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PETITIONER: MANJEE SINGH

       Vs.

RESPONDENT: STATE OF NCT OFDELHI

DATE OF JUDGMENT:       15/02/2000

BENCH: G.T. Nanavati, S.N.Phukan

JUDGMENT:

     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.

     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

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revolvers in their hands-and abusing the deceased.  He could not stop them as they ^ere armed.

     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.

     Brij  Mohan  was  stated  to   have  died  in   police enc-ounter at Mathura.  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, <HR>       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.

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

     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.

     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.

     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.

     It  has been urged on behalf of the appellant that all

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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.

     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.

     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.

     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.

     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.

     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.

     Our attention has been drawn regarding over-writing in

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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.

     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.

     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.

     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.

     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.

     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.

     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.

     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

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     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.

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

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