SC: BULLETS RECOVERED FROM DEAD BODY NOT SENT TO CFSL, CONVICTION FOR MURDER SET-ASIDE The operative part of the judgement read as under : The evidence of PWs 1, 2 and 3 examined in connection with FIR Case No. 456/03 as well as the evidence of Head Constable Rajiv (PW 3) in FIR Case No. 456 who was examined as PW 19 in the present case indicates without doubt or ambiguity the detailed facts in which the recovery was effected. The cross-examination of three witnesses has not revealed any fact which would go in favour of the accused. The defence witnesses, DW 1 and DW 2, examined, in our considered view, have not succeeded in demolishing the prosecution version inasmuch as DW1-Vijay Gupta admittedly was being interrogated in the police station on the date when the recovery was made. On the other hand, DW 2-Rajiv Chauhan has failed to prove that he was a tenant under DW 1, in respect of the second floor of the Apartment in question at the relevant time. In such circumstances the court will have to proceed on the basis that the recovery, as claimed by the prosecution, has been proved by the evidence on record. Our above finding would render the conviction of the accused-appellant under Section 25 of the Arms Act wholly justified. The recovery of revolver was affected after more than two years. The incident had occurred on 6.6.2001 and the recovery was made on 12.8.2003. The prosecution has not proved that during the intervening period the weapon had not changed hands and the same was consistently possessed by the accused appellant Brijesh. The live and fired cartridges alongwith the bullets recovered from the place of occurrence and also the bullets recovered from the dead body in the course of post mortem were sent to the FSL Rohini. The report has been exhibited as Ex.PW- 21/A. The said report is dated 28.2.2002, i.e., before the recovery of the .380 calibre revolver. After the recovery of the said weapon was made, the weapon itself along with the cartridges (live and empty) as well as the four bullets recovered from the place of occurrence was sent to the CFSL Chandigarh and is covered by the report of PW 20 dated 28.11.2003 (Ex. PW-20/B). However, surprisingly, the bullets recovered from the dead body at the time of post mortem were not sent to the CFSL, Chandigarh. In Ex.PW-20/ B it is recorded that three out of the four bullets (recovered from the place of occurrence). The said bullets were not sent for serological examination to establish that the three bullets fired from the recovered weapon had entered and exited from the body of the deceased. Furthermore, from Ex.PW-20/B it is evident that one bullet (marked as B.2 by the Expert) was not fired from the .380 calibre firearm recovered at the instance of the appellant. The first report of the FSL, Rohini, Delhi-Ex.PW21/A also indicates that one bullet of .380 calibre did not have any striations of riffling marks. It would be wholly safe to hold that the only conclusion that can follow from the aforesaid proved circumstance is that the accused Brijesh is responsible for the death of the deceased that had occurred on 6.6.2001, we have also noticed that the High Court has convicted the accusedappellant under Section 302 as well as Section 460 IPC with the aid of Section 34. In a situation where co-accused Satish had died during the trial and the other co-accused Med Singh had been acquitted by the High Court, the culpability of the present accused-appellant with the aid of Section 34 will be open to serious doubt. Such culpability will have to be determined on the basis of individual overt acts on the part of the accused appellant for which we do not find any cogent and reliable material on record. Reference : Supreme Court. Brijesh Mavi v. State of NCT of Delhi, criminal appeal nos. 824-825 of 2011 (from the Judgement and Order dated 10.8.2009 of the High Court of Delhi at New Delhi in Crl. Appeal Nos. 662 and 646 of 2008).
Posted on: Wed, 11 Sep 2013 12:41:54 +0000
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