Delhi District Court
State vs . 1. Vinod Kumar on 24 May, 2022
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE-02 (WEST), DELHI.
Sessions Case No. 57716/16
Assigned to Sessions on 04.06.2016
FIR No. 154/2016
Police Station Punjabi Bagh
Under Section 302/34 IPC & 25/27/54/59 Arms
Act
Charged under section 302/34 IPC & 25/27/54/59 Arms
Act
State Vs. 1. Vinod Kumar
s/o Ram Avtar
r/o: H.No. 9900 Ahata Thakur
Dass, Sarai Rohilla, Delhi-
110007
2. Ashok
s/o Om Parkash
r/o H.No. 207/4, AGF, Than
Singh Nagar, Anand Parbat,
Delhi
(Declared Proclaimed Offender
vide order dated 11.03.2022)
Arguments heard on 11.05.2022
Date of Judgment 24.05.2022
Final Order Convicted
Appearance(s) : Sh. Alok Saxena, Ld. Addl. PP for the State.
Sh. B.K. Pandey, Ld Counsel for accused Vinod.
JUDGMENT
PRELUDE:
1. The case pertains to the charge sheet u/s 173(2) Cr.P.C, in S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 1 of 57 respect of FIR No.154/2016, U/s 302/34 IPC & Sec. 25/27/54/59 Arms Act of PS Punjabi Bagh, Delhi. The charge sheet was committed to the Ld. Sessions Judge (West), vide order dated 04.06.2016 of the Ld. MM, along with the accused for trial.
BRIEF FACTS:
2. The brief facts, as per the case of the prosecution, are that on 18.02.2016, on receipt of DD No. 38PP, ASI Sardar Singh alongwith Ct. Banwari Lal reached at the spot i.e 194A, Lal Quarters, Punjabi Bagh. In the meantime, Inspector as well as Chowki Incharge SI Nafe Singh had already reached there. It was revealed that a child had received gun shot injury and has been taken to Maharaja Agrasen Hospital. Thereafter, Inspector Ajmer Singh, ASI Sardar Singh & Incharge PP SI Nafe Singh went to the hospital leaving Ct. Banwari Lal at the spot. After reaching the hospital, Inspector Ajmer Singh collected the MLC No. 150/16 of child Yash s/o Lalit wherein the doctor has declared the child brought dead. Inspector Ajmer Singh prepared a pullanda containing the clothes of the cihld I.e T-shirt, Baniyan, Sweater etc and sealed it with the seal of Maharaja Agrasen Hospital and took it into possession. Thereafter, the complainant/father of deceased namely Lalit Kumar was met. His statement was recorded wherein he stated that his brother in law(sadu) namely Vinod s/o Ram Avtar was in a litigation with him and he had a quarrel with him at Tis Hazari Court and he had beaten him. From that day, he was inimical towards him. He further stated that on 18.02.2016 at about 8.00 PM, Vinod alongwitih his friend came at his house and told him as to why he had come to attend the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 2 of 57 marriage of his Uncle's (Tau) son on which his wife Arti had asked Vinod not to argue and asked him to leave the place and not to come at their place with his friend again. Thereafter, Vinod and his friend left their home at that time. At about 10.15 PM, they heard the noise of a motorcycle stopping outside their home. At that time, complainant Lalit was sleeping on the bed with his son (deceased Yash) when he heard the noise of gun shot. He immediately run outside and saw Vinod alongwith his friend sitting on the back seat of the motorcycle fleeing away and accused Vinod was carrying katta in his hand. He tried to chase them, however, they fled away. He came back to his home and found his son bleeding from his head. In the meantime, his cousin Sunil also came there. Thereafter, they took the deceased to Maharaja Agrasen hospital and got him admitted in Emergency. Thereafter, crime team was called. In the meantime, Inspector Ajmer Singh prepared a tehrir and sent ASI Sardar Singh alongwith tehrir to P.S for registration of FIR, on the basis of which present FIR was got registered. Site plan was prepared at the instance of complainant. A piece of the blood stained quilt cover as well as empty cartridge was seized by the IO. IO recorded the statement of witnesses u/s 161 Cr.P.C. Thereafter, the motorcycle bearing No. DL 6SAG 9288 used in the crime which was seized from the area of PS Anand Parbat, was deposited in the Malkhana.
3. On 19.02.2016, post mortem of the dead body was got conducted at SGMH Mortuary. The PM report was obtained wherein the doctor has opined the cause of death as S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 3 of 57 craniocerebral damage as a result of firearm injury, antemortem in nature.
4. On 20.02.2016, Inspector alongwith police officials and complainant Lalit Kumar reached at the house of accused Vinod at 2.00 PM where accused Vinod was found present. He was interrogated and his disclosure statement was recorded wherein he confessed his guilt. He also got recovered from his house, the weapon of offence i.e desi katta having body of iron and handle made of wood. Same was seized and taken into police possession. Accused Vinod was arrested. Thereafter, accused Vinod was taken alongwith police staff and complainant for the search of co-accused Ashok. At the instance of accused Vinod, accused Ashok was found present at Gali No.10, Than Singh Nagar, Anand Parbat, New Delhi. He was interrogated whereupon he confessed his guilt and his disclosure statement was recorded and he was arrested. Scaled site plan was got prepared. The ownership details was procured from the concerned transport authority and it was found that the motorcycle used in the crime belonged to accused Vinod Kumar. Exhibits were sent to FSL for opinion. During the investigation of the case, statement of witnesses were recorded and on finding sufficient evidences available on the file, a challan was filed before the Ld. MM for the offences under section 302/34 IPC & Sec. 25/27/54/59 Arms Act against the accused persons.
THE CHARGE S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 4 of 57
5. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP for the State and Ld Counsel for the accused, found a prima facie case for the offences punishable under section 302/34 IPC against both the accused & u/s 25/27/54/59 Arms Act against accused Vinod. The Charge was framed accordingly vide order dated 23.09.2016 to which both the accused pleaded not guilty and claimed trial. Thereafter, matter was fixed for PE.
6. During prosecution evidence, a supplementary chargesheet containing sanction u/s 39 of Arms Act as well as FSL result was filed. Thereafter, the charge u/s 25/27/54/59 Arms Act was re- framed against accused Vinod.
7. During trial, accused Ashok was granted bail on 24.04.2019.
However, since 21.03.2020, accused Ashok stopped appearing before the court and thereafter, proceedings u/s 82/83 Cr.P.C initiated against him and he was declared proclaimed offender vide order dated 11.03.2022.
PROSECUTION EVIDENCE
8. In order to prove its case, the prosecution has examined 24 witnesses. PW3 Ms. Arti, PW-7/complainant Lalit Kumar and PW- 10 Gaurav Sharma are the material public witnesses, while other witnesses are either police officials or medical/ expert witnesses who have participated during the course of investigation.
S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 5 of 579. PW 1 ASI Surender Singh has deposed that in the intervening night of 18/19.02.2016, he was posted at PS Punjabi Bagh as Duty officer from 8.00 pm to 8.00 am of the next day. On 19.02.2016 at about 1.30 am, ASI Sardar Singh gave him a ruqqa which was endorsed by Inspector Ajmer Singh . On the basis of the contents of ruqqa, the present FIR was got registered through computer operator. The computer generated copy of FIR No.154/2016 placed on file, is exhibited as Ex PW1/A. After registration of FIR, he made endorsement on the ruqqa which is Ex PW1/B. After registration of FIR, he sent the ruqqa and copy of FIR to Inspector Ajmer Singh for investigation. The recording of FIR was started vide DD No.3A ( kaymi DD) and FIR was closed vide DD No.4A. Copy of DD No.3A and 4A are exhibited as Ex PW1/C and PW1/D respectively. He has also proved certificate U/S 65-B Indian Evidence Act as Ex PW1/E.
10. PW2 HC Sunil Kumar has deposed that on 19.02.2016, he was posted as MHC (M) at PS Punjabi Bagh. He has deposed about the depositing of sealed parcels, sample seals and one motor cycle having regd No.DL 6S-A G-9288 in the Malkhana. He made entries regarding the case properties deposited with him. Said entries are Ex. PW2/A to Ex.PW2/F.
11. PW-3 Ms. Aarti, who is the wife of the complainant has deposed as under:
"Accused Vinod is my Jija. Yash (Since deceased) was my S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 6 of 57 son. On 18.02.2016, at about 8 PM, accused Vinod and Ashok came to my house. Prior to this incident accused Vinod and Ashok came together to my house 2-3 times. Accused Vinod and Ashok came to my house on 18.02.2016 to took my husband. I told to Vinod and Ashok that my husband will not accompany them as it was night time. I even offered meal to them as Vinod was my relative. Thereafter, accused Vinod insisted my husband to accompany them but my husband refused to accompany them. Thereafter, both the accused Vinod and Ashok left our house.
At about 10 PM on the same night accused Vinod and Ashok came on a motor cycle. I had seen them from the door. At that time my son Yash was on the abdomen of my husband and my husband was enjoying / playing with him. At the same moment, I heard noise of firing. Immediately, my husband ran out from the door leaving my son on the bed. My husband saw accused Vinod and Ashok fleeing from there on a motor cycle. I observed my son Yash in injured condition having blood coming out from his head. My son was unconscious. I immediately took my son and came outside. On the way, on my request, one person stopped his four wheeler and thereafter I along with my son boarded in the four wheeler and I got admitted my son in Maharaja Aggarsain Hospital. Doctor at hospital to call me some male member. In the meanwhile, my husband, my father in law, my mother in law and jeth reached at the hospital. Doctors declared my son dead in the hospital. I can identify accused Vinod and Ashok who are present in the court (correctly identified).
Xxxx by Sh. Rajesh Kumar, Ld. Counsel for accused S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 7 of 57 Ashok.
Prior to the incident dated 18.02.2016 whenever accused Ashok came to our house with accused Vinod he never quarreled with Lalit. However, on those occasions when hot talks were taken place by Vinod with my husband Lalit then Ashok used to tell "Tu iski sunta kyu hai iska jo karna hai kar". It is wrong to suggest that on 18.02.2016 at about 10 PM I had not seen accused Ashok and Vinod when they came there on a motor cycle. I do not know the registration number of four wheeler in which I had taken my son to Maharaj Aggarsain Hospital. I also do not know the name of driver / owner of said four wheeler as immediately after dropping me and my son at the hospital he left. Vol. I was busy to save and provide treatment to my son. I cannot tell the time when I reached hospital as I was purturbed due to injury of my son and I had not seen the time. However, Maharaj Aggarsain Hospital is situated near my house. When I reached in the hospital immediately thereafter no police official met me. However, after some time police reached there and made inquiries from me in the police station. I went to police station alone. It is wrong to suggest that police had not recorded my statement in the present case. It is wrong to suggest that I had not seen accused vinod and Ashok at about 10 PM when they came in front of our house on motor cycle. It is correct that accused Vinod also used to visit prior to incident dated 18.02.2016 as he is my jija in relation. My sister ie wife of accused Vinod also came to our house but not frequently. Whenever accused Vinod came to our house with his wife he never quarrel Vol whenever accused Vinod came to our house with Ashok S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 8 of 57 they used to quarrel with us. Further Volunteer accused generally came with accused Ashok in night hours after about 8.00 pm. Accused Vinod came alongwith accused Ashok to our house about 2-3 times prior to 18.02.2016. I do not remember all the dates of their visit to our house prior to 18.02.2016 however one date was 26.01.2016.It is correct that on 26.01.2016, accused Vinod and Ashok did not quarrel with us. Vol on that day ie 26.01.2016 my husband was ill. On 26.01.2016 accused Ashok remain standing at the gate and accused Vinod came inside. Accused Vinod and Ashok also did not quarrel prior to 26.01.2016 when they visited our house once or twice. It is correct that prior to 18.02.2016 neither I had lodged any complaint against Accused Vinod and Ashok nor my husband has lodged. I cannot tell the colour of cloth worn by accused Vinod on 18.02.2016 when he came alongwith co-accused Ashok to our house. When accused Vinod and Ashok return from our house at about 8.00 pm accused Vinod threatened us three times saying that "soch liyo" . At that very time ie around 8.00 pm I had not called the police on 100 number.
My house is situated on the road on corner side. I cannot tell that in which direction the gate of my house is situated as I am illiterate. On the road in front of my house there was street light. The public persons used to passes through the road in front of my house however on the date and time of incident no public persons was passing through the road due to night hours of winter season. It is correct that residential houses were situated near my house. It is incorrect to suggest that I had not seen accused Vinod and Ashok on 18.02.2016 S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 9 of 57 at about 10.00 pm when they came on a motor cycle. Vol I had seen them from the back door of the house. I cannot tell the colour of cloth worn by accused Vinod and Ashok when they came to our house on 18.02.2016 either at about 8.00 pm or at about 10.00 pm. Vol I had not observed the colour of their cloths. I had only see their faces. It is incorrect to suggest that I am unable to tell the colour of cloths of accused persons as they had not came to our house at about 10.00 pm on their motor cycle. It is incorrect to suggest that accused persons did not fire . It is further incorrect to suggest that Yash did not receive injuries from the firing of accused persons. It is incorrect to suggest that on 18.02.2016 a quarrel had taken place between me and my husband or that during that quarrel my husband had fired and the bullet hit to our son Yash. It is incorrect to suggest that accused Vinod was falsely implicated in the present case due to previous enmity.
Police reached in the hospital within 10-15 minutes of my reaching with my son there. I do not remember the number of police official however they were many in number. My husband, my father in law, mother in law and Jeth reached at the hospital within 10-15 minutes . As per my recollection police and my husband and in- laws reached simultaneously. It is correct that my statement as well as statement of my husband and Jeth were recorded at the P.S. I cannot tell the time of my stay in the hospital . I cannot tell the time when I reached to the PS . I also cannot tell the time of my stay at the PS. Many persons ie our relatives and neighbours visited P.S. however I do not remember the name of all the said persons. It is incorrect to suggest S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 10 of 57 that I had given my statement to the police on the asking of my husband and inlaws . It is further incorrect to suggest that I am deposing falsely at the instance of my husband , mother in law and Jeth."
12. PW-4 Ct. Siya Ram is a formal police witness who has delivered the copy of FIR at the residence of Ld. MM and one copy to Joint C.P. He also delivered another copy of FIR to DCP West at his residence.
13. PW-5 ASI Dalip Singh was a photographer in the Crime Team West on 19.02.2016 and has deposed that on 18.02.2016, he had accompanied SI Devender Singh and HC Dalip to H.No. A-194, Ground Floor, Lal Quarter, West Punjabi Bagh, Delhi. He clicked photographs of card board near cooler in the gate. He had clicked 14 photographs from different angles.
14. PW6 HC Laxmi Narayan has deposed as under:
"On 18.02.2016, I was posted at PP Madipur PS Punjabi Bagh. I was on duty on that day from 4PM to 11PM as DD Writer. At about 10.40 PM, a call was received that "Punjabi Bagh Lal Quarter, H.No. 194, Near Sumitra Nursing Home ghar ke logo ne ek bache ko goli maar di hai". I informed regarding the said information to ASI Sardar Singh and also to senior officers. I entered the said information in DD register at S. no. 38PP. Today I have brought the original register. The attested true copy of the said entry in my handwriting is on judicial file. Same is Ex. PW6/A (OSR) which bears my S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 11 of 57 signatures at point A. On 19.02.2016, I joined the investigation and went to Sanjay Gandhi Hospital along with Inspector Ajmer Singh (IO), complainant Lalit Kumar and his cousin brother Sunil. Postmortem of the deceased Yash was conducted on 19.02.2016 and dead body of the deceased was handed over to Lalit Kumar. Doctor had given to IO a sample seal in a sealed pullanda and the same was taken into police possession vide a seizure memo Ex. PW6/B which bears my signatures at point A. On 20.02.2016, I joined the investigation with IO Inspector Ajmer Singh, Ct. Sajjan, Ct. Ravi and complainant Lalit and went to H.No. 9900, Ahata Thakur Dass, Sarai Rohila Delhi. We reached there at about 2 PM. Accused Vinod Kumar was found present on the ground floor of the house. He was arrested on the identification of complainant Lalit Kumar vide an arrest memo Ex. PW6/C which bears my signatures at point A. His personal search was conducted vide a memo Ex. PW6/D which bears my signatures at point A. IO interrogated the accused Vinod. During interrogation he disclosed that he had concealed the katta in the almirah in a room on the first floor and then he led us at that room at first floor and got recovered the katta and handed over the same to IO. He also handed over two live cartridges to IO. IO checked the recovered katta and one used cartridge was found inside the katta. IO then prepared the sketch of two live cartridges and katta which is Ex. PW6/E. IO took the measurement of recovered katta as well as the live cartridges. The total length of the katta was 26 cm, length of barrel 12.6 cm and length of body 20.4 cm and length of the butt I am S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 12 of 57 not able to recall. KF 8MM was written on the bottom of both the live cartridges and length of live cartridges was 7.4 cm. IO requested 3-4 passerby to join the investigations but non turned up and left the place without disclosing their names and addresses. IO recorded the disclosure statement of Vinod Ex. PW6/F which bears my signatures at point A. Thereafter, we left the house and went to Gali no. 10, Than Singh Nagar, Delhi. One person was standing in the gali accused Vinod pointed out towards the said person by saying that he (Ashok) was with him at the time of commission of crime. Complainant Lalit also identified him. Then he was arrested vide arrest memo Ex. PW6/G which bears my signatures at point A. His personal search was conducted vide a memo Ex. PW6/H which bears my signatures at point A. IO interrogated accused Ashok and recorded his disclosure statement Ex. PW 6/I which bears my signatures at point A. From there both the accused were taken to the scene of crime. They pointed out the scene of crime and IO prepared the pointing out memos which is Ex. PW6/J & PW6/K which bears my signatures at point A respectively. Both the accused were sent to hospital for their medical examination. Case property was deposited in Malkhana. IO recorded my statement. Both the accused are present in the Court today (correctly identified).
At this stage, MHC(M) produced one sealed envelop sealed with the seal of VRA FSL Delhi. The seals are broken and one katta covered with a white pullanda is taken out. The Katta having mark F1 is correctly identified by the witness and same is exhibited as Ex. P1. Three empty cartridges are also taken out from the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 13 of 57 same pullanda which are marked as EC1, A1 and A2 respectively and two test bullets are also taken out from the said pullanda which are exhibited as P2 (colly) and P3 (colly) respectively and having the mark TB1 and TB2.
Another envelop marked as 'EB1' sealed with the seal of VRA FSL is produced by MHC(M) and one small plastic jar is taken out. One bullet is present in the said jar and same is taken out and same is exhibited as Ex. P4 which is having mark EB1.
XXXX by Sh. Rajender Prasad, Ld. Legal Aid Counsel for accused Vinod.
ASI Sardar Singh was not present in police post when I informed him telephonically regarding the call vide a DD entry 38 PP. I cannot tell which call ASI Sardar Singh was attending when I informed him. He was in the area of police post but I cannot tell his exact location. It is wrong to suggest that I did not inform ASI Sardar Singh regarding the call vide DD entry 38 PP because I am unable to tell the DD number of the call which was being attended by ASI Sardar Singh. On 19.02.2016, we reached Sanjay Gandhi Hospital at about 10 AM. At that time I was present at Police Post and IO informed me telephonically, thereafter I joined him for going to SGM hospital. Two family members of the deceased were with us at the hospital. IO recorded the statement of family members near the mortuary SGM Hospital while sitting on the bench. I along with IO remained at the hospital till 3/ 3:30 PM. I myself typed my statement on the dictation of IO. I cannot tell the exact time when dead body of the deceased was handed over to the relatives. It is wrong to suggest that I was not present S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 14 of 57 with the IO in SGM Hospital on 19.02.2016. It is correct that the house of the accused is situated in a residential area. We did not enter in the house of the neighbors of accused. It is wrong to suggest that IO had not asked neighbors to join the investigation with them at that time. I do not remember whether the IO had noted down the names and addresses of the neighbors of the accused who were asked to join the investigations. The house of the accused Vinod was constructed upto 2nd floor. Only accused Vinod was present at his house when he was arrested. I have no knowledge that on the day of incident the police officer brought the brother of the accused Vinod namely Ravi in the police station. I have no knowledge that said Ravi was detained in police station till 21.02.2016. It is wrong to suggest that accused Vinod was arrested from Mohan Garden, Uttam Nagar, New Delhi after receipt of information from his brother Ravi. It is wrong to suggest that house of the accused Vinod was not searched, nor any katta was recovered at the instance of accused Vinod from the almirah of his house. It is wrong to suggest that accused did not make any disclosure. It is wrong to suggest that IO had prepared the disclosure of accused Vinod on his own as per his convenience to solve the case. We remained at the house of accused Vinod till 5 to 5:15 PM. It is wrong to suggest that the documents mentioned in my chief examination were not prepared at the spot but prepared at the police station. It is wrong to suggest that katta was procured from one kabadi who is running his shop near the house of co- accused Ashok and same was planted upon the accused Vinod. IO had not recorded statement of any other S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 15 of 57 person in my presence at the house of accused Vinod. The statement of police officials Ct. Ravi and Ct. Sajjan were recorded at the police station by the IO but I do not remember the exact time. It is wrong to suggest that I along with IO, Ct. Ravi and Sajjan had not gone at the house of accused Vinod on 20.02.2016. It is wrong to suggest that as we had not visited the house of accused Vinod of 20.02.2016 hence we do not know the names and addresses of neighbours of accused Vinod. I cannot tell the exact distance between the police station Punjabi Bagh and house of accused Vinod, however, house of accused was situated in the area of Sarai Rohilla. We had gone to the house of accused Vinod by Government gypsy. I do not know whether IO had registered in the log book regarding the departure of gypsy being used on that day by the IO. It is wrong to suggest that I am deposing falsely.
Xxx by Sh. Rajesh Kumar, Ld. Counsel for accused Ashok.
I do not know the exact distance between the house of accused Vinod and accused Ashok. It took about 20-25 minutes to reach at the place from where accused Ashok was apprehended from the house of accused Vinod. The police gypsy was being driven by Ct. Sajjan. Complainant was also present with us in the gypsy. The gali from where accused Ashok was arrested is a congested gali. IO has asked 3-4 passerby to join the investigation but they have refused to join the investigation as they have come to know that one of the accused has already been arrested and we were going to arrest co-accused. I do not remember who (known of accused Ashok) was informed regarding the arrest of S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 16 of 57 accused Ashok. Accused Ashok was arrested at about 6 PM and it took time about one hour to prepare documents at the spot. It is wrong to suggest that I had not joined the investigation of the present case. It is wrong to suggest that I am deposing falsely qua accused Ashok."
15. PW7 Sh. Lalit Kumar is the complainant in this case. His deposition is reproduced as under:
"On 18.02.2016, at about 8 PM accused Vinod had come to my house. He asked me to accompany him to consume liquor. My wife namely Aarti objected the same. Accused Vinod got angry and left my house. Accused Vinod again came to my house on the same day at about 10 PM. At that time I was lying on charpai and my son Yash was playing on my chest. My wife was on the bed beside charpai. A bullet was fired from the window. The bullet hit my son Yash. I immediately ran outside my house. I saw that accused Vinod was sitting on the motor cycle as a pillion rider. I identified the bike. The bike was bearing no. 9288 and was of red and black colour, make Hero Honda. I also saw the face of accused Vinod. The said motorcycle belong to accused Vinod. Accused Vinod and the person who was driving the motorcycle fled away. Thereafter, my wife took my injured son Yash to Maharaja Aggarsain Hospital. The son of my Tau namely Sunil also accompanied her. My son had sustained injury on his head. I was not feeling well and became semi unconscious and I did not accompany my wife. Thereafter, I also went to Hospital after 1 and a half hour after regaining consciousness.S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 17 of 57
At the hospital I saw my son. Police officers also reached at the hospital. Police made inquiry from me and recorded my statement Ex. PW7/A. My son remained admitted in the hospital. I and my wife returned to home. My remaining family members also reached at the hospital. Police reached at my house. A lead (chcharra) was found on the box which was in front of the char pai. Police seized the same vide seizure memo Ex. PW7/B which bears my signatures at point A. The blood stained piece of rajai was seized by the police vide seizure memo Ex. PW7/C which bears my signatures at point A. One gatta which was installed on the cooler and having hole was seized vide seizure memo Ex. PW7/D which bears my signatures at point A. Police prepared the site plan of my house which is Ex. PW7/E which bears my signatures at point A. My son had expired due to the bullet fired by accused and his postmortem was conducted in Sanjay Gandhi Memorial Hospital. I identified the dead body of my son vide memo Ex. PW7/F which bears my signatures at point A. Dead body of my son was handed over to us after postmortem vide memo Ex. PW7/G which bears my signatures at point A. On the next day i.e. 20.02.2016, I along with 5-6 police officials went to the house of accused Vinod. He was found present at his house. It was about 12 PM when we reached there. Police officers interrogated accused Vinod and arrested him vide a memo already Ex. PW6/C which bears my signatures at point B. His personal search was conducted vide a memo Ex. PW6/D which bears my signatures at point B. The disclosure statement was accused Vinod was recorded which is S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 18 of 57 already Ex. PW6/F which bears my signatures at point B. Accused Vinod led us to first floor and he got recovered pistol and two live cartridges from his almirah. Police official prepared the sketch of recovered pistol and live cartridges which is already Ex PW6/E which bears my signatures at point B. Same was seized vide a seizure memo Ex. PW7/H which bears my signatures at point A. Police also prepared the site plan of place of recovery which is Ex. PW7/I which bears my signatures at point A. After preparing the documents till 4 PM I returned to my house. Thereafter, police called me after about 2-3 hours that the co-accused has also been arrested. Then I went to police station. The other accused was present in the police station. Police told me that he is the same person who was with accused Vinod at the time of incident. I did not see the other accused who was at the driver seat of the motor cycle at the time of incident. I could see only Vinod. Arrest memo of accused Ashok already Ex. PW6/G which bears my signatures at point B and his personal search memo is already Ex. PW6/H which bears my signatures at point B. Accused Ashok accompanied accused Vinod at 8 PM to my house. However, I could not see the other accused after the incident.
At this stage, MHC(M) produced the case property in a sealed envelop with the seal of VRA. The seals are broken. The case property I.e. one piece of card board (gatta) is taken out from the parcel. The witness identified the same by saying that this is the same gatta having hole which was put behind the cooler. Same is Ex. P5.
One another envelop I.e. parcel no. 1 is produced by S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 19 of 57 MHC(M) with the seal of the Court. One katta having mark F1 is shown to the witness. The witness identified the same which is already Ex. P1. Three empty cartridges were also taken out from the same pullanda which is marked as EC1, A1 & A2 respectively. Two test bullets are also taken out from the said pullanda. The same are already collectively Ex. P2 & P3 respectively. And having the mark TB1 & TB2.
Another envelop Mark EB1 sealed with the seal of Court is produced by MHC(M) & One plastic jar is taken out. One lead of bullet is present in the said plastic dibbi. The same is already Ex. P4. One another envelop i.e. Parcel no. 3 having FSL no. 2016/B-2043 with the seal of FSL Delhi is produced by MHC(M). One blood stained piece of quilt cover is taken out from the envelop. Witness correctly identified the same which is Ex. P6.
Accused Vinod is present in the Court today. I identify the accused Ashok because he came to my house along with accused Vinod at 8 PM but I did not see him while they were fleeing after committing the offence at around 10 PM.
At this stage, further examination-in-chief is deferred for want of case property i.e. motorcycle and further evidence. I can identify the motor cycle mentioned above if shown to me.
At this stage, witness along with Ld. Defence Counsel and Naib Court are directed to go to the court complex compound parking where motor cycle was brought by MHC(M) PS Punjabi Bagh. After visiting there witness states that he has correctly identified the said motor cycle bearing registration no. DL 6S AG 9288 S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 20 of 57 make Hero Honda. The motor cycle is now Ex. P7. I can also identify the clothes of my deceased son. At this stage, parcel no. 1, sealed with the seal of FSL Delhi is produced by MHC(M). The same is opened and found to contain one woolen inner, one baniyan, one T shirt, and one pajami are taken out and shown to the witness which are Ex. P8 (colly.). At this stage, Ld. Addl. PP seeks the permission to cross examine the witness as he is not disclosing the complete facts due to long span of time. Permission granted.
Xxx by Sh. Ram Pyara, Ld. Addl. PP for the State. It is wrong to suggest that my statement was recorded by the IO on 20.02.2016. I had not stated to the police that on 20.02.2016, I along with IO and other police staff and along with case property and accused Vinod went to Gali no. 10, Than Singh Nagar,Anand Parbat, New Delhi from where accused Ashok present in the Court today who was standing on the road was arrested by IO on the pointing out of myself and accused Vinod or that I had told the police that Ashok is the same person who had ran away from the spot while driving the motor cycle along with accused Vinod after firing upon my son Yash. Confronted with portion A to A in statement mark PW7/A where it is so recorded. It is wrong to suggest that accused Ashok was arrested in my presence or that his arrest memo, personal search memo and his disclosure statement was recorded by the IO at the place of his arrest. It is wrong to suggest that I am not remembering this fact due to lapse of time.
XXXX by Sh. Rajender Prasad, Ld. LAC for
accused Vinod.
It is correct that when accused Vinod along with co-S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 21 of 57
accused Ashok came to my house at about 8 PM on 18.02.2016, they had not misbehaved and made any quarrel either with me or my wife. It is correct that accused Vinod is my brother-in-law (sandu bhai) and prior to this case we were having cordial relations between both the families. It is correct that in one case I and accused Vinod were the accused. It is correct that during the trial of said case when I was produced in the Court along with the accused Vinod we had some hot talks with each other. It is wrong to suggest that due to said hot talks exchanged with the accused Vinod I stopped talking to him even after being released on bail in the said case. It is correct that I have been facing trial as an accused in 3-4 cases in different courts. It is wrong to suggest that after the said hot talks I thereafter had hot talks with the accused Vinod on 2-3 occasions and on those occasions I threatened him to teach a lesson and also to implicate in false case. It is correct that on the 2nd occasion on 18.02.2016, at about 10 PM, when I heard the noise of fire arm, I came out of my house, I only noticed two persons on the bike while turning but I could not see their faces due to dark as it was night time. The distance where I noticed the said persons while taking turn at a bike was about 15-20 steps from my house. It is correct that there was no street light on the spot where I notice the said persons on the bike. It is correct that I did not notice the registration number of the bike I.e. DL 6S AG 9288 while said two person took turn in the lane. After the incident when my brother along with other persons went to the house of accused Vinod he flee away after leaving his bike and only thereafter the registration S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 22 of 57 number of the said bike was noticed by my brother. It is wrong to suggest that my brother did not visit the house of accused Vinod on the said night or that no such visit was ever happened by which registration number of bike was noted. It was about 11:30 PM - 12 Mid night in the same night when I was told about the registration number and fleeing away of accused Vinod from his house. The name of my cousin brother is Sanjay, my real brother Shailender went to the house of accused Vinod. I do not know the address of house of accused Vinod but it is in Sarai Rohilla Delhi. I cannot tell the distance of the house of accused Vinod from my house but on bike it will take around 20-25 minutes to reach there. I came to know about the above said facts in the Mahraraj Aggarsain Hospital when I reached there from my In laws house as I had also gone there in search of accused Vinod as his bike was at his parental house. It is correct that we made the search of accused Vinod only on the basis of suspicion. It is correct that in the first visit at about 8 PM when accused persons came to my house I did not notice from their conduct any threat to be extended to me or my wife. My in laws resides at Wazirpur, Madrasi Colony, Delhi. I went to my in-laws house on the bike of my friend but its registration number I do not remember. However, it was a Splendor bike. I had apprised my friend Golu about the incident. I did not stated my visit to my in-laws house on the bike to my friend to the police. I have conveyed my suspicion about accused Vinod to his wife as well as my in-laws when I visited their house. The wife of accused Vinod and my in-laws did not inquire the reason of my suspicion about accused Vinod. I reached at the house S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 23 of 57 of my in laws at about 11 PM and reached at the hospital at about 12 mid night. The wife of accused Vinod and my in-laws accompanied me to the hospital. My both brother in laws, wife of Dilar @ Rinku also accompanied me. It is wrong to suggest that police was not present at the hospital when I reached there.
When I reached at the hospital, my brother, cousin brother and other family members and neighbours were already present there. It is correct that police did not record my statement in the hospital. It is correct that statement of none else was recorded by the IO in my presence in the hospital.
In reply to Court question witness states that police made inquiry from me and my family members regarding the incident.
It is correct that I did not name accused Vinod and Ashok to the IO when he made inquiries from me in the hospital. We stated in the hospital at about 15-20 minutes and reached home around about 12:30 AM. It is correct that on the same night police did not visit our house and no writing work was done either at my instance or of my family members. It is correct that on 20.02.2016, I did not join the investigation of this case along with 5-6 police officials and no recovery was made. It is correct that accused Vinod and Ashok were not arrested at my instance on 20.02.2016. Vol. I was in Gar Mukteshwar on the said date. I came back to Delhi from Gar Mukteshwar around 6:30 PM. It is correct that at around 7:30 PM I was called to PS Punjabi Bagh. It is correct that both the accused persons were present in the PS and were being taken to hospital for their medical. It is correct that my signatures were obtained S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 24 of 57 on some written documents and on some blank papers.
It is correct that after 20.02.2016, I never joined the investigation of this case. It is correct that my statement was not recorded on 18.02.2016 and 20.02.2016. My wife was called in the PS. It is correct that none of my family member was called in the PS in my presence. It is wrong to suggest that statement of my wife was not recorded in my presence.
XXX by Sh. Rajesh Kumar, Ld. Counsel for
accused Ashok.
It is correct that I had not seen accused Ashok while driving the bike at the time of fire at my son Yash. It is correct that prior to this case I had never seen accused Ashok and nor he was known to me. It is correct that I had never seen accused Ashok in the association of co-accused Vinod at any point of time. It is correct that I had never visited at the house of accused Ashok at Gali no. 10, Than Singh Nagar,Anand Parbat, New Delhi.
At this stage, Ld. Addl. PP for State seeks permission to re-examine the witness as the witness has changed his version today pertaining to the role of accused Vino as well as identification at the spot of occurrence as well as recovery of weapon of offence at the instance of accused Vinod. Heard. Allowed.
I am illiterate. It is correct that on 20.08.18, I gave my statement in the court without any pressure, coercion and I was in the sane mind. I have given my statement voluntarily. I had deposed on that day about the role of incident and regarding my joining the investigation. It is wrong to suggest that today I am S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 25 of 57 changing my version from my earlier statement about the role of the accused persons because I have been won over by them being close relative i.e sadu (being brother in law of accused Vinod) and accused Ashok is his friend.
XXXX by Sh. Rajender Prasad, Ld. LAC for accused Vinod.
It is wrong to suggest that IO had tutored me on 20.08.18 prior to giving evidence in this court. Even none of the other person besides the IO tutored me as to what I had to depose in the court on 20.08.18. Court question: whatever you had deposed on 20.08.18 in the court, those were the correct facts of the incident as happened?
Answer: It is correct that I had stated only and only truth of the facts pertaining to the incident on 20.08.18."
16. PW-8 SI Devender Singh has deposed that on 18.02.16 while he was posted as Incharge crime team, on receiving information, he reached at the spot alongwith photographer HC Dilip, inspected the crime scene, prepared his report Ex. PW-8/A and handed over the same to IO Ajmer Singh.
17. PW-9 Statement of ASI Rajender Prasad, No. 5417/C, PS Anand Parbat.
"On 18.02.16 I was posted at PS Anand Parbat and was working as duty officer from 4:00 pm to 12:00 midnight. At about 11:43 pm I received information through wireless operator that "lal quarter punjabi bagh S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 26 of 57 mein goli chala kar bhaga thaa caller uska peecha kar raha thaa". I recorded this message in daily diary vide DD no. 37A and the contents of the same was informed to SI Manish Kumar for necessary action. Today I have brought original DD register. True copy of DD no. 37A is Ex. PW-9/A (OSR)."
18. PW-10 Gaurav Sharma that he alongwith his mother has been residing at H.No. 170A, Lal Quarter Punjbai Bagh and was working as a Generalist and sector 6 Noida, on 18.2.2016 while he was present in his house at about 10:30 pm heard a noise (Dhamake ki awaz) came out from the house and all neigbours also came out after hearing noise and after 2 minutes he saw a lady crying stating that "mere yash ko goli maar di", he being the responsible citizen made a call to 100 number to PCR from his mob. no. 9650172302 and within few minutes PCR came at spot. He has also deposed that house of said lady i.e. PW-3 situated after one house from his house and he used to call her bhabhi as he was not knowing his name. He has further deposed that name of the husband of the said lady is Vinod @ Lalit.
19. PW-11 ASI Sardar Singh deposed that on 18.02.2016 while he was posted at PP Madi Pur, after receiving DD no. 38 PP, he alongwith Ct Banwari Lal reached at premises no. 194A, Lal Quarter Punjabi Bagh and came to know that one child has received bullet injury and was taken to Mahraja Agarsen Hospital, thereafter, he deputed Ct. Banwari Lal at spot ad in the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 27 of 57 meantime, SI Nafe Singh the then ICPP and Insp. Ajmer Singh the then AATO also reached alongwith other staff. Thereafter they all went to Maharaja Agarsen Hospital, collected MLC of Master Yash (deceased) wherein doctor has mentioned alleged history, gun shot injury and patient was declared dead. Thereafter, doctor handed over sealed parcel alongwith sample seal to the IO which were taken into possession vide memo Ex. PW-11/A and IO recorded statement of PW-7 Lalit Kumar and thereafter reached at spot, also called crime team who inspected the crime scene, prepared report. PW-11 has also deposed that on the spot they also found bullet lid lying on the box inside the room which was seized vide memo Ex. PW-7/B and sketch of the same was prepared as Ex. PW-11/B. PW-11 has also deposed that IO has also seized the piece of quilt vide memo Ex. PW-7/C. Thereafter prepared rukka and got the FIR registered through him and the investigation was marked to Insp. Ajmer Singh and thereafter he handed over original rukka and copy of FIR to IO at the spot. Thereafter IO seized the motorcycle from the area of PS Anand Parbat on receiving call vide memo Ex. PW-11/C and have identified the same as Ex.PX. This witness has also identified the other case properties.
20. PW-12 ASI Om Prakash deposed that he was working as a draftsman and that on 01.03.2016 at the request of IO visited the spot, inspected the spot at the instance PW-7 and proved scaled site plan as Ex.PW-12/A on 10.03.2016.
S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 28 of 5721. PW-13 Ct. Banwari Lal deposed that on 18.02.2016 while he was posted at PS Madi Pur on receiving of DD no. 38 PP alongwith ASI Sardar Singh reached at the spot came to know that injured has been taken to hospital, in the meantime, SI Nafe Singh, IO AATO with other staff also reached there and I was directed to be remained present at spot by IO and other police officer alongwith other staff went to Maharaja Agarsen Hospital and after some time came back to the spot where crime team was called and the spot was inspected. Thereafter, on the instruction of IO he removed the dead body of deceased to mortuary of SGM Hospital alongwith written request of IO to preserve the dead body there.
22. PW-14 SI Harish Chander Pathak deposed that on 03.03.16 while he was posted as Nodal officer at CPCR/PHQ IP Estate, he issued certificate u/s. 65B addressed to SHO Punjabi Bagh and handed over the same to HC Sandeep alongwith PCR form which are proved as Ex. PW-14/A and B.
23. PW-15 Ms. Kompal, Scientific Assistance , Ballistic Division, FSL has deposed that on 16.03.16 the parcel bearing seal of AS, pertaining to this case opened in her presence containing one country made pistol and two live 8 mm cartridges. The photographs of said parcel was taken and memo in this regard is Ex. PW-15/A.
24. PW-16 Jai Dev, Driver, Transport Department has deposed S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 29 of 57 that on the direction, he has produced and proved as Ex PW-16/A the record of the vehicle no. DL-6SAG-9288 is registered in the name of Vinod.
25. PW-17 W/Ct. Anu Chaudhary that on 18.02.16 while she was posted as Constable at PHQ as operator recorded information by PCR phone Ex. PW-14/A and have proved the weeded out record of the same as Ex. PW-17/A.
26. PW-18 HC Sanjay deposed that on 16.03.16 while he was posted as PP Madi Pur, on the direction of IO taken 6 sealed parcel alongwith sample seal to FSL vide RC no. 39/21/16 and 40/21/16 and deposited the same and handed over the acknowledge to the said effect to MHC(M).
27. PW-19 HC Anil Kumar Yadav deposed that on 18/19.02.16 while posted as Incharge PCR van power-23, at about 10:32 pm after receiving information from control room with other staff reached the spot where they came to know the injured has already shifted to hospital by his parents, thereafter went to hospital where injured was found under treatment and have proved the copy of log book of PCR van as Ex. PW-19/A.
28. PW-20 Ct. Ravi deposed that on 20.02.16 while he was posted in PP Madi Pur, joined investigation of this case alongwith other police officers and complainant and reached the house no.
S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 30 of 579900, Ahata Thakur Dass, accused Vinod was found present and was arrested at the instance of complainant and thereafter IO prepared necessary documents qua the investigation conducted which has been proved as Ex. PW-6/C to F. PW-20 has also deposed that thereafter IO alongwith accused Vinod went to the house of accused Ashok (P.O) and arrested him and prepared necessary documents i.e. Ex. PW-6/G to I.
29. PW-21 Ms. Seema Nain, Assistant Director, FSL, Rohini deposed that on 16.03.16, she conducted biological and DNA examination on the four parcels and have proved her report as Ex. PW-21/A.
30. PW-22 Dr. Hari Shanker Sharma deposed that on 18.02.16 at about 10:30 pm injured Yash aged about 2 years was brought to the hospital, he examined him, who had sustained gun shot injury but he could not survive and at about 11.09 PM, he was declared dead and has proved the MLC Ex PW-22/A and death certificate as Ex. PW-22/B.
31. PW-23 Inspector Ajmer Singh deposed that on 18.02.2016, he was posted as ATO at PS Punjabi Bagh, Delhi and on that day, DD no. 38PP, PP Madi Pur was assigned to ASI Sardar Singh and he visited the spot. PW-23 has further deposed that he alongwith Incharge PP SI Nafe Singh went to the spot i.e. H.No.194 A, Lal Quarter, Punjabi Bagh and he came to know that one boy had S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 31 of 57 sustained bullet injury and his family members had taken him to Maharaja Agarsen Hospital. PW-23 has also deposed that Ct. Banwari Lal was left on the spot to guard the spot and he alongwith SI Nafe Singh and ASI Sardar Singh went to Maharaja Agarsen Hospital and he collected the MLC of the deceased namely Yash of 2 years old. PW-23 has deposed that the injured had already been declared dead and he seized the sealed parcel which was handed over to him by the doctor and the seizure memo is Ex. PW-11/A bearing his signatures at point B. He has further deposed that he recorded statement of father of deceased as Ex. PW-1/A bearing his signatures at point B and endorsement as Ex. PW-13/A. He further deposed that he alongwith other police officials and complainant returned back to the spot from hospital and prepared the site plan as Ex. PW-7/I bearing his signatures at point A and by that time crime team has already reached the spot as he had sent message from the hospital and crime team In-charge inspected the spot and crime team photographer took the photographs of the spot and ASI Sardar Singh was sent to PS alongwith rukka for registration of FIR and after sometime, ASI Sardar Singh returned to the spot after registration of FIR and handed over to me the rukka and copy of FIR. PW-23 wrote FIR number on the head of seizure memos which he had prepared before sending rukka, he converted the card board into a sealed parcel with the seal of AS and seized the same, seizure memo is already Ex. PW-7/B, he also seized the led of bullet in the above said manner vide seizure memo already Ex. PW-7/B1, he also seized piece of blood stained quilt vide seizure memo Ex. PW-7/C. He further deposed S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 32 of 57 that before sealing the led he had prepared its sketch which is already Ex. PW-11/B, he recorded statement of witnesses and deposited the case property with MHC(M). PW-23 Inspector Ajmer Singh that on 19.02.2016, he got post mortem of deceased conducted vide inquest papers collectively Ex. PW-23/B and after post mortem dead body of deceased body was handed over to his relatives, doctor handed over to him the parcel alongwith sample seal which he seized vide seizure memo already Ex. PW- 16/B, he also collected PM report from autopsy surgeon, he deposited the case property in mall khana and recorded the statements of witnesses, he made efforts to trace the accused but no clue was found. He has further deposed that on 20.02.2016, he alongwith staff and complainant went to the house of accused Vinod, he apprehended him at the instance of complainant Lalit, he interrogated him and arrested accused Vinod vide arrest memo already Ex. PW-6/C, his personal search memo is Ex. PW-6/D. He has further deposed that he recovered the weapon of offence at the instance of accused Vinod which he got recovered from lower shelf of iron Almirah kept in a room in his house at first floor and two live cartridges were also recovered at his instance. PW-23 has further deposed that he prepared sketch of fire arm and ammunition which is Ex. PW-6/E, a cartridge case was entangled in the barrel of the gun, he converted the above said articles in the parcel and seized them vide seizure memo already Ex.PW-7/H, he recorded his disclosure statement. PW-23 has further deposed that thereafter at the instance of accused Vinod, he apprehended co-accused Ashok from gali no. 10, Than Singh Nagar. Ashok was S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 33 of 57 interrogated and was arrested vide arrest memo Ex. PW-6/G, his personal search was taken vide memo already Ex. PW-6/H, he recorded his disclosure statement Ex. PW-6/I. Both the accused persons pointed out place of occurrence vide memo already Ex. PW-6/J and Ex. PW-6/K. PW-23 has further deposed that he returned to police station and deposited case property with MHC(M) and recorded statements of witnesses and during course of investigation he collect all the relevant documents of this case and placed them on the file and he also sent the case property to FSL Rohini for analysis and got the scaled site plan prepared through draftsman and took the same on record. He has correctly identified accused persons and the case property.
32. PW-24 Dr. Munish Wadhwan, Specialist Forensic Medicine, SGM Hospital deposed that on 19.02.16 he conducted post mortem of the deceased aged 02 years old and found injuries on his body mentioned at point X in his report and has opined that cause of death was craniocerebral damage as a result of fire injury and injury was ante mortem in nature and have proved his report running into four pages as Ex. PW-24/A.
33. Ld. Counsel for accused Vinod vide statement dated 07.04.2022 has admitted the documents u/s. 294 Cr.PC which are sanction u/s. 39 Arms Act accorded by Sh. S.S.Kalsi, Addl. DCP, West as Ex. PX and FSL report prepared by Sh. V.R. Anand, Asstt. Director,FSL, Rohini as Ex. PX1.
S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 34 of 57STATEMENT OF ACCUSED.
34. After completion of the prosecution evidence, the statement of accused, under section 313 Cr.P.C. was recorded so as to enable him to personally explain the circumstances appearing in the evidence against him. All the incriminating evidence were put to the accused to which he has denied, as being incorrect and have stated that a false case has been registered against him and he has been falsely implicated in this case. Accused did not lead any defence evidence.
REASONS AND DECISION
35. I have heard the Ld Addl P.P for the State and Ld Counsel for the accused. I have given my thoughtful consideration to the submissions being made by them and also perused the record carefully.
ARGUMENTS ON BEHALF OF ACCUSED
36. Ld Counsel for accused has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. It is argued that there is not an iota of evidence available on record to connect the accused Vinod with the instant case.
37. It is argued that there is not a single eye witness to the alleged incident of crime and the entire case has been built up by S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 35 of 57 the prosecution on the basis of circumstantial evidence and as such, it is the settled principle of law that in cases of circumstantial evidence, the entire chain of events should be complete and if there is a single gap in the chain, the accused is entitled to acquittal. It is further argued that in this case, there are many discrepancies in the story of the prosecution and hence, accused is entitled to be given benefit of doubt.
38. It is argued that as per the prosecution, PW-3 Aarti and PW- 7 Lalit Kumar, who are the parents of the deceased, are the material witnesses of the case. However, PW-3 has merely deposed that both accused had come on 18.02.2016 to take her husband with them, however, she told them that he will not accompany them as it was night time. She has also deposed that at about 10 PM on the same night, both accused had come on a motorcycle. She had seen them from the door. Thereafter, she heard noise of firing. Her husband ran out from the door leaving his son on the bed. She further deposed that her husband saw accused Vinod and Ashok fleeing from there on a motorcycle. Similary, PW-7, in his examination in chief has deposed that both accused had come on motorcycle at 10 PM. A bullet was fired from the window. He immediately ran outside his house and saw that accused Vinod was sitting on the motorcycle as a pillion rider but in his cross examination, PW-7 has not supported the case of the prosecution at all and has deposed that he could not see the faces of the accused as it was dark and there was no street light. He has also disputed the recovery of katta at the instance of accused Vinod from his house as well as his arrest. He S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 36 of 57 has also deposed that he did not even name accused Vinod and Ashok to the IO. He has even deposed that he had never seen Ashok in the association of accused Vinod at any point of time. It is, therefore argued that since the material witness, being the father of deceased and husband of PW-3, has not contradicted his wife PW-3 and has not supported the case of the prosecution at all.
39. Another argued raised by Ld. Defence counsel is that the recovery of the alleged weapon of offence from the house of accused Vinod is doubtful. It is argued that no one would keep the weapon of offence in almirah in his own offence after committing the crime and hence, the story of the prosecution is not at all plausible and casts serious doubt on the prosecution story and clearly makes it evident that the alleged recovery of weapon of offence has been planted upon the accused Vinod to work out the dead case.
40. It is also argued that IO did not even investigate as to from where the accused Vinod procured the alleged weapon of offence which further weakens the case of the prosecution and affirms the theory that the weapon of offence had been planted.
41. Another interesting and surprising fact which further raises doubt over the prosecution story is that though as per the prosecution case, the deceased was on the chest of complainant PW-7 at the time of alleged incident, however, no blood stain was found on the clothes of the complainant. It is also argued that the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 37 of 57 main reason why there was no blood stain on the clothes of complainant is the fact that there was a fight between PW-3 and PW-7 and PW-7 fired the gun shot at his wife/PW-3, however, the bullet missed her and hit the deceased child.
42. It is argued that even in the FSL report, nothing incriminating has come against the accused. Therefore, it is argued that in the absence of any evidence connecting the accused with the alleged crime, it is clear that prosecution has miserably failed to establish its case against the accused and hence, accused is entitled for acquittal.
43. It is also argued that the identification of accused Vinod by PW-3 and PW-7 becomes immaterial as accused Vinod is the relative of these witnesses.
44. It is lastly argued that it is the settled principle of law that if there are doubts in the prosecution story, the benefit of same must be given to the accused. In the instant case, there are major contradictions pointed out in the testimonies of the material witnesses which casts serious doubts over the prosecution story. It is also apparent that the present case is full of doubts and lacks consistency and merit and hence, the accused Vinod is entitled to be acquitted in the present case.
ARGUMENTS ADVANCED ON BEHALF OF THE STATE S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 38 of 57
45. While opposing the arguments of the accused Vinod, Ld Addl. PP for the State has argued that all the prosecution witnesses examined by the prosecution have firmly stood the test of cross examination and have been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs. It is argued by Ld. State Counsel that the instant case is of circumstantial evidence and as per the evidence produced and proved on record, the prosecution has been able to prove its case against the accused.
46. It is argued that from the deposition of PW-3 Aarti and PW- 7, who are the parents of the deceased child, it becomes crystal clear that both accused Vinod and Ashok were present at the spot at the time of the incident and immediately after the gun shot was fired, both of them had fled away from the spot on the motorcycle being driven by accused Ashok.
47. It is also clear from the testimonies of both the above witnesses that accused Vinod wanted to take revenge from PW-7 Lalit and was looking for an opportunity to kill him and on the date of incident, he had fired the gunshot aimed at PW-7, however, the gun shot hit his son deceased Yash. Hence, it is proved that accused Vinod had motive to kill PW-7.
S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 39 of 5748. As regards the argument of defence that the alleged recovery of weapon of offence was planted, it is submitted that the argument is without any merit in the absence of any cogent defence evidence.
49. As regards the argument that no blood stains were found on the clothes of PW-7/complainant despite the story of the prosecution that he was sitting on the chest of PW-7 and as such, it was complainant himself who had fired the bullet, it is quite evident from the photographs collectively exhibited as Ex. PW5/P-1 where it is amply clear that the bullet which had torn the cardboard on the window, has been shot from outside. Therefore, the argument of defence that because of the fight between PW-3 and PW-7, the complainant fired at her which instead hit the deceased, is completely concocted and falls to the ground.
50. So far as the argument of defence that PW-7 has not supported the case of the prosecution during his cross examination, it is argued that PW-7, in his examination in chief, has fully supported the case of the prosecution and even after the conclusion of his cross examination, in reply to the court question, he has categorically submitted that whatever he had deposed on 20.08.2018 was true facts. Therefore, the testimony of this witness is reliable and trustworthy.
51. It is also clear from the testimonies of PW-7 as well as PW-16 official from the Transport Department, who has produced and S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 40 of 57 proved the record of the vehicle no. DL-6SAG-9288 i.e motorcycle used in the crime and stated that same is registered in the name of accused Vinod which clearly establishes the role of accused Vinod in the crime.
52. It is further argued that as per post mortem report Ex.PW24/A, conducted on 19.02.2016, the death of deceased has been opined to have occurred at 11.09 PM on 18.02.2016. As per the testimony of PW-3 Aarti and PW-7 Lalit, the accused persons were lastly seen at 10.15 PM i.e. less than one hour prior to the death of deceased.
53. It is further argued that the present case is a case of last seen theory as well as the case based on circumstantial evidence. Both the last seen theory and the circumstantial evidences proved on record make the complete chain and sequence of events and clearly indicate towards the guilt of the accused.
54. I have given my thoughtful considerations to the record, the arguments advanced by both the sides.
55. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 41 of 57 becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
56. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 42 of 57 possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
57. Before adverting to the analysis of evidence which has come on record, it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
58. In the instant case, the accused has been charged with the offence u/s 302/34 IPC & u/s 25/27/54/59 Arms Act.
59. The court shall firstly deal with the essential ingredients for offence u/s 302 IPC which prosecution is required to prove in order to establish the charge against the accused.
60. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 43 of 57 the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on (1997) 2 Crimes 78 titled Narsingh Challan Vs. State of Orissa.
61. When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasis in later case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
62. Further, it is pertinent to mention here that in cases like death / murder generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 44 of 57 based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The jaw regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. it must be such as to show that within all human probability the act must have been done by the accused."
63. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 45 of 57 Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principles of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except that one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
64. The case at hand is, based on circumstantial evidence. When a case rests on circumstantial evidence, the circumstances must not only be consistent with the guilt of the accused, but must also be inconsistent with his innocence meaning thereby that every reasonable possibility of innocence of accused must be excluded before the accused is held guilty of an offence on the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 46 of 57 strength of circumstantial evidence.
65. Further, in a case of circumstantial evidence, it is incumbent upon the court to satisfy itself that (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
66. Now, I shall proceed to deal with the arguments of defence and determine if the circumstances in this case point towards the guilt of accused or his innocence.
67. The main argument of defence is that the material witness PW-7 Lalit, who is the complainant and father of deceased child has not supported the case of the prosecution during his cross examination and as such, the prosecution story has become doubtful and hence, accused persons are liable to be acquitted. To counter this argument, Ld. Addl. PP for State has submitted that though this witness has turned hostile during his cross examination, however, at the conclusion of his cross examination, in reply to court question, he has categorically stated that whatever he had deposed during his examination in chief recorded on 20.08.2018 were the true facts of the incident. This statement of the witness is of great significance as by this statement, witness has completely disowned his testimony recorded during his cross examination. In case Khujji@ Surendra Tiwari Vs. The State of Madhya Pradesh 1991 S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 47 of 57 1853, Hon'ble Supreme Court of India has held that where a prosecution witness is expressing doubt in cross examination, his examination in chief can be considered if it corroborates the version of other prosecution witnesses.
68. Similarly, in case Selvaraj @ Chinnapaiyan V. State (2015) 2 SCC(Cri) 198, Hon'ble Supreme Court of India has held as under:
"It is the settled principle of law that benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record. Merely for the reason that the witnesses have turned hostile in their cross- examination, the testimony in examination-in-chief cannot be outrightly discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution."
69. Furthermore, in case Vijay Pal Vs. State of Delhi 2014 SCC Online Del 3865, Hon'ble Supreme Court of India has made similar observations.
S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 48 of 5770. It is also pertinent to note that the cross examination of this witness was recorded on 19.02.2019 i.e after six months of recording of his examination in chief. It is also the peculiar circumstance of this case that accused Vinod happens to be the relative (sadu) of PW-7 and hence, this Court cannot ignore this fact that there is every possibility that he could have been pressurized by his own family as well as family of accused to turn hostile. Therefore, in view of the Khuji, Selvaraj and Vijay cases (supra) as well as in view of the peculiar circumstances of this case coupled with the corroborating testimony of PW-3, I am of the considered opinion that the examination-in-chief of PW-7 can be considered and safely relied upon.
71. As regards the argument of defence that recovery of weapon of offence from the house of accused Vinod is planted, it is the case of the prosecution that the weapon of offence has been recovered at the instance of accused on his disclosure statement. It is the settled principle of law that a disclosure statement of accused becomes admissible when any recovery is effected on the basis of disclosure statement of accused. In the present case, disclosure statement of accused led to the recovery of weapon of offence i.e katta (pistol) from the house of accused. Therefore, the disclosure statement of accused recorded in the present case has evidentiary value and becomes admissible in the present case and as such, the argument of defence that the said katta was planted upon the accused falls to the ground. I have also carefully perused the FSL report Ex.PX1. As per the report, the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 49 of 57 country made pistol recovered from the accused was found in working order.
72. Though the FSL report is not conclusive to establish the guilt of accused Vinod, however, the recovery of weapon of offence from the house of accused coupled with the fact that same was found in working order and the presence of both the accused at the place of crime at the time of incident definitely indicate towards the guilt of accused.
73. The other lame argument of defence is only of false implication without any supporting reasons. It is the settled proposition of law that in order to prove his innocence, the accused is under obligation to put forth the reasons and the circumstances leading to his false implication. However, in the present case, accused has failed to lead any defence evidence to prove his innocence.
74. Another argument put forth by the defence is that because of a fight between complainant and his wife/PW-3, the complainant fired at her which missed her and hit the deceased and due to this reason, there were no blood stains on the clothes of complainant. I have carefully perused the photographs collectively Ex.PW5/P-1. In the photographs, it becomes amply clear that the bullet had been fired from outside as there were holes in the cardboard found affixed on the window besides the air cooler. Further, this defence was put to the IO of the case PW- 23 Inspector Ajmer Singh in the form of suggestion, however, no S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 50 of 57 such suggestion was put to the complainant/PW-7, which makes it clear that it is merely an after thought, a concocted story just to wriggle out of the prosecution case, without any basis and merit. Therefore, this argument of defence is rejected.
75. Both PW-3 Aarti and PW-7 Lalit have deposed before the court that on the date of incident i.e 18.02.2016, both the accused persons had come to their house to take PW-7 with them, however, he refused to go with them. Thereafter, on the same day at about 10.15 PM, both of them had again visited their house on a motorcycle and both these witnesses had seen them and immediately after hearing the sound of gunshot which was hit on the head of deceased Yash, both the accused persons had fled away on the motorcycle of accused Vinod. As per the post mortem report Ex.PW24/A, the time of death is 11.09 pm. In other words, the presence of both the accused is proved and same is in close proximity to the time of death of deceased. Therefore, it is relevant to discuss the case laws with regard to the last seen theory.
76. The law with regard to the "last seen evidence" has been laid down by the Hon'ble Supreme Court in a recent Judgment, titled Ganpat Singh Vs. State of Madhya Pradesh, reported as 2017 (4) JCC 2592, where the Hon'ble Supreme Court held as follows in para 10 of the Judgment:
"Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 51 of 57 accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law as follows:
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
77. Hon'ble Delhi High Court in case titled Deepak Chaddha Vs. State, reported as 2012 (1) JCC 540, has held that deceased and the appellant were last seen together at 07.30 pm when the two left the house of the deceased, and that the deceased was found grievously injured happens to be a public street at around 10.15 pm and this time gap of about 2 hours and 45 minutes does not rule out the possibility of somebody else being the assailant.
78. Again Hon'ble High Court of Delhi in case titled Ravi Kumar @ Sonu Vs. State, reported as 2013 (2) JCC 1394, where S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 52 of 57 gap of 15 hours was there between last seen evidence and recovery of the dead body and it was held that possibility cannot be ruled out that in the course of the night other persons would have boarded the TSR of the deceased for killing him.
79. Similar were the findings of the Hon'ble High Court of Delhi in the case reported as 2011 (3) JCC 1532 and 2017 (2) JCC
932.
80. Judging in the light of the said law laid down by the said Superior Courts with regard to last seen evidence, PW-3 Aarti and PW-7 Lalit had seen the accused outside their house at about 10.15 PM and after firing gunshot they both fled in the motorcycle belonging to accused Vinod. As per the post mortem report Ex.PW24/A, the time of death of deceased is opined at 11.09 P.M. Therefore, it is clear from the circumstances that there was a time gap of only 54 minutes. In the said circumstances, there is no possibility of any other person intervening in between and the "last seen theory " is also applicable in the present case.
81. As regards the minor contradictions pointed out by the defence, considering the overall evidences brought on record and the circumstances of the case, these are not fatal to the case of the prosecution.
82. As regards the argument of defence that IO did not investigate as to from where the accused Vinod procured the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 53 of 57 weapon of offence, it is the settled proposition of law that defence has to stand on its own legs and they cannot take advantage of the lacunas of the prosecution story.
83. I have carefully perused the post mortem report conducted on 19.02.2016. As per the post mortem report Ex.PW24/A, the cause of death was craniocerebral damage as a result of fire injury and injury was ante mortem in nature. Therefore, it corroborates the story of the prosecution as per which the accused Vinod fired gunshot which hit the deceased.
84. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. To prove these two ingredients, it is relevant in this case to refer to the disclosure statement of accused Vinod which, as already discussed in preceding paragraphs, has become admissible due to the recovery of weapon of offence, hence, it is important to read the entire disclosure statement. In the disclosure statement, accused Vinod has disclosed that in the year 2015, he alongwith PW-7 were co-accused in a theft/snatching case and on a date of hearing, prior to 6-7 month of the date of incident, PW-7 slapped him outside the court in front of everyone because of which he felt humiliated and he decided to take revenge from PW-7 Lalit. He further stated in his disclosure statement that he shared this incident with co-accused Ashok who agreed to help him in taking revenge from PW-7. Thereafter, accused Vinod had been looking for an opportunity to take revenge from PW-7, however, he could not find one. On the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 54 of 57 date of incident, accused Vinod alongwith co-accused Ashok in pursuance to their revengeful mind, had planned to take PW-7 with them for a liquor party and then to murder him, however, when they reached at PW-7 Lalit's house, he refused to accompany them. Since their plan had failed, both of them went to the in laws house of accused Vinod where they consumed liquor and returned to the house of PW-7 and fired gun shot from outside in the hope it would kill PW-7, however, the bullet instead hit the deceased child Yash.
85. The above piece of evidence which points towards the guilty mind of accused Vinod gets corroborated from the complaint of PW-7 proved as Ex.PW7/A wherein he has stated that above fact of beating the accused Vinod a court case, due to which he wanted to take revenge from him.
86. Therefore, in view of the post mortem report and the testimonies of PW-3 and PW-7 and the recovery of weapon of offence from the house of accused Vinod, the presence of both the accused at the spot at the time of incident on the motorcycle belonging to the accused Vinod, and the sequence of events as discussed above completes the chain of circumstances and also clearly corroborates the version of the prosecution witnesses as well as the prosecution story.
87. Therefore, if the entire evidence that has come on record and the post mortem report is read cumulatively, they conclusively point towards a definite possibility that the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 55 of 57 deceased must have been killed by the accused persons and none else.
88. This court is well aware of the settled principle of law that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. However, in the instant case, there was no other possibility available and the entire evidence clearly indicates towards the only possibility that it was the accused Vinod who alongwith co-accused had committed the murder of deceased Yash.
CONCLUSION.
89. Therefore, in view of the above discussion, I am of the considered opinion that being the position on facts and in law the chain of facts and circumstances and the connecting links stands proved. The prosecution has been able to establish or prove its version by proving circumstantial evidence unerringly pointing out towards the guilt of the accused persons and ruling out any hypothesis of innocence of the accused. In sum and substance, the prosecution has been able to bring the entire chain of evidences which, in totality, lead to a definite conclusion that in all human probability, it is the accused persons, who on the date of incident, came to the house of PW-7/complainant, in order to take revenge, fired gunshot aimed at PW-7, which instead hit the deceased child, which led to his death. Resultantly, both the S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 56 of 57 accused persons are held guilty of offences punishable u/s 302/34 IPC. Further, it has been proved on record that the weapon of offence i.e country made pistol alongwith two live cartridges have been recovered from the possession of accused Vinod without any license and hence, he is also held guilty for offence punishable u/s 25/27 Arms Act.
90. Accused Ashok is already a proclaimed offender, hence, let accused Vinod be heard on the point of sentence.
Digitally signed POORAN by POORAN ANNOUNCED IN THE OPEN CHAND CHAND Date: 2022.05.25 COURT ON THIS 24th day of 14:11:58 +0530 May, 2022 (POORAN CHAND) ADDL. SESSIONS JUDGE-02 (WEST):DELHI S.C No.57716/16 State Vs Vinod Kumar & Anr. Page 57 of 57