Dharmendra Kumar Tandon v. State

19. Learned APP further states that in the intervening night of 18th - 19th September, 2012, the appellant- accused entered the house of Shri Tarun Kalra (PW-26) by breaking a window and in the process suffered an injury on his thumb. He points out that Shri Tarun Kalra (PW-26) has deposed that the appellant-accused was looking for the house of the deceased- Dr. Sanjeev Dhawan. In fact, he states that upon a grapple in the stairs with appellant-accused and due to use of axe by the latter, Shri Tarun Kalra’s (PW-26) clothes got torn. He states that Shri Tarun Kalra (PW-26) was not medically examined as he did not suffer any visible injury and the same is deposed by investigating officer Insp. Manish Joshi (PW-33).

20. Learned APP states that the testimony of Shri Tarun Kalra (PW-26) is corroborated by the testimony of Shri Naresh Goel (PW-18), who is an eye witness to the said grappling. He states that the non-mentioning of knocking of door of Shri Naresh Goel (PW-18) by Shri Sarthak Dhawan (PW-13) and/or the fact that the statement of Shri Sarthak Dhawan (PW-13) was recorded at 09:30 a.m. are inconsequential as they are minor omissions/contradictions and do not go to the root of the matter. He further states that Shri Naresh Goel (PW-18) is a resident of House No.51 and therefore, mentioning of House No.52 in the deposition is an accidental slip.

21. Learned APP for State states that non-mentioning of the attack on Shri Tarun Kalra (PW-26) in the site plan, at the highest, points towards a defective investigation and thus no benefit can be given to the appellantaccused. Learned APP contends that within a short span of time the appellant-accused was arrested after the incident. He states that records reveal that within a short time many statements of witnesses were recorded, appellant-accused was arrested, inquest proceedings were conducted and post-mortem was done. Thus, according to him, non-mentioning of Section 307 IPC at the initial stage is not fatal.

22. He contends that upon reading the evidence of Shri Naresh Goel (PW-

18) and Shri Tarun Kalra (PW-26) in their entirety, there is no contradiction. He points out that no question with regard to delay in recording of statement of Shri Tarun Kalra (PW-26) was put to Insp. Manish Joshi (PW-33). According to him, nothing has come on record to discredit their evidence.

23. He contends that fifteen orders had been passed by the trial court detailing the efforts made to trace and serve Sangeeta Kaur and she was finally dropped on 08th August, 2016. He clarifies that Bittoo is the pet name of Shri Sandeep Kwatra (PW-22) and the same is apparent from the list of witnesses mentioned in the charge-sheet.

24. He states that Sangeeta Kaur was a maidservant at the house of deceased-Dr. Sanjeev Dhawan and nothing has come on record to the contrary. Instead the appellant-accused had put up a false story that Sangeeta Kaur was staying with him in Gurgaon in his deposition under Section 315 Cr.P.C., which stands belied by the evidence on record. In support of his contention, he relies upon the following portion of Section 313 Cr.P.C. statement of the appellant-accused:- “Q78. Have you anything else to say? Ans. I have been falsely implicated in this case. PWs are interested witnesses. Reports are manipulated, fabricated and tampered. I have not been supplied complete DNA report. I have collected certified copy of the DNA report on 27.05.2015 and second page of the report was not supplied to me. I do not know when it has been filed and I have not been provided copy till date. Sangeeta was living with me at Wazirabad, Gurgaon. She was not residing in the house of Dr. Sanjeev Dhawan. She was brought with me at the time of arrest from Gurgaon by the police officials. I have not killed Dr. Sanjeev Dhawan.”

25. Learned APP submits that the fact that the false evidence had been led by the appellant-accused should be taken as a relevant circumstance against the appellant-accused.

26. Learned APP emphasises that when the evidence of Shri Sarthak Dhawan (PW-13) and Shri Gopal Gosai (PW-20) is read together with Shri Tarun Kalra (PW-26), it clearly shows that Shri Sarthak Dhawan (PW-13) and Shri Gopal Gosai (PW-20) came out only once the gun shot was fired and by that time Shri Tarun Kalra (PW-26) had reached the house of Shri Naresh Goel (PW-18).

27. Learned APP for State denies that no PCR call was made by any of the witnesses. He states that apart from DD Entry No.5A recording a PCR call made by Shri Shivansh Dandon (PW-21), there is another PCR call recorded vide DD Entry No.4A and the same does not give the name and phone number of the caller. Also the call records of phone used by Sangeeta Kaur (Ex.PW7/B) show that she made a PCR call at 2:52 a.m. Call records of Shri Shivansh Dandon (PW-21) (Ex.PW6/G) show that only one PCR call was made by him. Even otherwise, according to him, different persons behave differently in such situations. He emphasises that the eyewitnesses of the incident are mainly the close family members and servants of the deceased and at the relevant time their main aim must have been to provide medical aid to the deceased.

28. He further states that Const. Tara Chand (PW-16) has deposed that he had delivered the special report to the Illaqua magistrate. He states that in the present case, the creditworthiness of the ocular evidence adduced by the prosecution was worthy of acceptance, and the delay, if any, in registering a complaint or sending the same to the Jurisdictional Magistrate, by itself would not in any manner weaken the prosecution case. He points out that the autopsy application which accompanied the inquest report duly mentions the FIR number. He emphasises that in the present case the name of the appellant-accused had surfaced at the initial stage itself and efforts were made to arrest him. He points out that the call records shows that the appellant-accused was in contact with Sangeeta Kaur on the mobile.

29. He emphasises that prosecution witnesses have duly deposed that the exhibits were not tampered with. According to him, there is also nothing on record to suggest that the recoveries had been planted upon the appellantaccused. He points out that HC Darshan Lal (PW-9) was the MHC Malkhana and he handed over the articles to Const. Prasannan (PW-10), who in turn deposited the same with FSL and proved that the parcels and seals were not tampered with. No suggestion had been given to any prosecution witness with regard to tampering of seals. The FSL reports prove that the exhibits as received were having intact seals. Further, Dr. N.P. Waghmare (PW-31) and Dr. V. Sankaranarayanan (PW-32), the experts from FSL who stated that seals were intact on the exhibits received, were not cross examined on any of the points which are being raised now by the appellant-accused. Learned APP points out that the FSL form received in response to an RTI application had been duly exhibited by the appellantaccused himself.

30. Learned APP states that the ballistic report of the FSL (Ex.PW31/A) and Biology report (Ex.PW32/A) duly record that the seals were intact as per the FSL form. Further, no question had been put to either of the witnesses from the FSL in this regard. He states that there is no bar on forwarding some of the samples prior to the preparation of the Biology report.

31. He contends that the appellant-accused failed to cross-examine the experts with regard to nature of exhibit Q[2]. With regard to exhibit N[6] (lead slug recovered from body of deceased-Dr. Sanjeev Dhawan), learned APP states that in the Bio report, it has been mentioned as two metallic pieces and in DNA report it has also been mentioned as two metallic pieces. Postmortem report mentions the same as lead slug and seizure memo mentions the same lead. He states that the police officer who received the same had not seen the contents of the box and had given a general description.

32. Mr. Rajat Katyal, learned APP states that upon firing, the dimensions of a slug duly change on all counts and in any event, there must be some width of the circumference of the cartridge case also and the same has to be of decent width, as it has to bear the blast which happens when the hammer of the short gun hits the cartridge on triggering.

33. Learned APP for State submits that an adverse inference should be drawn against the appellant-accused as he refused to participate in Test Identification Parade (TIP). He states that the appellant-accused’ contention that he refused to participate in TIP on the ground that his face had been shown to the public through electronic media was false as nothing had been brought on record to substantiate the said plea and no such suggestion had been given to the IO.

34. Learned APP emphasises that the appellant-accused is a habitual offender who had earlier also given injuries/sharp blows to persons on account of Sangeeta Kaur (maid servant). He states that there are previous involvements of the appellant-accused in similar incident whereby in one case the appellant-accused gave knife injuries to a person, which led to filing of FIR No. 119/2012 with Police Station Jaitpur under Section 324/452 IPC. A list of other cases against the appellant-accused referred to by learned APP are as under:- Sl. No. FIR No. Under Section/s Police Station

1. 369/2009 294/323/506B/147 IPC Lormi, Chattisgarh

2. 370/2009 294/323/506/147 IPC Lormi, Chattisgarh

3. 41/2011 294/506B IPC Lormi, Chattisgarh

4. 47/2011 307 IPC & 25/27 Arms Act Kunda, Dist. Kabir Dham, Chattisgarh

REJOINDER ARGUMENT OF LEARNED COUNSEL FOR APPELLANT- ACCUSED

35. In rejoinder, learned counsel for appellant-accused submits that the statement of accused under Section 315 Cr.P.C. cannot be used for strengthening the case of the prosecution and/or to prove the guilt of the accused. In support of his submission, he relies upon Yusufbhai Alias Isubbhai Umarbhai Mallek vs. State of Gujarat & Anr., 2009 SCC OnLine Guj 3011, wherein it has been held as under:- “19. The aforesaid provisions show that what is required for availing the benefits as per the provisions as contained in the Section is; (1) that there must be a trial in the criminal Court; (2) person applying to be examined under the provisions of the said provisions would be necessarily an accused; (3) when the stage of invoking the provisions of the said Act has reached i.e. to say after conclusion of record of evidence of the prosecution followed by the explanations/submissions of the accused as required under Section 313 of Cr.P.C., is over; (4) the evidence as such accused may adduce will be on oath as a witness and lastly; (5) such evidence must be in disproving of the charges made against him or any person charged together with him at the trial. Therefore, if the evidence is given by accused after the examination under Section 313 of Cr. P.C., and under Section 315 of Cr.P.C., it is required to be considered in light of the aforesaid provisions of Section 315 of Cr.P.C. The pertinent aspect is that such evidence must be in disproving of the charges made against him or any person charged together with him at the same trial. Therefore, the nature of evidence cannot be for strengthening the case of the prosecution to prove guilt of any of the accused, but must be in disproving of the charges made against him. The evidence of A-1 as recorded by the learned Sessions Judge shows that the same is not in disproving of the charges made against him or in disproving of the charges made against any person together with him at the trial, but is to prove the guilt of A-1 himself and/or other co-accused namely; A-2 and/or A-3. Therefore, such evidence so far as it relates to not in disproving of the charges, could be said as beyond the scope of Section 315(1) of Cr.P.C., for the purpose of deciding the case before the learned Sessions Judge. It is an admitted position that the learned Sessions Judge has not considered the said aspects and if this Court is to examine the said aspects, the deposition of A-1 under Section 315, so far as it relates to involvement of A-1 himself and other co-accused namely; A-2 and A-3, since is not in disproving of the charges, cannot be considered since the same would be outside the scope of Section 315(1) of Cr.P.C.” COURT’S REASONING IT IS ESSENTIAL TO OUTLINE THE MANNER IN WHICH EVIDENCE OF THE WITNESSES IS TO BE APPRECIATED BY THE COURTS.

THE EVIDENCE OF THE WITNESSES HAS TO BE READ AS A WHOLE AND APPRECIATED ON THAT BASIS.

MINOR DISCREPANCIES ARE NOT TO BE GIVEN UNDUE EMPHASIS, ESPECIALLY WHEN THEY DO NOT AFFECT THE CORE OF THE PROSECUTION CASE.

AFTER ALL, NO TWO TESTIMONIES CAN BE IDENTICAL.

36. It is essential at the outset to outline the manner in which evidence of the witnesses is to be appreciated by the Courts. It has been repeatedly held that evidence of witnesses cannot be dissected in the manner as has been done by the learned counsel for the appellant-accused. The evidence of the witnesses has to be read as a whole and appreciated on that basis. Minor discrepancies are not to be given undue emphasis, especially when they do not affect the core of the prosecution case. In fact, the test is whether the testimony of a witness inspires confidence in the mind of the Court and appears to have a ring of truth. After all, no two testimonies can be identical. The Supreme Court in Bhajan Singh & Ors. vs. State of Haryana, AIR 2011 SC 2552 has held as under:- “30. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the Court to reject the evidence in its entirety. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. [Vide: Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; and Brahm Swaroop (Supra)].” (emphasis supplied)

37. Similarly in Mritunjoy Biswas Vs. Pranab Alias Kuti Biswas and Another, (2013) 12 SCC 796, the Supreme Court has held as under:- “28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (see Leela Ram v. State of Haryana [(1999) 9 SCC 525: 2000 SCC (Cri) 222], Rammi v. State of M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26] and Shyamal Ghosh v. State of W.B. [(2012) 7 SCC 646: (2012) 3 SCC (Cri) 685] ). xxxx xxxx xxxx xxxx

31. The High Court, as we find, has read the evidence not as a whole but in utter fragmentation and appreciated the same in total out of context. It is to be kept in mind that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. (See State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105].) Tested on the anvil of the aforesaid principle, we have no shadow of doubt that the High Court has erroneously discarded the credible evidence by paving the path of totally hypertechnical approach.”

THIS COURT IS OF THE VIEW THAT THE APPELLANT-ACCUSED HAS BEEN IDENTIFIED AS THE ASSAILANT BY TWO EYEWITNESSES AND HIS PRESENCE PRIOR TO AND AT THE SCENE OF MURDER HAS BEEN MENTIONED BY A NUMBER OF INDEPENDENT AND NATURAL WITNESSES AS THEY WERE BOUND TO BE PRESENT AT THE SAID HOUR, AS THEY ARE RESIDENTS OF THE SAME PLACE. FURTHER, THEIR TESTIMONIES ARE CLEAR, COGENT, CONSISTENT, CREDIBLE, TRUSTWORTHY AND CORROBORATED BY FORENSIC AND ELECTRONIC EVIDENCE.

38. In the present case, Shri Tarun Kalra (PW-26) is a witness in respect of an incident which happened with him before the shooting incident involving the deceased, i.e. appellant-accused entering his house after breaking a window, appellant-accused suffering an injury on his thumb, appellant-accused asking for Sangeeta Kaur (maid servant of deceased), appellant-accused grappling with him in the stairs and trying to injure him with an axe. The relevant portion of the testimony of Shri Tarun Kalra (PW-

26) is reproduced hereinbelow:- “I am Tax Consultant by profession. On 19.09.2012, in the early morning, at about 2/3.00 a.m., I alongwith my wife were watching TV in our bedroom. We have a duplex house. We heard a loud noise as something had broken, hearing which we came out of our bedroom and I rushed to the terrace and my wife rushed to my daughter’s room. From the third floor, I saw a man in army clothes, suddenly entering my drawing room, with a gun in his hand and he was bleeding profusely from his thumb. He was shouting for Sangeeta, hearing which my wife came out of my daughter’s room and I came inside from the terrace. My wife told him that he had come to the wrong floor. On which, he tried to open the main door, failing which he again came up and told me to open the door. As I opened the main door of my house, he caught hold of me from behind and directed me to take him to the correct floor. As we were going downstairs, my neighbour Mr. Goyal hearing the noise, tried to come down to help. Hearing his footsteps, that person pointed the gun at me and we had a scuffle, that person is present in court (the witness correctly identifies the accused). In the struggle, both of us lost our balance and came down tumbling about 8-10 steps of the stairs and as accused, present in Court today, lost his balance, I snatched the gun from his hand and ran on the road. He followed me and tried to hit me with a sharp weapon from behind resulting in slitting of my T-shirt and shorts also entangled in the weapon i.e. axe like which was in the hands of the accused and I tried to turn and see, if I was hurt. The accused again snatched the gun from me. I ran towards behind the parked car to save myself and from there, I tried to run towards my house shouting for help. At that time, I heard a gun short from behind. I climbed the stairs of my house and Mr. Goyal, my neighbour, pulled me into his house to save me. After a while, we heard a few more gun shots and heard lot of screaming and shouting from Dr. Dhawan’s house and suddenly son of Dr. Dhawan started knocking at the door of Mr. Goyal’s house asking for help. We did not open the door fearing that he might be accompanied by the accused. Then we heard lot of screams and saw from the balcony of Mr. Goyal’s house that Dr. Dhawan’s was being removed to the hospital. After some time, police also reached there. In the morning, near the garden, the police found the axe and I identified the same by which the accused tried to attack me. That axe was sealed and seized by the police. Subsequently, the police took my torn T-shirt of blue colour, make Gap and shorts make Jockey and sealed and seized the same. There were blood stains on the T-shirt and shorts. I signed the seizure memos. The seizure memo of my clothes is ExPW26/A bearing my signatures at point A and the seizure memo of axe is Ex.PW26/B bearing my signatures at point A.... My statement was recorded same day at police station. I have no knowledge if during investigation any site plan of the property was prepared by the IO. I have no idea who made PCR call to the police. There was no need for my medical treatment for the injuries sustained by me. I am an Advocate by profession. I returned to my house after the incident from the house of Mr. Goel after the deceased was being removed from the house. The whole incident took time of about 15-20 minutes maximum. When I had gone to the house of Mr. Goel and he pulled me inside his house. It was an iron door and ahead of it was a wooden door. Both were closed. I could not see who were present at the gate of Mr. Goel at that point of time. Voln. We could hear the voice of Sarthak son of the deceased. I do not remember the exact time when this Axe was recovered by the police but it was morning hours. This was before 12.00 when I had gone to the PS on that day. I do not remember how many seizure memos were prepared by the police at my instance. I remember that seizure memo of the recovery of Axe and also seizure memo of the night suit recovered from my house was prepared by the police in my presence..........My house and house of Mr. Goel are in front of each other. Voln. There is a distance of 4 to 5 feet in the gates of the two house. My statement was not recorded by the police after it reached the house first time. The Axe was recovered by the police from near the garden. I had not gone to the hospital alongwith Sarthak, son of the deceased.....” It is wrong to suggest that accused was not present at the spot. It is wrong to suggest that accused did not make any gun short firing on the date of the incident. It is wrong to suggest that no injury has been caused to me by the accused during scuffle. It is wrong to suggest that accused was not having any gun with him nor he was having any Axe with him. It is wrong to suggest that neither gun nor Axe has been recovered at the instance of the accused. I had given the physical description of the accused in my statement to the police. Mr. Goel could not intervene in the scuffle between me and the accused as during the scuffle I had fallen from 8 to 10 stairs and after that I ran away from there. Police did not record the statement of Mr. Goel in my presence. It is wrong to suggest that no scuffle took place between me and the accused on the date of the incident. It is wrong to suggest that it is a cooked up story by me and for that reason neither the security guard nor my wife intervened in the scuffle. It is wrong to suggest that no gun was snatched by me from the hands of the accused. It is wrong to suggest that gun and Axe both are planted weapons. I have no idea about the Axe till the time it was used by the accused at my backside. It is wrong to suggest that this Axe was collected by the accused from my house. I heard the gun shot firing but I have not seen the incident of firing of my own. It is wrong to suggest that case property is fabricated....”

39. The fact that the appellant-accused suffered an injury on his thumb on the said night as mentioned by Shri Tarun Kalra (PW-26) is corroborated by the appellant-accused’s MLC Ex.PW3/A. The recovery of an axe by the police corroborates the allegation of Shri Tarun Kalra (PW-26) that he had been attacked with an axe by the appellant-accused.

40. The testimony of Shri Tarun Kalra (PW-26) is also corroborated by forensic evidence as the DNA report confirms that the alleles found on his clothes and on the broken glass (taken into possession from the second floor portion in his occupation) were similar to the alleles found on the shotgun and vest of the appellant-accused.

41. The testimony of Shri Tarun Kalra (PW-26) is further corroborated by the testimony of Shri Naresh Goel (PW-18) who is an eyewitness to the shooting incident as well as to the grappling between Shri Tarun Kalra (PW-

26) & appellant-accused and proclamation by appellant-accused. The relevant portion of the testimony of Shri Naresh Goel (PW-18) is reproduced “On 29.09.2012, I was sleeping at my aforesaid house. At about 2.45am, I heard loud hue and cry as if someone was calling for being rescued. I got up and reached the staircase. Then I reached the staircase on the first floor. At that time, I saw a boy in military dress and Tarun, my neighbour coming down at speed, through the staircase, while grappling with each other. The boy in military dress, is present in Court, as accused. I identify him. (Witness has rightly pointed out towards the accused.) I saw the accused armed with a small size gun. Then I returned to the second floor portion. Tarun returned and also came to the second floor portion. He rang the bell of my house. I opened the door and pulled Tarun inside. Tarun was perplexed at that time. I then went to the balcony of my floor. I saw the accused present in the street. I inquired from the accused as to what he wanted. He proclaimed that doctor saab had detained his wife Sangeeta. At that time, I saw the accused firing in air, from his gun. I returned from the balcony. At that time, I heard sound of another shot being fired. I heard some knocking at the door of my house. I saw through the magic eye that Sarthak son of Dr. Sanjeev Dhawan was knocking at the door. But I did not open the door being afraid of that accused might not enter our house. Sarthak then went away. I then came to the balcony of my floor. From there I saw Sarthak, with the help of his servant Gopal, removing his father Dr. Sanjeev Dhawan, who was injured, to the car of Sh. Sandeep Kawatra. I also saw Sh. Sandeep Kawatra taking away the car with Dr. Sanjeev Dhawan and Sarthak in the car. I did not see the accused firing shot at Dr. Sanjeev Dhawan. After some time, police reached the spot. Police made inquiries from me at that time. But I do not remember as to when my statement was recorded. (At this stage, Ld. Addl. PP submits that witness is not making statement in consonance with the statement made by the witness before the police and he be permitted to put leading questions to the witness. Heard. File perused. Request is allowed.) XXXX by Sh. Rakesh Mehta, Addl. PP for State. It is correct that when I reached the staircase of the first floor, I saw the accused aiming gun at Tarun and also that Tarun caught hold of both the hands of the accused very tightly and they grappled. I remember that when the accused proclaimed in the street that doctor saab had detained his wife Sangeeta, he fired two shots in the air and another shot aiming at Dr. Sanjeev Dhawan, while Dr. Sanjeev Dhawan was standing in the balcony. Due to lapse of two years period, I could remember these aspects about which I have been now questioned. XXX Ms. Kanchan Diwan, Amicus Curiae for accused Dharmender Tandon. I am cloth merchant. Today, I have not been pressurized by anyone to make statement in Court. I did not try to intervene during the occurence, being afraid of as the accused was armed with a gun. Tarun Kalra came to me one or two minutes after I saw him and the accused grappling in the staircase and jumping out. It is wrong to suggest that I did not see the accused firing shot at Dr. Sanjeev Dhawan. On that night, I and my wife was sleeping in my room. I did not come out of my house to help in removal of Dr. Sanjeev Dhawan to hospital being afraid of accused.

42. Shri Sarthak Dhawan (PW-13) is the son of the deceased and an eyewitness to the incident of the murder. The relevant portion of the testimony of Shri Sarthak Dhawan (PW-13) is reproduced hereinbelow:- “Ms Sangeeta Kaur, was our maid servant. She was employed at out house on 29.8.2012. After her employment my father started receiving threat calls. My father told me about this fact in the first week of September 2012. My father told me that a person by the name of Dharamendra Kumar Tandon used to call him on phone and represents himself to be husband of Ms. Sangeeta Kaur and further that my father should hand over to him Ms. Sangeeta or otherwise it would lead to dire consequences. My father was employed as Senior Cardiologist at Sir Ganga Ram Hospital. Around 9th of September 2012 my father also told me that the aforesaid person namely Dharamendra Kumar Tandon had come to him at Sir Ganga Ram Hospital and threatened him with death in case he failed to hand over him Ms. Sangeeta. On 18.9.2012, at about 9-10 pm, I was present at my house. I, my father and my mother Smt. Jyoti Dhawan were having dinner. My father told me at that time that that even on that day he had received threat call on phone from Dharmender Kumar Tandon that he would kill in case I did not hand over to him Ms.Sangeeta Kaur. After dinner, we went to sleep. During the night at about 2:30 am, I heard noise and someone was hurling abuses. I also heard sound of shot being fired. On this, I and my father reached the balcony of first floor of our house. We saw Dharmender Kumar Tandon, accused now present in Court, present in the service lane. He was wearing uniform of army personnel. He was holding a gun. He aimed the gun at my father. My father while pointing out towards accused told me that he was Dharmender Kumar Tandon, who had visited him at Sir Ganga Ram Hospital and used to extend him threat calls. The accused opened fire from his gun and the shot hit my father in his chest. My father collapsed in the balcony, while saying that Dharmender Kumar Tandon had fired shot at him and that he should be caught hold of. I also raised alarm. I then rushed to the ground floor but found that the accused had run away from there. On hearing noise, our neighbour Bittu reached there. I and Bittu rushed my father to Sir Ganga Ram Hospital where the doctor declared him brought dead. I did not tell the police in my statement Ex PW13/A regarding conversation of my father with me at the dinner during which he told me about threat call received on that day from Dharmender Kumar Tandon. Again said, I told this fact to the police in my statement Ex PW13/A. My earlier reply was under the impression that I was asked if I informed the police immediately on having come to know the fact during dinner. My statement Ex PW13/A recorded by the police at about 9:30 am at police station Rajinder Nagar. We are having good relationship with our neighbours. I did not convey to any of our neighbours the factum of threat calls by Dharmender Kumar Tandon. I do not know if my father ever brought this fact to the notice of any neighbour or our relative. When I and my father came to the balcony, we found that the accused present in the service lane had already aimed gun and ultimately opened fire at my father when he pointed out towards the accused tell me that he was Dharmender Kumar Tandon. I could not pull my father inside the room because the shot was fired in fraction of second. We could not inform the police immediately, before he opened fire. I cried from the balcony itself. At the time, my father was brought to Sir Ganga Ram hospital, I told the doctor who medically examined him and declared him brought dead, that my father had been fired at. But I did not tell the doctor that such and such person had fired at my father or that Dharmender Kumar Tandon had fired at my father.

43. As rightly pointed out by learned APP for the State that Shri Sarthak Dhawan’s (PW-13) testimony is corroborated by the Call Detail Record (Ex.PW6/E), which shows that his father was receiving calls from the appellant-accused.

44. Further, it is settled law that non-mentioning of the name of the assailant to the doctor when the body of the deceased was taken to the hospital, is not fatal to case of the prosecution. The Supreme Court in Pattipati Venkaiah Vs. State of Andhra Pradesh, (1985) 4 SCC 80 has held as under:- “17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”

45. Shri Gopal Gosai (PW-20) cook of the deceased is another eyewitness. The relevant portion of his testimony is reproduced In the month of September, 2012, I was serving as a cook as the house of Dr. Sanjeev Dhawan at H. No. 49-50, New Rajinder Nagar. On the 19.09.2012, upto 2.10 am I was watching telecast while present in the drawing room. Thereafter, I switched off the TV and went to sleep in the same drawing room. At about 2.45 am, I heard breaking of window pane, with a loud noise. I removed the curtain from inside to an extent and noticed that the window pane had got broken to some extent. I then called Sangeeta, who used to work as maid at the same house. She used to sleep in the basement. On hearing my voice Sangeeta came to the drawing room. On removing the curtain, she told me that it was Dharmender Fauzi who had fired shot and that he was present on the road, in front of the house. I also removed the curtain saw Dharmender present on the road, in front of the house of Dr. Sanjeev Dhawan. Dharmender was wearing military uniform. He was having a muffler/piece of cloth tied around his neck. I identify said person namely Dharmender, who is present in Court as accused. I and Sangeeta then rushed to the first floor to inform Dr. Sanjeev Dhawan about all this. The Dr. Sanjeev Dhawan went to the balcony of the first floor of the house. We also followed him upto the balcony. Then I heard a shot being fired from the ground floor. Dr. Sanjeev Dhawan spoke that he had been shot at by Dharmender and that he be caught hold of. Dr. Sanjeev Dhawan in the balcony. I and Sangeeta lifted him and removed from the balcony to the room. At that time, he was bleeding. I may mention Sarthak, son of Dr. Sanjeev Dhawan also reached the balcony when fire was shot at the doctor. I do not know if Smt. Sangeeta was married or unmarried at the time she joined employment at the house of Dr. Sanjeev Dhawan. About two months prior to the occurrence, Smt. Sangeeta had once proceeded on leave. When she again joined after having availed of leave, I saw Dharmender accused with her at that time. He left her in front of the house of Dr. Sanjeev Dhawan. At that time, I had opened the main door and saw Smt. Sangeeta present at the door with the accused and she told me that the person who had accompanied her was Dharmender. After that, I never saw Dharmender accused in front of the house of Dr. Sanjeev except on the night of occurence. From the ground floor, I went to the room of Dr. Sanjeev Dhawan on the first floor and awakened him. Dr. Sanjeev Dhawan got up but did not go to the hall in the basement. He rather went to adjoining room of his son Sarthak. Thereafter, Dr. Sanjeev Dhawan opened the door of the room of Sarthak which opens in the balcony. At the time, Dr. Sanjeev Dhawan went to the balcony, I was accompanying him. Dr. Sanjeev Dhawan did not make any phone call from the balcony. When Dr. Sanjeev Dhawan fired at in the balcony, he asked me that he had been fired at by Dharmender and he should be caught hold of. From the balcony, I saw one person running away. Then I started taking care of Dr. Sanjeev Dhawan and could not raise hue and cry. At the time, Dr. Sanjeev Dhawan was fired at, Smt. Sangeeta was present in the room of Sarthak, behind me and Dr. Sanjeev Dhawan, while we were present in the balcony. Wife and Son of Dr. Sanjeev Dhawan was also present in the room Sarthak Dhawan at that time. My clothes got stained with blood at the time, I caught hold of Dr. Sanjeev Dhawan after having been fired at. I put off, my blood stained clothes at the hospital but I do not know if they were seized by the police or not. Clothes of Smt. Sangeeta might have stained with blood at the time she also took care of Dr. Sanjeev Dhawan with me. I cannot say with certainty if clothes of Smt. Sangeeta also got stained with blood. In my presence, statement of no one else was recorded. It is wrong to suggest that I have deposed falsely.”

46. This Court is of the view that Shri Sarthak Dhawan (PW-13) has not excluded the presence of Shri Gopal Gosai (PW-20) at the time the shot was fired at the deceased. Non-mentioning and exclusion are entirely different concepts. In any event, the balcony where the deceased was shot and the bedroom of Shri Sarthak Dhawan (PW-13) are adjacent to each other and one leads to the other.

47. In the opinion of this Court, there is no material contradiction in the testimonies of Shri Sarthak Dhawan (PW-13) and Shri Gopal Gosai (PW- 20). Irrelevant differences in statements of eyewitnesses which do not in any way corrode the credibility of the witness cannot be labelled as omissions or contradictions.

48. Further, the non-seizure of bloodstained clothes of Shri Sarthak Dhawan (PW-13) and Shri Gopal Gosai (PW-20) by the police, at the highest points to a defective investigation, but the appellant-accused cannot take advantage of the same. A coordinate Bench of this Court in Dinesh Singh Panwar & Ors. Vs. State N.C.T. of Delhi, 2019 SCC OnLine Del 9549 has held as under:- “56. The next submission made by the counsel for the appellants was that in case PW[5] was an eye witness to the incident and had taken the deceased to the hospital in a Maruti car driven by PW[9] Manender, there would have been blood on his clothes. However, his clothes were not taken into possession by the police and not sent for examination.

57. This submission of the learned counsel for the appellants is also liable to be rejected. Even though the blood stained clothes of PW[5] and 9 were not seized but their evidence establishes their presence at the place of the incident. It is settled law that faulty investigation cannot come in the way of dispensing justice. Investigating Officer may have faulted in not collecting the blood stained clothes of the eyewitnesses, but the benefit of defective investigation cannot accrue to the accused persons. We need not burden this opinion with judicial pronouncements in this regard; suffice to mention that one may usefully refer to Sathi Prasad vs. The State of U.P. reported at AIR 1973 SC 448, State of U.P. v. Anil Singh reported at 1988 Supp SCC 686 (paragraph 17), Mohan Singh v. State of Madhya Pradesh, reported at (1999) 2 SCC 428 (paragraph 11), Dhanaj Singh alias Shera & Ors. Vs. State of Punjab reported at (2004) 3 SCC 654 (paragraphs 5 and 8), State of UP v Krishna Master, reported at (2010) 12 SCC 324 (paragraph 15).”

49. The Supreme Court in Ram Bali vs. State of U.P., (2004) 10 SCC 598 has also held as under:- “12. The investigation was also stated to be defective since the gun was not sent for forensic test. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518: 1995 SCC (Cri) 977])

13. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126: 1999 SCC (Cri) 104] it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined dehors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand in the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.

14. As was observed in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517: 1998 SCC (Cri) 1085] if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the lawenforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518: 2003 SCC (Cri) 641]. As noted in Amar Singh case [(2003) 2 SCC 518: 2003 SCC (Cri) 641] it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version.”

50. There are ample numbers of independent witnesses on record and perusal of the same proves the guilt of the appellant-accused. Nonexamination of any person, at the most, hints towards a defective investigation – a fact which as stated hereinabove – no accused can take advantage of. Even otherwise the additional witnesses would have just reiterated the statement of Shri Tarun Kalra (PW-26) and thus nonexamination of any other person as a witness is not fatal.

51. Consequently, this Court is of the view that the appellant-accused has been identified as the assailant by two eyewitnesses and his presence prior and at the scene of murder has been mentioned by a number of independent and natural witnesses as they were bound to be present at the said hour, as they are residents of the same place. Further, their testimonies are clear, cogent, consistent, credible, trustworthy and corroborated by forensic and electronic evidence.

52. It is pertinent to mention that upon arrest, a shotgun was recovered from the appellant-accused. As per the FSL-Ballistic report (Ex.PW31/A), four empty cartridges as recovered from the crime scene were found to have been fired through the seized licensed gun of the appellant-accused.

FROM THE BEGINNING THE POLICE WAS LOOKING FOR THE APPELLANT-ACCUSED.

THERE IS NOTHING ON RECORD TO SUGGEST THAT THE REASON FOR ANTE-TIMING OF FIR, IF ANY, WAS TO FALSELY IMPLICATE THE APPELLANT-ACCUSED.

WHERE NO PREJUDICE HAS BEEN CAUSED TO THE APPELLANT-ACCUSED, THE SUPREME COURT HAS HELD THAT DELAY, IF ANY, IN REGISTERING THE FIR WOULD NOT IN ANY MANNER WEAKEN THE PROSECUTION CASE. FURTHER, THE APPELLANT-ACCUSED HAD FAILED TO CROSS-EXAMINE ANY OF THE OFFICIAL WITNESSES IN RESPECT OF ANTE-TIMING OF THE FIR. CONSEQUENTLY, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE PROSECUTION.

53. In the present case, the name of the appellant-accused had surfaced at the initial stage of investigation itself and efforts were made to arrest him immediately after the murder was committed. The call detail records show that the appellant-accused was in touch with Ms. Sangeeta Kaur (maid servant) at the instance of the police on the mobile phone shortly after the murder. Thus, from the beginning the police was looking for the appellantaccused. There is nothing on record to suggest that the reason for antetiming of FIR, if any, was to falsely implicate the appellant-accused. In fact, the ocular, forensic and electronic evidence duly proves the case of the prosecution. In such a factual scenario where no prejudice has been caused to the appellant-accused, the Supreme Court has held that delay, if any, in registering the FIR would not in any manner weaken the prosecution case. The Supreme Court in Brahm Swaroop & Anr. Vs. State of Uttar Pradesh,

“14. Undoubtedly, there is delay of 5 days in sending the special report. This Court in Badam Singh v. State of M.P. [(2003) 12 SCC 792: 2005 SCC (Cri) 861], while considering this issue held that where the investigating officer categorically stated that he was not in a position to give any explanation for the delay in sending the special report, it may be fatal to the prosecution’s case.

15. However, a larger Bench of three Judges in Balram Singh v. State of Punjab [(2003) 11 SCC 286: 2004 SCC (Cri) 149], held as under:

16. In State of Rajasthan v. Teja Singh [(2001) 3 SCC 147: 2001 SCC (Cri) 439], this Court held that the receipt of the special report by the Magistrate is a question of fact and the prosecution may explain the delay in sending the special report. However, the explanation so furnished by the prosecution must be convincing and acceptable. The same view has been reiterated in Ramesh Baburao Devaskar v. State of Maharashtra [(2007) 13 SCC 501:

17. In Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188: AIR 2008 SC 320] this Court held that delay in forwarding the special report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR.

18. In Aqeel Ahmad [(2008) 16 SCC 372: (2010) 4 SCC (Cri) 11: AIR 2009 SC 1271] this Court held that the forwarding of the report to the Magistrate is indispensable and absolute and it must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution’s case and the introduction of a distorted version by deliberations and consultation and to enable the Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the investigating officer that would not affect the credibility of the prosecution’s witnesses. (emphasis supplied)

54. Further, the appellant-accused had failed to cross-examine any of the official witnesses in respect of ante-timing of the FIR. In the absence of any such question, no adverse inference can be drawn against the prosecution. The Supreme Court in State of Rajasthan vs. Daud Khan, (2016) 2 SCC 607 has held as under:- “Section 157 CrPC: Submissions and discussion 26....... However, if no question is put to the investigating officer concerning the delay, the prosecution is under no obligation to give an explanation. There is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. In other words, the facts and circumstances of a case are important for a decision in this regard.

27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. [Sheo Shankar Singh v. State of U.P., (2013) 12 SCC 539: (2014) 4 SCC (Cri) 390] wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows:

28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR “forthwith” ensures that there is no manipulation or interpolation in the FIR. [Sudarshan v. State of Maharashtra, (2014) 12 SCC 312: (2014) 5 SCC (Cri) 94] If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. [Meharaj Singh v. State of U.P., (1994) 5 SCC 188: 1994 SCC (Cri) 1391]. However, if the court is convinced of the prosecution version’s truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case. [Rattiram v. State of M.P., (2013) 12 SCC 316: (2014) 1 SCC (Cri) 635]

29. Insofar as the present case is concerned, there was no delay in lodging the FIR. Hence the question of its manipulation does not arise. Additionally, the officer in charge of the police station, PW 21, Surender Singh was not asked any question about the delay in sending the special report to the Magistrate. An explanation was, however, sought from the investigating officer, PW 25, Rajinder Parik who tersely responded by saying that it was not his duty to send the special report to the court (or the Magistrate). In the absence of any question having been asked of the officer who could have given an answer, namely, the officer in charge of the police station, no adverse inference can be drawn against the prosecution in this regard, nor can it be held that the delay in receipt of the special report by the Magistrate is fatal to the case of the prosecution. This is apart from the consistent evidence of the eyewitnesses, which we shall advert to a little later.”

55. This Court also finds that the brief history given in the Autopsy request Ex-8/A[1] as well as in the FIR are in sum and substance similar, if not identical.

IN THE PRESENT CASE, THE SEALS ON EVERY PULLANDA AS AFFIXED AT THE RESPECTIVE TIMES WERE DULY PROVED TO BE IN ORDER. CONSEQUENTLY, THERE IS NO BROKEN CHAIN OF CUSTODY.

IN PIARA SINGH VS.

THE STATE OF PUNJAB, 1982 SCC ONLINE P&H 55 (FULL BENCH), IT HAS BEEN UNEQUIVOCALLY HELD THAT THERE IS NO REQUIREMENT IN LAW THAT SEALS MUST BE OUSTED FROM THE POSSESSION OF THE INVESTIGATING OFFICER.

56. This Court is further of the view that there is no requirement of law that all the seals which had ever been put on any exhibit should be kept in a pullanda, especially when a new seal had been put on the same. All that is required is that the custody chain should be complete. In the present case, the seals on every pullanda as affixed at the respective times were duly proved to be in order.

57. Four samples transferred to the Ballistic Department were duly sealed by Biology Department and the seals on the same were found to be in order by the Ballistic Department and same is mentioned on Ex.PW31/A. Consequently, there is no broken chain of custody.

58. In Piara Singh vs. The State of Punjab, 1982 SCC OnLine P&H 55 (Full Bench), it has been unequivocally held that there is no requirement in law that seals must be ousted from the possession of the investigating officer. The relevant paragraphs of the said judgment are reproduced “1.Whether the fate of a criminal case would be sealed by the mere handing over or otherwise of the-seal used by the police officer (for sealing the samples, or the contraband property in the course of Investigation) to a non-official witness is the pointed question which has necessitated these two references to the larger Bench. 9......Therefore the absence of any mandate in that context would show that it is not the requirement of the law that the seal used for imprinting the wax on the parcel must be ousted from the possession of the Investigating Officer. The statutory provisions do not seem to presume any inherent or inveterate suspicion of the responsible Investigating Officers upon whose efficiency and integrity the investigation into the cognizable crime inevitably rests.

16. Now apart from the absence and indeed the contradictions from the statutory provisions themselves I am impelled by the under-mentioned four-fold reason (to be elaborated hereinafter) to take the view that the stand taken on behalf of the petitioners is not only counter productive but for ought one knows might well be fraught with public mischief:— i) The basis of the whole argument stems from an inveterate and ingrained suspicion and assumption that responsible police officers would tamper with the seals and forge and fabricate evidence with regard to the case property in their custody. ii) There can be no guarantee that the non official to whom such a seal is entrusted would be one of unimpeachable integrity far above a responsible police official amenable to administrative discipline. Consequently even the handing over of such a seal in no way ensures is being misused. iii) There can be no warranty that the seal so entrusted to a third person cannot be duplicated. iv) If the police officers are to be entrusted with a plethora of official seals can be no guarantee or possibility that all of them would be beyond duplication and substantially and materially different from each other.

21. In view of the aforesaid authoritative enunciation how can one presume that the responsible police officials would act criminally in breaking open the sealed parcel and resealing the same in order to forge or tamper with crucial evidence. Again how can it be assumed that any and every non-official necessarily would be of greater integrity than these public officials. However, what is significant is that if it were to be once presumed that the responsible police officer is determined to tamper with the case property then how can this be prevented by the mere-subterfuge of handing over the seal to a third person. The enigmatic question that who will guard the guards thus arises. If he responsible police official were to be so criminally minded he could easily hand over the seal to a convenient or a subservient person. In fact doing so would absolve him from further responsibility whilst he can always take the seal back from such a person and after mis-using it return the same to him What guarantee can there be that such a third person himself may not be liable to subversion by anyone determined or intent on forging and tampering with the case property. It is indeed unfortunate that occasions have arisen where police officials entrusted with the enforcement and custodianship of the law and order have deviated from there duty I am second to none in condemning such a serious and grievous default. Yet it is a far cry therefrom to infer an inveterate and inbuilt suspicion that every responsible police official entrusted with case property would forge, fabricate and tamper therewith.

23. Another slippery ground upon which the contention on behalf of the petitioner was sought to be rested was that the entrustment of the seal to a non-official and his production in the witness-box was a crucial link in the chain of prosecution evidence and in the absence thereof the whole case must snap. I am frankly unable to see how the mere seal, once used in the course of investigation, becomes the vital link in the chain of prosecution evidence even in a case where the sealed parcel remains wholly untampered with. It seems to-be plain that the basic links which the prosecution is bound to establish in such like cases is the recovery of the case property and the establishment of its identity and safety by sealing the parcels if necessary. The next step is that it has to be kept in proper and safe custody in accordance with law, like the police Malkhana, where the possibilities of the same being tampered with are ruled out. Where so enjoined or necessary a sample therefrom or the property itself has to be taken from the place of its safe custody to the Public Analyst or the Chemical Examiner etc., in order to ensure that the report of the Expert is related specifically to the contraband property or samples thereof. These are the major links in the chain of evidence in such like cases without pretending to be exhaustive, I am unable to see how the seal which may have been used for making an imprint on the wax when sealing the sample which may remain wholly untampered with would become the vital and crucial link evidence in case's of this nature. So doctrinaire a view can tend to be fatal not merely in smaller matters of investigation in excise, opium or food adulteration cases but also in major crimes where the very life and liberty of the citizens are involved. The sealing and despatch of bloodstained articles in murder cases and the opinion of the Chemical Examiner and the Serologists are sometimes material pieces of evidence on a charge of murder. The same may well be said about taking in to the custody by the police of empty cartridges or weapons of offence and forwarding the same to the Ballistic Experts for their opinions thereon. Can the punishment for murder and serious crime be made to depend on the technicalities or the accident of the delivery of a seal to a third person or his failure or refusal to appear in the witness-box? I do not think that matters of substance like the punishment of heinous Crime can be made so utterly dependent on these freakish considerations.”

FSL FORM HAD BEEN DULY EXHIBITED BY THE APPELLANT- ACCUSED HIMSELF.

SINCE NO QUESTIONS WITH REGARD TO EITHER DIAMETER OF LEAD SLUG OR NATURE OF EXHIBITS Q[2] AND N[6] HAD BEEN PUT TO THE BALLISTIC EXPERT OR EXPERTS FROM FSL IN CROSS-EXAMINATION, THE SAID ISSUES CANNOT BE RAISED.

59. Appellant-accused cannot raise a grievance with regard to nonproduction of the FSL form by the prosecution during the trial because the said FSL form had been duly exhibited by the appellant-accused himself (Ex.DW1/W)(Pg.1383-1391 of Trial Court Record).

60. Since no questions with regard to either diameter of lead slug or nature of exhibits Q[2] and N[6] had been put to the Ballistic expert or experts from FSL in cross-examination, the said issues cannot be raised. In Mahavir Singh vs. State of Haryana, (2014) 6 SCC 716, the Apex Court has held as under:- “16. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. (Vide Atluri Brahmanandam v. Anne Sai Bapuji [(2010) 14 SCC 466] and Laxmibai v. Bhagwanthbuva [(2013) 4 SCC 97].)”

61. Further, delay in furnishing the DNA report by itself cannot make the report suspicious.

ADVERSE INFERENCES SHALL HAVE TO BE DRAWN AGAINST THE APPELLANT-ACCUSED FOR REFUSING TO PARTICIPATE IN TIP AND FOR TAKING A FALSE DEFENCE.

62. In the opinion of this Court, adverse inferences shall have to be drawn against the appellant-accused for refusing to participate in TIP and for giving false explanation under Section 313 Cr.P.C. and taking a false defence. The appellant-accused in his deposition as a defence witness under Section 315 Cr.P.C. stated that Sangeeta Kaur was living along with him in Gurgaon on the day of the murder and not at the house of deceased-Dr. Sanjeev Dhawan. The said defence is falsified by the evidence of witnesses on record as well as the CDR of mobile phone used by Sangeeta Kaur, which reveals her position stationed in the area of the house of deceased-Dr. Sanjeev Dhawan before and at the time of incident.

63. Section 315 Cr.P.C. lays down that an accused person is a competent witness for the defence and like any other witness he is entitled to give evidence on oath in disproof of the case laid against him by the prosecution. However, once the accused volunteers to give evidence by written request and enters the witness box, he subjects himself to all the liabilities of an ordinary witness. It is settled law that as a witness, he shall be liable for giving false evidence [Proviso to Section 132, Evidence Act], and he cannot invoke Article 20(3) to refuse to answer an incriminating question because he has voluntarily offered himself as a witness. [See The Peoples Insurance Company, Limited (in liquidation) Vs. Sardul Singh Caveeshar, AIR 1962 P&H 101]. Consequently, once the evidence of the accused falls within the ambit of Section 315 Cr.P.C., then it is substantive evidence and if it is found to be false then surely it is a relevant factor/circumstance which shall go against the accused.

CONCLUSION

64. To conclude, deceased Dr. Sanjeev Dhawan was a principled, courageous and a just citizen, who did his best to protect his helpless maid servant i.e. Sangeeta Kaur. Deceased Dr. Sanjeev Dhawan did not succumb to threats, pressure or unjust and unfair demands of an obsessive person i.e. appellant-accused, who despite being married to Mrs. Ramin Tandon and having children wanted custody of Sangeeta Kaur at any cost.

65. The appellant-accused’ conduct pre (i.e. past skirmishes with law leading to registration of five FIRs) and post the gruesome murder has not only been unjust, unfair and unreasonable, but also shows a propensity to commit crime. The Police, Jail Administration and Civil Administration must do all to ensure that society at large is protected from such individuals.

66. Keeping in view the aforesaid findings, present appeal being bereft of merits is dismissed and the conviction as well as sentence of appellantconvict is upheld. A copy of the judgment be given to the appellant-convict through the concerned Jail Superintendent. MANMOHAN, J SANGITA DHINGRA SEHGAL, J SEPTEMBER 12, 2019 rn/js