Delhi District Court
State vs . Dhananjay Singh Chauhan @ Avinash on 23 May, 2011
1
IN THE COURT OF SHRI H.S.SHARMA, DISTRICT
JUDGE/ASJ, NEW DELHI
S.C. No.36/08
State Vs. Dhananjay Singh Chauhan @ Avinash
s/o Late Sh Ram Kishore Chauhan,
r/o V&PO: Mohmmadpur,
PS Gonsai Ganj, Distt.Sultanpur, UP (now in
JC)
U/S 302 IPC Ms.Usha Mann, Addl.P.P for the State
PS:Connaught Place Sh.L.K.Upadhyaya,Adv.for accused.
FIR No.346/08
Date of institution of the case : 01.10.2008
Date on which it was received in this court: 05.12.2008
Date of hearing arguments : 09.05.2011
Date of announcement of judgment : 23.05.2011
J U D G E M E N T :
1 Since the defence of the accused is likely to curtail a few arguments regarding the time, date and place of occurrence, therefore, this judgment is being started in an unconventional style.
2 The plea of the accused as unfolded by him in
State vs. Dhanajay 1 of 54
Distt Judge/ASJ/New Delhi
2
his statement u/s 313 Cr.P.C, is as under: " I am innocent and have been falsely implicated in this case. I do not know how the incident took place. There were 3 4 persons with the deceased and I do not know what was the matter in dispute between the deceased and the said persons. I had met Manokanika Singh in connection with employment as he was working in Delhi since long. He used to give me addresses of many offices and I used to report to him daily in the basement No.2 .
I was conversant with the topography of the building, exit gates of the building including the basement No.2. On the day of incident I have been introduced to the deceased for the first time.
After I consumed Pepsi given by deceased Sher Bahadur I complained of headache and giddiness. My voice became incoherent. Deceased told me that he had mixed whisky in the pepsi. My condition deteriorated. On that, Manokanika Singh left stating that he was going to bring some medicine and water for me.
Due to headache and giddiness I became unconscious. I regained consciousness at about 2 a.m in the night and I found myself in the midst of the police. I was taken to hospital for treatment. I am innocent.
in the basement No.2 the two persons who had joined the drinking session came to know from PW Mano Kanika Singh that I was having my licensed revolver and they asked me to show them the licensed revolver. I objected to that. PW Mano State vs. Dhanajay 2 of 54 Distt Judge/ASJ/New Delhi 3 Kanika Singh asked me to show the licensed revolver to them. Thereafter I gave the revolver to them. They started examining the said revolver. I do not know what happened thereafter I became unconscious. "
3 Before I proceed further, let me mention the facts in brief.
4 The accused is a resident of Village Mohammadpur, District Sultanpur (U.P). Manokanika Singh (PW2), who had been working as a 'Daftri' in the Statesman Newspaper, also hails from the same village. Sher Bahadur Singh (hereinafter the deceased) hailed from District Sultanpur. The accused holds a SBBL gun license Ex.PW15/6 issued by the competent authority. On this very license, an endorsement about the pistol had been made.
5. During investigation it was found that on 21.7.2008 the accused had gone to Manokanika Singh (PW2) as he (the accused) was in search of a job. The accused was introduced by Manokanika Singh (PW2) to his (Manokanika's) Security Guard Incharge. After 5.30 p.m the accused and Manokanika Singh (PW2) had gone out of their office. On the way they had met the deceased. He had also accompanied them. Manokanika Singh (PW2) and the deceased used to take liquor after finishing their State vs. Dhanajay 3 of 54 Distt Judge/ASJ/New Delhi 4 duties. Both of them made a plan to take liquor. They and the accused went near Gopal Dass Bhawan. They had gone to the shop of Avinash Mishra (PW8). He also hailed from the same District i.e. District Sultanpur. Liquor was purchased and consumed by PW2 and the deceased. It was offered to the accused. However, he refused to consume the same by stating that he does not take liquor. Tea was arranged for him and Avinash Mishra. When Manokanika Singh (PW2) and the deceased were consuming liquor, a police official had come there. On seeing him, the deceased had asked them to go to the basement. Manokanika Singh (PW2), the accused and the nd deceased then went in the 2 basement. On the way, on the asking of the deceased, Pepsi Cola and 'Namkeen' had been purchased for the accused. They had sat down on a bench and chair lying in the basement. The deceased had brought one steel glass (Ex.P3) from the garage in which he had poured wine with Pepsi and offered the same to the accused. He (deceased) had prepared two pegs for Manokanika Singh (PW2) and himself in the plastic glasses. The liquor was consumed. After about 1015 minutes the accused had asked the deceased as to what had been mixed in the Pepsi as he (accused) was feeling giddiness.
State vs. Dhanajay 4 of 54 Distt Judge/ASJ/New Delhi 5 The accused demanded glass of water from the deceased. An altercation/hurling of invectives had taken place between the deceased and the accused. They were pacified by Manokanika Singh (PW2). He asked them to sit peacefully. He (Manokanika Singh) went in the basement1 for bringing the water. When Manokanika Singh (PW2) was coming back from the basement after taking water, he (PW2) saw that the accused was grappling with the deceased in the basement2. The accused was having his licensed revolver in his hand. In the meantime he heard noise of fire and saw that the deceased had fallen down on the ground. The revolver of the accused had also fallen down. The accused fell down. Manokanika Singh (PW2) ran towards the basement1 to inform about the incident to the Time Office Staff. They (the office staff) in turn informed the police. Police officials came there. They had gone inside basement2 and apprehended the accused from there.
6 On 21.7.2008 Constable Jitender (PW14) and Head Constable Ranjit Singh (PW24) were on patrol duty. They were present in their beat. At about 10 p.m they received a message on their wireless set that one person had shot at the Statesman Building, Barakhamba Road. Both of them rushed to the building.
State vs. Dhanajay 5 of 54 Distt Judge/ASJ/New Delhi 6 They found that a number of persons had gathered at the main gate. Those persons and the security guard Prashant Kumar (PW21) told them that one person had been shot at and the person who had shot was wandering with a pistol. The guard and the public persons had closed the way going towards basement parking. Constable Jitender (PW14) and Head Constable Ranjit nd Singh (PW24) reached the 2 basement parking. Both of them saw the accused roaming there with a pistol in his hand. The accused told them (PW14 and PW24) that he had shot dead Sher Bahadur Singh and will also kill them (the PWs). H.C Ranjit Singh (PW24) took out his service pistol and warned the accused. Both these witnesses then over powered the accused. The pistol Ex.P6 was snatched. The person of the accused was searched. Magazine Ex.P7 was recovered from the pistol. It contained three live cartridges. Since the information about a person having been shot at and was roaming had already been flashed, therefore, those informations had been recorded in DDR vide entries No.30 A. Other police officials had also reached at the place of occurrence.
7. SI Rajiv Vimal (PW15) had received copy of DD No.30A dated 21.7.2008 (Ex.PW15/A) regarding firing of a shot. He along State vs. Dhanajay 6 of 54 Distt Judge/ASJ/New Delhi 7 nd with Head Constable Sant Lal (PW13) reached the 2 basement of the building. Constable Jitender (PW14) and Head Constable Ranjit (PW24) met him. The accused was handed over by them to SI Rajiv Vimal (PW15). The pistol loaded with the magazine Ex.P7 and a separate magazine Ex. P8 had been handed over to SI Rajiv Vimal (PW15). After completion of the formalities, the pistol, the magazine loaded in it and the cartridges were sealed in a pulandha and were taken into possession vide memo Ex.PW14/B. Statement Ex.PW15/B of Head Constable Ranjit Singh (PW24) was recorded. An endorsement on it was made and it was sent to the Police Station for registration of a case. After registration of the case, the accused was arrested and was sent for his medical examination.
8 After completion of investigation, the accused was challaned.
9 My learned predecessor framed charges u/s 302 IPC and 27 Arms Act on 6.1.2009 against the accused. He pleaded not guilty and claimed trial.
10 I have already mentioned the defence of the accused. I would also like to mention a few questions put to the accused in his statement u/s 313 Cr.P.C which have been admitted by the State vs. Dhanajay 7 of 54 Distt Judge/ASJ/New Delhi 8 accused.
11. I am conscious of the fact that the prosecution has to stand on its own legs and it cannot take benefit of weakness of defence. However, a fact admitted by the accused in his statement u/s 313 Cr.P.C, to some extent can be taken against him if it is found that that particular fact which has been admitted by the accused in his statement u/s 313 Cr.P.C has been duly proved.
"Q1 It is in evidence against you that PW2 Manokanika Singh was working as a Daftri in Statesman Newspaper since 1.9.1985. Deceased Sher Bahadur Singh used to work as Driver in his office. Deceased Sher Bahadur Singh was resident of home district of PW2, i.e. Sultanpur, UP. What you have to say?
Ans. It is correct.
Q2 It is in evidence against you that on 21.7.08 PW
Manokanika Singh was on duty. His duty hours were from 10 AM to 5.30 PM. Deceased Sher Bahadur was also on duty from 12 noon to 8P.M. What you have to say? Ans. It is correct that they were on duty but I do not know about the timings.
Q3 It is in evidence against you that on that day, i.e. 21.7.2008, PW2 Manokanika Singh was present in his office at about 4.00PM. You accused Dhanajay Singh @ Avinash Singh r/o of District Sultanpur, UP came to meet State vs. Dhanajay 8 of 54 Distt Judge/ASJ/New Delhi 9 PW2 in his office. You are a retired Army personnel. You were searching for a job of Security Guard. What you have to say?
Ans. It is correct . I had been visiting Manokanika Singh in Statesman office almost every day to seek his help to find out an employment for me and he used to direct me to visit his acquaintance in different offices to seek their help in getting a job and I used to report back to Manokanika Singh in the evening in his place of work at basement No. 2, in Statesman building.
Q4 It is in evidence against you that PW2 Manokanika Singh introduced you with his Security Guard Incharge. What have you to say?
Ans. It is correct. He introduced me many days before the incident to enable me to visit him in his office without problem or gate pass.
Q5. It is further in evidence against you that After 5.30PM, you were going outside the office of PW2. In the meantime, Sher Bahadur ( now deceased) came there and he also accompanied both of you. What you have to say?
Ans. It is correct. We were going out of the office from the entry gate of the parking of basement2 i.e from where the cars enter the basement.
Q6 It is in evidence against you that PW2 Manokanika Singh and Sher Bahadur (now deceased) sometimes used State vs. Dhanajay 9 of 54 Distt Judge/ASJ/New Delhi 10 to take liquor after finishing their duty. Sher Bahadur (now deceased) asked to make a plan to consume liquor. What you have to say?
Ans. It is correct . I had told them that I am a teetotaler. Q7 It is in evidence against you that thereafter you all three went to the newspaper shop of PW8 Avinash Mishra near Gopal Dass Bhawan, PW 8 Avinash Mishra also belonged to district of PW2.
What you have to say?
Ans. It is correct Q8 It is in evidence against you that all of you purchased one bottle and a half bottle. PW2 Mano Kanika Singh and Sher Bahadur (now deceased) consumed liquor at the shop of PW8 Avinash Mishra. Sher Bahadur (now deceased) offered liquor to you also but you refused to consume liquor by saying that you did not take liquor.. Then tea was arranged for you and you and PW8 Avinash Mishra consumed tea. What you have to say? Ans. It is correct except that I had not accompanied them to the liquor shop.
Q9 It is in evidence against you that when PW2Manokanika Singh and deceased Sher Bahadur were consuming liquor, one policeman came there on patrolling. On seeing the policeman, deceased Sher Bahadur Singh asked them (PW2 etc.) to go with him to his department in the basement of Statesman building. PW2, deceased Sher Bahadur and you then reached the basement second from the back side exit gate. In the way, on the asking of State vs. Dhanajay 10 of 54 Distt Judge/ASJ/New Delhi 11 deceased Sher Bahadur, PW2 Mano Kanika Singh and deceased Sher Bahadur purchased Pepsi and Namkeen for you. What you have to say?
Ans. It is correct. This was the exit gate from where vehicles parked in basement2 used to go out of the basement.
Q10 It is in evidence against you that you all sat down on a bench and chair lying at the basement second. Deceased Sher Bahadur brought one steel glass from the garage in which he poured wine with pepsi and offered the drink of wine and pepsi to you. Deceased Sher Bahadur prepared two pegs, one for PW2 and one peg for himself in plastic glasses (disposable glasses). Both PW2 and deceased Sher Bahadur consumed liquor for 10/15 minutes. What you have to say?
Ans. There were two more persons, who were friends of Sher Bahadur, present there and they also consumed liquor. I lateron realized and told by Sher Bhaadur that he had mixed good quantity of wisky in pepsi given to me. Q11 It is in evidence against you that you told deceased Sher Bahadur as to what he had mixed in the pepsi as you were feeling giddiness. You demanded glass of water from deceased Sher Bahadur and on this an altercation/abusing took place between you and deceased Sher Bahadur. What you have to say?
Ans. No altercation took place between me and Sher Bahadur as due to giddiness, headache and effect of alcohol I was in no position to enter into altercation. Rest State vs. Dhanajay 11 of 54 Distt Judge/ASJ/New Delhi 12 of the statement is correct.''
12. Subash Sharma (PW3), Dilsher Singh (PW4), Shiv Kumar Pandey (PW5),Pradeep Chakravarthy (PW6) and Sh.Mohan Singh Rautala (PW7) did not support the prosecution. They were declared hostile and were cross examined by learned Additional P.P for the State without any success.
13. I have already mentioned the evidence of Manokanika Singh (PW2) in para 5, while narrating the facts.
14. Subhash Sharma (PW3) used to package the newspapers in the Statesman building. He deposed that one person had come at about 9 or 10 p.m with a small gun and had asked him to tie Dallu with a rope. He was unable to identify the person. He claims that he was frightened on seeing the gun. After some time the police officials had come and took that person with them. The witness was unable to say as to whether the accused was the same State vs. Dhanajay 12 of 54 Distt Judge/ASJ/New Delhi 13 person or not. This witness was also to depose that he came to know the name of that person as 'Dhananjay'. This witness was duly confronted with his previous statement Ex.PW3/A (including the marked portion) where the detailed facts allegedly stated by him before the police were mentioned.
15. Dilsher Singh (PW4) has deposed that nothing had happened in his presence. No one named Dhananjay had come to the office on that day. He does not know anything about this case. His cross examination by ld. Addl. P P did not prove fruitful.
16. Shiv Kumar Pandey (PW5) deposed that on 21.7.2008 he had reached his office at 9.40 p.m. He was informed by Manokanika Singh that Sher Bahadur was lying in basementII and blood was oozing from his person. From his office, he had informed the police on phone No.
100. He had also informed the management. The police had reached there. He and the police went to the basementII. Sher Bahadur was lying in the garage. One unknown person was also lying there. A pistol was also State vs. Dhanajay 13 of 54 Distt Judge/ASJ/New Delhi 14 lying there. Thereafter he went back to attend his work. The police officials had conducted the investigation but he does not know about the same. The accused had not come to him. He had not seen him on that day. Since this witness was also to depose that a healthy person had come there with a pistol and told him that he (that person) had shot a man in the basement and asked him (witness) to show him the way of exit, therefore, the witness was duly confronted with his statement Ex.PW5/DA where this fact was mentioned.
17. Pradeep Chakravarthy (PW6) deposed that on 21.7.2008 at about 9.30 p.m he was informed that some incident had taken place at minus II basement (underground basement). At about 10.30 p.m he was called by the police. Mahinder Kumar Puri was also present. A few police officials and other persons were present. He (witness) told that Mahinder Kumar Puri works in their office. He does not know anything else. He had not seen the accused on the spot carrying a pistol in his hand. This witness was also crossexamined by learned State vs. Dhanajay 14 of 54 Distt Judge/ASJ/New Delhi 15 Addl. P P at length, without any success.
18. Mohan Singh Rautala (PW7) also did not support the prosecution. He was also to state the fact that the accused was seen near the seat of Mahinder and due to fear he (witness) had gone to the ground floor. He was also to depose that the accused was apprehended in his presence and the accused had disclosed his name as Dhananjay. This witness was to depose that the Mobile Phone had been seized in his presence. However, the witness did not support the prosecution. He admitted that his signature appears on the memo Ex.PW1/A.
19. Avinash Mishra (PW8) deposed that on 21.7.2008 he was present at his shop. At 5.30 p.m. Manokanika Singh and Sher Bahadur (deceased) came with a stranger. They introduced the stranger as Dhananjay. After a few minutes they had gone away. They had come back after 10 minutes and brought liquor. They had consumed the same behind the cars which were lying parked in the parking area. They had offered one peg of liquor to Dhananjay but he had refused to take the same.
State vs. Dhanajay 15 of 54 Distt Judge/ASJ/New Delhi 16 Manokanika Singh gave him Rs.10/ and asked him to bring tea for both of them. He brought the same. He (witness) and Dhananjay took the tea. At about 6 p.m a police official was seen coming towards them, therefore, Manokanika Singh, Sher Bahadur and Dhananjay had left that place. He had closed his shop. In the morning he came to know that Sher Bahadur had been murdered by Dhananjay. He identified accused Dhananjay. Since the witness was to depose that Sher Bahadur was given Rs.50/ to purchase liquor and he (witness) had brought the same and these facts were not stated by the witness before the court, therefore, he was cross examined by learned Addl. P.P. In the cross examination conducted on behalf of the accused, the witness deposed that he had seen the accused Dhananjay for the first time on 21.7.2008. He had never seen him (Dhananjay) taking liquor.
20. Samar Bahadur Singh (PW9) had identified the dead body of Sher Bahadur Singh. He had also received the dead body of Sher Bahadur Singh
21. Jitender Singh (PW10) has proved the fact that on State vs. Dhanajay 16 of 54 Distt Judge/ASJ/New Delhi 17 30.5.2008 the accused had come to his shop with his Arms License No.1141/104/July Sultanpur and had purchased 5 bullets of .32 bore pistol. In the crossexamination the witness deposed that he had sold the cartridges to Dhananjay Singh only once.
22. SI VishramMeena (PW11) was the Incharge of the Mobile Crime Team. On 21.7.2008 he along with Constable Kalyan Sethi (PW12) (photographer), and Constable Sudershan Pillai (finger printer) had gone to the place of occurrence i.e. basement II. The injured had already been removed to hospital. Blood was found on the ground. Two empty cartridges of 7.65 bore and one 7.65 live cartridge were found lying there. A lead was also th lying there. 1/4 liquor bottle was lying in a wooden box. One empty plastic water bottle, one steel glass, notes of the denominations of Rs.2/ and Rs.5/ were lying there. The place was got photographed. No finger prints were lifted. He prepared the report Ex.PW11/A.
23. In the cross examination, this witness deposed that he had reached the building at about 10.20 p.m. State vs. Dhanajay 17 of 54 Distt Judge/ASJ/New Delhi 18 When he had reached there, neither the injured nor the accused were there.
24. Constable Kalyan Sethi (PW12) deposed that he had gone to the basementII and took photographs Ex.P1 to P26 from different angles. Additional SHO Inspector Akhileshwar Yadav with his staff was also present and as per the directions of the I.O, he (witness) had taken the photographs.
25. H.C. Sant Lal (PW13) deposed that on 21.7.2008 on receipt of a call about firing in the Statesman building, Barakhamba Road, he and SI Rajiv Vimal (PW15) had gone to the basementII . H.C Ranjit (PW24) and Constable Jitender (PW14) had met them. They had produced a loaded pistol which was recovered from the possession of the accused. The magazine containing 3 live cartridges was also handed over. S I Rajiv Vimal recorded the statement of H.C Ranjeet and seized the pistol, cartridges and magazine and prepared pulandas thereof. Blood was also lying at the spot. One live cartridge, one lead, one plastic bottle, one steel glass, one State vs. Dhanajay 18 of 54 Distt Judge/ASJ/New Delhi 19 th bottle containing 1/4 liquor were also lying there. He along with SI Rajiv Vimal had gone to RML hospital. H.C Ranjeet and Constable Jitender were left at the spot. Sher Bahadur was declared 'brought dead' by the doctor vide MLC No.9129/08. In the hospital Inspector Akhileshwar Yadav also met them. He prepared a rukka. It was handed over to him to get the FIR registered. He went to Police Station Connaught Place and got the FIR registered. He came back to the spot and handed over copy FIR and original rukka to Inspector Akhileshwar Yadav. Since he was to depose that the rukka was handed over to him by SI Rajiv Vimal, therefore, a few leading questions were put to him. The witness admitted that the rukka was handed over to him by SI Rajiv Vimal. He also admitted that a pistol of . 32 bore and 3 live cartridges were recovered from the accused. The witness had gone to the District Magistrate, Sultanpur with Constable Ashok to get the arms license of the accused verified. The attested copy of the Arms License of the accused is Ex.PW13/B. The witness then identified the case property.
State vs. Dhanajay 19 of 54 Distt Judge/ASJ/New Delhi 20
26. Constable Jitender (PW14) and Head Const. Ranjeet (PW24) have deposed the facts as mentioned in para 6 of the judgment.
27. S.I Rajiv Vimal (PW15) had prepared the rough sketches of the pistol, magazines, live cartridges, empty cartridges and one lead. The sketches are Ex.PW14/A and Ex.PW15/C. He had recorded statement Ex.PW15/B of HC Ranjeet Singh and made an endorsement Ex.PW15/C to get the case registered. He had made a request that the investigation of the case be entrusted to Inspector Akhileshwar Yadav, Addl. SHO, P.S. Connaught Place.
28. H.C Inder Singh (PW16) was the MHC(M) on 6.8.2008. He had handed over the sealed exhibits to Constable Ramphal for being deposited in the FSL Rohini. The witness proved the copy of Road Certificate.
29. Constable Narender Singh (PW17) has deposed that on 21.7.2008 he had received a phone call at 1.15 a.m. He was handed over three envelopes containing the "daak" pertaining to this case. One envelope was State vs. Dhanajay 20 of 54 Distt Judge/ASJ/New Delhi 21 delivered at the house of learned M.M (Sh.Sudesh Kumar), one envelope was delivered at the house of Sh.Ajay Kashyab, Joint Secretary and one envelope was delivered at the house of Sh.Anand Mohan DCP. In the cross examination, the witness deposed that the envelopes were sealed. He had not opened it. He was unable to say as to whether the I.O had placed the copy of his departure entry on that day on the file or not. He had come back to the Police Station at about 6 or 7 a.m on 22.7.2008.
30. Constable Ashok Kumar (PW18) has deposed that on 21.7.2008 at about 10 p.m he had received a message from the duty officer vide DD No.30A to reach the basementII of Statesman Building because some firing had taken place there. He reached there. He saw that one person was in the custody of H.C Ranjeet. SI Rajiv Vimal was conducting the investigation. SI Rajiv Vimal had taken him and H.C Sant Lal to RML hospital. The M LC of Sher Bahadur was collected. The witness further deposed that HC Subash had handed over the personal belongings of the deceased to SI Rajiv Vimal.
State vs. Dhanajay 21 of 54 Distt Judge/ASJ/New Delhi 22 These were taken into possession vide memo Ex.PW18/A. The dead body was preserved in the mortuary. He had remained there. On the next day, Constable Jitender had come there and the dead body was handed over to him. Since the witness had resiled from his earlier statement, therefore, he was cross examined by the learned Addl. P.P.
31. In the cross examination of learned Addl. P P, the witness stated that he cannot say as to whether H.C Ranjeet had apprehended one Dhananjay with pistol or not. He admitted that accused Dhananjay was the same person who was apprehended by H.C Ranjeet. The witness in the cross examination of the accused, deposed that accused Dhananjay was not arrested by H.C Ranjeet in his presence. He had already been arrested before his reaching there. SI Rajiv Vimal had not seized the articles in his presence. He admitted that SI Rajiv Vimal had initially investigated the case. He (witness) had reached the main building within 5 or 10 minutes of receipt of information.
32. Dr.S.K.Nayak (PW19) had conducted the State vs. Dhanajay 22 of 54 Distt Judge/ASJ/New Delhi 23 post mortem examination. In his examination inchief contents of the post mortem report were reproduced. These are as under: "(a) Fire arm entry wound of size 0.6 cm x 0.5 cm surrounded by abrasion collar of 0.1 cm width on the poster inferior aspect and of 0.2 cm width on the anterior superior aspect and gun powder tatooing over an area of 3.2 cm x 2 cm on the anterior superior aspect situated on the left antero lateral aspect of upper part of the neck just behind the margin Ramus of mandible, 1 cm below, left ear lobule and 159 cm above the left heel.
(b) Fire arm entry would of 0.5 cm diameter surrounded by abrasion collar of 0.1 cm width situated on the left tempero parietal region of head, 8.5 cm above root of left pinna, 14 cm behind lateral end of left eye brow and 174 cm above left heel.
(c) Fire arm exit wound of size 1.75 cm x 0.4 cm situated on the right temporal region of head, 4.5 State vs. Dhanajay 23 of 54 Distt Judge/ASJ/New Delhi 24 cm above root of right pinna, 9.2 cm behind lateral end of right eye brow and 169.5 cm above right heel.
(d) Inverted Tshaped laceration of scalp thickness deep each limb measuring 2.5 cm long and surrounded on the right frontal region, 6 cm above medical end of right eye brow.
(e) Red colour abrasion of size 2.6 cm x 1.3 cm sit on the right fore head, 1 cm above mid part of right eye brow.
(f) Red colour abrasion of size 6.2 cm x 2.5 cm situated on the right side cheek, extending obliquely upwards and backwards from right malar prominence.
(g) Contusion looking blueish colour of size 3.7 cm x 2.5 cm associated with swelling of that area situated vertically along with the posterior axillary line of the right lateral aspect of chest, 9 cm below the axillary pit. One bullet like structure could be palpated under neath the swollen area.
State vs. Dhanajay 24 of 54
Distt Judge/ASJ/New Delhi
25
Internal injuries:
Under surface of the scalp was found contused over right frontal, both temperoparital regions with contusion of both temporalis muscle. Communited fracture of size 3 cm x 2 cm situated on the right temporal region of skull corresponding to external injury no. 3 (c). Left parietal region of skull circular bonny gap of 0.5 cm diameter corresponding to internal injury no. 3(b) from where a linear fracture extended forward roof of left orbit up to middle line. Meniges were found torn over left parietal and right temporal region corresponding external injury no. 3
(b) and 3 (c). left parietal lobe and right temporo parietal lobe of brain were found lacerated along a track joining external injury no. 3(b) and 3(c). Posterior neck muscles were found contused and lacerated with fracture of sixth cervical vertebra. Posterior superior aspect of right side media stinum found penetrated through size 1 cm x 1 cm width contusion of surrounding muscles.
State vs. Dhanajay 25 of 54 Distt Judge/ASJ/New Delhi 26 Right postero lateral aspect of chest showed penetrating wound gap of size 1 cm x 1 cm on its rd parietal pleura along with fracture of right side 3 rib along posterior axillary line. Right plural cavity sowed collection of 300 ml fluid and clotted blood. Right lung was found penetrated through and through on its apical lobe.
DESCREPTION ABOUT FIRE ARM WOUND TRACKS:
Fire arm entry wound described under external examination 3(a) had penetrated downwards and to the right along back muscle of th neck and caused fracture of 6 cervical vertebra into pieces on its posterior aspect, then penetrated apical region of right mediastinum through and through to enter right pleural cavity then penetrated apical lobe of right lung through and through in a downwards and outwards direction, then penetrated parietal pleura causing fracture of 3rd rib along posterior axillary line to end in the sub State vs. Dhanajay 26 of 54 Distt Judge/ASJ/New Delhi 27 cutaneous tissue. One bullet of size 1.1 cm long and 2.5 cm diameter could be recovered from the wound tracks end corresponding to external injury (examination 3 (g)).
Fire arm entry wound described under external injury (examination) No.3 (b) had found penetrated the left parietal skull, then left side parietal region of dura, left parietal lobe of brain, right parietal lobe of brain, right side temporal of region of dura and skull to exit through external injury 3( c).
The cause of death according to this witness was cranio cerebral injuries as a result of fire arm injuries to the head, shot from rifle fire arm.
All the injuries were found to be antemortem in nature and fresh in durations before death. External injury No.3(a) could have been caused by a shot from rifled fire arm from close range whereas external injury No.3(b) could have been caused by shot from rifled fire arm from distant range. External injuries No.3 (d), (e) & (f) State vs. Dhanajay 27 of 54 Distt Judge/ASJ/New Delhi 28 could have been caused by hard and blunt trauma. Both external injuries No.3 (a) and 3(b) were fatal in ordinary course of nature by their internal injuries."
33. The detailed post mortem report is Ex.PW19/A. The viscera was preserved to rule out alcohol intoxication. The time since death was 12 to 18 hours prior to start of the autopsy.
34. As per the post mortem report, the post mortem examination was started on 22.7.2008 at 12.30 p.m. As per the post mortem report Ex.PW19/A, the doctor had handed over besides the viscera, the clothes of the deceased and one bullet to the I.O, duly sealed.
35. In the cross examination the witness admitted that injuries 3(d), 3(e) and 3(f) were possible to have been caused by a blunt object or by striking against a hard surface. Abrasion was possible to be caused by tangential impact of a hard and blunt object. Injuries No.3 (d), 3(e), 3(f) and (g) were not caused by a fire arm but caused by a blunt object. There were traces of blood on the bullet State vs. Dhanajay 28 of 54 Distt Judge/ASJ/New Delhi 29 recovered from the body of the deceased. After taking out the bullet from the body of the deceased, he had sealed it.
This fact was not mentioned in the post mortem report. It was also not mentioned as to whether the bullet was handed over to someone or not.
36. Constable Rameshwar Dass (PW20) had joined the investigation. According to him, Dr.S.K. Nayak had handed over the exhibits pertaining to the post mortem report No.282/08 to Inspector Akhileshwar Yadav. He had seized the exhibits vide memo Ex.PW20/A. Ex.PW20/A shows that besides the clothes of the deceased one bullet lead had also been handed over by Dr.Nayak to this witness.
37. Prashant Kumar (PW21) was the security guard at the main gate of Statesman House. On 21.7.2008 at about 9.30 p.m he heard some noise from the minus basementII. A number of persons had come out from the basement. They had told him that person had been murdered. Thereafter he had closed the main entry gate which was leading towards the basement. He also heard State vs. Dhanajay 29 of 54 Distt Judge/ASJ/New Delhi 30 the voice of bang. At about 10.00 or 10.05 p.m., two police officials had come there. He had opened the main door. Thereafter other police officials had continued to reach there. Since this witness, according to the learned Addl.P P was suppressing the truth, therefore, he was cross examined by the learned Addl.PP.In the cross examination, this witness admitted that some persons had come out of the building and told them that one person was inside the building and was having a pistol and he had committed murder. The persons coming from the building had not told the name of the person who had murdered. His duty was at the main gate. His duty was to check the vehicles.
38. Aandhi Yadav (PW22) has proved the issuance of gun and pistol license to the accused.
39. SI Mahesh Kuamr (PW23) had prepared the plan Ex.PW23/A of the place of occurrence, on scale.
40. H.C Banwari Lal (PW25) was the duty officer on 21.7.2008 from 4 p.m to 12 mid night. He has proved copies of DD No.30A (Ex.PW15/A) and DD No.31A (Ex.PW25/A). Both these entries were marked to SI Rajiv State vs. Dhanajay 30 of 54 Distt Judge/ASJ/New Delhi 31 Vimal for enquiry.
41. In the cross examination the witness deposed that the departure entry of Inspector Akhileshwar Yadav was made at 12.45 a.m on 22.7.2008 vide DD No.36. The return/arrival entry was made at 5.30 a.m on 22.7.2008. Copy of these entries are Ex.PW25/DA and Ex.PW25/DB. The witness further deposed that there was no entry of departure of SI Rajiv Vimal, HC Ranjeet and Const. Jitender in the register brought by him. However, the witness had volunteered that there was another DD register maintained in the police station for that purpose.
42. Rajesh Kapoor (PW26) has proved the record of employment of the deceased. As per the certificate Ex.PW26/B, the deceased and Manokanika Singh were on duty on 21.7.2008.
43. Pawan Singh (PW27) has proved the fact that mobile phone bearing No. 9911404925 was issued to Sanjay Singh s/o Sh. Raj Kishore.
He had given photostate copy of his (Sanjay Singh's)I
card. The call details of 21.7.2008 along with the
State vs. Dhanajay 31 of 54
Distt Judge/ASJ/New Delhi
32
location is Ex.PW27/3. The location chart is Ex.PW27/4. These were handed over to the police vide memo Ex.PW27/A. Here I would like to mention that since accused has not disputed his presence at the place of occurrence therefore there is no need to discuss the evidence of this witness.
44. H.C Randhir Singh (PW28) was the duty officer on 22.7.2008 from 12 mid night to 8 a.m. The witness deposed that on that night at about 12.45 a.m he had received the rukka (Ex.PW15/B) through H C Sant Lal. On the basis of the rukka sent by SI Rajiv Vimal, he had recorded the FIR. Copy of the FIR is Ex.PW28/A. The investigation of this case was handed over to Inspector Akhileshwar Yadav (PW30). He had also sent Special Report to the Senior Police Officers and illakka Magistrate through Special Messenger.
45. Dr.Pawan Kumar (PW29) was examined to prove the MLC Ex.PW29/A of the deceased which was prepared by Dr.S.N. Gole. Since Dr.S.N. Gole was not available, therefore, his hand writing and signatures were State vs. Dhanajay 32 of 54 Distt Judge/ASJ/New Delhi 33 got identified from Dr.Pawan. As per the MLC, Sher Bahadur Singh was brought dead to the hospital on 21.7.2008 at 10.50 PM by ASI Satbir Singh of PCR.
46. Inspector Akhileshwar Yadav (PW30) had investigated the case.
47. Shri Naresh Kumar (PW31), Senior Scientific Asstt. (Biology) had examined the exhibits to detect blood on them. His report Ex.PW30/H shows that blood of group 'O' was found on the clothes of the deceased. Human blood was detected on the cartridge and metallic piece but the group could not be detected.
48. This witness has also proved the letter dated 27.2.2009 (Ex.PW30/G) addressed to the SHO. Reports of viscera test and ballistic experts are Ex.PW30/J and Ex.PW30/K, respectively.
49. Sh.Jitender Kumar, Senior Scientific Asstt. (Chemistry) (PW32),has proved the report Ex.PW30/J. As per his report ethyl alcohol was found in small intestine, liver, speen and kidney of the deceased. Ethyl alcohol 32.5 ml. gms per 100 ml. of blood was found in blood State vs. Dhanajay 33 of 54 Distt Judge/ASJ/New Delhi 34 sample of the deceased.
50. Sh.V.R. Anand Senior Scientific Officer (PW33) had examined the bullet, the two leads, the two empties, the pistol and the live cartridges. I shall deal with his report Ex.PW30/K in the later part of my judgment.
51. In the cross examination the witness deposed that the weapon in question was of 7.65 mm. He further deposed that if the bullet of weapon in questions strikes with hard surface, it may or may not deform.
52. I have heard learned Addl. P P for the State and Shri L.K. Upadhyaya and Sh. Rai Shivender Pratap Singh advocates for the accused. I have gone through the file and have perused the judgments relied upon by learned counsel for the accused. I have also gone through the memo of arguments filed on behalf of the accused.
53. Learned counsel for the accused has relied upon Pritam Nath vs. State of Punjab 2002 S.C Cri.R.746; Dinesh vs. State 2002 (44) ACC 1991; Sattatiya Vs. State 2008 Cri.L.J 1816; Surender Singh vs. State of Punjab 1989 SCC (cri);
State vs. Dhanajay 34 of 54 Distt Judge/ASJ/New Delhi 35 Shanta Bai vs. State 2008 (63) ACC64; Anter Singh vs. State of Rajasthan 2004 (1) UP Cri.Reporter (SC); Omwati vs Mahinder 1998 JIC (SC) 230; Karunakaran vs. State 1976 SCC (cri.) 52; Subash vs. State 1976 SCC Crl. 483; State of UP vs. Rama Kant 2009 (66) ACC 309; State of Punjab vs. Kulwant Singh 2008 (62) ACC681; Jugraj Singh vs. State of Punjab 2010 (70) ACC 180 (SC); Ratan Lal vs. State 2007 (2) J.I.C (SC) 319 and State of Haryana vs. Krishan 2009 (64) ACC 302.
54 It appears that learned counsel for the accused has taken into account simply the head notes without trying to find out as to whether the factual situation in the cases referred to by him is somewhat similar or identical to the present case or not.
55. A judgment cannot be applied in a mechanical manner. The Hon'ble Supreme Court in Rafiq vs. State 1980 SCC (crl.) 946 has observed as under: " Ratio of one case cannot be mechanically State vs. Dhanajay 35 of 54 Distt Judge/ASJ/New Delhi 36 applied to another case without having regard to the facts situations and circumstances obtaining in the two cases".
56. In UP Corporative Cane Unions vs. West UP Sugar Mills 2004 VIII AD SC 109 (judgment by 5 judges), it was held that "a decision is an authority for which it is decided and not what can logically be deducted therefrom".
57. The facts of the judgments relied upon by counsel for the accused are distinguishable.
58. I am not discussing those judgments in detail as it shall unnecessarily burden this judgment. The observations in those cases had been made by the courts in the contexts of the facts and the evidence available in those cases.
59. Admittedly no one had seen the accused killing the deceased. Thus this case is based on circumstantial evidence.
60. The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence such evidence must satisfy the following three tests:
(a) the circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established State vs. Dhanajay 36 of 54 Distt Judge/ASJ/New Delhi 37
(b) these circumstances should be of a definite tendency pointing towards guilt of the accused
(c) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of accused but should be inconsistent with his innocence. (see Gambheer Vs. Maharashtra AIR 1982 SC 1157).
Motive
61. It has been submitted on behalf of the accused that there was no motive for the accused to kill the deceased.
62. What is motive?
Motive has nowhere been defined. It has been interpreted by the courts. It is difficult for the prosecution to prove as to why the crime had been committed. However, State vs. Dhanajay 37 of 54 Distt Judge/ASJ/New Delhi 38 in the present case there is material to find out as to what could have been the motive for the accused.
63. Motive is a psychological phenomena. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Man y murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable .
64 Motive always remains locked in the heart of the offender. Motive for doing a criminal act is generally a difficult one for the prosecution to prove. One cannot normally see into the mind of another.
65. Avinash Mishra (PW8) has stated that liquor was offered to the accused. However he had refused to take the same. Manokanika Singh (PW2) has also stated that the deceased had offered liquor to the accused but he (accused) refused to consume the same by stating that he does not take liquor. He has also deposed that the deceased had brought one steel glass from the garage in State vs. Dhanajay 38 of 54 Distt Judge/ASJ/New Delhi 39 which he (deceased) had poured wine with Pepsi and offered the drink of wine and Pepsi to the accused. The accused had asked the deceased as to what had been mixed in the Pepsi as he was feeling giddiness. The accused had demanded glass of water from the deceased and on this an altercation/abusing had taken place between them. Now if a person does not take liquor and he is given liquor after mixing it with some other liquid without the knowledge of that person, at times it enrages the person. Cases are not unknown where crime has been committed on the slightest provocation. Cases of road rage are the examples of loss of temper at the slightest possible provocation. Cases of murder (by using pistol/revolver) for not removing vehicle from the way; not responding to uncalled for diktat; etc. are not uncommon. Recently there was a news item where a waiter had been shot at by the customer, when the waiter delayed delivery of the eatables. There may be so many reasons for this behaviour. However, in this judgment there is no need to discuss this aspect in detail.
State vs. Dhanajay 39 of 54 Distt Judge/ASJ/New Delhi 40
66. In Sanjay vs. State 2007 Cri.L.J. 964 (Delhi) it was held that "it is difficult to prove the motive as the crimes are committed even for slightest motive".
67. In State of Himachal Pradesh vs. Jeet Singh 1999 III AD HC 89 It was held as under:
"It is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed, if prosecution failed to prove the precise motive of accused to commit it. It is almost impossible for prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended".
68. In Emperor Vs. Baloch Khan 1910 VII, IC 601 it was held that "motive cannot be proved with precision and absence would not justify rejection of evidence only on this score".
69. Thus, in view of the defence taken by the accused and the evidence as has been discussed above, in my opinion, it can be said that the accused took the mischievous act of the deceased quite seriously. It State vs. Dhanajay 40 of 54 Distt Judge/ASJ/New Delhi 41 became the motive. It had enraged him. The accused lost his temper and assaulted the deceased.
70. Non explanation of the injuries by blunt object which had been noticed by the doctor in the post mortem report
71. Learned counsel for the accused has submitted that as per the statement of Dr.S.K.Nayak (PW19), there were three injuries which had been caused by blunt object. It has been submitted that the prosecution has not been able to explain as to how the deceased had sustained the injuries from blunt object. It has been submitted that Manokanika Singh (PW2) has no doubt stated that when he (witness) was coming back, he saw the accused and the deceased grappling with each other. However this fact had not been stated by this witness in his statement u/s 161 Cr.P.C. Therefore, it was an improvement.
72. Now in the present case no one has claimed that he had seen the accused killing the deceased. In fact it is not the prosecution case.
State vs. Dhanajay 41 of 54 Distt Judge/ASJ/New Delhi 42
73. It is no doubt true that Manokanika Singh (PW2) in his cross examination dated 22.7.2010 has admitted that he had not stated the fact that the deceased and accused had grappled with each other to the police. Yet it is inconsequential. It is a matter of common knowledge that the witnesses, at times, narrate the facts to the police in their own way. This witness in his examinationinchief had stated that altercation/abusing had taken place between the accused and the deceased. He had pacified them and asked them not to quarrel. Therefore, it does not effect the credibility of PW2. It was not got clarified from him as to why this fact was not narrated by him to the police. Had he been questioned, he would have certainly given some reply. The reply may or may not have been acceptable. However, since no chance was given to the witness to explain it, he (PW2) cannot be condemned for his having not stated the above fact.
74. Further the position of the deceased when he had received the gun shot injury is not before the court. The injuries at sl.No.3(d), 3(e) and 3(f) are on one side of State vs. Dhanajay 42 of 54 Distt Judge/ASJ/New Delhi 43 the body. A perusal of the diagram on page 5 of the post mortem report Ex.PW19/A shows that these three injuries were on the face. I have already reproduced the injuries which have been described as 3(d), 3(e) and 3(f). The prosecution, in the absence of an eye witness account, was not in a position to explain these injuries. The accused should have asked as to whether these injuries were or were not possible due to a fall on a hard surface. It was for him to rule out the possibility of these injuries in a single fall. Since the benefit of these injuries is intended to be taken by the accused, therefore, it was for him to get it explained in a proper manner. It was not for the prosecution particularly when the prosecution has nowhere claimed that the deceased had been assaulted with a blunt object. In these circumstances, the nonexplanation is not of any consequence.
The alleged presence of other persons
75. I have already reproduced the defence of the accused in its entirety.
State vs. Dhanajay 43 of 54 Distt Judge/ASJ/New Delhi 44
76. Now so far as the presence of two persons at the time of the incident is concerned, learned counsel for the accused has drawn my attention to the cross examination of PW2 dated 22.7.2010.
77. In the present case Statement of PW2 was recorded on 10.2.2009. He had been cross examined on behalf of the accused. However, on an application moved on behalf of the accused u/s 311 Cr.P.C, this witness was recalled for further cross examination. When the application u/s 311 Cr.P.C was moved on behalf of the accused before my learned predecessor and was taken up for hearing on 5.3.2010 it had been submitted by learned counsel for the accused that questions with regard to the place of incident are to be put to PW2. In view of this particular submission, my learned predecessor had ordered that "PW 2 be recalled for cross examination only on the aspect of place of incident and of no other aspect".
78. A direction was also given to counsel for the accused to limit his cross examination only with regard to the place of occurrence to allay the apprehension of the State vs. Dhanajay 44 of 54 Distt Judge/ASJ/New Delhi 45 prosecution to win over the witness.
79. When PW2 appeared on 22.7.2010, questions which were beyond the scope of the prayer and the order dated 5.3.2010 had been put to the witness. The same were objected to on behalf of the State. The objections were recorded. In this particular background the admission of PW2 that at the time of incident some known person of the deceased had also come to the basement shall have to be taken with a pinch of salt. It can be said that during the period from 10.2.2009 (when PW2 was first examined) and 22.7.2010 (when he appeared for his further cross examination), certain obvious developments had taken place. When PW2 had appeared on 10.2.2009 no such plea was taken. The suggestion which was given to PW2 on 10.2.2009 was that he was not present at the time of occurrence. Therefore, the arguments that "some known persons" were present at the time of occurrence, cannot be accepted. In the statement u/s 313 Cr.P.C, the plea of the accused is that there were two more persons. Thus the plea is not consistent. The defence had not been State vs. Dhanajay 45 of 54 Distt Judge/ASJ/New Delhi 46 shaped till 22.7.2010. It was still vague and in the stage of infancy.
80. If the presence of unknown persons is ruled out, then we are left with the deceased, the accused and PW2 in the basementII. The accused has not denied his having the licensed pistol. He has also not denied the presence of PW2 and the deceased. The only defence put forth by the accused is that 'the known persons of the deceased had taken the revolver from him and thereafter he had become unconscious and he does not know as to what had happened'.
81. Since I have already ruled out the presence of any other person other than PW2, the deceased and the accused, at the place of occurrence, therefore, the theory of last seen can be pressed into service
82. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes State vs. Dhanajay 46 of 54 Distt Judge/ASJ/New Delhi 47 impossible.(see Tahir & Ors. vs. State 87 (2000) DLT 207 and Keshav Vs. State 2008 I AD (S.C) 77.
83. In the present case Manokanika Singh (PW2) had gone to fetch water. He had left behind the deceased and the accused. Presence of any other person has already been ruled out by me. There was a time gap of a few minutes between the time of death of the deceased and the time when the deceased was last seen alive by PW 2 in the company of the accused. Therefore there could not have been any other person to cause the death of the deceased.
Condition of the accused at the time of occurrence
84. An effort has been made by learned counsel for the accused to show that the accused had, because of his having consumed the Pepsi in which liquor had been added, fallen unconscious at the place of occurrence and the accused would not have been in a position to move. Therefore, there was no chance for the accused to go out with the pistol and seek information about the exit gates.
85. There is no material to accept this argument.
State vs. Dhanajay 47 of 54 Distt Judge/ASJ/New Delhi 48
86. If we read statement of Subhash Sharma (PW3) it would be clear that he had seen one person coming with a small gun and asked him to tie Dallu with a rope. Though this witness did not identify the accused as the person who had come there with the gun yet this particular fact that a person had come to him with a small gun remains unchallenged.
87. Further, it is now well settled that statement of a hostile witness which finds necessary corroboration from other evidence the same can be relied upon. (see Gura Singh vs. State 2000 IX AD SC 299). In this particular case it was held as under: " There appears to be a misconception regarding the effect on the testimony of the witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile, his entire evidence should be rendered unworthy of consideration. His evidence does not stand effaced. The evidence remains admissible and there is no legal bar to base conviction upon testimony of such witness. It is for the court to find out as to whether any part of it is credit worthy or not."
State vs. Dhanajay 48 of 54 Distt Judge/ASJ/New Delhi 49
88. The presence of Subhash Sharma (PW3) has not been challenged in the cross examination.
89. Constable Jitender (PW14) and Head Const. Ranjeet (PW24) were the persons who had apprehended the accused. The argument that these two constables had behaved strangely is misconceived. Different persons react differently in the same circumstances. There is no catalogue of human behaviour There was nothing extra ordinary or abnormal in the conduct of these two police officials.
90. In Leela Ram vs. State of Haryana AIR 1999 SC 3717 it was observed as under: " The court shall h ave to bear in mind that different witnesses react differently under different situations : Whereas some become speechless, some start wailing, while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that wrong should be remedied. As a matter of fact it depends upon individual to individual. There cannot State vs. Dhanajay 49 of 54 Distt Judge/ASJ/New Delhi 50 be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise". The alleged knowledge of the accused about the exit gates
91. It has been submitted that the accused knew about the exit gates, therefore, he could have escaped.
92. This argument is not only misconceived but is based on assumption. It is rather contradictory to the defence that the accused had fallen in the basement as he had become immobile.
93. The prosecution is not required to prove the intelligence or the knowledge of the accused about the exit gates. In what manner he had reacted after the occurrence, it has been cogently proved. I need not this aspect in detail.
94. Learned counsel for the accused has tried to refer the time at which the information was first received in the Police Station, the possible time taken by the police State vs. Dhanajay 50 of 54 Distt Judge/ASJ/New Delhi 51 officials to reach the place of occurrence and the presence of Inspector Akhileshwar Yadav. Since the accused had taken a specific defence, all these things are not required to be discussed in detail. Here I would like to mention that in the statement u/s 313 Cr.P.C the accused has in reply to question No.50 stated that Inspector Akhileshwar Yadav had taken over the investigation much later and was not present when the mobile was seized by the police.
Other arguments
95. Now with regard to the arguments that the bore of the pistol was .32 and the bullets were of 7.65 mm, therefore, these could not have been the same is concerned, I find that in this regard not even a single question was put to Sh.V.R.Aryan (PW33). He was the best person to clarify the position. If we read the report, it would be clear that the argument of counsel for the accused is without basis.
96. Further, the bore of the pistol/gun/rifle is described in inches. .32 bore means .32 inches. V.R. Anand (PW33) in his report Ex.PW 30/K has described State vs. Dhanajay 51 of 54 Distt Judge/ASJ/New Delhi 52 the pistol, the cartridges and the lead as of 7.65 mm. The pistol and cartridges had been checked by firing. The lead (bullet) recovered was also examined. As per Ex.PW30/K the pistol was designed to fire a standard 7.65 mm cartridge. It was in working order. The test fire had been conducted successfully. The cartridges were found to be live. The cartridge cases were the empty cartridge cases. The bullets were found to be of 7.65 mm cartridges Here I would like to clarify that one lead was found at the place of occurrence. Another lead was found in the body of the deceased as is evident from the post mortem report Ex.PW19/A. The prosecution has, by adducing evidence, established that the pistol, the empties, the lead and the magazines had been sent to FSL for their examination. In the post mortem report the presence of the lead has been described in injury No.3(g).
97. Thus the prosecution has been able by leading cogent and reliable evidence to establish the following facts:
(a) The accused had a motive to kill the State vs. Dhanajay 52 of 54 Distt Judge/ASJ/New Delhi 53 deceased. The sufficiency of the motive is not to be gone into as cases of murder because of slightest provocation are not unknown. （ b) The deceased was last seen alive in the company of the accused by Manokanika Singh (PW2). As per Ex. PW15/A, recorded at 10.00 PM, a person had been shot dead in the Statesmen House, Barakhamba Road. As per MLC Ex. PW29/A, the deceased on being rushed to Dr. R.M.L. Hospital, New Delhi was declared brought dead at 10.50 Thus, there was almost no time gap between the deceased seen alive by PW2 in the company of the accused and the death of the deceased. There is no material to disbelieve Manokanika Singh.
(c) The accused was having a licensed pistol at the time of occurrence.
(d) The accused was apprehended immediately after the occurrence and from his possession the pistol and magazines containing the cartridges State vs. Dhanajay 53 of 54 Distt Judge/ASJ/New Delhi 54 were recovered.
(e) The leads, the empties and the pistol, were tested. The pistol was found in order. The leads were found to be of the pistol in question.
(f) The defence of the accused is unacceptable.
98. The above facts form a complete chain which rule out any other hypothesis of innocence of the accused. The above facts establish guilt of the accused beyond all reasonable doubt.
99. I accordingly convict the accused u/s 302 IPC and section 27 Arms Act. Let the accused be heard on the point of sentence.
Announced in open court Dated 23.05.2011 ( H.S.SHARMA ) DISTRICT JUDGE ＆ASJ NEW DELHI State vs. Dhanajay 54 of 54 Distt Judge/ASJ/New Delhi