Delhi District Court
The Prosecution. Reference Can Be Made ... vs . Jagir on 13 July, 2009
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 513/08
State
Versus
1- Prem Chand S/o Sher Singh,
R/o 109, village, Mukhmailpur,
P.S. Alipur, Delhi.
2- Jagdish @ Dava S/o Parmanand,
R/o A-1098, Jahangirpuri, Delhi.
3- Naresh S/o Chunni Lal ,
R/o E-383, Jahangirpuri,
Delhi.
4- Mahender Pehelwan S/o Chandgi Ram,
R/o 82, Village Bharola, Azadpur,
Subzi Mandi, P.S. Adarsh Nagar,
Delhi.
Case arising out of
FIR No. 331/2003
U/S: 302/120B IPC & 25/27 of Arms Act.
P.S. Subzi Mandi
Date of FIR : 28.11.2003
Date of Institution : 29.3.2004
Date on which file received : 03.12.2008
Date of Final Arguments : 02.07.2009
Judgment reserved on : 02.07.2009
Date of judgment : 08.07.2009
Contd..........
/2/
JUDGMENT
The FIR in question was registered on the statement of the deceased Rajesh Yadav @ Talli S/o Diley Ram vide dated 28.11.2003 for the offence punishable u/s 307 IPC read with section 25/27 of the Arms Act vide FIR No. 331/2003 at P.S. Subzi Mandi. SI Sanjay Bhardwaj recorded statement of deceased, same was also being endorsed by Dr. R.N. Sahai, who certified the MLC No. 8447/03 that the injured on his examination found " Fit for statement at the time of examination at 12.30 pm on 28.11.2003" and " gun shot " injury was also found.
SI Sanjay Bhardwaj posted at P.S. Subzi Mandi, Police Post Tis Hazari, received information vide DD No. 17PP, Tis Hazari and on receipt of said information he alongwith Ct. Amar Pal, SI Ajeet, Ct. Trilok went to Tis Hazari Lock up, where ASI Baldev also reached of his own. He reached near Mulzim Mulaki Kharza outside the gate of lockup. He found accused Prem Chand in the custody of HC Haridutt and HC Bijender and also came to know that injured Rajesh @ Talli who was shot by the Prem Chand had already been shifted to HRH by PCR. Regarding the two fire arms and ammunition which were in the custody of HC Haridutt and HC Bijender. SI Sanjay Bhardwaj was also informed by them that by one of th is weapon Prem Chand had fired upon Rajesh @ Tali the Contd..........
/3/ other one was also recovered from his possession. SI Sanjay Bhardwaj directed to SI Baldev be remain at the spot to supervise it. Accused Prem Chand and above said articles were left in the custody of HC Haridutt and Ct. Bijender. There was some hitting mark of the bullet at the place of occurrence. Some articles were also there. One Alto car was also found parked there on its right side rear window glass the mark of hitting by bullet was present. He alongwith Ct. Amar Pal, Ct. Trilok went to Hindu Rao Hospital and collected MLC of injured Rajesh @ Talli at about 12.15 pm. At about 12.30 pm he met Dr. R.N. Sahai, who opined that the injured is fit for statement. The endorsement to this effect was also obtained on his MLC. Thereafter SI Sanjay Bhardwaj recorded statement of Rajesh Yadav @ Talli in the presence of Dr. R.N. Sahai. After completing the statement, he also obtained signatures of doctor on the statement Ex. PW1/B at point A. Rajesh @ Talli signed the statement in presence of doctor at point B. On this statement, he prepared rukka Ex. PW30/A and sent Ct. Amar Pal for registration of the case to P.S Subzi Mandi. SI Sanjay Bhardwaj also conveyed information through wireless set to Crime Team In charge who reached at the spot alongwith photographer. He have also prepared the seizure memo of the parcel containing cloths of the injured, sealed with the seal of hospital which was handed over to him with sample seal and prepared seizure memo Ex. PW17/A. Contd..........
/4/ The personal search items of the injured which were recovered from him in the hospital were also seized vide memo Ex. PW17/B. Same are sealed with seal of SB. These items were i.e two applications addressed to the court, one Tihar Prisoner Smart Cash Card, five tokens, one address diary and miscellaneous papers. He along with the accompanying staff came back at the spot. Crime team has also reached at the spot. Crime team conducted the proceedings. Crime team report is Ex. PW8/A. Photographer snapped the photographs from different angles. When he returned back to the spot accused Prem Chand was in the custody of Ct. Bijender and HC Haridutt in the supervision of ASI Baldev. By that time HC Bijender and Haridutt have got themselves medically examined. They produced their MLCs . The reason for their medical examination was that they sustained injuries when they overpowered accused Prem Chand. ASI Baldev produced one pistol allegedly recovered from accused Prem Chand. Pistol was having the magazine. One empty shell was entangled from the barrel. One live cartridge was in the magazine. He also produced 7 live cartridges allegedly recovered from the possession of accused Prem Chand. ASI Bhagwan Dass, Finger Print Expert/ Crime Team In charge examined the pistol at the spot for exploring the possibility Contd..........
/5/ of presence of chance print. No chance print could be developed. IN presence of HC Bijender and HC Haridutt, he prepared sketch of pistol, magazine, 8 live rounds and one fired cartridge case. The pistol was of .30 Caliber made in China. The length of the empty shell was 2.5 cm and the length of round was 3.5 cm. The diameter of the base of the empty shell was .9 cm. On the bottom 7.62 X 25 was written. The sketch is Ex. PW4/A. The barrel was opened by ASI Bhagwan Dass after examining the weapon with the angle of lifting chance print. One cartridge was recovered from the barrel. The length of the both the cartridges were 7.6 cm with a diameter of 1.4 cm. He prepared sketch of the fire arm and ammunition Ex. PW4/C in presence of HC Bijender Singh and HC Haridutt. The pistol with magazine was sealed in a cloth parcel with the seal of SB and was given serial No. 1. The empty shell and 8 live cartridges were kept in plastic jar and was sealed in a cloth parcel with the seal of SB and was given serial No. 2. the country made fire arm was sealed in a cloth parcel with the seal of SB and was given St. No. 3. The two live cartridges were sealed in another both parcel after keeping them in a plastic jar. Seal of SB was applied on the parcel and was given S. No. 4 items of parcel No. 1 and 2 were seized vide memo Ex.
Contd..........
/6/ PW4/B and the items of parcel No. 3 and 4 were seized vide memo Ex. PW4/D. ASI Bhagwan Dass also signed seizure memo. He collected earth control samples from bullet mark point 2 and 3 on the road and were sealed in two separate plastic bottles with the seal of SB and were given Sl. No. 5 and 6 same were seized vide memo Ex. PW4/E. These articles were lifted from the road near the gate of lockup. He has also lifted one lead piece from the place near the entry gate of Court NO. 38 on the road. From this place earth control was also lifted. These items were sealed in a cloth parcel and sealed with the seal of SB and was given Sl. No., 7 also was seized vide memo Ex. PW4/F. ASI Bhagwan Dass was also present at that time. The piece of the glass of the car which was hit by the bullet was removed from the car with the help of cotton, same was preserved in a cardboard box and was sealed in cloth parcel with the seal of SB and was seized vide memo Ex. PW4/H. Parcel NO. 8 was marked on it. The ceiling of the car was also hit by the bullet. The piece of inner covering material was cut out of the car and was sealed in a cloth parcel after putting it in a plastic jar and the same is sealed with the seal of SB and Sl. No. 9 was given to this parcel it was seized vide memo Ex. PW4/I. After giving inspection report ASI Bhagwan Dass left Contd..........
/7/ the spot. The car bearing No. DL7 CB-6566 white colour Alto was seized vide memo Ex. PW4/G. Seal after use was given to HC Haridutt. SI Sanjay Bhardwaj has also recorded statement of witnesses and prepared site plan Ex. PW30/B with correct marginal notes. He deposited the case property in Malkhana. He received the copy of FIR and rukka from Ct. Amar Pal and accused Prem Chand was taken into custody and arrested vide memo Ex. PW16/B and his personal search was conducted vide memo Ex. PW16/C. The accused made the disclosure statement Ex. PW16/A. On 28.11.2003 vide DD NO. 24 dated 28.11.2003 Ex. PW30/C an information was received regarding death of Rajesh at about 7.40 pm in ICU ward of HRH. Thereafter, Insp. Rajbir Singh took over the investigation. SI Sanjay Bhardwaj handed over all the documents and custody of accused to Insp. Rajbir Singh.
On 4.12.2003 postmortem was conducted by the Board of doctors which was constituted by Sh. Ajay Gupta, ADM, New Delhi. Application was moved before the ADM by Ex. PW30/D for shifting the body from HRH to Subzi Mandi Mortuary. The body was shifted under his custody from HRH to Subzi Mandi Mortuary. IO collected a sealed parcel containing clothes of Rajesh @ Talli bearing seal of HRH vide RC No. 56/21 and Contd..........
/8/ produced before Autopsy Surgeon. After the postmortem the blood sample and underwear of Rajesh @ Talli was sealed with the seal of Aruna Asif Ali Hospital and was handed over along with sample seal to the IO which was seized by him vide memo Ex.PW17/B. The clothes which were brought by him at the time of postmortem were again sealed with the seal of Aruna Asif Ali Hospital alongwith sample and were deposited by IO in the Malkhana vide DD NO. 25A dated 4.12.2003 Ex. PW30/E. On 29.1.2004 Sonu Kaushik, he remained associated with the IO at the time of preparation of scaled site plan. On 6.2.2004 accused Naresh and Jagdish were produced in court , they were arrested in this case vide arrest memo ex. PW25/A and B. On 22.2.2004 accused Mahender Pehlwan was arrested vide memo ex. PW30/F, he was interrogated, his disclosure statement Ex. PW30/G recorded and was taken on police remand. The copy of FIR No. 109/04 Ex. PW30/H was collected. He examined PWs of this FIR and also have also collected the document of FIR No. 100/02 as well as FIR NO. 66/2001 of PS Jahangirpuri vide Ex. PW30/I&J. Documents Ex. PW30/I was reflecting that on 28.11.2003 Rajesh @ Talli was produced in J/c in the court and document Ex. PW30/J were reflecting that Contd..........
/9/ Mahender Pehlwan was accused in that case and the Rajesh @ Talli was witness in that case. He have also collected the FSL report, running into three pages Ex. PW30/K and M. After completion of investigation supplementary challan was filed. Personal search items of Rajesh @ Talli are collectively Ex. PY-1. The photographs are Ex. PW21/A1 to A15. Pistol is Ex. P1, Six live cartridge are Ex. P2 to P7. Two empty test fire cartridges are Ex. P8 and 9, empty cartridge Ex. P10, Katta Ex. P13, live cartridge P14, empty cartridge P15, Earth control and deformed lead pieces are Ex. P16 and 17, broken pieces of glasses Ex. P18, sealing of the car Ex. P19, earth control is Ex. P20. After completion of investigation challan was filed in court for trial.
After Supply the copy of the police report and the other documents as prepared during investigation to the satisfaction of the accused persons u/s 207 Cr.P.C . The case was committed to the court of Sessions since the offence is exclusively triable by court of Sessions u/s 209 Cr.P.C. Prima facie case is made out , as such charge for offence punishable u/s 302 IPC read with section 120B IPC and 25, 27of Arms Act was framed against the accused Prem Chand. The accused persons namely Prem Chand, Contd..........
/10/ Jagdish, Naresh and Mehender Pehlwan were also charged for offence punishable u/s 120B IPC. Further a charge for offence u/s 506/34 IPC has also been framed against the accused Jagdish and Naresh vide order dared 5.3.2005. For which accused persons pleaded not guilty and claimed trial.
Prosecution in order to bring home the guilt of the accused person in support of its case, cited 39 witnesses and examined all of them.
After conclusion of the prosecution evidence, statement of accused persons u/s 313 Cr.PC recorded. Wherein all the incriminating evidence led by prosecution were put to the accused person one by one . For which accused persons denied the same that they do not know and they do not want to lead any defence evidence. Accused Prem Chand has stated that He has been falsely implicated in this case. He has no connection with either accused Naresh or Jagdish or Mahender Pahelwan. He has come to know that the under trial Rajesh Talli was rying to flee away from custody and to obstruct him the police officials had fired on him, and caused his death. He has also come to know that to protect themselves of being punished for killing the under trial, the police officials have made all sort of manipulation int he records and the scene of occurrence and after getting extracted the police bullet from the body of Contd..........
/11/ Rajesh Talli, the same was destroyed. Rajesh Talli had not made any statement to the police in front of the doctor. The doctors of Hindu Rao Hospital have also obliged the police officials in this case. In fact, he was a convict in case FIR No. 275/88, P.S.Subzi Mandi and he was released on parole after expiry of his parole.; He had come to the court to surrender himself and the police of P.S. subzi Mandi arrested him saying that he had jumped his parole. After keeping him in the PS for several hours, they planted this case against him. He is innocent. The other accused namely Jagdish, Naresh and Mehender Pahelwan have stated that they have been falsely implicated in this case and they have no connection with accused Prem Chand and their name was introduced in this case to side track the investigation.
I have submission of Ld. APP and Ld. Defence Counsel appearing on behalf of accused persons and also carefully gone through the material on record.
Ld. APP for State has argued that the prosecution examined all the witnesses cited in the list of witnesses one after the other to complete the chain of evidence and their testimony are cogent, trustworthy and believable. The deceased in his dying declaration /statement gave name of Contd..........
/12/ all the accused persons with deposition that all the aforesaid accused persons hatched with criminal conspiracy bearing grudge against him, the accused Prem Chand in connivance with other associates accused had murdered him by fire upon him. The statement of deceased Rajesh @ Talli on the basis of which the rukka was prepared and the FIR was registered is the main substance of the case and same was also treated as dying declaration. As per the provision of section 32 of Indian Evidence Act 1872 , the dying declaration is the statement by a person as to cause of his death or as to any of the circumstances resulting in his death. It becomes relevant under section 32(1) of the Evidence Act. It is an exception to the rule of hearsay and makes admissible, the statement of the deceased whether the death is homicidal or suicidal provided the statement relates to the cause of death or exhibits circumstance leading to his death. Similar view has been taken by Apex Court in a case titled as Sharad Birdhichand Sharda V State AIR 1984 SC 1622.
It is further contended by Ld. APP that dying declaration made by deceased Rajesh @ Talli on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth Contd..........
/13/ of the statement of the deceased regarding circumstances leading to his death. Greater solemnity and sanctity is attached to the words of dying man because a person on the verge of his death is not likely to tell lies or to concoct a case as to implicate an innocent person but the court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. Once the court is satisfied about its authenticity and voluntariness, the court can found a conviction on the basis thereof in the absence of corroboration.
Ld. APP for State while arguing, further submitted that the accused persons while being given opportunity to defend themselves at the time of cross examination of prosecution witnesses or when their statement u/s 313 Cr.P.C recorded and the opportunity was granted to lead defence evidence but they had denied the prosecution evidence one after the other. They authentic, oral or documentary evidence with a new plea that the cause of the death of the deceased is by the police officials not by the assailants. The police officials can be understand to plant a country made pistol but it is beyond imagination that the foreign made pistol is being planted and the fire was also being fictitious with concocted story. The case of the prosecution is not only based on the oral evidence of 38 prosecution Contd..........
/14/ witnesses but also having medical and scientific evidence which has been duly corroborated with the document prepared during the course of investigation. Doctor R.N. Sahai who initially examined the patient, certified that the patient is fit for statement at 12.30 pm and on certification of the doctor, statement of the deceased Rajesh @ Talli was recorded vide Ex.PW1/A. PW6 Dr. Saroj Kumar also alleged the history of gun short and described the injuries as sustained by patient in his report Ex. PW6/A. Dr. Sanjay Kumar has prepared the death summary of the deceased. PW15 Dr. Amita Agarwal proved the injuries on the MLC vide Ex. PW15/A. PW27 Dr. Ashok Jaiswal who is Medical Officer of Subzi Mandi Mortuary a board of doctors constituting of himself, Dr. K.L. Sharma and Dr. Anil Agarwal who conducted the postmortem on the body of deceased Rajesh @ Talli and cause of death was opined as "Hemorrhagic shock consequent to the cumulative effect of fire arm injuries 1,2 and 3, which were sufficient to cause death in the ordinary course of nature ". PW36 A.K. Srivastava is the Sr. Scientific Officer cum Ex. Officer Chemical Examiner who proved the serological report dated 11.11.2004 Ex. PW36/A. Ld. APP further submitted that the allegation made against the accused persons are based on Contd..........
/15/ true facts and same has been authentic by deposition of the prosecution witnesses including deceased statement cum dying declaration. On the contrary there is no evidence led by accused persons in their defence to challenge the case of the prosecution in any manner. The information with respect to the discrepancies and improvement in the statement of prosecution witnesses does not affect the case of the prosecution as none of the contradiction hamper and go to the root of the case of the prosecution in any manner. The contradiction here and there which are bound to be occurred since old testimony of prosecution witnesses are being of human body. It is a human nature that statement of them recorded during the course of investigation cannot be come from their mouth in verbatum. There is no mathametic formula to depose the prosecution witnesses in the same manner as deposed by them during the course of investigation. Technicalities of law and he errors during the course of investigation as being pointed out is also not such major one which also discard the prosecution story and acquit the accused persons. In these circumstances the prosecution proved its case against the accused persons beyond all reasonable doubt. Therefore, all the accused persons are liable to be convicted as per charges leveled against them.
Contd..........
/16/ Ld. Defence counsel while arguing on behalf of accused persons submitted that the police official made a falsely story against the accused to booked them in a false case by save other from the criminal liabilities. According to the MLC Ex. PW6/A the injured had four bleeding injuries, besides an abrasion . According to the doctors who conducted the postmortem on the body of the deceased i.e. PW24 Dr. Anil Agarwal and PW27 Dr. Ashok Jaiswal, there were three entry wounds and one exit wound on the body beside one abrasion. Both the doctors have categorically stated that no foreign body/remnants of fire arm projectile was recovered from abdominal cavity despite dissecting out all organs and intestinal loops meticulously. The board of doctors who performed the post mortem was not even shown the x-ray plate to show the position of the bullet in the body because the bullet were cleverly removed from the body and was concealed and the IO did not produce any witness from the team of doctors who had performed the surgery on the body of the victim/ deceased. The prosecution is duty bound to provide the two bullets, which had no exist wound, but they have deliberately suppressed the same and an adverse inference should be drawn u/s 114(g) of Evidence Act, That it would have been produced, it would have clearly demonstrated that the bullets were fired from the service Contd..........
/17/ revolver of the police officials and since the size of the police bullet differs from the size of the bullet found in the market, the police officials would have been booked for killing deceased Rajesh @ Talli.
It is further contended that the occurrence took place in front of the lockup Tis Hazari and the deceased after being hit by one bullet fell down and kept on twisting to ward off other bullet injuries. He was hit by three bullets as there are three entry wounds on his body. According to PW1 Dr. R. N. Sahai the patient was bleeding while removing to the O.T from Emergency. PW4 ASI Hari Dutt Tyagi says in his examination - in -chief that near the place of incident, where injured was shot and fell, blood was \scattered and in the course of investigation, IO collected blood, earth control and blood stained earth in different parcels and it was recovered vide memo Ex. PW4/E. Further that the PW38 HC Somvir Singh, who is alleged to have taken the injured to the hospital says that he cannot say whether he was having gun shot or knife injury but it was blood stained and blood was oozing out of the pant and shirt. PW25 Insp. Rajbir Singh in his cross examination says that no blood have been shown at the spot where the mark of bullet injury are shown in the photographs and none of the memos handed Contd..........
/18/ over to him by SI Sanjay Bhardwaj bears blood stained earth. He got prepared scaled site plan in the presence of Ct. Ramesh and HC Vijender but they did not point out any place where the blood was found. PW16 ASI Baldev Singh says that he reached the spot at about 11.45 am and he left at the spot to protect the spot and the accused and till he remained at the spot the same remained preserved. It is further pointed out by Ld. Defence Counsel that non finding of blood stained earth at the alleged spot is very important lacuna in the prosecution case and the status of the occurrence has not been satisfactorily fixed and proved.
It is further contended that the another important circumstances which falsify the prosecutions story i.e. none recovery of empty cartridges at the spot. If firing has taken place with the pistol then empty cartridge will definitely be found at the spot as those empty cartridges not only determines the place of incident but also determines the position of the assailant and the direction of the firing. The accused has successfully demonstrated that deceased Rajesh @ Talli has not died from the bullets allegedly fired by Prem Chand from his pistol. Further the PW25/IO Ins. Rajbir Singh was asked during his cross examination on 20.11.2007, told that the pistol allegedly recovered, there are 7 chambers in the magazine. It is also admitted that one bullet allegedly hit the car and three bullets were fired at Contd..........
/19/ the spot which hit the ground and one bullet was fired as the shooter was allegedly caught and the two cartridges were found in the chamber of the magazine of pistol. It is not the case of the prosecution that the shooter had re-loaded the magazines, which clearly show that deceased Rajesh @ Talli was not shot by this weapon which is also contrary to the medical evidence.
It is further contended by Ld. Defence Counsel that the articles seized by the IO is not seized in accordance with the deposition of the prosecution witnesses and there is tampering with the case property PW26 stated that underwear worn by deceased was of brown black printed with a level of VIP 90 " Dristhi", it was intact. No blood stains were seen thereon"
.This fact is also mentioned in postmortem report ex. PW26/A. Further the underwear was dark brown stain of blood. PW25 in his cross examination dated 20.10.2007 has stated that he received postmortem report. It is admitted that in the postmortem report there is mentioned that the underwear of the deceased Rajesh @ Talli did not have blood stain or tear. He cannot say as to how the underwear sent to CFSL was found having dark brown stains of blood. The pullanda of cloth was converted into a gunny bag , there is no explanation given by Insp. Rajbir Singh, and SI Sanjay Bhardwaj to this effect. The live cartridges pullanda was also being tampered in view of the deposition of PW25 Insp. Rajbir Singh, while stating that he cannot Contd..........
/20/ say if there is difference of size of bullets of police personal and other private persons. The size of cartridges use in service pistol is of 9mm. The size of cartridges as mentioned in the seizure memo in Ex. PW4/B has been shown as 0.9 cm. He had collected FSL report wherein the size of bullet was written as 7.62 mm. The accused Prem Chand was arrested from the spot and he was kept in the lock up till 5.30 pm and there is 6 hours delay in his arrest. It was mentioned in D.D No.17 P.P Tis Hazari that under trail has been shot in front of Tis Hazari Lockup. There is no mention that the shooter was arrested at the spot. In the rukka Ex. PW30/A SI Sanjay Bhardwaj mentioned that, on receiving DD No. 17 he went to Judicial lockup Tis Hazari where he was informed that the injured was taken to Hindu Rao Hospital by PCR Van. It is nowhere mentioned that accused was apprehended at the spot. PW30 SI Sanjay Bhardwaj in his examination in chief deposed that accused was being apprehended by HC Hari Dutt and HC Vijender. Who informed him that they have seized two fire arms and ammunition from accused Prem Chand and by one of those weapon, Prem Chand had fired upon Rajesh @ Talli. He says that accused Prem Chand and the articles were left in the custody of HC Hari Dutt and HC Bijender. Since this improvement were deliberately made by the investigating officer while deposing in the court he was duly confronted with Contd..........
/21/ the rukka ex. PW30/A. There are other eyewitness at the spot then there is no need to recording of dying declaration . The IO of this case rushed to the hospital to record the statement of the victim and there is no mentioned of accused Prem Chand being arrested at the spot either in DD NO. 17 or in rukka to leads inference that the story of firing by accused and apprehending him at the spot was still in womb and all the other circumstances have been tailored to fit in the situation and have been brought into existence after due deliberation and consultation.
It is further submitted by Defence Counsel that there is other circumstances which create doubt upon the prosecution story, that the PCR Official who received the information of incident has not been examined and non recovery of PCR form which is maintain in a routine manner. The statement of deceased has not been recorded by SDM. It is not mentioned that the statement was recorded under the supervision or control of doctor and there is no time and date has been mentioned below the signatures of Dr. R.N. Sahai or the patient or the IO SI Sanjay Bhardwaj. The statement is not in a question answer form. There is no endorsement made by the doctor that the patient was fit to make the statement through out till recording the statement.
/22/ It is further contended that the IO claims that he alongwith Ct. Amar Pal, Ct. Trilok went to Hindu Rao Hospital, recorded the dying declaration, prepared rukka, and sent Ct. Amar Pal for registration of the case and after that he prepared the seizure memo of the parcel containing clothes of the injured vide Ex. PW17/A. He also seized the personal search items of Rajesh @ Talli vide seizure memo Ex. PW17/B and after recording the statements, he came back to the spot. SI Sanjay Bhardwaj stated that he received the copy of FIR at the spot. So, in the hospital he could not have the FIR and the documents prepared there in the hospital could not bear the FIR number because at that time the FIR was not registered. But in the cross examination the IO deposed that he received copy of FIR at the spot i.e. Tis Hazari Lock up after his return from the hospital. The prosecution has not offered any explanation as to under what circumstances number of FIR was appeared on the top of the documents. This gives raise to two inferences that either the FIR was registered prior to alleged recovery of the contraband or the FIR particular was mentioned later on.
It is further contended by Ld. Defence counsel that according to DD NO. 17 PP Tis Hazari , the first information was given by HC Rajinder Contd..........
/23/ and according to the rukka, the alleged statement of Rajesh @ Talli, the injured was taken to the hospital by PCR van but neither any PCR Official nor any PCR form has been brought for the perusal of the Hon'ble Court and above all the entire story of PCR is belied by the MLC of injured Rajesh @ Talli Ex. PW6/A wherein it has been specifically mentioned that injured was brought by HC Sombir Singh. HC Sombir Singh appeared before this Hon'ble court as PW38 and demolition the story of the PCR while he stated that he took the injured to the hospital in the jail van. Hence there are two contradictory stories propounded by the prosecution.
It is further contended by defence counsel that with respect to criminal conspiracies is defined under section 120B IPC that when two or more persons agrees to do or cause to be done an illegal act, such an agreement is designated as criminal conspiracy. Agreement is thus the rock bottom of the offence u/s 120B. There must be a meeting of minds at least of two or more persons resulting in an ultimate decision taken by the conspirator to break the law. Particularly such meeting of mind with other can be proved by circumstantial evidence. There is no evidence to show that conspiracy was hatched. There is nothing on record to show that any of Contd..........
/24/ accused persons met any point of time before the alleged murder. Ld. Counsel for accused has also relied upon a case titled as Shibu Soran of CBI ( Delhi)2007 (3) JCC 2465. Further there is nothing on record to show that Mahender Pehalwan met any of the accused persons at any time prior to the alleged murder of Rajesh @ Talli. There if nothing on record that there was any communication or attempted to communicate between the accused persons to hatch with the alleged conspiracy or for the purposes of furthering the objects of the conspiracy. There is nothing on record to show that there was meeting of mind of a tacit understanding arrived at between the accused persons to eliminate Rajesh @ Talli. The prosecution has not even proved that Mahender Pahelwan and Prem Chand has any acquaintance with each other. Since Naresh and Jagdish are co accused in case FIR No. 66/01 it can be inferred that they belong to a group, but that cannot prove a conspiracy, prosecution thus failed to prove that Mahender Pehalwan every visited and met to Naresh and Jagdish, who were in Tihar Jail, for the conspiracy or for the purpose of furthering the objects of the conspiracy. PW25 Insp. Rajbir Singh has also accepted that he has not investigated the fact that Mahender Pehalwan ever visited Naresh or Jagdish in the police custody or visited them in jail or any threat was extended. The Contd..........
/25/ prosecution have said that the accused Naresh and Jagdish ever threaten to Rajesh @ Talli and this was told by him to another co witness i.e. Anil @ Bablu by the deceased. Anil @ Bablu appeared as PW19 before this court and he stated that he alongwith Rajesh were witness in case FIR No. 66/01 P.S. Jahangir Puri u/s 302/307 IPC but deceased never informed him anything about FIR No. 66/01. In his cross examination he has denied the suggestion that he was informed by Rajesh that accused Mahender Pehalwan has extended threats to him through Naresh and Jagdish to turn hostile in case FIR No. 66/01. He further denied the suggestion that on 28.11.2003 also Rajesh had informed him about the threats given to him through Naresh and Jagdish. As per section 10 of Indian Evidence Act, which does not include statement made by one conspirator in absence of the other with reference to pass acts done in actual course of carrying out conspiracy after it has been completed and such statement is inadmissible in evidence u/s 10 of the Evidence Act. The statement of accused Prem Chand recorded after his arrest by the IO cannot be used for any purpose.
Hence , it is submitted by Ld. Defence Counsel that the entire case of the prosecution is based upon fabricated evidence and false clues.
Contd..........
/26/ The prosecution tried to save the police officials who had fired upon Rajesh @ Talli outside the lock up Tis Hazari. All the accused persons deserves acquittal from this court . In facts and circumstances of the case this court may taken action against the police officials who had fabricated the evidence and prepared this false case against the accused persons.
In view of submission of Ld. APP for State and counsel for accused persons and the authority cited. The case of the prosecution is initially based on the statement of deceased Rajesh @ Talli, who in his statement before death has stated that "......Jo Karib 10-12 din pahle Mahender Pehalwan va Mohd. Akhtar ne apne Jail No. 4 me band sathi naresh va Jagdish dubey se Dhamki Dilwai thi ki ya to tu ish cse me gawahi palat de nahi to tujhey jan se Marwa denge, mujhey pura shak hai ki Prem Chand Uprokat ne mujhey Mahender Pehalwan va sathiyo ke kahne par golia mari hai..." After recording ocular and consistent statement by SI Sanjay Bhardwaj in presence of doctor, it made endorsement on the statement Ex.PW1/B, rukka was prepared and sent to PS through Ct. Amar Pal to get register the FIR. PW SI Sanjay Bhardwaj Contd..........
/27/ deposed in his statement that on 28.11.2003 on receipt of DD No. 17 PP Tis Hazari he alongwith Ct. Amar Pal, SI Ajeet, Ct. Trilok went to Tis Hazari Lock Up where ASI Baldev also reached of his own. He found accused Prem Chand in the captivity of HC Hari Dutt and Bijender and also came to know that the injured Rajesh @ Talli was already removed to HRH by PCR. Two fire arms and ammunition was recovered from possession of accused Prem Chand. ASI Baldev was also remained a the spot to preserve the spot. There were some hitting mark of the bullet on the road. One Alto car was also found parked. On its right side rear window glass the mark of hitting by bullet was present. He collected the MLC at about 12.30 pm when Dr. R.N. Sahai opined that the injured is fit for statement. Thereafter the statement of injured was recorded and rukka was prepared and crime time reached there . Photographer was also called at the spot. The seizure memo of the cloth o injured also prepared. Crime team prepared report. Photographs from different angles were also taken. One pistol was recovered from accused Prem Chand by ASI Baldev Singh who produced the empty shell which was entangled form the barrel. 7 live cartridges allegedly recovered from the possession of accused Prem Chand. No Contd..........
/28/ chance print could be developed. One county made fire arm was also produced alongwith two live round from possession of accused Prem Chand. Sketch of arms and ammunition was prepared and same were seized. Disclosure statement of accused was recorded. Thereafter the Rajbir Singh took over the investigation and SI Sanjay Bhardwaj/PW30 handed over all the documents and custody of accused to him. PW30 SI Sanjay Bhardwaj was being cross examined there are several discrepancies , development and infirmity was detected by counsel for accused persons which has been pin point in their statement's.
In the criminal trial, the prosecution is duty bound to prove its case against the accused beyond all reasonable doubt. Before recording the guilt of the accused, the court is required to satisfy itself that the possibility of the innocence of the accused is ruled out. The evidence produced on the record must convince the mind of the court beyond all reasonable doubt. The golden thread running into the web of criminal justice system has laid down the rule of prudence, that the court must insist higher degree of proof in criminal cases as compared to civil cases. The court cannot record the conviction on suspicion or conjecture. There is presumption of innocence in Contd..........
/29/ favour of the accused and therefore, the burden of proving the charge is on the prosecution. Reference can be made to the State of Punjab Vs. Jagir Singh. (1974) 3 SCC, 277. In the above noted case the apex court inter alia held as under:
" A criminal trial is not like a fairy tale wherein one is free to ie flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty for the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
There cannot be any specific formula for the appreciation of evidence. Law is a science and the application of the same is an art. The provisions of the statute are to be interpreted keeping in view the peculiar facts and circumstances of each case. Each case presents its own features.
The evidence on record is to be considered as a whole irrespective of the fact Contd..........
/30/ that it has been led by the prosecution or accused. Ld. Counsel for the accused has assailed the case of the prosecution on several grounds. I propose to take the issue raised by the defence as follows.
Ld. Counsel for accused has pointed out several lacunas in the investigation and has submitted that the case of prosecution cannot be accepted as it is culmination of tainted investigation. It has been submitted that there are several lacune in the investigation and the Investigation Officer failed to carry out the investigation on the expected lines. Investigation is the main component of the Criminal Justice systems. Fair investigation is the right of the accused and tainted investigation is bound to prejudice the accused. It is also a matter of common knowledge that investigating agency sometime fails to carry out the investigation as per norms. The investigation part in the Criminal Justice system requires lot of improvement. The Scientific investigation is also the need of the hour. In the present case also there are certain lacuna in the investigation but no further investigation was carried out in this regard. However, rejecting the case of the prosecution merely on the basis of defective investigation would amount to paying the premium for the faults of an Investigating Officer. It Contd..........
/31/ would also amount to playing into the hands of Investigation Officer.
Reference can be made to Karnal Singh Vs. State of M.P. (1995) 5 SCC
518. In this case the apex court inter alia held as under:-
" Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused persons solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer, if the investigation is designedly defective"
It has also been held time and again by the superior courts that in the case of defective investigation the case of the prosecution should be examined dehors such omissions otherwise the mischief done deliberately would be perpetuated and justice could be denied to the complainant party. Reference can be made to Ram Bihari Yadav Vs. State of Bihar (1994) 4 SCC.517. In Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920, the apex court dealt with plea of tainted investigation and inter alia held as under:-
" In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective."
Contd..........
/32/ In Paras Yadav and others Vs. State of Bihar (1999 (2) SCC
126) it was held that " if the lapse or omission is committed by the investigating agency, the prosecutions evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice could be denied to the complainant party."
It was also observed in Ram Bihari Yadava Vs. State of Bihar and others( 1998 (4) SCC 517) that " if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice"
Ld. Counsel for the accused has assailed that the deceased Rajesh @ Talli was a dreaded criminal having almost 18 cases on his head. HE was in custody facing trial. On 28.11.2003 he managed to escape from the custody and when he was just going to enter in the Alto Car stationed near Contd..........
/33/ the lockup Tis Hazari, having its face towards the gate Metro Station, he was shot at by the police officials and three bullets entered into his body, which were fired from service revolver. The police knew that they can not escape their liability of killing the under trail, and they further knew that if the bullets fired from their service revolver is taken out from the body they will be in trouble. The police officials joined hands to save themselves and has created a false case by implicating the accused persons.
The prosecution to falsify the defence taken by assailants examined Dr. Ashok Jaiswal who is member of the board of doctors who conducted the postmortem on the body of deceased and in his deposition narrated the nature of injuries on the body of the deceased serious, who stated that injuries are 1- An oval shape lacerated punctured wound on right lumber region and there was a collar abrasion........; 2- An oval punctured lacerated wound on right side lower back........;3- An oval punctured lacerated wound ........ on its outer part margins everted ( Entry wound);4- A split laceration....... margin everted with fat coming out brusin around seen on right side front of chest lower....;5- Gazed abrasion ..... just above public symphysis in mid line.....
Contd..........
/34/ Abdomen & pelvis- on opening the mid line abdominal stitched wound , all the layers of abdomen and peritoneum was found clear cut and stitched in layers site for exploratory laprotomy. On exploring external injury No. 1 it was found to be comunating with the abdominal cavity from behind entered through ninth inter coastal space piercing through inter coastal muscles...... On exploring external injury No. 2, it was found to have entered the abdominal cavity through right iliac fossa piercing the soft tissue just above right iliac bone region with Carbon Monoxide, effect, directed inward and upward and found in the direction.... On exploring external injury NO. 3, it was found to be directed inward and slightly upward entered the abdominal cavity just below the umbilicus piercing the soft tissue.
The injuries as projected by the medical expert cannot be said that the back of the deceased was towards the metro station side and going towards to enter into the alto car. This fact is also being further clarified by the site plan. The site plan Ex. PW30/B mark A denotes that place/point near the lockup gate where the Rajesh @ Talli was shot by accused Prem Chand. The mark B denotes that point where accused Prem Chand was overpowered by HC Virender and HC Hari Dutt and Prem Chand had fired Contd..........
/35/ one shot bullet Mark 4 was present with lead in road and mark C denotes that point where Maruti alto Car No. DL7CB-6566 was parked which was hit by bullet fired by Prem Chand.
PW4 ASI Hari Dutt, who is one of the eyewitness of the occurrence who deposed in his examination in chief that ".... I heard sounds of firing coming from the side of lockup. Immediately we came outside and saw one person having a pistol in his hand was running towards the directions in which we were standing. I also saw one police person on duty outside the gate of lockup Tis Hazari Court, who was shouting "
Pakro-Pakro. HC Vijender who was with me caught hold that person coming with pistol. As soon as HC Vijender Caught hold him, that person fired a gun shot which was towards downside of the road, I immediately snatched the pistol from the man and took a frantic search of him. From the right side dub of this man one loaded pistol of .315 bore was also recovered and from the right side pocket of him 7 live rounds of the pistol and one live round of .315 bore was recovered....." PW5 HC Bijender Singh also recorded statement of PW4 on this aspect. The stand of accused relate essentially to acceptability. In this regard I am of firm opinion that in view of the legal principles set out above, the pales into insignificance if Contd..........
/36/ ocular testimony is found credible and cogent. Thus the basis test would be to appreciate the evidence of the witnesses on the touchstone of credibility and the case of the prosecution cannot be thrown out merely on the plea of defective investigation. The story as cooked up by Defence Counsel does not corroborate with an expert and scientific evidence.
Ld. Counsel for the accused has also pointed out that no foreign body/remnants of fire are projectile was recovered from abdominal cavity despite dissecting out all organs and intestinal loops meticulously, To conceal the bullets from this court the IO did even produce any witness from the team of doctors who had performed the surgery on the body of the victim.
To this effect I am of the view that , it is well settle that the positive evidence in a case is that of eye witnesses who had seen and narrated the entire occurrence. The evidence of a medical man or an expert is merely an opinion which lends corroboration to the direct evidence in the case. Where there is inconsistency between the direct evidence and the medical evidence in respect of the entire prosecution story, that undoubtedly be a manifest defect in the prosecution case. Where ocular evidence is in conflict with medical evidence and presence of eye witnesses at place of Contd..........
/37/ occurrence is doubtful, on failure on part of prosecution to establish that the assailant was accused alone. Conviction of accused was held liable to be set aside. But if the eye witnesses account is found to be trustful and trustworthy , medical opinion pointing out alternative possibilities need not be accepted as conclusive. Importance and primacy should be given to the orality of the trial process. Again, there is no irrebuttable presumption that a doctor is always a truthful witness. His account would require to be appreciated like that of any other witness. Eye witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence including medical evidence as the sole touchstone for the test of such credibility.
It is alleged that the deceased was shot by pistol as recovered from the possession of the accused. The semi automatic pistol is rifled handgun ( i.e. gun that can be held in the hand, as opposed to a firearm, which needs an arm for use) which loads itself from fresh cartridges contained in a vertical magazine located in the hollow handle grip. The trigger must be pressed for every shot fired. The minsomer ' automatic' is often used to describe this gun. The semi automatic pistol utilizes the power gas recoil and backward movement of the sliding breech block upon Contd..........
/38/ discharge in order to remove the fired cartridge case from the chamber, and by it forceful contact with the ejector groove, to cock the hammer in readiness for the next shot. When the trigger is pulled, the hammer, striking and discharging the bullet, pushes the firing pin forward. The firing pin returns to its floating position by a spring. The slide is pulled forward by another spring and the bolt strips the cartridge from the magazine and place it into the chamber. A spring activated magazine follower forces fresh cartridges up in the magazine as other are expended.
The revolver is a repeating pistol with a rifled barrel. The grip is solid and the weapon is designed as a handgun. It is distinguished from other handguns by the presence of a revolving cylinder containing multiple firing chambers, each accommodating a single cartridge. The shall shell is not automatically ejected in a revolver.
Appearance of shotgun entry wounds is that in case where the muzzle is placed against the skin in a soft part of the body such as the neck, chest abdomen or an extremity, the wound will be single, circular and of a seize close to the size of the bore of the weapon. The edges might show creation. Where the skin is elastic the size might be smaller than the bore diameter.
Contd..........
/39/ The Exit wound produced by a shotgun pallet is rarely seen in the trunk. Such wounds might be seen in the head and neck region or in the limbs. At time in contact would of the head. The exit wound might involve disruption of the head and expulsion of parts of the brain. The gapping skull defect and extruding brain matter are characteristic features of the so called burst head. At times where the shot is close to the exit point in the skin, it might be felt on palpation as a hard subcutaneous mass.
FSL result with respect to the pistol .30" caliber and its cartridge 7.62mm/30". The individual charestric of firing pin marks and breech face marks present on evidence fired cartridge case exhibit EC1 and on test fired cartridges cases marked TC1 and TC2 were examined and compared under the comparison microscope model leica DMC and were found identical. Hence the exhibit EC1 has been fired through the pistol .30" caliber marked exhibit F-1 above. Therefore, in these circumstances and the evidence brought on record there should not be any question of available of empty cartridge from the body of deceased. Evidence of the witnesses are to be appreciated in its totality. The defence wants this court to discard the testimony of the witness on this ground. The question is whether this can be a ground to reject the evidence in total. Before proceeding further I would Contd..........
/40/ like to remind myself that certain principles regarding appreciating of evidence are required to be kept in mind. While appreciating the evidence, the court is required to separate the grain from the chaff and accept that appears to be true and rejects the rest. The maxim " falsus in uno falsus in omnibus" is not applicable in our context. Reference can be made to Baba Hazi Vs. Stte of Kerala, AIR 1974 SC 902 and State of Jammu and Kashmere Vs. Hazara Singh, AIR 1981 ,SC 452.
In his contention Ld. Defence Counsel stated that there are material contradiction in the deposition of the prosecution witnesses and they have deposed different story with respect to the blood detected from the spot or from the cloths of the injured. None of the photographs has been shown the blood and none of the memo with respect to the blood stain earth was prepared . However the prosecution witnesses have stated that they had seen the blood at the place where the injured was lying. It is also being stated that the some of the witnesses have stated that the injured was removed to the hospital by PCR van and HC Sombir has stated that injured was removed by jail van. The blood clothes was kept in white colour polythene however the the pullanda received from FSL in gunny bag.
Contd..........
/41/ Undoubtedly, there are contradictions regrading the time and again recording of statements of the witnesses by the police. The question is whether this contradiction is sufficient enough to discard the testimony of the prosecution witnesses. It is matter of common knowledge that some people have a very poor idea about the time and they generally tend to forget the time gap or particular time regarding the occurrence of an event. This tendency becomes more prominent when the witnesses are asked about the same after the expiry of couple of years. The court cannot also be ignorant of the practical situations in the real life.
It is matter of record that deceased Rajesh @ Talli was shot out near the gate of lockup and accused Prem Chand was apprehended by the police officials who were detained in the judicial lockup, they are the ear and eye of the event as happened in their presence. They have apprehended the accused alongwith the weapon and while firing the same. Two police officials has also been injured while Prem Chand tried to escape and got conducted their MLC, which is on record. The injured was removed to the hospital is need of the hour it a minor discrepancies in what manner he has been removed from the spot. However, it is fact that injured Rajesh @ Talli has sustained bullet injuries which was caused by pistol as recovered from Contd..........
/42/ the possession of accused. It is also matter or practical that the DAP officials who has escorted with the hard core criminal having been escorted with high securities and police officials having arms also. They were also being provided the weapon and ammunition. The prosecution witnesses have been made corroborative statement on oath and they have not been sattered as stated in in the cross examination. In order to consider argument of the defence it would be essential to test the creditworthiness of the prosecution witnesses examined as well as statement of the deceased recorded as soon as before his death.
It is impossible to find out the testimony of a witness which is totally free from any infirmity or embellishment. The endeavor of the court should be to find out whether the evidence of the witness, if read as a whole, has a ring of truth or not. Minor discrepancies on trivial matters, which does not go to the root of the case should be ignored. Undue importance given to contradictions, which does not go to the root of th case is not desirable as observed in a case titled as State of U.P. Vs. M.K. Anthony, AIR1995 SC
48. Ld. Counsel for the accused persons also cross examined the eye Contd..........
/43/ witnesses with respect to their contradiction and improvements made in the statement recorded in the court. No doubt, the witnesses have made certain contradictions and have also made certain improvements, while making the statement before the court. The question is whether those contadictions and improvement have made the witnesses totally unreliable. I consider that those contradictions and improvements are not on the material points. It is not every contradiction or improvement, which should be given importance. Only those contradictions and improvements should be given importance, which totally belies the version of the witness, or the statement made before the police and the statement made before the court cannot stand together. Reference can be made to Tehsildar Singh Vs. State of U.P. AIR 1959, SC 1012.
Ld. Counsel for the accused persons has further contended the prosecution has prepared a sketch of pistol and 8 live cartridges, allegedly recovered from accused Prem Chand and the cartridges on measurement was found to be of 0.9 cm , diameter (9mm) vide Ex. PW4/a. PW25 Inspector Rajbir Singh during his cross examination dated 14.11.2007 said that he cannot say if there is difference of size of bullets of police personal and Contd..........
/44/ other private persons. The size of cartridges use in service pistol is of 9 mm. The size of cartridges as mentioned in the seizure memo ex.PW4/B has been shown as 0.9 cm. He had collected FSL report . It is written in the FSL report that the size of the bullet sent to FSL was 7.62 is of inner circle of bullet cartridge.
With the respect to the ambiguity regarding seizing of cartridges PW25 Insp. Rajbir Singh in his examination in chief has stated that the case file was assigned to him for further investigation as section 302 has been added to the charge sheet after the death of deceased Rajesh @ Talli on 28.11.2003. The police official have also being assigned the pullanda of revolver and cartridge wherein it is mention the size of cartridge as 9cm. The 9 millimeter is converted in to the centimeters is to be multiplied by 10 that change the ratio. As such ration of 9cm is comes to 9o mm. The size of the bullet as sent to the FSL was 7.42 mm which is exactly diameter of inner part of bullet .30 caliber mark and Ex. F-1 that is also being clarified from the FSL report dated 18.1.2005. There is no ambiguity in size of diameter of bullet. The seizure memo reflect the other circumstances, FSL reflect that inner circle surface as projector come out from the pistol.
The court in the present system can not substitute its own views. Nor can it decide the cases on conjectures and surmises. The finding of the Contd..........
/45/ court has to be based upon the testimony of witnesses. The testimony of an eyewitness can be disbelieved, if either the presence of such witness itself is doubtful or the testimony of such witness as a whole gives an impression of being a false statement. There has to be strong reasons for the rejection of a witness. The witnesses are the eyes and ears of the criminal justice system. They are the heart and soul of the case of the prosecution. Two persons will not behave similarly in similar situations. Therefore, there cannot be any straight jacket formula for the appreciation of evidence of a witness. The statement of an eye witness can be discarded only if its totally unbelievable. The deceased Rajesh @ Talli has died after giving his statement, which cannot be discarded as the statement of deceased Rajesh @ Talli was recorded by IO in presence of the doctor R.N. Sahai. The deceased Rajesh @ Talli has deposed before the IO and after being his statement recorded in presence of Dr. R.N. Sahai, the deceased died. The said doctor is Sr. Medical Officer and also Gazetted Officer and to the suggestion of the doctor the patient was fit for statement as such dying declaration was recorded which has to be relied and trustworthy. For the purpose of recording the dying declaration a certification from the competent authority is to be important for recording dying declaration either in narration form or in question Contd..........
/46/ answer form and same cannot be discarded. The dying declaration need not rejected, only because it is not recorded in question and answer form, it cannot be discarded. However, in another decision apex court has held that it must generally be in question and answer form . But the fact that it consists of a few sentences in actual words of the maker, would not be a ground to doubt its reliability. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and give the version of the incident as it has been perceived by the victim. As observed in a case titled as State of Karnataka V Shariff ( 2003) 2 Scc 473.
Legally there may be no bar against recording of dying declaration by the police officer , however, it is safe as well as prudent to get it recorded through independent persons or the same be recorded in their presence and attested by them. In case this course in not followed, the dying declaration requires strict corroboration before, it is accepted in evidence. In the instant case the deceased undisputedly died after recording his statement. The evidence of the doctor with regard to the state of mind was not challenged in the cross examination. That being so it should be held that deceased was in a fit state of mind to make a declaration. It was held that non -recording of dying declaration by Magistrate was not fatal.
Contd..........
/47/ On death of injured subsequently, the statement recorded by police as FIR can be used as dying declaration . Where it is corroborated by Medical Officer attending on injured. As observed in a case titled as Jaldar @ Jalladin V State of Rajasthan 2004 CrLJ 2574 (Raj): and Pradeep V. State 2004 (1) Kar LJ 314 ( Kant.) In another case titled as Bhagirath Vs. state of Haryana A 1997 SC 234 ,242 : 1997, it was observed that " where the Head Constable, on getting message from doctor that a person with gunshot injuries had been admitted in the hospital, rushed to the hospital and after making entry in the police register and obtaining certificate from the doctor about the condition of the injured, he too statement of the injured for the purpose of registering a case and without having intention to record the statement as dying declaration recorded by the Magistrate but the Magistrate was not available, simply because the doctor did not listen the statement made by the injured, it cannot be held that the statement recorded by the Head constable was unfounded and cannot be relied on .
Here in the present case the deceased had not received any injuries on his head region and doctor has certified him as fit for statement and he has given a cogent and coherent and direct answers to the IO who Contd..........
/48/ had recorded dying declaration in presence of the Dr.R.N. Sahai. Dr. R.N. Sahai also examined in the court as PW1 who testified that he has given a report with respect to the state of mind of injured Rajesh @ Talli. Certificate to this effect is Ex. PW1/A. The deceased Rajesh @ Talli was examined by as soon as after giving the opinion. The opinion is given in presence of IO on his request. IO recorded the statement he put his initial at point 'A' and the statement Ex. PW1/B was recorded before him. Sh Rajesh @ Talli signed it at point B in his presence and in cross examination it is denied that patient was never in condition to made the statement. It is also denied that injured was not in position to give statement. It is also denied that the statement of the patient was not recorded in his presence or that he has obliged the IO by counter signature the statement. PW30 SI Sanjay Bhardwaj stated in his examination that at 12.30 pm he met Dr. R.N. Sahai who opined the injured as fit for statement. Endorsement to this effect was also obtained on his MLC. Thereafter he recorded the statement of Rajesh @ Talli in the presence of Dr. R.N. Sahai. After completing the statement he also obtained the signatures on Ex. PW1/B at point A. Rajesh @ Talli signed the statement Contd..........
/49/ in presence of doctor at point B. In cross examination of the defence counsel it is denied that he was present at the spot from 12.25 pm to 2.50 pm and further admitted the he collected the MLC got endorsed from the doctor that the patient is fit for statement and he recorded statement of Rajesh @ Talli in hospital. It is also admitted that he did not call the SDM to record the statement of injured neither mentioned in Ex.PW1/A that it was recorded under the supervision and control of the doctor. There is no suggestion given to the IO that the statement was manipulated or not recorded in the correct form. In these circumstances upon the deposition of the witness no inference can be drawn that there is any manipulation for recording the dying declaration. The present statement is first and last statement of the deceased Initially the case was registered for offence u/s 307 IPC as such for the purpose of recording FIR statement of injured was recorded, treated as complaint, nobody was aware that injured would be died after recording of his statement . The person who was at death bed and was fighting with his injuries what was the motive to give a false statement and statement recorded by the IO SI Sanjay Bhardwaj in true and free from any effort to induce the deceased. The statement made by the deceased is Contd..........
/50/ also coherent and consisted on the material points. There is no time gape between the statement and the death of the deceased. Dying declaration is also being corroborated by the other ocular evidence including the apprehension of the accused Prem Chand from the spot of recovery of two fire arms from his possession, the name of the assailant was also in the initial statement of the complainant which has been proved either circumstantial evidence and the medical evidence, which cannot be ignored or discarded merely on the ground that same was recorded by the SI Sanjay Bhardwaj.
The other contention of Ld. Defence Counsel that the IO claims that he alongwith Ct. Amar Pal, Ct. Trilok went to Hindu Rao Hospital, recorded the dying declaration, prepared rukka, and sent Ct. Amar Pal for registration of the case and after that he prepared the seizure memo of the parcel containing clothes of the injured Ex. PW17/A. He also seized the personal search items of Rajesh @ Talli vide seizure memo Ex. PW17/B and after recording the statements, he came back to the spot. SI Sanjay Bhardwaj further stated that he received the copy of FIR at the spot. So, in the hospital he could not have the FIR number and the documents prepared there in the hospital could not bear the FIR number because at that time the Contd..........
/51/ FIR was not yet registered. But in the cross examination, the IO SI Sanjay Bhardwaj deposed that, he received copy of FIR at the spot i.e. Tis Hazari Lock up after his return from the hospital. In Ashok Kumar Vs. State 2000 1 AD ( Delhi ) 10 it was held that the personal memos and the seizure memos bears FIR numbers on the top of the aforesaid document is in the same ink and in the same handwriting which clearly indicates that these documents prepared at the same time. No explanation given as to in what circumstances number of FIR was appeared on the top of the document.
In a criminal trial any irregularity or illegality during the course of investigation in collecting materials or otherwise will not affect the trial on the basis o material placed before court unless un-justice or prejudice thereby caused and the materials are unacceptable in evidence as observed in 1989 Cri.L.J. 1501.
In a murder case the contradiction between ocular and medical evidence. Murder taking place in rickshaw - Eye witness traveling alongwith deceased depositing that deceased received injury in his back - Medical evidence however showing that deceased received gun shots in chest and throastic region. It was held that witness having seen the exist would on back of deceased bleeding, though that he had been hit in the back.
Contd..........
/52/ His evidence could not be rejected on that ground as observed in AIR 1997 SC3818. The another contention raised by Ld. Defence Counsel with regard as to whether injured was taken by PCR Official or by the Jail Van. PW38 HC Somvir stated that he took the injured to the hospital in the jail van. As per DD No. 17 P.P. Tis Hazari information was given that the injured was taken in the PCR Van.
On both these contention, I am not convinced that the plea as raised by Ld. Defence Counsel on the basis of which the accused persons can grant benefit of doubt or recording particular of the FIR on the top of the document like seizure memo prepared in the hospital or to injured taken by PCR van or jail van. The main question is with respect to the genuineness of the documents. The cloth of the injured was handed over in the sealed condition to the IO by doctor who prepared the MLC and the same was taken into possession against the seizure memo. The particulars of the FIR/case can be mentioned on the document while reached by the IO to the police post or at the later stage or with same ink or different ink does't affect on the genuineness of the document. The Answer is no since the seizure of the document from the hospital is undisputed fact. It is not the case of the prosecution that other document doctor concerned has not Contd..........
/53/ handed over the sealed pullanda to him or the sealed pullanda was handed over later stage by the other family members of the deceased . Section 64 of the Indian Evidence Act 1874 provided to prove the document by preliminary evidence by the author of the document who prepared it. To prove the geneses of the document has been proved by proving signatures and handwriting of the person who alleged to have been signed or written the document produced. Mere production and making of a document as exhibit by the court cannot be held to by due proof of its contents, it execution has to be proved by admissible evidence, that is , by the evidence of those parsons who can vouchsafe for truth of the facts in issue. The signatures and handwriting on the document is not disputed as the same does not make any impact on the authenticity of said document therefore aforesaid plea taken by Ld. Defence Counsel is vague and does not have any weight age.
With respect to the another plea that injured was taken to Jail van or by PCR this also a minor discrepancies which has been testified by the deposition of the witnesses. The injured has been taken to HRH by the Government Official vehicle. It does not make any affect on the case of the Contd..........
/54/ prosecution on the basis of minor defect on the investigation and the minor contradiction cannot be rejected which will tantamount paying premium for the fault of the IO and playing in the hand of the IO. It has been held time and again by Apex Court that in case of the defective investigation case of the prosecution should not be thrown away on such omission otherwise the mischief done deliberately would be perpetuated and justice could be denied to the complainant party.
Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspect of the facts deposed. The witnesses cannot be straightway condemned and their evidence cannot be discarded in its entirety. The testimony of witnesses being cogent, credible and trustworthy cannot be totally wiped out because of only circumstance that they were accused in counter -case. In a case titled as State (NCT of Delhi) Vs. Navjot Sandhu, AIR 2005 SC3820 (3886), wherein it was held that " in terrorist attack on parliament, hide outs furnished links between the accused and the deceased terrorist. Testimony of witness running hotel where they stayed was found to be Contd..........
/55/ reliable, it could not be discarded on the ground that he did not produce record of their stay." In another case titled as Bhargavan V. State of Kerala, AIR 2004 SC 1058 (1066) it was observed that " where witness took the deceased to the hospital, the non disclosure of names of assailants by him to the doctor who treated deceased is of no consequence."
The victim and accused were know to the witness. His evidence would be material and cannot be criticized on ground that as witness was knowing the father of the deceased, so he is interested witness, as observed in a case titled as Sandeep V. State of Haryana, AIR 2001 SC 1103 (1108). In another case titled as Siva Kumar V. State by Inspector of Police, AIR 2006 SC 653 (657) it was observed that " Doctor who had conducted postmortem examination of deceased categorically stated that foreign body seen through X-ray could not be recovered despite great effort made in this regard during postmortem. He noticed that penetrating injury was in vital organ of chest part. Hence in view of the said statement non recovery of pellets from body of deceased during postmortem Contd..........
/56/ examination was not very material so as to discredit entire prosecution case.."
Normal discrepancies in evidence are those which are due to normal errors to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected categorized. While normal discrepancies do not corrode the credibility of the party's case material discrepancies do so. Same inconsistencies of a minor nature in evidence can be regarded as natural, giving more details while deposing before Sessions court are not improvements of such a nature as would create any doubt regarding the reliability as a witness as observed in a case titled as R. Basu V. State of W.B. AIR 2000 SC 908 (913).
There is no principle of law that without corroboration by independent witness their testimony cannot be relied upon. The resumption that person acts honestly applies as much in favour of police personnel as to other person. It is thus not property judicial approach to distrust and suspect Contd..........
/57/ them without good grounds. Evidence of police officers cannot be discarded only because they are police officers. Statement made by the police officers as witnesses should be given same wight as statement made by other witnesses.
Ld. Defence Counsel further contended that there is no criminal conspiracy as defined u/s 120A IPC. There is no evidence to show as to when and where the conspiracy was hatched. There is also no evidence on record as to where and when any of the conspirators met to hat this conspiracy. There is also nothing on record to show that accused persons met any of the accused persons at any time prior to the alleged murder . There is nothing on record to show that there was any communication r attempt to communicate between the accused persons for the purpose of furthering the objects of the conspiracy. PW25 has categorically stated that he did not collected any evidence that there was some acquaintance and friendship between Prem Chand and Mehender Pehalwan and also admitted that he has not investigated the fact that accused Mahender Pehalwanhas ever visited Naresh and Jagdish in police custody or in Tihar Jail or accused Mehender Pehalwan had given anything in writing to Naresh and Jagdish for giving threats to deceased Rajesh @ Talli. It is further Contd..........
/58/ contended that Anil @ Bablu appeared as PW19 before this Hon'ble court and he stated that he alongwith Rajesh were witness in case FIR No. 66/01 police station Jahangir Puri, under section 302/307 IPC but Rajesh did not inform him anything about case FIR No. 66/01. He says that he was in j ail when he received the information about the death of Rajesh @ Talli. The PW19 Anil @ Bablu has categorically stated that Rajesh @ Talli never informed him about any threat to his life from the accused persons. In his cross examination he denied the suggestion that he was informed by Rajesh @ Talli deceased that accused Mahender Pehalwan had extended any threat through Naresh and Jagdish and to turn hostile in case FIR No. 66/01 police station Jahangir Puri, Delhi. He further denied the suggestion that on 28.11.2003 also Rajesh @ Talli deceased had informed hims about the threats given through Naresh and Jagdish also and PW23 Subhash Sharma, Deputy Superintendent Jail No. 4 has categorically stated that " To my knowledge there is no complaint made by Rajesh @ Talli to any staff of the jail of any threat to him given by Naresh and Jagdish". He has accepted that Rajesh @ Talli and accused Jagdish and Naresh did not state that they were together in same ward. Hence whatever is there, in the Contd..........
/59/ alleged dying declaration that has been belied by the circumstantial evidence in this case.
With respect to the contention raised by Ld. Defence Counsel to criminal conspiracy hatched by accused Mahinder Pehalwan alongwith other two associates in FIR No. 66/01 of P.S. Jahangirpuri u/s 302/307 IPC in which the deceased Rajesh @ Talli was witnesses. The deceased has himself stated in his statement recorded by the IO SI Sanjay Bharsdwaj.
The elements of a criminal conspiracy have been stated to be accomplished (b) a plan or scheme embodying means to accomplish that object © an agreement or understanding between two or more of the accused persons where by they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement , or by any effectual means in the jurisdiction where the law required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is compete when the combination is framed. From this it necessarily follows that unless the statue so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Therefore the essence of criminal conspiracy is an agreement to do Contd..........
/60/ an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. To bring home the charge of conspiracy within the ambit of section 120B , it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence.
To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of goods or services in question may be inferred from the knowledge itself. This part the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use.
Direct evidence to prove conspiracy is rarely available. Therefore circumstances proved before, during and after occurrence has to be considered to decide on each complicity of the accused. The conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and it objects have to be inferred from the circumstances and the conduct of the parties. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. In a joint trial, care must Contd..........
/61/ be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other . Cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course , each one of the circumstances should be proved beyond reasonable doubt as observed in a case titled as State V Navjot Sandhu 2005 Cri LJ 3950 (SC).
It was further observed in judgment ( Supra) that " A few bits here and a few bits there was which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused.
In Parliament attack case, appellant Afzal was proved to be a partner in the conspired crime of enormous gravity. The circumstance clearly established that he was associated with the deceased terrorist in almost every act done by them in order to achieve the objective of attacking Contd..........
/62/ the Parliament House. His conduct and actions antecedent contemporaneous and subsequent, all pointed to his guilt and were only consistent with his involvement in the conspiracy to commit terrorist acts. The conspiracy to commit the offence of murder in the course of execution of conspiracy was well within the scope of conspiracy to which appellant Afzal was a party. Therefore, he was held liable to be punished under section 120B read with section 302 with sentence of death. Criminal conspiracy cannot be inferred from literature and correspondence which advocate anti social activities unless such writings establish a ink between accused and accused so as to involve the entire group in a charge of criminal conspiracy..
Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and times without a reasonable link. Suspicion, however strong, cannot take the place of legal proof. The mere circumstances that the three accused appellants were caught together for ticket less traveling, presumably so that this circumstance might serve as a plea of alibi , cannot lead to the inference that they had hatched the conspiracy to commit multiple murders as observed in a case titled as State Vs Moti Ram Air 1990 SC 1709.
Contd..........
/63/ Mere association, however, strong cannot make the members, members of the conspiracy without more. In case of assassination of former Prime Minister of India Rajiv Gandhi, wireless message showing that only main accused, conspirator were knowing about the object of conspiracy. Co accused in his confession said that he has a strong suspicion that the target of the accused persons was Mr. Rajiv Gandhi. The court held that it would not make him a member of conspiracy. Mere fact that the main accused sent message about arrest of accused persons held not sufficient to draw an inference of conspiracy against them as observed in a case titled as State Vs Nalini AIR 1999 SC 2640.
The Privy Counsel in a case titled as Daniel Youth V King AIR 1945 PC 140 warned that in a joint trial, care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other. In Nalini, Wadhwa. Hon'ble Mr. Justice pointed out the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. It was observed that there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to Contd..........
/64/ be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy.
In the present case PW25/ IO in his cross examination dated 20.7.2007 had stated that he has not collected any evidence to the effect that there was some acquaintance or friendship between assailant Prem Chand and Mahender Pehalwan. He further accepted that he has not investigated the fact that Mahender Pehalwan ever visited Naresh or Jagdish in the police custody or visited them in jail. He further accepts that he has not collected any evidence that Mahender Pehalwan had given anything in writing to Naresh & Jagdish for giving threats to Rajesh @ Talli.
PW19 Anil @ Bablu stated that he along with Rajesh were witness in case FIR No. 66/01 police station Jahangir Puri, u/s 302/307 IPC but deceased Rajesh @ Talli did not inform him anything about the said FIR. He stated that he was in Jail when he received the information about the death of Rajesh @ Talli. He further stated that accused Rajesh @ Talli never informed him about any threat to his life from the accused. He denied the suggestion that he was informed by Rajesh that accused Mahender Pehalwan has extended threats to him through Naresh and Jagdish to turn hostile in said FIR. He has also denied that on 28.11.2003 deceased Rajesh Contd..........
/65/ @ Talli had informed him about the threats given to him through the accused Naresh and accused Jagdish.
Further PW23 Subhash Sharma, Deputy Superintendent Jail No. 4 has stated that " to my knowledge there is no complaint made by Rajesh @ Talli to any staff of the jail of any threat to him given by Naresh and Jagdish". He has accepted that deceased Rajesh @ Talli and accused Jagdish and Naresh did not stay together in same ward. In case titled as State of Gujrat Vs. Mohd. Atik and ors. 1998 (4) Supreme Court cases 351 it was held that " post arrest statement made by a person to police, whether by way of confession or otherwise, relating to his involvement in the conspiracy", would not come within the ambit of section 10 of Evidence Act." Hence , the statement of accused Prem Chand recorded after his arrest by the Investigating Officer cannot be used for any purpose to attract the provision of section 120B IPC.
To establish any criminal conspiracy communicated with the facts or from the set of fact exhibited by different accused persons at different place and time without a reasonable link even the evidence led by prosecution to this effect also does not fulfilled the ingredients of section 120A IPC. The prosecution unable to establish that there was any agreement Contd..........
/66/ to commit or cause to be done illegal act or an act which is not legal or by illegal means. Therefore, charge u/s 120 B cannot be substantiated against the accused persons namely Prem Chand S/o Sher Singh, Mehender Pehalwan S/o Chandgi Ram, Jagdish S/o Parmanand and Naresh S/o Chunni Lal. Therefore, they have been acquitted from the charges u/s 120 B. IPC.
The prosecution has also failed to prove the charge u/s 506/34 IPC against the accused Jagdish @ Dava and Naresh and there is no incriminating evidence found on this score also. Hence accused Jagdish @ Dava and Naresh are also hereby acquitted for offence u/s 506/34 IPC.
The evidence led by prosecution with respect to the charges leveled against the accused Prem Chand for the offence u/s 302 IPC and 25/27 of the Arms Act is proved by the prosecution beyond all reasonable doubt as the testimony of the prosecution witnesses are cogent, trustworthy, believable and corroborative. Evidence led by prosecution witnesses are consistence with ocular evidence of deceased Rajesh @ Talli which inspired confidence and there is no oral or documentary evidence to disbelieve and disprove the prosecution witnesses in any manner whatsoever. Therefore, the accused Prem Chand S/o Sher Singh is held guilty and convicted for offence punishable u/s 302 IPC and 25/27 of the Arms Act. ANNOUNCED IN THE OPEN COURT TODAY ON 08.07.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 513/08 State Versus Prem Chand S/o Sher Singh, R/o 109, village, Mukhmailpur, P.S. Alipur, Delhi.
Case arising out of FIR No. 331/2003 U/S: 302/120B IPC & 25/27 of Arms Act.
P.S. Subzi Mandi ORDER ON SENTENCE:
Present: Sh. Zafar Khan, Additional Public Prosecutor for State.
Accused/Convicted Prem Chand produced from J/C with counsel Sh. Rajesh Khanna and Sh. Nitin Sharma, Advocate.
There were 4 accused persons in the FIR No. 331/03 of P.S. Subzi Mandi u/s 302/201/120B IPC and 25/27 of Arms Act namely Prem Chand, Jagdish, Naresh and Mahender Pehalwan. The accused Jagdish, Naresh and Mahender Pehalwan have been acquitted for want of sufficient evidence against them. However, the prosecution has proved its case beyond reasonable doubt against the accused Prem Chand , who is convicted u/s 302 IPC and 25/27 of Arms act vide separate judgment dated 8.7.2009.
Heard on point of sentence.
Contd..........
/2/ Ld. APP for State while arguing the matter, submitted that the accused Prem Chand had committed murder of deceased Rajesh @ Talli in a well planned and organized manner with the help of other associates. The convicted Prem Chand has already been convicted in FIR No. 275/88 u/s 302 IPC of P.S. Subzi Mandi wherein he had been released on parole and after expiry of parole period he did not surrender before the competent authority and absconded. The present crime is one of the gruesome murder committed by him of the deceased Rajesh @ Talli without any provocation and it needed a deterrent punishment and submitted that present case is rare of the rarest case in which only sentence of death would meet the ends of justice.
It is further submitted by Ld. APP t hat the convicted Prem Chand has committed the cold blooded murder of a young boy deceased Rajesh @ Talli and, therefore, he nipped in bud a blossing human life, for fulfilling their evil intentions. It has further been submitted that accused brought bad name in the society. It is further submitted that accused has committed the pre meditated cold blooded murder of the deceased Rajesh @ Talli.
Contd..........
/3/ In support of his contention Ld. APP for State has relied upon Prajeet Kumar Singh Vs. State of Bihar 2008 III AD (Cr.) (S.C) 41. In this case, the Apex Court upheld the capital punishment of an accused holding that the case fell in the category of rare of the rarest cases.
Per contra, Sh. Rajesh Khanna, Ld. Counsel for the accused Prem Chand has submitted that the present case does not fall in the rare of the rarest case. Ld. Counsel for the accused has relied upon Bachan Singh Vs. State of Punjab AIR 1980 SC 898 and Machi Singh Vs. State of Punjab AIR 1983 SC 957. It has been submitted that the Apex court, held that capital punishment can be awarded only in the rare of the rarest case, and the present case does not fall within he category of rare of the rarest cases.
It is further submitted by Ld. Counsel for the accused/convicted Prem Chand that the mandatory sentence of death with no discretion left to the court to have regard to the circumstances which led to the commission of crime is arbitrary, irrational and ultra vires Article 14 and 21 of the Constitution of India.
I have heard submission of Ld. APP and Ld. Counsels appearing on behalf of accused/convicted Prem Chand and also carefully gone through the authority cites.
Contd..........
/4/ In a case titled as Mahabir Gope AIR 1963 SC 118, the Supreme Court has observed that "section 303 IPC cannot be confined only to cases where a person undergoing sentence of imprisonment for life actually and in fact himself commits an act which results in the death of the victim. This section would apply even in cases where a person undergoing sentence of imprisonment for life is convicted either under section 302 read with section 34 or under section 302 read with section
149. The reason for th is conclusion of the Supreme Court is that where a person is convicted under section 302 red with section 34, it must be held that he has committed the murder as much as the person by whose act the victim was killed and when a person is convicted under section 302 read with section 149 , the true legal position is that in law he must be deemed to have committed the murder as much as the actual murderer has." The Apex Court has declared offence u/s 303 IPC as unconstitutional in the aforesaid case.
No doubt , it was a ghastly murder and it deserves all condemnations. The deceased Rajesh @ Talli was also a bed character and involved in the criminal offences accused. The fact is that the accused has Contd..........
/5/ taken life of the deceased Rajesh @ Talli in a cold blooded manner. However, it has to be seen whether this case falls within the category of definition of rare of the rarest case or not. For this we have to revert back to the preposition laid down by the Apex Court in land mark cases of Bachan Singh Vs. State of Punjab and Machi Singh s. State of Punjab ( Supra).
In Bachan Singh Case ( Supra), the apex court interalia held as under:
" The provision of death penalty as an alternative punishment for murder in section 302, Penal Code is not unreasonable and it is in the public interest. Therefore, it can be held that the impugned in S.302 violates neither the letter or the ethos of Art. 19 of the Constitution. The Penal Code Particularly those of its provisions which cannot be justified on the grounds of reasonableness with reference to any of the specified heads such as " public order" in Cls. (2), (3) and (4) is not a law imposing restrictions on any of the rights conferred by Art. 19 (1). There are several offences under the Penal Code such as theft, cheating, ordinary assault, which do not violate or affect 'public order'. These offences injure only specific individuals as distinguished from the public at large. It is by now settled that ' public order' means 'even tempo of the life of the community' that being so, even all murders do not disturb or affect ' public order'. Some murders may be of purely private significance and the injury or harm resulting therefrom affects only specific individuals, and, consequently, such murders may not be covered by " public order" within the contemplation of Cls. (2). (3) and (4) of Art. 19. Such murders do not lead to Contd..........
/6/ public disorder but to disorder simpliciter. Yet, no rational being can say that punishment of such murderers is not in the general public interest. It may be noted that general public interest is not specified as a head in Cls. (2) to (4) on which restriction on the rights mentioned in Cl. (1) of the Article may be justified. The real distinction between the areas of ' law and order' and 'public order' lies not merely in the nature of quality of the act, but in the degree and extent. Violent crimes similar in nature but committed in different contexts and circumstances might cause different reactions. A murder committed in given circumstances may cause only a slight tremor, the wave length of which does not extend beyond the parameters of law and order. Another murder committed in different context and circumstances may unleash a tidal wave of such intensity, gravity and magnitude, that its impact throws out of gear the even flow of life. Nonetheless the fact remains that for such murders which do not affect " public order", even the provision for life imprisonment in Section 302, Indian Penal Code, as an alternative punishment, would not be justifiable under Cls. (2), (3) and (4) as a reasonable restriction in the interest of ' public order'. Such a construction must, therefore, be avoided." Similarly , in Machi Singh Vs. State of Punjab ( Supra), It was interalia held as under:-
" The extreme penalty for death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the ' Offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided , the option to impose sentence of imprisonment for life can not Contd..........
/7/ be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the opinion is exercised. In order to apply these guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
In State of Punjab Vs. Gurmej Singh 2002 CRI.L.J. 3741. it was interalia held as under:-
" A number of factors, which are to be taken into account while imposing penalty of death, for illustration are the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed is for satisfying any kind of lust, greed or in pursuance of any organised anti social activity or by way of organised crime drug trafficking or that like or the chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future or commission of murder which may be shocking to the conscience."
It has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no Contd..........
/8/ formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating Contd..........
/9/ circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
The following guidelines will have to be applied to the facts of each individual case where the question of imposition of death sentence arises (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the " offender" also require to be taken into consideration alongwith the circumstances of the " crime". (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether Contd..........
/10/ inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercises. In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances: (1) when the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of Contd..........
/11/ trust, or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Case or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of " bride burning " or " dowry death" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, as observed in a case titled as Lehna Vs. State of Haryana 2002 SCC (Cri) 526.
No doubt , it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare case. It is also difficult to hold that appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue Contd..........
/12/ criminal acts of violence as would constitute a continuing threat to the society. Thus, considering the facts and circumstances the accused/convicted Prem Chand S/o Sher Singh is sentenced with imprisonment for life and also directed to pay fine of Rs. 50,000/- , in default of payment of fine, he will undergo SI for six months u/s 302 IPC and no separate sentence is awarded for offence punishable u/s 25/27 of Arms Act. At the same time accused/convicted Prem Chand be not released on parole unless he served 20 years of imprisonment including period already undergone by him. Benefit of section 428 Cr.P.C is also awarded to accused/convicted.
Copy of this order as well as of judgment be given to accused /convicted free of cost.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 13.7.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI