Delhi District Court
Sc No. 57949/16 Fir No. 169/11 Ps Aman ... vs . Vidhya Bhushan Page No. 1 Of 48 on 21 March, 2018
-1-
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 57949/2016
FIR No. 169/11
P.S. Aman Vihar
U/s. 302 IPC and
25/27 Arms Act
State
Versus
Vidhya Bhushan @ Shashi Bhushan @ Guddu
S/o. Dilip Singh
R/o. Dindayal Singh Ka Tola
Village Rupas
Distt. Patna, Bihar
Date of institution : 03.10.2011
Judgment reserved on: 05.03.2018
Judgment delivered on: 21.03.2018
ORDER/JUDGMENT: The accused is convicted of the
charge(s) u/S 302 IPC as well as u/S.
25(1B)(a) and 27(1) of Arms Act, 1959.
J U D G M E N T
1. Brief facts, as stated in the chargesheet are that on receipt of DD
No. 33PP on 05.06.2011, SI Mahavir Singh along with Ct. Manmohan
and Ct. Bachu Singh reached the spot i.e. DDA Ground, Prem
Nagar3, where at the spot there was a pandal of Pooja and on the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 1 of 48
-2-
stage near the right side of pandal, blood was lying and was lead was
also lying there and on the curtain on the right side, there was a hole
of bullet. On inquiries, it was revealed that one Jyoti Prakash @ JP
(hereinafter referred to as deceased) had received bullet injury and
he had been removed to Sanjay Gandhi Hospital.
Thereafter, SI Mahavir Singh after leaving Ct. Bachu Singh at
the spot, reached at Sanjay Gandhi Hospital and obtained the MLC
of Jai Prakash @ J. P., who had been admitted into the hospital with
the history of gun shot injury. Thereafter, he recorded the statement
of Mehar Singh, his father, who stated as under :
That he was an agriculturist and his son mentioned
above, was residing in Prem Nagar3, along with his
wife Rinku @ Lali. His son told him that he was
holding a yagya, which will start from 30.05.2011 and
will continue till 07.06.2011 and invited him to join
the same. He along with his wife reached the house
of his son for joining the said yagya on 28.05.2011.
Like everyday, the yagya started at DDA
Ground, near Sukhi Nehar, Prem Nagar3, at around
4:30 - 5:00 pm, in which many persons of the locality
and their known joined, at around 7:45 pm after the
finish of aarti, when his son went to take down
Maharaj Ji from the aasan and was alighting from the
stairs of the stage, somebody fired from behind the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 2 of 48
-3-
curtain which struck him on his back, who fell down.
When he peeped through the shamiyana, he saw one
young person having rucksack on his back and was
having a pistol in his hand, was running from the
back of the shamiyana, 23 persons from the yagya
also ran after him. The said person turned after
running some distance and thereafter he ran away
into a gali. He could identify the said person, if
shown to him. His daughterinlaw, nephew and
certain other persons removed his son in a private
car to the hospital, who during the treatment died.
2. On the said statement, endorsement was made by SI Mahavir
Singh, who sent Ct. Manmohan to the police station for the
registration of FIR u/S. 302 IPC. Crime Team was called at the spot.
Inspector Anil Kumar took up the investigations of this case. The
crime team lifted the relevant exhibits from the spot and took the
photographs from the spot. The site plan was prepared of the spot.
Exhibits were seized and were deposited in the malkhana.
3. The dead of the deceased was shifted to Sanjay Gandhi Hospital
for post mortem, where the post mortem was got conducted.
4. On 21.06.2011, on receipt of secret information, SI Sumit Kumar
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 3 of 48
-4-
along with the police party reached the native place of the accused
Vidhya Bhushan @ Shashi Bhushan and he was arrested from his
native place. He also made a disclosure statement after his arrest.
Thereafter, he was brought to Delhi and an application for TIP was
moved, which he refused. Thereafter, his police custody remand was
obtained for three days and during the said police custody remand,
he got recovered from village pond of Mubarkpur Dabas, one plastic
polythene, which contained one katta and one live cartridge and one
empty cartridge which were seized, Section 25/27 of the Arms Act
were added. The post mortem report was obtained in which the
doctor had opined as follows :
"Death is due to shock and hemorrhage consequent
upon firearm injury number one. Firearm injury
number one is sufficient to cause death in ordinary
course of nature"
5. The relevant exhibits were sent to FSL for forensic evaluation.
6. After completion of investigation(s), a charge sheet u/s 302 IPC &
25/27 Arms Act was filed in the court of Ld. MM.
7. On committal of the case to the Court of Sessions, vide order
dated 19.10.2011, charge(s) u/s 302 IPC and 25/27 Arms Act were
framed against the accused, to which he pleaded not guilty and claimed
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 4 of 48
-5-
trial.
8. Thereafter, prosecution in support of its case has examined 17
witnesses :
a) PW1 is DR. M. Das, CMO, Sanjay Gandhi Hospital, who
has proved the MLC Ex. PW1/A of deceased Jai Prakash.
b) PW2 is Mukesh, who had identified the dead body of
deceased vide memo Ex. PW2/A and handing over of dead
body of the deceased vide memo Ex. PW2/B.
c) PW3 is Mehar Singh, complainant in this case, who has
deposed about the mode, manner of incident as well as
identity of the accused. He has proved his statement given to
the police Ex. PW3/A.
d) PW4 is HC Jai Singh, Duty officer, who has proved the
registration of FIR in this case vide Ex. PW4/C on the basis of
rukka sent by SI Mahavir Singh through Ct. Manmohan Singh.
e) PW5 is HC Ami Lal, MHC(M), who has proved the
relevant entries made in the Register no. 19 vide Ex. PW5/A
regarding the deposit of pulandas in the PS malkhana by
Inspector Anil Kumar. He has also proved the copy of road
certificate register vide Ex. PW5/C and Ex. PW5/E.
f) PW6 is Ct. Kamal, Photographer, Crime Team, who took
10 photographs of the spot from different angles and proved
the same vide Ex. PW6/A1 to A10 and their negatives as Ex.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 5 of 48
-6-
PW6/B1 to B10.
g) PW7 is Dr. Munish Wadhawan, Specialist Forensic
Medicine, SGM Hospital, who has proved the Death Summary
of deceased vide Ex. PW7/A.
h) PW8 is Shamsher Singh, a public witness, regarding the
motive part, who has deposed that Rinku @ Lali was his
dharam behan and thereafter she started residing in his house
as a tenant and also started collected rent from other tenants.
i) PW9 is Ct. Om Prakash, who was working as a
computer operator at PS Aman Vihar. He has proved the
certificate u/S. 65B of Indian Evidence Act Ex. PW9/A
regarding recording of FIR No. 169/11 on computer.
j) PW10 is Sandeep, another eye witness, who has
deposed about the mode and the manner of the incident, as
also regarding the identity of the accused.
k) PW11 is Sanjay, who was the previous landlord of the
accused who has stated that in the year 2009, accused along
with Rinku @ Lali resided in his house in one room on rent
and that the accused used to beat his wife due to which she
was upset.
l) PW12 is Rajender Singh, another witness of motive, who
has also deposed that accused and Rinku @ Lali were living
in a house in Prem Nagar as husband and wife and is also a
witness with regard to the facts subsequent to the incident and
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 6 of 48
-7-
prior thereto regarding certain facts stated to him by the
accused that he would eliminate the husband of Rinku @ Lali.
m) PW13 is DR. Manoj Dhingra, CMO Mortuary, SGM
Hospital, who has proved the PM report of the deceased vide
Ex. PW13/A.
n) PW14 is Ct. Kailash Chand, to whom the IO had hand
handed over one sealed pullanda along with PM and MLC
reports for placing the same before Dr. Manoj Dhingra.
o) PW15 is Rajesh Kumar @ Raja, is another witness with
regard to the fact of motive and who was the friend of the
deceased, having worked with him as a driver.
p) PW16 is Brahm Pal, the public witness, who had joined
the investigations at the time of the recovery of the country
made pistol as well as live cartridge and empty cartridge
lodged inside the pistol, by the accused from inside the village
pond on 28.06.2011, pursuant to his disclosure statement, in
whose presence the IO had prepared the sketch and seized
the same.
q) PW17 is Ct. Manmohan Singh, who had joined the
investigations along with SI Mahavir Singh on 05.06.2011.
r) PW18 is HC Raj Kumar, who had joined the investigation
along with SI Sumit, Ct. Sanjeev and Ct. Rupesh on
17.06.2011. He has proved the arrest of accused vide memo
Ex. PW18/A and his personal seach memo Ex. PW18/B.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 7 of 48
-8-
s) PW19 is Ct. Haider Mehdi, who had joined the
investigations along with Inspector Anil Kumar on 28.06.2011.
He has proved the pointing out memo made by the accused
vide Ex. PW19/A and also deposed about the recovery of
katta and its measurements.
t) PW20 is SI Deepak Malik, Incharge Crime Team, who
has deposed about the inspection conducted by him at the
spot, vide his report Ex. PW20/A.
u) PW21 is Inspector Manohar Lal, Draftsman, who has
proved the scaled site plan of the spot prepared by him at the
pointing out of Inspector Anil Kumar vide Ex. PW21/A.
v) PW22 is Ms. Shunali Gupta, Ld. ACMM, Rohini Courts,
Delhi who has proved the TIP proceedings qua accused
Vidya Bhushan vide Ex. PW22/A to PW22/D.
w) PW23 is WCt. Anju, who was posted at PCR, PHQ on
05.06.2011. She deposed that she received information from
some unknown from mobile no. 8287563576 and recorded the
same into the PCR form Ex. PW23/A.
x) PW24 is Ct. Bachu Singh, who had joined the
investigations along with SI Mahavir and Ct. Man Mohan on
the date of the incident i.e. 05.06.2011.
y) PW25 is Smt. Rinku @ Lali wife of deceased Jyoti
Prakash. The star witness of the prosecution with regard to
the fact of motive.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 8 of 48
-9-
z) PW26 is SI Sumit Kumar, who had deposed about the
investigations conducted by him qua the apprehension and
arrest of accused in this case. He has correctly identified the
case property in the court vide Ex. P1, P2 and PX.
a1) PW27 is Inspector Mahabir Singh, initial IO in this case,
who has deposed regarding the investigations as were carried
out by him during the course of the present case.
b1) PW28 is Ms. Poonam Sharma, Sr. Scientific Officer,
Biology, FSL Rohini, who has proved the biology report of the
exhibits vide Ex. PW28/A and the serological report Ex.
PW28/B.
c1) PW29 is Ct. Rakesh Kumar, DD Writer at Police Post
Prem Nagar, who has deposed about receipt of message from
DO PS Aman Vihar, regarding firing in the fields near Prem
Nagar Tripathi Enclave and who reduced the same in writing
vide DD No. 33 Ex. PW29/A.
d1) PW30 is Dr. P. Karunakaran, IPS (the then Addl. DCP1,
Outer District, Delhi), who has proved the sanction accorded
by him u/S. 39 of Arms Act vide Ex. PW30/A.
e1) PW31 is Inspector Anil Kumar, IO in this case who has
deposed regarding the investigations as were carried out by
him during the course of the present case. He had correctly
identified the accused as well as the case property in the
court.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 9 of 48
-10-
9. During the course of evidence, Sh. Pradeep Chaudhary, Ld.
Counsel for the accused, vide his separate statement did not dispute
the FSL report being the Government document and admitted the same
as Ex. PX1.
10. Thereafter, statement of accused u/s 313 Cr.P.C. was recorded in
which the entire incriminating evidence appearing against the accused
was put to him, in which the defence of the accused was that he had
been falsely implicated in the present case. He further stated that all the
public witnesses in this case were interested witnesses and had
deposed falsely at the instance of the complainant and IO, in order to
complete the investigation of a untraced case. He chose to lead
evidence in his defence. However, no defence witness was examined
by him in the court and vide separate statement dated 15.01.2018, Ld.
Counsel for the accused closed his defence evidence.
11. I have heard Sh. Ankur Sharma, Ld. Amicus for the accused and
Sh. V. K. Negi. Ld. Addl. PP for the State.
12. Ld. Defence counsel had argued that the prosecution case is
based upon the direct testimony of PW3 Mehar Singh and PW10
Sandeep, their testimonies are not trustworthy, especially the testimony
of PW3 Mehar Singh, as from the crossexamination of PW10 Sandeep
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 10 of 48
-11-
and PW25 Rinku @ Lali, it is evident that as per the prosecution case
itself, PW10 only had chased the unknown assailant. He also submits
that the distance between the said assailant and the person chasing
was quite a lot and it was not possible to see the face of the said
person from such a long distance, as the time of the incident was night
time, therefore, there was no sufficient light available to see the face of
the said assailant. He also submits that no description of the said
assailant had been mentioned by the complainant PW3 in his initial
complaint made to the police or by PW10 Sandeep in his statement.
He further submits that PW3 in his crossexamination had stated
that PW25 Rinku @ Lali was involved in the murder of his son, which
fact had not been properly investigated by the IO. He further submits
that PW25 Rinku @ Lali had stated that in fact one Rajinder was also
responsible for the murder of the deceased which facts had also not
been properly investigated. He further submits that PW25 is not a
reliable witness as she had married thrice and her role in the entire
episode is quite shady which has not been investigated at all by the
investigating agency. He also submits that no range / distance of fire
has been told by the post mortem expert or by the ballistic expert, as to
the range from which the fire had been shot at the deceased.
He further submits that no police official of Bihar or Jharkhand had
been examined to prove that the accused had been arrested from his
native place. He also submits that the place of recovery of the pistol /
katta is a public place, no videography of the said recovery had been
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 11 of 48
-12-
done nor any finger prints were found belonging to the accused on the
said pistol to connect him with the present case. Therefore, the said
katta had been planted upon him. He also submits that number of
persons had motive to eliminate the deceased including PW25 Rinku @
Lali, who wanted to usurp the property of the deceased. Therefore, he
submits that in these circumstances, the prosecution has failed to prove
its case against the accused beyond reasonable doubt and he is liable
to be acquitted.
13. On the other hand, the Ld. Addl. PP for the State has argued that
the case of the prosecution is based upon direct evidence, in the shape
of PW3 Mehar Singh, the father of the deceased and PW10 Sandeep.
Both of them had chased the assailant after he had fired upon the
deceased from behind the curtain at the place, where yagya / katha
was being held. He further submits that there was sufficient illumination
at the spot, which is evident from the site plan PW21/A to see the face
of the assailant, as both the said witnesses had clearly seen the face of
the assailant from a close distance. He further submits that the
testimonies of PW3 and PW10 have not been demolished after their
crossexamination and they have remained firm. He also submits that
regarding the motive part, the prosecution has examined PW8, PW11
PW12, PW16 and PW25, saying that the accused had earlier married
or lived in live in relationship with Rinku @ Lali. Thereafter, he went to
his native place and when he came back, he found that the deceased
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 12 of 48
-13-
had married with Rinku @ Lali. Thereafter, he confided with PW12
before the incident that he would not spare the deceased, who had
married Rinku @ Lali. He further submits that the recovery of katta /
pistol has been proved by the testimony of independent witness PW16
Brahm Pal, PW26 SI Sumit Kumar as well as from the testimony of IO
Inspector Anil Kumar that the accused got recovered the said pistol
along with live cartridge and empty cartridge from a village pond,
pursuant to his disclosure statement which is admissible u/S. 27 of
Evidence Act.
He further submits that the ballistic report and the post mortem
report clearly show that there was blackening as well as tattoing around
the bullet injuries found on the body of the deceased, which shows that
the assailant had fired upon the deceased from a close range. He also
submits that the identity of the accused has been clearly established as
PW3 and PW10 had clearly seen him on the date of the incident, while
chasing him after the incident and the accused had refused to undergo
TIP on 25.06.2011, which also goes against him. Therefore, he submits
that prosecution has been able to prove the case against the accused
beyond any reasonable doubt, and the accused is liable to be convicted
u/s 302 IPC and u/S. 25/27 Arms Act.
14. I have gone through the rival contentions.
The present case can be discussed under the following
headings :
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 13 of 48
-14-
DIRECT TESTIMONIAL EVIDENCE
15. PW3 Ram Mehar in his testimonial deposition before the court
has deposed as under :
"I am an agriculturist. My son Jyoti Prakash
(now deceased) was residing in the year 2011 at H.
No. B68, Adarsh Singh Nagar, Prem Nagar, Delhi
along with his wife Rinku @ Lali. My son Jyoti
Prakash informed me that he was organizing a
yagya (yag) from 30.05.2011 to 07.06.2011 at DDA
Ground, Prem Nagar near to his house and called
me and my wife at Delhi. I along with my wife came
to Delhi at the house of my son on 28.05.2011. On
the next day, Sandeep son of my brother also came
there i.e. at the house of Jyoti Prakash. As per
programme, the yag was going on at DDA Park,
Prem Nagar as per scheduled time from 4:30/5:00
pm up to 8:00/8:15 pm daily from 30.05.2011
onwards.
On 05.06.2011 as usual the yag was going on and
on the last stage when "Aarti" was about to finish
and my son was in the process of getting down the
"Maharaj" from the stage at about 7:45 pm. I and
my wife and other relatives were also with him
(son) when he got down and reached near the
hanging curtain (purda), a bullet shot him on the
back of my son Jyoti Prakash fired form behind the
curtain. As a result, my son fell down on the
ground and the blood was oozing out from the back
of my son. Then we went on the back of the curtain
and found one person was running away and then I
along with 23 other persons tried to chase that
person then in that process the running person
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 14 of 48
-15-
looked back at us and then fled away in the gali.
That person was having revolver in one hand and
was having a bag lifting on his back by strips on
the shoulder. I can identify that person if shown to
me. That person is present in the court (the
witness made a pointed finger towards the
accused. Witness identified the accused correctly).
After that, I returned to the spot and saw that my
son Jyoti Prakash was removed by my relatives to
the hospital in the vehicle of "Maharaj Ji". I also
went to the hospital after a little while and when
reached to the hospital, my son Jyoti Prakash was
declared dead. I had seen the dead body of my son
and identified it. My statement was recorded to this
effect and the statement is Ex. PW3/A signed by
me at point A. After postmortem, the dead body
was handed over to us vide receipt Ex. PW2/B
signed by me at point B and we took the dead body
to our native village. Police present at the SGM
Hospital also recorded my statement on 05.06.2011.
My statement is Ex. PW3/B signed by me at point
A.
On 28.06.2011 I along with my nephew Sandeep
went to the police station for knowing the progress
of the case. The accused was present in the PS
and on seeing him, myself and my nephew
Sandeep informed to the police that the person
present in the PS was the same person who was
seen by us when he was escaping from the spot
after firing a shot on my son when yag was going
on. Police has also recorded my statement to this
effect and name of that person was came to know
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 15 of 48
-16-
as Vidya Bhushan @ Guddu. I have also informed
about the incident to the police during interrogation
and police prepared the site plan Ex. PW3/C at my
instance.
Later on after about two months, when I visited
Delhi for lifting our articles form the house, I came
to know about the reason of firing shot on my son
by the accused that wife of my son Rinki @ Lali has
also previously married to some another fellow
before marrying with me son Jyoti Prakash. We
were not aware about the previous marriage of my
daughter in law Rinki. My son had married with
Rinki in the temple in ordinary way. Thereafter, we
4/5 persons came to Delhi and gave our acceptance
to this marriage and after performing the marriage
ceremonies, my son with Rinki was taken to our
native village house. After living 2/3 days there, my
son Jyoti Prakash alongwith his wife Rinki shifted
to Delhi at Prem Nagar. The wife of Jyoti Prakash
married again and is not of good character. Rinki
had compelled us to sold all our land costing
around Rs. 27 lacs. One house which was
purchased for Rs. 3 lacs during the life of Jyoti
Prakash, after his death, she (Rink) also got
mutated the ownership of that house in her name.
The house in which my son Jyoti Prakash was
residing bearing no. B68, Prem Nagar, Delhi was
purchased for Rs. 13 lacs and it was told by him
that after the yag is over its registry will be get
done (yag khatam hone ke baad isski bhi registry
ho jayegi). Before the registry of the said house
could be done, the incident in question occurred.
Rinki and accused had been living together and
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 16 of 48
-17-
they had also changed two houses. I have full
suspicion that Rinki has got murdered my son Jyoti
Prakash (mujhe poora shak hai ki usi ne mere bete
ko marwaya hai)."
16. The said witness was extensively crossexamined. He stated in
his crossexamination that his son got married with Rinki on
11.05.2011. He also stated that he along with his nephew had chased
the assailant after the incident. He also stated that he chased the
assailant for about 5060 yards. He heard the sound of one bullet shot,
he was by the side of his son Jyoti Prakash, deceased at the time he
was fired upon. He also stated that no police personnel was on duty at
the pandal at that time, the assailant had fled after firing towards the
colony side, which is thickly populated, but he does not know the name
of the persons who had chased the assailant with him. However, he
and his nephew chased him. This witness also stated that Rinki i.e. the
wife of the deceased had got murdered his son.
17. PW10 Sandeep is another eye witness with regard to the incident
dated 05.06.2011. He has more or less corroborated the version of
PW3 the complainant regarding the time, place as well as the manner
of the incident. He has also corroborated the version of PW3 that Ram
Khata was going on the ground from 01.06.2011 to 07.06.2011 and the
same was organized by his deceased brother Jyoti Prakash. He has
also stated that after the bullet was fired from behind the curtain of
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 17 of 48
-18-
shamiyana, which hit his deceased brother on his waist and passed
through his chest, he immediately came out of the shamiyana to look
out who had fired upon his brother, he had seen the accused Vidhya
Bhushan at that time carrying a pithoo bag on his back and carrying a
pistol in his right hand, when he was running. Besides him, two more
persons from the Katha also chased the accused, and when they were
chasing him, the accused turned up his face towards him and he had
seen his face and thereafter he ran away. He immediately returned
back to shamiyana, where he found his brother in a pool of blood, who
was taken to SGM Hospital in private car by his bhabhi. He also
identified the accused as the person who had fired upon his brother in
the court.
PW10 was also crossexamined by the defence. In his cross
examination he had stated that he had attended the marriage of
deceased with Rinki @ Lali, at the time of firing deceased was at a
distance of 45 feet from him, there was temporary arrangement for
light in Puja. He further stated at the time of chasing, the distance
between him and the accused was around 50 feet, he returned to
shamiyana after about 3 minutes of chasing the accused, at that time,
his bhabhi and tau ji (Mehar Singh i.e. the complainant) were present
with the deceased. He further stated that he had taken deceased to
hospital with his bhabhi, which is even otherwise corroborated from the
MLC of the deceased Ex. PW1/A in which the person who had taken
the hospital to SGM Hospital, has been mentioned as PW10 Sandeep.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 18 of 48
-19-
18. PW25, though, is a witness primarily with regard to the motive
part and other circumstances i.e. the fact that Ram Katha had been
organized at the place of the incident during the relevant period, she
has also deposed regarding the manner of the incident as has been
deposed by PW3 and PW10 and their presence at the spot at that time.
however, she in her crossexamination has stated with regard to the
chasing of the accused that she came to know later on that only
Sandeep i.e. PW10 chased the assailant.
19. From the analysis of the crossexaminations of PW3, PW10 and
PW25, it is apparent that only PW10 had chased the assailant, as it is
hard to believe that PW3 would have also chased, especially so as
PW10 in his crossexamination has stated that after three minutes of
chasing, he returned back to the shamiyana, at that time his bhabhi and
tau ji (Mehar Singh) were present with the deceased. PW10 was aged
17 years of age at the time of deposition on 23.04.2017 i.e. to say he
was around 15 years of age at the time of the incident and PW3 was
aged 60 years at the time of recording of his deposition on 17.05.2012,
i.e. to say he was 59 years of age, at the time of the incident.
Therefore, it is hard to imagine that he would have run faster than a boy
of 15 years of age and would have come back to the shamiyana after
three minutes of chasing and still found PW3 present there by the side
of the deceased. Further, PW25 Rinki @ Lali has also stated in her
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 19 of 48
-20-
crossexamination that only his brotherinlaw chased the assailant.
Therefore, it appears from the above discussion that PW3 had not
actually chased the accused after the incident of firing and only PW10
had seen the accused running away from the spot after the incident of
firing which killed his brother Jyoti Prakash.
The Ld. Amicus has argued that the conviction of the accused
cannot be based upon the testimony of a sole eye witness. Moreso, as
in the present case it is not the prosecution case that it was only PW10
who was present at the spot, as number of other public persons were
also there and admittedly they had also chased the accused, but they
had not been made witnesses in the present case. He has further
argued that if PW3 can be introduced as a witness in the present case,
then what stopped the prosecution from planting PW10 to improve its
case.
20. In any case, it is settled law that it is not necessary that in all
cases, the testimony of sole witness is not credible or trustworthy
unless corroborated by testimony of any independent witness. In this
regard law has been laid down in the judgment Anil Phukan Vs. State
of Assam AIR 1993 Supreme Court 1462, which reads as under :
"3. This case primarily hinges on testimony of a single eye
witness Ajoy PW3. Indeed conviction can be based on the
testimony of a single eyewitness and there is no rule of law
or evidence which says to the contrary provided the sole
witness passed the test of reliability. So long as the single
eye witness is a wholly reliable witness the courts have no
difficulty in basing conviction on his testimony alone.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 20 of 48
-21-
However, where the single eyewitness is not found to be a
wholly reliable witness, in the sense that there are some
circumstances which may show that he could have an
interest in the prosecution, then the courts - generally insist
upon some independent corroboration of his testimony, in
material particulars, before recording conviction. It is only
when the courts find that the single eye witness is a wholly
unreliable witness that his testimony is discarded in toto
and no amount of corroboration can cure that defect."
The said judgment is squarely applicable to the facts and
circumstances of the present case as in the present case, the testimony
of PW10 is consistent, fully reliable, cogent and trustworthy and its
credibility has not been eroded after his crossexamination on the anvil
of observational sensitivity, objectivity and veracity. The probative force
of his testimony has remained more or less intact even after incisive
crossexamination by the defence.
IDENTITY OF THE ACCUSED
21. Regarding the identity of the accused, PW10 in his cross
examination had stated that there was temporary arrangement of light
in the Puja, similarly initial IO SI Mahavir Singh, who went to the spot
for conducting the initial investigations and who had collected the bullet
lead form the scene of crime and who had recorded the statement of
the complainant Ex. PW3/A also stated in his crossexamination that
there were arrangements of lights in the ground, therefore, it appears
that there was sufficient illumination available at the spot to see the face
of the accused. Similarly, PW21 Inspector Manohar Lal, the draftsman
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 21 of 48
-22-
who had prepared the scaled site plan by visiting the spot, which is Ex.
PW21/A, has shown high power electric pole and flood light electric
pole in the said site plan, his testimony has not been demolished in the
crossexamination. Therefore, it is apparent from his testimony as well
that there was sufficient illumination available at the spot.
22. Further, regarding the identity, IO Inspector Anil Kumar has stated
that the accused had refused to undergo TIP on 25.06.2011. The said
refusal of the TIP has been proved by PW22 Ms. Shaunali Gupta, then
MM, Rohini, who had conducted the TIP proceedings on 25.06.2011, in
which the accused had refused to join the TIP proceedings despite
warning that the same may go against him. The same proceedings are
Ex. PW22/A to Ex. PW22/B. The said fact also goes against the
accused that he did not wanted to participate in the TIP proceedings to
test the observational sensitivity of PW3 and PW10, i.e. to say whether
they had indeed seen him running away after shooting the deceased
Jyoti Prakash. His explanation that he had been shown to the
witnesses in the police station does not hold any ground, as the IO has
deposed the police custody remand of this accused was obtained for
three days on 27.06.2011 and PW3 and PW10 have stated that on
28.06.2011 when they went to the police station for finding out the
progress of their case, they had seen the accused in the police station
and they informed the police that he was the same person who had
been seen by them escaping after the incident of firing from the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 22 of 48
-23-
shamiyana.
Since the accused had refused to undergo TIP on 25.06.2011 and
he was duly identified by PW10, who actually seems to have seen the
accused running away from the spot after firing towards his deceased
brother, consequently, his observational sensitivity to find out as to who
the said person was, had been tested in the police station itself on
28.06.2011, as there was no other alternative for the investigating
agency to do the same, once accused had refused to undergo TIP on
25.06.2011. Therefore, identity of the accused has been clearly
established and PW10 had sufficient opportunity to see him, as PW10
had stated that while chasing, accused turned his face then he saw him
and there was sufficient illumination also available at the said place to
clearly see the face of the accused running away from the spot.
The observational sensitivity of the witness PW10 was
immediately tested after the incident dated 28.06.2011 in which he
correctly identified the accused and later on in the court during his
deposition when he again correctly identified the accused. Therefore,
any chances of errors in perception or observation are ruled out in
these circumstances, regarding the fact that there was a distance of 50
feet between the accused and PW10 at the time of chasing him. The
same also did not in any way seems to have affected the powers of
observation of PW10 as PW10 was a young and tender boy of 15 years
of age at the time of the incident, at the said age, the eye sight and all
the mental faculties of any person are almost at full strength, which
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 23 of 48
-24-
tends to diminish only after certain age and PW10 also stated that he
had chased him for about 2030 feet. Therefore, there was sufficient
time available with PW10 to clearly observe the physical traits and the
facial features of accused as PW10 had also stated that he saw the
face of the accused when he turned back while running away when he
was chasing him. Consequently, there is no doubt whatsoever
regarding the identity of the accused.
MOTIVE
23. Regarding the motive part, prosecution has examined various
witnesses, PW8 is one of them. He in his deposition has stated that
Lali @ Rinki was his dharam behan, and she started collected rent from
other tenants, belonging to him, as she started to reside in his house as
a tenant in two room set of the first floor and thereafter Lali @ Rinku
came in contact with deceased Jyoti Prakash @ JP and got married
and they both started residing in his house. However, his parents were
not agreeing to the marriage, as Jyoti Prakash was their only son. He
also stated that Lali @ Rinki had told him that accused had resided in
his house as a tenant. He further submitted that he had not given any
of his room to accused on rent, but it might have been given by Rinki @
Lali.
24. The next witness on the point of motive is PW11 Sanjay, who has
deposed that in the year 2009, accused used to reside in his house in
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 24 of 48
-25-
one room on the first floor with his wife Lali. At that time, he was
working at Dwarka and they stayed there for two and half months on
rent and the accused used to quarrel with his wife and they were upset
with the same. Thereafter, he vacated their house and shifted to some
other house. The Lali had left the accused, as she was upset and got
married with somebody else.
25. Similarly, PW12 Rajinder Singh is the witness of the same fact i.e.
on the point of motive. He has also deposed that one Rinku @ Lali was
having one plot in his neighbourhood, who was wife of one Rajjan
Singh. Thereafter, she started residing with accused after leaving
Rajjan Singh in a rented house of PW8 Shamsher, as husband and
wife. The relations between them were strained and thereafter, the
accused left for his native place in Bihar, after leaving Rinku @ Lali in
the said rented accommodation. After about one and half months, he
came back and told him that she had married with J.P. He also told him
that he had also heard the same to which he said "mein unhe dekh
lunga". Thereafter, accused left for Prem Nagar, where Rinku @ Lali
was residing with deceased in the house of PW8. Thereafter, he met
him in the 6th or 7th day of June, 2011 at village Mubarakpur. At that
time, he was carrying one bag of black colour. Thereafter, he was
declared hostile by the Ld. Prosecutor for the State and was cross
examined, wherein he stated that his statement was recorded by the IO
on 08.06.2011 and it was correct that accused had stated before him
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 25 of 48
-26-
prior to the incident "wah (Lali) meri nahin hui to kisi ki bhi nahin
hone dunga." He tried to pacify him and he brought this fact to the
notice of Rinku @ Lali. He also stated that he had told the police that
accused along with one more person, whose name he told as Hari
came to him in village Kanjhawla, while he was carrying a black colour
bag and he provided him shelter in a temple in village Kanjhawla.
When he asked accused, what was being kept by him in the said bag,
he replied "isme aapke kaam ki cheez nahi hai".
He further stated in his examination by the Ld. Prosecutor that on
06.06.2011, at about 10:00 am, accused along with one boy Hari met
him at Mubarakpur Bus Stand and asked him to provide him Rs. 1,000/
and on his refusal, he insisted. He also requested him to keep his
articles with him and on his repeated requests, he gave him Rs. 250/.
He further stated that the accused had threatened him by say "chup
rehna verna tera bhi yahi haal karunga, jo JP ka kiya hai."
Thereafter, he stated that he does not remember, if he said so.
26. Though, no doubt the probative force of testimony of this witness
as a whole is diminished by the fact that he was crossexamined by the
very prosecution, who had examined him as a witness on their behalf.
However, after his crossexamination by the defence and taking into
account his being declared hostile by the prosecution, his testimony still
as a whole, remains in the realm of credibility. In any case, he is a
witness of corroborative fact of motive not with regard to the incident or
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 26 of 48
-27-
the fact in issue.
27. The next witness of motive and the star witness of the prosecution
in this regard is Rinku @ Lali, whose testimony gives interesting
reading. She has stated in her examination that she earlier got married
with one Rajjan Singh, got divorced and started residing with her
brother namely PW8 Shemsher Singh and accused was also living in
the house of her brother as a tenant and wanted to marry her. After 10
days of her marriage with deceased, accused came there to collect his
belongings and said "hamse shaadi nahi ki, kabhi sukhi nahi rahogi,
mein tujhe bhi sukh se rehne nahi dunga". She was also declared
hostile by the prosecution, thereby diminishing the probative force of
her testimonial deposition. She further stated that one common friend
Rajinder was equally responsible for murder of her deceased husband,
as was accused. She was also crossexamined, she stated that she
was at the spot on the date of the incident. Her father in law, mother in
law, sister in law were also there.
With regard to the motive part, she in her crossexamination
stated that she divorced Rajjan Singh, PW8. He is her dharam bhai
and the residence address given by her, is of him i.e. PW8. However,
in her entire examination and crossexamination, she has denied that
she had ever married the accused or lived in live in relationship with
him, which fact has been stated to be so by PW11 and PW12. There is
no reason to doubt their testimonies on this aspect. She also tried to
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 27 of 48
-28-
deflect the blame of the death upon one Rajinder. As a whole, the said
witness is a dicey witness and is not very reliable, as she has shifted
her stands at different places during her testimony as a whole.
However, her testimony remains relevant with regard to the motive part
that accused had threatened her and also with regard to the time, place
and the manner of the incident of holding of yagya and the incident of
firing, which resulted into the death of her husband. It appears that she
had deliberately denied the factum of marriage or live in relationship
with the accused and it appears that since she married the deceased in
the absence of the accused, when he had gone to his native place,
which naturally was not to the liking of the accused, who was badly hurt
and jolted by the said act. Consequently, he had confided with PW12
that if she did not belong to him, she will not belong to anyone else.
Therefore, it appears that the marriage of PW25 with deceased was the
ignition point, which actuated the accused to kill the deceased.
28. The cumulative effect of the testimonies of PW8, PW11, PW12 is
that accused was badly hurt by the marriage of PW25 Rinku @ Lali with
the deceased, when he had gone to his native place and he had also
confided with PW12 that he would not tolerate this and thereby in the
heat of rage, he had the motive to eliminate the deceased, who was the
married partner of his once love / wife / live in partner.
RECOVERIES
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 28 of 48
-29-
29. Regarding the recovery part, in this regard the testimonies of
PW16 Brahm Pal (independent witness), PW26 SI Sumit Kumar and
PW31 Inspector Anil Kumar, IO are relevant. The relevant portion of
the testimony of PW31 IO in this regard is reproduced as under :
"As per the disclosure of the accused, he further
lead the police team to pond of Mubarkpur village
and he pointed out a place and told us that he had
thrown the weapon of offence in the said pond. I
requested the passers by to join the investigation
and one Braham Pal S/o Nawab Singh agreed to join
the investigation. Accused alongwith Ct. Haider
Mehandi went inside the pond. After the search,
accused traced one white colour polythene which
was tied up. Same was opened and checked and
found one country made pistol alongwith one live
cartridge in a black colour cloth bag. On checking
the country made pistol, one fired cartridge was
recovered inside the chamber of the country made
pistol.
I prepared the sketch of country made pistol
alongwith live cartridge and fired cartridge which is
already Ex. PW16/A bears my signatures at point B.
The said weapons and ammunition were converted
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 29 of 48
-30-
into a pulanda after same was measured and sealed
with the seal of AKG. FSL form was filled. Pulanda
was taken into possession vide seizure memo
already Ex. PW16/B which bears my signatures at
point B."
The testimony of PW31 in this regard is corroborated by the
testimony of PW26 SI Sumit Kumar, who had gone to the native place
of the accused from Delhi on 18.06.2011 and had arrested the accused
on 21.06.2011 from his house, near Deen Dayal Singh Ka Tola, in
Village Rupas and who had arrested him vide arrest memo Ex. PW18/A
and personal search memo Ex. PW18/B. He also recorded the
disclosure statement of this accused Ex. PW18/C. Thereafter, the
accused was brought to Delhi in muffled face and (thereafter, since the
accused had refused to undergo TIP on 25.06.2011, his police custody
remand was obtained on 27.06.2011). Thereafter, the accused along
with Inspector Anil Kumar, Ct. Haider Mendi and father of the deceased
Mehar Singh along with accused reached the place of occurrence and
the accused got recovered a black colour polythene from inside the
pond, which was opened and was found to contain one country made
pistol and one live cartridge and one empty cartridge, which was also
found lodged inside it and at the time of recovery, one public person
Brahm Pal was also present.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 30 of 48
-31-
30. The testimonies of PW26 and PW31 in this regard is
corroborated with the testimony of PW16 Brahm Pal, independent
public witness, whose testimony has also converged with the
testimonies of PW26 and PW31 in this regard. Nothing has come out in
his crossexamination which could impinge the recovery of said weapon
along with cartridges. Though, no doubt, it was asked in the cross
examination examination of the IO that the said proceedings were
neither photographed or videographed, but the same was not
necessary, if the same would have been done, it would have lent
additional assurance to the said recovery, which in any case is even
otherwise credible due to the discovery of weapon pursuant to the
disclosure statement which is admissible u/S. 27 of the Evidence Act.
Though, the PW16 and PW26 have admitted that many other public
persons were also present there at that time, however, it was not
necessary for the IO to join all the public persons present there as
witnesses, as it is not the quantity of the evidence, but the quality of the
same, which is necessary to prove a particular fact in any trial. In any
case, nothing has come out in the crossexamination of any of the
recovery witnesses, which could throw doubt on the recovery of said
weapon along with cartridges pursuant to the disclosure statement of
the accused.
In this regard, it has been held in Geejaganda Somaiah Vs.
State of Karnataka, AIR 2007 SC 1355 as under :
Section 27 is a proviso to sections 25 and 26 of the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 31 of 48
-32-
Act. Such statements are generally termed as
disclosure statements leading to the discovery of
facts which are presumably in the exclusive
knowledge of the maker. Section 27 appears to be
based on the view that if a fact is actually discovered
in consequence of information given, some guarantee
is afforded thereby that the information was true and
accordingly it can be safely allowed to be given in
evidence.
It was further held in State Vs. Jeet Singh AIR 1999 SC 1293 as
under :
"Concealment is not necessary for admissibility of
evidence under section 27 of the Act. There is nothing
in section 27 which renders the statement of the
accused inadmissible if recovery of the articles was
made from any place which is 'open or accessible to
others'. The crucial question is not whether the place
was accessible to others or not but whether it was
ordinarily visible to other. If it is not, then it is
immaterial that the concealed place is accessible to
others."
The said judgments are apposite to the facts of the present case.
Therefore, there is no doubt with regard to recoveries in this case.
Same have been proved beyond any shadow of doubt.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 32 of 48
-33-
OTHER CORROBORATIVE EVIDENCE
Ballistic Evidence
31. With regard to the corroborative, ballistic evidence, PW27 initial
IO Inspector Mahavir Singh, who went to the spot on receipt of DD No.
33PP and 38A of PS Aman Vihar on 05.06.2011, at about 8:17 pm has
deposed that when he reached DDA Ground near Dry Canal, Prem
Nagar, PartIII, a tent was erected in the ground and on the right side of
the tent, near stairs there was a blood on the spot, bullet lead and there
was a hole in the tent with blackening. The crime team also reached
there and seized the bullet lead along with the other relevant exhibits.
PW27 in his examinationinchief had also identified the said bullet lead
seized from the spot as Ex. P7.
PW31, IO Inspector Anil Kumar has also deposed regarding the
said fact of recovery of empty lead from the spot, which was seized by
him with the seal of AKG along with the other relevant exhibits. The IO
during his testimony in the court also identified the country made pistol,
one live cartridge and one empty cartridge which were recovered at the
instance of the accused. The same were exhibited as P1 and P2
respectively. PW10 Sandeep had also identified the said pistol, after
firing which accused was running away from the spot as Ex. P1 and the
live and empty cartridge as Ex. P2.
32. The relevant ballistic reports have been proved as Ex. PX1 and
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 33 of 48
-34-
PX2. In the ballistic report of FSL, Rohini dated 19.01.2012, the empty
lead found at the spot was sent for comparison to find out, whether the
same had been discharged from the country made pistol of .315 bore
Ex. F1, which was recovered at the instance of the accused vide
seizure memo Ex. PW16/A, pursuant to his disclosure statement Ex.
PW18/C. However, it was opined in the report Ex. PX1 as under :
The individual characteristics of striations present on
the bullet marked exhibit 'EB1' are insufficient for
examination & comparison to opine whether it has
been discharged through the country made pistol .315"
bore marked exhibit'F1' in connection with Case FIR
No.169/11, PS Amar Vihar (FSL 2011/F4633) or not.
33. In another FSL report with regard to the ballistics Ex. PX2, dated
1901.2012 in which the said country made pistol of .315 bore marked
as F1, was sent to FSL, Ballistics Division along with one 8 mm / .315
cartridge which was live marked as A1, to find out whether it could be
fired from the said weapon. Along with this one 8 mm / .315 cartridge
case marked as EC1, which was found lodged in the said weapon itself
at the time of the recovery was also sent, as also along with this one
pink colour tent curtain marked Ex. T1 having one suspected hole
marked as H1 was also sent and as per the report Ex. PX2, following
opinions were given :
"......
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 34 of 48
-35-
(4) The individual characteristics of firing pin marks
and breech face marks of the cartridge case marked
exhibit 'EC1' and on the test carrying cases marked
as 'TC1' to 'TC3' were examined & compared under
the Comparison Microscope Model Leica DMC and
were found identical. Hence, it is opined that the
cartridge case marked exhibit 'EC1' has been fired
through the country made pistol .315" bore marked
exhibit 'F1'.
(5) The swab taken at and around the hole marked as
'H1' of the tent curtain marked exhibit 'T1' was
analysed along with control swab in the Atomic
Absorption Spectrophotometer (AAS) for
detection of Gunshot Residue (GSR) particles. As a
result of AAS analysis, GSR particles could be
detected in the swab taken from the hole marked as
'H1' of the tent curtain marked exhibit 'T1'.
(6) The exhibits marked 'F1'/'A1' & 'EC1' are
firearm/ammunition as defined in the Arms Act 1959."
34. Though the empty lead found at the spot immediately after the
incident of firing could not be connected with the country made pistol
got recovered by the accused as having been discharged from the
same weapon, however, at the same time, the empty cartridge which
was found lodged in the said pistol itself at the time of recovery of the
same at the instance of the accused was found to have same individual
characteristics of firing pin marks and breech face marks as were found
on the test cartridge cases fired through the country made pistol of .315
bore i.e. TC1 and TC3 and the marks present on TC1 to TC3 were the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 35 of 48
-36-
same which were found on the empty cartridge case EC1. Therefore, it
was opined that cartridge case Ex. EC1 had been fired through the
country made pistol of .315 bore i.e. the pistol got recovered by the
accused from inside the pond wrapped in the polythene bag. Therefore,
it is clear that since the empty cartridge was present in the said pistol at
the time of the recovery, therefore, the bullet must have been fired from
the same leaving behind the empty cartridge embedded in the pistol
itself.
35. Further the gun shot residue particles were detected in the hole of
the curtain through which the bullet was fired and travelled towards the
deceased, which also supports that prosecution story that the said hole
had been created by passing of the bullet through it on the date of the
incident. Therefore, these corroborative piece(s) of evidence clearly
supports and strengthens the prosecution story.
MEDICAL EVIDENCE
Post Mortem Report & MLC
36. Regarding the next piece of corroborative evidence i.e. the post
mortem report, PW13 Dr. Manoj Dhingra, CMO Mortuary, SGM Hospital
has been examined by the prosecution, who has proved the post
mortem report of the deceased as Ex. PW13/A. He has deposed that
at the time of conducting post mortem on the body of the deceased, the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 36 of 48
-37-
following injuries were found :
"1. Firearm entry wound 2.2 cm x 2 cm with abrasion
collar around it. Tattooing in area of 3.5x3.5 cm and
blackening in area of 5.2x5.2 cm around it, present
over right back of chest 6.5 cm right to middle and 31
cm below and middle of clavicle. The wound is
directed posterior to anterior, right to left, below to
upwards piercing underlying muscles and fracturing
underlying 10 rib posteriorly with fracture fragments of
bone turning inwards and effusion of blood in soft
tissues. On further dissection would is going into
abdominal cavity piercing right lobe of liver,
diaphragm and right lung lower part with effusion of
blood in adjoining soft tissues.
2. Firearm exit wound 2.8cmx1.2 cm oval in shape
margins slightly everted present over right side and
front of chest 5 cm right to midline and 16.5 cm below
right clavicle. On fine dissection 5 rib is fractured with
fractured fragments coming out wards and effusion of
blood in soft tissues and below it track is meeting with
above described entry wound.
3. Laceration 1x0.5x0.5 cm present over right thumb
with fracture of distal phalanges of right thumb."
He has further opined that the cause of death was due to shock
and hemorrhage consequent upon firearm injury number 1 and the fire
arm injury no. 1 was sufficient to cause the death in ordinary course of
nature.
He was also subjected to crossexamination. He has stated that
tattooing and blackening appear when distance between the body and
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 37 of 48
-38-
muzzle is 15 to 20 cm. He has further deposed as under :
"...If cloth is kept just in front of the muzzle of .315
pistol and victim is at a distance of 1520 cms. and then
it is fired, some of the blackening, tattooing and burning
shall appear on the entry wound and cloth shall burn
away..."
The testimony of PW13 Dr. Manoj Dhingra is also corroborated by
the injuries found on the dead body of the deceased which have been
proved as per the MLC Ex. PW1/A, as per which on local
examination, it was found that there was an anti (sic) entry wound
on the posterior aspect (right side) of chest with blackening. He
was also having an exit wound on the right side of the anterior
aspect of the chest.
37. No doubt the presence of blackening and tattooing at the entry
point of the wound in bullet injuries, generally is a sure shot sign of
close range fire, as the burning and the singing and tattooing takes
place due to the burning of the body tissue from the heat generated by
the projectile of the bullet. But the leading Indian Author Sh. B. R.
Sharma, in his book Forensic Science in Criminal Investigations &
Trials' Fourth Edition has written at page(s) 476 & 477 of the said book
as under :
(9) The country made fire arms do not have
rifling. The projectiles fired from them, therefore,
do not require a spin. The aim and range are
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 38 of 48
-39-
consequently seriously affected even when the
bullets fired are of standard rifle ammunition.
(10) As the semi burnt / unburnt powder particles
are also hurled along with the other ejecta, the
powder range may thus increase. The data for
standard firearms do not hold good for the country
made firearms.
XXXXXX
(12) In an excessively large bore the bullet may
get bent due to striking against the barrel walls at a
angle. The bent bullet may mislead the
investigations, as the bullet are also met with
ricochet.
In view of the above opinion of the renowned ballistic expert, the
range of fire is seriously affected in case of projectiles fired through
country made pistols, as has been used in this case, as they do not
have rifling. Due to hurling of unburnt powder, powder range does
increase further the data for standard fire arms, does not usually apply
for country made pistols.
In the present case from the perusal of the site plan Ex. PW3/C, it
is apparent that the accused had fired upon the deceased from a close
range. Therefore, the presence of burning and singing as well as
tattooing corroborate the version of the prosecution that accused had
fired upon the accused from behind the curtain from close range, which
resulted into his death. Further, as per FSL report Ex. PX1, the bullet
lead, which was seized from the spot had a nose portion deformed.
The said deformation of the nose portion may also result due to the
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 39 of 48
-40-
bending of the bullet due to striking of barrel walls at an angle in a
country made pistol. This also supports the prosecution story that a
country made pistol had been used in the present case.
The tangibles i.e. the pistol, the live cartridges, empty cartridges,
bullet lead, carpet blood stained, the curtain having bullet hole and the
clothes of the deceased clearly further supports the prosecution story
and makes it more stronger.
Regarding the offence(s) u/S. 25/27 Arms Act, in the present
case, though the accused was not found in actual possession of the
country made pistol at the time of his arrest, but pursuant to his
disclosure statement Ex. PW18/C, he got recovered the present country
made pistol along with one live cartridge along with one empty cartridge
lodged inside the said country made pistol, which were seized vide
memo Ex. PW16/B. The sketch of the country made pistol is Ex.
PW16/A.
Now does the possession of the accused qua the said country
made pistol would only mean the physical or actual possession or the
same also includes constructive possession, having power and control
over the said weapon. This query has been answered by the Hon'ble
Supreme Court in the following judgment :
Gunwantlal Vs. The State of M.P. AIR 1972 Supreme Court 1756,
wherein it has been held as under :
"The possession of a firearm under the Arms Act in
our view must have, firstly the element of
consciousness or knowledge of that possession in
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 40 of 48
-41-
the person charged with such offence and secondly
where he has not the actual physical possession, he
has nonetheless a power or control over that
weapon so that his possession thereon continues
despite physical possession being in someone else.
If this were not so, then an owner of a house who
leaves an unlicensed gun in that house but is not
present when it was recovered by the police can
plead that he was not in possession of it even though
he had himself consciously kept it there when he
went out. Similarly, if he goes out of the house
during the day and in the meantime someone
conceals a pistol in his house and during his
absence, the police arrives and discovers the pistol,
he cannot be charged with the offence unless it can
be shown that he had knowledge of the weapon being
placed in his house. And yet again if a gun or firearm
is given to his servant in the house to clean it, though
the physical possession is with him nonetheless
possession of it will be that of the owner. The
concept of possession is not easy to comprehend as
writers of Jurisprudence have had occasions to point
out. In some cases under Section 19(1)(f) of the Arms
Act, 1878 it has been held that the work "possession"
means exclusive possession and the word "control"
means effective control but this does not solve the
problem. As we said earlier, the first precondition
for an offence under Section 25(1)(a) is the element of
intention, consciousness or knowledge with which a
person possession the firearm before it can be said
to constitute an offence and secondly possession but
can be constructive, having power and control over
the gun, while the person to whom, physical
possession is given holds it subject to that power
and control. In any disputed question of possession,
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 41 of 48
-42-
specific facts admitted or proved will alone establish
the existence of the de facto relation of control or the
dominion of the person over it necessary to
determine whether that person was or was not in
possession of the thing in question."
The said judgment is squarely applicable to the facts of the present
case. All the parameters laid down in the said judgment are duly met in
the present case, as the accused got recovered the said country made
pistol pursuant to his disclosure statement from inside the village pond
which he had concealed and which was in his exclusive knowledge.
Therefore, he can said to have constructive as well as conscious
possession of the same as well as control and dominion over the same.
The sanction u/S. 39 Arms Act had also been duly accorded by the
concerned DCP which is Ex. PW30/A and in fact his testimony has not
been assailed at all on this point by crossexamining him.
38. Since the accused was not carrying any licence or permit for the
possession of the said firearm, live cartridge as well as empty cartridge
lodged in the weapon of 8 mm, which he got recovered pursuant to his
disclosure statement of .315 bore, the same is in violation of Section 3
of the Arms Act and consequently, accused stands convicted u/S.
25(1B)(a) of the Arms Act.
39. The accused had also used the same as discussed above,
without possessing any licence or permit, as per Section 5 of the Arms
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 42 of 48
-43-
Act for killing the deceased. Though the present country made pistol as
well as live and empty cartridges lodged in the weapon, which is of .315
bore, does not fall in the prohibited category nor the live cartridge or
empty cartridge of 8 mm found along with the same, but since the
accused had used the said country made pistol and ammunition without
possessing any licence or permit, as requisite u/S. 5 of the Arms Act,
he also stands convicted u/S. 27(1) of the Arms Act, 1959.
FACTS EXPLAINING AWAY THE PROSECUTION CASE
40. The Ld. Amicus had argued that there are certain explanatory facts, which take away the probative force of the prosecution evidence namely that the testimony of PW3 is doubtful, which point has already been dealt above and has been discarded. Therefore, nothing remains to be discussed on this aspect.
41. He has also argued that PW3 has said that PW25 Rinku @ Lali was involved in the murder of his son, which aspect has not been properly investigated. He further submits that PW25 in turn has stated that one Rajinder was equally involved in the murder of the deceased, which has also not been properly investigated, therefore, he has submitted that two other suspects, as per the prosecution witnesses itself may have been responsible for the death of the deceased. Therefore, this shows that the accused has been falsely implicated in this case.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 43 of 48 -44- The said argument though attractive at first glance, does not carry any force as from the testimony of PW10 it is clear that it was the accused, who ran away from the spot after firing upon the deceased from the pistol and he was also chased by PW10 and certain other public persons, and the witnesses of motive PW8, PW11, PW12, PW16 and PW25 have clearly deposed that the accused was looking for an opportunity to eliminate the deceased, as she had married the deceased in his absence, which was not to his liking and he had also confided with PW12 that he would not spare the deceased and that the accused had also visited him after the incident seeking shelter, at that time he was also carrying a bag on being asked what was being carried in the bag, he stated that it was not useful thing for him. Thereafter, the accused had also taken Rs. 250/ from him and had also asked him to keep the said bag. Later on, recovery of the pistol along with live cartridge, and empty cartridge lodged in the said pistol concealed in the pond, which was recovered at the instance of the accused pursuant to his disclosure statement, shows the exclusive knowledge of the accused with regard to this fact, which clearly proves the culpability of the accused. Therefore, this argument also does not carry any force.
42. Regarding the range of fire, as already discussed above, the blackening and tattooing, if present on the body of the person, who had been fired upon, clearly shows the close range of fire.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 44 of 48 -45-
43. Regarding the argument that PW25 is not a reliable witness, it has already been dealt with in the detailed discussion made above.
44. Regarding the next contention that no police official of Bihar and Jharkhand has been examined regarding the arrest and recording of disclosure statement of the accused. The same is also without any substance, as the prosecution has examined PW26 SI Sumit Kumar in this regard, who went to the native place of the accused along with HC Rajkumar and other police officials and arrested the accused and nothing has come out in his crossexamination, which could show that he was not a trustworthy witness. The prosecution has also placed the relevant entry regarding arrival and departure of the said police party at police station Tialiya (Kodarma), Jharkhand, which has not been disputed and it has been duly received by the police officials of said police station. Therefore, this argument also does not hold any force.
45. Regarding the next contention that place of recovery was a public place accessible to all, no finger prints were found nor the recovery was videographed, therefore the same is doubtful. These contentions have already been met above, therefore, does not need any reiteration.
46. Now, what is net probative force of the prosecution case as a whole after this wholesome discussion. That is to say it is time to weight or analyze the probative force of entire mass of prosecution or SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 45 of 48 -46- defence evidence, which has been let in. Since the Evidence Act only speaks mainly about the rules of admissibility of evidence i.e what kind of evidence is safe, due to prudence and experience, therefore should be let in, or which is not, due to long drawn experience like hearsay which should be discarded. Therefore, Evidence Act mainly speaks about the admissibility or non admissibility of evidence. Now, once the entire evidence is let in, what is force or weight which has to be given to a particular piece or item of evidence. Then, to the entire cumulative force of evidence taken as a whole. After considering the counter pulls or countervailing evidence which pulls down the weight of prosecution evidence or supports the defence evidence. The answer to the same can only be found in the principles of mathematical probability which are used to analyze the happening or non happening of any event on such probability scale.
In view of the above discussion given, considering the entire mass of prosecution and defence evidence discussed on the record, how likely is this evidence given that accused had a motive to kill and had killed the deceased by firing upon him, which can be termed as likelihoodI(propositionI) or how likely is this evidence given that accused had no motive to kill the deceased nor he killed him by firing upon him, which can be termed as likelihoodII(propositionII). The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII. How much stronger is this evidence depends how much SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 46 of 48 -47- propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the record by the prosecution or defence then the accused is likely to be acquitted & vice versa, the accused is liable to be convicted, if both are equal then it can be said that both of them have equal probative value.
In view of the above discussion, it is apparent that the probative force of propositionI i.e likelihoodI is much greater than the likelihoodII or propositionII, that is to say that the probative force of the evidence lead on the record in favour the propositionI is much much greater than propositionII i.e likelihoodI which favours the culpability of the accused.
On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of certainty. It can be given 8 or 9 points on such scale of '10' i.e 80% or 90% probability '1' being the certainty or 100% (which though can never be achieved in reality). On such kind of evidence, it can be safely said that it is the accused who had killed the deceased and is guilty of the offence for which he has been charged. The prosecution had to prove its case beyond reasonable doubt and on said scales, therefore, it should be touching the point of certainty if not one, it should have been somewhere around 8 or 9 that is to say 80% and 90% which is the case in hand.
SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 47 of 48 -48-
47. To sum up :
From the aforesaid analysis of evidence, the probative force of the prosecution evidence as a whole is touching the point of certainty on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having very low probative force, which is almost touching the point of disbelief. As a consequence, the accused stands convicted u/S. 302 IPC as well as u/S. 25(1B)(a) and 27(1) of Arms Act, 1959.
Announced in the open Court (Sanjeev Aggarwal)
st
on this 21 day of March 2018. Addl. Sessions Judge02,North Rohini Courts, Delhi/21.03.2018 SC No. 57949/16 FIR No. 169/11 PS Aman Vihar State Vs. Vidhya Bhushan Page No. 48 of 48