Delhi District Court
State vs Dinesh Kumar @ Khali on 29 October, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH DISTRICT
ROHINI COURTS, DELHI
STATE CASE No.....................57950/16
FIR No. 185/2012
P.S. Mangol Puri
U/s. 302/34 IPC & 25/27 Arms Act
State
Versus
1. Dinesh Kumar @ Khali
S/o. Sh. Laxman Yadav
R/o. P8/164, Mangol Puri,
Delhi.
2. Deepak Kumar @ Chintu
S/o. Sh. Surender
R/o. Q4/96, Mangol Puri,
Delhi.
3. Suresh @ Hanumant
S/o. Sh. Phool Singh
R/o. Q2/5, Mangol Puri,
Delhi.
Date of institution: 10.10.2012
Judgment reserved on: 08.10.2018
Judgment delivered on: 29.10.2018
ORDER/JUDGMENT: All the accused persons stand convicted
u/S. 302/34 IPC, in addition to that accused
Dinesh @ Khali also stands convicted for
the offence(s) u/S. 25(1B)(a) and 27(1) of
Arms Act, 1959.
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J U D G M E N T
1. The prosecution story as set out in the chargesheet is as
under :
That on 16.05.2012, at about 1:25 am, Duty Constable
Dalbir Singh at SGM Hospital gave a message at PS Mangol Puri
through telephone that Angad Yadav S/o Darshan Yadav has got
admitted Narender Yadav in SGM Hospital, who had received a
bullet injury at his house vide MLC No. 17135/12. The said
information was lodged vide DD No.8A and same was marked to SI
Sachin Mann, who along with Ct. Vinod Kumar left the police
station and went to SGM Hospital. In the said hospital, SI Sachin
Mann had collected MLC of Narender Yadav. As per the MLC, the
said patient was opined unfit for statement. In the meantime,
Inspector Satya Prakash also reached the hospital. No eyewitness
was found in the hospital. Thereafter, the aforesaid police officials
went to the place of occurrence i.e. P7/165, Mangol Puri, Delhi
and no eyewitness even met at the said house. The aforesaid
police officials called the Crime Team, who had inspected the place
of occurrence.
On the basis of contents of DD No.8A and MLC, SI Sachin
Mann prepared rukka and got FIR under Section 307 IPC & 27
Arms registered through Ct. Vinod. From the spot, one blood
stained bed sheet and scissor were seized after sealing them.
Rough site plan of the place of occurrence was also prepared.
During investigations, IO SI Sachin Mann recorded the statement
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of Smt. Bindu. He also seized four sealed pullandas from the
hospital. During Investigations, SI Sachin Mann also recorded the
statement of Sh. Ram Singh Yadav and Sh. Angad Yadav.
On 16.05.2012, an information was received from Duty
Constable of RML hospital regarding the death of Nagender Yadav
during treatment. Accordingly, further investigations of the present
case was marked to Inspector Satya Prakash, who went to RML
Hospital and got the body of Nagender Yadav shifted to mortuary
of SGM hospital and also added offence under Section 302 IPC.
During Investigations, IO got conducted the postmortem on the
body of deceased and seized the exhibits from the concerned
Autopsy Surgeon.
IO had also called FSL team at the spot, who had seized the
exhibits from the spot. During investigations on 17.05.2012, IO had
effected the arrest of accused Dinesh Kumar @ Khali as well as
Deepak @ Chintu and recorded their respective disclosure
statements. During investigations, the weapon of offence i.e.
country made pistol (katta) with empty cartridge was recovered at
the instance of accused Dinesh @ Khali. During investigations, IO
collected the postmortem report and also sent the exhibits to the
FSL. IO also recorded the statement of the witnesses and upon
completion of investigations, IO prepared chargesheet for the
offence under Section 302/34 IPC and 25/27 Arms Act against
accused Dinesh Kumar @ Khali and Deepak @ Chintu.
During further investigations on 23.08.2012, IO effected the
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arrest of accused Suresh @ Dinesh @ Hanumant and recorded his
disclosure statement. During investigations, IO also obtained FSL
result as well as Sanction under Section 39 Arms Act and filed the
same in the Court.
2. After committal of the case to the Court of Sessions, vide
detailed orders dated 09.07.2013 and further on 22.08.2013,
charge(s) under Section 302/34 IPC were framed against all the
three accused persons and a separate charge under Section 25/27
Arms Act was also framed against accused Dinesh @ Khali to
which they pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined 24 witnesses in
support of its case.
A) PW1 is Smt. Bindu is the wife of deceased Nagender,
she deposed that all the accused persons were known to her. She
also deposed regarding the incident which took place in the year
2010. She also deposed that on the intervening night of 1516 May
2012, she along with her husband and other family members were
sleeping in their house bearing P7/164, Mangol Puri, Delhi. She
further deposed that at about 12:30 am, she heard the sound like
that of cracker. She further deposed that she immediately woke up
and saw her husband coming from gate side in bending position
and was crying with pain. She further deposed that she switched
on the light and saw that blood was oozing out from the abdomen
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of her husband. She further deposed that upon her enquiry, her
husband told that accused Dinesh @ Khali had shot him and his
two associates namely Deepak Kumar @ Chintu and Suresh @
Hanumant were also present with accused Dinesh @ Khali at that
time. She raised alarm and her tenants and neighbours reached
there along with Ram Singh (Brotherinlaw) and Angad Yadav
(Nephew). Both of aforesaid relatives removed her husband to
SGM Hospital, from where her husband was referred to some other
hospital.
She also narrated the said facts to the police. She also
deposed regarding the investigation conducted by police at the
spot. She also exhibited seizure memos Ex.PW1/A & Ex.PW1/B,
pointing out memo by accused Dinesh @ Khali Ex.PW1/C. She
also identified the blade of seizure as Ex.P1 and bedsheet as
Ex.P2, one blood stained baniyan as Ex.P3 and underwear as
Ex.P4.
B) PW2 is Shri Ram Singh Yadav, who is the elder brother of
deceased Nagender Yadav. He deposed that on 16.05.2012 at
about 12:30 am, while he was sleeping inside his house, he heard
cries coming from the side of street. He immediately woke up and
came out of his house and recognized the sound of crying to be of
his brother Nagender. He also deposed that in the meanwhile his
nephew Angad also reached in the gali. He also deposed that he
and Angad found the door of house of his brother Nagender lying
open and they entered inside his house and found Nagender lying
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on the single bed and found blood oozing out from the left side of
his abdomen. On the asking of Smt. Bindu, they removed
Nagender to SGM hospital on a motorcycle driven by Angad. He
also deposed that on the way to the hospital, his brother Nagender
told him that accused Dinesh had caused bullet injury to him and
accused Suresh and Deepak were also with him at the time of
incident. He also deposed that from SGM hospital, his brother was
shifted to RML Hospital and his brother had expired during
treatment in RML Hospital.
He also deposed that he disclosed the name of assailants i.e.
accused Dinesh, Deepak and Suresh to the police. He also
identified the said accused persons during his testimony. He also
deposed regarding incident which took place one day prior to the
day of diwali in year 2010. He also exhibited the receipt as
Ex.PW2/A vide which the body of deceased was handed over to
them after postmortem. He also exhibited the statement Ex.PW2/B
regarding the identification of dead body.
C) PW3 is Sh. Rakesh Kumar, who deposed to have taken
six photographs of the spot from digital camera. He exhibited the
said photographs as Ex.PW3/A1 to Ex.PW3/A6. He also exhibited
the seizure memo as Ex.PW3/B vide which three other sets of
photographs were taken into possession by IO.
D) PW4 is SI Anil Kumar, who was the Incharge, Mobile
Crime Team. He deposed having inspected place of occurrence
and prepared crime team report Ex.PW4/A.
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E) PW5 is SI Mahender Singh, who deposed to have joined
the investigation on 17.05.2012 along with IO Inspector Satya
Prakash and other police officials. He deposed that on that day,
accused Dinesh @ Khali and Deepak were apprehended and
arrested vide arrest memo Ex.PW5/A & Ex.PW5/B respectively. He
also exhibited the personal search memos of the said accused
persons as Ex.PW5/C & Ex.PW5/D respectively, their disclosure
statements ExPW5/E & Ex.PW5/F respectively. He also deposed
regarding the recovery of country made katta and empty cartridge
at the instance of accused Dinesh Kumar @ Khali. He also
exhibited its sketch as Ex.PW5/G, its seizure memo Ex.PW5/H, site
plan of the place of recovery Ex.PW5/J, pointing out memo of place
of occurrence Ex.PW1/C. He also identified and exhibited country
made pistol and cartridge case / piece as Ex.P1.
F) PW6 is Ct. Dalbir Joon, who on 15.05.2012 was Duty
Constable at SGM Hospital and informed PS Mangol Puri
regarding the admission of Nagender into the said hospital.
G) PW7 is Ct. Mahesh Kumar, who on 04.06.2012 obtained
12 sealed parcels from MHC(M) vide RC No.28/21/12 and 29/21/12
along with three sample seals and deposited eight sealed
pullandas along with sample seals in FSL, Rohini and redeposited
four sealed pullandas in Malkhana.
H) PW8 is HC Suresh Kumar, Duty Officer who deposed to
have recorded FIR Ex.PW8/A and made endorsement Ex.PW8/B
on rukka.
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I) PW9 is Inspector Mahesh Kumar, who deposed to have
visited the place of occurrence on 07.06.2012 and prepared rough
notes and measurements. He also deposed to have prepared
scaled site plan Ex.PW9/A on 29.06.2012 and handed over to IO.
J) PW10 is Dr. Shailesh Gupta in whose presence, the
death summary report Ex.PW10/A of deceased Nagender Yadav
was prepared by Dr. Darshan Nayak.
K) PW10 (inadvertently numbered as PW10) is Shri Angad
Yadav, who is the nephew of deceased Nagender Yadav. He
deposed that on 16.05.2012 at about 12:30 am he heard the noise
of cries and came out of his house and found the said cries were
coming from the house of his mama Nagender Yadav. He also
deposed that in the meanwhile his another mama Shri Ram Singh
also reached there. He also deposed that he and Ram Singh found
the door of house of his mama Nagender lying open and they
entered into his house and found Nagender lying in a pool of blood
and was bleeding from his stomach.
They removed Nagender to SGM hospital on a motorcycle
driven by him. He also deposed that on the way to the hospital, his
mama Nagender told him that accused Dinesh had caused bullet
injury to him and accused Suresh and Deepak were also with him
at the time of incident. He also deposed that from SGM hospital,
his mama was shifted to RML Hospital and his mama had expired
during treatment in RML Hospital. He also identified the said
accused persons during his testimony. He also deposed that
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accused persons were known to him previously and his mama
Nagender was having difference with accused Dinesh for the last
several years. He also exhibited the receipt as Ex.PW2/A vide
which the body of deceased was handed over to them after
postmortem. He also exhibited the statement Ex.PW10/A regarding
the identification of dead body.
L) PW11 is Ct. Vinod, who deposed that on 16.05.2012 at
about 1:25 am on receipt of DD No.8A Ex.PW11/A, he
accompanied SI Sachin Mann to SGM Hospital, where Nagender
Yadav was found admitted and he was declared unfit for
statement. He also deposed to have accompanied SI Sachin
Mann and Inspector Satya Prakash to the spot and got registered
FIR. He also deposed that in his presence, IO seized and sealed
blood stained bedsheet vide memo Ex.PW1/A and one piece of
scissor vide memo Ex.PW1/B. He also exhibited the seizure
memos Ex.PW11/C and Ex.PW11/D.
M) PW12 is Dr. M. Dass, who had prepared MLC Ex.PW6/A.
He had also identified the surgical notes from portion A to A1 in the
handwriting of Dr. Suryottam.
N) PW13 is Dr. Munish Wadhwan, who along with Dr. Manoj
Dhingra conducted the postmortem on the body of deceased and
prepared postmortem report Ex.PW13/A and also sealed the
exhibits i.e. clothes, blood in gauze piece, bullet and wax from
hands.
O) PW14 is Dr. Manoj Dhingra, who along with Dr. Munish
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Wadhwan conducted the postmortem on the body of deceased and
prepared postmortem report Ex.PW13/A.
P) PW15 is Sh. V. R. Anand, Assistant Director (Ballistic),
FSL who had examined the exhibits and prepared his detailed
ballistics report dated 22.03.2013 Ex.PW15/A.
Q) PW16 is Inspector Gajender Kumar, who had called the
ballistic team from FSL, Rohini at the spot and the said team
inspected the spot i.e. Iron Grill and took into possession two
exhibits i.e. one containing suspected swab and one containing
central swab and handed over the same to him. PW16 handed
over the said pullandas to IO who after sealing seized the same
vide seizure memo Ex.PW16/A. He also identified the said exhibits
as Ex.P5 & Ex.P6 respectively.
R) PW17 is HC Mahavir Prasad, who had produced original
register no.19 and exhibited the entry at serial no. 6644 as
Ex.PW17/A, RC No.28/21/12 and 29/21/12 as Ex.PW17/B &
Ex.PW17/C respectively, FSL Ex.PW17/D, entry at serial no. 6106
in register no.19 as Ex.PW17/E and also exhibited FSL result as
Ex.PW15/A.
S) PW18 is SI Sachin Mann, who deposed that on
16.05.2012 at about 1:25 am on receipt of DD No.8A Ex.PW18/A,
he along with Ct. Vinod went to SGM Hospital, where Nagender
Yadav was found admitted and he was declared unfit for
statement. He also deposed to have accompanied Ct. Vinod and
Inspector Satya Prakash to the spot. He also deposed to have
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seized and sealed blood stained bedsheet vide memo Ex.PW1/A
and one piece of scissor vide memo Ex.PW1/B. He also exhibited
the seizure memos Ex.PW11/C and Ex.PW11/D. He also deposed
to have called crime team.
He also deposed to have prepared rukka Ex.PW18/B and got
the FIR registered through Ct. Vinod. He also deposed to have
prepared rough site plan Ex.PW18/C and recorded the statement
of witnesses. He also deposed to have received DD No.17A
Ex.PW18/D and handed over the further investigation to Inspector
Satya Prakash. He also deposed to have carried out inquest
proceedings and exhibited written request Ex.PW18/E, Form
No.25.35 (1)(1d) as Ex.PW18/F, brief facts Ex.PW18/G,
identification statements Ex.PW10/A and Ex.PW2/B and the receipt
of handing over the body as Ex.PW2/A.
T) PW19 is Sh. M. A. Rizwi, the then DCP1, Outer District,
who deposed to have accorded sanction 39 Arms Act Ex. PW19/A
for prosecution of accused Dinesh Kumar @ Khali for offence u/s
25 Arms Act.
U) PW20 is Dr. C. K. Durga, who had exhibited the death
summary Ex. PW10/A of patient Nagender Yadav bearing the
signature of Dr. Darshan Nayak at point X and opined the cause of
death as cardio pulmonary arrest with gunshot injury in the chest
with left MA haemothorax with cardiac tamponade. He also
brought the original case sheet of patient Nagender Yadav and
exhibited its copy consisting of 17 pages as collectively Ex.
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PW20/A.
V) PW21 is Ms. Anita Chhari, Sr. Scientific Officer, who deposed
to have examined one sealed parcel and prepared report Ex.
PW21/A and also prepared serological report Ex. PW21/B.
W) PW22 is Sh. Sandeep, who deposed that on 16.05.2012 he
came to his house from his work in late hours, after taking dinner
he was washing the clothes. At about 12:30 in midnight, he heard a
cracker type noise and he came out from house and saw three
persons i.e. two of them were going on one side and one was
going other side. He also deposed that later on he came to know
that someone had fired upon Nagender Yadav.
X) PW23 is Sh. Deepak, who deposed that he came to know that
Nagender Yadav was murdered in the intervening night of
15/16.05.2012. He also deposed that at that time he was not
present. This witness was declared hostile and was cross
examined by State. During crossexamination, he deposed it to be
correct that accused Dinesh Kumar was residing at P8/164,
Mangol Puri which is situated in front of his tenanted premises no.
P7/80, Mangol Puri. He denied to have made statement Ex.
PW23/A. He also denied all the suggestions put by the prosecution
in terms of the statement mark PW23/A, however he deposed it to
be correct that H. No. P7/164165 belongs to Nagender Yadav
and the incident took place at H. No. P7/164, Mangol Puri.
Y) PW24 is Inspector Satya Prakash, who deposed to have
conducted investigations and on receipt of DD No. 8A Ex. PW18/A,
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he alongwith staff went to SGM Hospital, where he met SI Sachin
Mann, who had collected MLC Ex. PW6/A. He also visited the spot
alongwith SI Sachin Maan and Ct. Vinod and got the place of
occurrence inspected from crime team. He also deposed that SI
Sachin Mann prepared rukka and got the FIR registered through
Ct. Vinod and SI Sachin Maan prepared rough site plan Ex.
PW18/C.
He also deposed that blood stained bed sheet after sealing
was seized vide seizure memo Ex. PW1/A and one piece of scissor
after sealing was seized vide seizure memo Ex.PW1/C. He also
deposed that upon receipt of DD No. 17A Ex. PW18/D regarding
the death of Nagender Yadav, the investigation was carried out by
him and got the place of occurrence inspected through FSL
experts. He also seized the sealed exhibits in two separate
transparent pouches vide memo Ex. PW24/A. He also deposed to
have effected the arrest of accused Deepak @ Chintu and Dinesh
@ Khali vide memos Ex. PW5/B and Ex. PW5/A respectively and
conducted their personal search vide memos Ex. PW5/D and Ex.
PW5/E respectively and also recorded their disclosure statements
Ex. PW5/F and Ex. PW5/E respectively.
He also deposed that pursuant to disclosure statement,
accused Dinesh @ Khali got recovered one country made pistol
from near the bushes NDPL office and upon checking the said
country made pistol was found having one empty shell. He
prepared the sketch Ex. PW5/G and filled form FSL and sealed and
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then seized the same vide seizure memo Ex. PW5/H and prepared
the site plan of the place of recovery Ex. PW5/J. He also prepared
the pointing out memo Ex. PW1/C of the place of commission of
the offence at the instance of aforesaid accused persons. He also
deposed to have recorded the statement of witnesses, collected
postmortem report, sent the exhibits to FSL through Ct. Mahesh,
got prepared the scaled site plan from Draftsman SI Mahesh.
He also deposed to have got issued NBWs of accused
Suresh @ Hanumant. He also deposed that during investigation he
received an information vide DD No. 20A Ex. PW24/B regarding
the arrest of accused Suresh @ Hanumant and accordingly he
moved an application before Ld. MM and effected the arrest of
accused Suresh @ Hanumant vide arrest memo Ex. PW24/C and
recorded his disclosure statement Ex. PW24/D. He also deposed
that during investigation accused Suresh @ Hanumant pointed out
the place of occurrence vide pointing out memo Ex. PW24/E. He
also obtained FSL results and sanction u/s 39 Arms Act.
4. Thereafter, statement of accused persons u/s 313 Cr.P.C. was
recorded in which the entire incriminating evidence appearing
against the accused persons was put to them, in which the defence
of the accused persons was that they had been falsely implicated
in this case. They also stated that the entire evidence appearing
against them was false. They chose to lead evidence in their
defence, however, despite opportunity they have not examined any
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defence witness and vide separate statement of their Ld. Counsels,
recorded on 27.08.2018, the defence evidence was closed..
5. I have heard Ld. Addl. PP for the State and Ld. Defence
counsels Sh. Kashmir Singh for accused Suresh @ Hanumant, Ld.
Counsel Sh Ghanshyam for accused Dinesh @ Khali and Sh. R. P.
Gupta, Legal Aid Counsel for the accused Deepak. Ld. Counsels
for the accused persons have relied upon the following judgments
in support of their contentions :
a) Bhagwandas Vs. The State of Rajasthan AIR 1957 SC 589;
b) Dharam Singh Vs. Emperor AIR 1938 Lahore 268;
c) Liddu alias Salook Singh Vs. State of Haryana 1994(1) C.C.
Cases 599(HC);
d) Pyarelal @ Pirva Vs. The State of M.P. II (1993) CCR 1004
(DB);
e) Nilambar Patra Vs. The State 1984 CRI.L.J. 1597 (Orissa
High Court).
6. It was contended by Ld. Defence counsels that in the present
case the prosecution is strongly relying upon the dying declaration
of the deceased Nagender Yadav, in which he allegedly revealed
the name of the accused persons to PW1 Smt. Bindu, PW2 Ram
Singh Yadav and PW10 Angad Yadav, all of whom were closely
related to the deceased being wife, brother and nephew
respectively, the said dying declaration was not given in presence
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of any independent witness. It was also argued that all the above
witnesses are interested witnesses, therefore, they have falsely
implicated accused persons in this case. They have further argued
that if the case of the prosecution was correct then what prevented
the prosecution from getting the dying declaration recorded by the
police officials or by the concerned doctor where the deceased was
taken for treatment. Therefore, this shows that the dying
declaration relied upon by the prosecution was false and not
trustworthy.
They have further argued that the deceased was not in a fit
condition to make dying declaration, which is evident from the
MLC Ex. PW6/A, in which he was found unfit for statement at the
time when he was taken to Sanjay Gandhi Hospital and thereafter
to RML Hospital for medical treatment, therefore, he could not have
made any dying declaration. They have further argued that the
only independent witness in this case namely PW23 Deepak has
turned hostile and has not supported the prosecution story. They
have further argued that the recovery of the alleged weapon of
offence i.e. katta at the instance of the accused Dinesh @ Khali
has not been proved, as the same is planted, as no public witness
was joined in the said recovery proceedings. It is also stated that
the ballistic report Ex. PW15/A does not support the prosecution
version that the bullet which was extricated from the body of the
deceased was fired from the pistol allegedly recovered at the
instance of the accused Khali.
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They have further argued that the deceased had enmity with
number of persons and in this regard, an FIR u/S. 326 IPC & 27
Arms Act Ex. PW24/DA was registered at PS Mangol Puri, wherein
he was fired upon by some unknown persons who had enmity with
him. Therefore, number of persons had scores to settle with him
and the accused persons have been unnecessarily involved in the
present case.
It is also argued that the incident took place in a thickly
populated area surrounded by number of houses, yet no
independent public witness was examined by the prosecution with
regard to the story of dying declaration, which shows the same is
not trustworthy. It is also argued that PW1 has admitted in her
testimony that when she woke up after hearing the cries of her
husband, she switched on the lights of the room, therefore, in any
case the deceased could not have seen his assailants in pitched
darkness. Therefore, Ld. Defence Counsels have argued that all
the accused persons are liable to be acquitted, as prosecution has
failed to prove its case beyond any reasonable doubt.
7. On the other hand, Ld. Addl. PP for the State has strongly
controverted the above arguments and has argued that from the
testimonies of PW1 Smt. Bindu, PW2 Ram Singh Yadav and PW10
Angad, the prosecution has been able to establish the presence of
the deceased as well as those witnesses at the spot at the time of
the incident or thereafter, as they were residents of the same place
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living in adjoining houses. Therefore, they were the persons with
whom the deceased would have confided regarding the incident
and on being asked, he disclosed the name of his assailants to
them and the said communication was true and voluntary and there
is no reason to doubt the same. He further submits that all the
above witnesses have stated in their testimonies that the accused
Dinesh @ Khali had previous enmity with the deceased, as he had
threatened him on the day of Diwali in 2010 and had also
differences with him. Therefore, he had a motive to eliminate the
deceased, which he did on the date of the incident.
He further submits that as per the MLC Ex. PW6/A of the
deceased, his vitals were stable when he was removed to Sanjay
Gandhi Hospital and was fully conscious and oriented, therefore,
he was in a fit condition to give dying declaration. He has further
argued that the identity of the accused persons was properly
communicated to the above witnesses as they were the residents
of the same locality and PW1, PW2 and PW10 would have seen
them day in and day out. Therefore, there could not have been
any doubt with regard to the same.
He further submits that PW22 has corroborated the prosecution
version that he had seen three persons running after the
occurrence in the night when he was washing his clothes, though,
he could not see the faces, but this testimony does support the
prosecution story that three persons were involved in the incident,
as is the prosecution case.
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Regarding the recovery aspect, prosecution has examined PW5
SI Mahender Singh, PW18 SI Sachin Mann and PW24 Inspector
Satya Prakash, IO, who have deposed that pursuant to the
disclosure statement of the accused, he got recovered one pistol
from near the bushes of the NDPL office. Therefore, the said
recovery is admissible u/S. 27 of the Evidence Act. Regarding the
ballistic report Ex. PW15/A, he has argued that though the bullet
recovered from the body of the deceased did not match with the
katta recovered in this case, however, an empty cartridge was
found embedded in the katta at the time of recovery of the same by
the accused Dinesh @ Khali, which matched as per the ballistic
report Ex. PW15/A, to have been fired from the same katta.
Therefore, he submits that this fact that there was empty cartridge
lying in the katta supports the preposition that bullet had been fired
from the same, as nobody would keep an empty cartridge in the
pistol without containing the bullet therein.
Regarding the role of other coaccused persons, he has argued
that the other accused persons are sailing in the same boat, as all
of them have done the acts in furtherance of their common
intention after due deliberations and planning. Therefore, all of
them are vicariously liable for the acts of each other u/S. 34 of the
IPC. Therefore, he submits that all the accused persons are liable
to be convicted u/S. 302/34 IPC and the accused Dinesh @ Khali
is liable to be convicted u/S. 25/27 Arms Act as well.
8. I have gone through the rival contentions.
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9. Regarding identity of the accused persons, PW1 Smt. Bindu in
her examination in chief has deposed that all the accused persons
were known to her as they were residents of the same locality and
she had seen them roaming with Dinesh @ Khali. Further,
regarding the motive part, she has stated that the accused Khali
had come to their house in Diwali, 2010, abused her husband by
calling him outside and at that time, he was carrying beer bottle,
broke the same and left from there after threatening his husband.
Regarding the incident, she has stated that on 15/16.05.2012, she
was sleeping in her house with her husband bearing no. P7/164,
on sofa and her husband was sleeping in same room.
She further deposed that at 12:30 AM, on hearing the sound
of cracker, she woke up, her husband called her, who was crying
with pain, she switched on light and saw blood was oozing from
stomach of her husband. On query about the injury, her husband
told her that accused Dinesh @ Khali had shot him, who was
accompanied by Deepak Kumar @ Chintu and Suresh @
Hanumant. On this, she raised an alarm on which her tenants
along with neighbourers, jeth (Ram Singh) and nephew (Bhanja)
Angad also reached there and her husband was removed to
hospital by them on motorcycle. She further stated that after
receiving bullet injuries, her husband lay down on the bed and
blood scattered on the bed sheet. She further stated that her
husband had also received bullet injuries and he told her that he
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had suspicion on Dinesh @ Khali, but due to fear, he had not
named him in said cases.
In her crossexamination, she has stated that 12 months prior
to incident i.e. April, 2012, somebody had shot her husband. She
further stated that police had arrested someone, but she does not
know the name of that person. She further stated that statement of
her husband was not recorded in that case. She further stated that
her husband had placed suspicion on accused persons. She has
further deposed that Angad used to have meals sometimes at their
house, some times at the house of Ram Singh, otherwise, he used
to remain at house. She further deposed that they have only one
room, no light was on.
She further deposed that street light was on, as they have
only one gate. She further deposed that after hearing alarm of her
husband, she raised an alarm, on which first of all her jeth and
Angad came there. She further deposed that their tenants Lal
Chand and Triveni also came there. She further deposed that she
had not disclosed the names of accused persons gathered there,
as she was weeping and weeping. She cannot say if one person
by the name of Bheema was arrested with regard to earlier incident
of shooting.
10. PW2 Ram Singh Yadav in his examinationinchief has
deposed that the deceased was his younger brother, who was
residing in P7/164, while he was residing in P7/165, Mangol Puri.
SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 21 of 49
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On 16.05.2012 at 12:30 am, he was sleeping inside his house,
when he heard cries coming from the gali on which he woke up and
came out and found that cries were of his brother, his bhanja
Angad also reached there, as he is residing in front of his house.
He further deposed that the door of the said house was open and
deceased was lying injured, blood was oozing from his abdomen
and he was crying in pain.
He further deposed that his wife told them to take him to
hospital. They removed him to the hospital on motorcycle driven
by Angad and Nagender was sitting in between and got him
admitted in hospital. He further deposed that on the way his
brother told him that accused Khali @ Dinesh had caused injuries
and Suresh and Deepak were with him. He further deposed that in
the hospital, the doctor started treatment and told his condition was
very serious and asked him to shift him to RML Hospital. He
further deposed that the deceased was removed to RML Hospital
in ambulance and Angad also reached RML Hospital on
motorcycle. He further deposed that in 2010 on Diwali day,
accused Khali came with beer bottle and created ruckus in front of
their houses and quarreled with him and at that time, he was also
present.
In crossexamination, he deposed that he was residing at the
said address for the last 1213 years. He admitted that it was
correct that two months prior to the incident, his brother was shot
by some one. No one was arrested in that case. They had not got
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the FIR registered as they were not aware about the assailant. He
further deposed that his brother was not having any enmity with
anyone. He further deposed that he does not know whether one
Bheema was arrested in said case of shooting. He further deposed
that the gate was open, when he went there on hearing noise,
Angad also came out at the same time. At that time, he had had
not asked the name of assailant, as there was total confusion. He
further deposed that he had informed the police from hospital.
He had asked his brother about assailant on the way to
hospital, who told that accused Dinesh @ Khali had shot him and
accused Deepak and Suresh were with him. He further deposed
that the doctor had asked in his presence from his brother and he
told that he was shot by Dinesh. His brother was in a position to
talk when he had been removed from motorcycle to emergency
ward for 10 minutes. Thereafter, he was removed to RML Hospital.
Doctors at RML Hospital had inquired from him about the incident
and he told him that it was Dinesh along with Deepak and Suresh.
He has admitted that he had not stated to the police in his
statement that his brother had told doctors on their asking that
Dinesh had shot him along with Suresh and Deepak.
11. Further, PW10 in his examinationinchief has deposed as
under :
That he is resident of P7/82 and his both mamas (maternal
uncle) are residing at P7/164165 in front of his house across the
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gali. He further stated that on the day of incident, he heard the
noise of cries at 12:30 AM from the house of his mama Nagender
Yadav. He went inside his house, as the gate was lying open.
After entering, he found him in a pool of blood, bleedings from
stomach and his mami was weeping. He further deposed that he
removed his mama along with Ram Singh to the hospital on his
motorcycle. On the way, Ram Singh asked from Nagender as to
how he had received bullet injury to which he stated that he was
shot by Dinesh, who had come with Chintu and Suresh. He further
deposed that they got him admitted into the Sanjay Gandhi
Memorial Hospital. He further deposed that doctors asked to take
him to RML, as his condition was serious. Thereafter, they
removed him to RML Hospital in ambulance. He further stated that
his mama was having differences with accused Dinesh for the last
several years.
In his crossexamination, he has deposed that he went to the
house of his mama on hearing noise at 1:00 AM. He further stated
that other public persons including neighbourers were standing on
the chajjas of their houses, but had not paid any attention towards
them. He further stated that he along with Ram Singh removed the
deceased to hospital on motorcycle. He further deposed that his
mama was in a position to talk when taken / removed to hospital.
He had not personally talked with the deceased. He also did not
had conversation with him at SGM Hospital. His elder mama
Nagender Yadav accompanied injured to RML in ambulance. His
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mama was also having conversation with him in RML Hospital. He
further deposed that he along with his mama returned to the house
of Nagender at 7:00 AM. Police personnels met them including
Sachin Mann. Police recorded the statement of his mama Ram
Singh, Bindu mami, Deepak, Sandeep and himself. Thereafter, his
further crossexamination was deferred on 30.03.2016.
In his further crossexamination on 17.07.2017, he had admitted
that it was correct that the deceased had not disclosed anything to
him in his presence.
12. From the analysis of the testimonies of PW1, PW2 and PW10,
as discussed above, their presence at the spot immediately after
the incident is fully established. In any case, the presence of PW1
being wife and PW2 brother and PW10 who were residing in the
neighbourhood and just opposite to the house of deceased is
natural, as they would have been the first person to respond to the
emergent situation. The MLC Ex. PW6/A shows that the deceased
(at that time injured) had been removed to the hospital by PW10,
as his name has been mentioned in the MLC, as the person who
had taken the injured (deceased) to the hospital.
13. Further, as per the MLC Ex. PW6/A the medical parameters /
vitals of the injured were found to be stable, as it has been
mentioned in the MLC by the doctor preparing the MLC :
Alleged history of gunshot injury. Pt
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conscious, oriented and reported in walking
Pulse - 100 / min.
BP 100 / 60 mm
Chest air entry Lt. side
CVS NAD
Abdomen - BS
From the aforesaid MLC, it is apparent that at the time, when
the injured was removed to the hospital of first instance, he was
conscious, oriented as well as was in walking condition and his
pulse was slightly fast than the normal, which is expected due to
anxiety and his blood pressure was also low, which is also
expected due to the loss of blood and there was no other
abnormality detected by the physician.
On local examination, the following observation was made :
Local : Entry wound with blackening in the
surrounding area .5cm below the nipple 5 cm
with food content coming out through hold
Lt. side. No exit wound but swelling in the
back Lt. (undigested)
Though, at that time the injured (deceased) had gun shot
wound, but still his vitals were normal and it appears that he was in
a condition to communicate, as he was even walking when taken to
the hospital of first instance i.e. Sanjay Gandhi Memorial Hospital.
Thereafter, he was referred to SR Surgery for further management
during which period, his condition seems to have deteriorated, as
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he became drowsy and was opined unfit for statement and was
thereafter referred to higher centre in ambulance. Thereafter, he
was taken to RML Hospital and vide medical documents proved as
collectively Ex. PW20/A, the said injured / deceased was admitted
into the RML Hospital at 3:04 AM of 16.05.2012. At that time, the
patient was unconscious and was gasping, his BP was not
recordable and pulse was feeble and finally despite giving all
resuscitating measures, he ultimately collapsed and died at 3:50
AM.
14. Despite all this, this fact cannot be glossed over that at the
time of admission of the injured / deceased in Sanjay Gandhi
Hospital, his vitals were normal, he was conscious, oriented and
was walking, therefore, it is clear that he was in a fit mental and
physical condition to make or to communicate the circumstances
surrounding his death.
15. PW1 has deposed regarding the previous enmity between the
deceased and accused Dinesh @ Khali with regard to the incident,
which took place in Diwali 2010, when he had broken the beer
bottle and left the deceased by threatening him and similarly PW2
has also deposed that accused Dinesh @ Khali had created ruckus
on the day of Diwali in 2010. PW10 has also deposed that the said
fellow had differences with him for several years. Therefore, the
motive to kill on part of the accused Dinesh @ Khali is clearly
SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 27 of 49
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established in this case.
16. Regarding identity, all the above witnesses have stated that
they knew the accused persons, who were the residents of the
same locality. Therefore, they would have known the accused
persons having seen them at various times due to the proximity.
PW1 has even clarified in her crossexamination that the street
light was on at the time of the incident. Though in her examination
in chief, she has stated that when she heard the cries of her
husband the light of the room was off and she switched on the
light, but this clarification given by PW1 in her crossexamination
shows that there was sufficient illumination available for the
deceased to see the faces of his assailants.
Further, on the question of identity, there could not have been
any doubt regarding the identity of the accused persons, while
communicating by the deceased to PW1, PW2 and PW10 to whom
the deceased communicated the names of his assailants, as they
were all well known to the deceased as well as to the above
witnesses being residents of same locality and they would have
seen them day in and day out. In any case, there is no reason,
why would a fatally wounded person falsely implicate the present
accused persons, while letting go the real offenders go scott free.
Therefore, there would have not been any obscurity in
expressing identity of his assailants by the deceased to the above
witnesses.
SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 28 of 49
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The probative force of the testimony of PW1 has not been
diminished after crossexamination, similarly the probative force of
the testimony of PW2 has also not been diminished after cross
examination, though, the probative force of testimony of PW10 has
been diminished somewhat after crossexamination, but it still
remains in the realm of trustworthy when taken as a whole.
17. From the above analysis of the evidence, it is clear that
deceased had sufficient opportunity to see his assailants and he
objectively communicated the names of those persons at first
instance to his wife, thereafter to his brother and his nephew, who
would have clearly asked the first question from him, as to who had
caused such injuries on his person and as already discussed
above, he was in conscious condition even after the passage of
sufficient time, which may have taken place while he was taken
from his house to the hospital.
18. Therefore, deceased / injured would have objectively
communicated the names of his assailants to above witnesses at
first instance, merely because they were closely related to the
deceased cannot put a cloud on their testimonies as accused
Dinesh @ Khali had a motive to kill him, as his previous conduct
was such and there was no reason, as to why as already discussed
above, the deceased would falsely implicate the present accused
persons, while letting go real offender.
SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 29 of 49
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The combined probative force of the testimonies of PW1, PW2
and PW10 is quite strong on this aspect. There is no reason to
falsely implicate accused persons in this case. Therefore, the
dying declaration of the deceased / injured Nagender Yadav is
found to be truthful, voluntary and was made by him in fit mental
condition while being fully conscious at the time of making /
communicating the same.
The prosecution story with regard to the three persons being
involved in the incident is corroborated by the testimony of PW22
Sandeep, who was the resident of the same house, where the
deceased was residing and in fact he was residing on the second
floor. He deposed that on the day of the incident, he had came late
from his work and after taking dinner, he was washing his clothes
and at about 12:30 midnight, he heard a cracker type noise and
saw three persons, two were going to one side and one to another
side. Though, in his crossexamination he stated that he could not
see the faces of these persons, however, there is no cross
examination on the aspect that three persons were seen by him
after the noise of firing, which strongly supports the fact in issue as
per the story projected by the prosecution.
19. Regarding the contention of the Ld. Defence counsel, since
there is no corroboration to the dying declaration, in the absence of
the corroboration, the conviction of the accused persons cannot be
based on the basis of uncorroborated dying declaration. In this
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regard, it has been held by the Hon'ble Supreme Court in
Judgment Chandra Vs. Shivjee(1999)6 SCC 63 "Dying
Declaration if truthful may alone form the basis of conviction
without corroboration". Further it has been held in judgment
"Gulam Hussain Vs. State (2000) 7, SCC 254, the statement
has to be subjected to close scrutiny before it is accepted as
truthful.
Further it has been held in judgment "Khushal Rao
Vs. State of Bombay AIR 1958 SC 222 "that a Dying
Declaration stands on the same footing as another
piece of evidence and it has to be judged in the
light of surrounding circumstances and with
reference to the principles governing the weighing
of evidence."
It is settled law as held above, that if dying
declaration is truthful, the same may alone form
basis of conviction without corroboration.
65. Further, most defined exceptions to the rule of
hearsay evidence are also grounded in logic . These
exceptions are based on view that it is possible to
identify circumstances in which some statements are
made that provide intrinsic indicia of reliability sufficient
to justify their admission not with standing the absence
of the declarant - These exceptions also reflect a
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policy that not only indicia of reliability, but also the
necessity that the statement be admitted and to be
considered. For example the need for the admission
of a dead declarants dying declaration concerning the
cause of her death is usually high unless some one
else was present, there may be no other evidence .
The declarant is unavailable and the statement if true
has substantial probative value, indicia of reliability is
based upon one or both of following generalizations.
(1) People who fear God are unlikely to lie, when
they believe death is imminent.
(2) The imminence of death concentrates the mind
and diminishes the capacity to fabricate.
67. The aforesaid dying declaration, made by the
deceased provides sufficient intrinsic, indicia of
reliability sufficient to justify the admission of the dying
declaration for convicting the accused persons
notwithstanding the absence of the
declarant/deceased in the present case.
Further, it has been held in judgment
Ghanashyam Das Versus State of Assam (2005) 13
Supreme Court Cases 387, the facts of which are
apposite to the present case, more specifically findings
in para 4 & 6, which are reproduced as under :
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4. The most incriminating evidence in this
case is the dying declaration made by the
deceased to PW4. After uttering the words
that Ghanashyam "cut him" the victim
became unconscious. It may be recalled that
PW4 was with the deceased till they parted
company to go to their respective houses
and within a few minutes thereafter, the
incident had happened. There is absolutely
no reason why PW4 would come forward to
give a false version to implicate the
accused. The oral dying declaration made to
PW4 was delivered by the trial court as well
as by the High Court. In the FIR lodged
without delay, the oral dying declaration
was specifically mentioned.
6. The contention of the learned counsel for
the respondent that with the magnitude of
injuries the victim suffered, he would not have been in a position to speak out, has been rejected by the High Court. The possibility of the deceased saying a few words before he became unconscious cannot be ruled out especially when there is SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 33 of 49
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no crossexamination of the medical officer on this aspect.
20. Now coming to the recovery aspect, in this regard testimonies of PW5 SI Mahender Singh, PW23 SI Sachin Maan and IO Inspector Satya Prakash PW24 are relevant. The relevant testimony of IO PW24 in this regard is reproduced as under :
I made efforts to trace the accused, but all the accused persons were absconding from their respective houses. At police station, Inspector Gajender handed over me sealed exhibits in two separate transparent pouches. The exhibits were kept in a white colour envelop and sealed with the seal of SP and taken into possession vide seizure memo Ex. PW24/A which bears my signatures at point A. The exhibits were deposited with MHC (M). I recorded the statements of Angad, Ram Singh, SI Sachin Maan and Ct. Vinod.
On 17.05.2012, SI Sachin Maan, SI Mahender Singh, Const. Bhargav, Const. Mahesh joined the investigation with me and we left in Tata 407 driven by Const. Vijay Pal in search of the accused persons in this case and SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 34 of 49
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at about 7.20 PM in search of the accused reached near Navaria Park, Mangol Puri, P Block side, where a secret informer met me and informed about the accused persons regarding their arrival of accused Dinesh & Deepak towards Mangol Puri flyover on foot. I requested 45 passersby to join the investigation, but none of them had joined the same by showing their respective inabilities and thereafter, a raiding party was constituted consisting of the aforesaid police officials and at about 7.30 PM, we reached near Hyundai showroom and at about 7.35 pm at the instance of secret informer, accused Dinesh & Deepak, present in the court today correctly identified, were apprehended when coming from the side of Peeragarhi flyover Outer Ring Road after a small chase. During the course of apprehension accused Dinesh @ Khalli received injury due to fall on the road. Again efforts were made to join the public witness in the investigation but none of them have joined the same.
SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 35 of 49
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Both accused Deepak @ Chintu and Dinesh @ Khalli were arrested vide Arrest Memos already Ex. PW5/B & Ex. PW5/A respectively, which bears my signatures at PointC respectively and their personal search was carried out vide Personal Search Memo already Ex. PW5/D & Ex. PW5/C respectively, which bears my signatures at PointC respectively. Both accused Deepak @ Chintu and Dinesh Kumar @ Khalli made their disclosure statements already Ex. PW5/F & Ex. PW5/E respectively, which bears my signatures at PointD. Accused Dinesh @ Khalli as per his disclosure statement offered to get recovered country made pistol from near the bushes NDPL office. Accused Dinesh @ Khalli led us to NDPL office, Industrial Area PhaseI, Mangol Puri and thereafter led us to a road going towards railway line and from the nearby bushes took out one country made pistol point 315 bore alleged used in the alleged offence.
SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 36 of 49
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On checking the country made pistol, one empty shell was found. I prepared the sketch already Ex. PW5/G of the country made pistol and empty shell, which bears my signatures at PointC. Before the proceedings, 45 passersby were asked to join the investigation, but none of them had joined the same. FSL form was filled. The aforesaid country made pistol and empty cartridge was turned into a pullanda, sealed with the seal of SP and taken into possession vide seizure memo already Ex. PW5/H, which bears my signatures at PointC. The recovery site plan already Ex. PW5/J was prepared, which bears my signatures at point A. The seal after its use was handed over to SI Sachin Maan.
21. The testimony of the IO in this regard i.e. regarding the arrest of the accused Dinesh @ Khali and Deepak and making of disclosure statement by the accused and recovery pursuant thereto of one country made pistol, one empty shell contained therein is clearly relevant u/S. 27 of the Arms Act. The same is duly corroborated by the testimony of PW18 SI Sachin Maan and PW5 SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 37 of 49
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SI Mahender Singh, whose testimonies converges with that of the IO in this regard. The recovery of pistol and the empty cartridge contained therein leads to assurance regarding the said recovery by the principle of confirmation of facts.
22. Regarding the nonjoining of public witnesses in the said recovery, the same is not fatal to the present case, in view of the settled law as it has been held in Sanjay alias Kaka Vs. State of NCT of Delhi AIR 2001 SC 979 as under :
"That no independent witnesses were associated with recovery (discovery) under S. 27 Evidence Act is not sufficient to create doubt regarding truth of prosecution version."
In view of the said judgment the non joining of the public witnesses is not fatal to the prosecution case, in any case, judicial notice can be taken of this fact that though India is the second most populous nation in the world after China, there are sea of people everywhere, yet it is ironic that when it comes to joining any police investigations, no citizen comes forward for doing his public duty. The IO in this case had done best which he could do in the circumstances to find out a public witness, but the apathy of the public persons is well known in these matters. The IO has carried out good investigations in this case despite all odds against him.
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23. Further, the nonpresence of finger prints on the pistol or lack of gun shot residue is also not fatal to the case of prosecution, as accused Khali was apprehended on 17.05.2012, whereas the incident took place on 16.05.2012. Therefore, he had sufficient time to erase those evidences.
24. Though, the FSL expert PW15 B. R. Anand in his report Ex. PW15/A has opined as under :
(5) The individual characteristics of firing pin marks and breech face marks present on evidence fired cartridge case marked exhibit 'EC1' and on test fired cartridge cases marked as 'TC1' & 'TC2' were compared and examined under comparison microscope model Leica DMC and were found identical. Hence, exhibit 'EC1' has been fired through the country made pistol . 315" bore marked exhibit 'F1' above. (6) The individual characteristics of striation marks present on evidence bullet marked exhibit 'EB1' and on test fired recovered bullets marked as 'TB1' & 'TB2' were compared and examined under comparison microscope model Leica DMC and were SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 39 of 49
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found insufficient. Hence, no opinion can be given whether the exhibit 'EB1' has been discharged through the country made pistol .315" bore marked exhibit 'F1' above or not.
(7) .....
(8) The exhibits 'F1'/'EC1' & 'EB1' are firearm/ammunition as defined in the Arms Act 1959.
25. Though the said report says that the empty cartridge found present in the pistol recovered from the accused Dimesh @ Khali was fired from the same weapon and though no conclusive report has come regarding the bullet lead seized from the body of the deceased having been discharged from the same weapon, but it is hard to imagine and it is a question to ponder over, as to why would a empty cartridge would remain embedded in the pistol, as nobody will just keep an empty cartridge in the pistol for fun, as it will be of no use.
This fact leads to strong inference that some bullet had indeed been discharged or fired from the said pistol. The accused Dinesh @ Khali should furnish an explanation as to how he came to know the presence of the pistol containing empty cartridge, from such a secluded place, which can be said to be in his exclusive knowledge, which was recovered from behind the bushes near NDPL office, and it is not mere coincidence that in dying SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 40 of 49
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declaration the deceased had also named Dinesh @ Khali, as the person who had fired upon him, the same person immediately after the incident lead to the recovery of pistol containing empty cartridge leading to strong inference that said pistol may have been used in the incident of shooting the deceased.
26. Further, since the firearm in this case was not a standard pistol or firearm, but an improvised one made by local Black Smiths and gun runners. Therefore, it does not have standard grooves in the barrel, so sometimes marks on the bullet and pistol / katta does not match due to this non standardization of the weapon.
27. The common intention of all the accused persons by the principle of agency is clearly discernible in the present case. More so, in view of the judgment Babu Lal Bhagwan Khandare Vs. State of Maharashtra AIR 2005, Supreme Court 1460. Ashok Kumar Vs. State of Punjab AIR 1977 Supreme Court 109.
"If two or more persons intentionally do an act jointly, the position of law is just the same as if each of them done individually by himself. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identical similar. The acts may be different in character but must have been actuated by one or the same common intention section 34 is applicable even if no injury has been caused by particular accused himself for applying the section 34. It is not necessary to SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 41 of 49
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show some over act on the part of the accused".
The aforesaid judgment is squarely application to the facts of the present case to prove the common intention of all the accused persons to kill the deceased Nagender Yadav, as all of them in the dead night hours of 16.05.2012 at 12:30 pm had gone to the house of the deceased and in fact, had entered into his house after crossing the gate. It is not their defence that they were just roaming in the street. At that late hours, they had no business to be present at the spot, where they were present and whereafter one of them i.e. Dinesh @ Khali fired upon the deceased, resulting ultimately into his death. Therefore, their presence at the spot shows premediation and common intention as well confederacy or prior concert and active participation in the crime. Therefore, all of them are liable by the principle of agency u/S. 34 of IPC and the fact that they were three persons, as already discussed above, is corroborated by the testimony of PW22, who had seen three persons running away in different directions immediately after the incident.
The evidence of the prosecution lead above more specifically the dying declaration, has strong probative force on the probative scale, where the probabilities of happening any event is measured or assessed and it is almost touching the point of certainty and no circumstance has emerged, which could show that the defence story had any sort of probative force on such probative scale.
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Therefore, all the accused persons stand convicted u/S. 302/34 IPC.
28. Regarding the charge u/S. 25/27 Arms Act, the recovery of the pistol containing empty cartridge, as already discussed has been proved beyond doubt by the testimonies of PW5 SI Mahender Singh, PW18 SI Sachin Maan and PW24 IO Inspector Satya Prakash.
Regarding the offence(s) u/S. 25/27 Arms Act, in the present case, though the accused was not found in actual possession of the country made pistol at the time of his arrest, but pursuant to his disclosure statement Ex. PW5/E, he got recovered the present country made pistol along with one empty cartridge lodged inside the said country made pistol, which were seized vide memo Ex. PW5/H. The sketch of the country made pistol is Ex. PW5/G.
29. Now does the possession of the accused qua the said country made pistol would only mean the physical or actual possession or the same also includes constructive possession, having power and control over the said weapon. This query has been answered by the Hon'ble Supreme Court in the following judgment :
Gunwantlal Vs. The State of M.P. AIR 1972 Supreme Court 1756, wherein it has been held as under :
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"The possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has nonethe less a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else. If this were not so, then an owner of a house who leaves an unlicensed gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it there when he went out. Similarly, if he goes out of the house during the day and in the meantime someone conceals a pistol in his house and during his absence, the police arrives and discovers the pistol, he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of it will be that of the owner. The concept of possession is not easy to comprehend as writers of Jurisprudence have had occasions to point out. In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the work "possession" means exclusive possession and the word "control" means effective control but this does not solve the problem. As we said earlier, the first precondition for an offence under Section 25(1)(a) is the element of intention, SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 44 of 49
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consciousness or knowledge with which a person possession the firearm before it can be said to constitute an offence and secondly possession but can be constructive, having power and control over the gun, while the person to whom, physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question."
30. The said judgment is squarely applicable to the facts of the present case. All the parameters laid down in the said judgment are duly met in the present case, as the accused got recovered the said country made pistol pursuant to his disclosure statement concealed behind the bushes near NDPL office, which he had concealed and which was in his exclusive knowledge. Therefore, he can said to have constructive as well as conscious possession of the same as well as control and dominion over the same. The sanction u/S. 39 Arms Act had also been duly accorded by the concerned DCP which is Ex. PW19/A and in fact his testimony has not been assailed at all on this point by crossexamining him barring giving certain suggestions, which he denied.
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31. Since the accused was not carrying any licence or permit for the possession of the said firearm, empty cartridge lodged in the weapon of 8 mm, which he got recovered pursuant to his disclosure statement of .315 bore, the same is in violation of Section 3 of the Arms Act and consequently, accused stands convicted u/S. 25(1B)(a) of the Arms Act.
32. The accused had also used the same as discussed above, without possessing any licence or permit, as per Section 5 of the Arms Act for killing the deceased. Though the present country made pistol as well as empty cartridge lodged in the weapon, which is of .315 bore, does not fall in the prohibited category nor the empty cartridge of 8 mm found along with the same, but since the accused had used the said country made pistol and ammunition without possessing any licence or permit, as requisite u/S. 5 of the Arms Act, he also stands convicted u/S. 27(1) of the Arms Act, 1959.
33. Now, what is net probative force of the prosecution case as a whole after this wholesome discussion. That is to say it is time to weight or analyze the probative force of entire mass of prosecution or defence evidence, which has been let in. Since the Evidence Act only speaks mainly about the rules of admissibility of evidence i.e what kind of evidence is safe, due to prudence and experience, therefore should be let in, or which is not, due to long drawn SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 46 of 49
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experience like hearsay which should be discarded. Therefore, Evidence Act mainly speaks about the admissibility or non admissibility of evidence. Now, once the entire evidence is let in, what is force or weight which has to be given to a particular piece or item of evidence. Then, to the entire cumulative force of evidence taken as a whole. After considering the counter pulls or countervailing evidence which pulls down the weight of prosecution evidence or supports the defence evidence. The answer to the same can only be found in the principles of mathematical probability which are used to analyze the happening or non happening of any event on such probability scale.
34. In view of the above discussion given, considering the entire mass of prosecution and defence evidence discussed on the record, how likely is this evidence given that accused Dinesh @ Khali had a motive to kill and had killed the deceased by firing upon him along with his coaccused persons in furtherance of their common intention, which can be termed as likelihood I(propositionI) or how likely is this evidence given that accused Dinesh @ Khali had no motive to kill the deceased nor he killed him by firing upon him along with his coaccused persons in furtherance of their common intention, which can be termed as likelihoodII(propositionII). The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII.
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35. How much stronger is this evidence depends how much propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the record by the prosecution or defence then the accused is likely to be acquitted & vice versa, the accused is liable to be convicted, if both are equal then it can be said that both of them have equal probative value.
36. In view of the above discussion, it is apparent that the probative force of propositionI i.e likelihoodI is much greater than the likelihoodII or propositionII, that is to say that the probative force of the evidence lead on the record in favour the propositionI is much much greater than propositionII i.e likelihoodI which favours the innocence of the accused.
37. On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of certainty. It can be given 8 or 9 points on such scale of '10' i.e 80% or 90% probability '1' being the certainty or 100% (which though can never be achieved in reality). On such kind of evidence, it can be safely concluded that it is the accused persons, who had killed the deceased in furtherance of their common intention and are guilty SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 48 of 49
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of the offence for which they have been charged. The prosecution had to prove its case beyond reasonable doubt and on said scales, therefore, it should be touching the point of certainty if not one, it should have been somewhere around 8 or 9 that is to say 80% and 90% which is the case in hand.
To sum up :
38. From the aforesaid analysis of evidence, the probative force of the prosecution evidence as a whole is touching the point of certainty on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having very low probative force, which is almost touching the point of disbelief. As a consequence, all the accused persons namely Dinesh Kumar @ Khali, Deepak and Suresh @ Hanumant stand convicted u/S. 302/34 IPC, in addition to that accused Dinesh Kumar @ Khali also stands convicted for the offence(s) u/S. 25(1B)
(a) and 27(1) of Arms Act, 1959.
Announced in the open Court (Sanjeev Aggarwal) th on 29 day of Oct. 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi/29.10.2018 SC No. 57950/16, FIR No. 185/12, PS Mangol Puri, State Vs. Dinesh @ Khali & Ors. Page No. 49 of 49