PRAMOD KUMARversusSTATE (GNCT) OF DELHI

                        [2013] 8 S.C.R. 323


                        PRAMOD KUMAR                              A
                                v.
                     STATE (GNCT) OF DELHI
              (Criminal Appeal No. 562-563 of 2010)
                           JULY 1, 2013
                                                                  B
         [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

         Penal Code, 1860 - ss. 302 & 1861332 - Murder -
    Prosecution version that country-made pistol was fired by the
    accused that caused injuries to the deceased - Tenability - C
    Held: Tenable - Deceased and the accused were grappling
    with each other - Country~made pistol seized from accused,
    which was in working order - Prosecution version that all of a
    sudden, the accused brought out his country-made pistol and
    fired from close range clearly established by evidence - D
    Defence plea that while grappling, the position changed and
    bullet fired from the service revolver of PW-8 hit deceased not
    acceptable - No material to prove that gun shot was fired from
    the weapon of PW-8 - Evidently, the shot was fired from the
    country-made pistol seized from the custody of accused- E
    appellant - Arms Act, 1959- ss.25 and 27.

          Evidence - Witness - Official witnesses - Testimony of
    police official - Appreciation - Held: Witnesses from the
    department of police cannot per se be said to be untruthful
    or unreliable - It would depend upon the veracity, credibility F
    and unimpeachabi/ity of their testimony - It cannot be said
    that the whole case should be thrown overboard because of
    non-examination of independent witness and reliance on the
    official witnesses - On facts, the official witnesses examined
    in support of the prosecution, stood embedded in their version G
    - Despite searching cross-examination, none of the witnesses
,   gave way to any tergiversation, thus, no reason to discard
    them.

                                323                               H.
    324     SUPREME COURT REPORTS               [2013] 8 S.C.R.


A        On the instructions of SI PW-9, the Head Constable
    PW-8 and Constable 'M' went to the house of 'C' where
    appellant, a proclaimed offender was hiding. The
    appellant was asked to surrender, but, he allegedly took
    out a knife and tried to assault but was caught hold of
B   by 'M' from the rear and both of them grappled with each
    other for some time. PW-8 thereafter snatched away the
    knife from the hands of appellant but, at that juncture, the
    appellant allegedly took out a country-made pistol (desi
    katta) and fired at 'M' and the bullet hit him in the stomach
c   area. 'M' was taken to the hospital where he died due to
    the bullet injury.

         The appellant was convicted by the courts below. He
    challenged his conviction before this Court, contending
    that 1) apart from the police officials, no other
D   independent witness had been examined; and that 2) the
    appellant was not responsible for causing injury on the
    deceased 'M'; on the contrary, it was PW-8 who intended
    to fire at the appellant when the deceased and the
    accused were grappling, but the bullet hit the deceased.
E
          Dismissing the appeals, the Court

         HELD: 1.1. 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 PW-8,
F   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 'C' who
G   has turned hostile. His turning hostile 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
H   testimony. There is no absolute command of law that the
       PRAMOD KUMAR v. STATE (GNCT) OF DELHI                 325


    police officers cannot be cited as witnesses and their          A
    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   B
    of scrutinising the evidence, the court finds the evidence
    of the police 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          c
    based on the principle that quality of the evidence weighs
    over the quantity of evidence. [Para 1O] [322-C-D, F-G;
    333-A-B]

         1.2. It cannot be said that the whole case should be
    thrown overboard because of non-examination of                  D
    independent witness and reliance on the official
    witnesses. The trial Judge and the High Court, after x-ray
    of the evidence of the witnesses, have come to the
    conclusion that appellant was a proclaimed offender;
    that information was received by the competent authority        E
    that he was hiding in the house of 'C'; that a team had
    gone to apprehend him; that 51 PW-9 along with other
    members Qf the team waited at a distance of 100 yards
    and 'M' went to the house of 'C'; that the accused was
    found on the verandah of the house and was asked to             F
    surrender but he immediately took out a knife from his
    shirt pocket; that before he could inflict a knife blow, he
    was overpowered by 'M' and there was a grapple
    between the two; and 'M', receiving a bullet injury, fell
    down and eventually succumbed to the injuries in the            G
    hospital. Appellant 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, PW-6, PW-8, PW-9,           H
    326    SUPREME COURT REPORTS                [2013] 8 S.C.R.


A PW-11 and PW-16, who have been examined in support
  of the prosecution, have stood embedded in their version.
  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. Despite
B searching cross-examination, none of the witnesses has
  given way to any tergiversation. When their testimony 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
c corroborate the evidence of tlie police officials has to be
  treated as mercurial. [Para 11] (333-C-H; 334-A-B]
         Kashmiri Lal v. State of Haryana 2013 AIR SCW 3102 -
    relied on.
D       State of U.P. v. Anil Singh 1988 Supp SCC 686: 1988
    Suppl. SCR 611; State, Govt. of NCT of Delhi v. Sunil and
    another (2001) 1 sec 652: 2000 (5) Suppl. SCR 144 and
    Ramjee Rai and others v. State of Bihar (2006) 13 SCC 229:
    2006 (5) Suppl. SCR 240 - referred to. ·
E       2.1. 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
F 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
G the prosecution version that it was the country-made
   pistol which was fired by the accused that cau&ed
   injuries to the deceased deserves acceptance. [Para 12]
   (334-D-F]
      2.2. From the post-mortem report, it is clear that the
H bullet injury was from front to back. It is not in dispute that
   PRAMOD KUMAR v. STATE (GNCT) OF DELHI                  327


the deceased and the accused were grappling. The                  A
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.
The submission that while grappling the position changed
and the bullet fired from the service revolver of PW-8 hit        8
the deceased, 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 PW-8. Thus, it is clear as crystal that the         C
shot was fired from the country-made pistol seized from
the custody of the accused-appellant. [Para 13] [334-F-H;
335-A-B]
                      Case Law Reference:
                                                                  D
  1988 Suppl. SCR 611           referred to         Para 10
  2000 (5) Suppl. SCR 144       referred to         Para 10
  2006 (5) Suppl. SCR 240       referred to         Para 10
  2013 AIR sew 3102             relied on           Para 10
                                                                  E
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 562-563 of 2010.
    From the Judgment and Order dated 16.03.2007 of the
High Court of Delhi at New Delhi in Crl. A. No. 828 of 2003
and Crl. MB No. 1756 of 2005.                                     F
    Dr. V.P. Appan for the Appellant.
    R. Nedumaran, Sadhana Sandhu, D.S. Mahra, Anil Katiyar
for the Respondent.
                                                                  G
    The Judgment of the Court was delivered by
    DIPAK MISRA, J. 1. 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,    H
    328     SUPREME COURT REPORTS                  [2013] 8 S.C.R.

                                                                        •
A   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 information about the prese·nce of
8   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
C   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
D   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
E   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 Jaswinder
F   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 10 by Samar
    Singh. As further revealed, accused Pramod Kumar was
    apprehended and five cartridges were recovered and on the
G   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
H   and the same was sent to F.S.L. Malviya Nagar and ultimately,
                        :f
                       :I
   PRAMOD KUMAR 'v. STATE (GNCT) OF DELHI                    329
             [DIPAK MISRA, J.]

on completion of the investigation, charge-sheet was filed in the   A
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.           B

    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.                                                          C

     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 o
him and pushed him and started assaulting him. At that stage,
he got up a.nd 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 E
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 F
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 found himself in Safdarjung Hospital. It was
his further plea that to save the police official Samar Singh, the · G
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
                                                                    H
    330      SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A · 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
B 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
C   appellant and Mr. R. Nedum·aran, learned counsel for the
    respondent.

         7. Two fundamental points that have been urged before us
    are that apart from the police officials, no other independent
0   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 .
E   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.

F         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
G   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.

         9. To appreciate the aforesaid submissions, it is necessary
H   to reproduce the autopsy report brought on record and proven
   PRAMOD KUMAR v. STATE (GNCT) .OF DELHI                    331
             [DIPAK MISRA, J.]
by Dr. O.P. Murli, PW-3, which is as follows: -                     A

    "One lenear cresentric abrasion measuring 3 x 8 ems, 2 x
    7 ems. and 1 x 3 ems with bruising in and around.

    Gun shot entry wound of 2.5 x 1 ems. Over front of right
    side abdomen 5 ems. above the embilicus 1 cm from mid           B
    line, 21 ems. from right nipple and 45 cml? 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         C
    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 t.5
    cm. over the back side of right side abdomen 6.5 ems.
    from midline 3 ems. from waist line 20 ems. From right          D
    back bone anble margines averted and protruded wound
    communicating with the entry and all intervention structure
    were lacerated and injury effect. All organs were pale.
    Rest was NAO.
                                                                    E
    Clothing examination : One shirt was having a tear of 2.5
    x 2.3 ems. 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 ems. from lower
    margine on right side. The back part of the shirt shows
    corresponding to the exit wound of size 1 x 7 ems on the        F
    right lower part 18 ems 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.                        G
    Blood soaked pants and underwear

    Opinion:

    Death. in this case was due to haemorrhage shock as             H
    332       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A         result of gun shot injury which was sufficient to Cquse 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
8
    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
C   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
D   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 does not affect the
    case of the prosecution. The witnesses from the department
E   of police cannot perse 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. Ani/ Singh 1, State, Govt. of NCT of Delhi v.
    Sunil and Another2 and Ramjee Rai and Others v. State of
F   Bihar, has laid down recently in Kashmiri Lal v. State of
    Haryana 4 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
G   witnesses. If the testimony of the police officer is found to be
    reliable and trustworthy, the court can definitely act upon the
    1.   1988 SUPP. sec 686.
    2.   (2001) 1 sec 652.
    3.   (2006) 13 sec 229.
H 4. 2013 AIR sew 3102.
   PRAMOD KUMAR v. STATE (GNCT) OF DELHI                   .333
             [DIPAK MISRA, J.]
same. If, in the course of scrutinising the evidence, the court    A
finds the evidence of the police 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      B
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    C
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      D
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 house and was asked to surrender but he        E
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    F
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           G
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    H
    334      SUPREME COURT REPORTS                · [2013] 8 S.C.R.


A   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 has not been
    varied from any spectrum, there is no reason to discard them.
    Thus, the contention that there should have been examination
B   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
C   circumstances and the position in which the injury was caused.
    The first plank of this argument of the learned counsel for the
    appellan~ 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-
D   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
E   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.
F
        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
G 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
H bullet fired from the service revolver of Samar Singh hit the
    PRAMOD KUMAR v. STATE (GNC'r) OF DELHI                   335
              [DIPAK MISRA, J.]
deceased. In our considered opinion, such a submission               A
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   s
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 ~amar Singh while the accused-appellant was
grappling with the deceased being absolutely mercurial in
nature is rejected.                                                  c
    14. In view of the aforesaid premised reason(), the appeals,
being sans substance, stand dismissed.

B.B.B.                                      Appeals dismissed.