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IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA & R.K. GAUBA, JJ.
Virender @ Veeru – Appellant
Versus
State (Government of NCT of Delhi) – Respondent
Crl. Appeal No. 267 & 269 of 2015
Decided On : 5.8.2015
MURDER - Indian Penal Code - Section 302, Section 34, Section 27 of the Arms Act, 1959 - The judgment convicts Virender and Kamal under Section 302 read with Section 34 of the Indian Penal Code for the murder of Sanjeev Tyagi. Appellant Virender has also been convicted under Section 27 of the Arms Act, 1959.
Fact of the Case:
The deceased suffered firearm injuries and died. The primary issue raised in the appeal relates to the credibility and truthfulness of the eye-witness testimony of Mahender Pal Tyagi (PW-1), who indicted the two appellants as the perpetrators. The appellants challenged the testimony of PW-1 and the delay in recording the FIR.
Finding of the Court:
The court found that the testimony of PW-1 was reliable and credible, and there was no reason to disbelieve or discard the core version given by him implicating the appellants. The court also rejected the contention of delay in recording the FIR. The court upheld the order of conviction and sentence.
Issues: Credibility and truthfulness of the eye-witness testimony, delay in recording the FIR, and reliance on ballistic report.
Ratio Decidendi: The court relied on the testimony of the eye-witness, the corroboration of the place of occurrence, and the motive for the crime. The court also rejected the challenge to the delay in recording the FIR and the reliance on the ballistic report.
Final Decision: The court dismissed the appeals and upheld the order of conviction and sentence.
SANJIV KHANNA, J.
1. The judgment under challenge dated 03.01.2014 convicts Virender @ Viru and Kamal under Section 302 read with Section 34 of the Indian Penal Code (for short “IPC”) for murder of Sanjeev Tyagi @ Sanjay. Appellant Virender has also been convicted under Section 27 of the Arms Act, 1959.
2. By order on sentence dated 13.01.2014, Virender and Kamal have been sentenced to imprisonment for life, fine of Rs. 1 lac and in default of payment of fine to undergo Simple Imprisonment for a period of six months. Fine collected shall be paid to the parents of deceased Sanjeev Tyagi as compensation under Section 357 of the Code of Criminal Procedure, 1973 (Cr. P.C. in short). The appellant Virender has been also sentenced to Rigorous Imprisonment of five years, fine of Rs. 2000/- and in default to undergo Simple Imprisonment for seven months for the offence under Section 27 Arms Act. The sentences are to run concurrently and Section 428 Cr. P.C. would apply.
3. It has not been disputed and is not under challenge that the deceased Sanjeev Tyagi had suffered firearm injuries on 14.05.2007 at about 7:30 PM at his shop located at RBZ-81, Nihal Vihar, Delhi. Post-mortem on the dead body of Sanjeev Tyagi was performed by Dr. Manoj Dhingra (PW-2) on 15.05.2007 at about 2:00 PM. PW-2 has deposed that Sanjeev Tyagi aged about 28 years was brought to the hospital by Inspector Ishwar Singh on 14.05.2007 at about 8:15 PM and was declared as brought dead. As per the post-mortem report (Ex.PW-2/A) and the depoof Dr. Manoj Dhingra (PW-2), the deceased had suffered the following injuries:
“1. Lacerated wound over left temporal region above ear 8x5 cm with fractured underlying bones exposing brain matter.
2. Star shaped lacerated wound over occipital region 1.5x1.5cm in size with fractured underlying bones edges everted.
3. Oval shaped entry wound over right iliac region 2x.15 cm in size with bruising of surrounded edges, cavity deep.”
PW-2 opined that the cause of death was carnio-cerebral damage as a result of firearm injuries and the time of death was approximately 18 hours. PW-2 testified that he had received 11 (Eleven) inquest papers/documents. He had sealed and handed over the recovered bullet lead to the Investigating Officer (IO). We shall be referring to the testimony of Dr. Manoj Dhingra (PW-2) and the port-mortem report (Ex.PW-2/A), subsequently, when we examine the contention raised that the report Ex. PW2/A records that the injuries were a result of “rifled firearm” as this contradicts the eye-witness testimony of Mahender Pal Tyagi (PW-1).
4. The primary and the core issue raised in the present appeal relates to the credibility and truthfulness of the testimony of Mahender Pal Tyagi (PW-1), who has indicted the two appellants as the perpetrators who had committed the said offence, along with others.
5. Mahender Pal Tyagi (PW-1) has deposed that he had three children and the deceased Sanjeev Tyagi was his second son. His third child, Ajeet had been arrested and was in judicial custody in a murder case of one Pawan. After arrest of his son Ajeet, the present appellants had started threatening them stating that they shall take revenge (“khoon ka badla khoon se lenge”). They would come with others at night on motorcycles and extend threats.
6. Mahender Pal Tyagi’s (PW-1) deceased son Sanjeev Tyagi used to run a Kiryana store opposite their house and on 14.05.2007 at about 7:30 PM, he alongwith his wife Kiran Devi, was present and sitting on a cot while Sanjeev Tyagi was sitting in the shop. He had noticed that the appellants Virender and Kamal alongwith 2-3 others had come from 50 Ft. Road, fired shots at Sanjeev Tyagi who was sitting in his shop and then they ran towards the transformer side. They were brandishing the weapons and avowing that “whatever they had to do, they have done.” PW-1 immediately rushed to the shop and found that Sanjeev Tyagi had fallen down from a chair and was in a pool of blood. He had made a cal
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