Appeal against conviction under Section 302 IPC for shooting the deceased in his house. The court held the unchallenged testimony of the domestic servant who witnessed the shooting, corroborated by the witness who saw the accused leaving with a pistol, sufficient, and upheld the conviction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : April 19th , 2018
Date of Decision : July 03, 2018
+ CRL.A. 1402/2014
JASWINDER SINGH @ JASSA ..... Appellant Through: Mr.Ashok Agrwaal, Ms.Sridevi Panikkar and Ms.Devyani Bhatt, Advocates. versus STATE ..... Respondent Through: Mr.Rajat Katyal, APP for the State.
CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S. TEJI, J.
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Ex. PW-32/D. The dead body of the deceased was sent for postmortem.
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she stated that she had seen the accused on the stairs, but she did not state that she crossed path with PW15 on the stairs while she was going up. He argues that as per site plan Ex.PW26/A, there was no window in the kitchen, so there was possibility of PW15 seeing the accused from the kitchen window when he was allegedly going down the stairs. Even the kitchen was so small, that it was not possible for PW15 to hide there. It is further argued that apparently the statement of PW24 was recorded after about 5-6 days of the incident, but no explanation has been given for such a delay. It is submitted that PW15-Jogeshwar was not present in the house, as PW24 stated that when she went upstairs, there was no one around except the dead body of Harish Arora. It is further submitted that the conduct of PW12-Pawan Kumar, brother of the deceased was unnatural as he did not go to the police station directly. Instead, he went to the house despite the fact that the police station was situated opposite to the shop of PW12. It has also not been explained as to why PW12 called the doctor first, instead of calling the police. Ld. Counsel further submits that during his cross examination on behalf of the accused, PW-13 stated that when he reached the house of the deceased, only Pawan Arora (PW-12) was present there. It is further submitted that no public witness was examined from the locality to establish the presence of accused at the house of the deceased. It is further argued that since the appellant was the Bad Character of the area, he was roped in the present case.
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10. In support of the above contentions, reliance has been placed on Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190 to press the contention that the prosecution has to prove its case beyond reasonable doubt, and that the accused is entitled to the benefit of a reasonable doubt.
“ 28. ….. The „reasonable doubt‟ is one which occurs to a prudent and reasonable man…
29. …. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of a prudent man who is assumed to possess the capacity of “separate the chaff from the grain”. It is doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.”
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statement of eye witness Jogeshwar was recorded at 3.00 p.m. vide Ex. PW-15/A, and then the rukka (Ex. PW-31/A) was sent to the police station at 3.10 p.m. which led to the registration of the FIR at 4.15 p.m. PW15-Jogeshwar has duly supported the case of the prosecution. He had clearly stated that the accused Jassa had fired a gun shot at his employer Harish Arora in his presence after which he hid himself in the kitchen. PW24-Smt.Pushpa Arora had corroborated that on the day of the incident, she had seen the accused climbing downstairs and keeping the pistol in his pant. It is submitted that the postmortem of the dead body was conduct on 12.09.1997. First IO of the case was PW32-SI Naresh Solanki, and the second IO was PW36Insp.Saravjit Singh Dhillon to whom the investigation was transferred on 13.09.1997. It has been explained that the second IO tried to record the statement of family members of the deceased, but he was told to come later. On 14.09.1997, IO went to record the statements of the witnesses but he was turned away by the grieving family of the deceased. Statement of PW24-Smt.Pushpa was ultimately recorded on 17.09.1997 and, on the same day, Pawan Kumar-brother of the deceased was also examined. Accused was arrested on 19.09.1997 and on 14.12.1997, statement of PW13-Dr.M.K. Tayal was recorded. Thus, there is no delay in recording the statement of PW24Smt.Pushpa as alleged. It is submitted that there is enough evidence on record to convict the appellant and the trial court convicted him as the prosecution has been able to prove its case beyond reasonable doubt.
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saw the accused going hurriedly downstairs with pistol in his hand. When PW15 was satisfied that the accused had gone away, he came down and went to the shop of Kalu Ram & Sons near PS Mehrauli. He met Pawan Arora (PW-12), brother of the deceased in the shop and told him about the incident. PW15 then returned home along with Pawan Arora (PW-12) on his two wheeler scooter. Pawan Arora called a neighbouring doctor (PW-13). Doctor after checking Harish Arora told them that he had died. Pawan Arora informed the police on phone upon which police came. PW15 made his statement Ex.PW15/A to the police.
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present at his shop, Yogeshwar-servant of his brother came and told him that his brother was killed by Jaswinder @ Jassa by firing. He went to the house along with servant Jogeshwar on two wheeler scooter. He reached the spot within 4-5 minutes of receiving the information. PCR Van arrived at the spot after him. He admitted that his shop was in front of the police station. He stated that he had not informed the police before reaching. He voluntarily stated that unless he had ascertained as to what had happened, there was no occasion for him to call the police.
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accused putting a pistol in the right side pocket of his trousers. Accused asked her in Hindi about her welfare stating “ Aur bhabhiji kya haal hai ” (how are you sister-in-law). She rushed upstairs and reached the room of Harish Arora and found him lying on the floor in a pool of blood. She raised alarm. After some time, her husband Satish Arora returned home. Ladies also collected and then she was taken to another room. Her statement was recorded by the police 5/6 days after the incident. She correctly identified the accused in the Court. During cross-examination by the defence, PW24 denied that she had carried an idea about the accused putting a pistol in his pocket. She categorically stated that she had seen the accused putting a pistol in his pocket. She did not see any smoke coming out of the pistol. When she went upstairs, there was no one except the dead body of the deceased. She stated that she had not telephonically informed her husband. He had been called by Yogeshwar, servant of Harish Arora. She had seen the accused when she came face to face with him on some occasions when he visited Harish at his house.
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time of the incident is concerned, it is established from the testimony of PW24-Smt.Pushpa Arora, sister-in-law of the deceased that PW15Jogeshwar was working as a domestic servant in the house of her deceased brother-in-law Harish Arora. The employment of Jogeshwar being servant in the house of deceased has also been established from the testimony of PW12-Pawan Kumar, brother of the deceased. So, the fact that PW15 was working as servant in the house of the deceased has duly been established from the testimony of PW12 and PW24.
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of the deceased. PW15 has not been cross examined by the accused, despite repeated opportunity. Thus the said witness has not been challenged that he was not present at the flat of the deceased at the time of occurrence, or that he did not witness the same. Thus, we reject this submission of the appellant.
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he took the measurements and prepared the scaled site plan Ex.PW26/A was not questioned about the absence of any windows in the kitchen. Thus, we find no merit in this submission of the appellant.
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about 1/1.15 p.m. she was in the kitchen and heard a sound as that of a cracker coming from the upper floor of the house where her deceased brother-in-law Harish Arora used to reside. She came in the gallery and saw the accused coming downstairs putting a pistol in the right side pocket of his trousers. The accused asked for the well being of the witness as well. No dispute can be raised to the presence of PW24 at her house at the time of the incident as it was around 1/1.15 p.m., and it was quite natural for a housewife to be present in the kitchen to prepare the meals.
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time lag between the exit of the accused from the flat of the deceased, and the entry of PW-24. Thus, when PW-24 entered the flat of the deceased, PW-15 was still hiding. She has not claimed that she first looked for PW-15, or any other person. She straight headed for the room of the deceased, where she saw his dead body. So, there was no occasion for PW-24 to see anybody in the room of the deceased at that time, or cross path with PW-15 in the staircase.
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such a state of shock and terror, that they could not reconcile with their loss and were not in a fit state of mind to give their statement to the police at the time when the police wanted to record their statements soon after the incident. Apart from the shock and trauma of the death, there are other post-death rituals also which might have prevented the family members of the deceased to get their statements recorded– including that of PW-24, soon after the occurrence. There was nothing strange in the explanation given by the State with regard to delay caused in recording the statement of PW-24. In any event, the statement of PW15 was recorded on the same day.
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accused Jaswinder. Thus, his clear endeavour was to steer clear of the controversy, since he did not want to face the wrath of the accused. The possibility of his being coerced or influenced by the accused-who was a bad character of the area, cannot be ruled out. It is in this context that his statement in his cross-examination- that when he reached the house of Harish Arora on second floor, there was only Pawan Arora present besides the dead body, has to be viewed. As noticed hereinabove, there is ample evidence to conclusively establish that not only Pawan Arora but PW-15 Jogeshwar and PW-24 Pushpa Arora were also present at the site. Thus, in our view, the appellant cannot derive any benefit of the said hostile testimony of PW-13. The said testimony does not dent the case of the prosecution with regard to the presence of PW-15 in the premises of the deceased when the deceased was shot by the accused.
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dying person, first thing one would do is to give him medical treatment as early as possible. It might be for this reason the witness (PW-12)– to ensure immediate treatment of his brother, called the doctor (PW-13) who was residing in the neighbourhood. When PW13 declared Harish Arora dead, he immediately informed the police which is apparent from DD No.17A recorded at 1.22 p.m. The conduct of PW-12 cannot be said to be so unusual as to be denoted as suspect. Different persons may react differently to the same fact situation. There can be no “standard” reaction to such like sudden developments. So, no adverse inference can be drawn with regard to conduct of the witness (PW-12).
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Admittedly, besides the FIR of the instant case, another FIR No.507/1997 under Section 302/201 IPC was registered against the appellant for commission of murder of his brother Ravinder Rana. The recording of FIR No.507/1997 further corroborates the testimony of PW15 to the effect that when accused came in the house, he told the deceased that he had finished his brother that day and he would kill him too. Pertinently, this was so stated by PW-15 at the earliest opportunity i.e, when his statement Ex.PW 15/A was recorded. He being a domestic servant of the deceased, who was present in the house of the deceased, would not have been aware, and could not have imagined this fact, unless he heard it from the accused, since the murder of the brother of the accused-Rana had taken place on the same day, in respect whereof FIR No. 507/1997 was registered. There is no force in the contention of the appellant that since he was Bad Character of the area, for that reason he has been falsely implicated in the present case.
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to craniocerebral damage (head injury) caused by discharged bullet from rifled firearm weapon. The injury was ante mortem in nature and was sufficient to cause death in ordinary course of nature. So, from the testimony of PW4 and the postmortem report Ex.PW4/A of the deceased, it stands duly proved that the death of the deceased was homicidal in nature. Even no dispute with regard to cause of death of the deceased has been raised by the appellant.
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beyond any reasonable doubt. Therefore, the judgments relied upon by the appellant in the cases of Vijayee Singh (supra), Kuna @ Sanjaya Behera (supra), Harbeer Singh (supra) and Kajal Kora (supra) are of no help to him in the facts and circumstances of the present case.
JULY 03, 2018
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2 issues framed by the court
Whether the testimony of the solitary eye witness, who was not cross-examined by the accused, is sufficient to sustain the conviction under Section 302 IPC.
Whether the alleged doubts regarding the presence of the eye witness and the delay in recording the statement of another witness vitiate the prosecution case.
Colour shows how this judgement treated each authority
Vijayee Singh and Others v. State of U.P.Distinguished¶10
Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190 · Who else cites this
Kuna @ Sanjaya Behera v. The State of OdishaDistinguished¶11
Kuna @ Sanjaya Behera v. The State of Odisha 2017 SCC OnLine SC 1336 · Who else cites this
Harbeer Singh v. Sheeshpal and othersDistinguished¶12
Harbeer Singh v. Sheeshpal and others (2016) 16 SCC 418 · Who else cites this
State of West Bengal v. Kajal Kora & ors.Distinguished¶13
State of West Bengal v. Kajal Kora & ors. 2017 SCC OnLine Cal 6833 · Who else cites this
6 provisions across 2 enactments
Jaswinder Singh @ Jassa
State
Vipin Sanghi
P.S. Teji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
