm placed 1.5 cm below the injury no. 7.
9. Incised wound on left shoulder on its front side size 2 cm x 1 cm.
10. Incised wound in size 3 cm x 1.5 cm x ? deep on left shoulder on its back side.
11. Incised wound on the left side back of chest near angle of SC no. 56/13 & SC No. 19/15 Page 15 of 63 16 scapula size 3 cm x 2 cm x ? deep.
All the injuries were ante mortem in nature. Injury no. 4 and 5 were caused by fire arm projectile. The incised wound caused by sharp edged weapon. The injury no. 4 and 5 had ruptured the facial artery. Injury no. 2, 3, 4, 5, 7 & 11 were sufficient to cause death in ordinary course of nature. Doctor opined that the death was due to excessive bleeding. The sample of blood and clothes were preserved, sealed and handed over to the police along with sample seal. Time since death was opined as two days.
Following injuries were noticed on the dead body of Om Devi.
1. Incised wound on the front side of the neck size 3 cm x 2 cm x wind pipe seen divided and both the sides of windpipe were acutely cut.
2. Incised wound size 2.5 cm x 1 cm x 2 and the other one 3 cm x 2 cm x ? deep on the right side base of neck 2 cm at part, Both the ends were acutely cut.
3. Abrasion with contusion on the left shoulder on its front side.
4. One punctured wound on left side front of chest 3 inches above the left nipple of size of 1.5 x 1.3 cm. There is no blackening, charring or tattooing around the wound. The margins of the wound was inverted and abraded.
SC no. 56/13 & SC No. 19/15 Page 16 of 63 175. Incised wound on the left epigastrium size 3 cm x 1 cm X ?deep.
6. One oval punctured wound on the back side of left side lower part of the abdomen just above the iliac spine size 1.2 cm X 1.3 cm. The margins of the wound were irregular everted. There was no tattooing, charring or blackening around the wound. There was no other mark of injuries seen on the body."
Doctor opined that all the injuries on Omi Devi were ante mortem in nature. Injury no. 1 & 2 were caused by sharp edged weapon. Injury no. 3 was caused by blunt force. Injury no. 4 & 6 were caused by fire arm projectile, fired from a distance range. Doctor opined that the death was due to excessive bleeding. Blood sample, clothes were preserved and sealed and handed over to the police with sample seal.
Following injuries were noticed on the body of Vimal :-
1. Contused abrasion on the right cheek size 5 inches x 4 inches.
2. Right eye brow lacerated size 1 inch x ½ inch.
3. Left ear showed three cutse size 1 inch; ½ inch; 2/3 inch.
4. Two incised wound on left angle of mendible size 3 cm and 5 SC no. 56/13 & SC No. 19/15 Page 17 of 63 18 cm.
5. Incised wound on left ear size 4 inches x 2 inches.
6. One rounded black coloured abrasion on the lateral aspect on right angle of the mouth of the size 1 cm x 1.5 cm.
7. Abrasion on left of chin size 1 cm x 1.5 cm.
8. Abrasion on left of chin size 1 cm x 1.5 cm.
9. Rounded punctured wound on the right front side of the chest 2 inches above and medial to the right nipple, size 1.5 cm x 1.5 cm. No blackening, charring or tattooing around the wound. The margins of the wound inverted and abraded.
10. Incised wound on middle part from the chest 4 cm above a line drawn between two nipple, size 3 cm x 1 cm x ?Deep.
11. Incised wound size 1.5 cm X 1 cm X ?Deep. This injury was placed 2 inches below injury No. 10.
12. Incised wound on left side front of chest; size 2.5 cm x 1 cm x ?
13. Incised wound on the left side lower part front of chest; size 3 cm x 1 cm x ?
14. One linear scratch on left shoulder top; size 3 cm x 1 cm.
15. Incised wound on right side lower part front of chest; size 4 SC no. 56/13 & SC No. 19/15 Page 18 of 63 19 cm x 2 cm x ?
16. Incised wound on left wrist; size 5 cm x 3 cm bone deep.
17. Incised wound on left hand; size 2 cm x 1 muscle deep.
18. Incised wound left side back of chest size 4 cm x 2 cm x ?Deep.
19. Incised wound on middle part back of abdomen size 4 cm x 2 cm x vertebral deep.
20. Incised wound on the lower mid vertebral area size 3.5 cm x
2 cm bone deep.
Doctor opined that all the injuries were ante mortem in nature. Injuries to the medible/face was caused by blunt object. Incised wounds were caused by sharp edged weapon; injury no. 9 was caused by fire projectile fired from a distance range and was sufficient to cause death in the ordinary course of nature. Injury No. 10, 4, 12 & 18 were also sufficient to cause death individually in the ordinary course of nature. All the injuries were inflicted simultaneously. Death was due to haemorrhagic shock. Time since death was about two days. Sample of blood; bullet; clothes were preserved; sealed and handed over to the police alongwith the sample seal. The post mortem report of Vimal is proved as Ex.PW10A/3.
4.26 PW30 HC Navazish Raza and PW31 HC Sri Krishna were SC no. 56/13 & SC No. 19/15 Page 19 of 63 20 examined in the earlier trial U/s 299 Cr.P.C but both these witnesses were dropped by the Ld. Prosecutor in the present matter vide statement dated 28.07.2009.
4.27 PW32 Dr. S.K.Jain was recalled and re-examined as PW9A.
This witness being a ballistic expert examined the fire arm & ammunitions and proved his report Ex.PW9A/A (Old Ex.PW32/A). The witness deposed that total four parcels were received for examination. Parcel 1 was found to be containing one country made revolver and one misfired .32'' long SNW cartridge which were marked as "A" & "L/1" respectively. Parcel 2 was found containing four .32'' lead bullet which were marked B/1 to B/4. Parcel 3 was found containing one .32'' lead bullet which was marked B/5. And, Parcel 4 was containing one .32'' lead bullet which was marked as B/6. Upon examination of those articles this witness came to a conclusion that the bullet mark B/6 was fired through the country made revolver Mark A and it could not have been fired through any other fire arm because every fire arm has its own individual characteristic marks. The bullets Mark B1 to B4 had not been fired through the country made revolver Mark A. No opinion could be given regarding bullet Mark B5 as to whether it was fired from revolver Mark A or not. The revolver Mark A was found in working order. It is the case of prosecution that the revolver Mark A was recovered from the accused Jagdish on the date of his arrest.
4.28 PW33 HC Ram Kishan was recalled and re-examined as PW25A.
SC no. 56/13 & SC No. 19/15 Page 20 of 63 21This witness proved the FIR no. 116/96 registered on 2.5.1996 qua recovery of the country made pistol from accused Jagdish on that day. The FIR is proved as Ex.PW25A/A1 and endorsement on the rukka of that case is proved as Ex.PW25A/A2.
4.29 PW34 Ct. Kavinder Kumar and PW35 Ct. Hari Om were recalled and re-examined as PW26A and PW24A, respectively. Both these witnesses are witnesses qua arrest of accused Jagdish on 5.2.1996 pursuant to a secret information from Dimple Chowk, Paschim Puri and that from accused Jagdish one country made revolver and one live cartridge was found. They proved arrest documents and recovery memo of the country made pistol and cartridge as Ex.PW24A/2 to 4.
4.30 PW36 Deepak Mishra was the competent authority who accorded sanction U/s 39 of the Arms Act against this accused. This witness was examined as PW36 U/s 299 Cr.P.C. but he was not examined again after arrest of this accused.
4.31 PW8 ASI Balbir Singh was recalled and re-examined as PW21A. This witness was a spot investigation witness. This witness deposed that on 1.10.1995 on receipt of DD no. 11, he reached the spot along with Ct. Rashid Khan and other police officials. Thereafter, investigating officer Ashok Tyagi also reached the spot.
4.32 Investigating officer Inspector Ashok Tyagi is examined as PW28A (Old no. PW37). Inspector Ashok Tyagi and SI Balbir SC no. 56/13 & SC No. 19/15 Page 21 of 63 22 Singh deposed about the dead bodies of Chandra Shekhar and Omi Devi lying at the spot. One sword, one blood stained dagger and four fired bullets were also recovered from the spot. The bodies were sent to the hospital mortuary. Statement of complainant Jawahar was recorded who met Inspector Ashok Tyagi at the spot. The case was got registered through Ct. Rashid Khan. Siteplan was prepared. The exhibits were collected from the spot. The crime scene was got inspected from the mobile crime team and photographs of the crime scene were obtained. Sketch of the weapons were prepared and other exhibits were also collected from the spot. Investigating officer also deposed that from the spot he went to the hospital from where MLCs of the injured were collected. The duty constable of the hospital produced four sealed parcels and handed them over to the investigating officer which were taken into possession. Thereafter, post mortem on the bodies was got conducted. It was also deposed by the investigating officer that on 5.2.1996 accused Jagdish was arrested pursuant to a secret information and at that time accused was carrying one country made pistol with live cartridge, regarding which another FIR was registered, and the accused was arrested in the present case also. The witnesses also identified the case property in the court.
4.33 PW14 ASI Sagar Singh was recalled and re-examined as PW27A. This witness was also a witness to the part investigation conducted on 1.10.1995 and also a witness qua arrest of the accused Jagdish on 5.2.1996.
SC no. 56/13 & SC No. 19/15 Page 22 of 63 234.34 The eye witnesses to the incident are examined as PW3 Jawahar Lal, PW5 Ved Prakash and PW17 Harish Yadav. PW-17 Harish Yadav was recalled and re-examined as PW18A. Other two witnesses (PW3 & 5) were examined in the initial trial when the accused was facing trial.
4.35 Witness Harish Yadav turned partially hostile to the case of prosecution and did not support the case of prosecution. In his testimony as PW18A, Harish Yadav deposed that he used to visit house of Jawahar Lal who was doing the business of cable operator from ground floor house in Paschim Puri and used to reside on the first floor of the premises. He claimed that on the date of incident, he was present on the first floor of the house along with Ved Prakash, whereas, Jawahar Lal, Tinku @ Chandra Shekhar, Smt. Omi Devi and few other persons were on the ground floor. After some time, Ved Prakash also went to the ground floor for some work and at about 3 or 3.30 PM, he heard noise of firing and also heard shouts "bachao-bachao, maar diya, maar diya". The witness deposed that in the meanwhile, Jawahar Lal and Ved Prakash came running to the room on the first floor where he was present and they bolted the door from inside. Thereafter, all of them jumped from the balcony of the first floor to save themselves and then this witness fled from the spot. The witness claimed that he did not see the assailants. The witness was declared hostile qua not supporting part of the prosecution's case and he was subjected to cross examination by the Ld. Prosecutor. In his cross SC no. 56/13 & SC No. 19/15 Page 23 of 63 24 examination by the Prosecutor, nothing material came out so far as identity of the accused is concerned. The witness was also subjected to cross examination by the accused but even in the cross examination of the accused, nothing material came out in favour of the accused, so far as the fact that the witness was present at the crime scene; he heard the firing sounds and; qua the presence of Jawahar Lal and Ved Prakash are concerned, at the time of incident.
4.36 PW3 Jawahar Lal and PW5 Ved Prakash both supported the case of prosecution in Toto. Both these witnesses deposed that on the date of incident, Ved Prakash and Harish were present on the first floor whereas Jawahar Lal, Chandra Shekhar, Omi Devi and Pramod were present on the ground floor. Accused Jagdish along with his co-accused came to the spot armed with a revolver and his other associates were also armed with revolver and knives. Accused Jagdish fired bullet from his revolver upon Jawahar Lal exhorting that his directions to close the business was not acceded to by Jawahar Lal. The bullet missed Jawahar Lal and Jawahar Lal ran to save himself. But Jawahar Lal and Ved Prakash both saw ccused Jagdish and his associates firing bullets and stabbing the victims. Despite cross examinations of these two witnesses on behalf of accused, nothing material came out in favour of the accused so far as the role of the present accused Jagdish is concerned in firing the bullet shots at the crime scene in which Chandra Shekhar, Omi Devi and Vimal expired and Pramod SC no. 56/13 & SC No. 19/15 Page 24 of 63 25 sustained injuries.
4.37 Injured Pramod was examined as PW13 U/s 299 Cr.P.C. After the accused was apprehended, this witness could not be re- examined by the prosecution because the witness was not traceable. Perusal of record reveals that efforts were made to trace out this witness but the witness could not be found and there is a statement of investigating officer also that the witness was not traceable despite best efforts. In his testimony as PW13, even Pramod supported the case of prosecution. Pramod deposed that he was present at the house of Jawahar Lal, along with Jawahar Lal, Chandra Shekhar and Omi Devi on the ground floor watching television at 3.30 PM on 1.10.1995 when total six assailants entered the house which included the accused Jagdish, Narayan, deceased Vimal, Rajender, Pankaj and Rajbir. Accused Jagdish and Narayan were armed with revolvers. Accused Vimal and Rajender were armed with knives whereas accused Pankaj and Rajbir were unarmed. It was accused Jagdish who asked Jawahar Lal as to why the business was not closed and then accused Jagdish fired bullet at Jawahar Lal but Jawahar Lal had a narrow escape. Then accused Rajbir exhorted to kill the victims. Pankaj caught hold of deceased Chandra Shekhar. Vimal started stabbing Chandra Shekhar with knife. Rajender stabbed Omi Devi with knife. Accused Jagdish and Narayan started firing from their revolvers indiscriminately. In this fight, deceased Chandra Shekhar also picked up a sword to defend him and thereafter Chandra Shekhar and Vimal grappled. Even this witness Pramod SC no. 56/13 & SC No. 19/15 Page 25 of 63 26 received gunshot injury in the incident.
5 On completion of prosecution evidence, all the incriminating evidence was put to the accused Jagdish. The response of accused Jagdish was of general denial. Accused Jagdish claimed that he has been implicated falsely and the case is a result of deliberation and manipulation. He claimed that no weapon was recovered from his possession and in fact he had surrendered himself. He claimed that pistol was planted upon him. He claimed that FIR was registered subsequently after due deliberations. He claimed the witnesses to be false and interested, claiming that Ved Prakash and his family members were demanding money in order to depose in his favour and when he refused, they deposed against him. He claimed that he had business dealings with Ved Prakash and Ved Prakash had to pay money to him. Ved Prakash also used to suspect that co-accused Rajender used to tease his wife and he made a complaint in this regard and because of that reason, he was falsely implicated. He also claimed that on the date and time of incident, he was not present at the spot but was present at the house of his mausi who later on expired.
5.1 Accused examined two witnesses in his favour.
5.2 DW1 Surender Sharma is son of mausi of accused Jagdish, who deposed that on 1.10.1995 since his mother was seriously ill, accused Jagdish had come to their house in the morning and stayed there till 7.00 PM during which time accused did not go SC no. 56/13 & SC No. 19/15 Page 26 of 63 27 anywhere.
5.3 DW2 Inderjeet deposed that he was doing cable operator business and that Jawahar Lal was also in the same business, but accused Jagdish had no connection with him i.e. with the witness. Deceased Vimal was his employee and his deceased employee Vimal had gone to the gali of Jawahar Lal on 1.10.1995 to fix a cable complaint of one of the customers at about 3.00 PM. He deposed that Jawahar Lal nurtured a grudge as to the cable connections of this witness in the gali of Jawahar Lal and for that reason his employee Vimal was murdered by Jawahar Lal and others. The witness also deposed that in some other incident, Jawahar Lal made an attempt on his life regarding which some other FIR U/s 307 IPC was registered against Jawahar Lal.
6 I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused. I have also gone through the written submissions filed on behalf of the accused.
7 As mentioned above, from amongst the eye witnesses to the incident, the prosecution examined an injured witness also as PW13 Pramod Kumar. This witness was examined on 29.01.2002 in examination in chief and at that time present accused was a proclaimed offender. After the accused was apprehended, this witness could not be recalled for his re-examination in presence of accused Jagdish, as by the time the accused was apprehended, the witness was untraceable. The said witness was thus examined SC no. 56/13 & SC No. 19/15 Page 27 of 63 28 against the accused U/s 299 Cr.P.C. Sec. 299 of Cr.P.C provides that where an accused absconds, and there is no immediate prospect of arresting him, the court may in his absence examine the witnesses and record their depositions and any such deposition may upon the arrest of the accused be given in evidence against him during the trial of the offence with which he is charged, if the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without delay, expense or inconvenience. In the present matter, Pramod Kumar could not be found and the accused cannot take benefit of non-examination of Pramod Kumar after his arrest. After all, it was the accused who absconded from the process of trial. He therefore, cannot expect to get a benefit of his own fault.
7.1 Accordingly, the testimony of PW13 Pramod Kumar has to be read against the accused. Pramod Kumar is an injured witness. He suffered dangerous injuries as per the MLC opinion given by the doctor. He suffered a bullet injury also. This witness supported the case of prosecution against the present accused deposing that the present accused along with others entered the property of Jawahar Lal and this accused was armed with a revolver at that time. It was this accused who asked Jawahar Lal as to why Jawahar Lal did not close the cable operator business despite his asking and then he started firing. This witness Pramod Kumar also established presence of complainant Jawahar Lal, as SC no. 56/13 & SC No. 19/15 Page 28 of 63 29 well as of Ved Prakash and Harish Yadav in the premises where the incident took place. Testimony of Pramod Kumar has remained unrebutted so far as accused Jagdish is concerned. Though, this witness Pramod Kumar was cross examined on behalf of other accused persons but even in that cross examination, nothing material came out in order to impeach the creditworthiness of this witness. After all, presence of this witness at the crime scene is proved by the very fact that he suffered dangerous injuries including bullet injury in this very incident. Testimony of an injured witness has a different status in law. In order to impeach creditworthiness of an injured witness, extremely strong reasons are required, which are lacking in this case.
7.2 In the case of Mano Dutt v. State of U.P., (2012) 4 SCC 79, it is held as follows in para 30;
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."SC no. 56/13 & SC No. 19/15 Page 29 of 63 30
7.3 There is no plausible reason for this court to observe that Pramod Kumar cannot be believed. Once the testimony of Pramod Kumar is found reliable, his sole testimony is enough to found guilt on the accused. This witness has categorically deposed that accused Jagdish was armed with revolver; he exhorted as to why Jawahar Lal did not close the business; he fired the first bullet towards Jawahar Lal; his associates were also armed and; later on Jawahar Lal and Narayan both fired bullets indiscriminately towards Omi Devi, ChandarShekhar, this witness etc. 7.4 Second eye witness complainant Jawahar Lal (PW3) also supported the case of prosecution in this regard. He also elaborated the role of the present accused in firing the bullets from the pistol with which he was armed. Testimony of Jawahar Lal is corroborated by the injured witness Pramod Kumar.
7.5 Third eye witness Ved Prakash (PW5) also supported the case of prosecution qua the role of accused Jagdish. Even this witness deposed that Jagdish and Narayan were armed with revolvers, whereas, Vimal was armed with a dagger. Even this witness deposed that it was Jagdish who was seen firing bullets towards deceased Omi Devi, Chandra Shekhar and Pramod.
7.6 Testimonies of the above mentioned three eye witnesses corroborates each other's testimony also on all necessary material particulars. Nothing has come out in the cross examination of these witnesses in order to impeach their SC no. 56/13 & SC No. 19/15 Page 30 of 63 31 creditworthiness.
7.7 The fourth eye witness to the incident Harish Yadav was examined as PW18A against the present accused. Though Harish Yadav did not identify present accused Jagdish, but even this witness specifically deposed that this witness, Jawahar Lal, Ved Prakash, deceased Omi Devi, deceased ChandarShekhar and one or two more persons were present in the house of the complainant at the time of incident. This witness also corroborated that at about 3 or 3.30 PM on the date of incident, firing shots were heard with the shrieks of certain persons and thereafter Jawahar Lal and Ved Prakash came running to the room on the first floor where this witness was present and then Jawahar Lal and Ved Prakash bolted that room from inside. The witness also deposed that thereafter they jumped from the balcony of the first floor to save themselves and later on he came to know that ChandarShekhar, Omi Devi and one more person from assailant died in the incident. Though, this witness was declared hostile by the prosecution qua the identity of the accused, and was cross examined by the prosecution but, nothing material qua the identity of the accused could be brought forth. This witness was cross examined on behalf of accused Jagdish also in which also nothing could be brought out in favour of the accused, as to the presence of this witness or as to the presence of eye witnesses or the deceased or as to the incident of firing. Thus, the testimony of this witness materially corroborates the testimonies of SC no. 56/13 & SC No. 19/15 Page 31 of 63 32 Jawahar Lal, Ved Prakash and Pramod Kumar, so far as presence of the eye witnesses and the occurrence is concerned.
7.8 It is now settled law that the testimony of a hostile witness does not get washed away completely and in case some reliable part of the testimony of a hostile witness is found believable it can be acted upon and the same can be made basis for conviction. The evidence of a witness, hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. The evidence of such witnesses can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. It is well settled by the decisions in Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7 : (1976) 2 SCR 921] , Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] and Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 :
1980 SCC (Cri) 59 : (1980) 1 SCR 95] 7.9 From the testimonies of the eye witnesses, there is no manner of doubt that it was the present accused Jagdish @ Jaggi, who along with his associates came to the house of the complainant. Jagdish was armed with a country made revolver. His another associate was armed with one more revolver/pistol. His other two associates were armed with daggers. It was this accused Jagdish who exhorted as to why Jawahar Lal did not close his cable business despite warning and immediately thereafter he fired a bullet SC no. 56/13 & SC No. 19/15 Page 32 of 63 33 towards Jawahar Lal from the revolver he was carrying. Jawahar Lal escaped. Thereafter, indiscriminate firing by this accused Jagdish and his associates caused death of Omi Devi and Chandra Shekhar. Even Pramod was hit with a bullet. In the post mortem of deceased Vimal, it is mentioned that the injury no. 9 was caused by fire arm projectile and this injury was sufficient to cause death. Also incised injury no. 4, 10, 12 & 18 were also individually sufficient to cause death in the ordinary course of nature, and that all the injuries were inflicted simultaneously. It is inconsequential whether the bullet hitting Pramod, Omi Devi or Chandra Shekhar was fired from the revolver of Jagdish or from the revolver of his associate.
The very fact that Jagdish @ Jaggi along with his associates came to the property of complainant and deceased, duly armed with deadly weapons reveal his conspiracy with his associates.
8 The accused argues that the testimony of PW13 Pramod Kumar cannot be read against him in this trial. I have already answered above that U/s 299 Cr.P.C., the testimony of this witness can indeed be read against this accused in the present trial, since, that witness is not traceable and when this witness was available for his cross examination, it was the accused who was absconding.
9 It is also argued on behalf of accused that there is a delay in lodging of FIR, and that the FIR of this case is ante dated and ante timed. In this regard, accused claims that the copy of FIR was received by the Ilaka Magistrate at 10.30 AM on 2.10.1995 as per the endorsement of the Ilaka Magistrate, whereas, the incident SC no. 56/13 & SC No. 19/15 Page 33 of 63 34 occurred at 3.30 PM on 1.10.1995 and the FIR is claimed to have been registered at about 6.00 PM. It is also argued that Ct. Om Prakash, who delivered copies of FIR to the senior officers, has not been examined.
9.1 I do not find any force in this contention. Indeed Ct. Om Prakash has not been examined in the present matter. But what better proof can one have than the documentary proofs contemporaneously prepared?
9.2 At 3.50 PM on 1.10.1995, DD no. 11, Ex.PW23A/B(Old Ex.PW20/A), was lodged in PP Madipur Police Station Punjabi Bagh. The said DD has been proved and it records the initial information of the incident. Thus, it is not a case where the first information about the occurrence was delayed in any manner. The information about the incident was received in police station shortly after the occurrence. HC Ranga Rao PW23A who proved this DD was not even cross examined to suggest that this DD entry was registered belatedly.
9.3 Perusal of the DD no. 10, Ex.DW2/A, would reveal that the rukka was received in the police station Punjabi Bagh for registration of FIR at 6.00 PM and the FIR was registered at that time.
9.4 DD no. 11 Ex.DW2/B lodged at 6.30 PM was also lodged qua conclusion of registration of FIR and also qua the fact that the copies of FIR were dispatched to the senior officers through Ct. Om Prakash.
SC no. 56/13 & SC No. 19/15 Page 34 of 63 359.5 Thereafter, DD no. 13, Ex.DW2/C, was also lodged at 10.30 PM in the night to the effect that Ct. Om Prakash returned to the police station after delivering copies of FIR to the senior officers.
9.6 There is no reasonable ground in the present matter to view these four DDs with suspicion.
9.7 From the ocular testimony in this regard, Ct. Rashid Khan PW17A specifically deposed that he was handed over the rukka by the investigating officer at 5.45 PM and he carried that rukka to the police station for FIR. In the cross examination of PW17A Ct. Rashid Khan, by the present accused, there is not even a suggestion given to the witness that he was not handed over the rukka at 5.45 PM or that he did not carry that rukka to the police station or that he did not carry a copy of FIR and original rukka to the spot from the police station on that very day. Thus the testimony of PW17A on this aspect of the matter remains unrebutted.
9.8 The testimony of Rashid Khan is also corroborated from the testimony of SI Balbir Singh who also deposed about recording of complaint of Jawahar Lal by the investigating officer and about getting the FIR registered through Ct. Rashid.
9.9 Their testimonies are corroborated by the testimonies of Inspector Ashok Tyagi, Jawahar Lal as well as Ved Prakash.
9.10 Thus, merely because in the FIR received by the illaka Magistrate, SC no. 56/13 & SC No. 19/15 Page 35 of 63 36 time of 10.30 AM dated 2.10.1995 is mentioned it does not go to prove that the FIR was delivered at the residence of illaka Magistrate only at that time. It may well be a case where the illaka Magistrate was not available at his residence at the time of delivery of copy of FIR by Ct. Om Prakash and he saw and signed it at 10.30 AM only. 2nd October 1995, was a public holiday. It is quite possible that the copy of FIR was timely delivered at the residential office of the illaka Magistrate but was seen and signed by the Magistrate only at 10.30 AM on 2.10.1995. Assuming that the copy of FIR was delivered to the Illaka Magistrate belatedly, the said fact alone does not establishes that the FIR was registered belatedly and not at the given time. The contemporaneous documents Ex.DW2/A, B & C i.e. DD no. 10, 11 & 13 clearly establishes that the FIR was registered at the given time and is not ante dated or ante timed.
9.11 Accused also argued that the inquest papers were sent to the concerned doctor only on 3.10.1995, whereas the incident occurred on 1.10.1995 and therefore also the delay in registration of FIR and concoction in the story of prosecution is writ large. Accused also argues that DD no. 10 Ex.DW2/A does not contain names of the accused which indicates manipulation.
9.12 These contentions are also fallacious. It cannot be said that since inquest papers were not sent to the doctors till 3.10.1995, therefore, by that time there was no eye witness account of the incident. Even as per the case of accused, the copy of FIR was SC no. 56/13 & SC No. 19/15 Page 36 of 63 37 received by the iIlka Magistrate on 2.10.1995 at 10.30 AM, as per the endorsement of the Magistrate. FIR contains detailed account of the incident. It is nobody's case that even the endorsement of the Illaka Magistrate is ante dated or ante timed. Thus even if inquest papers were received by the doctor only on 3.10.1995, that does not indicate any manipulation since in any case by that time FIR had already been registered which contains detailed account of the incident.
9.13 Similarly, merely because the names of accused are not mentioned in DD no. 10 Ex.DW2/A, it does not indicate that the FIR is ante dated or that the story of prosecution is concocted. After all, there is no need of mentioning names of accused in DD Register particularly qua DD entry of registration of FIR. The eye witness account is mentioned in the FIR itself which contains the details of the incident including the names of the accused. Thus, this court has no reason to doubt that the FIR was not registered at the given time or that it is ante dated or ante timed.
10 Accused also argues that presence of the eye witness at the spot is doubtful for the reason that their conduct at the spot, during the time of incident and after it, was unnatural. It is argued that the eye witnesses, particularly Jawahar Lal and Ved Prakash, did not try to save their near & dear ones; they did not accompany the injured and deceased to hospital; they did not inform the police and; their clothes if at all they were blood stained were not seized. It is also argued that the police officials claimed that they did not meet SC no. 56/13 & SC No. 19/15 Page 37 of 63 38 Jawahar Lal at the spot. In this regard, attention of the court is drawn towards the answer given by PW21A SI Balbir Singh who in his cross examination dated 10.08.2009 said that he did not find any eye witness when he reached the spot at 4.00 PM.
10.1 Perusal of statement of PW21A would reveal that he was a witness to the recovery of exhibits from the spot vide various seizure memos Ex.PW21A/A to M. All these seizure memos also bear signature of Jawahar Lal as a witness. Even in the cross examination, ASI Balbir Singh stated that statement of Jawahar Lal was recorded in his presence at about 5.00 PM. He also claimed that Jawahar Lal met them at 4.15 PM. No suggestion was given to this witness that Jawahar Lal was not present at the spot or that he was not an eye witness or that statement of Jawahar Lal was not recorded at 5.00 PM. No specific suggestion was put to this witness by the accused that Jawahar Lal was a planted witness. In his earlier examination as PW8, ASI Balbir Singh claimed that Jawahar Lal was indeed present at the spot on the date of occurrence when he reached the spot. This witness specifically answered that Jawahar Lal was already present there when he reached the spot at 4.00 PM and that Jawahar Lal was weeping at that time. This witness was recalled and re- examined in 2009 after the re-arrest of the present accused. Thereby meaning that he was examined after about fourteen years of the incident and therefore this small fumble as to presence of Jawahar Lal cannot be given any unnecessary weight. After all, SC no. 56/13 & SC No. 19/15 Page 38 of 63 39 presence of Jawahar Lal is established by an injured witness, and other two eye witnesses of the spot also corroborates his presence. Neither the injured witness Pramod, nor Jawahar Lal, Ved Prakash or Harish have any reason to falsely depose against the accused.
10.2 Similarly, the answer of Ct. Rashid Khan PW17A to the effect that he did not meet any eye witness prior to reaching of Inspector Ashok is inconsequential to infer that Jawahar Lal was not an eye witness. After all there is a difference between meeting and seeing a person. Accused did not ask Rashid Khan specifically that Jawahar Lal was not present at the spot or that Jawahar Lal did not witness the incident. It was this witness who carried rukka prepared on the complaint of Jawahar Lal for registration of FIR. No suggestion was given to this witness that Jawahar Lal or Ved Prakash were not present at the spot when the police reached there.
10.3 Ved Prakash, Jawahar Lal and Harish have deposed that when bullets were fired, they tried to save themselves. It has come in the evidence that they got frightened. It was quite natural reaction of an unarmed person. If several persons armed with deadly weapons attack a family inside their house, no set reaction can be expected from all the persons at the receiving end. Different persons would react differently in such situations. Therefore, merely because Ved Prakash and Jawahar Lal did not try to save their mother and brother does not lead to an inference that they were not present at the spot. These witnesses claimed that they got frightened and SC no. 56/13 & SC No. 19/15 Page 39 of 63 40 tried to save themselves by escaping. They also claimed that they did not embrace or lift the injured or the deceased and therefore, their clothes were not blood stained. After all when the accused persons left the house after committing the crime, these witnesses found their mother and brother dead and it was not necessary for them to have shifted the deceased or injured to hospital, before arrival of the police. It has come in the evidence that there was no telephone connection in the house of complainant. In 1995, the mobile phones had barely been introduced in India and it is nobody's case that the eye witnesses possessed the mobiles or that despite that they did not inform the police. It is also not a case where police was informed of the incident after a considerable period. At 3.50 PM information had already reached the concerned police post.
10.4 After witnessing murder of two family members, murder of one more person and serious injuries on Pramod, the witnesses might have got extremely frightened and stunned and could not be expected to have behaved in a particular manner.
10.5 Their presence at the spot was necessary when the police arrived to tell the details and also to witness the collection of exhibits. Thus, merely because they did not go to the hospital and their clothes were not seized cannot justify a conclusion that they did not witness the crime.
10.6 After all, why would Pramod an injured independent witness, not related to the deceased, would falsely depose. Similarly, Harish SC no. 56/13 & SC No. 19/15 Page 40 of 63 41 Yadav also confirmed presence of Jawahar Lal and Ved Prakash at the spot.
10.7 In Paramjit Singh @ Mithu Singh v. State of Punjab, Through Secretary (Home) AIR 2008 SC 441, it was observed as follows;
"15.......................The presence of Amar Singh (PW-3) and Gurmail Singh (PW-4) cannot be doubted on the ground that they have not made any attempt to rescue the deceased. We cannot ignore the fact that the accused were armed with deadly weapons and the same may have deterred PW-3 and PW-4 in making any attempt to rescue the victim when he was under attack."
10.8 In Babasaheb Apparao Patil v. State of Maharashtra AIR 2009 SC 1461, it was observed as follows;
" ............ The post event conduct of a witness varies from person to person. It cannot be a cast iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any serious crime and their behaviour and conduct would, therefore, be different. Therefore, having witnessed a dastardly murder, it was not unnatural for the said witness to go to his uncle and, therefore, the Courts were justified in not rejecting his evidence merely on that score." (Para 15) 10.9 In Dinesh Borthakur v. State of Assam. AIR 2008 SC 2205, it was observed as follows;SC no. 56/13 & SC No. 19/15 Page 41 of 63 42
"42. We may notice that this Court in Rana Partap and others vs. State of Haryana reported in [1983 (3) SCC 327] opined :
"Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."
{See also Marwadi Kishor Parmanand and Another vs. State of Gujarat [1994 (4) SCC 549] and State of U.P. vs. Devendra Singh [2004 (10) SCC 616)]}.
43. No hard and fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till SC no. 56/13 & SC No. 19/15 Page 42 of 63 43 he is able to reconcile himself and then react in his own way."
10.10 In Main Pal and another v. State of Haryana and others AIR 2004 SC 2158 it was held that merely because evidence of father of deceased shows that he acted in an unnatural manner i.e. he left spot seeing his son being attacked and did not return for long period, per se not a determinative factor to throw out otherwise cogent prosecution evidence. Every person cannot act or react in a particular or very same way. On the spot his reaction in a particular way has to be viewed in the totality of mental set up of person concerned and the extent and nature of fear generated. When the eye-witness's version is truthful and credible, it cannot be rejected on ground of being relatives.
10.11 In Sucha Singh v. State of Punjab AIR 2003 SC 3617 it was held that both the eye-witnesses in the instant case were unarmed and bare handed and the accused persons were armed with deadly weapons, how a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence. (Para 23) 11 The eye witness account of the incident is also sought to be SC no. 56/13 & SC No. 19/15 Page 43 of 63 44 doubted by the accused claiming that Harish Yadav turned hostile to the case of prosecution and that the other three eye witnesses did not identify Narayan and Rajbir as the assailants and companions of accused Jagdish despite the fact that those two accused were also specifically named in the FIR. There can be a lot number of reasons for these witnesses to have changed their version qua accused Narayan and Rajbir. Those reasons are not hard to understand. But the point is whether merely because they did not support the case of prosecution qua identity of other two accused, their testimony as a whole should be disbelieved. In India, the principle falsus in uno, falsus in omnibus, is not applicable. The said issue is no more res integra.
11.1 In Rizan v. State of Chhattisgarh (2003) 2 SCC 661, it is observed as follows;
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be SC no. 56/13 & SC No. 19/15 Page 44 of 63 45 branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P AIR 1957 SC 366.)"
11.2 Therefore, merely because qua the identity of two other accused, the eye witness did not support the prosecution's case cannot justify the conclusion that they are false witnesses.
12 It is also argued that despite the fact that Pramod was conscious and oriented when he was medically examined by the doctor, his statement was not recorded by the police timely and his statement was recorded only after a delay of 21 days.
12.1 Though Pramod in his examination claimed that he become unconscious but the MLC and the version of other witnesses does not corroborate that fact. But merely because statement of Pramod was recorded after 21 days of the incident cannot create doubt as to the version of the prosecution in the facts and circumstances of this case. The reason for it is that it is not a case where statement of Pramod was the first eye witness account of the incident. Had it been a case where statement of Pramod contained the first account of the incident, things could have been different. In this SC no. 56/13 & SC No. 19/15 Page 45 of 63 46 case, on the date of incident itself, another eye witness Jawahar Lal was present and his statement was recorded promptly. I have already mentioned above that the eye witness account of this incident was available at the earliest opportunity and the FIR was also registered timely. Thus, when statement of other eye witness was recorded timely, merely because statement of Pramod, which also gives the same account, was recorded belatedly, cannot go in favour of accused.
13 The argument of accused that there is no DD entry, of the investigating officer leaving the police station for the spot, proved on record, is also not important. There is a lot of ocular evidence on record that Inspector Ashok Tyagi did visit the spot, particularly, after 4.00 PM. The departure of other police officials to the spot from police post Madipur is revealed from the DD no. 11 registered at 3.50 PM. Not only those police officials but also the eye witnesses and the contemporaneous documents prepared at the spot establishes presence of the investigating officer at the spot and therefore, mere non-exhibiting of the DD entry of departure of investigating officer is inconsequential.
14 Similarly, the argument that the PCR form regarding receipt of the first information at Police Headquarters; the PCR log book regarding the fact that PCR Van shifted the deceased/injured to hospital and; non-examination of the PCR officials as witness in this case cannot go in favour of the accused. The DD no. 11 Ex.PW23A/B indeed records that Lady Ct. Renu from PCR SC no. 56/13 & SC No. 19/15 Page 46 of 63 47 informed the police station about this incident. Non-examination of the PCR officials, non-collection of PCR forms and PCR log book, at the most can be called defects in investigation by the investigating officer. When there is eye witness account of the incident, which is inspiring, these minor defects in investigation and prosecution of accused cannot lead to acquittal of accused. Similarly, non-examination of the ambulance officials who shifted the deceased/injured to the hospital is inconsequential.
14.1 Defective investigation by itself cannot be made a ground for acquitting the accused. Reliance may be placed upon the cases of Prithvi vs. Mam Raj AIR 2004 SC 2729; state of U.P. vs. Hari Mohan AIR 2001 SC 142.
14.2 In the case of state of W.B. vs. Mir Mohd. Omar AIR 2000 SC 2988 it was observed in para no 41 as follows;
" 41. .............If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every SC no. 56/13 & SC No. 19/15 Page 47 of 63 48 case. ................".
14.3 Similarly in the case of AIR 2003 SUPREME COURT 2612 Union of India v. Prakash P. Hinduja = 2003 AIR SCW 3258:
AIR 2001 SUPREME COURT 142 State of U.P. v. Hari Mohan = 2000 AIR SCW 4012: AIR 2003 SUPREME COURT 660 State of U.P. v. Jagdeo AIR 2003 SUPREME COURT 1164 Amar Singh v. Balwinder Singh = 2003 AIR SCW 717, it was held that Error or illegality in investigation would have no impact on trial unless miscarriage of justice is brought out. Defective investigation cannot be made a basis for acquitting accused, more so when a case is made out against all or any one of the accused persons. Accused cannot be acquitted only on ground that investigation was faulty. For fault of prosecution, perpetrators of such a ghastly crime cannot be allowed to go scot free. Where prosecution case is fully established by direct testimony of eye- witnesses and corroborated by other evidence then any failure or omission of investigating officer, cannot render prosecution case doubtful or unworthy of belief.
15 It is also argued by the accused that the photographs of the crime scene, though were claimed to be obtained but were not proved against the accused; the crime team report was not proved; and also the crime team officials were not cited or examined as witness.
15.1 Indeed those crime scene photographs and crime team report has not been proved, but then it is not a case where crime team did not SC no. 56/13 & SC No. 19/15 Page 48 of 63 49 visit the spot at all. Investigating officer deposed that crime team indeed visited the spot. Perusal of the record also reveals that there is a crime team report given by SI Nirmal Singh on record. That crime team report was not exhibited in evidence and that witness was not examined which appears to be inadvertently not done by the prosecution. It is not that the crime team report indicates absence of eye witness at the spot. It is also not that the crime team report supports the accused. What the crime team report says is that the eye witness may be examined. It neither confirms the presence of eye witness, nor denies it. If the accused was so confident that crime team report was in favour of the accused, the accused could have called the Incharge, Crime Team or the photographer of the crime team or he could have admitted that crime team report. But even he stood clear of it. The reason for standing clear of it was obvious that the crime team report is not in favour of the accused.
16 Merely because complainant Jawahar Lal did not give any complaint about previous threat extended by the accused and his associates about 10-12 days prior to the incident, is not a ground to disbelieve the eye witness. As per the eye witness, the accused and the eye witness were in the same business and therefore, the accused wanted the eye witness to stop that business competition. The threats extended by the accused might have been ignored by the complainant by not taking it seriously, therefore, the absence of prior complaint does not lead to an inference that the incident is false.
SC no. 56/13 & SC No. 19/15 Page 49 of 63 5017 It is also argued by the accused as to what was the position of the accused persons at the spot; the position of witness at the spot; it was highly unlikely that so many persons could have come inside the same room; absence of details in this regard as to position on the site plan etc, should be a circumstance in favour of the accused.
17.1 When several persons attack inside somebody's house, and the assailants are armed with deadly weapon, and bullets are fired no sooner than entering the house, the witness cannot be expected to stand still and observe and then remember and recollect as to which of the assailant was standing exactly at which spot, holding what kind of weapon and doing what. Yet in the present case, the eye witness account clearly reveals most of those important details and the weapon of offences held by the accused and his associates. The absence of describing exact positions of accused and witnesses in the site plan and other details in this regard is not a circumstance to doubt presence of the eye witnesses or truthfulness of their account.
18 It is also contended that the investigating officer stated that he received information at 4.30 PM and then he reached the spot, took photographs etc. at the spot and then the bodies were sent from the spot makes his presence doubtful, because the MLCs contain time of approximately 4.45 PM stating that it was at that time, injured reached the hospital.
18.1 As mentioned above, the eye witnesses and the police officials SC no. 56/13 & SC No. 19/15 Page 50 of 63 51 were examined in the present matter after a long lapse of time. The incident occurred on 1.10.1995. Jawahar Lal was examined from 12.08.1998 onwards for few dates of hearing. Ved Prakash was examined from February 2001 onwards. Pramod was examined in June 2002 onwards, Harish was examined in May 2009 and thereafter. Inspector Ashok was also examined against this accused after several years of the incident. Police officials by virtue of their very nature of duties remain associated with large number of investigations, day in and day out. Between 1995 to 2010, Inspector Ashok Tyagi also must have participated in various investigations. In such circumstances, expecting him to depose with mathematical precision the time when he received the information, the time when he reached the spot, the time when bodies were dispatched etc. would be unfair. When witnesses are examined after a long gap from the date of incident, certain contradictions and improvements are bound to occur. Those contradictions cannot be given any unnecessary weightage. Even otherwise, these things are trivial in nature and does not affect the root of the prosecution's case.
18.2 In CRL.A.819/2011 RAVI KUMAR & ORS. Versus STATE decided on 30.05.2014, Hon'ble Delhi High court observed that minor discrepancies are bound to occur due to normal errors of perception and observation, errors of memory due to lapse of time, mental disposition due to shock and horror at the time of occurrence. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of the version. If, on the SC no. 56/13 & SC No. 19/15 Page 51 of 63 52 other hand, witnesses give evidence with mechanical accuracy, it could be cogitated that they were giving tutored versions. The question is whether embellishments in statement of witnesses can destroy the core of the prosecution story. Minor contradictions appearing in the testimony of the witnesses does not materially affect the core of the prosecution case nor render the testimony of the witnesses liable to be discredited.
18.3 Hon'ble Supreme Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors., 2013(11) SCALE 132 held :
"9. In State of U.P. v. Naresh (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held :
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapses of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court SC no. 56/13 & SC No. 19/15 Page 52 of 63 53 has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. V. State of U.P. AIR 1959 SC 1012; Pudhu Raja and Anr. V. State, Rep. by Inspector of Police JT 2012 (9) SC 252; and Lal Bahadur vs. State (NCT of Delhi) (2013) 4 SCC 557.
10. Thus, it is evidence that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution SC no. 56/13 & SC No. 19/15 Page 53 of 63 54 case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
18.4 Similar view was taken in Sidhan v. State of Kerala, 1988 Cr.L.J. 470; Krishna Pillai v. State of Kerala, AIR 1981 SC 1237; Kurai and Anr. V. State of Rajasthan, (2012) 10 SCC 433; Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020; Krishna Mochi & Ors. V. State of Bihar, (2002) 6 SCC 81.
19 Argument of the accused that deceased Vimal could not have received the injuries in the manner deposed by the eye witnesses is also liable to be rejected. Even if it is assumed that the eye witness did not reveal the exact account of the manner of injuries sustained by Vimal, that fact by itself cannot go in favour of the accused. After all, Jawahar Lal, Ved Prakash and Harish got frightened and tried to escape the onslaught. Injured Pramod was himself injured in the incident. It is not a case where single assailant or two assailants attacked. It is a case where as many as six assailants were involved. Two of them were armed with revolvers and two with daggers. It has come in the eye witness account that in order to save himself, Chandra Shekhar picked up a sword and assaulted Vimal to save himself. It has also come in evidence that the present accused Jagdish and his associate fired bullets indiscriminately. In the melee which followed at the crime scene, eye witness cannot be expected to recollect as to who gave which particular blow to Vimal and in what manner. Vimal sustained a bullet injury as deposed by the post SC no. 56/13 & SC No. 19/15 Page 54 of 63 55 mortem doctor. The said bullet injury no.9 was opined to be sufficient to cause death in the ordinary course of nature, besides the incised injuries. It has come in the evidence that Jagdish and one of his associate Narayan were only armed with revolvers at the spot. There was no other revolver present at the spot with anybody else. It is also not a case where injuries on Vimal remained absolutely unexplained.
20 The argument of accused that there was no blackening, charring and tattooing etc. noticed on the body of deceased by the doctor who conducted post mortem is answered by the said doctor himself. Dr. L. K. Barua deposed that if there is some obstruction at the entry point of the bullet entry in the body such as collar of shirt or some other cloth etc., in such circumstances there would be no blackening, tattooing or charring of the body. The doctor also deposed that the bullet injuries on the body of ChandarShekhar along with injury no. 4 & 5 were perforated caused by entry and exit of a bullet. It was not possible that those injuries could have been caused by a sua, spike or saria etc. This doctor opined that fire arm injuries were caused because of the nature of injuries noticed by him. In the case of Omi Devi, injury no. 4 and 6 were caused by fire arm. The cause of her death was hemorrhagic shock. In the case of Chandra Shekhar injury no. 4 & 5 were caused by fire arm, which were sufficient in the ordinary course of nature to cause death besides other injuries. In the case of Vimal, injury no. 9 was caused by fire arm, which was sufficient to cause death in the ordinary course of nature.
SC no. 56/13 & SC No. 19/15 Page 55 of 63 5621 Merely because weapon of offence were not shown to the doctor who conducted post mortem is not a ground to reject the case of prosecution. After all ocular evidence does find corroboration from the medical evidence to the effect that indeed fire arms were used in the incident and also sharp weapons causing incised injuries were used in the incident.
22 The argument of accused that pursuant to directions of Hon'ble High Court, the investigating officer investigated the plea of alibi of accused Rajbir which was found correct affects credibility and character of the eye witness. Even if that is so, I do not find it a sufficient ground to disbelieve the witnesses qua accused Jagdish. Jagdish was previously known to the witnesses, therefore, there is no doubt as to his identity. Jagdish was named specifically in the first information report itself. All the witnesses to the incident besides Harish named Jagdish in the court in their testimonies. Harish claimed that he did not see any of the assailants, therefore, it is not a case where Harish said that Jagdish was not present at the spot. Injured witness Pramod also deposed against Jagdish by naming him.
22.1 I have already mentioned above that even if a witness deposes falsely on a particular point, his entire testimony cannot be discarded, if truth from falsehood can be segregated. It is also not proved that Rajbir named in the complaint was the same person who was faced trial.
22.2 The argument that why would the assailants not start firing immediately and why would they allow Jawahar Lal escape without SC no. 56/13 & SC No. 19/15 Page 56 of 63 57 injury, is again not a circumstance in favour of the accused. That could have happened for variety of reasons. The eye witnesses deposed that when first bullet fired by accused Jagdish missed the complainant, the complainant took to his heels and fled upstairs. Also mere non-reconstruction of the crime scene by the investigating officer is not a ground to disbelieve the eye witness as I have already mentioned that defects in investigation conducted by the investigating officer cannot be a circumstances in favour of accused.
23 The defence witnesses also does not help the case of accused.
DW1 who stated about presence of accused at his house on the date of incident did not take any steps whatsoever qua the so called false implication of accused in this case till he entered the witness box as a defence witness. His testimony cannot be viewed without a pinch of salt as he is related to the accused and interested in his acquittal. DW2 does not go to prove anything material in the present matter in favour of the accused.
24 The ballistic expert report has been proved by PW9A Dr. S. K. Jain as Ex.PW9A/A. As per the said ballistic report, total six bullets B/1 to B/6 were received in the FSL for examination along with one country made revolver. Upon examination and comparison of the individual characteristics marks on test and crime bullets, PW9A came to a conclusion that the bullet Mark B/6 had been fired through the revolver Mark A. This revolver was recovered from the possession of accused Jagdish @ Jaggi at the time of his apprehension on 5.2.1996. The bullet Mark B/6 was recovered from the body of SC no. 56/13 & SC No. 19/15 Page 57 of 63 58 injured Pramod. The FSL result Ex.PW9A/A reveals that the six bullets and the revolver were received in the FSL on 13.03.1996. One parcel was containing revolver recovered from accused Jagdish. Second parcel was containing four bullets recovered from the spot. Third parcel was containing fifth bullet which was recovered from the body of deceased Vimal. And the sixth bullet in parcel no. 4 was recovered from the body of Pramod. Perusal of the road certificate no. 180/21, Ex.PW30/C reveals that one sealed parcel containing revolver and one cartridge were sealed with the seal of SS. This parcel was bearing seals of ASI Sagar Singh, as per the recovery memo of the revolver Ex.PW24A/4, as recovered from accused Jagdish on 5.2.1996. The second parcel mentioned in the road certificate was containing four bullets sealed with the seal of AKT i.e. belonging to Inspector Ashok Tyagi as seized from the spot by Inspector Ashok Kumar Tyagi vide Ex.PW21A/L. The third parcel containing a bullet was sealed with the seal of CMO Civil Hospital, Delhi. The seizure memo Ex.PW2/B reveals that this parcel contained the bullet recovered from deceased Vimal and it was sealed with the seal of CMO Civil Hospital, Delhi. The road certificate no. 180/21 also reveals that the fourth parcel contained one bullet and the parcel was sealed with the seal of DDU Hospital Delhi. It was this bullet which was given Mark B/6 by the FSL expert. Perusal of the seizure memo Ex.PW27A/A1 reveals that this bullet was recovered from the body of Pramod and it was sealed with the seal of DDU Hospital Delhi. The above mentioned facts not only establishes the fact that the bullet inside the SC no. 56/13 & SC No. 19/15 Page 58 of 63 59 body of Pramod was fired from the country made revolver which was subsequently recovered from accused Jagdish at the time of his apprehension, but it also answers the question raised by the accused as to from where the sixth bullet came into existence. Merely because the investigating officer, during his cross examination, after several years from the incident could not recollect as to from where the sixth bullet came to be sent to the Ballistic Expert is not a ground to suspect the entire case of prosecution. After all, what better proof can one have than documentary proof of a case. As mentioned above, the documents of this case clearly prove as to how six bullets were sent to the ballistic expert for examination and also as to the place from where those bullets were recovered. The entries in the Register no. 19 Ex.PW22A/A to D clearly finds mention about the deposition of the case property including the bullets and, sending of the case property to the FSL on 13.03.1996 through Ct. Arjun. PW22 SI Jagmal Singh was not cross examined by the accused and therefore the accused cannot now claim that there is any discrepancy or confusion as to the sixth bullet. PW9 the ballistic expert was also not even cross examined. Thus, the testimony of SI Jagmal Singh and Dr. S. K. Jain both remained unrebutted.
25 In Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182 it was also held that;
"21. This Court in Laxmibai v. Bhagwantbuva [(2013) 4 SCC 97 :
(2013) 2 SCC (Civ) 480 : AIR 2013 SC 1204] examined the effect of non-cross-examination of witness on a particular fact/circumstance SC no. 56/13 & SC No. 19/15 Page 59 of 63 60 and held as under: (SCC p. 114, para 40) "40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enables the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." (emphasis supplied) (See also Rohtash Kumar v. State of Haryana [(2013) 14 SCC 434] and Gian Chand v. State of Haryana [(2013) 14 SCC 420] .)"SC no. 56/13 & SC No. 19/15 Page 60 of 63 61
26 In State of U.P v. Nahar Singh, AIR 1998 SC 1328 the Supreme Court noted observation of Lord Herschell, L.C in Browne v. Dunn, as follows :
"14. The oft quoted observation of Lord Herschell, L.C in Browne v. Dunn, (1893) 6 The Reports 67 clearly elucidates the principle underlying those provisions. It reads thus:
"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."SC no. 56/13 & SC No. 19/15 Page 61 of 63 62
27 The said fact that the bullet found in the body of Pramod was fired from the country made revolver recovered from the possession of Jagdish after about four months of the incident at the time of his apprehension also corroborates the version of the eye witnesses that Jagdish was armed with the said country made revolver and he fired bullets at the victims at the spot.
28 The very fact that the accused Jagdish along with his five other associates barged into the house of complainant, armed with different kinds of deadly weapons, and the victims were fired upon and stabbed immediately on reaching the spot indicates that there was a prior criminal conspiracy between the accused and his other associates. There can rarely be any direct evidence as to criminal conspiracy and criminal conspiracy has to be often gathered from circumstances. The circumstances of this case establishes beyond doubt that the accused was in conspiracy with others in committing this crime.
29 So far as charge U/s 27 of the Arms Act is concerned, PW27 SI Sagar Singh and others proved that at the time of apprehension of accused Jagdish @ Jaggi, country made revolver with bullet was recovered from his possession. However, the Sanction U/s 39 of Arms Act was not proved against accused Jagdish after he was apprehended. Though PW36 Deepak Mishra, the concerned police officer who gave Sanction U/s 39 Arms Act, was examined U/s 299 Cr.P.C when the accused Jagdish was a proclaimed offender, but this witness was not examined after apprehension of accused SC no. 56/13 & SC No. 19/15 Page 62 of 63 63 Jagdish. Thus accused cannot be held guilty U/s 27 of Arms Act.
30 The sum & substance of the above discussion is that the accused is found guilty of entering into conspiracy to trespass, to attempt to commit murder and, murdering the victims with his other associates. The accused is also found guilty of committing murder of Om Devi, ChandarShekhar and Vimal in pursuance of conspiracy. The accused is also found guilty of tresspassing the house of the complainant and of attempting to commit murder of Pramod and Jawahar Lal. The accused is thus found guilty U/s 120B/302/307 & 452 of IPC.
Announced in the open court on 23rd day of May, 2015. Dig Vinay Singh ASJ/Spl.Judge : NDPS(N-W) Rohini Courts/Delhi SC no. 56/13 & SC No. 19/15 Page 63 of 63