2000 ALL SCR (Cri) 455

SUPREME COURT OF INDIA

Criminal Appeal No. 686 of 1999

15th February, 2000

G.T. Nanavati, J.

S.N.Phukan, J.

2

MANJEET SINGH ALIAS KUKKU

STATE OF NCT OF DELHI

Penal Code (1860)

Terrorist Activities and Disruptive (Prevention} Act (1987)

Section 201 Penal Code (1860)

Section 302 Penal Code (1860)

Section 120B Penal Code (1860)

Section 5 Terrorist Activities and Disruptive (Prevention} Act (1987)

Accused, Examination, Police, Public Prosecutor, Special Public Prosecutor, Statement, Witness

PHUKLAN, J.:- This appeal is dieted against the judgment dated 14.05.99 passed by the learned Additional Sessions Judge, Designated Court-11. Delhi in Sessions Case No. 3/97. Three accused namely appellant - Manjeet Singh @ Kukku, Ajay Kumar and Georn Innis @ Jerry' were booKed for trial before the designaaed court. By the impugned juigmen the decignaed cour. acquitted accused-appcllant and Ajay Kumar of the charge under Section 120B IPC. The court also acquitted Georg Innis @ Jerry of the charge under Section 201 IPC. The designated court, however, found the accused appellant-ManjeetSingh guilty under Section 302 IPC and under Secion 5 of Terrorist Activities and Disruptive (Prevention} Act. 1987 and convicted him accordingly. Hence the present-appeal.

2. According to prosecution at about 08.45 p.m on 6^ June, 91 deceased Baba Gurcharan Singh a lawyer was murdered in his chamber by the appellant and Brij Mohan, Shri K.K. Tyagi - PW6 junior counsel attached to the chamber of the deceased. J.S. Obroi, Steno of the deceased and Shri Bljendra Singh -PWI I - a suspended head constable of Delhi police who was a client of the deceased, were present at the time of the occurrence. At that time the deceased was giving dictation to his steno for filing a petition before this Court and a young boy peeped through the door-glass of the chamber and on being signaled by the deceased he walked inaide. He pushed PW-6 and at the same time another person aged about 30 years also went inside the chamber. Both the persons started firing shots trom their revolver. According to prosecution the second person who entered subsequently was the appellant. On seeing accused persons firing shots at tlie deceased. PW-6 rushed to the adjacent house and informed tlie police over phone. Mrs N. Shcrjune - PW-2 sister of deceased and Mrs P.O.S. Bawa - PW-3 wife of deceased who were in the bedroom of PW-3 came out 'on hearing the sound of gun fire. Shri Babu Ram Thapa - PWI cook of the. deceased, who was in the kitchen, heard sound of gun fire coming from the chamber of the deceased .and .ran towards the office and he saw PW-2 and PW-3 were aiso rushing towards the chamber of the deceased. When he reached near the chamber, he saw the young boy and the appellant coining out with revolvers in their hands-and abusing the deceased. He could not stop them as they ^ere armed.

3. Immediately.. son-in-law of the deceased Dr. M.L. Khatri -PW7 and his wife Mrs. Rashi K-hstri -PW8 on being informed reached the house of deceased and lifted the deceased with the assistance of PW-l and PW-6 ond put him in the car and thereafter he was taken to nursing home of PW-7 where he was declared dead.

4. Brij Mohan was stated to have died in police enc-ounter at Mathura.

5. During investigation it was revealed that the accused - Ajay Kumar who was an accused in another criminal case. wanted lo ehjfninate the deceased who was appointed as Special Public Prosecutor in that case, therefore, he conspired with deceased Brij Mohan during his stay in Tihar Jail to eliminate the deceased. The police after getting information arrested the appellant on 5^ July. 1998 at Jabalpur and after investigation submitted the charge sheet.

6. We have heard Shri R.K. Mahesiwari. learned counsel for the appellant and Shri A.S. N^mbiar. learned senior counsel for the respondent.

7. At the. time of incident PW-o. J.S. Obroi and PW-Il were present in the chamber of deceased. J.S. Obroi was not examined and PW-I.I was declared hostile.. PW-6 was the main witness of the occurrence and he identified the appellunt. PWs 1.2 and 3 who rushed to the chamber of deceased also identified the appellant.

8. PW --6. Junior counsei of the deceased was the eye witness and had described the manner in which deceased was murdered in his chamber. According to him the deceased came from out side. sat m his office and called tor suspended constable- PWI I whose petition was to be filed in this Court and started giving dictation to his steno Shri J. S. Obroi. At that time- a young boy peeped from the door of his office and deceased called the boy The boy entered the office but did not sit and called his companion who came with a revolver in his hand. The first boy took out a revolver from his bag pushed PW-6 and at that time second boy started firing. According to PW-6 both the assailants fired from their revolvers four - five shots. This witness identified the appellant as the second boy who came inside the otfice with a revolver in his hand. PW-6 ran away from the office and called police control room from adjoining house. When he returned he found the deceased profusely bleeding with his face down-ward on his table.

9. PWs 1. 2 and 3 have also deposed that they heard the sound of gun fire coming from the otTice of the deceased and it was about 08.45 p.m. P.W-I was in the kitchen. PWs -2 and 3 were in the bed room of PW-3. These witnesses ran towards the office room of the deceased. They saw both the persons and deposed that they would be able to identity the persons. They identified the appellant.

10. It has been urged on behalf of the appellant that all the above witnesses are interested witnesses and no reliance could be placed on then- evidence. PW-6 being the junior counsel to the deceased was expected to be in the chamber of deceased at that time and so also the cook PW-I to be present in the house. It was natural for PW-2 and PW-3 to be present in the house. Therefore, their presence at the place of occurrence is quite natural. There is nothing on record for coming to the conclusion that the above witnesses had any grudge against the appellant. Therefore, the submission is not tenable.

11. It has been urged on behalf of the appellant that PW-6 was a planted witness and he was not present at the time of occurrence. In this regard our attention has been drawn to tlie evidence of PWs 2. 5 and 11. PW-2. the sister of the deceased, was an aged lady and it was quite natarni tbpf she was under shock when she found that her brother was murdered. Ivierely because she did not mention PW-6 was present. Ins presence cannot be ruled out. PW 5 and PW I I torned hostile.

12. PW-6 informed the police and it was recorded in DD Entry No. 18A. at P.S. Model Town. This was exhibited as PW 4''A. It wa.s recorded that at 09.00 p.m PW-6 informed about the incident of the death of the deceased. PW-4. Head Constable Naram Singh has proved this entry.

13. From the evidence of the Investigating Officer - PW35 we find that at about 09.00 p.m. on 6,6.91 he received the information about the incident through wireless and mimediateh' proceeded to the house of the deceased. On finding that the deceased was removed to the nursing home he went there. PW-6 met him at the nursing home and Investigating Officer recorded his statement. PW-6 also witnessed the seizure of various articles and signed memos Ex. PW 3/A-F. These materials would support the presence of PW-6 at the time of occurrence.

14. Five cartridge cases were recovered from the place of occurrence as per recovery memo Ex. P-3.'A - three were of 9 m.m and two were of 45 m.m. This recovery also supports the presence of PW6 as he deposed that two assailants fired from their revolvers.

15. While lifting the body of the deceased the shirt of PW-6 stained with blood of the deceased. The deceased had blood of '0' group but on the shirt ofPW6 a blood stain was found of 'B' group. On behalf of the. appeilant it has been urged mat this fact establishes the contention of the appellant that PW-6 was not present at the place of occurrence. This aspect ha^ been dealt with by the learned trial court who noted that the incident took place on 6.6.91 and the shirt of PW-6 along with other exhibits lifted from tile place of occurrence was received by C.F.S.L on 24.07.91 and in view of this inordinate delay, detection of "B" blood group on the shirt ofPW-6 cannot destroy the other evidence available to support the contention of the prosecution that PW-6 was present and saw the occurrence. We agree with the trial court, in view of oral and other supporting evidence, presence of P.W.6 at the time of occurrence cannot be doubted.

16. Our attention has been drawn regarding over-writing in serial numbers of daily diary recorded on 6.6.91. We find from the impugned judgment that this aspect was duly dealt with by the trial court who recorded the finding that over-writing was due to mistake in numbering and that there was no over-writing or manipulation. We accept the finding of the trial court.

17. Five cartridgss were recovered from the spot and those were fired from pistol. It has been contended before us that PW-6 deposed that assailants were having revolvers and he being an advocate would know the difference between pistol and revolver, therefore, his evidence is not reliable. We cannot accept the submission as PW-6 is "n advocate but not an expert in amis.

18. We. therefore, reject the contention of the learned counsel for the appellant that Pw-o was not present at the time of occurrence. We have already stated that being a junior counsel of the deceased. Ins presence was quite natural in the chamber of the deceased at the relevant time.

19. After the occurrence. P.W.I.. P.W.3 and P.W.6 gave description of the assailants to the Investigating Officer - P.W.35, who could suspect that the appellant was one of the culprits as he had previous police records and was involved in other criminal cases. On the basis of this description police moved and apprehended the appellant at Jablapur. This fact would support that the above eye witnesses could identify the appellant at the time of occurrence.

20. PW-j stated that he rushed to the chamber of the deceased on hearing gun shot. From his evidence we find that he was rushed to the chamber through corridor and saw two assailants coming out by the door fi the chamber of the deceased through which tills v'.'imess 'vent inside. Considering the distance as per sketch map and the lay out of the place statement of P.W.I that he saw the assailans canno be doubted.

21. When the appellnt was brought to he house of the deceased on 8.7.91. P.Ws 1,2,3 and 6 identified the appellant. From the above discussion we hold that there wa-s proper identification.

22. The learned counsel for the appellant has raised serious objection for non-examination of Ashok Talwar irom whose statement appellant was arrested. PW-35 has stated on oath that in spite of best efforts he could not locate tills wmiess. Non-examination has been duly explained by tlie prosecution.

23. From the evidence ofPW-L we find that the appellant first came to the chamber of the deceased when PW-l was preseni and inquired about the deceased from PW-I and on coin ins to know that the deceased would be returning after some time the appellant a-sked for a glass of water which was given by PW-i. According to PW-i tills glass was kept on the table and was also seized by tlie police but not produced at tlie time of trial. According to the learned counsel tor the appellant tlie prosecution did not produce the. glass as there was no finger prints of tlie appellant. Immediately after the occurrence number of per.i'ons c.ime to the chamber of the deceased and it was quite natural that finger prints on The glass might have wiped out or super imposed by the finger prints of others. For this. the prosecution cannot be faulted.

24. We have also perused the entire evidence on recora and hold lhat the learned trial court rightly convicted the appellant.

25. For the rcasons stated above the appeal has no merit and accordingly dismissed.