Delhi District Court
State vs . (1) Vishnu Swaroop on 25 July, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 79/2011
Unique Case ID No.: 02404R0095412008
State Vs. (1) Vishnu Swaroop
S/o Sh. Babu Ram
R/o House No. 125,
Nihal Vihar, Near Laxmi Park,
Nangloi, Delhi.
Original resident of:
Village Rampur Kanwar,
PS - Paffund District, Orriya,
Uttar Pradesh.
(Convicted)
FIR No.: 797/07
Police Station: Paschim Vihar
Under Sections: 302 IPC & 27 Arms Act
Date of committal to Sessions Court: 29.03.2008
Date on which judgment was reserved: 4.6.2012
Date on which judgment announced: 13.7.2012
JUDGMENT:
(1) As per allegations, on 19.11.2007 at about 1:50 PM behind Syndicate Bank, B2 Block, DDA Market, Paschim Vihar, Delhi the accused Vishnu Swaroop committed murder of Kanwar Singh Bhandari S/o Sh. Gyan Singh. It is also alleged that the accused used his licensed gun St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 1 No. 9047 for committing the murder of deceased Kanwar Singh Bhandari. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 19.11.2007 DD No. 40B was received at Police Station Paschim Vihar regarding shooting of a person by a Chowkidar near Syndicate Bank, B2 Main Market, Paschim Vihar pursuant to which ASI Swaroop Singh along with Ct. Rajesh reached the spot where the dead body of Kanwar Singh Bhandari was found. At the spot the peon of the bank namely Ram Kanwar and servant at Tea Shop namely Ram Pal met the police and produced the accused Vishnu Swaroop along with a gun. ASI Swaroop Singh recorded the statement of Ram Kanwar wherein he informed the police that on 19.11.2007 he was working in the shop of Kanwar Singh Bhandari who was running a a tea shop and was washing the utensils when the accused Vishnu Swaroop who is a Guard posted at Syndicate Bank came to the shop of Kanwar Singh Bhandari.
According to Ram Kanwar, one Ram Pal was also present in the tea shop to have lunch. He informed the police that after reaching the tea shop the accused Vishnu Swaroop asked Kanwar Singh Bhandari the owner of tea shop to return the money which he had given to him (deceased) but Kanwar Singh told him to go away. On this Vishnu Swaroop got agitated and pointed his gun towards Kanwar Singh Bhandari and fired at him on which he was immediately apprehended by him and Ram Kanwar. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 2 (3) On the basis of the statement of Ram Pal the present FIR was got registered and after completion of investigations charge sheet was filed against the accused Vishnu Swaroop.
CHARGE:
(4) Charges under Sections 302 Indian Penal Code and Section 27 of Arms Act were settled against the accused Vishnu Swaroop to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW No. Name of the Witness Category of witness
No.
Prosecution witnesses:
1 PW1 Ram Kanwar Singh Eye witness to the incident
2 PW2 Pampal Eye witness to the incident
3 PW3 Dr. V.K. Jha Autopsy Surgeon
4 PW4 Hukum Singh Nephew of the deceased who had
identified the dead body of deceased
5 PW5 Uttam Singh Brother in law of the deceased who
had identified the dead body of
deceased
6 PW6 Rohit Jain Public witness who had made a PCR
call
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 3
7 PW7 Hemant Sethi Sr. Branch Manager, Syndicate Bank
who had proved that accused was
posted at their bank
8 PW8 HC Naresh Kumar Police witness who had delivered the
copy of the FIR
9 PW9 Insp. Malkiyat Singh Crime Team Incharge
10 PW10 HC Jagbir Singh Crime Team photographer
11 PW11 HC Sushila Police official who had proved DD No.
40B regarding the incident
12 PW12 Sone Lal Dhoore Reader of SDM Biduna, Distt. Oriya,
UP who has proved the gun licence of
the accused
13 PW13 Jai Lal Yadav Training Officer from SDS Security
who has proved the employment of
accused
14 PW14 W/ASI Nirmala Duty Officer who has proved the
registration of FIR
15 PW15 HC Bala Sahib Witness from CPCR who has proved
the PCR form.
16 PW16 SI Mahesh Kumar Draftsman
17 PW17 Insp. Manoj Sharma Police witness who had taken the case
property to FSL
18 PW18 HC Prakash Chand MHCM
19 PW19 Sh. V.R. Anand Forensic Expert (Ballistic)
20 PW20 SI Bhagirath PCR Incharge
21 PW21 ASI Raj Kumar Police official who had gone to
District Oriya, UP for verification of
Arm Licence of accused
22 PW22 Ct. Amit Police official who had handed over
the DD No. 40B to ASI Swaroop
Singh
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 4
23 PW23 HC Narendra Kumar Police official who had taken the
pullandas to FSL
24 PW24 Ct. Suresh Kumar Police official who had taken the
pullandas to FSL
25 PW25 HC Rajesh Kumar Police official who had joined the
investigations
26 PW26 Insp. Randeep Talwar Investigating Officer
27 PW27 SI Swaroop Singh Initial Investigating Officer
List of documents exhibited:
Sr. Document Details Proved by
No. exhibit No.
1. Ex.PW1/A Statement of Ram Kanwar Ram Kanwar
2. Ex.PW2/A Carbon copy of rukka Ram Pal
3. Ex.PW2/B Sketch of empty cartridge
4. Ex.PW2/C Sketch of live cartridge
5. Ex.PW2/D Seizure memo of gun
6. Ex.PW2/E Arrest memo of accused Vishnu
Swaroop
7. Ex.PW2/F Personal search memo of accused
Vishnu Swaroop
8. Ex.PW2/G Site plan
9. Ex.PW3/A Postmortem Report Dr. V.K. Jha
10. Ex.PW4/A Dead body identification statement of Hukum Singh
Hukam Singh
11. Ex.PW4/B Dead body handing over memo
12. Ex.PW5/A Dead body identification of Uttam Uttam Singh
Singh
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 5
13. Ex.PW7/A Certificate of duty issued by Hemant Hemant Sethi
Sethi
14. Ex.PW7/B & Attendance register
Ex.PW7/C
15. Ex.PW9/A Crime Team Report Inp. Malkiyat Singh
16. Ex.PW10/P1 Photographs and Negatives HC Jagbir Singh
to PW10/P12
17. Ex.PW11/A DD No. 40B HC Sushila
18. Ex.PW12/A Endorsement on application for Sone Lal Doore
verification of Arms
19. Ex.PW13/A Identification of identity card Jai Lal Yadav
20. Ex.PW13/B1 Copy of recruitment papers of accused to PW13/B7 from SDS Security
21. Ex.PW15/A FIR W/ASI Nirmala
22. Ex.PW15/A1 PCR Form HC Bala Sahib
23. ExPW16/A Scaled site plan SI Mahesh Kumar
24. Ex.PW18/A Copy of register no.19 HC Prakash Chand
25. Ex.PW18/B Copy of register no. 19
26. Ex.PW18/C Copy of RC
27. Ex.PW18/D FSL receipt
28. Ex.PW18/E Photocopy of RC
29. Ex.PW18/F FSL Receipt
30. Ex.PW19/A Ballistic Report V.R. Anand
31. Ex.PW25/A Seizure memo of pullandas handed HC Rajesh Kumar over by the doctor
32. Ex.PW25/B Seizure memo of documents
33. Ex.PW25/C Disclosure statement of accused
34. Ex.PW26/A Application for postmortem Insp. Randeep
35. Ex.PW26/B Form 25.35 St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 6
36. Ex.PW26/C Application for autopsy
37. Ex.PW26/D Brief facts
38. Ex.PW27/A Application for preservation of dead ASI Swaroop Singh body EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Twenty Seven witnesses as under:
Public witnesses/ eye witnesses:
(7) PW1 Ram Kanwar Singh is the Peon of Syndicate Bank, B2 Block, Paschim Vihar, Delhi, who has deposed that on 19.11.2007 during lunch time at about 2:00 p.m. he was going to the shop of Kanwar Singh Bhandari behind the Bank for having his lunch. He has deposed that the accused Vishnu Swaroop was working as a Security Guard in the same bank and was already present at the above said shop for having tea.
According to the witness, the accused fired from his gun upon Kanwar Singh Bhandari and immediately after the incident he and one Rampal (an employee of deceased Kanwar Pal Singh) caught hold accused alongwith gun at the spot itself and somebody informed the Police and the police came at the spot and he (witness) and Rampal handed over the accused and his gun to the Police. According to the witness, police checked the gun of accused and two live cartridges were recovered and four empty cartridge cases were recovered from near the dead body. The witness has deposed that police prepared the sketch of empty cartridges which is St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 7 Ex.PW2/B after that police prepared documents. He has deposed that he does not know what kind of documents were prepared but he can identify his signatures. Thereafter the witness identified his signatures on documents Ex.PW2/B & Ex.PW2/C. He has deposed that the said live cartridges and empty cartridges were taken into possession by the investigating officer. Witness has identified the gun Ex.P1 and five empty cartridges and two live cartridges Ex.P2 (Colly.). He has further deposed that he had also signed the documents Ex.PW2/E and Ex.PW2/F. (8) This witness was crossexamined by the Ld. APP for the State with respect to the number of live cartridges, description of seal on the pullandas and the preparation of sketches and arrest memos. In his cross examination by the Ld. APP for the State, the witness has deposed that he had not stated to the Police that three live cartridges were recovered from the gun of the accused, i.e. when the gun was opened one live cartridge was recovered and remaining two live cartridges were recovered from its hoaster attached with the gun. The witness was confronted with portion 'A' to 'A' of statement Ex.PW1/A, where it has been found so recorded. He has further deposed that he had also not stated to the Police that the sketch of these three live cartridges was prepared by the Police in his presence. According to the witness, he does not know if the investigating officer had prepared arrest memo and personal search memos but states that he was asked to sign some documents. He has deposed that he had not stated to the police that St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 8 four empty cartridges and three live cartridges were converted into a pullanda, which was then sealed with the seal of SSM. Witness was confronted with portion 'B' to 'B' of statement Ex.PW1/A where it was so recorded. Witness has further deposed that the photographer of the Crime Team took photographs of the spot. He has deposed that he had not stated to the Police that the investigating officer sent the Rukka through Constable Rajesh and got the FIR registered. Witness was confronted with portion 'C' to 'C' of statement Ex.PW1/A, where it was so recorded. According to the witness, he did not tell the Police that the said gun was converted into a pullanda and was sealed with the same seal with which the pullanda of cartridges was sealed and that Police prepared a site plan at the instance of Rampal. Witness was further confronted with portion 'D' to 'D' of statement Ex.PW1/A, where it was so recorded. Witness has further deposed that the SHO also arrived at the spot and conducted the proceedings. According to him, he had told the Police that the accused fired dhana dhan (rapidly) from his gun. He admits that all the documents were prepared in his presence and the case property was taken into possession but states that it was not sealed in his presence. He has denied that the case property was sealed in his presence at the spot.
(9) In his cross examination by Ld. Defence Counsel, the witness has deposed that he joined as Peon in Syndicate Bank, Paschim Vihar on 15.12.2005 and since then, he knew Rampal and Bhandari. According to St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 9 the witness, his duty hours were from 10:00 a.m. to 5:00 p.m. and lunch hours were 2:00 p.m. to 2:30 p.m. and his duty was to attend to the senior officers in the Bank as required by them. The witness has deposed that when he reached the thaiya of Bhandari for taking lunch, Bhandari was present there whereas Rampal was sitting at a distance of 1012 feet from thaiya. The witness has deposed that no other person was present at the spot and at the same time, guard i.e. accused Vishnu Swaroop came there and hot talks started between accused and deceased and thereafter, accused started firing on the person of Bhandari (deceased). He has deposed that hot talks continued for about 12 second after which the accused fired. According to the witness, Bhandari was having his utensils of tea (may be ketley) but was not having any iron rod at that time. Witness has deposed that he did not notice any injury in the hand of the accused. According to the witness, he was having rifle / gun at that time. He has deposed that he remained at the spot only for 24 minutes after the incident and had left the spot after arrival of the Police officials. He has also deposed that in the meantime, he and Rampal caught hold the accused and the police officials also recorded his statement at the spot at 2:00 p.m. but the police remained at the spot upto evening. Witness has further deposed that he had signed some documents along with his statement. The witness was shown his statement under Section 161 Cr.P.C. suggesting him that the said statement does not bear his signature to which witness has admitted. He has deposed that Rampal used to work at the thaiya and also used to ply rickshaw and St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 10 was already present at the thaiya when accused reached there. Witness has denied the suggestion that accused was already present at the thaiya when he reached there. Here the Ld. Predecessor of this Court has observed that on 03/09/2008, the witness had stated that accused was already present at thaiya when he reached there and in his chiefexamination dated 14.12.2009, he stated that he reached at the thaiya of Bhandari to take lunch and accused also reached there whereas in the crossexamination, the witness stated that he was taking lunch at the thaiya when at the same time the accused reached there.
(10) Further, in his crossexamination, the witness has deposed that he was taking lunch at a distance of about 1012 feet from the thaiya while sitting on a wooden takhat and the takhat had been put there by a tent house. According to the witness, the accused fired on Bhandari from a distance of 10 feet (who was already present at the thaiya) and the empty cartridges were lying at a distance of about 810 feet. The witness has deposed that after the day of incident, the police never met him. He has deposed that the accused started firing on the person of the deceased and he along with Rampal caught hold the accused. He has explained that while Rampal caught hold from the accused from the back; he (witness) caught hold of the accused from his front and also caught hold gun and snatched the same from the accused. The witness has further deposed that in the meantime, police reached there and he handed over the gun to the police St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 11 however he does not know the name of Police officials, who reached first but states that police reached there within 23 minutes. The witness has further clarified that PCR officials came first and other police officials reached there. He has denied the suggestion that he was not present at the spot or that no incident took place in his presence or that he was deposing falsely.
(11) PW2 Rampal has deposed that on 19th November (year he does not recollect) at about 1:45 PM to 2:00 PM, he was present in a tea shop of deceased Kanwar Singh Bhandari and was washing utensils as he was the employee in the shop. According to the witness, the accused who was working as a Guard in the Syndicate Bank, Jawalaheri, Paschim Vihar, came to his shop. Witness has deposed that besides him, one Ram Kumar who was a peon in the said Bank was also present at the shop, taking his lunch. According to the witness, the accused asked the deceased to return his money on which the deceased told the accused to go away as he was not having money with him, on this the accused pointed the pistol towards the deceased and fired at him. The witness has deposed that, he and Ram Kumar apprehended the accused with his gun and he noticed that deceased had died due to said bullet injury. According to the witness, somebody informed the Police and the Police reached the spot when he narrated the facts to the Police. The witness has identified his thumb impression on original Rukka and has deposed that after the police St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 12 came to the spot, they took the gun by the help of a cloth piece and after opening the gun, took out the cartridges. According to the witness, police also collected empty cartridges from the spot and took those articles to the Police Station after doing some writing work at the spot. He has deposed that he appended his thumb impression on the said writings and also identified his thumb impressions on sketch of empty cartridges, sketch of live cartridges, seizure memo of gun, arrest memo, personal search memo and site plan at point 'A' respectively. The witness has deposed that he never took a gun in his hand and cannot identify the same. He has also stated that he never noticed if the Police had converted the said gun in a cloth pullanda nor he had seen the police converting the seven cartridges (four empty and three live) into a pullanda.
(12) In his crossexamination by the Ld. APP for the State, the witness has denied the suggestion that the said gun was wrapped in a cloth and was sealed with the seal of SSM and similarly the seven cartridges (four empty and three live) were converted into a cloth parcel and were sealed with the same seal. The witness has admitted that he being illiterate had forgotten that the gun was converted into a sealed pullanda and similarly, seven cartridges (four empty and three live) were also converted into a sealed pullanda and then both the pullandas were appended with the same seal of SSM. The witness has correctly identified the gun Ex.P1 as the same which was recovered at the spot from the accused. He has also identified the seven cartridges as Ex.P2 (Colly.) St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 13 (13) In his crossexamination by Ld. Defence Counsel, the witness has deposed that at the time of incident, he was doing the job of a rickshaw puller but sometimes he used to also work with deceased. According to him, there was no fixed time for plying the rickshaw since whenever the passengers came to him, he used to ply the rickshaw and again used to park the same at the shop. He has deposed that he used to open the shop at about 6:00 a.m. and remained there upto 8:00 a.m. and whenever the deceased come there, he used to do the rickshaw pulling work as well as the work of the shop. He has further deposed that he used to earn Rs. 100/ to 150/ per day through the rickshaw plying. According to him, the deceased was not paying any money for the work at the shop as he compensated him since he resided there free of cost in his room and he also provide him with food and whenever he was in crisis, the deceased also used to give him money on his demand. The witness has further deposed that at the time of incident, he was residing at Janak Puri but is unable to give the number of the said room/ house. He has further deposed that on the day of incident, the deceased Bhandari used to reside at Janak Puri but he is unable to tell the address. According to the witness, during the period when incident took place, he used to stay at the shop as well as at the house of deceased at Janak Puri. He has deposed that there was a shop/ room at the place of incident and the tea was being sold on a counter outside the shop on a movable counter (thaiya) and deceased Bhandari was not the owner of the said shop and thaiya since it was provided by the Bank for selling tea and St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 14 keeping the goods. The witness has deposed that the deceased may be earning Rs.200/ or 250/ per day. He has deposed that he was working with the deceased for the last 10 years prior to the day of incident. He has further deposed that he is married and belongs to Rai Bareilly, U.P. and his children were residing at Village Lodhan Purva, Rai Bareilly at the time of incident. He has deposed that he was having agricultural land at his native village measuring 3 bighas and used to send Rs.1,000/ per month to send to his children at village. He has further deposed that now he was working at the thaiya of deceased and had left plying of rickshaw and used to earn Rs. 200/ or 250/ per day from that thaiya in the present position. Witness has denied the suggestion that he himself killed the deceased Bhandari for obtaining his thaiya and has voluntarily added that the deceased was like his brother. According to the witness, the accused and deceased were having cordial relations and used to take meal together and also used to sit together and talk cordially and that prior to the incident no quarrel had taken place between them and has added that there was exchange of hot talks when accused was demanding his money from the deceased on that day though the said quarrel had not taken place in his presence. He has deposed that he did not know if any quarrel had taken place in the Bank premises. According to him, he came to know about the quarrel prior to the incident when he went with the tea to the Bank. He has deposed that the deceased himself went to the Bank to serve tea. According to the witness, no quarrel took place in his presence at the shop. He has deposed that the deceased St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 15 had gone to serve tea in the Bank prior to the incident at about 1:45 PM and returned just after five minutes. According to him, at the time of incident, no customer was present at the shop and has explained that he was present along with the deceased. He has also deposed that a Gurudwara was situated in front of shop where a Barat was coming and there was lot of noise because of that Barat. According to the witness, at the time of incident, the accused was taking meals at the thaiya while he (witness) was cleaning the utensils at a distance of 12 feet from the thaiya as there was a drain (nali) near the thaiya. According to the witness, no conversation took place between the accused and the deceased in his presence. He has further deposed that he is illiterate and does not know the residential address of the accused in Delhi. He has deposed that he did not tell the Police the residential address of the accused but it was noted down by the Police when the accused was apprehended at the spot. He has denied the suggestion that he had given the address of accused in his statement but thereafter when confronted with the statement Ex.PW2/A the address of accused found to be written as House No. 125, Nihal Vihar, Near Laxmi Park. According to the witness, he had told the Police that "Vishnu Swaroop jise main pehle se janta hu, hamare thaiya pe aya aur Kanwar Singh Bhandari ko kehne laga ki Diwali pe jo tune mujhse 10,000/ rupaiya, do din ki baat kahakar udhar leye teh, mere baar baar mangne par lauta kyon nahi raha. Toh Bhandari bola ki mere pass abhi nayi hai, toh Vishnu Swaroop gushse St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 16 mein aag baboola ho gaya aur chillane laga ki sale tune mere jina haram kar diya hai aur tu roz tal matol kar raha hai. Tere niyat kharab ho gaya hai, aaj mai tera kaam tamam kar deta hoon".
(14) Further, when asked by the Ld. Defence Counsel whether his statement that no conversation took place between the accused and deceased was correct or that there was a conversation between the deceased and the accused, the witness has explained that he had heard about the conversation between the accused and the deceased and told this to the Police in his statement and it is this statement which is correct and what he had stated in his crossexamination that no conversation took place between the accused and the deceased was incorrect.
(15) The witness has further deposed that the above said conversation took place for about two minutes. He has denied the suggestion that deceased tried to hit the accused with an iron rod and has voluntarily added that at that time, he (deceased) was having one cup and a plate in his hand. He has also denied the suggestion that the accused had received injuries in his right thumb because of a blow given by the deceased with the iron rod and has explained that the accused was standing at a distance of about 1015 feet from the deceased when he fired on the person of the deceased who was standing on the right side of the thaiya at a distance of about two feet when he received gun shot injury. He has depose that the Police reached the spot within five minutes and remained there for about 11½ hours but is unable to give the number of police officers who St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 17 came to the spot as he did not count them. He has further deposed that initially one beat Police official had come to the spot immediately and thereafter, one another gypsy came there after which other Police officials also reached. Witness is unable to tell the name of the beat constable who reached at first at the spot and has stated that he was thin and tall having blackish complexion. According to the witness, the said constable took the custody of the accused but in the meantime, Police gypsy also reached there and the accused was made to sit in the said gypsy whereas the other Police officials were lifting the cartridge, blood on the ground, seeing the rifle / gun and also conducting the investigation at the spot. He has further deposed that his statement was recorded only once at about 2:30 p.m. or may be more than 2:30 p.m. The witness has further deposed that after the day of incident, Police never met him nor he visited the police station. According to him, he had put his thumb impressions on four to five papers i.e. his statement and the documents regarding the lifting of empty cartridges, site plan and others, which were read over to him. He has denied the suggestion that the Police officials got his thumb impression on blank papers and and voluntarily explained that all the documents were written.
(16) The witness has further deposed that before he caught hold of the accused, he (accused) had fired four gun shots, out of which, 2 hit the deceased whereas one gun shot hit the wall and the other went in the air by passing near the deceased. He has denied the suggestion that accused fired St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 18 five gun shots. According to him, when the accused fired for the first time on the person of deceased Bhandari, he did not try to catch hold the accused at that time due to fear of gun shot and himself wanted to run away. The witness has deposed that the first fire hit the body of Bhandari and then the accused again loaded his gun and fired towards Bhandari which also hit him after which he (witness) along with Ram Kumar caught hold the accused. He has further deposed that since the accused was a heavily built whereas he (witness) was having thin built body and other person namely Ram Kumar was handicapped (Langra) and therefore they both tried to overpower the accused but even then accused fired again twice and one of the fire hit the wall whereas the other passed near the Bhandari and went in the air. According to the witness, he did not state these elaborated facts to the police in his statement though he told them the entire incident. (17) The witness has further deposed that thereafter the accused tried to ran away from the spot but since they had caught hold of him hence he could not run away. According to the witness, they caught hold the accused at a distance of about 1012 feet from the body of the deceased. He has further deposed that he did not measure the distance where the empty cartridges were lying near the dead body and has deposed that all the four cartridges were lying scattered. He has further deposed that in his presence, the statement of Ram Kanwar was recorded. He has admitted that he had not given the statement using the English word and has stated that whatever English words are written in his statement were written by the Police St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 19 officials. He has deposed that apart from him, other documents were also signed by Ram Kanwar. According to the witness, they were not able to snatch the gun. He has deposed that he did not state to the Police in his statement that Ram Kanwar snatched the gun from the hands of accused. However, when the witness was confronted with statement Ex.PW2/A the said said fact was found recorded. He has denied the suggestion that during lunch hours, the accused used to keep his gun at the thaiya of the deceased or that he picked up the gun and fired shot at the deceased. He has further denied the suggestion that the accused did not fire any gun shot or that he deposed in the Court, in order to save himself and to falsely implicate the accused.
(18) PW4 Hukum Singh has proved that on 20.11.2007, he identified the dead body of Kanwar Sigh Bhandari in mortuary SGM Hospital who was his uncle. His statement was recorded vide memo Ex.PW4/A. He has deposed that after the postmortem dead body was handed over to them vide memo Ex.PW4/B. The witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
(19) PW5 Uttam Singh has also proved that on 20.11.2007, he identified the dead body of Kanwar Singh Bhandari in mortuary SGM Hospital and his statement was recorded vide memo Ex.PW5/A and after postmortem dead body was handed over to them. The witness has not been St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 20 cross examined on behalf of the accused and his testimony has gone uncontroverted.
(20) PW6 Rohit Jain is an independent witness who was present at the spot when the incident took place. He has deposed that he was working at Sachdeva Handloom, Jwala Heri Market, Paschim Vihar. According to him, he does not recollect the exact date but it was the month of November and the year perhaps 2008 or 2009 i.e. about twothree years prior to his deposition in the Court when at about 1:30 p.m. he was present near Syndicate Bank, B2 Market, DDA Flats, Paschm Vihar, Delhi, and was getting his scooter repaired from a Mistry when he heard the noise of firing on which he immediately reached to the place of occurrence and saw one person was lying on the ground. According to the witness, the public were calling him as a chai wala and a guard of Syndicate Bank had also been apprehended there with a gun. The witness has deposed that he made call to 100 number through his mobile phone no. 9250800128 and after some time Police reached to the spot and recorded his statement. According to the witness, the person who was apprehended there was the guard of Syndicate Bank. He has further deposed that he cannot identify the accused by face due to lapse of time of about 23 years, however, it is confirmed that he was guard of Syndicate Bank.
(21) Ld. Addl. PP with due permission of the court, put certain leading questions to the witness wherein the witness has admitted that the St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 21 date of incident was 19.11.2007. The witness has deposed that he cannot admit or deny by face of the accused whether he was apprehended or not and has voluntarily added that he was sure that he was the guard of the Bank at that time he was in uniform. He admitted that he came to know that his name was Vishnu Swaroop. The witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
Medical evidence/ witnesses:
(22) PW3 Dr. V. K. Jha, Medical Officer from BJRM Hospital, has deposed that on 30.11.2007 he was posted in the mortuary of SGM Hospital, Mangol Puri and on that day he conducted the postmortem on the body of Kanwar Singh, 40 years male S/o Bhag Singh, as sent by Inspector Randeev Talwar of Police Station Paschim Vihar. According to the witness, as per the general description of the dead body, the clothes worn by the deceased were full pant, shirt and on the shirt there were three openings on left front, underwear, bainyan, corresponding cut as on shirt. The built of the body was moderate; Rigor mortis was present on all body parts and postmortem staining was at back and eyes were closed. According to the witness, conjuctivae was normal, cornea was hazy, mouth was closed, tongue was inside. He has proved that there were following external injuries on the body of the deceased:
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 22
i. Lacerated perforated wound 2 cm above umblicus and 5 cm X 3.5 cm X abdominal cavity deep, placed in mid line, margins were bruised, abraded collar of one mm was present around the wound blakish in colour.
ii. Lacerated perforated wound at the level of left nipple, 4 cm X 3 cm X chest cavity deep, abraded collar present and margins were bruised.
iii. Lacerated perforated wound 4 cm above left nipple 4 cm X 3 cm into cavity deep, margins were bruised, abraded collar present.
(23) According to the witness, in all the above injuries, burning singing and tattoing was absent. The witness has deposed that on internal examination and exploration of Injury No. 1, it has crossed the skin muscle, vessels puncturing the intestinal coil and logged at T8 vertibra. The witness has further deposed that on dissection of Injury No. 2 it has crossed the skin muscle vessels, 4th intercostal space and punctured the right atrium and lodged in chest cavity. Further, on dissection of Injury No. 3, it has crossed skin muscles, vessels, penetrated the left lung upper lobe. According to him, after postmortem examination, he opined cause of death as cardiac arrest consequent to fire arm injury. The witness has deposed that all injuries were antemortem in nature and Injury No. 2 and 3 were sufficient to cause death in ordinary course of nature. According to the witness, he preserved clothes, blood gauze pieces, three pellets and sealed St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 23 with sample seal of mortuary. The witness has deposed that the time since death was approximately 46 hours. According to the witness, total number of inquest papers were 15 in number which were returned along with Postmortem Report. He has proved his detailed report is Ex.PW3/A. The witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
Forensic Evidence:
(24) PW19 V. R. Anand, Senior Scientific Officer, Ballistic, FSL, Rohini, Delhi, has deposed that on 06.12.2007, two sealed parcels were received in the Office of FSL and same were assigned to him for examination. According to him, the seals were intact and tallied with the specimen seals as per forwarding letter (FSL Form). He was given two parcels in which parcel No. 1 was found to be containing one single barrel breech loading (SBBL) gun of 12 bore bearing no. 90471977 which was marked F1 and Parcel No. 2 was found containing three 12 bore cartridge marked as Ex.A1 to Ex.A3 and four 12 bore cartridge cases marked as EC1 to EC4 (percussion cap of Ex. EC3 and EC4 found absent). He examined the exhibits and found that the SBBL gun marked Ex. F1 was in working order and test fire was conducted successfully. According to him, the cartridges A1 to A3 were live ones and the cartridges Ex. EC2 to EC4 were fired empty cartridges. He has stated that the cartridge Ex. A1 was test fired through the SBBL gun and test fired cartridge was marked as St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 24 TC1. He has further deposed that characteristic of firing pin marks present on Ex. EC1, EC2 and on TC1 were compared and examined under the comparison microscope and were found identical, hence, EC1 and EC2 have been fired through SBBL gun and 12 bore mark Ex. F1. He has stated that no opinion could be given whether Ex.EC3 and Ex4 had been fired through the SBBL gun Ex. F1 above or not due to insufficient data. He has prepared his detailed report Ex.PW19/A bearing his signatures at point 'A'.
He has identified SBBL Ex.P1 and seven cartridges as Ex.P2 (Colly.), in the court. In his crossexamination, he has deposed that they used to nomenclature for test fire cartridges either A1 or TC1. Police/ official witnesses:
(25) PW7 Hemant Sethi has deposed that on 19.11.2007 he was posted as Sr. Branch Manager at Syndicate Bank, Paschim Vihar, New Delhi, and during those days the security guards were posted outside the Bank for security purposes. He has identified the accused Vishnu Sawaroop in the Court who was deputed as Security Guard by SDS Security in the Bank. According to the witness, on 02/02/2008, he handed over a certificate to Police about the duty of accused on 19.11.2007 which is Ex.PW7/A. The witness has also brought the attendance register of the Security Guards kept in the Bank, certified photocopy of the entry was exhibited Ex.PW7/B and Ex.PW7/C attested by him at point 'A'. He has deposed that as per the entry dated 19.11.2007, Vishnu Swaroop attended St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 25 the Bank at about 9:50 a.m. and due to the alleged incident, his departure time could not be mentioned in the register with signature. The witness has proved the entry is at point 'X' on Ex.PW7/C bearing signatures of accused at point 'Y'. According to the witness, there is a contract between Bank and SDS Security Pvt. Ltd., to provide Security Guards to Bank and accused Vishnu Swaroop was provided by the Security Company. The witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
(26) PW8 HC Naresh is a formal witness who has deposed that on 19.11.2007, he was posted as Constable at police station Paschim Vihar and on that day after registration of FIR, the duty officer handed over copy of FIR for delivering the same to the Area Magistrate and Senior Officers and he being the Special Messenger left the police station on Government Motorcycle No. DL1SM3627 and delivered the copies of FIR to the area Magistrate and senior officers. In his crossexamination by Ld. Defence Counsel, the witness has deposed that the copies of FIR were handed over to him by the duty officer at about 5:00 p.m. According to the witness, he delivered the copy of FIR to the residence of DCP at Hauz Khas but does not remember the time when he reached there. He has stated that first of all, he reached the house of area Magistrate and then went to the residence of DCP. He stated that he did not know the exact name of the area Magistrate but could be Sh. Rakesh Kumar and delivered the envelope at his St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 26 residence at Malka Ganj. He has further deposed that the residence of area Magistrate was situated in a gali in Malka Ganj. He has deposed that the departure and arrival entries were entered at police station by the duty officer however, he could not tell the number of departure and arrival entries. He has denied the suggestion that he never went to deliver copy of FIR to any official or area Magistrate as Special Messenger.
(27) PW9 Inspector Malkit Singh has deposed that on 19.11.2007 he was posted as SI and was Incharge of Mobile Crime Team of West District on that day, he received a PCR Call from police station Paschim Vihar for reaching near the Jwala Heri Market in B2 Block. According to the witness, he along with member of mobile Crime Team reached the police station and thereafter they were taken to Jwalaheri Market in B2 Block near Syndicate Bank where a dead body was lying outside the stairs near the Syndicate Bank and four fired cartridges were also lying there. He inspected the scene of crime and the photographer Jaiveer took the photographs the the scene of crime from different angles and Constable Anil tried to lift the chance prints from there. He has deposed that he prepared his detailed report which is Ex.PW9/A. He has further deposed that later he came to know that the name of the deceased was Kanwar Singh. According to him, four cartridges were of KF12. (28) In his crossexamination, this witness has stated that there was no weapon of offence at the spot. According to him, he received the information at about 2:!5 p.m. He has deposed that he got recorded the St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 27 information through Roz Namcha Clerk in his office and received the information from Control Room of the District. According to him, he remained at the spot from 2:45 p.m. to 3:30 p.m. and reached at the spot at about 2:43 p.m. He has further deposed that the public persons were present at a distance of 3035 yards from the scene of crime and at that time 78 persons were present. He has further deposed that ASI Swaroop Singh alongwith some three to four Police Constables was present when he reached there. According to him, the four empty cartridges were lying five to six yards from the dead body. The witness has deposed that he orally instructed the investigating officer to take opinion from Ballistic Expert and has denied the suggestion that he did not visit the spot and did not prepared Crime Team Report.
(29) PW10 HC Jaibir Singh has deposed that on 19.11.2007 he was posted as Photographer in Mobile Crime Team West District, New Delhi and on that day, he along with Crime Team visited the scene of crime i.e. B2 Market, Paschim Vihar and took 12 photographs of crime which are Ex.PW10/P1 to Ex.PW10/P12 and negatives were exhibited as Ex.PW10/P1 to Ex. PW10/P12.
(30) In his crossexamination, he has deposed that they reached at the scene of crime at about 2:45 p.m. and remained there upto 3:30 p.m. He is unable to tell the number of the police officials present at the spot as states that they were many.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 28 (31) PW11 HC Sushila has deposed that on 19.11.2007, she was posted as Roz Namcha Munshi at Police Station Paschim Vihar and at about 2:00 p.m. she received information from wireless operator that somebody had fired upon a Guard at B2,Main Market, near Syndicate Bank and she made a DD entry in this regard vide DD No. 40B which is Ex.PW11/A and sent the same to ASI Swaroop Singh through Constable Amit. Here, I may observe that there appears to be some typographical error since in the original DD No.40B it has been mentioned that the Guard had fied upon somebody and hence the words "somebody had fired upon a Guard" are henceforth shall be read as "the Guard had fired upon somebody". She has not been cross examined on behalf of the accused and hence her testimony has gone uncontroverted.
(32) PW12 Sone Lal Dhoore has deposed stated that on 04.02.2008, he was posted as Reader in the Office of SDM at Biduna and on that day, ASI Raj Kumar moved an application for verification of the Arms Licence of Vishnu Swaroop S/o Sh. Babu Lal and that application was marked to him by the SDM on the same day. According to the witness, he collected the Arm Renewal Register and found that the licence was renewed on 20.12.2005 upto 31.12.2008 and he endorsed his report on the application which is Ex.PW12/A. He has clarified that the order of the SDM is at point 'X' and his report is from point 'Y' to 'Y' bearing his signatures at point 'A' and subsequently, SDM forwarded his report from St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 29 point 'Z' to 'Z' on Ex.PW12/A. He has identified the handwriting and signatures of the SDM at point 'B'. He has not been cross examined on behalf of the accused and hence his testimony has gone uncontroverted. (33) PW13 Jai Lal Yadav has deposed that he was working as Training Officer in SDS Security at Safdarjung Enclave, which is a private company and they recruited Guard, Gunman and Helpers and accused Vishnu Swaroop was selected as a Gunman who was given Duty Slip No. 19089. According to the witness, the Guard was issued one identity card for a period from 17.07.2007 to 16.07.2008. He has identified the identity card Ex.PW13/A which was bearing his signatures on both the sides at point 'A' with the seal of their Security Agency. He also identified the copy of SDS Security of accused Vishnu Swaroop, photocopy of which is Ex.PW13/B1 to Ex.PW13/B7. He has deposed that accused was deputed as a Gunman at Syndicate Bank, Paschim Vihar.
(34) In his crossexamination, the witness has deposed that he does not remember when his statement was recorded by the Police and has added that he was called at police station after the incident. According to him, he had told the police in his statement under Section 161 Cr. PC that accused was posted at Bank at the time of incident.
(35) PW14 W/ASI Nirmala has deposed that on 19.11.2007, she was posted at police station Paschim Vihar as Duty Officer from 9:00 a.m. to 5:00 p.m. and at about 4:00 p.m. Constable Rajesh brought a Rukka sent St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 30 by ASI Saroop Singh for registration of FIR and on the basis of said rukka she got recorded the FIR through Computer Operator copy of which is Ex.PW15/A and carbon copy of the Rukka is Ex.PW2/A. (36) In her crossexamination, she has deposed that she knew how to operate the computer and has explained that they got recorded the FIR through the Computer Operator whose name she does not recollect. According to the witness, Special Messenger Constable Naresh was deputed to deliver the copy of FIR to the Senior Officer who left the police station around 5:00 p.m. for which a departure entry was also made whose number she does not recollect. The witness is unable to tell the time of return of Constable Naresh as her duty was off at 5:00 p.m. According to the witness, she had mentioned the FIR number in original Rukka, however, she did not mention on carbon copy of Rukka (Ld. APP pointed out that the Rukka brought by the witness mentioned the FIR number Photocopy was kept on record). She has denied the suggestion that that she did not mention the FIR number in the carbon copy because she had received only the original Rukka not the carbon copy. She has further denied the suggestion that FIR was manipulated, antetime and antedated or that Constable did not came with the Rukka for registration of the case. According to the witness, the FIR was registered in the presence of ASI Swaroop Singh as he himself came with the Rukka, accused, the gun and the cartridge. She has denied that the complainant also came with ASI Swaroop Singh. She has further denied that the asal tehrir was prepared at the Police Station in her St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 31 presence.
(37) PW15 HC Bala Sahib has deposed that on 19.11.2007 he was posted at Police Control Room and on that day, he was on duty from 8:00 a.m. to 2:00 p.m. and at about 1:57 p.m. he received information from mobile no. 9250800128 that one Guard had fired upon a man at B2 Market near Syndicate Bank, Paschim Vihar and thereafter, he prepared PCR Form and sent it for circulation which PCR Form is Ex.PW15/A. (38) In his crossexamination, the witness has deposed that the PCR Form Ex.PW15/A 19.57/58 was written at portion encircled 'X' which gives the details of the time of receiving of information through call but has voluntarily explained that it was wrongly mentioned and he immediately made the correction of time as 1357 at point 'Y'. He has deposed that portion A1 to A2 was filled up by West District, Wireless Operator at Control Room and he immediately sent Form 15/A for circulation. (39) PW16 SI Mahesh Kumar (Draftsman), Crime Branch has deposed that on 24.01.2008 he was was called by Inspector Randeep Talwar at police station Paschim Vihar and he along with Investigating Officer and ASI Swaroop Singh reached at B2, DDA Market, Paschim Vihar near Syndicate Bank and took rough notes and measurements of the scene of crime at the instance of ASI Swaroop Singh for preparation of scaled site plan and after preparation of scaled site plan, rough notes and measurements were destroyed. He has deposed that he handed over the St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 32 scaled site plan to the Investigating Officer and the same is Ex.PW16/A. (40) In his crossexamination, the witness has deposed that the scale 1cm denote 1 meter. He has denied the suggestion that he had drafted the false site plan at the instance of ASI Swaroop Singh. (41) This witness has been reexamined by Ld. APP for the State with permission of the Court, on the point of units shown in the scaled site plan, wherein the witness has deposed that he meant to say that the distance in 1 meter is shown in the site plan as 1 cm however, he meant to say about the distance in the site plan the length given in the site plan in cms but it does not reflects about the meter 1 meter = 100 cm. He has stated that he showed the distances in centimeter.
(42) In his cross examination on behalf of the accused, the witness has deposed that he had not mentioned dimensions in the scaled site plan with the particular centimeter or meter of a particular spot and has voluntarily explained that he had mentioned in his notes at point 'X' on Ex.PW16/A. (43) PW17 Inspector Manoj Kumar has deposed that on 06.12.2007, he was posted at police station Paschim Vihar and on that day, the investigation of this case were marked to him. According to him, he directed Constable Narender for depositing the case properties to FSL, Rohini who collected the sealed parcels from the MHC (M) and went to FSL, Rohini and deposited the case property. The witness has deposed that he recorded the statement of Constable Narender and the MHC (M) HC St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 33 Prakash Chand and thereafter, the investigation was transferred after which he deposited the file with MHC (R).
(44) In his crossexamination, the witness has deposed that he had received the investigation at around 8:00 a.m. on 06.12.2007 and on the next day at about 5:00 p.m. he handed over the file to MHC (R). According to him, he had recorded the statement of Constable Narender and MHC (M) HC Prakash Chand at around 5:30 p.m. on 06.12.2007. He has denied the suggestion that the investigation was not marked to him or that he was deposing falsely.
(45) PW18 HC Prakash Chand has deposed that on 19.11.2007 he was posted as MHC (M) at police station Paschim Vihar and on that day, ASI Swaroop Singh deposited two sealed parcels and Jamatalashi of this case in respect of which he made entries at Serial No. 428 in register No. 19 copy of which Ex.PW18/A. He has further deposed that on 20.11.2007, three sealed parcels and one sample seal were deposited by the Investigating Officer, photocopy of the entry is Ex.PW18/B. According to him, on 06.12.2007, two sealed parcels were sent to FSL through Constable Narender vide RC No. 330/21 and he made entries in this regard at point 'X' on Ex.PW18/A. The witness has also deposed that on 24.01.2008, he sent three sealed parcels and one sample seal of FSL through Constable Suresh Kumar and made entries in this regard at point 'Y' on Ex.PW18/A. According to him, on 19.07.2008, Constable Virender deposited two sealed St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 34 parcels containing fire arms and he made entry in this regard at point 'Z' on Ex.PW18/A and Constable Virender also deposited three sealed parcels on the same day and in that regard entry was made by him at point 'Z1' on Ex.PW18/B. He has also proved the RC vide Entry No. 330/21 dated 06.12.2007 and receipt of the FSL, photocopy of RC Ex.PW18/C and the photocopy of the receipt Ex.PW18/D in the Court. He has also produced RC No. 4/21, photocopy of which is Ex.PW18/E and receipt of FSL which is Ex.PW18/F. He has stated that the case property was not tampered by anybody till it remained in his custody.
(46) In his crossexamination, the witness has admitted the fact that on entry at point 'Y' on Ex.PW18/A there is overwriting / cutting at points 'D' stating that firstly he recorded the name of Constable Vijay and subsequently, it was cut down and he added the name of Constable Suresh Kumar at point 'Y' on Ex.PW18/A. The witness has voluntarily explained that it would be possible that Constable Vijay was first directed to go but due to his nonavailability, his name was cut down and Constable Suresh Kumar was sent to FSL on 24.01.2008. He has admitted that he did not mention the date and initial on the cutting at points 'D'. He has denied the suggestion that he made cutting on the entry at point 'Y' after 24.01.2008. He has admitted that there was a overwriting on the name of Constable Suresh on RC which is Ex.PW18/E at point 'D' or that he did not mention in Register No. 19 that the case property was sent at the directions of St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 35 Inspector Manoj Kumar.
(47) PW20 SI Bhagirath has deposed that on 19.11.2007, he was posted at West Zone PCR on which day at around 2:00 p.m. he received message on a wireless set from the Control Room that at B2 Market, Near Syndicate Bank, Paschim Vihar, one Guard had fired on a person, on which information he immediately reached at the spot with the PCR Vehicle and found that one Tea Vendor was lying on the ground and Guard had already been apprehended by public persons. According to him, in the meantime, SI Swaroop Singh reached at the spot and that he (SI Bhagirath) left the spot thereafter.
(48) In his crossexamination, the witness has deposed that he remained present at the spot for about 30 minutes and that the local Police had made inquiries from him. He has further deposed that his statement was recorded by the Investigating Officer at about 2:35 p.m. on the same day and that he did not filed any PCR Form. According to him, he informed the Police Control Room through wireless set about the position of the scene of crime and also informed the Control Room that the information, which was given to him on wireless set was found correct but he could not find any cause of firing till he remained at the spot. He has admitted the fact that at 2:45 p.m., he had given information that he did not find cause of firing at the spot. He has also admitted that he informed the Control Room that the incident occurred 10 minutes prior to the call.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 36 (49) PW21 ASI Raj Kumar has deposed that on 04.02.2008, he went to SDM Office, Vidhuna, District Oraiya, U.P. for verification of the Armed Licence No. 3780 and SBBL Gun No. 9047 of accused Vishnu Swaroop S/o Babu Ram. He has deposed that he had moved an application in this regard vide Ex.PW12/A bearing his signatures at point 'C' and put it up before the Reader Soni Lal on which the Reader had given his report on the application itself and the same was forwarded by the SDM and he returned back and handed over the verification report to Inspector Randeep Talwar, Investigating Officer of the case who recorded his statement. He has not been cross examined on behalf of the accused and hence his testimony has gone uncontroverted.
(50) PW22 Constable Amit (the then Home Guard official) has deposed that on 19.11.2007, he was posted as Constable in Delhi Home Guard on which day he was on reserve duty at police station Paschim Vihar from 2:00 p.m. to 10:00 p.m. and on that day at about 2:00 p.m. duty officer handed over DD No. 40B for delivering the same to ASI Swaroop Singh. According to the witness, when he left the police station, the Investigating Officer along with Constable Rajesh met him at the gate of police station Paschim Vihar and he handed over the DD No. 40B to the Investigating Officer and thereafter, he left the police station. In his crossexamination, the witness is not sure if the Investigating Officer had recorded his statement.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 37 (51) PW23 HC Narendra Kumar has deposed that on 06.12.2007, he was posted at police station Paschim Vihar and on that day, as per directions of the Investigating Officer, he collected two sealed parcels from MHC (M) for depositing FSL, Rohini. According to him, he went to FSL Office and deposited the same vide RC No. 330/21 and the receipt was handed over to MHC (M). He has stated that the case property was not tampered by anybody till it remained in his custody and that the Investigating Officer had recorded his statement. (52) In his crossexamination, the witness has denied the suggestion that he did not deposit the case property as stated by him. He has admitted that he did not mention the time of receiving and depositing the case property in the RC. According to him, the Investigating Officer recorded his statement at about 5:00 - 6:00 p.m. on the same day. (53) PW24 Constable Suresh Kumar has deposed that on 24.01.2008, he was posted at police station Paschim Vihar on which day he collected sealed parcel from MHC (M) for depositing the same to the FSL, Rohini vide RC No. 4/21 as per the instructions of investigating officer and deposited the same on the same day with the FSL which receipt was handed over to the MHC (M). He has further deposed that the case property was not tampered by anybody till it remained in his custody. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 38 (54) PW25 HC Rajesh Kumar has deposed that on 19.11.2007, he was posted at police station Paschim Vihar on which day on receiving DD No. 40B, he along with Investigating Officer ASI Saroop Singh reached at B2 Block, DDA Market, Near Syndicate Bank, Paschim Vihar where one person was lying in injured condition and blood was oozing out from his body having the bullet mark injury whose name was Kanwar Singh Bhandari. He has further deposed that two persons namely Ram Pal and Ram Kanwar Singh met them at the spot who produced one person along with the rifle whose name later on revealed as Vishnu Swaroop. He has further deposed that that Ram Pal told that Vishnu Swaroop fired on the person of Kanwar Singh and that the Investigating Officer had recorded his statement. According to the witness, the Investigating Officer had checked the rifle by unloading the same which was found to contain one live cartridge from its barrel and two live cartridges were found on the butt in a petti and four live cartridges were lying near the body of the deceased. The witness has deposed that the rifle was engraved with no. F1 90471977 Free India Manufacturer India and the cartridge was engraved with the words Special 65 MM 30 gram Indian Ordinance Factories and the bottom was engraved with the words KF12. He has also deposed that all the cartridges were having the same mark and that the Crime Team was also called at the spot who inspected the scene of crime and took the photographs of the spot. According to the witness, the injured had already expired at the spot and the empty cartridges were turned into a cloth parcel and the Investigating St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 39 Officer given the Serial Nos. 1 to 4 to them and sealed with the seal of SSM, live cartridges were given Serial Nos. 5 to 7 and turned into a cloth parcel and were also sealed with the seal of SSM. He has further deposed that the Investigating Officer prepared the FSL Form at the spot and had also prepared the seizure memo Ex.PW2/D in this regard which bears his signatures at point 'C'. According to the witness, prior to sealing of the cartridges, the Investigating Officer had prepared the sketches of live and empty cartridges vide memo Ex.PW2/B and Ex.PW2/C. He has deposed that the Investigating Officer prepared a Rukka and handed it over to him for registration of the FIR after which he went to police station Paschim Vihar and after getting registered the case, he returned back at the spot along with the copy of the FIR and Rukka and handed over the same to Inspector Randeep Talwar as he was the second Investigating Officer of the case. He has further deposed that the accused was arrested vide memo Ex.PW2/E and his personal search was conducted vide memo Ex.PW2/F. According to the witness, the Investigating Officer prepared a site plan of the spot and he also prepared inquest papers and dead body was removed to SGM Hospital for its postmortem. The witness has deposed that on 20.11.2007, the postmortem of the dead body was conducted and Doctor handed over the sealed parcel containing the plastic palates, clothes of deceased and sample seal to him and the same were seized by the Investigating Officer vide Ex.PW25/A. Witness has further deposed that St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 40 the photocopy of Arm Licence, ICard of Security SOS Group and one certificate of Syndicate Bank was produced by the accused which documents were seized by the Investigating Officer vide Ex.PW25/B. He has further deposed that the Investigating Officer had recorded the statement of the witnesses at the spot and that the case property was deposited with MHC (M) and after postmortem, dead body was handed over to its claimants vide Ex.PW4/B. He has identified the accused in the court. He has also identified the case property i.e. Rifle as the same which was recovered from the spot from the hand of the accused which was exhibited as Ex.P1 and seven cartridges which were exhibited as Ex.P2. (55) In his crossexamination, this witness has deposed that he does not remember who was the beat Constable at B2 Market, Paschim Vihar. He has stated that on 19.11.2007, he was on emergency duty from 8:00 a.m. to 8:00 p.m. and at about 2:00 p.m. it had came to his knowledge that DD No. 40B was received by ASI Swaroop Singh. According to the witness, the distance between spot of incident and Police Station was about 1.5 to 2 kms. He has deposed that he left the Police Station at about 2:00 p.m. and reached at the spot after about 10 minutes on the motorcycle of ASI Swaroop Singh and remained at the spot for about five to six hours. The witness has further deposed that he also left the spot for registration of FIR at about 4:00 p.m. and took a lift on the motorcycle of a Police Constable whose name he has forgotten and after fifteen minutes he had reached the Police Station. According to him, he remained at the Police station for St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 41 about 4045 minutes and thereafter reached at the spot after registration of FIR at about 5:00 p.m. The witness has further deposed that as per his version ASI Swaroop Singh, first of all recorded the statement of Rampal between 3:30 p.m. to 4:00 p.m. but he is not aware of the time when the Investigating Officer had made Rukka. The witness has deposed that he was sent to Police Station just after recording of Rukka and ASI Swaroop Singh prepared seizure memo of rifle and cartridge (kaartoos) after he returned from the Police Station. According to him, his statement was recorded by the Investigating Officer Inspector Randeep Talwar at the spot in the sunlight but he does not remember the time. He had further deposed that the Investigating Officer had also recorded statement of Ram Kanwar and Police witnesses. He has deposed that the Crime Team arrived at the spot prior to taking of Rukka however, he is unable to tell the time when Crime Team had reached there and has stated that the Crime Team arrived at the spot after half an hour of his reaching at the spot with ASI Swaroop Singh. Witness is also unable to tell for how much time they remained at the spot and states that the Crime Team members were present when he left for registration of FIR but they were not present when he returned back. Witness is further unable to tell the name of Incharge of Crime Team. According to him, he had stated to the Investigating Officer in his statement, regarding calling of Crime Team and taking of photographs of spot. Witness was confronted with the statement Ex.PW25/X1 where it is not so recorded.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 42 (56) The witness has further deposed that, he handed over Rukka and copy of FIR to the second Investigating Officer Randeep Talwar at the spot. According to him, the Rukka was given with carbon copy to him by the first Investigating Officer. He does not recollect who prepared the site plan of the spot of incident and how. He has also deposed that the Second Investigating Officer Inspector Randeep Talwar prepared arrest memo and personal search of accused and also recorded statement of witnesses. According to him, on the next day i.e. on 20.11.2007, he again joined the investigations and went to the Hospital for postmortem of the deceased. Witness has denied the suggestion that he did not take the Rukka to the Police Station for getting registered the case or that the sketch of cartridges, sealing of case property, recording of statement of complainant and another witnesses including himself was done by the Investigating Officer in the Police Station. He has also denied that suggestion that all the seizure memos were prepared by the Investigating Officer while sitting in the Police Station or that he signed the memos while sitting at the Police Station. According to the witness, when he reached at the spot first time, there were many public persons present and the investigating officer did not enquire from other public persons except Ram Pal and Ram Kanwar at the spot in his presence. He also deposed that the kettle of the tea or the glasses / cups were not found lying near the injured and that the empty cartridges were lying near the injured within the radius of five feet. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 43 (57) PW26 Inspector Randeep Talwar has deposed that on 19.11.2007 when he reached the spot, he met ASI Swaroop Singh who apprised him about the facts and circumstances and he found a body of a male aged around 40/45 years at the spot and the accused Vishnu Swaroop who had been apprehended by the police. The witness has deposed that ASI informed him that as per the statement of complainant Rampal S/o Dasrath, Vishnu Swaroop shot the deceased Kanwar Singh. He has further deposed that ASI Swaroop Singh had handed over to him two sealed parcels duly sealed with the seal of SSM and one of the parcel was stated to be containing riffle and other parcel having live and empty cartridges and sketch of three live cartridges and four empty cartridges (cartridge cases) which are Ex.PW2/C and Ex.PW2/B. The witness has deposed that he prepared the site plan Ex.PW2/G and also received the copy of the FIR which is Ex.PW15/A. He has further deposed that ASI Swaroop handed him over a seizure memo of the cartridges and riffle after which he recorded the statement of Ram Kanwar and also interrogated and arrested the accused and conducted his personal search vide memos Ex.PW2/E and Ex.PW2/F and thereafter he recorded disclosure statement of accused which is Ex.PW24/C. According to him, he also recorded statement of ASI Swaroop Singh and Rajesh and after completing the proceedings they came back to the Police Station and the accused was lodged in the lockup and case property was deposited in the Malkhana. The witness had correctly St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 44 identified the accused Vishnu Swaroop in the Court. He has further deposed that on the next day i.e. 20.11.2007, he went to Sanjay Gandhi Hospital with his staff and got the postmortem of the deceased conducted and the dead body was identified by the family of the deceased after which he recorded their statements Ex.PW4/A and Ex.PW5/B. The witness has proved his application for the postmortem Ex.PW26/A, Form 25.35(1)(b) was Ex.PW26/B, application addressed to the Autopsy Surgeon Ex.PW26/C and the brief facts which are Ex.PW26/D. According to the witness, after the postmortem the dead body was handed over to the family members of the deceased vide memo Ex.PW4/B. He has further deposed that on 19.112007, he also received Crime Team Report at the spot which is Ex.PW9/A from ASI Swaroop Singh and he had also prepared a seizure memo of the documents which were produced by accused at the spot on that day and details of documents mentioned in the seizure memo which was seized by him vide seizure memo Ex.PW25/B. (58) According to the witness, on 20.11.2007, at the mortuary Sanjay Gandhi Hospital, he also received three sealed pullandas duly sealed with the seal of Hospital and sample seal of the Hospital and seized by him through seizure memo Ex.PW25/A and details of exhibits were mentioned therein and after coming back to the Police Station, he deposited the case property in the Malkhana. The witness has has further deposed that the accused was thereafter produced before the Ld. Court on 20.11.2007 and St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 45 was sent to Judicial Custody. He has deposed that during course of investigation MHC (M) had sent the exhibits to FSL through Constable Narender. He has further deposed that in January, 2008, he had sent ASI Raj Kumar to SDM Vidhuna, Oriya, U.P. for the verification of arms licence. According to the witness, during the course of investigation, postmortem Report was collected. He had also collected documents regarding employment of accused Vishnu Swaroop showing his posting at Syndicate Bank from the company and the photocopy of the Duty Register is Ex.PW7/C, application of accused for the employment at SDS Security Pvt. Ltd. is Ex.PW13/B1 to Ex.PW13/B7 and letter from Syndicate Bank which is Ex.PW7/A. He has also deposed that during the course of investigation, he recorded the statements of witnesses including Police Officials. The attention of the witness was drawn to scaled site plan which is Ex.PW16/A after which the witness has stated that the scaled site plan was prepared by SI Mahesh Kumar, Draftsman, Crime Branch who was called by him at the spot on 24.01.2008. According to the witness, he had also placed a copy of PCR Form after collecting it from the PHQ which is Ex.PW15/A and that the MLC of the accused was mark PW26/X1 dated 19.11.2007 which was prepared by the Doctor of Sanjay Gandhi Memorial Hospital at the time when accused was sent for his medical. The witness has also deposed that he had also collected the photographs from Crime Team and placed the same on record and that the true copy of DD No. 40B St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 46 dated 19.11.2007 is Ex.PW11/A and attested copy of DD No. 21A dated 19.11.2007 is mark PW26/X2. He has further deposed that the FSL result was collected later on by other Police official since he was transferred. (59) In his crossexamination on behalf of accused this witness has stated that he does not remember the particulars of the case which was attended by him in Rohini Court on 19.11.2007 but has voluntarily explained that since he was looking after the additional charge of SHO who was on leave hence he might have been called by the Ld. Metropolitan Magistrate in routine matter of the Police Station. He has testified that he went to Rohini Court at around 11:30 AM and returned back to the Police Station at around 2:30 PM and that he had made departure and arrival entry to this effect but the copy of said departure and arrival entry have not been kept on Judicial File. According to the witness, he came to know about the incident as mentioned above, soon after he left the Court Room. He has further stated that he left Rohini Court for the Police Station Paschim Vihar at around 2:05 2:10 p.m. and reached Police Station at about 2:30 p.m. after which he proceeded to the spot and reached there within five minutes. The witness has also deposed that no conversation took place between him and the Investigating Officer during the period of receiving the information and reaching at the spot despite the fact that he tried to contact with the first Investigating Officer Swaroop Singh. According to the witness, after reaching the spot he talked to the first Investigating Officer Swaroop Singh for about five minutes with and then he talked formally to the accused St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 47 Vishnu Swaroop, Rampal and Ram Kanwar and stated that he remained at the spot till around 9:30 - 10:00 p.m. He has further deposed that the Crime Team had already reached at the spot before his arrival at the spot but he does not remember till what time the Crime Team stayed at the spot. He has denied the suggestion that when the Crime Team visited at the spot the weapon of the offence was not at the spot or that Swaroop Singh had not handed over to him any arms or ammunition/ cartridges and has voluntarily added that he (SI Swaroop Singh) had handed over the same to him in sealed parcels. He has testified that when he reached the spot the first Investigating Officer Swaroop Singh was preparing the papers including the Rukka which Rukka was sent by Swaroop Singh at about 4:30 p.m. According to the witness, the investigation of the present case was marked to him at around 5:005:15 p.m. and has voluntarily added that as soon as he received the original Rukka and the copy of the FIR, he formally joined the investigation of the present case. He has denied the suggestion that the Rukka, seizure memos and the pullandas were prepared in the Police Station and not at the spot. He has further stated that he had prepared the site plan at the spot but states that he does not recollect the exact time. He has denied the suggestion that he had recorded the statements of the witnesses while sitting in the Police Station or that complainant Rampal had told them that two rounds had been fired, one on the wall and another in the air. The witness has voluntarily explained that they were told that four rounds were fired and they recovered four empty cartridges from the spot. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 48 He has also denied that four empty cartridges have been planted upon the accused at the instance of the complainant or that two rounds had been fired from the gun of the accused whereas, two rounds including the one which was fatal to the deceased was fired from some other gun/weapon. He has also denied the suggestion that he deliberately did not investigate the aspect of the firing from another weapon or that he diverted the investigations towards the accused. The witness has denied the suggestion that he recorded the statement of Rampal of his own and did not record the correct statement of Rampal wherein, he had stated that only two rounds were fired in the air. According to the witness, he recorded the disclosure statement of the accused at the spot and at that time entire Police team was present apart from some public persons and amongst those public persons there were Granthies of the Gurudwara and staff of Syndicate Bank. He has admitted that he had not made them a witness while recording the disclosure statement of the accused. He has also denied the suggestion that accused had not made any disclosure statement at the spot as claimed by him and that it was for this reason that it does not bear the signatures of any public persons as claimed by him. He does not remember at what time he recorded the disclosure statement at the spot and states that the same was recorded after the arrest of the accused. He is unable to tell as to who had taken the Rukka to the Police Station and has voluntarily explained that he was busy in making inquiries at that time. The witness has further deposed that he had not send any finger prints of the accused to the FSL for St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 49 matching and it did not come out during the investigations that Ram Kanwar used to ply rickshaw which remained parked at the shop. He has denied the suggestion that Rampal used to ply a rickshaw and has voluntarily added that Rampal was only assisting the deceased Kanwar Singh Bhandari in his tea stall. He has deposed that it did not come out in the investigations that Kanwar Singh Bhandari did not pay any salary to Rampal for the services he provided. He ahs denied the suggestion that he obtained the signatures of Rampal and Ram Kanwar on blank papers and later on converted the same into memos and statement or that he had not investigated the present case fairly and properly. (60) PW27 Retired SI Swaroop Singh is the initial Investigating Officer who has deposed that on 19.1.2007 he was posted at Police Station Paschim Vihar as ASI and on that day, was on emergency duty from 8:00 a.m. to 8:00 p.m. According to him at about 1:50 p.m. he received copy of DD No. 40B through Constable Rajesh in akab (on the way) which DD No. 40B Ex.PW11/A was regarding shooting to a person by Chowkidar near Syndicate Bank, B2 Main Market. This witness has further deposed that thereafter, he alongwith Constable Rajesh went to B2 Main Market near back side Syndicate Bank near Tea Khokha where one male person was lying dead. According to the witness, on inquiry the name of deceased came to be known as Kanwar Singh Bhandari S/o late Bhag Singh and there were blood injuries mark on the stomach of the deceased. Witness has further deposed that at the spot Chowkidar of the said bank whose name St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 50 was revealed as Ram Kanwar and servant at Tea Shop namely Ram Babu met him and they produced the accused Vishnu Swarup before him along with gun. He has testified that at the spot four empty cartridges (cartridge cases) were lying and on unloading the Banduk (gun), it was found loaded with live cartridges and two live cartridges were with the body of the butt of the gun. According to the witness, he called Crime Team at the spot after which the spot was inspected and photographed by the Crime Team. He has also deposed that he had seized the gun and cartridges while preparing separate pullandas and he seized the pullanda of gun and cartridges through seizure memo which is Ex.PW2/D. According to him, prior to that he had prepared sketch of the live cartridges and cartridges cases which are Ex.PW2/C and Ex.PW2/B. She has also deposed that the Incharge Crime Team produced his report to him and left with his Team after which he recorded statement of Ram Pal which is Ex.PW2/A upon which he made endorsement from point 'X' to 'X'. The witness has proved having given the Rukka to Constable Rajesh at about 4:00 PM for getting the FIR registered in the Police Station. He has deposed that SHO Police Station Paschim Vihar Inspector Randeep Talwlar along with his staff came at the spot at about 2:30 3:00 p.m. and he had handed over the case property pullandas and accused and memos to the Inspector Randeep Talwar. The witness has testified that the dead body was sent to Sanjay Gandhi Memorial Hospital through Constable Rajesh and application in this regard is Ex.PW27/A. He St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 51 has further deposed that Inspector Randeep prepared site plan and his statement was recorded by the Investigating Officer after which he was relieved from the spot.
(61) The witness has correctly identified the accused Vishnu Swaroop in the Court and has also identified the case property i.e. gun having No. FI9047, 1977 which is Ex.P1; Five empty cartridges and two live cartridges (of which cartridge A1 is the test fired cartridge and EC1 to EC4 are fired empty cartridges as per FSL report) which are Ex.P2 (colly.). (62) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he received DD entry No. 40B at about 1:45 p.m. and at that time he was already present near market Jawalaheri, the area of Police station Paschim Vihar with regard to some other call. He has further deposed that he along with Constable Rajesh reached the spot within 1015 minutes and the Crime Team reached the spot at about 2.30/2.45 p.m. who remained at the spot for about one to one and a half hour. According to the witness, prior to his reaching to the spot no other police official reached the spot but the PCR was already present at the spot. Witness has further deposed that the PCR remained there for about half an hour and left the spot at about 2:30 p.m. According to the witness, he sent the Rukka at about 4:00p.m. but he does not remember at what time Constable Rajesh came back with the copy of FIR and Rukka and has voluntarily added that he might have came back after about half an hour. He is unable to tell how long SHO remained at the spot along with his staff since he (witness) was St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 52 relieved by the Inspector Randeep Talwar. He has testified that he left the spot at around 4:45p.m. and as soon the SHO Randeep Talwar reached the spot he along with Constable Rajesh left the spot to attend another call. He has denied the suggestion that he prepared Rukka while sitting in the police station or that all the memos and seizing and sealing work was done while sitting in the police station by him. Witness has further denied the suggestion that signatures of the accused were taken on the blank papers and later on converted into various memos and statements or that the pullandas were prepared in the police station. He has denied the suggestion that the complainant Ram Pal told them that two rounds had been fired, one on the wall and other in the air and has voluntarily added that they were told that four round were fired.
(63) Witness SI Swaroop Singh has further denied the suggestion that four empty cartridges have been planted upon the accused at the instance of the complainant or that two rounds have been fired from the gun of the accused whereas two rounds including one which was fatal to the deceased was fired from some other gun/weapon. He has denied the suggestion that he deliberately did not investigate the aspect of firing from another weapon and had diverted the investigation towards the accused or that he did not record the correct statement of Ram Pal wherein he had stated that only two rounds were fired in the air. According to the witness, he did not make inquiries from Ram Pal about his job whether he plies rickshaw or not. He has further denied the suggestion that the Ram Pal did St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 53 not do the work at the Tea stall of the deceased and in lieu of work no consideration was being paid by the deceased to Ram Pal. He has also denied Ram Pal showed bullet marks on the wall. The witness has testified that after the day of incident, he had never joined the investigation of this case. He has also deposed that the arrest memo was prepared before his departure from the spot. He has denied the suggestion that he did not carry fair and proper investigation or that the investigation were motivated against the accused. Witness has further deposed that the Investigating officer had recorded his statement only once that is on the same day at the spot itself and thereafter no other statement was recorded.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(64) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to the accused Vishnu Swaroop which he has denied. He has denied all the allegations against him and has stated that he is innocent and has been falsely implicated by the police. According to the accused, he was not present at the spot and he was lifted from the bank. He has further stated in order to save the real culprit, the present case was foisted upon him and Ram Kanwar has deposed against him since he was a habitual drinker and usually used to roam around the bank during his duty hours. According to the accused many times he had objected and made oral complaints to the bank officials against Ram St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 54 Kanwar. He has further stated that Ram Pal himself is the real culprit as the deceased was not giving any money against the work done by Ram Pal. He has also stated that he was not having any money transaction with the accused and has been falsely implicated at the instance of Ram Pal. (65) The accused however preferred not to lead any evidence in his defence.
FINDINGS:
(66) I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. First, I propose to deal with all the allegations/ averments made by the various witnesses individually in a tabulated form as under and later on comprehensively:
Sr. Name of the Details of deposition No. witness PUBLIC WITNESSES/ EYE WITNESSES:
1. Ram Kanwar Singh He is the Peon of Syndicate Bank, B2 Block, Paschim (PW1) Vihar, Delhi and is an eye witness to the incident. He has deposed on the following aspects:
1. That on 19.11.2007 during lunch time at about 2:00 p.m. he was going to the shop of Kanwar Singh Bhandari behind the Bank for having his lunch.
2. That the accused Vishnu Swaroop was working as a Security Guard in the same bank and was already present at the above said shop for having tea.St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 55
3. That the accused fired from his gun upon Kanwar Singh Bhandari and immediately after the incident he and one Rampal (an employee of deceased Kanwar Pal Singh) caught hold accused alongwith gun at the spot itself and somebody informed the Police and the police came at the spot and he (witness) and Rampal handed over the accused and his gun to the Police.
4. That police checked the gun of accused and recovered two live cartridges and four empty cartridge cases were recovered from near the dead body.
5. That police prepared the sketch of empty cartridges which is Ex.PW2/B after that police prepared documents.
6. He has identified his signatures on documents Ex.PW2/B & Ex.PW2/C.
7. That the said live cartridges and empty cartridges were taken into possession by the investigating officer.
8. He has identified the gun Ex.P1 and five empty cartridges and two live cartridges Ex.P2 (Colly.).
[Court observation: though earlier he had stated that four live cartridges were recovered]
9. That he had also signed the documents Ex.PW2/E and Ex.PW2/F.
10. That the photographer of the Crime Team took photographs of the spot.
11. That he had told the Police that the accused fired dhana dhan (rapidly) from his gun.
12. That all the documents were prepared in his presence and the case property was taken into possession.
2. Rampal (PW2) He was the employee of the deceased and is an eye witness to the incident. He has deposed on the following lines:
1. That on 19th November (year he does not recollect) at about 1:45 PM to 2:00 PM, he was present in a tea shop of deceased Kanwar Singh Bhandari and was washing utensils as he was the employee in the shop. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 56
2. That the accused who was working as a Guard in the Syndicate Bank, Jawalaheri, Paschim Vihar, came to his shop.
3. That besides him, one Ram Kumar who was a peon in the said Bank was also present at the shop, taking his lunch.
4. That the accused asked the deceased to return his money on which the deceased told the accused to go away as he was not having money with him, on this the accused pointed the pistol towards the deceased and fired at him.
5. That he (witness) and Ram Kumar apprehended the accused with his gun and he noticed that deceased had died due to said bullet injury.
6. That somebody informed the Police and the Police reached the spot when he narrated the facts to the Police.
7. He has identified his thumb impression on original Rukka and has deposed that after the police came to the spot, they took the gun by the help of a cloth piece and after opening the gun, took out the cartridges.
8. That police also collected empty cartridges from the spot and took those articles to the Police Station after doing some writing work at the spot.
9. That he appended his thumb impression on the said writings and also identified his thumb impressions on sketch of empty cartridges, sketch of live cartridges, seizure memo of gun, arrest memo, personal search memo and site plan at point 'A' respectively.
10. That the gun was converted into a sealed pullanda and similarly, seven cartridges (four empty and three live) were also converted into a sealed pullanda and then both the pullandas were appended with the same seal of SSM.
11. The witness has correctly identified the gun Ex.P1 as the same which was recovered at the spot from the accused. He has also identified the seven cartridges as Ex.P2 (Colly.) St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 57 In his crossexamination the witness has explained that he had told the Police that Vishnu Swaroop had come to the thaiya and asked Kanwar Singh Bhandari to return his money which he had borrowed from him for two days on the occasion of Diwali and why he was not returning the money on his repeated asking. On this Bhandari said that he had no such money on which Vishnu Swaroop got agitated and shouted on Kanwar Singh Bhandari that he had become dishonest and he would finish him. "Vishnu Swaroop jise main pehle se janta hun, hamare thaiya pe aya aur Kanwar Singh Bhandari ko kehne laga ki Diwali pe jo tune mujhse 10,000/ rupaiya, do din ki baat kahakar udhar leye teh, mere baar baar mangne par lauta kyon nahi raha. Toh Bhandari bola ki mere pass abhi nayi hai, toh Vishnu Swaroop gushse mein aag baboola ho gaya aur chillane laga ki sale tune mere jina haram kar diya hai aur tu roz tal matol kar raha hai. Tere niyat kharab ho gaya hai, aaj mai tera kaam tamam kar deta hoon".
3. Hukum Singh He is the nephew of the deceased who has proved that on (PW4) 20.11.2007, he identified the dead body of his uncle Kanwar Sigh Bhandari in mortuary SGM Hospital vide memo Ex.PW4/A and after the postmortem dead body was handed over to them vide memo Ex.PW4/B.
4. Uttam Singh (PW5) This witness has also proved that on 20.11.2007, he identified the dead body of Kanwar Singh Bhandari in the mortuary of SGM Hospital and his statement was recorded which is Ex.PW5/A and after postmortem dead body was handed over to them.
5. Rohit Jain (PW6) He is an independent witness who was present at the spot when the incident took place. He has deposed on the following aspects:
1. That he was working at Sachdeva Handloom, Jwala Heri Market, Paschim Vihar.
2. That in the month of November i.e. 19.11.2007 at about 1:30 p.m. he was present near Syndicate Bank, B2 Market, DDA Flats, Paschm Vihar, Delhi, and St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 58 was getting his scooter repaired from a Mistry when he heard the noise of firing on which he immediately reached to the place of occurrence and saw one person was lying on the ground.
3. That the public were calling him as a chai wala and a guard of Syndicate Bank had also been apprehended there with a gun.
4. That he made call to 100 number through his mobile phone no. 9250800128 and after some time Police reached to the spot and recorded his statement.
5. That the person who was apprehended there was the guard of Syndicate Bank.
6. He could not identify the accused by face due to lapse of time of about two to three years, but he confirmed that the person who was apprehended was guard of Syndicate Bank namely Vishnu Swaroop.
MEDICAL EVIDENCE
6. Dr. V.K. Jha (PW3) This witness has proved that on 30.11.2007 he was posted in the mortuary of SGM Hospital, Mangol Puri and on that day he conducted the postmortem on the body of Kanwar Singh, 40 years male S/o Bhag Singh, as sent by Inspector Randeev Talwar of Police Station Paschim Vihar vide postmortem report which is Ex.PW3/A. He has proved that the built of the body was moderate; Rigor mortis was present on all body parts and postmortem staining was at back and eyes were closed; conjuctivae was normal, cornea was hazy, mouth was closed, tongue was inside. He has further proved the following external injuries on the body of the deceased:
1. Lacerated perforated wound 2 cm above umblicus and 5 cm X 3.5 cm X abdominal cavity deep, placed in mid line, margins were bruised, abraded collar of one mm was present around the wound blakish in colour.
2. Lacerated perforated wound at the level of left nipple, 4 cm X 3 cm X chest cavity deep, abraded collar present and margins were bruised.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 59
3. Lacerated perforated wound 4 cm above left nipple 4 cm X 3 cm into cavity deep, margins were bruised, abraded collar present.
According to the witness, in all the above injuries, burning singing and tattoing was absent. The witness has deposed that on internal examination and exploration of Injury No. 1, it has crossed the skin muscle, vessels puncturing the intestinal coil and logged at T8 vertibra and on dissection of Injury No. 2 it has crossed the skin muscle vessels, 4th intercostal space and punctured the right atrium and lodged in chest cavity. Further, on dissection of Injury No. 3, it has crossed skin muscles, vessels, penetrated the left lung upper lobe. He has proved that after postmortem examination, he opined cause of death as cardiac arrest consequent to fire arm injury. The witness has deposed that all injuries were antemortem in nature and Injury No. 2 and 3 were sufficient to cause death in ordinary course of nature and the time since death was approximately 46 hours. FORENSIC EVIDENCE:
7. Sh. V.R. Anand This witness has proved having examined the single barrel Senior Scientific breech loading (SBBL) gun of 12 bore bearing no. Officer (Ballistic), 90471977 which was marked F1; three 12 bore cartridge FSL Rohini (PW19) marked as Ex.A1 to Ex.A3 and four 12 bore cartridge cases marked as EC1 to EC4 (percussion cap of Ex.
EC3 and EC4 found absent). He has proved that the SBBL gun marked Ex. F1 was in working order and test fire was conducted successfully. According to him, the cartridges A1 to A3 were live ones and the cartridges Ex. EC2 to EC4 were fired empty cartridges. The cartridge Ex. A1 was test fired through the SBBL gun and test fired cartridge was marked as TC1. He has also proved that the characteristic of firing pin marks present on Ex. EC1, EC2 and on TC1 were compared and examined under the comparison microscope and were found identical, hence, EC1 and EC2 have been fired through SBBL gun and 12 bore mark Ex. F1. However, no opinion could be given whether Ex.EC3 and Ex.EC4 had been fired St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 60 through the SBBL gun Ex. F1 above or not due to insufficient data. He has proved his detailed report which is Ex.PW19/A. POLICE/ OFFICIAL WITNESSES (Proving investigations)
8. Hemant Sethi This witness has deposed as under:
(PW7) 1. That on 19.11.2007 he was posted as Sr. Branch Manager at Syndicate Bank, Paschim Vihar, New Delhi, and during those days the security guards were posted outside the Bank for security purposes.
2. He has identified the accused Vishnu Sawaroop in the Court who was deputed as Security Guard by SDS Security in the Bank.
3. That on 02.02.2008, he handed over a certificate to Police about the duty of accused on 19.11.2007 which is Ex.PW7/A. He has also proved the attendance register of the Security Guards kept in the Bank, certified photocopy of the entry is Ex.PW7/B and Ex.PW7/C.
4. That as per the entry dated 19.11.2007 (Mark X on Ex.PW7/C), Vishnu Swaroop attended the Bank at about 9:50 a.m. and due to the alleged incident, his departure time could not be mentioned in the register with signature.
5. That there is a contract between Syndicate Bank and SDS Security Pvt. Ltd., to provide Security Guards to Bank and accused Vishnu Swaroop was provided by the Security Company.
9. HC Naresh (PW8) He is a formal witness who has proved that on 19.11.2007, after registration of FIR, the duty officer handed over copy of FIR for delivering the same to the Area Magistrate and Senior Officers and he being the Special Messenger left the police station on Government Motorcycle No. DL1SM3627 and delivered the copies of the FIR to the area Magistrate and senior officers.
10. Inspector Malkit This witness was the Incharge of Mobile Crime Team who Singh (PW9) has proved that on 19.11.2007 pursuant to the call from PCR, he along with the members of Crime Team reached St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 61 near Jwala Heri Market in B2 Block near Syndicate Bank where a dead body was lying outside the stairs near the Syndicate Bank and four fired cartridges were also lying there. He has proved having inspected the scene of crime and the fact that the photographer Jaiveer took the photographs the the scene of crime from different angles and Constable Anil tried to lift the chance prints from there. He has proved having prepared his detailed report which is Ex.PW9/A. He has further deposed that later he came to know that the name of the deceased was Kanwar Singh.
11. HC Jaibir Singh He is a formal witness being the photographer of the (PW10) Crime Team who has proved that on 19.11.2007 he along with Crime Team visited the scene of crime i.e. B2 Market, Paschim Vihar and he took 12 photographs of crime which are Ex.PW10/P1 to Ex.PW10/P12 and negatives are Ex.PW10/P1 to Ex. PW10/P12.
12. HC Sushila (PW11) She is also a formal witness being the Roz Namcha Munshi who has proved that on 19.11.2007 at about 2:00 p.m. she received information from wireless operator that the Guard had fired upon somebody at B2, Main Market, near Syndicate Bank on which she made a DD entry in this regard vide DD No. 40B which is Ex.PW11/A and sent the same to ASI Swaroop Singh through Constable Amit.
13. Sone Lal Dhoore This witness is the Reader in the Office of SDM at (PW12) Biduna, Uttar Pradesh who has proved that 04.02.2008, ASI Raj Kumar moved an application for verification of the Arms Licence of Vishnu Swaroop S/o Sh. Babu Lal which application was marked to him by the SDM on the same day. He has proved having collected the Arms Renewal Register and found that the licence was renewed on 20.12.2005 upto 31.12.2008 and he endorsed his report on the application which is Ex.PW12/A. He has clarified that the order of the SDM is at point 'X' and his report is from point 'Y' to 'Y' bearing his signatures at point 'A' and subsequently, SDM forwarded his report from point 'Z' to 'Z' on Ex.PW12/A. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 62
14. Jai Lal Yadav This witness was working as Training Officer in SDS (PW13) Security at Safdarjung Enclave, which is a private company. He has proved that accused Vishnu Swaroop was selected as a Gunman who was given Duty Slip No. 19089 and was issued one identity card for a period from 17.07.2007 to 16.07.2008 which identity card is Ex.PW13/A. He also identified the copy of the documents of SDS Security pertaining to the accused Vishnu Swaroop, which are Ex.PW13/B1 to Ex.PW13/B7. He has also proved that accused was deputed as a Gunman at Syndicate Bank, Paschim Vihar.
15. W/ASI Nirmala She is a formal witness being the Duty Officer who has (PW14) proved that on 19.11.2007 at about 4:00 p.m. Constable Rajesh brought a Rukka sent by ASI Saroop Singh for registration of FIR and on the basis of said rukka she got recorded the FIR through Computer Operator copy of which is Ex.PW15/A and carbon copy of the Rukka is Ex.PW2/A.
16. HC Bala Sahib He is a formal witness being the official from CPCR who (PW15) has proved that on 19.11.2007 at about 1:57 p.m. he received information from mobile no. 9250800128 that one Guard had fired upon a man at B2 Market near Syndicate Bank, Paschim Vihar on which he prepared PCR Form which is Ex.PW15/A and sent it for circulation.
17. SI Mahesh Kumar He is a formal witness being the Draftsman of Crime (PW16) Branch who proved having prepared the scaled site plan of the spot of incident which is Ex.PW16/A.
18. Insp. Manoj Kumar This witness has proved that on 06.12.2007 investigations (PW17) of this case were marked to him, when he directed Constable Narender for depositing the case properties to FSL, Rohini who collected the sealed parcels from the MHC (M) and went to FSL, Rohini and deposited the case property.
19. HC Prakash chand He is the MHCM who has proved having made the (PW18) various entries in Register No. 19 and 21. He has proved the entry No.428 which is Ex.PW18/A & Ex.PW18/B;
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 63
entry no. 330/21 which is Ex.PW18/C; copy of the receipt which is Ex.PW18/D; copy of RC No. 41/21 which is Ex.PW18/E and receipt of FSL which is Ex.PW18/F.
20. SI Bhagirath He is the PCR Official who has proved that on 19.11.2007 (PW20) at around 2:00 p.m. he received message on a wireless set from the Control Room that at B2 Market, Near Syndicate Bank, Paschim Vihar, one Guard had fired on a person, on which information he immediately reached at the spot with the PCR Vehicle and found that one Tea Vendor was lying on the ground and Guard had already been apprehended by public persons. In the meantime, SI Swaroop Singh reached at the spot and he left the spot thereafter.
21. ASI Raj Kumar This witness has proved that on 04.02.2008, he went to (PW21) SDM Office, Vidhuna, District Oraiya, U.P. for verification of the Armed Licence No. 3780 and SBBL Gun No. 9047 of accused Vishnu Swaroop S/o Babu Ram.
He has proved having moved an application in this regard vide Ex.PW12/A and put it up before the Reader Soni Lal on which the Reader had given his report on the application itself and the same was forwarded by the SDM after which he returned back and handed over the verification report to Inspector Randeep Talwar.
22. Ct. Amit (PW22) He is a formal witness who has proved that on 19.11.2007 at about 2:00 p.m. Duty Officer handed over DD No. 40B for delivering the same to ASI Swaroop Singh. He has proved that when he left the police station, the Investigating Officer along with Constable Rajesh met him at the gate of police station Paschim Vihar and he handed over the DD No. 40B to the Investigating Officer.
23. HC Narendra He is a formal witness who has proved that on 06.12.2007 Kumar (PW23) as per directions of the Investigating Officer, he collected two sealed parcels from MHC (M) and after depositing the same in the FSL he handed over the receipt to MHC(M).
24. Ct. Suresh Kumar He is a formal witness who has proved that on 24.01.2008 (PW24) he collected sealed parcel from MHC(M) for depositing St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 64 the same to the FSL, Rohini vide RC No. 4/21 and deposited the same on the same day with the FSL which receipt was handed over to the MHC (M).
25. HC Rajesh Kumar This witness had visited the spot along with ASI Swaroop (PW25) Singh and has proved the following documents:
Ex.PW25/A Seizure memo of pullandas handed over
by the doctor after postmortem
Ex.PW25/B Seizure memo of photocopy of Arm
Licence, ICard of Security SOS Group
and one certificate of Syndicate Bank
26. Insp. Randeep He is the Investigating Officer of the present case and
Talwar (PW26) apart from the documents already proved by the various
witnesses, he has proved the following documents:
Ex.PW26/A Application for postmortem
Ex.PW26/B Form 25.35(1)(b)
Ex.PW26/C Application addressed to autopsy
Surgeon
Ex.PW26/D Brief Facts
Mark PW26/X1 MLC of the accused
Mark PW26/X2 DD No. 21A dated 19.11.2007
27. Retd. SI Swaroop He is the initial Investigating Officer who has proved the
Singh (PW27) following documents:
Ex.PW27/A Application for preserving the dead
body
(67) Coming now to the microscopic evaluation of the evidence
against the accused.
No delay in registration of FIR:
(68) It is a settled law that promptness of FIR justifies the inference
that the story is not concocted. In this regard the Hon'ble Apex Court in the case of Bhag Singh Vs. State of Punjab reported in 1971 Cr LJ 903 has St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 65 observed as under :
".... The promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up....."
(69) In the present case, the prosecution has examined one Rohit Jain (PW6) who had made the PCR call. He has proved that on the date of incident he was present near Syndicate Bank, B2 Market, DDA Flats, Paschim Vihar, Delhi where he was getting his scooter repaired from a mechanic. According to him, he heard the noise of firing on which he immediately reached the place of occurrence and saw that one person was lying on the ground and public persons were calling him as Chaiwala. He also noticed the guard of Syndicate Bank had been apprehended there with the gun by the public whose name he came to know was Vishnu Swaroop. He has proved that he immediately made a call to 100 number through his mobile No. 9250800128. He has not been able to identify the accused by face and has explained that it was on account of lapse of time since about twothree years had lapsed but has confirmed that the person who was apprehended at the spot was the guard of Syndicate Bank and also confirmed that the said person who was apprehended was in uniform and he came to know that the name of the person was Vishnu Swaroop. This fact also finds due corroboration from the PCR form Ex.PW15/A duly proved by HC Bala Sahib (PW15) from the PCR who has proved having received St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 66 information from mobile no. 9250800128 at about 1:57 PM on 19.11.2007 on which he prepared the PCR form which is Ex.PW15/A wherein it is specifically recorded that B2 Market near Synidicate Bank, Paschim Vihar Chowkidar had fired upon a person (B2 ki market Synidicate Bank ke pass Paschim Vihar Chowkidar ne aik aadmi ko goli marr di). The WT messages as reflected in the said PCR Form indicate a reporting to the Control Room at 14:08 hours by PCR Van P76 that a private security guard had been apprehended and one person was injured [ i.e. Chowkidar (Pvt. Security Guard) ko kabu kar liya hai. Ek majroob hai. CAT bhijwaye. Pet mein nabhi ke nieche goli lagi hai]. Again at 14:20 (2:20 PM) information was sent by PCR Van P76 to the Control Room that as reported by Inspector Investigations the injured was dead and therefore not being taken to the hospital (Inspector Investigation ne kaha Dead hai. Hospital le jane ki zarurat nahin hai). Further, at 14:45 PCR Van Tiger48 transmitted the following message to the Control Room:
Bhandari S/o Unknown, R/o Janakpuri, Age 45 years piche se Garhwal ka rehne wala hai jo dead hai. Goli marne wala Vishnu Swaroop S/o Babu Ram R/o Nihal Vihar A125 Age 51 saal Syndicate Bank mein Private Security guard ko kaam karta hai. Marne wala chai ki dukan lagata tha. Goli maarne ka karan abhi pata nahi hai.
Vakya - B2 Market. Gurdwara ke paas main road,
Paschim Vihar
Call se 10 minute pehle ki vaardat hai. Inspector
Investigation Ranjeet Talwar hai.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 67
(70) Again at 14:51 (2:51 PM) a message was received from PCR
Van P76 that four cartridges were lying at the spot (4 kaartoos ke khokhe moka par pare hain. Ek naal bandook gatte ke khokhe hain). (71) These WT messages sent to the Control Room at the first instance which find due corroboration from the statement of Ram Pal made to the police which is Ex.PW2/A on the basis of which the FIR was registered at 6:15 PM, mentioning the time of incident as 1:50 PM (the PCR call being made by public person at 1:57 PM) lends authenticity and credibility to the case of the prosecution.
Identity of the accused:
(72) In so far as the identity of the accused Vishnu Swaroop is concerned, at the very outset I may mention that in the first information to the Police vide DD No. 40B Ex.PW11/A the information received was regarding shooting by a Guard; Secondly the accused has been specifically named in the FIR at the first instance; Thirdly he had been apprehended at the spot of the incident itself by public persons and lastly he has been correctly identified in the Court by those public witnesses namely Ram Kanwar Singh (PW1) and Ram Pal (PW2) who were known to the accused previously and their testimonies find due corroboration from the testimony of Rohit Jain (PW6) an independent witness who had made a call to the PCR from his mobile phone No. 9250800128 after he saw that a Chaiwala had been fired upon by a guard who had been apprehended at the spot itself St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 68 by the public persons. In view of the above, I hereby hold that the identity of the accused stands established.
Ocular Evidence/ eye witness account and apprehension of the accused from the spot:
(73) Ocular evidence/ eye witness count is the best evidence in any case. In the present case the accused Vishnu Swaroop and the deceased Kanwar Singh Bhandari were known to each other. The accused had been apprehended at the spot of the incident itself by PW1 Ram Kanwar Singh, Peon at Gyndicate Bank, B2 Block, Paschim Vihar i.e. the same bank in which the accused Vishnu Swaroop was the Security Guard and also by PW2 Rampal who was employed with the deceased Kanwar Singh Bhandari and was washing utensils. Both of them witnessed the accused firing upon the deceased on which they immediately apprehended him at the spot of the incident itself and handed over him to police thereafter. (74) Coming first to the testimony of Ram Kanwar Singh (PW1), the relevant portion of the same is as under:
"......... I am working as Peon at Syndicate Bank, B2 Block, Paschim Vihar, Delhi. On 19.11.2007 during lunch time at about 2:00 PM, I was going to the shop of Kanwar Singh Bhandari behind the bank for having my lunch. Accused Vishnu Swaroop was working as security guard in our bank and he was present at the shop of Kanwar Singh Bhandari for having tea. When I reached at the shop of Kanwar Singh Bhandari to take lunch, accused present in the Court today, who was working as Security Guard in Syndicate Bank, B2, Paschim Vihar St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 69 also came at the spot with his gun in his hand. After coming to the shop of Kanwar Singh Bhandari, accused present in Court today fired from his gun upon Kanwar Singh Bhandari. Immediately, I and Rampal, an employee of Kanwar Singh Bhandari caught hold accused with gun at the spot.
Somebody informed the police and they came at the spot. I and Rampal handed over the accused and his gun to the police. Police had seized the gun of accused after checking the same wherein two live cartridges were recovered. Four empty cartridge cases were recovered from near the dead body......"
(75) The said witness has further in his testimony explained that all the documents were prepared in his presence. The Ld. Defence Counsel has pointed out that this witness in his crossexamination has contradicted himself since earlier in his examination in chief he had stated that the accused was already present at Thaiya (Tea Stall) when he (witness) reached there whereas in his crossexamination he has stated that he (witness) was taking lunch when the accused reached there. I have considered the submissions made and the contradictions so highlighted and I may observe that the said contradiction is immaterial. The main issue is whether the witness was present at the spot when the actual incident of firing took place or not. It becomes immaterial whether before the incident witness was having food when accused came or whether accused was already present when witness came. In the examination in chief while at St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 70 one place the witness has stated that the accused was present to have tea and at other place he stated that he (accused) came to the spot, showing that what the witness meant was that the accused who was already present at the Tea Stall having come there for having tea and then he came to the exact place where the firing incident took place. The fact of the matter is, that while the witness Ram Kanwar Singh was present at the spot, the accused had started firing on the deceased and was caught hold by the witness along with Ram Pal. The witness has explained that when the accused started firing upon the deceased, he along with Ram Pal caught hold him while Ram Pal caught hold from his back, he himself caught hold the accused from front side. He has also explained that he caught hold of the gun and also snatched the same from the accused and handed over the same to the police who reached there within twothree minutes. It is only these facts which are relevant and the contradiction as pointed out are in fact no contradictions at all. The confusion has been raised only because of the manner in which the witness has explained the incident. (76) Coming now to the testimony of Rampal (PW2), the relevant portion of the same is as under:
"..... On 19th November however, I do not remember the year, around 1:45 pm to 2:00 pm, I was present in a shop of Kanwar Singh Bhandari, which is a tea shop and was washing the utensils. I was an employee in the said tea shop under Kanwar Singh Bhandari who was its owner. In the meanwhile, Vishnu Pratap (at this stage, witness pointed out towards accused St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 71 Vishnu Swaroop present in the Court today) came from Syndicate Bank, Jawala Heri Paschim Vihar at our shop which is also located in the same market. At that time accused was working as a guard in the said Syndicate Bank. Besides myself, Ram Kumar, Peon in the said Syndicate Bank was also present in our shop and was taking his lunch.
On arriving to our shop accused asked Kanwar Singh Bhandari, owner of the tea shop where I was an employee, to return his money, Kanwar Singh Bhandari told accused to go away as Kanwar Singh Bhandari was not having money with him. Accused pointed out pistol to Kanwar Singh Bhandari and fired at him. I and Ram Kumar who were present there apprehended accused with his gun.
I had noticed that Kanwar Singh Bhandari had died due to the said bullet injury. Somebody informed the police. Police arrived and I narrated the facts to the police....."
(77) I may observe that this witness Rampal has also been cross examined at length. He has identified the accused Vishnu Swaroop but has not been able to identify the gun and has explained that he had never taken the gun from the accused and therefore he would not be in a position to identify the same. He has also explained that at the time of incident he was a rickshaw puller and he sometimes used to work with the deceased in his shop. He has further explained that the tea shop was opened at about 6:00 AM and he remained there upto 8:00 AM. According to him, there was a St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 72 shop/ room at the place of the incident and tea was sold on a counter on a temporary Thaiya which had been provided by the bank for selling tea and keeping the goods. He has explained that the accused and the deceased were having very cordial relations and they used to take meals together and also used to sit together and talk cordially. According to this witness, prior to the incident though no quarrel took place between the accused and the deceased but there was exchange of hot words when accused was demanding his money which he had lend to deceased. He has in his cross examination he has admitted having told the police that Vishnu Swaroop had come to the Thaiya of the deceased and asked him to return his Rs. 10,000/ which he had taken on the eve of Diwali on which the deceased told him that he had no such money on which the accused got annoyed and shouted at him (deceased) " Saale tune mera jine haram kar diya hai aur tu roz talmatol kar raha hai. Teri niyat kharab ho gayi hai, aaj main tera kaam tammam kar deta hoon...". Noticing that in the examination in chief the witness had denied that no such conversation had taken place between the accused and the deceased but in the crossexamination having admitted the same, the Court asked the witness to explain the discrepancy on which he explained that whatever he had heard in the conversation between the accused and the deceased, he told the same to the police in his statement and should be taken as correct. The witness has further explained that the accused was standing at a distance of 1012 feet from the deceased when he fired upon the deceased. The witness has also explained that the accused St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 73 had fired four gun shots, out of which two hit the deceased, one gun shot hit the wall and the other went off in the air by passing near the Bhandari. He has also explained that he did not catch hold of the deceased immediately at that time since he had got scared as the accused was having his loaded gun with which he was firing upon the deceased. He has also offered an explanation for the same stating that physically the accused was much more sturdy than him since he himself was not well built and Ram Kanwar was handicapped (langra) whereas on the other hand the accused was well built. The explanation so offered by the witness is reasonable, natural and probable. He has also explained that when they tried to overpower the accused, he (accused) again fired twice. According to him, the accused tried to run away from the spot but they had caught hold of him due to which reason the accused could not run away.
(78) Ld. Defence Counsel has vehemently argued that it is evident from the testimony of Ram Pal (PW2) that he had made material improvements and is not consistent in his deposition and therefore is not a reliable witness. The Ld. Addl. PP for the State has on the other hand pointed out that both Ram Kanwar Singh (PW1) and Ram Pal (PW2) are illiterate persons and while Ram Kanwar Singh (PW1) is the peon, Ram Pal (PW2) is a rickshaw puller who used to assist the deceased Kanwar Singh Bhandari in his tea shop. I have considered the rival contentions. I may observe that a witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 74 and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment. [Ref.:
Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)]. Both the witnesses namely Ram Kanwar Singh (PW1) and Ram Pal (PW2) have stood by their statements earlier made to the police with regard to the identity of the accused, manner in which he had fired upon the accused and the fact that they had caught hold of the accused Vishnu Swaroop at the spot of the incident and snatched the gun which is the only relevant fact. The other contradictions and discrepancies so highlighted by the Ld. Counsel are all immaterial and will not be fatal to the case of the prosecution. Therefore, I hold that the eye witnesses Ram Kanwar Singh (PW1) and Ram Pal (PW2) have been able to conclusively prove and establish the following aspects:
➢ The identity of the accused;
➢ The role attributed to the accused of having fired at least four
gun shots at the deceased;
➢ Immediate death of deceased at the spot of the incident itself;
➢ Apprehension of the accused at the spot along with the gun.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 75
The accused was on duty as a Security guard at Syndicate Bank, Paschim Vihar at the time of the incident:
(79) The case of the prosecution is that the accused Vishnu Swaroop was employed as a Security Guard at Syndicate Bank B2, DDA Market, Paschim Vihar, Delhi through the SDS Securities. This aspect has been duly proved by PW7 Hemant Sethi, Senior Branch Manager who had issued the certificate of duty of the accused which is Ex.PW7/A and has also identified the accused in the Court as the security guard who was deputed through SDS securities on the date of incident. Further, Jai Pal Yadav (PW13) from SDS Security has also proved the employment of the accused and the duty roaster along with the Identity Card which are Ex.PW13/A & Ex.PW13/B showing the employment of the accused with their agency and the fact that he was on duty with the Syndicate Bank on the date of incident, which fact has been duly established.
Medical evidence:
(80) PW3 Dr. V.K. Jha has proved the postmortem report of the deceased which is Ex.PW3/A according to which report three lacerated perforated wounds were noticed on the body of the deceased, details of which injuries are as under:
i. Lacerated perforated wound 2 cm above umblicus and 5 cm X 3.5 cm X abdominal cavity deep, placed in mid line, margins were bruised, abraded collar of one mm was present around the wound blakish in colour.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 76 ii. Lacerated perforated wound at the level of left nipple, 4 cm X 3 cm X chest cavity deep, abraded collar present and margins were bruised. iii. Lacerated perforated wound 4 cm above left nipple 4 cm X 3 cm into cavity deep, margins were bruised, abraded collar present. (81) He has further proved that the cause of was was cardiac arrest consequent to firearm injuries and has further opined that the injuries no.
2 and 3 (Lacerated perforated wound at the level of left nipple 4 cm X 3 cm X chest cavity deep and Lacerated perforated wound 4 cm above left nipple 4 cm X 3 cm into cavity deep) were sufficient to cause death in the ordinary course of nature.
(82) The postmortem report reveals that via Injury No.1 the bullet had crossed the skin muscle, vessels puncturing the intestinal coil and logged at T8 vertibra; via Injury No. 2 the bullet had crossed the skin muscle vessels, 4th intercostal space and punctured the right atrium and lodged in chest cavity and via Injury No. 3 the bullet had crossed skin muscles, vessels, penetrated the left lung upper lobe. It is evident from the above that there were three firearm injuries on the body of the deceased and three pellets (pieces of cartridges) were recovered from the body of the deceased during the postmortem examination which were sealed and handed over the Investigating Officer (who later sent the same to FSL for examination).
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 77 Forensic Evidence:
(83) The FSL Report which is Ex.PW19/A which has been duly proved by Sh. V.R. Anand, Senior Scientific Officer (Ballistic), FSL which proves that the gun (Ex.P1) recovered from the possession of the accused Vishnu Swaroop was a firearm and the cartridges (Ex.P2) were ammunitions as defined under the Arms Act. However, he has not been able to prove as to whether the fired cartridges had been fired from the SBBL gun (belonging to the accused) due to insufficient data, naturally so because the cartridges which had been recovered from the body of the deceased were just pellets i.e. pieces and were in deformed condition. (84) Ld. Defence Counsel has submitted that benefit of the aforesaid should be given to accused. I find no merit in his prayers since this is not a case where the cartridge has not been matched with the firearm but a case where the Forensic Expert has not been able to give a definite opinion due to insufficient data (i.e. the bullet being deformed). I further hold that this will not be fatal to the case of the prosecution in view of the direct evidence which has come on record against the accused in the form of testimonies of the eye witnesses Ram Kanwar Singh (PW1) and Ram Pal (PW2) who both have not only proved the apprehension of the accused from the spot but also the recovery of the gun Ex.P1 from his possession.
Further, PW12 Sone Lal Dhoore, Reader from the office of SDM Biduna has proved the arm license Ex.PW12/A establishing that the firearm so recovered from the possession of the accused belonged to him. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 78 Whether the provisions of Sections 304 or Section 302 IPC would apply or not:
(85) The case of the prosecution is that murder of the deceased was intentional. The case of the prosecution is that the deceased had taken some loan from the accused which he could not return despite the accused repeatedly asking him to return the same and on the date of incident the accused again asked the deceased to return his money which he did not do on which the accused fired at him killing him at the spot. In this regard the testimony of Ram Pal (PW2) is most material. He was the person who had been assisting the deceased in running the Tea Shop and has specifically deposed the accused and the deceased were very good friends so much so that they used to take meal together and talk cordially. Further, it has also come on record by way of his testimony that prior to the incident there was no physical altercation between them but heated exchange of words when the accused demanded money from the deceased. He has specifically deposed that on the date of the incident the accused Vishnu Swaroop had come to the Thaiya of the deceased and asked the deceased to return his Rs.
10,000/ which the deceased was unable to pay on which the accused got agitated. The relevant portion of his testimony is as under:
"......... Vishnu Swaroop jise main pehle se janta hu, hamare thaiye pe aya aur Kanwar Singh Bhandari ko kehne laga ki Diwali pe jo tune mujhse 10,000 rupaiya, do din ki baat keh kar udhar leye thai, mere baar baar mangne par lauta kyon nahin raha. Toh Bandari bola ki mere pass abhi nahin hai, toh Vishnu St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 79 Swaroop Gusse mein aag baboola ho gaya aur chillane laga ki saale tune mera jina haram kar diya hai aur to roz talmatol kar raha hai. Teri niyat kharab ho gayi hai, aaj main tera kaam tamam kar deta hoon...."
(86) This fact came on record in the crossexamination of the witness Ram Pal (PW2) who earlier in his examination in chief had not given these details though he had stated that there was some heated exchange. It was only in his crossexamination that he himself mentioned about the same and struck to his version stating that the version which he was giving regarding the conversation between the accused and the deceased was correct. This being the background, it stands established that the reason for the quarrel was the sum of Rs.10,000/ which the accused had given to the deceased as a friendly loan leading to a verbal altercation and death of the deceased during the indiscriminate firing. I hereby hold that the prosecution has been able to establish the motive of the crime. It is a case of simple fight which took place between the two friends at the spur of the moment in which the accused who was already in possession of a licensed firearm being on duty as a Guard at Syndicate Bank in the area who had come to the shop of the deceased to have his lunch, in a fit of rage indiscriminately fired upon the deceased.
(87) Ld. Defence Counsel has vehemently argued that even if the occurrence is admitted to have taken place in the manner as claimed by the prosecution, the accused cannot be held guilty for the commission of St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 80 offence punishable under Section 302 IPC. It is argued that as the occurrence had taken place without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, the accused is entitled to the benefit of Exception 4 of Section 300 of the Indian Penal Code. On the other hand the Ld. Addl. Public Prosecutor for the State has argued that the present case squarely covered within the provisions of Section 302 Indian Penal Code.
(88) In this regard, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 81 mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 82 first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
(89) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(90) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 83 answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note:
All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45). (91) It is submitted by the Ld. Defence Counsel that the provisions of Section 302 IPC has no application as the assault was made during the course of sudden quarrel and Exception 4 of Section 300 IPC applies whereas the plea of the Ld. Addl. Public Prosecutor is that the manner in which three shots have hit the deceased at a close range, is indicative of his intent.
(92) For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 84 advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1.
There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 85 blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight;
(c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage.
(93) Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 86 whether undue advantage has been taken. [Ref.: Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769] (94) To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of selfcontrol but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not perse palliating circumstance and only unpre meditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir Singh Vs. State of Haryana reported in 2000 (3) SCC 327: AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012]. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 87 (95) Applying the settled principles of law to the facts of the present case it is evident Firstly that both the accused and the deceased belong to poor families while the accused Vishnu Swaroop was a security guard, the deceased Kanwar Singh Bhandari was a tea vendor (Chaiwala). Secondly the evidence on record suggests that they had cordial relations and prior to the incident they used to sit together and took tea and lunch together and perhaps it was for this reason that when the deceased was in financial difficulty that the accused who is equally poor person (being a security guard hired through a private agency), financially helped him at the time of his need. Thirdly it has also come on record that the accused had been repeatedly asking the deceased to pay back the amount and even on the date of incident when the accused came to the tea stall, there is nothing to suggest that his behaviour was abnormal. Rather, on the contrary it is evident from the testimony of Rampal (PW2) that he had come to the tea stall during lunch time in routine to have tea when he asked the deceased to return the money which he (accused) had given to the deceased. Fourthly initially there was a simple talk of the accused asking for money and it is thereafter that the matters went out of hand when there was a verbal altercation between the accused and the deceased when the deceased tried to skirt the issue which had extremely agitated the accused because he (accused) felt cheated and hence told the deceased that he (deceased) had become dishonest. Fifthly it is further an admitted that the accused was a St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 88 security guard and was in a possession of a licensed gun which he kept with him during the course of his duties and working hours. On the date of incident the accused Vishnu Swaroop was on duty and hence was in possession of the firearm in normal course of duty. Therefore, when the accused became agitated it was the firearm being already available with him, with which he had fired shots from the same. Here, I may note that this is not a case where the accused had gone back to fetch the firearm, rather, it was the firearm already available with him in the normal course of his duties from which he had fired at the spur of the moment. The act had been done by the accused in the moment of insanity. Lastly this sense of the accused feeling extremely hurt on being cheated by his friend, the deceased, is reflected from the testimony of Rampal (PW2) when he specifically deposed in the Court that the accused was telling the deceased that he had become dishonest (Teri niyat kharab ho gaya hai, aaj mai tera kaam tamam kar deta hoon). The prosecution has not been able to successfully meet this aspect.
(96) As a Court one cannot be oblivious of the tribulations, sufferings and ordeals faced by a common man in day to day life particularly by those who are poverty stricken a section to which both the accused and the deceased belonged. It is perhaps for this reason that earlier, being good friends, the accused provided financial assistance to the deceased when he (deceased) was in dire need of money but later when he asked for return of the same and the deceased tried to skirt and evade the St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 89 issue, the accused lost control over himself feeling betrayed and let down by a person whom he had trusted and hence it is in this fit of rage that he indiscriminately fired at the deceased.
(97) It is evident that there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the accused had premeditated. As noticed earlier, the occurrence took place when the deceased Kanwar Singh Bhandari refused to pay the amount. The quarrel/ altercation appeared to be sudden on account of heat of passion. The accused Vishnu Swaroop who was in possession of the licensed firearm, fired upon the deceased. It is, therefore, evident that there was no sufficient lapse of time between the quarrel and the fight which means that the occurrence was "sudden" within the meaning of Exception 4 of Section 300 IPC.
(98) In view of the above, I hereby hold that the present case falls within the provisions of Exception 4 to Section 300 Indian Penal Code and hence, I hold the accused Vishnu Swaroop guilty of the offence under Section 304 (1) Indian Penal Code and also under Section 27 of Arms Act.
FINAL CONCLUSION:
(99) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 90 which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(100) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record, the following facts stand established:
➢ That the accused Vishnu Swaroop was posted as Guard (gunman) at Syndicate Bank, B2 Block, DDA Market, Paschim Vihar, Delhi.
➢ That the deceased Kanwar Singh Bhandari was running a tea shop/ Thaiya near the Syndicate Bank.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 91 ➢ That on 19.11.2007 at about 1:50 PM the accused Vishnu Swaroop came to the Tea Shop of Kanwar Singh Bhandari and asked him to return his money on which Kanwar Singh Bhandari showed his inability to return the money. ➢ That there was exchange of hot words between the accused Vishnu Swaroop and the deceased Kanwar Singh Bhandari as the accused felt betrayed by the deceased.
➢ That the accused Vishnu Swaroop who was already in possession of a licensed gun SBBL of 12 bore bearing no. 90471977, being on duty as a Security Guard at Syndicate Bank, pointed the same at Kanwar Singh Bhandari and indiscriminately fired upon him thereby causing the death of Kanwar Singh Bhandari at the spot itself.
➢ That Ram Pal who was an employee with the deceased and Ram Kanwar a Peon in the Syndicate Bank, together caught hold of the accused Vishnu Swaroop and Ram Pal also snatched the gun from the hand of the accused.
➢ That Rohit Jain who was repairing his two wheeler scooter from a mechanic in the market, heard the noise and made a call to PCR from his mobile phone No. 9250800128 at 1:57 PM after which the accused was handed over to the police along with his gun.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 92 ➢ That the deceased had received three bullet injuries and as per the postmortem report the cause of death was cardiac arrest consequent to firearm injuries which injuries have been proved to be sufficient to cause death in the ordinary course of nature. (101) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence?
The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(102) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 93 (103) It has, however, been observed that there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the accused had premeditated and the occurrence took place when the deceased Kanwar Singh Bhandari refused to pay the amount. It is writ large that the quarrel/ altercation appeared to be sudden on account of heat of passion. The accused Vishnu Swaroop who was in possession of the licensed firearm being on duty at the time of the incident as a Guard of Syndicate Bank, fired upon the deceased. Hence, it is evident that there was no sufficient lapse of time between the quarrel and the fight which means that the occurrence was "sudden" within the meaning of Exception 4 of Section 300 IPC and I hereby hold that the present case falls within the provisions of Exception 4 to Section 300 Indian Penal Code and I hereby hold the accused Vishnu Swaroop guilty of the offence under Section 304 (1) Indian Penal Code and also under Section 27 of Arms Act for which he is accordingly convicted.
(104) Case be listed for arguments on sentence on 17.7.2012.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 13.7.2012 ASJII(NW)/ ROHINI
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 94
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 79/2011 Unique Case ID No.: 02404R0095412008 State Vs. Vishnu Swaroop S/o Sh. Babu Ram R/o House No. 125, Nihal Vihar, Near Laxmi Park, Nangloi, Delhi.
Original resident of:
Village Rampur Kanwar, PS - Paffund District, Orriya, Uttar Pradesh.
(Convicted)
FIR No.: 797/2007
Police Station: Paschim Vihar
Under Sections: 302 IPC & 27 Arms Act
Date of judgment: 13.7.2012
Arguments heard on: 17.7.2012/ 21.7.2012
Date of sentence: 25.7.2012
APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Vishnu Swaroop in judicial custody.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 95
ORDER ON SENTENCE:
Vide a detailed judgment dated 13.7.2012 this Court has held the accused Vishnu Swaroop guilty of the offence under Section 304 (PartI) Indian Penal Code and Section 27 of the Arms Act.
The deceased Kanwar Singh Bhandari was running a Tea Stall behind Syndicate Bank, B2 Block, DDA Market, Paschim Vihar, Delhi on a counter provided by Syndicate Bank and the accused Vishnu Swaroop was the Security Guard/ Gunman posted at the same bank i.e. Syndicate Bank through SDS Securities Limited. Both Kanwar Singh Bhandari and Vishnu Swaroop were good friends and had extremely cordial relations and often took their lunch together. On 19.11.2007 the accused Vishnu Swaroop came to the tea stall of Kanwar Singh Bhandari for having tea and there was a verbal altercation between them in connection with a money matter. The accused Visnhu Swaroop had asked Kanwar Singh Bhandari to return the amount of Rs.10,000/ which he had lend to him on Diwali form one or two days which amount the deceased was not returning. Vishnu Swaroop told Kanwar Singh Bhandari that he had taken money for just twothree days and was not returning the same despite his repeated demands and appeared to have become dishonest, on which Kanwar Singh Bhandari also retorted stating that if he (deceased) did not have the money, from where he will pay up. The matter got aggravated and Vishnu Swaroop who was already in possession of a gun being Security Guard on duty at Syndicate Bank, in a St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 96 fit of rage pointed the same at Kanwar Singh Bhandari and indiscriminately fired at him thereby killing Kanwar Singh Bhandari at the spot itself. Vishnu Swaroop was immediately apprehended by Ram Pal a helper with Kanwar Singh Bhandari and one Ram Kanwar a Peon in the Syndicate Bank who was also present at the tea stall. They both caught hold of Vishnu Swaroop while Ram Pal also snatched the gun from the hand of the accused. One Rohit Jain an independent public witness who was in the vicinity of tea stall getting his scooter repaired from a mechanic, on hearing the gun shots immediately came to the spot where he saw the deceased a chaiwala lying on the ground and the Security Guard whose name he later on came to know as Vishnu Swaroop had been caught by public persons. He immediately made a call to the PCR from his mobile phone No. 9250800128 at 1:57 PM and within twothree minutes police came to the spot and the accused was handed over to the police along with his gun. The statement of Ram Pal was recorded on the basis of which the present FIR was registered and the accused Vishnu Swaroop was arrested.
During the trial both Ram Kanwar Singh and Ram Pal had appeared in the Court and supported the prosecution case. They have identified the accused who was known to them previously and have also proved his apprehension at the spot itself along with the weapon of offence i.e. the gun. Rohit Jain has also appeared and proved the call made by him to the police and the apprehension of the accused. On the basis of the testimonies of the various witnesses examined by the prosecution, St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 97 particularly Ram Kanwar Singh and Ram Pal and also on the basis of medical, forensic and other circumstantial evidence on record, this Court vide its judgment dated 13.7.2012 has held that the prosecution was able to successfully prove the allegations against the accused Vishnu Swaroop. It stands established that Vishnu Swaroop and the deceased Kanwar Singh Bhandari were having cordial relations and were good friends and that the deceased had borrowed a sum of Rs.10,000/ from the accused which amount the deceased was not returning to the accused despite repeated demand. It also stands established that on the date of incident the accused had once again asked him (deceased) to return the money which the deceased was unable to return and there were heated arguments between the two wherein Vishnu Swaroop charged Kanwar Singh Bhandari of becoming dishonest and in a fit of rage, he fired repeated shots upon the deceased with his licensed gun which he was carrying at that time (being a security guard on duty).
While holding the accused Vishnu Swaroop guilty of the offence under Section 304 (PartI) Indian Penal Code, this Court has further observed that as a Court one cannot be oblivious of the tribulations, sufferings and ordeals faced by a common man in day to day life particularly by those who are poverty stricken a section to which both the accused and the deceased belonged and it was perhaps for this reason that earlier, being good friends, the accused provided financial assistance to the deceased when he (deceased) was in dire need of money. However, later St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 98 when the accused asked for return of the same and the deceased tried to skirt and evade the issue, the accused lost control over himself feeling let down and betrayed by a person whom he had trusted and therefore it was in this fit of rage that he had indiscriminately fired upon the deceased with a licenced gun which was already in his possession being on duty. It has also been observed by the Court that there was no enmity between the parties and there were no allegation of the occurrence being premeditated. This Court has also observed that the quarrel/ altercation appeared to be sudden on account of heat of passion and the accused Vishnu Swaroop who was in possession of the licensed firearm being on duty at the time of the incident as a Guard of Syndicate Bank, fired upon the deceased and there was no sufficient lapse of time between the quarrel and the fight which means that the occurrence was "sudden" within the meaning of Exception 4 of Section 300 IPC and hence, it has been held that the present case fall within the provisions of Exception 4 to Section 300 Indian Penal Code. Therefore, this Court has held the accused Vishnu Swaroop guilty of the offence under Section 304 (1) Indian Penal Code and also under Section 27 of Arms Act for which he has been accordingly convicted.
Heard arguments on the point of sentence. The convict Vishnu Swaroop aged about 57 years is reported to be a Matriculate and prior to his arrest, was working as a Guard/ Gunman. He has a family comprising of aged widow mother of about 85 years, wife and three married daughters. He is in judicial custody since 19.11.2007. Ld. Counsel appearing on behalf St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 99 of the convict has vehemently argued that the convict Vishnu Swaroop is a first time offender and is not involved in any other case. It is argued that the convict is the sole bread earner of his family who is totally dependent upon the convict. Ld. Counsel has prayed that a lenient view be taken against the convict.
On the other hand the Ld. Addl. Public Prosecutor for the State has argued that the convict deserves no mercy keeping in view the nature of allegations involved and a stern view be taken against him. He has pointed out that the deceased was equally a poor person and has left behind a family comprising of his widow and four children (i.e. two girls and two boys) all of whom are minors and totally dependent upon her since Kanwar Singh was the sole bread earner of the family.
I have considered the rival contentions. The convict is a first time offender and is not involved in any other case and his subsequent conduct shows that immediately after the incident he did not run away from the site and even during the trial his conduct was of repentance. Keeping in view the aforesaid, a lenient view is taken against him and I award following sentences to him:
1. For the offence under Section 304 (PartI) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs. One lacs. In default of payment of fine the convict shall undergo Simple St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 100 Imprisonment for a period of six months. The entire fine amount of Rs. One lac, if recovered, shall be given to the widow of the deceased Kanwar Singh Bhandari as compensation under Section 357 Code of Criminal Procedure.
2. For the offence under Section 27 of Arms Act the convict is sentenced to Rigorous Imprisonment for a period of Four (4) Years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of fifteen days.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 101
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.07.2012 ASJII(NW)/ ROHINI
St. Vs. Vishnu Swaroop, FIR No. 797/07, PS Paschim Vihar Page No. 102