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BUT NOT BY ACCUSED – NO VALUE ON FACTS OF THE CASE = the deceased has been fired at by Samar Singh from his service revolver. = On a perusal of the evidence and the FSL report relating to the country-made pistol, Ext. F-1, seized from the accused, it is manifest that the fire arm country-made pistol .303 bore was designed to fire a standard .303 cartridge and that the pistol was in working order. Its test fire was also successfully conducted and the empty cartridge of .303 bore, Ext. C- 1, found in the chamber of the country-made pistol was the empty cartridge fired from the country made pistol.-Therefore, to say that no shot was fired from the country-made pistol is belied and the prosecution version that it was the country-made pistol which was fired by the accused that caused injuries to the deceased deserves acceptance. – From the post-mortem report, it is clear that the bullet injury was from front to back. It is not in dispute that the deceased and the accused were grappling. The version of the prosecution in that all of a sudden, the accused brought out his desi katta and fired from a close range. This has been clearly established by the evidence. Learned counsel would submit that while grappling the position changed and the bullet fired from the service revolver of Samar Singh hit the deceased. In our considered opinion, such a submission cannot be given any acceptance as the desi katta was seized from the accused and the weapon, as opined in the FSL report, is the desi katta and further there is no material to prove that gun shot was fired from the weapon of Samar Singh. Thus, from the aforesaid, it is clear as crystal that the shot was fired from the country-made pistol seized from the custody of the accused-appellant. Hence, the plea that there was a gun shot from the revolver of Samar Singh while the accused-appellant was grappling with the deceased being absolutely mercurial in nature is rejected. 14. In view of the aforesaid premised reasons, the appeals, being sans substance, stand dismissed.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40454

Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 562-563 OF 2010
Pramod Kumar … Appellant
Versus
State (GNCT) of Delhi …Respondent
J U D G M E N T
Dipak Misra, J.
On 19.3.1999, SI Prahlad Singh along Ct. Baljit Singh went
to Village Gittorni where Inspector Mohd. Iqbal, PW-16, had
reached along with his staff. After some time, ACP, Delhi
Cantt., arrived at the spot. On enquiry, they came to know that
one constable of P.S. Hauz Khas, namely, Maharaj Singh, having
suffered a gun shot injury, had been taken to the hospital. The
Head Constable Samar Singh narrated the occurrence to the
effect that he along with other officials had received
1Page 2
information about the presence of Pramod Kumar, a proclaimed
offender of PS Hauz Khas, was hiding in the house of Chander
Pal and about 4.30 p.m., they reached Village Gittorni and as
per the instruction of SI Jaswinder Singh, he and Ct. Maharaj
Singh went to the place to obtain information about the
presence of Pramod Kumar and SI Jaswinder Singh waited along
with the staff at a distance of 100 meters from the house of
Chander Pal. When he and Maharaj Singh reached near the
house of Chander Pal, accused Pramod Kumar was standing
outside the room. Maharaj Singh disclosed his identity to him
and asked him to surrender, but, Pramod Kumar, instead of
surrendering, took out a knife from his shirt pocket with his left
hand and tried to assault. However, immediately he was
caught hold of by Maharaj Singh from the rear and both of them
grappled with each other for some time. The Head Constable,
Samar Singh, tried to snatch the knife from the hands of
Pramod Kumar and ultimately he was successful in snatching
away the knife from his hands but, at that juncture, Pramod
Kumar took out a desi katta and fired at Maharaj Singh and the
bullet hit in the stomach area. Hearing the sound, the villagers
surrounded and assaulted Pramod Kumar. During that time, SI
2Page 3
Jaswinder Singh came to the spot along with his staff and
injured Maharaj Singh was taken to the hospital. Desi katta and
knife which were seized from the accused were given to the IO
by Samar Singh. As further revealed, accused Pramod Kumar
was apprehended and five cartridges were recovered and on
the basis of the statement of Samar Singh, an FIR was
registered under Section 307 of the Indian Penal Code (for short
“IPC”). When Maharaj Singh succumbed to his injuries, the
case was converted to one under Section 302 IPC. The bullet
that had hit the stomach of the deceased was kept in a sealed
cover and the same was sent to F.S.L. Malviya Nagar and
ultimately, on completion of the investigation, charge-sheet
was filed in the competent court which, in turn, committed the
matter to the Court of Session. Be it noted, after hearing the
accused, charges under Sections 186/332 and 302 IPC were
framed and separate charges under Sections 25 and 27 of the
Arms Act,1959 were also framed against the accused-appellant.
2. The accused pleaded not guilty and claimed to be tried.
3. The prosecution, in order to establish its case,
examined 19 witnesses and got number of documents
exhibited.
3Page 4
4. The accused, in his statement under Section 313 of the
Code of Criminal Procedure, 1973 (herein after CrPC),
denied the entire allegations and pleaded that he was
absolutely innocent. It was his further plea that one
person caught hold of him and pushed him and started
assaulting him. At that stage, he got up and grappled
with that person who twisted his hand. The other
person accompanying the first person gave him a kick
and took out some weapon and fired at him, but he
saved himself. The bullet hit the person who had
caught hold of him and receiving the bullet injury, he
fell down and later on, he learnt that he was Maharaj
Singh and the person who had fired was Samar Singh.
The neighbours, who had collected, started assaulting
Samar Singh. Thereafter, many other police officials
entered his room and beat him as a result of which his
right leg was severely fractured and the plaster
remained for eight months. That apart, 23 stitches
were put on his head due to the beatings given by the
police. He had become unconscious on the spot after
receiving injuries. When he regained consciousness, he
4Page 5
found himself in Safdarjung Hospital. It was his further
plea that to save the police official Samar Singh, the
investigating agency had falsely implicated him. He
had also taken the plea that they had got his signatures
on blank papers at the Police Station. Sanjay, who was
brought by the police, had witnessed the entire episode.
The police deliberately did not cite any one from the
public as witness as they gave beating to Samar Singh.
Chander Pal was not present at his house on that day as
he had gone out with his van. He came to know later
on that the house of Maharaj Singh was at a distance of
50 yards from the place of occurrence, i.e., house of
Chander Pal.
5. The defence, in order to substantiate its plea, examined
one witness, namely, Sanjay.
6. We have heard Dr. V.P. Appan, learned counsel for the
appellant and Mr. R. Nedumaran, learned counsel for
the respondent.
7. Two fundamental points that have been urged before us
are that apart from the police officials, no other
5Page 6
independent witness has been examined and that the
appellant was not responsible for causing injury on the
deceased. On the contrary, it was the Head Constable
Samar Singh who intended to fire at the accused when
the deceased and the accused were grappling, but the
bullet hit the deceased. Elaborating the said
contention, it is canvassed by the learned counsel that
to hide the atrocities of the police, the case has been
foisted, but the learned trial Judge as well as the High
Court failed to appreciate the same in proper
perspective which makes the judgments absolutely
faulted.
8. Per contra, the learned counsel for the respondent
would contend that the post mortem report and the
weapons seized would clearly show that the bullet was
not fired from the pistol of Samar Singh but from the
desi katta which was seized from the custody of the
accused. It is also contended that the plea taken under
Section 313 CrPC is fundamentally incredible and it only
shows a figment of fertile imagination of the accused as
such a situation could never have occurred.
6Page 7
9. To appreciate the aforesaid submissions, it is necessary
to reproduce the autopsy report brought on record and
proven by Dr. O.P. Murli, PW-3, which is as follows: –
“One lenear cresentric abrasion measuring 3 x 8
cms, 2 x 7 cms. and 1 x 3 cms with bruising in and
around.
Gun shot entry wound of 2.5 x 1 cms. Over front
of right side abdomen 5 cms. above the embilicus
1 cm from mid line, 21 cms. from right nipple and
45 cms above right sole. Margines were inerted
blackened and surrounding hairs showed singeing,
abdominal fact (omentum) protruded with effusion
of blood in and around underneath the tissues.
Omentum and small intestine were lacerated and
showing cavitation consequent upon the fire arm
injury with full of abdominal cavity blood bruising
was also also seen in other parts of intestine. Fire
arm exit wound of 1 x 1.5 cm. over the back side
of right side abdomen 6.5 cms. from midline 3
cms. from waist line 20 cms. From right back bone
anble margines everted and protruded wound
communicating with the entry and all intervention
structure were lacerated and injury effect. All
organs were pale. Rest was NAD.
Clothing examination : One shirt was having a tear
of 2.5 x 2.3 cms. soaked in block showing fire arm
effect and the bullet entry had also fractured one
button and half was present. The hole of the shirt
was 28 cms. from lower margine on right side.
The back part of the shirt shows corresponding to
the exit wound of size 1 x 7 cms on the right lower
part 18 cms from the margine. The direction of
wound was from front to back and slight above to
down.
The underneath banian showed tear of 1 x 7 cm
on the back front tear was cut in the casualty.
7Page 8
Blood soaked pants and underwear
Opinion :
Death in this case was due to haemorrhage shock
as result of gun shot injury which was sufficient to
cause death in the ordinary course of nature and
was fired from a close range showing powder and
heat effect.”
From the aforesaid report, it is quite clear that the death was
due to bullet injury and the direction of the wound was from
front to back and slight above to down. We shall dwell upon
this aspect when we deal with the said point.
10. We shall deal with the first contention first. In the plea
advanced under Section 313 CrPC, it has been stated by
the accused-appellant that as the public became angry
due to the conduct of Samar Singh, they assaulted him
and in order to save him, the investigating agency
chose not to cite any independent witness though many
witnesses were present who had seen the occurrence.
There is no denial of the fact that the occurrence had
taken place in the house of Chander Pal who has turned
hostile. However, from his testimony and other
evidence brought on record, it is evident that the
occurrence took place in his house. His turning hostile
8Page 9
does not affect the case of the prosecution. The
witnesses from the department of police cannot per se
be said to be untruthful or unreliable. It would depend
upon the veracity, credibility and unimpeachability of
their testimony. This Court, after referring to State of
U.P. v. Anil Singh1
, State, Govt. of NCT of Delhi v.
Sunil and another2
and Ramjee Rai and others v.
State of Bihar3
, has laid down recently in Kashmiri
Lal v. State of Haryana4
that there is no absolute
command of law that the police officers cannot be cited
as witnesses and their testimony should always be
treated with suspicion. Ordinarily, the public at large
show their disinclination to come forward to become
witnesses. If the testimony of the police officer is found
to be reliable and trustworthy, the court can definitely
act upon the same. If, in the course of scrutinising the
evidence, the court finds the evidence of the police
1
1988 Supp SCC 686
2
(2001) 1 SCC 652
3
(2006) 13 SCC 229
4
2013 AIR SCW 3102
9Page 10
officer as unreliable and untrustworthy, the court may
disbelieve him but it should not do so solely on the
presumption that a witness from the department of
police should be viewed with distrust. This is also based
on the principle that quality of the evidence weighs
over the quantity of evidence.
11. Thus, the submission that the whole case should be
thrown overboard because of non-examination of
independent witness and reliance on the official
witnesses cannot be accepted. Presently, we shall
proceed to deal with the veracity and acceptability of
the testimony of the witnesses. The learned trial Judge
and the High Court, after x-ray of the evidence of the
witnesses, have come to the conclusion that Pramod
Kumar was a proclaimed offender; that information was
received by the competent authority that he was hiding
in the house of Chander Pal; that a team had gone to
apprehend him; that SI Jaswinder Singh along with other
members of the team waited at a distance of 100 yards
and Maharaj Singh went to the house of Chander Pal;
that the accused was found on the verandah of the
10Page 11
house and was asked to surrender but he immediately
took out a knife from his shirt pocket; that before he
could inflict a knife blow, he was overpowered by
Maharaj Singh and there was a grapple between the
two; and Maharaj Singh, receiving a bullet injury, fell
down and eventually succumbed to the injuries in the
hospital. It is not in dispute that Pramod Kumar has
received some injuries, but that would not be a ground
for discarding the prosecution version and acceptance
of the plea of the defence. The evidence on record is
required to be scrutinized and appreciated. The
witnesses, namely, Baljit Singh, PW-6, Samar Singh, PW-
8, Jaswinder Singh, PW-9, Rajbir Singh, PW-11 and Md.
Iqbal, PW-16, who have been examined in support of
the prosecution, have stood embedded in their version.
The witness, Samar Singh, PW-8, has vividly described
the occurrence and the graphic description has not
been, in any manner, dented in spite of the roving
cross-examination. It is apt to note that despite
searching cross-examination, none of the witnesses has
given way to any tergiversation. When their testimony
11Page 12
has not been varied from any spectrum, there is no
reason to discard them. Thus, the contention that there
should have been examination of independent
witnesses to corroborate the evidence of the police
officials has to be treated as mercurial. Therefore, we
unhesitatingly repel the said submission.
12. The next limb of argument pertains to the nature of
weapon that has caused the injury on the deceased and
the circumstances and the position in which the injury
was caused. The first plank of this argument of the
learned counsel for the appellant is that the deceased
has been fired at by Samar Singh from his service
revolver. On a perusal of the evidence and the FSL
report relating to the country-made pistol, Ext. F-1,
seized from the accused, it is manifest that the fire arm
country-made pistol .303 bore was designed to fire a
standard .303 cartridge and that the pistol was in
working order. Its test fire was also successfully
conducted and the empty cartridge of .303 bore, Ext. C-
1, found in the chamber of the country-made pistol was
the empty cartridge fired from the country made pistol.
12Page 13
Therefore, to say that no shot was fired from the
country-made pistol is belied and the prosecution
version that it was the country-made pistol which was
fired by the accused that caused injuries to the
deceased deserves acceptance.
13. The second plank of this limb of proponement is that
the accused-appellant could not have fired at the
stomach region of the deceased. From the post-mortem
report, it is clear that the bullet injury was from front to
back. It is not in dispute that the deceased and the
accused were grappling. The version of the
prosecution in that all of a sudden, the accused brought
out his desi katta and fired from a close range. This has
been clearly established by the evidence. Learned
counsel would submit that while grappling the position
changed and the bullet fired from the service revolver
of Samar Singh hit the deceased. In our considered
opinion, such a submission cannot be given any
acceptance as the desi katta was seized from the
accused and the weapon, as opined in the FSL report, is
the desi katta and further there is no material to prove
13Page 14
that gun shot was fired from the weapon of Samar
Singh. Thus, from the aforesaid, it is clear as crystal
that the shot was fired from the country-made pistol
seized from the custody of the accused-appellant.
Hence, the plea that there was a gun shot from the
revolver of Samar Singh while the accused-appellant
was grappling with the deceased being absolutely
mercurial in nature is rejected.
14. In view of the aforesaid premised reasons, the appeals,
being sans substance, stand dismissed.
……………………………………….J.
[Dr. B. S. Chauhan]
……………………………………….J.
[Dipak Misra]
New Delhi;
July 01, 2013
14

 

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