Delhi District Court
State vs Veer Singh Ect on 28 November, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No.DLCT01-001840-2014
Sessions Case No. 28023/2016(Old SC no. 120/14)
FIR No.601/2014
PS: Sarai Rohilla
U/s 302/34 IPC
State Vs. Veer Singh & Anr.
a) Date of commission of offence : 17.06.2014
b) Name of the complainant : Kishan Lal S/o Sh. Budha Ram
c) Name of accused persons and 1. Veer Singh S/o Sh.
address : Abhilakh Singh
R/o H. No. 11, IIIrd
Floor, Vivekanand Puri,
Delhi
2. Mahender Kaushik S/o
Sh. Kishan Chand
R/o H. NO. 136,
Vivekanand Puri, Delhi.
d) Offence complained of : u/s. 302/34 IPC
e) Plea of the Accused persons: Pleaded Not Guilty
f) Final Order: Convicted
Date of institution of the case : 15.09.2014
Date of committal : 26.09.2014
Date on which judgment was reserved : 18.11.2024
Date of judgment : 28.11.2024
JUDGMENT
1. The criminal machinery of the State was put into motion in the present matter on receipt of DD entry no. 20A dated 17.06.2014 by IO Inspector Davendra Rathi, who was then posted with PS Sarai Rohilla in respect of the incident of killing of a person by SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 1 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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firing of a bullet at House no. 230, Third Floor, Vivekanandpuri, Delhi. On receipt of the information, the above said IO reached at the spot of the crime, where, SI Yashendra Singh and Ct. Brijpal met him. The injured was already taken to Hindu Rao Hospital by a CATS Ambulance. The IO, while leaving Ct. Brijpal at the spot, in the company of SI Yashendra Singh reached Hindu Rao Hospital and collected MLC no. 4085/2014 of the injured Laxmi Kant Nagar s/o Kishan Lal Nagar. As per the MLC, there was alleged history of gun shot injury and the injured was declared brought dead. The IO accompanied by SI Yashendra Singh returned back to the spot of the crime. By that time, the crime team had also arrived at the spot and the photographs were taken by the crime team. The inspection of the scene of the crime was done by the crime team.
2. The above said FIR bearing no. 601/2014 u/s 302 IPC PS Sarai Rohilla dated 17.06.2014 has been lodged at the instance of the father of the deceased namely Sh. Kishan Lal Nagar who alleged that his son Laxmikant had performed a love marriage with one Ms. Neelam (daughter of the accused Veer Singh). It was alleged that right from the day of the marriage, the accused Veer Singh had taken a woe to kill the deceased Laxmikant. The accused Veer Singh used to call bad names off and on and he even used to beat his son Laxmikant. On 17.06.2014, his son Laxmikant returned home from his work at about 02:00-02:30 PM in a drunken state and he took the child Divya to market. After about 15-20 minutes, some eatables were brought by them and some altercation took SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 2 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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place in between his son Laxmikant and Ms. Neelam(w/o Laxmikant). Neelam gave a phone call to his father Veer Singh who arrived at the spot at about 04:00 PM accompanied by the other accused Mahender Singh Kaushik, who was a police personnel. Mahender Kaushik enquired from the complainant as to what had happened and the complainant told that the enquiry may be done from his son, who was in the room. Both the accused persons went towards the room of the deceased Laxmikant and the accused Veer Singh gave a gunshot to the deceased Laxmikant, while the deceased was wearing his pants. The complainant was in a standing position at that time and he also heard the noise of the gunshot. Both the accused persons ran away from the spot. The accused Veer Singh pointed out the pistol towards the complainant as well while he was retracting. After rushing into the room of the deceased, the complainant found his son Laxmikant lying at the ground and groaning. Blood oozed out from the nose and mouth of the deceased which was like a torn piece of cloth and within 5-7 minutes, Laxmikant expired. A call was given to the police at 100 number. Police arrived at the spot and took the deceased to the hospital. The above said incident was witnessed by Smt. Veena Nagar(wife of the complainant), Jatin Nagar(son of the complainant) and Ms. Neelam(daughter-in-law of the complainant), as per the complainant.
3. After registration of the FIR, investigation was taken up by the IO. The empty cartridge case could not be found by the IO from the spot. The sample of the dried blood of the deceased from the scene SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 3 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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of the crime was lifted by the IO and kept in a transparent jar. The samples of the blood stained marble and earth control, etc. were taken and sealed with the seal of 'DSR'. The site plan was prepared at the instance of the complainant and the statements of the complainant Kishan Lal and Neelam were recorded.
4. As per the charge sheet, the accused Veer Singh was arrested on the date of the incident itself i.e. on 17.06.2014. The disclosure statement of the accused Veer Singh was recorded by the IO and from his possession, his licensed pistol .32 bore pistol no. RP-103711 having a valid arms license issued by the ACP, Licensing was recovered. The postmortem of the deceased Laxmikant was got done on 18.06.2014 and as per the PM report, the cause of death of the deceased has been described as under:-
" The death of the deceased in this case is due to haemorrhage and shock consequent to gun shot injuries mentioned above. All the injuries were antemortem in nature. External injury no. 1 is gun shot entry wound, which could have been caused due to penetration by a bullet discharged from a firearm due to firing and is sufficient to cause death in ordinary course of nature. External injury no. 2, 3 and 4 could have been caused by blunt force impact hard object/ surface. My report is Ex. PW7/A bears my signature at point A. My report is correct. "
5. As per the charge sheet, Dr. M.K. Panigarhi, who conducted the postmortem, handed over certain exhibits to the IO, the IO seized the same. The second accused Mahender Singh Kaushik was arrested on 27.08.2014 and his polygraph test was conducted from FSL Rohini. The statement of Smt. Neelam was got recorded u/s 164 of the Cr.P.C. and the statements of Smt. Veena Nagar and Jatin Nagar were recorded u/s 161 of the Cr.P.C.. As per the charge sheet, the accused Mahender Kaushik instigated the accused Veer SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 4 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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Singh to give a gunshot to the deceased Laxmikant by saying "maar saale ko". The viscera of the deceased was preserved for chemical examination. The blood sample, the clothes of the deceased, the pistol and the blood stained tiles were sent for FSL examination.
6. After completion of the investigation, the charge sheet was filed by the IO against the accused Mahender Kaushik u/s 302/34 IPC and against the accused Veer Singh u/s 302/34 IPC and Section 27 Arms Act.
7. Vide orders dated 15.10.2014, charges were framed against both the above said accused persons namely Veer Singh and Mahender Kaushik u/s 302/34 IPC.
8. In order to prove its case, the prosecution has examined as many as 31 witnesses. A brief overview of the witnesses examined by the prosecution is being mentioned hereinunder, though, their detailed testimonies shall be discussed during the later part of this judgment.
9. PW1 is Ct. Vijender, who was posted at Hindu Rao Hospital on 17.06.2014 and who had given the information to the police station Sarai Rohilla about the fact that Lakshmikant Nagar was declared brought dead by the concerned doctor who was brought by the CATS ambulance to the said hospital at about 05:50 PM. During the testimony of this witness, the seizure memo pertaining to the amount of Rs. 60/- in cash, Adhar Card and ATM of SBI recovered during the search of the deceased has been exhibited as Ex. PW1/A. SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 5 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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10.PW2 is HC Harichander who was posted as Duty Officer on 17.06.2014 with PS Sarai Rohilla. During the testimony of this witness, the information pertaining to quarrel at 19/289 Sarai Rohilla received at 04:20 PM in the police station recorded vide DD no. 17A has been exhibited as Ex. PW2/A; DD no. 18A pertaining to the quarrel at House no. 230 Vivekanandpuri received from mobile no. 9871186703 at about 04:21 PM has been exhibited as Ex. PW2/B; DD no. 20A pertaining to the bullet firing received from the above said mobile number 9871186703 has been exhibited as Ex. PW2/C; DD entry number 24A received from Hindu Rao Hospital received in the police station at 05:40 PM pertaining to the deceased Lakshmikant Nagar has been exhibited as Ex. PW2/B; computerized copy of the FIR bearing no. 601/2014 u/s 302 of the IPC lodged at 07:25 PM on 17.06.2014 has been exhibited as Ex. PW2/E; the endorsement regarding the registration of the case has been exhibited as Ex. PW2/G and the certificate u/s 65B of the Indian Evidence Act has been exhibited as Ex. PW2/K.
11.PW3 is Ct. Deepak and this witness has deposed about the articles which were handed over by Dr. M.K. Panigarhi to the IO at the time of conducting of the postmortem and which were taken into possession vide memo Ex. PW3/A. This witness has filed his evidence by way of affidavit as Ex. PW3/A towards his examination-in-chief.
12.PW4 is Zile Singh who was posted as the Incharge of PCR Van Sugar-46 on 17.06.2014 and who had reached at the spot of the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 6 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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incident on receipt of the information about the quarrel at House no. 230, Vivekanandpuri at 04:17 PM.
13.PW5 is SI Alma Minz and this witness has proved on record DD no. 22A dated 18.05.2014 as Ex. PW5/A in respect of the information which was given by the caller Veerpal(the caller was in fact accused Veer Singh and his name has been wrongly spelt as Veerpal), who informed that his daughter Neelam was being harassed by her husband and a quarrel had taken place with her. PW5 has further stated that the caller said that complaint was going to be filed before Women Cell and that is why, no action was taken and DD entry number 22A was filed vide DD entry no. 69B exhibited as Ex. PW5/B.
14.PW6 is Sh. Kishor Kumar, the brother in law of the deceased who had identified the dead body of the deceased Lakshmi Kant Nagar. His identification statement has been exhibited as Ex. PW6/A.
15.PW7 is Dr. M.K. Panigarhi, HOD Forensic Medicine from Hindu Rao Hospital, who had conducted the postmortem on the dead body of the deceased Lakshmi Kant Nagar on 18.06.2014. The PM report of the deceased has been proved by this witness as Ex. PW7/A. PW7 has opined as under:-
"The death of the deceased in this case is due to haemorrhage and shock consequent to gun shot injuries mentioned above. All the injuries were antemortem in nature. External Injury no. 1 is gun shot entry wound which could have been caused due to penetration by a bullet discharged from a firearm due to firing and is sufficient to cause death in ordinary course of nature. External injury number 2, 3 and 4 could have been caused by blunt force impact hard object/ surface."
16.PW8 is Ct. Pradeep, who was posted with PS Sarai Rohilla as Constable on 17.06.2014. This witness handed over the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 7 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:43:15 +0530 computerized copy of the FIR to the Ilaka Magistrate, to the Joint CP and DCP.
17.PW9 is Ct. Neeraj who deposited a sealed pullanda from the malkhana of PS Sarai Rohilla containing pistol and firearms with RC no. 99/21/14 on 21.08.2014 with FSL. The road certificate has been exhibited as Ex. PW9/A and the receipt of deposit has been exhibited as Ex. PW9/B during the testimony of this witness.
18.PW10 is HC Ratan Singh, who was on emergency duty with PS Sarai Rohilla from 08:00 AM to 08:00 PM on 17.06.2014 and on receipt of DD entry no. 17A and DD no. 18A Ex. PW2/A and Ex. PW2/B on record, this witness reached at the spot of the crime along with Ct. Vijender. This witness has stated that IO of the case Inspector Rathi and other seniors also reached at the spot.
19.PW11 is HC Veer Sain who produced in the court register no. 19 and who was posted as MHC(M) at PS Sarai Rohilla on 17.06.2014. This witness has exhibited the relevant entry at serial no. 3312 in register no. 19 in respect of the four sealed pullandas with the seal of DSR handed over to him by Inspector Devender Rathi as Ex. PW11/A. This witness has also exhibited the relevant entry at serial no. 3313 in register no. 19 in respect of the four sealed pullandas with four sample seals handed over to him by Inspector Devender Rathi on 18.06.2014 as Ex. PW11/B. This witness has further stated that on 19.08.2014, the sealed viscera petti and four sealed pullandas along with four sample seals were sent to FSL vide RC number 92/12/14 as Ex. PW11/C and RC no. 91/12/14 as Ex. PW11/D respectively through Ct. Arvind. This SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 8 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:43:22 +0530 witness has further stated that after depositing the same at FSL Rohini, Ct. Arvind handed over to him the receipts of FSL and he made the relevant entry at serial no. 3313. Copies of the reciepts have been exhibited as Ex. PW11/E and Ex. PW11/F. This witness has further stated that on 21.08.2014, one sealed pullanda stated to be containing pistol and five catridges was sent to FSL Rohini vide RC number 99/21/14 already exhibited as Ex. PW9/A through Ct. Neeraj and after depositing the same at FSL Rohini, Ct. Neeraj handed over to him the receipt Ex. PW9/B and he made the relevant entry in this respect in register no. 19 at Serial no. 3312. This witness has further stated that on 14.05.2015, the FSL result along with the remnant sealed pullandas were received in the malkhana and he made the relevant entries in register no. 19 at serial no. 3312. This witness has further stated that the FSL result was handed over to the IO and during the tenure, the above said sealed pullandas remained in his possession, nothing was tampered.
20.PW12 is the complainant and the eye-witness to the incident in question Sh. Kishan Lal who is the father of the deceased Lakshmi Kant Nagar. This witness has deposed on the lines of the statement recorded by the IO and on the lines of the subsequent complaints made by him to the Commissioner of Police, Special Commissioner of Police and to the other higher officials of the Police. During the testimony of this witness, his statement recorded by the IO has been exhibited as Ex. PW12/A; the seizure memo pertaining to the dried blood lying on the floor lifted by the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 9 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:43:29 +0530 IO as Ex. PW12/B; the seizure memo pertaining to the marble having blood stains of the son of the complainant as Ex. PW12/C, the seizure memo pertaining to the piece of the marble without blood as Ex. PW12/D; the site plan prepared at the instance of the complainant as Ex. PW12/E; the statement made by the complainant in respect of the identification of his deceased son as Ex. PW12/F; the handing over memo of the dead body of the deceased as Ex. PW12/G; the scaled site plan as Ex. PW12/H; copy of the complaint sent by the complainant to the Commissioner of Police mentioning the complete facts as Ex. PW12/I; the copies of the complaints sent to the other higher officials of the Police and to the Hon'ble LG as Ex. PW12/J to Ex. PW12/O respectively; six pieces of marble of different sizes containing brownish yellow stains correctly identified by the witness as Ex. P12/1; the dried blood contained in the plastic transparent container having the sealed impression of DSR as Ex. P12/2; T-shirt of black colour, one blue jeans pant with belt having blood stains and one underwear of blue and black colour having blood stains pertaining to the deceased and correctly identified by the witness as Ex. P12/3 and one piece of control sample marble as Ex. P12/4.
During the cross-examination of this witness, the marriage certificate of the deceased son of the complainant has been exhibited as Ex. PW12/DX1. This witness during his cross- examination was also confronted with the site plan which was exhibited as Ex. PW12/DX.
SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 10 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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21.PW13 is Ct. Irshad, the photographer who was posted with the Mobile Crime Team, North District on 17.06.2014 and this witness has stated that he along with Mobile Crime Team Incharge SI Nagender, ASI Jai Singh Fingerprint expert and driver came to the spot i.e. at House no. 230, Third Floor, Vivekanandpuri, Sarai Rohilla, Delhi. Nine photographs taken by this witness which are on record have been exhibited as Ex. PW13/1 to Ex. PW13/9 and the negatives of the said photographs have been exhibited as Ex. PW13/10 to Ex. PW13/19.
22.PW14 is Ms. Neelam, the wife of the deceased and daughter of the accused Veer Singh and one more eye-witness to the incident in question. This witness in her examination-in-chief, has deposed that on 17.06.2014, she had given a call to her father at about 03:00 PM as blood was oozing out from her nose on account of the fist blows given by her husband and that after about 15 minutes, the accused Mahender(correctly identified by the witness) came to her matrimonial home and he started talking with her father-in-law. PW14 has further stated that after 5-7 minutes, her father Veer Singh(accused Veer Singh correctly identified by the witness) came to her matrimonial house.
However, this witness has retracted from her previous statement on the aspect of firing of the gunshot by the accused Veer Singh on the person of the deceased Lakshmi Kant Nagar. PW14 has stated that after seeing her father in the bed room, her husband started abusing her father and her husband tried to snatch her SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 11 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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father's licensed pistol from him and in the scuffle, bullet was fired, as a result of which, her husband fell on the floor. PW14, in her examination-in-chief, has stated that she had given her statement to the ld. Magistrate recorded u/s 164 of the Cr.P.C. on 30.07.2014 and the same has been exhibited as Ex. PW14/A. However, PW14 has stated that she had given her statement u/s 164 of the Cr.P.C. under the pressure of her father-in-law because he was threatening to kill her children.
During her cross-examination by the ld. Addl. PP for the State as PW14 was resiling from her previous statement, her complaint dated 29.11.2014 was exhibited as Ex. PX. The previous statement of PW14 recorded by the police has been exhibited as Ex. PW14/P1. The supplementary statement of PW14 recorded on 24.06.2014 has been exhibited as Ex. PW14/P2. The copy of the complaint made to the CAW cell has been exhibited as Ex. PW14/X1. PW14 has admitted it to be correct that she had taken back her above said complaint vide Ex. PW14/X2. However, PW14 has stated that she was forced to do the same by her in- laws. The application given by her to the CAW Cell on 09.06.2014 has been exhibited as Ex. PW14/X3.
23.PW15 is HC Satbir, who was posted with PCR Van Sugar 39 on 17.06.2014, and who reached at the spot on receipt of the information from control room at 04:31 PM. PW15 found the injured suffering from a bullet injury and he was brought down from the third floor of the house. PW15 has further stated that the injured was taken to the hospital in a CAT ambulance.
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24.PW16 is ASI Kailash Chand, who was posted with PS Subzi Mandi on 17.06.2014 and he was the Incharge of motorcycle Sugar 69. Upon receipt of the information from the control room regarding the admission of the injured in Hindu Rao Hospital at about 05:00 PM, he reached the hospital and found that injured Lakshmi Kant Nagar was declared 'brought dead'. PW16 has further stated that the injured was having the bullet injury marks on the left side of the chest and his body and clothes were having blood stains. PW16 informed about the same to the control room. IO interrogated him and recorded his statement which has been marked as Ex. PW16/D.
25.PW17 is Dr. Dhananjay Kumar, CMO from Hindu Rao Hospital and this witness had examined the deceased Lakshmi Kant Nagar who was brought to the said hospital in CATS Ambulance at about 05:10 PM on 17.06.2014. This witness has exhibited the MLC no. 4085/14 of the deceased Lakshmi Kant Nagar as Ex. PW17/A.
26.PW18 is Ct. Brijpal(who has been wrongly given the number as PW17 in his testimony recorded on 23.05.2017 but who has been given the correct number as PW18 in his subsequent testimony recorded on 28.11.2017) who had joined the investigation of the present case with SI Yashender on 17.06.2014 on receipt of DD entry no. 20A. This witness has deposed on the lines of the investigation done by SI Yashender. During the testimony of this witness, the arrest memo of the accused Veer Singh has been exhibited as Ex. PW17/A; the seizure memo of the pistol along SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 13 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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with the live cartridges as Ex. PW17/B; the seizure memo pertaining to the license of the aforesaid pistol as Ex. PW17/C. PW18 has been cross-examined by the ld. Addl. PP for the State as PW18 was not disclosing the entire facts before the court. During the cross-examination by the ld. Addl. PP for the State, PW18 has admitted it to be correct that the IO had prepared the sketch of the pistol, magazine and cartridges before sealing the same and the same has been exhibited as Ex. PW17/D, Pistol has been exhibited as Ex. P17/1, five cartridges have been exhibited as Ex. P17/2 and two test fired bullets have been exhibited as Ex. P17/3.
27.PW19 is HC Ajay Kumar, who produced in the court, the Arm License number ARML-100476 pertaining to the pistol of the accused Veer Singh. The copy of the application filed by the accused Veer Singh pertaining to the above said license has been exhibited as Ex. PW19/A, the original license has been exhibited as Ex. PW19/B and the sale invoice has been exhibited as Ex. PW19/C.
28.PW20 is Jatin Nagar, the son of the complainant and brother of the deceased. PW20 is one more eye-witness to the incident in question. This witness has deposed on the lines of the charge sheet filed by the IO and on the lines of his statement recorded by the IO.
During his cross-examination by the ld. Counsel for the accused, his statement recorded by the police has been exhibited as Ex. PW20/DA.
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29.PW21 is Smt. Veena Nagar, the step mother of the deceased and wife of the complainant. This witness is the last and the fourth eye-witness to the incident in question and this witness has deposed on the lines of her statement recorded u/s 161 of the Cr.P.C. and on the lines of the charge sheet filed by the IO. During her cross-examination, the statement of this witness PW21 has been exhibited as Ex. PW21/DX1.
30.PW22 is W Ct. Sneh Lata who was posted with CPCR Police Headquarters, Delhi on 17.06.2014 and this witness has proved on record the information received vide call at 100 number at about 16:17 hours which was entered in Form I to the effect "at 230, Vivekanand Puri, Jhagra ho rai hai, yahan par ek aadmi ko goli maar dee". During the testimony of this witness, Form I has been exhibited as Ex. PW22/A.
31.PW22A is SI Nagender Giri who was posted as Incharge Mobile Crime Team, North District on 17.06.2014 and on receipt of the information from Control Room, North District, PW22A SI Nagender Giri along with ASI Jai Singh(Fingerprint Expert) and Ct. Irshad(photographer) reached at House no. 230, Third Floor, Vivekanand Puri, Sarai Rohilla, Delhi where IO SI Yashender along with other local police officials met him. IO told him that the injured had already been taken to the hospital. During inspection, blood was found lying on the floor inside the room and some food material was also lying on the floor in the balcony. Ct. Irshad took the photographs of the scene of crime from different angles at the instance of the IO. IO was advised to collect blood SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 15 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:44:09 +0530 samples, earth control, blood stained earth control from the spot. This witness has proved on record his report as Ex. PW22/A.
32.PW23 is Ms. Ankita Singh, the ld. MM, who had recorded the statement of Ms. Neelam(wife of the deceased) u/s 164 of the Cr.P.C.. The application for recording the above said statement has been exhibited as Ex. PW23/A, the identification memo by IO of Ms. Neelam has been exhibited as Ex. PW23/B, the questions put to the witnesses by the ld. MM have been exhibited as Ex. PW23/C and the certificate regarding the said statement has been exhibited as Ex. PW23/D. The application for providing the copy of the said statement filed by the IO has been exhibited as Ex. PW23/E. The statement u/s 164 of the Cr.P.C. of the said witness recorded on 30.07.2014 has already been exhibited as Ex. PW14/A. This witness has not been cross-examined by the ld. Counsels for the accused persons.
33.PW23A is SI Yashender and this witness has deposed on the lines of the charge sheet filed by the IO. This witness has stated that on 17.06.2014, DD no. 20A, which has already been exhibited as Ex. PW2/C was marked to him and he along with Ct. Brijpal reached at the spot of the crime. This witness has further stated that the duty constable present in the hospital handed over the belongings of the deceased i.e. Rs. 60/-, SBI Card, Adhar Card and Voter ID card to the IO which were seized by the IO vide seizure memo which has already been exhibited as Ex. PW1/A. This witness has deposed about the sending of the rukka by the IO through Ct.
SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 16 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:44:15 +0530 Brijpal for registration of the FIR and about the seizure of the dried blood, earth control and earth control without stain by the IO vide seizure memos which have already been exhibited as Ex. PW12/B, Ex. PW12/C and Ex. PW12/D. This witness has also deposed about the site plan without scale prepared by the IO already exhibited as Ex. PW12/E; about the disclosure statement of the accused Veer Singh which has been exhibited as Ex. PW23A/B; the sketch prepared by the IO of the pistol, live cartridges and the magzine on a white paper which has already been exhibited as Ex. PW17/B; about the seizure memo of the pullanda of the pistol which has already been exhibited as Ex. PW17/B; about the license of the pistol produced by the accused Veer Singh which has already been exhibited as Ex. PW19/B; about the seizure memo of the license of the pistol which has already been exhibited as Ex. PW17/C; about the arrest memo and personal search memo of the accused Veer Singh which have been exhibited as Ex. PW23A/C and Ex. PW23A/D; about the blood stain on the marble piece lifted from the place of occurrence and correctly identified by this witness already exhibited as Ex. P12/1; about the dried blood in the container correctly identified by this witness already exhibited as Ex. P12/2; about the control sample marble correctly identified by this witness already exhibited as Ex. P12/4; about the five cartridges already exhibited as Ex. P17/2 and about the two test fired bullets already exhibited as Ex. P17/3. During the cross-examination of this witness, the statement of this witness PW23A recorded u/s 161 of the Cr.P.C. has been exhibited SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 17 of 82 Digitally signed by RAJ RAJ KUMAR KUMAR Date:
2024.11.28 16:44:20 +0530 as Ex. PW23A/DA. This witness has further stated that IO interrogated the accused Veer Singh and arrested him vide arrest memo Ex. PW17/A and his personal search was conducted vide personal search memo Ex. PW23A/A which bears his signatures at point A.
34.PW24 is Ct. Arvind and this witness has stated that on 19.08.2014, he was posted at PS Sarai Rohilla and on that day, as per the instructions of the IO, he received on sealed box containing viscera of the deceased duly sealed with the seal of HRH along with the sample seal of HRH from MHC(M) vide RC no. 92/21/14 which has already been exhibited as Ex. PW11/C and four sealed pullandas containing the blood, blood stained tiles, clothes of the deceased and bullet vide RC no. 91/21/14, copy of which has already been exhibited as Ex. PW11/D. This witness deposited the above said sealed box with FSL Rohini vide acknowledgment Ex.
PW1/E and this witness also deposited the above said four sealed exhibits with the FSL vide acknowledgment already exhibited as Ex. PW11/D.
35.PW25 is Mr. Puneet Puri, the Asstt. Director(Ballistics), FSL, Rohini, and this witness, in his examination-in-chief, has stated as under:-
"On 21.08.2014, one sealed parcel sealed with the seal of DSR of present case was received in FSL through Constable Neeraj Kumar and same was marked to me for examination. The seals on the parcel were intact and as per the specimen seal provided with the FSL form.
On opening the parcel, one pistol 7.65 mm caliber bearing no. RP-103711 and five 7.65 mm cartridges were taken out and marked as Ex. F1 and A1 to A5, respectively by me.
SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 18 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:44:25 +0530 On examination, I found that the pistol marked Ex. F1 was in working order. Test fire was conducted successfully by using the cartridges marked Ex. A1 and A2, the test fired cartridge cases were marked as TC1, TC2 and two recovered test fired bullets were marked as TB1 and TB2.
The bullet marked Ex. EB1 in case FSL no. 2014/B-6005/21- BA/15, FIR no. 601/2014, Police Station Sarai Rohilla had been discharged through the pistol marked Ex. F1 as the individual characteristics of riffling marks present on evidence bullet marked Ex. EB1 in case FSL no.
2014/B-6005/21-BA/15, FIR no. 601/2014, Police Station : Sarai Rohilla and on test fired bullets marked TB1 and TB2 were found identical when examined under the comparison microscope. The pistol marked Ex. F1 was a firearm and the cartridges marked Ex. A1 to A5 were ammunition as defined in Arms Act, 1959. My detailed report no. FSL-2014/F-6111 dated 28.04.2015 in this regard is Ex. PW25/A bearing my signatures at point A on both sides of my report. On 07.01.2015, one sealed parcel bearing no. 7 sealed with the seal of AC FSL Delhi was received in the Ballistics Division through the Biology Division of FSL. The seals on the parcel were intact and as per the specimen seal provided with the internal FSL Form.
On opening the parcel, one bullet was taken out and marked as Ex. EB1 by me.
On examination, I found that the bullet marked as Ex. EB1 was corresponding to the bullet of 7.65 mm cartridge. The bullet marked Ex EB1 was an ammunition as defined in Arms Act 1959. My detailed report bearing FSL no. 2014/B-6005/21-BA/2015 dated 28.04.2015 in this regard is Ex. PW25/B bearing my signatures at points B on both sides of my report.
I can identify the above said pistol and cartridges, test fired cartridge cases and test fired bullets, if shown to me. At this stage, MHC(M) has produced one parcel no. 1 duly sealed with the seal of court. Seals are intact. Parcel is opened and is found containing one cloth pullanda bearing particulars of present case having seal impression of DSR, but pullanda bearing particulars of present case having seal impression of DSR, but pullanda is not completely sealed. The above said cloth pulland is containing one pistol having magazine and five cartridges including two test fired cartridges and two test fired bullets and the same are shown to the witness who correctly identified the same which were examined by him and the same are already Ex. P-17/1(pistol Mark as F1), Ex. P-17/2(cartridges mark A1 to A5, test fired marked as A1 and SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 19 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:44:31 +0530 A2 were further marked as TC1 and TC2) and Ex. P-17/3(test fired bullets which were marked as Ex. TB1 and TB2). I can identify the case property i.e. one bullet marked as Ex. EB1, if shown to me.
At this stage, MHC(M) produced parcel no. 7 duly sealed with the seal of PP FSL Delhi. Seals are intact. Parcel is opened and it found containing one another parcel which contained on plastic container having doctor tape around the same and a slip bearing particulars of present case. The said container is having one fired bullet having the case detail and marking as EB1 with signature. Same is shown to the witness who correctly identified the same to be the same which was examined by him vide report Ex. PW25/B and the same is Ex. P-25/1. The witness identifies his signatures on Ex. P-25/1 at point A."
During the cross-examination, PW25 has stated that he does not remember whether he had checked the safety lock of the pistol or not.
36.PW26 is Retd. Inspector Devender Rathi, IO of the case and this witness has deposed on the lines of the investigation carried out by him. This witness has stated that the search was made for empty cartridge but in vain. PW26 has further stated that the blood in gauze, earth control and blood stained earth control were taken into possession from the spot by preparing separate pullandas which were sealed with the seal of DSR vide memos already exhibited as Ex. PW12/B to Ex. PW12/D which bears his signatures at point C. This witness has further stated that the statement of the father of the deceased was recorded vide statement which has already been exhibited as Ex. PW12/A which bears his signatures at point D and he made the endorsement on the said statement vide endorsement Ex. PW26/A. This witness has further stated that the site plan of the spot was also prepared by him at the instance of the complainant vide site plan already SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 20 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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exhibited as Ex. PW12/E. PW26 has further stated that the disclosure statement of the accused Veer Singh has already been exhibited as Ex. PW23A/B, the arrest memo as Ex. PW17/A and the personal search memo as Ex. PW23A/A. The sketches of the pistol, magazine and cartridges were prepared vide sketches already exhibited as Ex. PW17/D which bears his signatures at point A and seizure memo vide which the above said sketches were taken into possession has already been exhibited as Ex. PW17/B. The seizure memo pertaining to the possession of the pistol has been exhibited as Ex. PW17/C and the license of the accused Veer Singh pertaining to the above said pistol has been exhibited as Ex. PW19/B. The form pertaining to the inquest proceedings has been exhibited as Ex. PW26/B and the identification memos of the dead body of the deceased by Kishor Kumar and Kishan Lal have been exhibited as Ex. PW6/A and Ex. PW12/F. The handing over memo of the dead body of the deceased has been exhibited as Ex. PW12/G. The seizure memo pertaining to the exhibits handed over by the concerned doctor who had conducted the postmortem to the IO has been exhibited as Ex. PW3/B. The request for polygraph test has been exhibited as Ex. PW26/C. The arrest memos of the accused Mahender Kaushik has been exhibited as Ex. PW23A/C and his personal search memo has been exhibited as Ex. PW23A/B. The entry in the roznamcha regarding the arrest of the accused Veer Singh was made vide DD no. 30A has been exhibited as Ex. PW26/D; the entry in the Roznamcha regarding the medical examination of the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 21 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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accused Veer Singh vide DD no. 4A has been exhibited as Ex. PW26/E; the DD entry no. 5A pertaining to the arrival at the police station after medical examination of the accused Veer Singh has been exhibited as Ex. PW26/F; the application for conducting the postmortem has been exhibited as Ex. PW26/G; the attested photocopy of the site plan without scale has already been exhibited as Ex. PW12/DX; the attested photocopy of the sketch of pistol, magazine and cartridges has been exhibited as Ex. PW26/H; the request of the IO whereby the FSL result was collected and filed before the court has been exhibited as Ex. PW26/I; the request of the IO for filing of the FSL result dated 16.07.2015 has been exhibited as Ex. PW26/J. This witness has further stated that the true copies of the DD entries which have already been exhibited as Ex. PW5/A, Ex. PW5/B, Ex. PW2/A, Ex. PW2/B, Ex. PW2/C, Ex. PW2/D, Ex. PW2/H and Ex. PW2/J bears his signatures at point A. This witness has further stated that the computerized copy of PCR form no. 1 dated 17.06.2014 at 16:19:41 hours has been marked as Mark P-26/A and PCR form no. 1 dated 17.06.2014 at about 16:09:47 hours has been marked as Mark P-26/B. This witness has correctly identified the blood stained earth control(marble pieces which have already been exhibited as Ex. P-12/1); the parcel containing the transparent plastic jar which is found containing dried blood has already been exhibited as Ex. P-12/2; the parcel containing the clothes of the deceased has been exhibited as Ex. P-26/A-1; the pullanda containing the pistol, five cartridges out of which two are test fired SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 22 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:44:46 +0530 cartridges which have already been exhibited as Ex. P-17/1, Ex. P-17/2 and Ex. P-17/3. The bullet led recovered by the concerned doctor at the time of conducting the postmortem has been exhibited as Ex. P-26/A-2 and the parcel containing the blood in gauze of the deceased has been exhibited as Ex. P-26/A-3.
37.PW27 is Dr. Kanak Lata Verma, Asstt. Director(Chemistry) from FSL Rohini and this witness has proved on record the report with respect to the chemical examination of the four exhibits 1A, 1B, 1C and 1D as Ex. PW27/A. This witness has further stated that Ex. 1C was found containing ethyl alcohol 111.5 mg/ 100 ml of blood. This witness has further stated that metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, tranquilizers, pesticides could not be detected in Ex. 1D.
38.PW28 is Dr. Aruna Mishra Asstt. Director from FSL and this witness has stated that the detailed report pertaining to the polygraph test of the accused is Ex. PW28/A and the forwarding letter, whereby, the said report was forwarded to SHO PS Sarai Rohilla is Ex. PW28/B. The intimation letter dated 14.08.2014 sent to the SHO PS Sarai Rohilla pertaining to the preparation of the report has been exhibited as Ex. PW28/C and the intimation sent to SHO on 02.07.2014 for sending the suspect at FSL on 03.07.2014 has been exhibited as Ex. PW28/D.
39.PW29 is Ms. Anita Chari, Senior Scientific Officer from the Biology Division of FSL Rohini and this witness has stated that the biological report in respect of the five sealed parcels which were marked to her on 19.08.2014 is Ex. PW29/A and the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 23 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:44:52 +0530 forwarding letter, vide which the exhibits with the report were sent to PS Sarai Rohilla is Ex. PW29/B. As per the report submitted by PW29, human blood was detected on the marble piece, flaky material, blood stained gauze cloth piece and metallic piece but on the T Shirt, jeans pants with belt and underwear, there was no reaction.
40. Perusal of the record of the case reveals that the ld. Addl. PP for the State vide his separate statement recorded on 10.09.2024 has dropped PW Sh. Rakesh Kumar, the then, LD. MM(Traffic), Central District, Tis Hazari Courts, Delhi as the relevant documents were already proved through PW26 Retd. Inspector Devender Rathi. The witness Rohtash Rajput, whose name was mentioned at serial no. 18 in the list of witnesses was also dropped as PW4 SI Zile Singh was already examined on the same point of facts.
41. After the conclusion of the PE, statement of the accused Veer Singh was recorded u/s 313 of the Cr.P.C., whereby, the above said accused denied all the incriminating evidence put to him. The accused Veer Singh has taken up the plea that on the day of the incident i.e. on 17.06.2014, his daughter Neelam called him on his mobile phone and informed him that she was being badly beaten by her husband and that she asked him to come to her matrimonial home immediately with a view to save her from her husband. The accused Veer Singh has taken up the plea that on seeing him, his son-in-law Laxmikant became more angry and he tried to snatch his pistol by stating that he would kill all. The accused Veer Singh SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 24 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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has further stated that he tried to stop him and during scuffle, the gun fired accidentally from his hand and the bullet hit him and he fell down. The accused Veer Singh has taken up the plea that he did not commit murder of his son-in-law. The accused Veer Singh opted to lead evidence in Defence.
42.Statement of the accused Mahender Kaushik was also recorded u/s 313 of the Cr.P.C., whereby, the above said accused Mahender Kaushik denied all the incriminating evidence put to him and this witness has taken up the plea that he had not accompanied the co-
accused Veer Singh to the matrimonial home of Neelam, the daughter of the co-accused Veer Singh, on the date of the incident. This witness has also adopted to lead the evidence in defence.
43.The accused Mahender Kaushik, in his defence evidence, has examined three witnesses including himself as DW1. He has further examined Retd. Inspector Babu Lal, who was the enquiry officer in the Departmental Enquiry conducted against him as DW3 and Retd. ACP K.K. Kaushik who was the defence assistant in the departmental enquiry as DW4.
44. The accused Mahender Kaushik, in his defence evidence, has taken the plea of Alibi by stating that on the day of the incident i.e. on 17.06.2014, he was posted with VIP Security, Delhi Police and on 17.06.2014, when he was returning from his duties, then, at about 03:00-03:30-04:00-04:30 PM, he received a call from co- accused Veer Singh to the effect that his daughter was being beaten by his husband but he never visited the house of Veer Singh on 17.06.2014 at any point of time. This witness has further stated SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 25 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:02 +0530 that he came to know at about 05:00 PM on 17.06.2014 that the deceased Laxmikant had received a gun shot injury and from the gate of his balcony, he was watching that a mob had gathered outside the house of the deceased Laxmikant. This witness has further stated that at 06:10 PM on 17.06.2014, he was in the police station with the IO but no enquiry was conducted from him by the IO at the spot of the crime. This witness has further stated that he never accompanied the co-accused Veer Singh for commission of the alleged offence.
45. The accused Veer Singh, in his defence evidence has examined himself as DW2 and this witness has taken the stand that on 17.06.2014, he received a phone call from Neelam that Laxmikant was beating her due to the quarrel. On receipt of the said phone, he started proceeding towards the matrimonial home of Neelam on a scooty and he also gave a call to his friend Mahender Kaushik as he was residing in the same locality. The accused Veer Singh has further stated that he reached at the matrimonial house of Neelam between 03:00-04:00 PM and when he reached in the room of Neelam, she was found to be present along with Laxmikant. He tried to pacify Laxmikant but Laxmikant took out the pistol from the cover of the same and started brandishing it while stating that "sabko maar dunga, nahi to apne aap ko maar lunga". The accused Veer Singh has further stated that at the time of brandishing his pistol, the deceased Laxmikant started waving the same from his face to chest and pulled the trigger of the same, due to which, he received bullet injury in his lower abdomen. At that time, SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 26 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:08 +0530 Laxmikant was in a drunken state. The accused Veer Singh has again stated that he does not know as to on which part of the body, Laxmikant received bullet injury but his wearing clothes smeared with blood. After receiving the bullet injury, Laxmikant fell down on the floor.
46.The relevant part of the cross-examination of the above said witnesses shall be discussed during the later part of this judgment.
47. I have carefully gone through the entire material available on record and heard the submissions of the ld. Counsels for the accused persons and that of the ld. Addl. PP for the State. I have also meticulously perused the brief arguments in writing placed on record by the ld. Counsel for the accused Mahender Kaushik.
48. It is well settled law that the burden to prove its case, lies on the shoulders of the prosecution. Every accused person is to be presumed innocent until proved guilty. The burden of proof lies on the prosecution to prove its case by leading cogent, convincing and reliable evidence. The accused cannot be convicted merely on the basis of probabilities or presumptions. Suspicion, howsoever grave, cannot take the place of proof. The benefit of doubt has to be given to the accused.
49. The present case, as per the version of the prosecution, is squarely based upon the ocular version of the three main and star witnesses namely PW12 Kishan Lal(complainant himself and father of the deceased), PW20 Jatin Nagar(brother of the deceased) and PW21 Smt. Veena Nagar(mother of the deceased). Besides the above said three eye-witnesses to the incident in question which took place SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 27 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:15 +0530 on 17.06.2014 at about 04:30 PM, the testimony of PW7 Dr. M.K. Panigarhi who conducted the postmortem on the dead body of the deceased on 18.06.2014 and who proved on record his report Ex. PW7/A is there on record. The testimony of the other medical witness PW17 Dr. Dhananjay, the then, CMO of Hindu Rao Hospital who proved on record the MLC No. 4085/2014 Ex. PW17/A is also there on record. Ld. Addl. PP for the State has argued that besides the above said medical witnesses, the testimonies of the forensic witnesses and particularly that of PW25 Mr. Puneet Puri(ballistics) is also there on record. It has been argued by the ld. Addl. PP for the State that the ocular version of the eye-witnesses is corroborated by the medical witnesses and the forensic witnesses. Ld. Addl. PP for the State has argued that the prosecution has been able to prove the guilt of the accused persons namely Veer Singh and Mahender Kaushik u/s 302/34 IPC beyond any reasonable doubt.
50. Whereas, on the other hand, the accused Veer Singh, who has examined himself as DW2 in his defence evidence has taken up a categorical stand to the effect that he reached at the matrimonial house of Neelam at 03-04 PM on 17.06.2014 and when he reached at the room of Neelam, she was found to be present along with her husband Laxmikant who is the deceased. The accused Veer Singh has further taken the defence that he tried to pacify and make understand the deceased Laxmikant but in the mean time, Laxmikant took out the pistol from the cover of the same, the hook of which was hanging with his wearing pant and after taking SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 28 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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out the pistol, the deceased Laxmikant started brandishing it while stating that "sabko maar dunga, nahi to apne apko maar lunga".
The deceased Laxmikant started waving the pistol from his face to chest and pulled the trigger of the same due to which he received bullet injury in his lower abdomen. DW2 Veer Singh, in his defence evidence, further states that at that time, Laxmikant was in a drunken position. DW2 has again stated that he does not know as to on which part of the body, Laxmikant received bullet injury but his wearing clothes smeared with blood. After receiving injury, Laxmikant fell down on the floor.
51. The sum and substance of the defence taken by the accused Veer Singh is that the deceased Laxmikant snatched the pistol from the accused Veer Singh, started brandishing it from his face to chest and pulled the trigger of the same, as a result of which, the deceased Laxmikant received bullet injury and he died. As such, in the considered opinion of this court, the accused Veer Singh has categorically admitted his presence at the spot of the crime on 17.06.2014 at about 04:30 PM in the matrimonial home of his daughter Neelam. The accused Veer Singh has also admitted that he was having a licensed pistol, the license of which was in his name and the license has been proved on record by PW19 HC Ajay Kumar as Ex. PW19/B. The accused Veer Singh as per his defence, has also admitted that the bullet was fired from the licensed pistol, which he was carrying with him on 17.06.2014.
52. The accused Mahender Kaushik who has examined himself in his defence evidence as DW1 has taken up the defence that on SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 29 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:26 +0530 17.06.2014, when he was returning from his duties, then, at about 03-04:30 PM, he received a call from the co-accused Veer Singh to the effect that his daughter was being beaten by her husband and thereafter, he came to know about 05:00 PM on 17.06.2014 that the deceased Laxmikant had received a gunshot injury. DW1 has further stated that from the gate of his colony, he was watching that a mob had gathered outside the house of the deceased Laxmikant. The accused Mahender Kaushik has further stated that on 17.06.2014, his duty was at Bangla no. 153, North Avenue, being an employee of the Delhi police. The accused Mahender Kaushik has taken up the plea of alibi to the effect that on 17.06.2014, he did not go to the matrimonial home of Neelam to confirm as to whether she was beaten by her husband.
53. In these circumstances, in the light of the above said case of the prosecution, the defence put up by both the accused persons, this court has to consider and see as to whether the prosecution has been able bring home the guilt of the accused persons beyond any reasonable doubt, the standard which is applied in criminal cases or as to whether the accused Veer Singh has been able prove his defence to the effect that the bullet got fired in the scuffle by the deceased Laxmikant himself or as to whether the accused Mahender Kaushik has been able to prove plea of his alibi to the effect that he was not present at the matrimonial home of Neelam on 17.06.2014 at about 04:30 PM, when the incident of firing of the bullet took place.
SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 30 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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54. OCULAR EVIDENCE OF THE THREE MAIN STAR WITNESSES OF THE PROSECUTION WHO ARE THE EYE- WITNESSES TO THE INCIDENT IN QUESTION:-
i. As stated hereinabove, PW12 Kishan Lal, the father of the injured and the complainant; PW20 Jatin Nagar, the brother of the deceased Laxmikant Nagar and PW21 Smt. Veena Nagar, the mother of the deceased are the three main and star witnesses of the prosecution who are also the eye-witnesses to the incident in question.
ii. Coming to the testimony of PW12 Kishan Lal, this witness has deposed on the lines of his complaint Ex. PW12/A, on the basis of which, the FIR in question was lodged. PW12, in his examination-in-chief, has stated that on 17.06.2014 at about 02:00 PM, his son Laxmikant aged about 26 years came back to his home from his office and he remained for a period of 10- 15 minutes at home. Thereafter, he left the house to bring some eatables along with his daughter namely Divya aged about 2 ¾ years. After about 15-20 minutes, Laxmikant along with his daughter and eatables came home, went inside his room and started eating. During eating, some hot altercations started in between Laxmikant and Neelam. During the altercation, the voice of Laxmikant was heard, who was saying "tune mere 150 rupaye kharch karva diye aur ab khana nahin kha rahi, yeh 150 rupaye tera baap dega". Thereafter, Neelam made a call to her father Veer Singh. In the meantime, both the children of Laxmikant came out from the room and went to their SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 31 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:37 +0530 grandmother. Thereafter, Laxmikant and Neelam started talking to each other inside the room. At about 04:00 PM, the wife of PW12 was standing at the balcony and she told that the accused Veer Singh and Mahender Kaushik had come on their scooter to their house. Thereafter, both the accused Veer Singh and Mahender Kaushik(present in the court on that day and correctly identified by PW12) came to their house and his son Jatin Nagar opened the door and he greeted them. At that time, PW12 was standing at the gate of Drawing cum Dining room and he also greeted both the accused persons. Accused Mahender Kaushik asked PW12 as to what was going on. PW12 told Mahender Kaushik to talk to Laxmikant by going in their room. Thereafter, both the accused persons proceeded 2-3 steps towards the room of Laxmikant and Neelam. At that time, Laxmikant was wearing his pant and he also greeted both the accused persons. In the meantime, Mahender Kaushik asked accused Veer Singh by saying "maar sale ko". On that, accused Veer Singh fired gunshot on Laxmikant and immediately pointed his pistol towards PW12. At that time, PW12 was standing about 5-6 steps at his back and so that he could not apprehend them. Thereafter, both the accused persons ran away. PW12 immediately rushed to his son Laxmikant who was writhing in pain lying on the floor of his room and he had received gunshot injuries on his chest and blood was oozing from his mouth and nose. Some blood was also strewed on his wearing shirt and upper portion of his wearing pant. Laxmikant SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 32 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:42 +0530 expired within 5-7 minutes at the spot. After sometime, PW12 made 2-3 calls to the police on 100 number from his mobile 9871186703. After some time, police reached at the spot and he briefed the police officials regarding the incident. His son Jatin Nagar, his wife Veena, Neelam and both his grand daughter and grandson were present at the spot and they had seen the incident in question. The police officials took the dead body of his son to the hospital in CATS ambulance. Two police officials remained at the spot and thereafter, inspector Rathi(IO of the case) reached at the spot and he along with one Constable, who was already at the spot, left the spot for hospital. Police officials of PS Sarai Rohilla also came to the spot. Mobile crime team also reached at the spot, inspected the spot and took the photographs of the scene of the crime. IO recorded his statement Ex. PW12/A, which was bearing his signatures at point A. Thereafter, the police officials conducted their proceedings at the spot. IO lifted the dried blood lying on the floor by scratching the same with the help of a blade and kept the same in one plastic transparent container, sealed the container with the seal of DSR and seized the same vide seizure memo Ex. PW12/B. IO also seized the marble having the blood stains of his son vide seizure memo Ex. PW12/C, the broken marble piece vide seizure memo Ex. PW12/D. IO prepared the site plan Ex. PW12/E at the instance of PW12.
iii. PW12, in his examination-in-chief, has further stated that on 18.06.2014, he identified the dead body of his son at Hindu SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 33 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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Rao Hospital in the presence of IO and IO recorded his statement Ex. PW12/F. The handing over memo pertaining to the dead body of the deceased has been exhibited as Ex. PW12/G. PW12 has further stated that on 27.06.2014, IO prepared the scaled site plan Ex. PW12/H at his instance. iv. PW12, in his examination-in-chief, has further stated that copy of the FIR was not given to him and so, on 21.06.2014, he visited PS Sarai Rohilla to take the copy of the FIR but the police officials told him that copy of the FIR was sent to him by post 1-2 days earlier. He told the police officials that copy of the FIR was not received by him and when the concerned police official checked the register, it was found that copy of the FIR was sent at the address of accused Veer Singh. Thereafter, the copy of the FIR was supplied to PW12 on 21.06.2014. After reaching at home, PW12 read the FIR and found that some facts were missing from the FIR which were stated by him at the time of giving his statement to the police on 17.06.2014. Thereafter, PW12 filed the complaint with the Commissioner of Police, copy of which was exhibited as Ex. PW12/I. Copies of the complaints were also sent by PW12 to the Special Commissioner of Police Crime Branch, Special Commissioner of Police Vigilance, Special Commissioner of Police Law & Order, the Lt. Governor, Director CBI, Joint Commissioner of Delhi Police etc. and copies of the same were exhibited as Ex. PW12/J to Ex. PW12/O. Thereafter, accused Mahender Kaushik was arrested after 71 days i.e. on SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 34 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:45:54 +0530 27.08.2014. PW12 correctly identified the six pieces of marble lifted from the room of his deceased son as Ex. PW12/1; the dried blood scratched from the spot as Ex. PW12/2 and the wearing clothes of his deceased son i.e. T Shirt of Black Colour, one blue jeans pant and one underwear as Ex. PW12/3.
PW12 also identified the control sample marble which was exhibited as Ex. PW12/4.
v. In the cross-examination done by the ld. Counsel for the accused Mahender Kaushik, PW12 has admitted it to be correct that the FIR in the present case was registered on the basis of his statement. However, PW1 has denied the suggestion that Ex. PW12/A was written by him and thereafter, he handed over the same to IO. PW12 has further stated that the outsiders had come to his home after arrival of the police but he could not specify their number. PW12 has further stated that he was a graduate. PW12 has further stated that he had not filed any Protest Petition regarding the missing facts in the FIR in any court. PW12 has further stated that the statement of his daughter Neelam was recorded at his home but her statement was not recorded in his presence. PW12 has denied the suggestion that he had falsely implicated the accused Mahender Kaushik. PW12 has further stated that his son Laxmikant was working as Salesman at garment shop at Shastri Nagar but he did not know the complete details about the terms of his employment including the name of his employer but he was getting the salary of approximately of Rs.
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15,000/- to Rs. 20,000/- per month. PW12 has further stated that after the marriage Laxmikant along with his family was residing with him since June 2011. PW12 has further stated that he was opposed to the marriage at the time of the marriage but by way of volunteer, PW12 has stated that subsequently his relations with PW12 became normal and therefore, PW12 had accepted their marriage. PW12 has admitted it to be correct that neither he himself nor his wife nor his son tried to bring Neelam and his son Laxmikant to his house. PW12 has denied the suggestion that nothing incriminating against the accused Mahender Kaushik was disclosed by him to the police till 27.07.2014. PW12 has further stated that his statements were recorded by the police on 17.06.2014, 18.06.2014 and also on 27.07.2014. He does not remember if his statement was recorded on 24.06.2014. PW12 has admitted it to be correct that he has already filed a suit under the Guardianship Act for the custody of his two grandchildren of his deceased son Late Sh. Laxmikant. PW12 has denied the suggestion that the deceased Laxmikant was heavily drunk when he reached home on 17.06.2014. PW12 has further stated that he heard the sound of firing at about 04:00 PM. PW12, by way of volunteer, has further stated that both the accused had come to the house, got opened the door and within one minute, committed the offence of murdering his son and left the house. PW12 has further stated that the distance in between his house and the house of the accused Mahender Kaushik is of 5-7 minutes. PW12 has SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 36 of 82 Digitally signed by RAJ RAJ KUMAR KUMAR Date:
2024.11.28 16:46:05 +0530 further stated that on 18.05.2014, both the accused persons had visited his house together in his absence. PW12 has admitted it to be correct that the words "maar sale ko" had not been mentioned in his statement Ex. PW12/A. By way of volunteer, PW12 has stated that he has already explained the said fact. PW12 further states that the statement of Neelam was recorded u/s 164 of the Cr.P.C.. PW12 has admitted it to be correct that Gaurav, son of Neelam was with him during the recording of the statement of him. PW12 has denied the suggestion that complaint Ex. PW12/I is a manipulated document. PW12 has denied the suggestion that Mahender Kaushik had come to their house ten minutes prior to arrival of accused Veer Singh at their house.
vi. In the cross-examination of PW12 done by ld. Counsel for the accused Veer Singh, PW12 has stated that the the deceased was not a habitual drunkard but he was taking beer occasionally. PW12 has further stated that the deceased had taken liquor on the day of incident in question. The marriage certificate of Neelam and Laxmikant has been exhibited as Ex. PW12/DX1 during the cross-examination of PW12. PW12 has further stated that the house of the accused Veer Singh is situated at a walking distance of ten minutes from his house. PW12 has further stated that he does not know the exact time when Neelam had called her father on day incident in question. He also does not know the approximate duration prior to the incident when Neelam had called her father. PW12 further SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 37 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:46:10 +0530 states that he does not know the mobile number of Neelam. PW12 further states that he had called his friend Kaptan Singh from his mobile phone number 9871186703 for coming to the spot after the incident in question. PW12 further states that he did not remember the mobile number of Kaptan Singh but the same was feeded in his mobile phone. PW12 has further stated that at the time when accused Veer Singh came to their house he was at the gate of Drawing/ Dining hall of his house which was situated on the right side of the main entrance of their house. PW12, by way of volunteer, has further stated that both the accused had come together. PW12 was lying on his folding bed in the said room and he had stood up when he came to know that the accused had come to their house. PW12 has further stated that the deceased Laxmikant was in his room at the time of the incident but Neelam was not present inside the room when the incident took place. PW12 has further stated that when Mr. Rathi(IO of the case) got his signatures at the spot, he had not read the contents of the documents signed by him at that time. By way of volunteer, PW12 has stated that he was emotionally weeping. PW12 has denied the suggestion that he had signed Ex. PW12/A only after reading the same. PW12 has denied the suggestion that when the accused Veer Singh came to his house, the deceased was abusing him and his wife in a loud voice. PW12 has denied the suggestion that Veer Singh had gone to the room of the deceased and tried to pacify him but the deceased replied that he was fed up with his life SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 38 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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and wanted to end his life. PW12 has denied the suggestion that the deceased tried to snatch the pistol of Veer Singh to which Veer Singh resisted and during this process of snatching and resisting, the pistol of Veer Singh went off and hit the deceased and due to this reason Veer Singh left the place being frightened and went to his house.
vii. PW20 Sh. Jatin Nagar, the brother of the deceased has deposed on the same lines, in his examination-in-chief, on which PW12, the father of the deceased, has deposed. PW20 has stated that the eatable which was brought by his deceased brother was Dosa.
viii.In the cross-examination, PW20 has stated that the bullet had hit his brother on the left side of his chest. PW20 has further stated that he was standing towards the left side of his brother at that time when he tried to help him. He had given his statement to the police. He had stated this fact to the police. By way of volunteer, PW20 has stated that police had orally enquired him in this regard. During the testimony of this witness, the statement of this witness recorded u/s 161 of the Cr.P.C. was exhibited as Ex. PW20/DA. PW20 has further stated that the whole incident i.e. when accused persons entered in their house, fired the bullet and fled away from the spot took about three minutes. PW20 has denied the suggestion that he was not present at the place of incident at the time of occurrence of the incident. PW20 has further stated that his brother was taken on a stretcher from the spot and he was in SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 39 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:46:29 +0530 the house to take care of his mother as she became unconscious. PW20 has further stated that his statement was recorded by the IO only once i.e. on 24.06.2014. PW20 has further stated that he had seen and read his statement but he did not remember as to whether he had signed it or not. PW20 has further stated that his statement was handwritten by the IO. PW20 has further stated that when the copy of FIR was received, it was discussed in their house by his father with the son of his Tauji and they pointed out that the above said fact was missing. PW20 has further stated that complaints to the higher authorities were given by his father after 24.06.2014. PW20 has further stated that accused Veer Singh and Mahender Kaushik had come together to their house. Accused Mahender Kaushik came first followed by accused Veer Singh. PW20 further states that his father was in the Drawing Room at that time and accused Mahender Kaushik asked his father "Kishan Lal ji kya hua". PW20 has further stated that when accused Veer Singh came, his brother Laxmikant was in his bedroom and his bhabhi Neelam was near the cooler which was outside their bed room. PW20 has denied the suggestion that her Bhabhi Neelam was with the deceased Laxmikant in their bedroom. PW20 has denied the suggestion that Laxmikant tried to snatch the pistol of accused Veer Singh to which the accused Veer Singh resisted and during this process of snatching the pistol, its trigger went off and hit the deceased and due to this reason, accused Veer Singh got frightened and left the place of SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 40 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:46:36 +0530 incident. PW20 has denied the suggestion that he had not seen the incident. PW20 has admitted it to be correct that his brother Laxmikant had married against the wishes of his family. ix. PW21 Smt. Veena Nagar, the mother of the deceased has also deposed on the same lines on which PW12 and PW20 have deposed.
x. In the cross-examination, PW21 has stated that her statement was recorded after passing of 2-4 days of the incident. PW21 has further stated that when the bullet was shot, at that time, she was in Kitchen with the children of the deceased. By way of volunteer, PW21 states that she had gone to the balcony with the kids as well. PW21 has further stated that she had seen the accused firing the bullet. PW21 has further stated that there was no wall in between herself and the place where the accused at that time was standing and deceased was shot dead. PW21 has further stated that her husband called at 100 number in her presence. PW21 has further stated that the entire incident i.e. coming of both the accused Veer Singh and Mahender Kaushik, firing the bullet, their retiring from the spot took hardly less than five minutes. PW21 has further stated that when she saw that the bullet was fired and hit his son, she ran towards balcony. PW21 has admitted it to be correct that she had not given birth to the deceased Laxmikant. During the cross- examination of this witness, the statement of this witness has been exhibited as Ex. PW21/DX1. PW21 has further stated that she had seen that Laxmikant was being taken to the hospital on SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 41 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:46:41 +0530 a wheelchair. PW21 has admitted it to be correct that at the time of the incident, Laxmikant was in his bedroom and that his wife Neelam was also with the deceased Laxmikant in his bed room at the time of the incident. PW21 has admitted it to be correct that the deceased Laxmikant and Neelam had married against the wishes of their family. xi. The question, as to how, the ocular testimony of the witnesses has to be appreciated by a court has been discussed in detail in the judgment titled as Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Haryana cited as 2022 Live Law (SC) 596, relied upon by the ld. Addl. PP for the State. In the said judgment, the Hon'ble Apex court of the Land has summarized in brief the principles governing the appreciation of ocular evidence in para no. 27 thereof as under:-
" 27. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 42 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:46:46 +0530 trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
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KUMAR 2024.11.28 16:46:52 +0530 XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. "
xii. During the course of arguments, ld. Counsel for the accused Veer Singh has argued that PW12(father of the accused), PW20 Sh. Jatin Nagar(brother of the deceased) and PW21 Smt. Veena Nagar(mother of the deceased) failed to call any doctor or failed to take the deceased to the doctor which goes to show that the above said three witnesses were not present at the spot. It has been further argued that as per the testimonies of the above said witnesses, the deceased Laxmikant Nagar was in the process of wearing the pant but in the PM report, the belt of the deceased has been recovered which goes to show that the pant was already worn by the deceased. It has been further argued that the words 'maar sale ko' have not been mentioned even in the supplementary statement of the complainant PW12 Sh. Kishan Lal which was recorded on the same date i.e. on SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 44 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:46:58 +0530 17.06.2014. It has been further argued that the above said three witnesses were not present at the spot. It has been further argued that there is inconsistency in the statement of the above said witnesses as PW 20 Sh. Jatin Nagar has stated that the deceased was taken on a stretcher from the spot to the hospital but PW21 Smt. Veena Nagar has stated that the deceased was taken to the hospital on a wheelchair.
xiii. Ld. counsel for the accused Mahender Kaushik, in the written arguments, filed on record by him on the aspect of the ocular evidence of the above said three witnesses, has argued that the testimonies of the above said three witnesses do not seem to be reliable and credible in view of the inconsistencies contained in their respective testimonies. It has been further argued that the accused Mahender Kaushik was not present at the spot at the time of commission of the offence.
xiv. As stated hereinabove, the law pertaining to the appreciation of the ocular evidence has been summed up by the Hon'ble Apex Court of the Land in the above stated judgment titled as Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Haryana cited as 2022 Live Law (SC) 596(supra). Needless to mention that in the case in hand, all the above said three eye-witnesses to the incident in question have been cross-examined at length on various dates. As such, minor discrepancies on trivial matters are bound to occur but this court has to see as to whether the minor discrepancies are touching the core of the matter or not. In the opinion of this court, all the above said SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 45 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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three witnesses, who are the eye-witnesses to the incident in question have categorically deposed that both the accused persons namely Veer Singh and Mahender Kaushik were present at the spot i.e. in the matrimonial home of Neelam( daughter of the accused Veer Singh) at about 04:00- 04:30 PM on 17.06.2014 and the accused Veer Singh, at the instigation of the accused Mahender Kaushik, had given a gunshot on the chest of the deceased Laxmikant Nagar from his licensed weapon(the license in respect of the pistol of Veer Singh has been proved on record as Ex. PW19/B by PW19 HC Ajay Kumar), as a result of which, the deceased expired. I have no hesitation to hold that the testimonies of the above said three witnesses is consistent, streamlined and corroborative of each other on the above said aspect of the matter and on the aspect that the gunshot was given by the accused Veer Singh upon the person of the deceased at the instigation of the accused Mahender Kaushik. I am of the opinion that the testimony of the said three main and star witnesses of the prosecution is not only trustworthy and reliable but the same is natural as well as the above said witnesses have categorically stated that the deceased Laxmikant Nagar had performed the marriage with PW14 Neelam against their wishes. I have no hesitation to hold that there is nothing on record to suggest that the above said three witnesses were not present at the spot at the time of commission of the crime and that they are not the eye-witnesses to the incident in question.
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55. TESTIMONY OF PW14 Ms. Neelam:-
i. During the course of arguments, ld. Counsels for both the accused persons have placed much reliance on the testimony of PW14. Ld. Counsels for the accused persons have vehemently argued that PW14 Ms. Neelam, the daughter of the accused Veer Singh has resiled from his previous statement. It has been further argued that PW14 Neelam has categorically stated that she was forced by her in-laws and other matrimonial relatives to give her statement u/s 164 of the Cr.P.C. before the ld. MM. Ld. Counsel for the accused Veer Singh has argued that statement of Neelam was not recorded by the IO on 17.06.2014.
ii. It has to be seen that the testimony of Neelam w/o the deceased has been recorded at length as PW14. In her examination-in- chief, PW14 has categorically stated that on 17.06.2014, at about 02:30 PM at her matrimonial home i.e. at 230, third Floor, Vivekanandpuri, Sarai Rohilla, her husband Laxmikant came in a drunken condition to the home and thereafter, he left along with his daughter Divya for bringing some eatables. Her husband returned back with some eatables and asked her to eat the same but she was not hungry. Her husband Laxmikant got angry and gave a fist blow on the nose of PW14. PW14 gave a call to her father as at about 03:00 PM, as blood was continuously oozing out from her nose. Accused Mahender Kaushik who has been called as uncle by PW14(correctly identified by PW14 on the day of his deposition in the court) SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 47 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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came to her matrimonial home and he started talking with her father-in-law. PW14 has further stated that after 5-7 minutes, her father Veer Singh also came to the home and at that time, she along with her husband Laxmikant were in their bed room. Accused Veer Singh tried to pacify her husband but he did not pay any heed to his advice and he tried to snatch his father's licensed pistol but the pistol went off during the scuffle and her husband fell on the ground.
iii. Needless to mention that PW14 has categorically stated that her statement u/s 164 of the Cr.P.C. was recorded in the presence of the ld. MM on 30.07.2014. The statement of PW14 u/s 164 of the Cr.P.C. has been exhibited as Ex. PW14/A. In her statement recorded u/s 164 of the Cr.P.C., PW14 has categorically supported the case of the prosecution in its entirety to the effect that the accused Veer Singh had given a gunshot on the chest of her husband on 17.06.2014 on the instigation of the accused Mahender Kaushik. The prosecution has examined the ld. MM as PW23 who has proved on record the statement of PW14 recorded u/s 164 of the Cr.P.C. as Ex. PW14/A. iv. It is true that in the exculpatory part of her statement, PW14 has resiled from the previous statement to the effect that it was the accused Veer Singh who had given a gunshot injury to her husband on the instigation of the accused Mahender Kaushik but to my mind the inculpatory part of her statement on the aspect of the presence of the accused persons in the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 48 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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matrimonial home of PW14 can be used against the accused persons.
v. This court cannot loose site of the fact that the incident took place on 17.06.2014. The first statement of PW14 u/s 161 of the Cr.P.C. was recorded by the IO on 17.06.2014 itself as Ex. PW14/P-1 and her statement u/s 164 of the Cr.P.C. was recorded on 30.07.2014. PW14 has categorically stated in her examination in chief that on 26.11.2014, she returned to her paternal home and thereafter, she resiled from her previous statement on the aspect of firing of the bullet by the accused Veer Singh on the instigation of the accused Mahender Kaushik, in her statement recorded in the court w.e.f. 09.06.2016.
vi. A careful perusal of the entire examination-in-chief and cross-
examination of PW14, to my mind, irresistibly reveals that accused Mahender Kaushik was having friendship with the accused Veer Singh and that the son of accused Mahender Kaushik was employed in a separate business by the accused Veer Singh. In her complaint to the police dated 29.11.2014 Ex. PX, the factum of the refusal on the part of PW14 to eat the eatables etc. has not been mentioned. Nothing has been proved on record by PW14 to show that she was given a fist blow by her deceased husband and that blood started oozing out from her nose. To my mind, the exculpatory part of the testimony of PW14 is otherwise also, not reliable and trustworthy as the same does not inspire the confidence of the court, if seen, in SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 49 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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the entirety of the cross-examination of PW14. PW14 has stated that she does not know if Mahender Kaushik is the best friend of her father but she calls the accused Mahender Kaushik as her uncle. She further states that she does not know if Jojo son of Mahender Kaushik was learning the work of Tractor Filter with her father and in the month of June, her father got him started his separate work at Anand Parbat.
56. The presence of the accused Veer Singh and Mahender Kaushik on the scene of the crime at about 04:30 PM on 17.06.2014:-
i. I am of the opinion that the testimony of the three star witnesses of the prosecution PW12, PW20 and PW21 is consistent on the aspect of the presence of the above said two accused persons on the scene of the crime at the relevant date and time. Even PW14, whose testimony has been heavily relied upon by the accused persons, has also categorically deposed about the presence of the accused persons at her matrimonial home which is the scene of the crime on the date and time of the incident. The testimony of PW23A SI Yashender, PW26 IO Inspector Devender Rathi, to my mind, also corroborates the version of the eye-witnesses to the effect that the co-accused persons were present at the spot on the relevant date and time. ii. It has to be seen that the accused Veer Singh has categorically admitted his presence at the scene of the crime on the date and time of the incident in question. Ld. Counsel for the accused Mahender Kaushik during the cross-examination of PW12 carried out on 06.04.2016 has given a suggestion that accused SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 50 of 82 Digitally signed by RAJ RAJ KUMAR KUMAR Date:
2024.11.28 16:47:38 +0530 Mahender Kaushik had come to his house ten minutes prior to the arrival of accused Veer Singh which clearly indicates the submission of the accused Mahender Kaushik to the effect that he was not present at the spot of the crime on the date and time of the incident.
57.Medical & Forensic Evidence:-
i. The prosecution has examined Dr. Dhananjay, CMO, Hindu Rao Hospital as PW17 who examined the dead body of the deceased and prepared the MLC NO. 4085/2014 and he has proved on record the MLC as Ex. PW17/A which states that the deceased was brought dead to the hospital. The prosecution has also examined PW7 Dr. Panigarhi, Head Forensic Medicine from Hindu Rao Hospital who conducted the postmortem on the dead body of the deceased Laxmikant Nagar on 18.06.2014. The PM report of the deceased has been proved by this witness as Ex. PW7/A. PW7 has categorically stated that the death was caused due to haemorrhage and shock consequent to gunshot injuries mentioned in the PM Report. All the injuries were ante-mortem in nature and external injury no. 1 was the gunshot entry wound which could have been caused due to penetration by a bullet discharged from fire arm due to firing and was sufficient to cause death in ordinary course of nature. External injury no. 2, 3 and 4 could have been caused by the blunt force impact from a hard object/ surface. The track of the external injury no. 1 has also been given in detail. It has been mentioned by PW7 that the track of the wound was measuring about 20 cm long and the direction of SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 51 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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the track of the wound was from before backward, downwards and from left to right side. As per the PM report, there was no burning, seinging, blackening or tattooing found around the wound.
ii. PW25 Mr. Puneet Puri, Asstt. Director from Ballistics has also given a categorical finding to the effect that the bullet mark Ex. EB1, which was recovered from the dead body of the deceased was discharged from the pistol Ex. F1.
iii. During the course of arguments, ld. Counsel for the accused Veer Singh and ld. Counsel for the accused Mahender Kaushik as well have argued that the trajectory of the projectile was downwards which shows that the bullet was fired downwards. It has to be seen that in the reknowned book of MODI on Medical Jurisprudence and Toxicology at page no. 650 while discussing the distance of the firearm, it has been observed as under:-
"Distance of the Firearm-- If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/ particully burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shorgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue, no distinction can be made between one distant shot and another, as far as distance is concerned. Scorching in the case of latter firearms is observed within a few inches, SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 52 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:47:48 +0530 while some evidence of scorching in the case of shotguns may be found even at one to three feet. Wetting of the skin or clothes by rain reduces the scorching range. Blackening is not affected by wet surface although it can easily be removed by a wet cloth. Blackening with a high power rifle can occur up to about one feet."
iv. In the light of evidence of PW7 and PW25, I am of the opinion that it has been proved on record that the bullet in question was fired from a distance and the same was not shot from very close range. The absence of burning, seinging, blackening or tattooing around the wound categorically show on record that the bullet was fired from a distance and the submission of the ld. Counsel for the accused that the bullet was fired in a scuffle is belied.
58.Testimonies of the Police Witnesses:-
i. Testimonies of PW23A ASI Yashendra, PW26 IO Inspector Devender Rathi, to my mind, is in consonance with the case of the prosecution and on the lines of the investigation carried out by the PW26 IO Inspector Devender Rathi. PW23A and PW26 IO of the case have been cross-examined at length by the ld. Counsels for the accused persons but I am of the opinion that both the above said witnesses have withstood the test of cross- examination and their testimonies are not shaken even in their cross-examinations on the material aspects of the matter. ii. During the course of arguments, ld. Counsels for the accused persons have argued that there are contradictions in the submissions of PW23A ASI Yashendra and PW26 IO Retd. Inspector Devender Rathi as to by whom the statement of PW12 Kishan Lal was recorded but to my mind as stated SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 53 of 82 Digitally signed by RAJ RAJ KUMAR Date:
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hereinabove, minor contradictions which do not go to the root of the matter are of no significance.
iii. Testimonies of the rest of the police officials such as PW2 DO HC Hari Chander who recorded the FIR, DD entries as well, PW4 SI Zile Singh, posted with the PCR who reached at the spot first are also streamlined, corroborative of each other and in consonance with the case of the prosecution. To my mind, no dent is caused by the accused persons during the cross- examination of the above said witnesses. iv. PW11 is HC Veer Sen MHC(M) posted with the PS Sarai Rohilla ad this witness has testified about the sealed pullandas which were handed over to him by the IO and has categorically deposed that no tampering was done with the sealed pullandas till the time, the same remained in his possession. PW24 HC Arvind has also categorically deposed about the depositing of the sealed pullandas with FSL and during the cross- examination of this witness, I am of the opinion that his testimony is also not shaken.
v. PW13 is Ct. Irshad, the photographer of the Mobile Crime Team and this witness proved on record the nine photographs from the spot of the crime as Ex. PW13/1 to Ex. PW13/9. No dent has been caused to the testimony of this witness during the cross-examination, in the considered opinion of this court. PW22 is SI Nagender Giri, the Incharge of the Mobile Crime Team who has proved on record his report Ex. PW22/A has also supported the case of the prosecution.
SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 54 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:00 +0530 vi. In the nutshell, the testimonies of the police officials as well, in the opinion of this court, is streamlined, corroborative of each other and is in consonance with the case of the prosecution. During the cross-examination of the police officials as well, to my mind, the testimonies of the police officials have not been shaken at all on the material aspects of the case of the prosecution.
59.Identity Of The Dead Body:-
i. PW6 Kishor Kumar, brother-in-law of the deceased identified the dead body of the deceased vide his statement Ex. PW6/A and the father of the deceased Sh. Kishan Lal who has been examined as PW12 also identified the dead body of the deceased vide his identification statement Ex. PW12/F.
60.CONDUCT OF THE ACCUSED PERSONS:-
i. The consistent stand of the accused Veer Singh is that after the firing of the bullet in the scuffle, he got frightened and fled away from the spot. The ocular version of the eye-witnesses is consistent that both the above said accused persons fled away from the spot after the incident of firing. Accused Veer Singh was arrested on the same day by the IO of the case from his house i.e. on 17.06.2014 itself. PW14 Neelam was also given suggestions time and again during her cross-examination to the effect that both the above said accused persons fled away from the spot and PW14 has either kept mum or given the evasive answers which shows that even PW14 has admitted that both the accused persons had fled away from the spot after the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 55 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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incident in question. As such, I am of the opinion that the conduct of the accused persons in fleeing from the spot of the crime immediately after the incident of firing becomes relevant under Section 8 of the Indian Evidence Act and the same leads credence to the case of the prosecution.
61.NON-EXAMINATION OF PUBLIC WITNESSES:-
i. During the course of arguments, ld. Counsel for the accused persons have also vehemently argued that no independent and public witness has been examined by the prosecution. It has to be seen that the incident in question took place on 17.06.2014 in the matrimonial home of Neelam PW14 and at the house of the complainant PW12 Kishan Lal. Except the family members, no one was present there in the said house from outside, at that time. The court while appreciating the evidence has to take into consideration the place of occurrence along with the attending circumstances. Related witnesses can also be natural witnesses and if the offence is committed within the precincts of the family members then, the testimonies of the family members cannot be thrown out as they assume the position of natural witnesses. On this aspect, the Hon'ble Apex Court of the Land in the matter titled as Rajesh Yadav & Anr. Vs. State of UP cited as 2022 LiveLaw(SC) 137 in para no. 25 thereof has held as under:-
"28. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 56 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:10 +0530 witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. "
ii. In the light of the ratio of the above stated judgment and the facts and circumstances involved in the present matter, I have no hesitation to hold that the submission ld. Counsels for the accused persons that no independent or public witnesses have been examined by the prosecution does not hold much water.
62.RECOVERY OF WEAPON OF OFFENCE I.E. THE PISTOL FROM THE HOUSE OF THE ACCUSED VEER SINGH:-
i. During the course of arguments, ld. Counsel for the accused Veer Singh has vehemently argued that no independent witness was joined by the IO at the time of recovery of the pistol and as such, the recovery becomes doubtful.
ii. It has to be seen that in the case in hand, PW17(who was later on given no. as PW18) Ct. Brijpal, PW23A SI Yashendra and PW26 Retd. Inspector Devender Rathi IO of the case are the three main witnesses to the recovery of the pistol. PW17/ PW18 Ct. Brijpal has categorically stated that accused Veer Singh got recovered one pistol along with five live cartridges which was kept under the pillow lying on the bed of his room. The seizure memo of the pistol along with the cartridges has been exhibited as Ex. PW17/E. The sketch of the pistol, magazine, cartridges has been exhibited as Ex. PW17/D. Ct. Brijpal has categorically identified the pistol which was exhibited as Ex. P17/1, the five cartridges which were SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 57 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:16 +0530 exhibited as Ex. P17/2 and the two testfired bullets as Ex. P17/3. The testimonies of PW23 SI Yashendra and PW26 IO of the case are in corroboration and in consistence with the testimony of PW17/ PW18 Ct Brijpal on the aspect of recovery of the pistol and the live cartridges. No dent has been caused to their testimonies, even during their lengthy cross-examinations by the ld. Counsels for the accused persons, in the opinion of this court.
iii. This court cannot loose sight of the fact that accused Veer Singh was arrested from his house on 17.06.2014 i.e. on the date of the incident itself and it was his son Lokesh who had opened the door. No public witness or independent witness was available at that time. PW25 Mr. Punit Puri, Asstt. Director(Ballistics) from FSL has categorically stated that the bullet marked Ex. EB1 was discharged from the pistol marked Ex. F1. Admittedly Accused Veer Singh was having a licensed pistol and the license has been proved on record as Ex. PW19/B. As such, I am of the opinion that the recovery of the pistol, in the facts and circumstances of the present case, cannot be doubted at all, as has been argued by ld. Counsel for the accused Veer Singh.
63.INGREDIENTS OF THE OFFENCE:-
i. During the course of arguments, ld. Counsels for the accused persons have vehemently argued that the marriage of the deceased took place with PW14 Neelam on 08.02.2011 as per the certificate of marriage Ex. PW12/DX1 and the incident in SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 58 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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question took place on 17.06.2014. It has been argued that had there been any intention on the part of the accused Veer Singh to eliminate and kill the deceased, then, it was very easy for him to eliminate the deceased prior to the date of the incident as he was always having a licensed revolver with him. In nutshell, it has been argued that there was no motive for the accused Veer Singh to commit the murder. ii. In the case in hand, the stand of PW20, PW12 and PW21 is corroborated by the medical and forensic evidence. It is well settled that where direct evidence of eye-witnesses is available, then, motive looses all its importance. In this context, the Hon'ble Supreme Court of India in the matter titled as State of UP Vs. Kishanpal & Ors. decided on 08.08.2008 arising out of Criminal Appeal no. 936/2003, in para no. 18 thereof, has observed as under:-
".....It is also settled law that the motive looses all its importance in a case where direct evidence of eye- witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. ....."
iii. In the case in hand, it is true that the marriage took place in the year 2011 and the incident is dated 17.06.2014 but it has to be seen that the accused Veer Singh had recorded DD entry no. 22A on 18.05.2014 to the effect that his daughter was given beatings and PW5 SI Alma Minz has spoken about the same. Even otherwise, I am of the opinion that PW7 Dr. M.K. SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 59 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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Panigarhi has given a categorical opinion to the effect that the external injury no. 1 was sufficient to cause death in the ordinary course of nature and since the eye-witnesses have categorically deposed that it was Veer Singh who intentionally gave gunshot on the chest of the deceased at the instigation of the co-accused Mahender Kaushik, accused persons were having the requisite intention and knowledge so as to fulfill the ingredients of Section 300 of the IPC. As such, I am of the opinion that the necessary ingredients of Section 300 of the IPC are being fulfilled.
iv. During the course of arguments, ld. Counsel for the accused Mahender Kaushik has vehemently argued that first of all, accused Mahender Kaushik was not present at the spot and even if it is presumed that he was present at the spot, then, the uttering of the words "maar sale ko" does not mean that he had asked the accused Veer Singh to give gunshot on the person of the deceased.
v. It has to be seen that Section 34 of the IPC requires simultaneous consensus of the minds of the persons at the spot in the criminal action to bring about a particular result and as such, the consensus can be developed on the spot itself. The Hon'ble Supreme Court of India in the matter titled as Suresh and Anr. Vs. State of UP decided on 02.03.2000 cited as AIR 2001 SC 1344 has held as under:-
" "Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 60 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them (Ramaswami Ayyangar v. State of T.N. 1976 (3) SCC 779]. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra 1999 (8) SCC 428). To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established" (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The distinction between a "common intention" and a "similar intention"
which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between "common intention" and "similar intention" may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice. ...... "
SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 61 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:37 +0530 vi. As per the polygraph test, the report of which is there on record in the form of Ex. PW28/A proved on record by Dr. Aruna Mishra from FSL, the accused Mahender Kaushik was having the knowledge that the accused Veer Singh was having a pistol with him and the uttering of the words "maar sale ko", if seen in the light of the above said knowledge, accused Mahender Kaushik was having about the carrying of the pistol by accused Veer Singh, I have no hesitation to hold that the necessary ingredients of Section 34 of the IPC are also being fulfilled.
64.SUBMISSION OF THE ACCUSED MAHENDER KAUSHIK TO THE EFFECT THAT NO ROLE WAS ASSIGNED TO HIM INITIALLY IN THE FIR:-
i. It is true that in the initial FIR which was lodged at the instance of the complainant on his statement Ex. PW12/A, it has been mentioned that accused Mahender Kaushik was present at the spot along with the accused Veer Singh but the words "maar sale ko" attributed to the accused Mahender Kaushik have not been mentioned at all. It is also true that in the initial FIR, it has also not been mentioned that the accused Veer Singh gave the gunshot injury to the deceased Laxmikant Nagar on the instigation of the accused Mahender Kaushik but it has to be seen that on the day of the incident, death of the son of the complainant(husband of PW14 Neelam) had taken place. PW12 has categorically asserted in his testimony that copy of the FIR was received by him only on 21.06.2014 and then, he came to know that certain facts were missing therefrom and SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 62 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:42 +0530 then, he lodged detailed complaints with the Commissioner of Police, to the other Police Officials, to the Director of CBI, to the Hon'ble Lt. Governor which have been placed on record in the form of Ex. PW12/I to Ex. PW12/O. For the first time, in the above stated complaints, complainant asserted that the IO of the case was not carrying out the investigation in a free and fair manner and the role of of the accused Mahender Kaushik was not mentioned in his initial statement/ complaint. The above said complaints lodged by the complainant PW12 Kishan Lal were lodged on 24.06.2014. The Statement of PW20 Sh. Jatin Nagar, PW21 Smt. Veena Nagar and even the supplementary statement of the wife of the deceased was recorded by the IO for the first time on 24.06.2014 in consonance with the complaints lodged by the complainant Kishan Lal with the higher authorities of the police. ii. It has to be seen that the Hon'ble Supreme Court of India in the matter titled as Sanjeev Kumar Gupta & Ors. Vs. State of UP(now Uttarakhand) decided on 08.05.2015 in Criminal Appeal no. 507/2013 in para no. 28 has observed as under:-
"28. Coming to the question of inconsistency with the statement given by P.W.1 in the F.I.R and the statement given in the Court, we do not find this to be fatal to the prosecution case. We cannot rule out the possibility of post incident trauma and shock which might have been caused to the injured eye witness. In such a situation one cannot expect the witness to depose about every detail with accuracy....... "
iii. It has to be further seen that the FIR is not the encyclopedia and it is not expected to contain all the details of the prosecution case. In para no. 12 of the judgment titled as VK SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 63 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:47 +0530 Mishra & Ors. Vs. State of Uttarakhand & Ors. decided on 28.07.2015, the Hon'ble Supreme Court of India in Criminal Appeal no. 1247/2012 has observed as under:-
" 12. FIR is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR. Complaint was lodged within few hours after the tragic event. PW-1 has lost his young daughter just married before six weeks in unnatural circumstances. Death of a daughter within few days of the marriage, the effect on the mind of the father-PW1 cannot be measured by any yardstick. While lodging the report, PW-1 must have been in great shock and mentally disturbed. Because of death of his young daughter being grief stricken, it may not have occurred to PW-1 to narrate all the details of payment of money and the dowry harassment meted out to his daughter. Unless there are indications of fabrication, prosecution version cannot be doubted, merely on the ground that FIR does not contain the details. "
iv. In the case in hand as well, the complainant was under deep trauma and this fact has been deposed not only by the eye- witnesses to the incident in question but by the IO of the case PW26 and PW23A SI Yashendra as well. Going by the ratio of the above stated judgment, I am of the opinion that merely because specific role was not assigned to the accused Mahender Kaushik in the initial FIR is not going to affect the case of the prosecution.
65.DEFENCE OF THE ACCUSED VEER SINGH:-
i. The accused Veer Singh examined himself as a defence witness as DW2 on 14.10.2024 and he took the stand that on 17.06.2014, he received a phone call from Neelam that Laxmikant was beating her due to the quarrel. On receipt of the said phone call, he started proceeding towards the matrimonial SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 64 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:48:52 +0530 home of Neelam by scooty and he also gave a call to his friend Mahender Kaushik as he was residing in the same locality. The accused Veer Singh has further stated that he reached at the matrimonial house of Neelam between 03:00-04:00 PM and when he reached in the room of Neelam, she was found to be present along with Laxmikant. He tried to pacify Laxmikant but Laxmikant took out the pistol from the cover of the same and started brandishing it while stating that "sabko maar dunga, nahi to apne aap ko maar lunga". The accused Veer Singh has further stated that at the time of brandishing his pistol, the deceased Laxmikant started waving the same from his face to chest and pulled the trigger of the same, due to which, he received bullet injury in his lower abdomen. At that time, Laxmikant was in a drunken state. The accused Veer Singh has again stated that he does not know as to on which part of the body, Laxmikant received bullet injury but his wearing clothes were smeared with blood. After receiving the bullet injury, Laxmikant fell down on the floor. ii. The above said defence which has been taken by the accused Veer Singh at a later stage while examining himself as a defence witness on 14.10.2024, in the opinion of this court, is diametrically opposite to his stand as taken by him while cross- examining the complainant and the rest of the eye-witnesses to the incident in question. While cross-examining PW12 Kishan Lal, PW12 was given a suggestion to the effect that the deceased tried to snatch the pistol of Veer Singh to which Veer SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 65 of 82 Digitally signed by RAJ RAJ KUMAR KUMAR Date:
2024.11.28 16:48:57 +0530 Singh resisted and during this process of snatching and resisting, the pistol went off and hit the deceased and due to this reason Veer Singh being frightened, left the place. Such kind of suggestions have also been given to the rest of the eye- witnesses by the ld. Counsel for the accused Veer Singh. In the opinion of this court, if the above said suggestion given to the complainant and the eye-witnesses is carefully gone through, to my mind, it becomes evidently and apparently clear that the pistol was not snatched by the deceased Laxmikant Nagar by the accused Veer Singh but if the testimony of DW2 Veer Singh is gone through, then, it states that the pistol was snatched by the deceased Laxmikant Nagar and thereafter, he started brandishing it and pulled the trigger. As such, to my mind, the above said pleas taken by the accused Veer Singh while cross-examining the complainant and the eye-witnesses is in stark contravention to his plea as contained in his testimony as DW2.
iii. DW2, in his examination-in-chief, done on 15.10.2024 states that the deceased received the bullet injury in his lower abdomen and he again states that he does not know as to on which part of the body, the bullet injury was received. In the cross-examination, the accused Veer Singh categorically admits that he was having his licensed pistol with him when he went to the house of Kishan Lal and that the licensed pistol was without cover but in the very same breathe and in the very next line, he states that he does not remember as to whether the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 66 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:49:02 +0530 pistol was with or without cover. Accused Veer Singh admits that he moved an application before the court for returning his pistol on superdari. He again admits that neither he himself nor his family members raised any objection before the police when his signatures were being obtained on blank papers. As such, I have no hesitation to hold that inconsistent pleas have been taken by the accused Veer Singh in his cross-examination and even in his examination-in-chief rendering his testimony as a defence witness wholly unreliable, in the opinion of this court.
iv. Otherwise also, it has already been discussed hereinabove that the ocular version of the three eye-witnesses is fully corroborated by the medical and forensic evidence available on record which fully establishes the prosecution version and as such, I have no hesitation to hold that the defence put up by the accused Veer Singh is not sustainable and tenable at all.
66. OTHER CONTENTIONS OF THE LD. COUNSEL FOR THE ACCUSED VEER SINGH:-
i. During the course of arguments, ld. Counsel for the accused Veer Singh has argued that investigation has not been carried out by the IO in a fair and impartial manner as the CDRs of Neelam, Veer Singh and Mahender Kaushik have not been placed on record.
ii. It is true that the above said CDRs have not been placed on record but it has to be seen that the consistent stand of the accused Veer Singh is that he had gone to the matrimonial SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 67 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:49:07 +0530 home of his daughter Neelam on 17.06.2014 after receiving a call from his daughter to the effect that there was a quarrel in between her and her husband Laxmikant Nagar and as such, the CDR pertaining to the mobile of the accused Veer Singh and that of Neelam becomes immaterial. However, the settled law is that if some lacuna or omission is left by the IO in carrying out the investigation, then, the same cannot affect the credibility of the prosecution version. In the case in hand, the direct testimonies of the eye-witnesses is corroborated by the medical evidence and the same fully establishes the prosecution version. The Hon'ble Supreme Court of India in the matter titled as Dhanaj Singh @ Shera & Ors. Vs. State of Punjab cited as AIR 2004 SC 1920 decided on 10.03.2004, in para no. 7 thereof, has held as under:-
".... when the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on the part of the IO cannot affect credibility of the prosecution version."
iii. During the course of arguments, ld. Counsel for the accused Veer Singh has further argued that by the time, the accused Veer Singh reached the matrimonial home of her daughter Neelam, the quarrel in between Neelam and her husband had already come to an end. To my mind, the above said plea of the ld. Counsel for the accused Veer Singh is absolutely contrary to the stand taken by the accused Veer Singh. The complainant and the eye-witnesses have been given categorical suggestions to the effect that accused Veer Singh tried to pacify Laxmikant Nagar as he was abusing, brandishing the pistol after snatching SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 68 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:49:12 +0530 the pistol from the accused Veer Singh, by none other but by the ld. Counsel for the accused Veer Singh and as such, I am of the opinion that the above said submission of the ld. Counsel for the accused is of no help to the defence set up by the accused Veer Singh.
iv. Ld. counsel for the accused Veer Singh has further argued that the trajectory of the projectile i.e. the bullet was downwards which shows that there was scuffle in between the accused Veer Singh and the deceased Laxmikant Nagar. To my mind, the above said submission of the ld. Counsel for the accused is absolutely fallacious in view of the testimony of PW7 Dr. M.K. Panigarhi who conducted the postmortem and the testimony of PW25 Mr. Punit Puri, the Ballistics Expert. In the renowned book of MODI on Medical Jurisprudence and Toxicology, it has been mentioned that a bullet takes a very tortuous and erratic course in its passage through the body and sometimes, X-Ray examinations are necessary for locating a bullet. v. The next submission of the ld. Counsel for the accused Veer Singh is that prosecution has failed to prove that there was no gunpowder on the hands of the deceased because in case the bullet was fired by the deceased himself then, he must be having the gunpowder on his hands. It has been further argued that no paraffin test was got done and that is why, there is a dent in the case of the prosecution. It has to be seen that PW7 Dr. M.K. Panigarhi, Head of the Department of Forensic Medicine from Hindu Rao Hospital has categorically stated SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 69 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:49:17 +0530 that there was no gunpowder on the hands of the deceased but the above said fact was not mentioned by him in his postmortem report. To my mind, otherwise also, in the case in hand, since the ocular evidence of the eye-witnesses is fully corroborated by the medical and forensic evidence, the above said submission pertaining to the gunpowder and the paraffin test looses its significance.
vi. Ld. counsel for the accused Veer Singh has further argued that as per the testimony of PW27 Dr. Kanak Lata Verma who proved on record her report as Ex. PW27/A has categorically stated that Ex. IC was found containing ethyl alcohol 111.5 mg/ 100 ml of blood. It has been argued that since the deceased was in a drunken state on the day of the incident, it was the deceased who snatched the pistol and the gunshot was fired. I am of the opinion that merely because the deceased was under the influence of alcohol on the date and time of the incident, it does not mean that it was the deceased who fired the bullet himself, keeping in view the ocular evidence which is fully corroborated by the medical and forensic evidence. As such, to my mind, the above said submission of the ld. Counsel for the accused Veer Singh is not plausible at all.
vii. Ld. Counsel for the accused Veer Singh has also argued that Neelam was present with Laxmikant in the room at the time of the incident and as such, the site plan Ex. PW12/E has not been prepared properly by the IO. In the case in hand, the complainant PW12 has stated that Neelam was not in the room SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 70 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:49:21 +0530 along with her husband at the time of the incident but PW21 Smt. Veena Nagar and PW14 Neelam herself have stated that Neelam was present in the room along with her husband at the time of the incident. It has to be seen that the site plan Ex. PW12/E depicts the position of the complainant, the eye- witnesses, Neelam and the deceased Laxmikant Nagar. The position of Neelam has been shown in the site plan Ex. PW12/E outside the room of the deceased Laxmikant Nagar at the date and time of the incident. Neelam, who has been examined as PW14, has otherwise resiled from her previous statement so far as the firing of the bullet is concerned, in her statement recorded u/s 164 of the Cr.P.C. Ex. PW14/A has stated that he was near the cooler at the time of the incident in question as her child was weeping. PW14 has further admitted in her cross-examination that her mother PW21 Smt. Veena Nagar was standing in the Kitchen at the time of the incident. PW20 Jatin Nagar has also stated that Neelam was standing near the cooler as her child was weeping. PW12 has withstood the test of cross-examination, in the opinion of this court. Even the scaled site plan was prepared by the IO at the instance of the complainant on 17.06.2014 itself. The IO who has been examined as PW26 and SI Yashendra who has been examined as PW23A have categorically stated that the site plan was prepared at the instance of the complainant. As such, I am of the opinion that the above said submission of the ld. Counsel for the accused Veer Singh is of no help to the defence set up SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 71 of 82 Digitally signed by RAJ RAJ KUMAR KUMAR Date:
2024.11.28 16:49:27 +0530 by the accused Veer Singh. I am of the opinion that the prosecution has been able to prove that the site plan Ex. PW12/E was correctly prepared as per the scene of crime and the site plan correctly depicts the position of the persons i.e. of the family members of the deceased who were present at the scene of the crime on the date and time of the incident. viii. Ld. counsel for the accused Veer Singh has argued that Kaptan Singh, the independent witness has not been examined by the prosecution as a witness. It has to be seen that Kaptan Singh is not an eye-witness to the incident in question and he was called by PW12 at the spot only after the commission of the crime and as such, in the opinion of this court, non-examination of Kaptan Singh is not fatal to the case of the prosecution, when the ocular version of the eye-witnesses, which has been corroborated by the medical and forensic evidence, is found to be trustworthy and reliable. It has to be seen that the Hon'ble Supreme Court of India in the authority titled as Birendra Rai & Ors. Vs. State of Bihar decided on 18.11.2004 cited as (2005) 9 SCC 719, in para no. 13 thereof, has observed as under:-
"It is then argued that several persons were named in the First Information report, as also by the witnesses, who were present in the nearby shop when the occurrence took place but none of them has been examined. Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye- witnesses shy away from giving evidence for obvious reasons. "
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KUMAR 2024.11.28 16:49:33 +0530 ix. Ld. counsel for the accused has argued that PW12 has stated that the entire incident took place only one minute; PW20 Jatin Nagar has stated that the entire incident took place only about three minutes and PW21 Smt. Veena Nagar has stated that the entire episode took place only in less than five minutes and as such, there are contradictions in the testimonies of the prosecution witnesses. To my mind, the above said submission is not tenable and sustainable at all because it has been held in a number of judgments that minor contradictions and discrepancies which do not go to the root of the matter are immaterial. In the judgment titled as Raju Vs. State of UP decided on 25.03.2021 arising out of criminal appeal no. 1555/2002 and criminal appeal no. 988/2002, the Hon'ble High Court of Judicature at Allahabad, in para no. 12.7 thereof, has observed as under:-
"..... As observed by this court in State of Rajasthan Vs. Kalki (1981) 2 SCC 752 normal discrepancies in evidence are those which are deemed to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be....... "
x. Ld. counsel for the accused Veer Singh has further argued that there is a gap of time in the DD entries recorded in this case which casts a doubt on the case of the prosecution. To my mind, the above said submission of the ld. Counsel for the accused Veer Singh is absolutely fallacious because there is no gap of time which may raise a suspicion on the case of the prosecution in recording of the relevant DD entries, in the case SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 73 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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in hand. As per PW2 HC Hari Chander, DD entry no. 18A dated 17.06.2014 pertaining to the quarrel at house no. 230, Vivekanand Puri received from mobile number 9871186703 was recorded at 04:21 PM which was exhibited as Ex. PW2/B. Mobile number 9871186703 pertains to the accused Veer Singh. DD entry no. 20A pertaining to the bullet firing received from the above said mobile number 9871186703 has been recorded at 04:30 PM and exhibited as Ex. PW2/C. After the admission of the deceased in the hospital, DD entry no. 24A received from Hindu Rao Hospital received in the police station was recorded at 05:40 PM. In these circumstances, I am of the opinion that there is no gap in the recording of the time of the relevant DD entries in the case in hand. xi. Last but not the least, ld. Counsel for the accused Veer Singh has argued that at the most, the case of the Veer Singh is covered u/s 304 part II of the IPC. In this context, ld. Counsel for the accused Veer Singh has relied upon the ratio of the judgments such as Kali Prasad Misra & Anr. Vs. State of UP decided on 13.10.2023 arising out of criminal appeal no. 1483 of 1984 decided by the Hon'ble High Court of Judicature at Allahabad; Nanak Ram Vs. State decided on 10.01.2023 by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur arising out of criminal appeal no. 11/2018; Dattatraya Vs. State of Maharashtra arising out of criminal appeal no. 666/2012 decided by the Hon'ble Supreme Court of India on 01.02.2024; Dauvaram Nirmalkar Vs. State of Chhatisgarh arising out of SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 74 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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Criminal Appeal no. 1124 of 2022 decided by the Hon'ble Supreme Court of India on 02.08.2022; Raja Ram Vs. State of Delhi in criminal appeal no. 482/2024 decided by the Hon'ble High Court of Delhi on 20.09.2024 and Arvind Kumar Vs. State of NCT of Delhi cited as 2023 Live Law (SC) 539. With due respect to the observations as contained in the above stated judgments, I am of the opinion that the facts and circumstances of the present case are different from the factual gamut involved in the above stated judgments and the case of the accused persons, in the case in hand, is not covered under Section 304 part II of the IPC.
67.DEFENCE OF THE ACCUSED MAHENDER KAUSHIK:-
i. Brief synopsis in writing have been filed on record by the accused Mahender Kaushik. The accused Mahender Kaushik has also examined himself as a defence witness as DW1. The accused Mahender Kaushik has also examined two more witnesses in his defence i.e. Retd. Inspector Bablu Lal who was the Enquiry Officer in the departmental enquiry which was conducted against him being an employee of Delhi Police as DW3 and Retd. ACP KK Kaushik as DW4.
ii. In his defence evidence, the accused Mahender Kaushik has tried to take up the plea of alibi but he has failed to disclose as to where he was at the relevant date and time i.e. at about 04:00-04:30 PM on 17.06.2014 when the incident in question SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 75 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:49:49 +0530 took place. In his examination-in-chief, DW1 has stated that on 17.06.2014, he was posted with VIP Security, Delhi Police and when he was returning from his duties, then, at about 03-04:30 PM, he received a call from his co-accused to the effect that his daughter was being beaten by her husband. DW1 has further stated that he came to know at about 05:00 PM on 17.06.2014 that the deceased Laxmikant had received a gunshot injury and from the gate of his colony, he was watching that a mob had gathered outside the house of the deceased Laxmikant. DW1 has further stated that at 06:10 PM on 17.06.2014, he was in the police station with the IO but no enquiry was conducted from him by the IO at the spot of the crime.
iii. Going by the above said examination in chief, it is crystal clear that DW1 has evasively not disclosed as to where he was at about 04-04:30 PM i.e. at the time of the incident in question on 17.06.2014. Needless to mention that it has been sufficiently brought on record by the prosecution even with the aid of the testimony of PW14 Neelam that the houses of the accused Veer Singh, Mahender Kaushik and the house of the deceased Laxmikant Nagar are in the same locality in the vicinity of each other. In the cross-examination, DW1 states that on 17.06.2014, his duty hours were from 08:00 AM to 04:00 PM and his duty was at Bunglow no. 153, North Avenue. DW1 further states that a Roznamcha register was being maintained at his working place and he used to make entries by his hand about his arrival and departure. DW1 has admitted it to be SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 76 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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correct that the copy of the said Roznamcha Register was never provided by him to the IO of the case and he had not brought the copy of the same in the court on the day of his deposition. DW1 has admitted that he had never moved an application before any authority as per the provisions of RTI Act. DW1 has admitted that he never moved any application/ complaint before any Magistrate regarding his false implication. As such, to my mind, the accused Mahender Kaushik has utterly failed to produce any documentary evidence to show that his duties were at Bunglow no. 153, North Avenue on 17.06.2014 or that he was present on his duties on 17.06.2014. Rather, to my mind, the prosecution has been able to prove by the ocular evidence of the three main star witnesses that the accused Mahender Kaushik was present at the spot at the date and time of the occurrence.
iv. Furthermore, it has to be seen that the above said plea which has been taken by him in his evidence in defence is belied by his own suggestion which was given by him to the complainant PW12 Kishan Lal during his cross-examination. In the cross- examination of PW12 Kishan Lal done on 06.04.2016, ld. Counsel for the accused Mahender Kaushik given a categorical suggestion to PW12, to which, PW12 answered as under:-
"It is wrong to suggest that Mahender Kaushik had come to our house 10 mins. Prior to arrival of accused Veer Singh at our house. "
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The above said suggestion itself reflects that the accused Mahender Kaushik admits that he was present in the house of the deceased Laxmikant Nagar on the date and time of the occurrence of the incident.
v. Ld. counsel for the accused Mahender Kaushik has further argued that nothing incriminating against the accused Mahender Kaushik could be deduced in the polygraph test, the report on which has been exhibited as Ex. PW28/A. It has to be seen that the settled law is that the polygraph test being a scientific evidence has only corroborative value and the same is not a substantive piece of evidence. In the case in hand, as already stated, the presence of the accused Veer Singh stands proved and the ocular evidence of the three main witnesses is corroborated by the medical and forensic evidence, which fully establishes the case of the prosecution in the case in hand, in the opinion of this court. As such, the above said submission pertaining to the polygraph test, is of no help to the defence set up by the accused Mahender Kaushik.
vi. The rest of the submissions of the ld. Counsel for the accused Mahender Kaushik to the effect that there are contradictions in the testimonies of the prosecution witnesses and that PW14 Neelam has failed to support the case of the prosecution have already been dealt with in detail hereinabove. The submission of the accused Mahender Kaushik to the effect that for the first time, he was assigned the role in the present murder case only on 24.06.2014 has already been discussed in detail in the SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 78 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:50:07 +0530 preceding paras of this judgment under the heading "SUBMISSION OF THE ACCUSED MAHENDER KAUSHIK TO THE EFFECT THAT NO ROLE WAS ASSIGNED TO HIM INITIALLY IN THE FIR"
vii. DW3 and DW4 are the two witnesses examined by the accused Mahender Kaushik pertaining to the departmental enquiry. The settled proposition of law is that there cannot be any comparison in between a criminal case and the departmental disciplanary proceedings as the procedures and the evidence required is entirely the different in both the proceedings. viii. Ld. Counsel for the accused Mahender Kaushik has relied upon the ratio of the judgments titled as Harijana Thirupala & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh Hyderabad cited as (2002) 6 SCC 470; K. Gopal Reddy Vs. State of AP cited as (1979) 1 SCC 355; Surendra Kumar & Anr. Vs. State of UP cited (2021) 20 SCC 430; Suresh & Anr. Vs. State of Haryana cited as (2018) 18 SCC 654 and State Vs. Uttam Chand Bohra cited as (2022) 16 SCC 663 etc. ix. Relying upon the ratio of the above stated judgments, ld.
Counsel for the accused Mahender Kaushik has argued that if two views are possible, then, the view favourable to the accused has to be taken by the court. It has been further argued that guilt of the accused should not be inferred because of a particular type of the action by a particular witness. It has been further argued that if there are gaps in the prosecution story and guilt of the accused is not established beyond reasonable doubt, SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 79 of 82 Digitally signed by RAJ KUMAR RAJ Date:
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then, Conviction cannot be sustained. It has been further argued that the offence of criminal conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
x. It is true that direct evidence of criminal conspiracy is rarely available but the present case is a case which is based on the ocular evidence of as many as three main witnesses i.e. on the ocular evidence of PW12, PW20 and PW21 and the present case is not based on circumstantial evidence. The ocular testimony of the witnesses corroborated by the medical and forensic evidence, in the case in hand, fully establishes the case of the prosecution beyond any reasonable doubt, in the opinion of this court. As such, to my mind, one and only one view is possible and the scope of any second view favourable to the accused in the opinion of this court, in the facts and circumstances of the present case, does not arise. With due respect to the observations as contained in the above stated judgments, the facts and circumstances of the present case, differ from the facts and circumstances involved in the above stated judgments relied upon by the ld. Counsel for the accused Mahender Kaushik.
68. STATEMENTS OF THE ACCUSED PERSONS U/s 313 of the Cr.P.C.:-
i. All the incriminating evidence running into more than seventy questions was put to both the accused persons during their SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 80 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:50:18 +0530 statements recorded u/s 313 of the Cr.P.C. but I am of the opinion that both the above said accused persons have failed to explain the incriminating evidence put to them and the answers given by the accused persons are merely evasive, which additionally provides a link in the chain of the entire circumstances. While holding so, I am fortified by the following observations of the Hon'ble Supreme Court of India in the judgment titled as Prithipal Singh & Ors. Vs. State of Punjab and Anrs. cited as (2012) 1 SCC 10, wherein, it has been observed as under:-
" 53. In 'State of West Bengal Vs. Mir Mohammad Omar' this court held that if fact is especially in the knowledge of any person, then burden of proving the said fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of accused"
"79. Both the Courts below have found that the appellant accused had abducted Sh. Jaswant Singh Khalra. In such a situation, only the accused person could explain as to what happened to Sh. Khalra and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the appellants accused failed to explain any inculpating circumstance even in their statements u/s 313 Cr.P.C. Such a conduct also provides for an additional link in the chain of circumstances. The fact as to what had happened to the victim after his abduction by the accused persons, has been SC 28023/2016 State Vs. Veer Singh & Anr. FIR no. 601 /2014 PS Sarai Rohilla Page no. 81 of 82 Digitally signed by RAJ KUMAR RAJ Date:
KUMAR 2024.11.28 16:50:23 +0530 within the special knowledge of accused persons, therefore they could have given some explanation. In such a fact situation, the Courts below have rightly drawn the presumption that the appellants were responsible for his abduction, illegal detention and murder"
69. CONCLUSION:-
i. Applying priori and posteriori reasonings, this court is of the opinion that the prosecution has been successful in proving that the accused Veer Singh and the accused Mahender Kaushik in furtherance of their common intention had committed the murder of the deceased Laxmikant Nagar by firing a gunshot at the relevant time, date and place as mentioned above and thus the prosecution has been able to bring home the guilt of the accused persons beyond any reasonable doubt for the offences punishable under Section 302/34 IPC. Accordingly, the accused persons Veer Singh and Mahender Kaushik are convicted for the offences punishable under Section 302/34 IPC.Digitally signed by RAJ KUMAR
(Announced in the Open Court) RAJ Date:
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(Raj Kumar)
ASJ-05, Central District
Tis Hazari Courts, Delhi
28.11.2024
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