Anil @ Bahuwa @ Hakla v. State

1. By this appeal, the appellant challenges the judgment of the learned Trial Court dated 06th July, 2018 whereby the appellant was held guilty for murder of one Ghan Shyam Prasad (“deceased”); and also the order on sentence dated 09th July, 2018, whereby the appellant was directed to undergo rigorous imprisonment for life alongwith fine of ₹50,000/- in default whereof, simple imprisonment for 6 months, for offence punishable under Section 302 of the Indian Penal Code, 1860 (“IPC”), and also for rigorous imprisonment for 5 years alongwith fine of ₹20,000/- in default whereof, simple imprisonment for 2 months for offence punishable under Section 27 of the Arms Act, 1959.

2. Briefly, the prosecution case is that on the intervening night of 11th - 12th November, 2015, the deceased alongwith Vijay (PW-3), Mritunjay (PW-5), and Asha Ram (PW-6) was gambling in front of H.No. D-6, Chowk CC Road, Parvesh Nagar, Mubarakpur, Delhi. The appellant came there on a black Pulsar motorcycle and threatened to steal their money and further threatened that if anyone opposed him, he would shoot that person. The deceased objected to this behavior of the appellant on which, the appellant took out his pistol and shot the deceased on his left side temple region, after which the deceased collapsed. Other people present with the deceased fled away due to fear. Information was given to the police by one Sanjay Jamulkar (PW-1), on which ASI Naresh Kumar (PW-22) along with Ct. Niranjan reached the spot at about 1.50 AM and on reaching the spot, it was found that the injured had been taken to the hospital and blood was lying at the spot. ASI Naresh went to SGM Hospital, where the deceased was declared “brought dead”. ASI Naresh prepared the rukka (Ex.PW-22/D) on which FIR No.1412/2015 dated 12th November, 2015 under Section 302 IPC and Sections 25/27 Arms Act (Ex.PW-11/A) was registered at PS Aman Vihar.

3. Dr.Anurag Thapar (PW-21) at the SGM Hospital conducted the postmortem examination on the dead body of the deceased on 12th November, 2015 and tendered his report (Ex.PW-21/A). The report noted: “External examination (injuries etc.):

1. Firearm entry wound, oval shaped, 0.[7] x 0.[7] cm in diameter over left side of face, 4 cm in front of ear and 4 cm below the outer angle of left eye surrounded by abrasion collar and grease collar seen around the wound margin. On exploration, injury track passing through underlying skin, s/c tissues, muscles and fracturing left temporal bone, lacerating left and right temporoparietal lobes and bullet found embedded in right parieto temporal bone. Injury track is running upwards from left to right side with extensive blood extravasation along with track. … … Head:  Scalp: Subscalp bruising in B/L temporoparietal region.  Skull: Fracture of left temporal bone.  Brain: Diffuse thin film of subdural hemorrhage over B/L temporoparietal region. Time since death: apx 18 hours. Opinion: Cause of death is shock as a result of head injury due to rifled fire-armed weapon. All injuries are ante-mortem in nature.”

4. After registration of FIR, investigation was entrusted to SHO/Insp. Rajender Prasad (PW-23). On receipt of secret information, appellant was arrested on 13th November, 2015 from T-point, Mubarakpur Majri Road and Rama Vihar Road at about 5.30 PM (Ex.PW-23/B) and his disclosure statement (Mark PW-23/A) was also recorded. Thereafter, upon completion of investigation, charge-sheet was filed and the appellant was charged for offences punishable under Section 302 IPC for murder of the deceased, under Section 201 IPC for disappearance of firearm and also under Section 27 of the Arms Act. To prove its case, the prosecution examined 25 witnesses.

5. Learned counsel for the appellant assailing the impugned judgment contends that the eye-witnesses in the present case i.e. PW-3, PW-5 and PW-6, are unreliable as their statements are inconsistent and contradictory to the case of the prosecution. It is contended that these eye-witnesses, despite being closely associated with the deceased, neither informed the family nor the police about the incident until their statement was recorded after about 14 hours of the incident. Further, despite being present at the mortuary after the incident, the eye-witnesses did not disclose about the incident to the police, and this unnatural behavior of the eye-witnesses dents the prosecution story at its roots, for which reliance was placed on the decisions reported as (2008) 16 SCC 319 State of Tamil Nadu vs. Zubair @ Mohamed Zubair and (2003) 11 SCC 223 Joseph @ Jose vs. State of Kerala. It was further submitted that even otherwise, testimonies of the eye-witnesses PW-3 and PW-6 do not inspire confidence as they were detained in police custody for about two to three days after the incident. It was further contended that the police did not bring on record the CDR of the appellant to ascertain if the appellant was in fact present in the town at the time of incident. As per the case of the prosecution, the appellant came to the place of incident on a black Pulsar motorcycle which he had borrowed from his friend Manjoor (PW-10), however, PW-10 deposed that he had not given his motorcycle to the appellant on the day of incident. It was also the case of prosecution that the appellant was in possession of the said motorcycle on the day of arrest i.e. 13th November, 2015 however, as per the testimony of PW-10, the police came to his residence and seized the said motorcycle from him. It was further pointed out by learned counsel for the appellant that soon after receiving the information at about 1.30 AM on 12th November, 2015, the IO (PW-23) reached the spot and after inspection of the crime scene went to the mortuary, and despite being in close contact with the eye-witnesses at the crime scene as well as at the mortuary, the IO continued to be unaware about the existence of any eye-witnesses to the incident till about 3.00 PM on 12th November, 2015. PW-3 and PW-6 were apprehended later in the day and were kept in police station, which shows that the police coerced these two witnesses to concoct a story against the appellant.

6. Learned counsel for the appellant also contended that as per the prosecution story as mentioned in the charge-sheet, the incident was first disclosed by one Raju, who according to PW-3 was also an eye-witness, and who talked about the incident with one Satish. Thereafter, the said Satish told Sanjay (PW-1) about the incident, who in turn, called the police. Despite the crucial role played by Raju and Satish, their statement was neither recorded during investigation nor during trial. It was further pointed out that as per the case of the prosecution, the appellant had borrowed the alleged weapon of offence from one Sher Khan, from whom later the weapon of offence was recovered. However, no document pertaining to the recovery of said firearm was brought on record despite which the Investigating Officer sent the said firearm to ballistics. It was submitted that due to such procedural illegality, the FSL reports (Ex.PW-25/B, C and D) cannot be read against the appellant. It was also contended that the wife of the deceased Chinta Devi (PW-18) constantly requested the police to investigate the role of Sonu Dabas and his brother Chintu Dabas as the mastermind of the murder of her husband for which an application under Section 319 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) was also filed, however, no action on the said version of the wife of the deceased was taken, which shows a prejudicial and motivated act of the police against the appellant. It was, therefore, contended that in light of the discrepancies in the version of material witnesses including the eye-witnesses, and the facts as aforesaid, the present appeal be allowed and the impugned judgment be set aside.

7. On the other hand, learned APP for the State submitted that the prosecution has been able to successfully establish its case against the appellant and after proper appreciation of the evidences, the learned Trial Court has rightly convicted and sentenced the appellant and, therefore, the present appeal be dismissed. To buttress his contention, learned APP relied upon the following facts proved by the prosecution: i. From the testimony of the eye-witnesses Vijay Singh (PW-3), Mritunjay Pandit (PW-5) and Asha Ram (PW-6), it is evident that on the intervening night of 11th and 12th November, 2015, all these three witnesses along with the deceased were gambling, when the appellant came at the spot, threatened to snatch the gambled money and on objection by the deceased, the appellant took out a pistol and shot the deceased on his temple region from a pointblank range. This version of the eye-witnesses is corroborated by the post-mortem report (Ex.PW-21/A). ii. Sanjay Jamulkar (PW-1) deposed that his neighbor Satish informed him about the incident on which he informed the wife of the deceased and the police. This fact was also corroborated from the testimony of Chinta Devi (PW-18). iii. The scene of crime and the recoveries thereto were duly proved by the crime team report, as per which, one empty cartridge, two live cartridges with “KF 7.65” written on it, one green slippers and Ritz 555 playing cards were recovered from the spot (Ex.PW- 22/B). iv. As per the MLC of the deceased (Ex.PW-7/A), the deceased was declared “brought dead” with an alleged history of gunshot injury, and as per the post-mortem report (PW-21/A), cause of death was opined to be shock, as a result of head injury due to rifled firearm which was sufficient to cause death. v. The appellant was arrested on 13th November, 2015 at about 5.30 PM (Ex.PW-23/B) from T-point, Mubarakpur Majri Road and Rama Vihar Road on the basis of a secret information. As per the disclosure statement of the appellant (Ex.PW-23/A), the appellant took the weapon of offence from his friend Sher Khan and after using the same, the pistol was returned back to Sher Khan. This pistol was later recovered and seized from Sher Khan vide Register Entry-Pistol (Ex.PW-8/E), which records the seizure of the pistol from Sher Khan. vi. As per the forensic evidence, the pistol recovered (Ex.F[1]) was found in a working order. The characteristics of the fire pin marks and the breech face marks present on the recovered empty cartridge (Ex.EC[1]) was found identical with the test fired cartridges (Ex.TC[1] and Ex.TC[2]). The recovered empty cartridge case was also found to have been fired from the recovered pistol. The striation marks on the bullet recovered from the skull of the deceased (Ex.EB[1]) and on the test fired bullets (Ex.TB[1] & TB[2]) were found identical. vii. In his statement under Section 313 Cr.P.C., the appellant took a false defence of alibi by stating that on 11th November, 2015 at about 4.00 PM he had gone to Rohtak with a friend of Manjoor, Monti. However, PW-10 was silent on this aspect and did not support the defence of the appellant. The appellant did not also examine any witness to substantiate his alibi. Therefore, on this false plea of alibi, an adverse inference must be drawn against the appellant for which reliance was placed on the decision in (2012) 13 SCC 213 Sahabuddin vs. State of Assam. viii. When the Investigating Officer (PW-23) reached the house of the appellant, the appellant was found to be absconding and mother of the appellant told the IO that the appellant had not come back to the house for the last two days. Even otherwise, the appellant failed to disclose his whereabouts for the relevant time, till his arrest on 13th November, 2015, for which an adverse inference must be drawn against the appellant and in this regard, reliance was placed on the decision in (2013) 9 SCC 778 Sahib Hussain vs. State of Rajasthan.

8. Qua the contention put forth by the learned counsel for the appellant that the eye-witnesses to the incident neither informed the family members nor the police, learned APP for the State submitted that the same is not a ground to doubt the testimony of the witnesses as every person acts differently in such situation. In this regard reliance was placed on the decision in (2009) 17 SCC 208 Abuthagir & Ors. vs. State Rep. by Inspector of Police, Madurai. Qua the contention of non-examination of Satish and Raju, it was contended by learned APP that at best the same can be seen as a lapse on the part of the police, but cannot be held to be fatal to the case of the prosecution and for this reliance was placed on the decision in (2010) 10 SCC 374 Sambu Dass vs. State of Assam. It was further submitted by learned APP that the register entry of the Pistol (Ex.PW-8/E) was a document which clearly proves the seizure of the pistol from Sher Khan and is contrary to the contention on behalf of the appellant that there is no document to prove the recovery/seizure of the pistol.

9. Having heard learned counsel for both the parties at length and perusing the record, the following evidence emerges.

10. Vijay Singh (PW-3) stated that on the night of Diwali in 2015, on the 11th day of the month, 4-5 persons including himself were playing cards at Parvesh Nagar, near Chowk and at about 12.45 AM, the appellant came on a motorcycle and threatened that he would snatch the gambling money from them on which the deceased, who was also playing cards with them, objected, at which the appellant took out a pistol and shot the deceased on his temple region. All of them got scared and ran away. He further stated that he told these facts to the police on the evening of 12th November, 2015. He also stated that the appellant was dead drunk at that time. In his crossexamination, he stated that he did not inform the police about the incident and that Raju had informed one Satish and Satish then informed others about the incident. He also stated that he did not go to the house of the deceased to inform his family members about the incident. He further stated that on next morning, he went to the house of deceased after receiving information about his death from Raju and had thereafter also gone to SGM Hospital mortuary. He stated that he remained in the police station for about 2-3 days and nights.

11. Mritunjay Pandit @ Sonu (PW-5) deposed that on the intervening night of 11th and 12th November, 2015, he along with Vijay, Asha Ram and deceased was playing cards at Chowk at Parvesh Nagar, when the appellant came there on a black colour Pulsar motorcycle and threatened that he would snatch the gambling money and also that if anyone opposes him, he would shoot that person. On this, deceased asked the appellant how would he shoot, after which, the appellant took out a pistol and shot the deceased on the left side temple region. Deceased collapsed on the spot and he along with other persons fled away due to fear. In his cross-examination, he stated that he did not inform about the incident to anyone except his wife. He stated that he had gone to the mortuary but did not give the details about the incident to the police.

12. Asha Ram (PW-6) deposed that on the Diwali night last year, he along with Vijay, deceased and Sunil @ Sonu was playing cards at the Chowk. At about 11.00 PM, the appellant, who was drunk, came at the spot and started abusing them. Appellant asked them not to play “jua” or he would kill them. The deceased told the appellant not to abuse on which the appellant took out a pistol and shot the deceased on his left temple region and thereafter, the appellant stated that if anyone dared to speak anything, he would kill that person also. In his cross-examination, he stated that after the incident, he fled towards the house. On the next day he went to the house of Ghan Shyam, when his body was brought to the house after postmortem examination. He stated to have not gone to the mortuary at the time of post-mortem. He also stated that his statement was recorded by the police after 2-3 days of the incident.

13. Sanjay Jamulkar (PW-1) deposed that on the intervening night of 11th and 12th November, 2015 at about 1.00 AM when he was sleeping, his neighbor Satish came to his house and informed that someone had shot the deceased. He made a call on the mobile number of the deceased which was answered by the deceased’s wife and he informed her about the incident. Thereafter, he made a call to the police at number 100.

14. Manjoor (PW-10) deposed that he used to drive his Gramin Seva Vehicle i.e. Tata ACE No.DL 2W 3933 on Nangloi Mubarakpur route and he stopped plying on this route approximately 6-7 days prior to Diwali in