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PETITIONER: MANJEET SINGH

       Vs.

RESPONDENT: STATE OF NCT OF DELHI

DATE OF JUDGMENT:       15/02/2000

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

JUDGMENT:

     PHUKAN, J.

     This  appeal  is directed against the  judgment  dated 14.05.99  passed  by the learned Additional Sessions  Judge, Designated  Court-II,  Delhi  in Sessions  Case  No.   3/97. Three accused namely appellant  Manjeet Singh @ Kukku, Ajay Kumar  and Georg Innis @ Jerry were booked for trial  before the   designated  court.   By   the  impugned  judgment  the designated  court acquitted accused-appellant 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-Manjeet  Singh  guilty under Section 302  IPC  and under  Section  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 6th 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 Bijendra Singh PW11  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 inside.  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 from  their revolver.   According  to prosecution the second person  who entered  subsequently was the appellant.  On seeing  accused persons  firing  shots at the deceased, PW-6 rushed  to  the adjacent  house and informed the police over phone.  Mrs  N. Sherjung  -  PW-2 sister of deceased and Mrs P.G.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 - PW1  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 also  rushing towards the chamber of the deceased.  When  he reached  near  the  chamber, he saw the young  boy  and  the appellant  coming  out  with revolvers in  their  hands  and abusing the deceased.  He

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     d  in  another criminal case, wanted to eliminate  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  5th  July,  1998  at Jabalpur  and  after  investigation submitted  the  charge  sheet.   We  have  heard  Shri  R.K. Maheshwari,  learned counsel for the appellant and Shri A.S. Nambiar, learned senior counsel for the respondent.

     At  the  time of incident PW-6, J.S.  Obroi and  PW-11 were  present  in the chamber of deceased.  J.S.  Obroi  was not  examined and PW-11 was declared hostile.  PW-6 was  the main  witness  of  the  occurrence  and  he  identified  the appellant.   PW  s  1,2 and 3 who rushed to the  chamber  of deceased  also  identified  the appellant.   PW  6,  Junior counsel  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  in his office and called for suspended constable-  PW11 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 office 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 office of the deceased and it  was  about 08.45 p.m.  P.W-1 was in the kitchen, PWs  2 and                  ??????????????????????????????????????? ???????????????????????????????????????   ?????????????????? They  saw  both the persons and deposed that they  would  be able   to  identify  the   persons.   They  identified   the appellant.

     ????????????????????????????????????? ??????????????????????????????????????? ??????????????????their  ??????????????????????????????   to be  in  to be present in the  house.   ????????????????????? ??????????????????????????????????????? ??????????????????????????????????????? ?????????????????????????????

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     ission 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 the evidence of PWs 2, 5 and 11. PW-2,  the  sister of the deceased, was an aged lady and  it was  quite  natural that she was under shock when she  found that  her brother was murdered.  Merely because she did  not mention  PW-6 was present, his presence cannot be ruled out. PW 5 and PW 11 turned 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 was recorded that at 09.00 p.m  PW-6  informed about the incident of the death  of  the deceased.  PW-4, Head Constable Narain 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 immediately  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 O group but on the shirt of PW6 a blood stain was found of  B group.  On behalf of the appellant it has been urged that  this fact establishes the contention of the  appellant that  PW-6 was not present at the place of occurrence.  This aspect  has  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 the 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  of  PW-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  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 cartridges 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 an advocate but not an expert  in arms.   We, therefore, reject the contention of the  learned counsel  for the appellant that Pw-6 was not present at  the time  of  occurrence.  We have already stated that  being  a junior  counsel  of  the deceased, his  presence  was  quite natural in the chamber of the deceased at the relevant time. After   the   occurrence,  P.W.1,   P.W.3  and  P.W.6   gave description of the assailants to the Investigating Officer

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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-1 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 of the chamber  of  the deceased   through   which  this    witness   went   inside. Considering  the distance as per sketch map and the lay  out of  the place statement of P.W.1 that he saw the  assailants cannot  be  doubted.  When the appellant was brought to  the 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 was  proper  identification.   The learned counsel  for  the appellant  has raised serious objection for  non-examination of Ashok Talwar from whose statement appellant was arrested. PW-35  has  stated on oath that in spite of best efforts  he could  not  locate this witness.  Non-examination  has  been duly  explained  by the prosecution.  From the  evidence  of PW-1,  we find that the appellant first came to the  chamber of the deceased when PW-1 was present and inquired about the deceased  from PW-1 and on coming to know that the  deceased would be returning after some time the appellant asked for a glass  of water which was given by PW-1.  According to  PW-1 this  glass was kept on the table and was also seized by the police  but not produced at the time of trial.  According to the  learned  counsel for the appellant the prosecution  did not  produce the glass as there was no finger prints of  the appellant.   Immediately  after  the  occurrence  number  of persons came 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.  We have also perused the entire  evidence  on record and hold that the learned  trial court  rightly  convicted  the appellant.  For  the  reasons stated  above  the  appeal  has  no  merit  and  accordingly dismissed.