Delhi District Court
State vs . Vipin @ Kake on 26 November, 2011
State vs. Vipin @ Kake
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: FIR No. 456/08 Sessions Case No. 115/09
State vs. Vipin @ Kake ID No. 02403R0035552009
PS: Badarpur
U/s 302 IPC & 25/27/54/59 Arms Act
State Vs. Vipin @ Kake, S/o Sh. Prem Pal,
R/o House No. 169A, Tajpur Pahari,
Badarpur, New Delhi.
Date of institution : 12.02.2009
Date when arguments were heard : 14.11.2011
Date of Judgment : 24.11.2011
JUDGMENT
The prosecution case is as under: On 24.09.2008 at about 10.20 pm, an information was received in the police station Badarpur regarding shooting of a person, which was registered vide DD No. 76B and the inquiry was assigned to SI Girjesh who alongwith Ct. Harinder reached the spot at DDA Flats, Badarpur, New Delhi. The SHO Inspector V.P. Dahiya also reached the spot alongwith the Beat Staff. The injured was already taken to the hospital by that time. Thereafter, HC Satish was left at the spot and SI Girjesh with SC No. 115/09 1/42 State vs. Vipin @ Kake Ct. Harinder went to the Holy Family Hospital where the injured Humayun was found admitted vide MLC No. OPD/C08021749. On the said MLC, the doctor had mentioned the alleged history of gun shot injury on the left chest. The injured was found unfit for statement at that point of time. Since SI Girjesh did not meet any eye witness in the hospital, he sent the rukka for registration of the case U/s 307 IPC on DD No. 76B itself. After the registration of the FIR, the eye witness Ram Avtar @ Bobby and other public witnesses Sanjeev Sharma and Amar Singh @ Gafua met SI Girjesh in the hospital.
2. Ram Avtar @ Bobby, who is the eye witness of the incident, stated to the police that he was residing at House No. 496, DDA Flats, Badarpur which belonged to Sanjeev Sharma who is his maternal uncle, with his children. As usual, at around 8.00 pm, he had come from his duty when he saw that his maternal uncle Sanjeev Sharma with his friend Humayun (deceased), Amar Singh @ Gafua was present and they had dinner in the house. At about 9.15 or 9.30 pm, Sanjeev Sharma received a call on his mobile phone from Kake (accused). After having talk with Kake (accused), Sanjeev Sharma gave the phone to Humayun (deceased). Thereafter, Humayun had telephonic talks with the accused Kake. He further told that the accused Kake used to reside in Flat No. 533 on rent and he also stated about some money transaction between Sanjeev SC No. 115/09 2/42 State vs. Vipin @ Kake Sharma and the accused over the purchase of a plot. He further told that Sanjeev Sharma had stated that Kake (accused) was asking him to return his money and he was making arrangement to return the same. He asked Humayun (deceased) to go and make the accused Kake understand that whenever it will be possible, he will return the amount. He further informed the police that he also accompanied Humayun (deceased) when he was going to meet Kake (accused). Kake met them on the road and they started talking and the accused Kake said that Sanjay has not arranged for a plot for him and he is also not returning his earnest money and he said to the deceased Humayun that he was taking his side. While talking, they reached near the gate of the Govt. School near DDA Flats when the accused Kake was very agitated. Then, he said that he will bring ice cream for them to cool them down. After about 10 minutes, he came back with the ice cream when he saw that opposite to the gate of school in the vacant land of DDA in the bushes, the accused Kake and Humayun were grappling with each other and suddenly, the accused Kake extracted himself from the clutches of deceased Humayun and said "saale tera kaam abhi kar deta hoon" and he took out a country made pistol and fired a shot on the chest of Humayun (deceased) and ran away from the spot. Humayun came towards him and asked to apprehend Kake as he had shot him. Thereafter, he immediately went to call Sanjeev Sharma SC No. 115/09 3/42 State vs. Vipin @ Kake and told him that Kake had shot Humayun. Thereafter, Sanjeev Sharma and Amar Singh @ Gafua came down and found the injured near the corner of the road in injured condition. At that time also, he was saying that accused Kake had shot him. Thereafter, the injured Humayun was taken to the hospital.
3. After recording this statement of the eye witness Ram Avtar @ Bobby, SI Girjesh conducted further investigation. The blood stained shirt and vest of the injured Humayun (who later on died) received from Holy Family Hospital in sealed pulanda. He came to the spot alongwith Amar Singh @ Gafua, Sanjeev Sharma and Ram Avtar @ Bobby. On the pointing of Ram Avtar @ Bobby, the site plan of the place of occurrence was prepared. The local inspection of the place of occurrence led to the recovery of one mobile phone make Motorola black colour in which Sim card No. 9718443695 was found which was seized by the IO and kept in a sealed pulanda.
4. On 27.09.2008 at about 8.10 am, information was received in the police station about the death of injured Humayun which was noted vide DD No. 8A. It may be pertinent to mention here that during this period, the injured Humayun remained unfit to give any statement. Since the name of the accused had already figured in the statement of Ram Avtar @ Bobby, the Investigating Officer searched for him but he could not be SC No. 115/09 4/42 State vs. Vipin @ Kake found. In the meantime, Section 302 IPC was added in the FIR and the body was sent for postmortem to AIIMS Hospital. When the injured was in the Holy Family Hospital, one bullet lead was recovered from his body which was also sealed by the Investigating Officer. The accused surrendered before the Court on 29.09.2008 and thereafter was arrested in this case on 30.09.2008. After his arrest, his disclosure statement was recorded on 30.09.2008 and again on 01.10.2008. In his later statement of 01.10.2008, he stated that the country made pistol wrapped in a cloth is kept near the Rajiv Gandhi Stadium at the back of MCD Pump House. Pursuant to this disclosure statement, the country made pistol was recovered which was dug out from a place between the wall of the Rajiv Gandhi Stadium and the sewerage main hole. An empty cartridge was also found in the said recovered country made pistol. It was also seized and kept in a pulanda after putting a seal of G.S. After this recovery, Section 25 and 27 of the Arms Act were also added in the FIR. The cause of death after the postmortem was given as "injury caused by a firearm which was sufficient to cause death in the ordinary course of nature." During the investigation, the statement of Ram Avtar @ Bobby and Sanjeev Sharma was got recorded U/s 164 Cr.P.C before the Ld. Metropolitan Magistrate. The FSL Report and the Ballistic Division's SC No. 115/09 5/42 State vs. Vipin @ Kake Expert Report were obtained during the investigation. The investigation had also revealed that the Sim card which was found in the Motorola phone recovered from the spot was taken by the accused from one Narender Kumar who runs Babbar Telecom and Repair Centre at Badarpur Main Market, on the fake identity of Vikram Khanna. Thus, after completing the investigation, the charge sheet was filed in the Court for the offences U/s 302/419/420 IPC and 25/27 Arms Act.
5. Vide order dated 19.09.2009, the charges were framed against the accused for the offence U/s 302 IPC and U/s 25/27 of the Arms Act. The accused had pleaded not guilty and claimed the trial.
6. To prove its case, the prosecution had examined 22 witnesses in the following sequence: 6.1 PW1 is Dr. Priyadarshani, CMO, Holy Family Hospital who had examined the patient Humayun and prepared the MLC Ex. PW1/A. 6.2 PW2 is Vikram Khanna. He deposed that he did not purchase Sim card of mobile phone No. 9718443695. He deposed that in March 2008, two persons came to him and they obtained his Icard and photographs on the pretext of preparation of his credit card. He further deposed that those boys did not come back nor they handed over to him any credit card. As per prosecution case, this mobile phone No. SC No. 115/09 6/42 State vs. Vipin @ Kake 9718443695 was being used by accused, which he obtained from Narender Kumar, by submitting the Election Card of this witness (PW2) as ID proof.
6.3 PW3 is HC Inderjeet who had registered the FIR Ex. PW3/A on the basis of rukka sent by SI Girjesh Singh through Ct. Harinder. 6.4 PW4 is Ct. Harinder. He deposed that on 24.09.2008 at about 10.22 pm on receipt of copy of DD No. 76B, he alongwith SI Girjesh and SHO Inspector V.P. Dahiya had reached at DDA Flat House No. 336, Badarpur where they came to know that the injured had already been taken to Holy Family Hospital. He deposed that no eye witness was found there and they went to Holy Family Hospital where injured Humayun was found admitted. No eye witness was found at hospital. The IO prepared rukka on the DD No. 76B and sent him to PS for registration of case. He came back to hospital after the registration of the FIR. He deposed that thereafter they met one Ram Avtar @ Bobby in the hospital who disclosed to be eye witness in this case. His statement was recorded. He deposed that IO had prepared site plan at the instance of Ram Avtar @ Bobby when they all came to spot. He deposed that one mobile phone make Motorola without battery cover, was lying near bushes in front of Govt. School which was seized vide memo Ex. SC No. 115/09 7/42
State vs. Vipin @ Kake PW4/A. He deposed that on 27.09.2008, he again joined the investigation with Insp. V.P. Dahiya and went to Holy Family Hospital where the doctor on duty handed over a sealed pulanda containing bullet (lead) alongwith sample seal. He further deposed that on 01.10.2008, accused took them to western side of Rajiv Gandhi Stadium and got recovered country made pistol, which was wrapped in white colour cloth, after digging out the earth from the place in between main hole of sewage and a wall. He further deposed that on 15.10.2008, he had taken sealed pulandas to AIIMS hospital and deposited the same for opinion. 6.5 PW5 is Sanjeev Sharma. He deposed that on 24.09.2008 in the evening, he received a telephonic call from accused Vipin who wanted to talk to Humayam @ Bhaiye and he handed over his mobile phone to Humayun who was present at his house. He deposed that after having talks with accused Vipin, Humayun had gone from his house alongwith Bobby (PW15) to meet the accused. He deposed that after about one hour in the night, Bobby came to his house and told him that accused Vipin has shot Humayun. He further deposed that he alongwith Amar Singh @ Gafua had reached near House No. 336, DDA Flat where Humayun was sitting and was pressing his stomach with his hands. He further deposed that he came to his house for taking his car and removed SC No. 115/09 8/42 State vs. Vipin @ Kake Humayan to Holy Family Hospital in his car. Thereafter, he informed the police at 100 number.
6.6 PW6 is Amar Singh @ Gafua. He has also deposed almost on the same line as PW5.
6.7 PW7 is Rakesh Kumar, who deposed that the Sim card No. 9212151597 was issued in his name and it was being used by Smt. Renu, W/o Sh. Padam Sharma in the year 2008. He further deposed that he got issued above said Sim card on the basis of identity card issued by their hotel and he handed over the said Sim card to Mr. Padam Sharma being his senior.
6.8 PW8 is SI Mahesh Kumar, who had prepared the scaled site plan Ex. PW8/A. 6.9 PW9 is Dr. Susheel Sharma, who had conducted the postmortem on the dead body of Humayun and prepared the detailed PM Report Ex. PW9/A. 6.10 PW10 is Sh. Saurabh Kulshrestha, Metropolitan Magistrate. He deposed that on 05.11.2008 and 06.11.2008, he had recorded the statement of Sanjeev Sharma U/s 164 Cr.P.C vide Ex. PW10/A and that of Ram Avtar @ Bobby vide Ex. PW10/B respectively. The certificate regarding the correctness of the proceedings was given by him vide Ex. SC No. 115/09 9/42
State vs. Vipin @ Kake PW10/D. 6.11 PW11 is HC Pappu Ram. He deposed that on 12.11.2008, he had received three live cartridges from MHC (M), PS Badarpur and deposited the same in FSL, Rohini vide RC No. 132/21/08. 6.12 PW12 is Narender Kumar. He deposed that accused had come to his shop and purchased a mobile Sim card. He further deposed that the accused had given a photocopy of Election Icard as ID proof and told him that the said copy was of Election Icard of his uncle namely Vikram and accordingly, he issued a Sim card to the accused. 6.13 PW13 is retired SI Girjesh Kumar. He has deposed almost on the same line as PW4 Ct. Harinder. He has proved rukka Ex. PW13/A. After the FIR was registered, he met Ram Avtar @ Bobby, eye witness, and recorded his statement. He came to spot and at the instance of Ram Avtar @ Bobby prepared the site plan Ex. PW13/B. He also deposed about recovery of Motorola mobile phone. He deposed that on 27.09.2008, injured had expired in the hospital and Section 302 IPC was added and case file was handed over to SHO Inspector V.P. Dahiya. He further deposed that on 30.09.2008, the accused was arrested by the IO after the permission of the court in which the accused had surrendered. He had joined investigation with IO later on as well when recovery of SC No. 115/09 10/42 State vs. Vipin @ Kake country made pistol was effected at the instance of accused. 6.14 PW14 is HC Ram Kishan. He deposed that on 22.10.2008, he went to Mortuary, AIIMS Hospital and received the PM report of deceased Humayun and a pulanda sealed with the seal of hospital alongwith sample seal. He had brought these articles to the hospital and handed over the PM report to SHO Insp. V.P. Dahiya and deposited the pulanda and sample with the MHC (M) HC Ram Bharose.
6.15 PW15 is Ram Avtar @ Bobby. He deposed that on 24.09.2008, he alongwith Humayun went to meet the accused and the accused met them on the gate of the DDA Colony at about 9.30 pm. He deposed that the accused and Humayun started having heated talks on some money transaction between Sanjeev Sharma and accused Vipin with regard to some property. He went to buy icecream and when came back, saw accused and deceased physically quarreling. He further deposed that during the quarrel, the accused took out a pistol and fired at Humayun which hit him on the left side of the chest. Thereafter, accused Vipin ran away from the spot. He further deposed that thereafter he went to the house of his maternal uncle Sanjeev and they came back to the spot where the injured Humayun was found on the road near the gate of DDA Flats. He further deposed that his uncle Sanjeev and Amar Singh @ Gafua took SC No. 115/09 11/42 State vs. Vipin @ Kake the injured to the hospital in a vehicle. He deposed that the accused Vipin @ Kake was arrested by the police in his presence. He further deposed that the recovery of mobile phone make Motorola and one country made pistol at the instance of accused was also effected in his presence. 6.16 PW16 is Ct. Mahesh. He deposed that on 23.10.2008, he had taken the sealed pulanda pertaining to this case from MHC (M) and deposited the same with the FSL, Rohini vide road certificates No. 122/21/08 and 123/21/08.
6.17 PW17 is HC Ram Bharosi. He deposed that on 25.09.2008, SI Girjesh had deposited a sealed pulanda with the seal of G.S containing a mobile phone in the Malkhana with him vide Ex. PW17/A. He further deposed that on 01.10.2008, SI Girjesh had also deposited a sealed pulanda containing a country made pistol and a cartridge in the Malkhana vide Ex. PW17/B. He further deposed that on 23.10.2008, one sealed pulanda with the seal of G.S. containing the country made pistol and cartridge were sent to FSL Rohini through Ct. Mahesh. 6.18 PW18 is Ct. Rajneesh Dhaka. He deposed that on 24.09.2008, he was posted at P.C.R Police Headquarter and on receipt of a call regarding a person being shot, he passed the information to ambulance and on the net connecting PS Badarpur.
SC No. 115/09 12/42
State vs. Vipin @ Kake 6.19 PW19 is Sh. V.A. Gupta, IPS, DCP. He deposed that on 11.12.2008, he accorded sanction U/s 39 Arms Act for the prosecution of accused Vipin @ Parveen @ Kake vide sanction order Ex. PW19/A. 6.20 PW20 is Dr. Mala Saini, Senior CMO, Holy Family Hospital. She has proved the medical certificate Ex. PW20/B and case summary Ex. PW20/C on behalf of Dr. Saajan G.N and Dr. Banwari Lal by identifying their handwriting and signatures. 6.21 PW21 is Pawan Singh, Nodal Officer, Idea Cellular Ltd. He has proved the customer application form Ex. PW21/A in respect of phone No. 9990000096 and the copy of ID proof as Ex. PW21/B. He further proved the customer application form Ex. PW12/A in respect of phone No. 9718443695 and the copy of ID proof as Ex. PW2/A. He has also proved his certificate U/s 65B Evidence Act as Ex. PW21/D. 6.22 PW22 is Inspector V.P. Dahiya, the Investigating Officer of the case.
7. In the statement U/s 313 Cr.P.C, the accused was confronted with the incriminating evidence against him. In this statement, he has admitted that he was having a mobile phone with the Sim card No. 9718443695. He has also stated that his mobile phone make Motorola was taken by Humayun (deceased) at the instance of Sanjeev Sharma SC No. 115/09 13/42 State vs. Vipin @ Kake between 5 pm to 6 pm. Regarding the recovery of the country made pistol, he stated that the police has taken him alongwith Ram Avtar @ Bobby to the Rajiv Gandhi Stadium where from near a sewerage hole, the police asked him to dig the earth and from there, one country made pistol was recovered. However, he denied that he had pointed out that place to the police from where the pistol was recovered. He also said that the country made pistol was not concealed by him at that place. When he was confronted with evidence in the statement of PW15 Ram Avtar @ Bobby that he shot Humayun (deceased) opposite to the gate of the Govt. School near DDA Flats and the mobile phone No. 9718443695 was recovered from that spot, he said that this phone with No. 9718443695 was with Humayun between 56 pm. He further said that on 24.09.2008, he was sitting outside the house of Sanjeev Sharma with Amar Singh @ Gafua, Humayun and Bhutto Bhaiya between 56 pm. Thereafter, he went to Mandir and do not know where Amar Singh @ Gafua and Humayun had gone. The accused had opted to lead evidence in defence but no defence evidence was led by him.
8. I have heard the arguments of the Ld. Addl. Public Prosecutor for the state and the Ld. Counsel for accused and perused the evidence on the record carefully. The Ld. Defence Counsel has filed written arguments as well.
SC No. 115/09 14/42
9. The Ld. Addl. Public Prosecutor has argued that the case of the prosecution stands proved beyond reasonable doubt on the basis of the eye witness account of the incident in which PW15 Ram Avtar @ Bobby had seen the accused firing upon the deceased with a country made pistol when both of them i.e the deceased and the accused were grappling with each other. He further argued that the corroborating and supporting evidence is available on the record. He submitted that PW5 Sanjeev Sharma and PW6 Amar Singh @ Gafua prove that the accused had made a call to Sanjeev Sharma and he also had a talk with the same phone to deceased Humayun and thereafter, Humayun alongwith Ram Avtar @ Gafua had gone down where outside the DDA Flats, they met the accused. He further argued that Ram Avtar @ Gafua had categorically deposed that both of them had started heated arguments after some time and he himself went to bring ice cream for them to bring their temper down but when he came back, he saw the accused and the deceased grappling with each other physically and the accused taking out the country made pistol and firing at the deceased on his chest from a close range. He further submitted that the medical evidence also support the evidence of the eye witness. Apart from that, the Ballistic Report also support the prosecution case. He further submitted that the accused has not put any defence in his support and he was not able to shake the statement of witnesses in the SC No. 115/09 15/42 State vs. Vipin @ Kake cross examination. No allegation of any enmity or prejudice has been leveled against the witnesses particularly Ram Avtar @ Bobby (PW15) nor any reason has been stated why Ram Avtar @ Bobby would depose against the accused. Therefore, he argued, the case of the prosecution stands proved beyond reasonable doubt.
10. The Ld. Defence Counsel, on the other hand, has argued that the prosecution case is a false and fabricated case. The accused has been falsely implicated in this case. First of all, he argued that accused had no "motive" to attack or cause injury to the deceased Humayun. He did not have any enmity with the deceased and there was no financial transaction between them. He further argued that as per the prosecution case, there was some financial transaction between the accused and PW5 Sanjeev Sharma but PW5 Sanjeev Sharma when appeared in the witness box, completely denied about the said transaction of Rs. 80,000/. Therefore, there was no motive for the accused to feel agitated over any issue either with PW5 Sanjeev Sharma or for that matter, with the deceased Humayun. Secondly, he argued that the Investigating Officer has changed the place of occurrence deliberately. He submitted that as per the DD No. 76B, the incident took place near Flat No. 336, DDA Flats, Badarpur, New Delhi. But later on, just to show the recovery of a mobile phone, the SC No. 115/09 16/42 State vs. Vipin @ Kake place of occurrence has been shown in front of the school and in the bushes near the DDA Park. Thirdly, he argued that the falsity of the prosecution case is apparent from the fact that SI Girjesh and the SHO Inspector V.P. Dahiya had reached the spot after receiving the information about the incident noted vide DD No. 76B. In this DD No. 76B itself, it is mentioned that the injured has been taken to Holy Family Hospital and if this information was already received, what was the need for the Investigating Officer to go to the spot instead of Holy Family Hospital where the injured was taken. This, he argued, shows the malafide of the Investigating Officer. Fourthly, he argued that SI Girjesh had sent the rukka on the basis of DD No. 76B just to fabricate a story later on. Had he recorded the statement of Ram Avtar @ Bobby when he first met him, he could not have been made any alteration in the version. Therefore, instead of sending a rukka after recording the statement of Ram Avtar @ Bobby, he sent the rukka on the basis of DD No. 76B. He submitted that SI Girjesh has deposed that when he reached in the Holy Family Hospital, he did not meet any eye witness which is contrary to the statement of PW5 Sanjeev Sharma who had stated that he met the police officials after his arrival in the Holy Family Hospital. Apart from taking this defence to show the weakness of the prosecution case, the Ld. Defence Counsel has also argued that PW5 Sanjeev Sharma had taken SC No. 115/09 17/42 State vs. Vipin @ Kake the injured to the hospital in his car but strangely enough, he was not able to tell the registration number of his car nor the Investigating Officer bothered to examine the said car to notice whether there was any blood stain therein or not. As regard the eye witness Ram Avtar @ Bobby (PW15), he has challenged his statement on the basis of his behaviour and the conduct. Firstly, despite having seen the accused and the deceased communicated in heated arguments, he did not intervene. In his statement before the court, he said that the accused Humayun had taken out a pistol. This shows that the pistol was taken out by Humayun and not by the accused. Further, he had stated in the examinationinchief that he was brought at the place of incident by the police meaning thereby that the eye witness was not even aware about the place of incident.
11. The Ld. Defence Counsel has also raised question about the recovery of the firearm pursuant to the disclosure statement of the accused on the ground that the recovery has been effected from a public place where the public visit day and night. In support of his argument, he has relied upon following judgments; Ram Chander @ Ganju & Anr. vs. State of Delhi 2011 III AD (Criminal) 419. This has been relied to butterers the argument that the weakness of defence cannot be read against the accused. Further, the reliance is placed on Dinesh Kumar vs. SC No. 115/09 18/42 State vs. Vipin @ Kake NCT of Delhi 2011 III AD (Criminal) DHC 352 and State vs. Prem Sagar & Ors. 2011 II AD (Criminal) DHC 305. Further reliance is placed on Sultan @ Kalu vs. State 2011 III AD (Criminal) DHC 525 and Noor Mohammad vs. State (Govt. of NCT of Delhi) 2011 V AD (Criminal) DHC 5. Lastly, the reliance was placed on Sayaji Hanmat Bankar vs. State of Maharashtra 2011 (3) Crimes 129 SC. This judgment is being relied upon to further the argument that when an act is done without any premeditation in a sudden fight or in the heat of passion, the offence would be under Section 304 IPC. I have gone through the judgments on which the reliance has been placed.
12. The prosecution case is based on the eye witness account of the incident in which the deceased Humayun had received a gun shot injury to which he succumbed in the hospital. This eye witness account has been given by PW15 Ram Avtar @ Bobby. Before taking up the defence which the Ld. Counsel for accused has put to assail the prosecution case, the statement of the public witnesses needs to be considered in detail. The prosecution case is that on 24.09.2008, Sanjeev Sharma (PW5) had received a telephonic call from the accused when he was present in his House No. 496, DDA Flats, Badarpur, New Delhi. The eye witness in the case Ram Avtar @ Bobby (PW15) is the sister's son of SC No. 115/09 19/42 State vs. Vipin @ Kake Sanjeev Sharma (PW5) and he was also residing in the same house with his family and had come from his duty at about 8.00 pm. When he came after his duty, he found the deceased Humayun and Amar Singh @ Gafua taking dinner. He also sat with them. At about 9.00/9.30 pm, Sanjeev Sharma received a phone call from Vipin @ Kake (accused). After talking for some time, Sanjeev Sharma (PW5) handed over the phone to deceased Humayun. Thereafter, Humayun alongwith Ram Avtar @ Bobby (PW15) went downstairs to talk to the accused. Thereafter, we will find the eye witness account by PW15 Ram Avtar @ Bobby. The facts which have been just mentioned have been proved in the statement of PW5 Sanjeev Sharma and PW6 Amar Singh @ Gafua. PW5 has deposed that on 24.09.2008, he was present at his house at 496, DDA Flats, Badarpur, New Delhi. He received a telephonic call from the accused Vipin and he further asked him to have talk with the deceased Humayun. He handed over the mobile phone to deceased who was present at his house. After a talk with the accused Vipin, Humayun had gone to meet the accused and his nephew Ram Avtar @ Bobby (PW15) also accompanied Humayun. After about one hour, Bobby came to the house. He was perplexed and told that Vipin had shot Humayun. He further deposed that Amar Singh @ Gafua, a friend of Humayun (deceased) was also present in the house and they came downwards, SC No. 115/09 20/42 State vs. Vipin @ Kake reached near House No. 336, DDA Flats where Humayun was found sitting and he was pressing his stomach with his hands. PW6 Amar Singh @ Gafua also deposed on the same line and corroborated the statement of PW5 Sanjeev Sharma to the facts that on 24.09.2008, he alongwith deceased Humayun had come to the house of Sanjeev Sharma. They had meal together at about 8.00 pm and after that, they were sitting and talking to each other. He also corroborated PW5 Sanjeev Sharma that Sanjeev Sharma had received a call from the accused and after some time, Sanjeev Sharma handed over the mobile phone to Humayun (deceased). Thereafter, Humayun had gone to have a talk with the accused alongwith Ram Avtar @ Bobby (PW15). He has further corroborated PW5 Sanjeev Sharma that after some time, Ram Avtar @ Bobby came to the flat and told that Kake has shot Humayun. They reached towards the road and found the deceased sitting on the side of the road.
13. Now, we can see the statement of PW15. PW15 deposed that on 24.09.2008, he came from his duty by around 8.00 pm. His uncle Sanjeev Sharma (PW5) was having dinner with his friend Humayun (deceased) and Amar Singh @ Gafua. He deposed that at about 9.00/9.30 pm, Sanjeev Sharma (PW5) received a telephonic call from accused Vipin. After some time, Sanjeev Sharma handed over the phone to SC No. 115/09 21/42 State vs. Vipin @ Kake deceased who had a talk with the accused. Thereafter, he alongwith the deceased went to meet the accused. So, the statement of these three witnesses prove the facts that; the eye witness Ram Avtar @ Bobby (PW15) was present in House No. 496, DDA Flats, Badarpur alongwith PW5 Sanjeev Sharma, PW6 Amar Singh @ Gafua and the deceased Humayun. Their statements also prove the fact that a telephonic call was received from the accused Vipin by Sanjeev Sharma (PW5) who had a talk with the accused and thereafter, the phone was handed over to the deceased Humayun. Thereafter, Humayun and PW15 Ram Avtar @ Bobby came out of the flat and went to meet the accused Vipin to have a talk with him. So far as these facts are concerned, there is no inherent or material contradiction in the statement of PW5 Sanjeev Sharma, PW6 Amar Singh @ Gafua and PW15 Ram Avtar @ Bobby. Their cross examination on these facts remain unchallenged and their testimony is not shaken in this regard. So, the prosecution has successfully proved that the accused had made a call to Sanjeev Sharma (PW5). He also talked to the deceased. Thereafter, Humayun alongwith Ram Avtar (PW15) came to meet the accused outside the DDA Flats.
14. Now I come to the eye witness account of the incident which took place after the PW15 Ram Avtar @ Bobby and the deceased Humayun came to meet the accused. This account is given by PW15 SC No. 115/09 22/42 State vs. Vipin @ Kake Ram Avtar in his statement. He has deposed that they met the accused at the gate of DDA Flats at about 9.30 pm. The accused had a talk with Humayun. They started having heated talks on some money transaction between Sanjeev Sharma (PW5) and the accused with regard to some property. He asked them that they should talk with cool mind and further told that he will bring ice cream for them. Thereafter, he went to bring the ice cream. He further deposed that after 510 minutes, he came back to the spot which is near the Govt. School outside the DDA Flats Colony and he saw that opposite to the school in the open land of DDA in the bushes, the accused and Humayun were physically grappling. The accused had taken out a pistol and said "aa tujhe abhi batata hoon" (come I will show you) and he immediately fired at Humayun which hit him on the left side of the chest. The accused ran away from the spot. Humayun shouted that he was been shot by Kake. He further deposed that he became nervous and immediately went to the house of Sanjeev Sharma and told him that Vipin had shot Humayun. Thereafter, they immediately came back outside and found the injured Humayun near the gate of the DDA Flats. At that time also, he was shouting that he had been shot by Kake. Now, this eye witness account of the witness PW15 Ram Avtar @ Bobby if accepted, connect the accused with the offence without any hindrance.
SC No. 115/09 23/42
15. The value of an eye witness account of the incident cannot be ignored lightly. There has to be a strong reason to discard the statement of an eye witness. Needless to say that the testimony of an eye witness if found trustworthy, the court need not even seek for any corroboration or some other confirming circumstances from other sources. Sometimes, the conduct and the behaviour of an eye witness after the incident is taken into account to judge the reliability of the witness but the settled position of law is, every person behave in a different manner after seeing an heinous act. It may also be taken into account that one cannot expect an eye witness to depose without some omission or addition because the concession of a fading memory due to passing of time is to be given to a witness. If an eye witness account get a support from the medical evidence, then it further lends credence to the statement of eye witness. It may also be pointed out here that even if there is only a solitary witness to the incident, his statement can be relied upon if it is found convincing and reliable.
16. The law is settled that the plurality of the evidence is not the requirement of law. As has been observed in the case of Sunil Kumar vs. State (Govt. of NCT of Delhi) AIR 2004 SC 552, court can convict on testimony of a single witness provided that he is reliable. It is not the SC No. 115/09 24/42 State vs. Vipin @ Kake quantity but the quality which matters and the evidence is to be weighed and not counted. These observations have been made by the Hon'ble Supreme Court on the basis of an earlier judgment in the case of Jagdish Prasad & Ors. vs. State of M.P AIR 1994 SC 1251.
17. Now coming back to the statement of PW15 Ram Avtar @ Bobby. First of all, his statement with regard to the incident is very consistent and no major improvement has been noticed while he deposed about the incident. Secondly, so far as the corroboration to his statement is concerned, the medical evidence in the statement of PW9 Dr. Susheel Sharma will come to the rescue.
18. Before proceeding further, it may be mentioned that in his postmortem report Ex. PW9/A, Dr. Susheel Sharma has given the cause of death as "shock due to haemorrhage consequent upon visceral injuries caused by firearm injuries which were sufficient to cause death in the ordinary course of nature." In the report, he had mentioned "one single gun shot entry wound of the size 2 x 2.5 cm present over left side of front aspect of abdominal wall." So far as direction of the injury is concerned, the statement of PW1 Dr. Priyadarshani who had first treated the injured Humayun at Holy Family Hospital may be seen.
SC No. 115/09 25/42
19. Her statement in the court is that on 24.09.2008 while she was working as a CMO in the Holy Family Hospital, she had examined Humayun who was brought by one Sanjeev Sharma at 10.16 pm with a history of gun shot injury at the left lower chest and upper abdomen by some "known person". She deposed that injury wound was "angling downwards". Now PW9 Dr. Susheel Sharma in his cross examination deposed that the "shot found on the body reflect that it could be loose contact or a close range shot." He specifically said that the distance between the weapon and the body cannot be of one meter. Thus, his statement if seen coupled with the statement of the eye witness, then one thing becomes very categorical and apparent that deceased Humayun got the gun shot injury when the accused was physically grappling with the deceased and in the words of PW15 Ram Avtar @ Bobby, there was a physical scuffle (guthamgutha). PW15 in his statement has stated that the accused had taken out the pistol, first he abused the deceased and then fired a shot at him. So, when deceased and the accused were grappling with each other, they were in physical contact with each other and if in such a situation a fire is shot, then definitely it would be a close range fire. So, this eye witness account of PW15 about the incident is supported by the medical evidence as PW9 Dr. Susheel Sharma has categorically SC No. 115/09 26/42 State vs. Vipin @ Kake stated that it was a loose contact or close range shot and specifically said that the distance between the weapon and the body cannot be of one meter. So, the eye witness account of PW15 Ram Avtar has received a corroboration from the medical evidence as well.
20. One argument which is generally raised in such cases is that why the eye witness did not come forward to help the injured immediately. In the cross examination of this witness, he was asked why he did not help or why he did not intervene when the accused and the deceased were having a physical scuffle and why he did not take him to the hospital. Now PW15 Ram Avtar @ Bobby has deposed that he did not go towards the accused and the deceased to intervene as he did not get the chance. The incident which he has narrated having seen by his eyes is of such a nature that it will take frictions of seconds before it is over. He said that he did not take the injured to the hospital after seeing him in injured condition. In examinationinchief, he has deposed that he became nervous and immediately went to the house of his uncle Sanjeev Sharma (PW5) and told Sanjeev Sharma that Vipin has shot Humayun. Now, there is nothing abnormal in the conduct of PW15 Ram Avtar @ Bobby if instead of taking the injured immediately to the hospital himself, he went to the house of his uncle Sanjeev Sharma to call him at the spot. Moreover, person who witnesses such an act reacts in his own way and SC No. 115/09 27/42 State vs. Vipin @ Kake the court cannot expect a set or a structured reaction from an eye witness in such a situation. The reaction and the behaviour of an eye witness after seeing the incident cannot be used to doubt his statement unless the reaction which he demonstrate is highly improbable or is inconceivable from any human being in a similar situation. The act of the witness PW15 in rushing to the house of Sanjeev Sharma (PW5) after seeing the incident cannot be considered as highly improbable or inconceivable. It was a normal reaction of a person to seek the help of some other in such a situation. So, nothing abnormal is noticed in the conduct of PW15 Ram Avtar after he witnessed the incident. Thereafter, I have no reason to disbelieve the statement of PW15 Ram Avtar @ Bobby with regard to the main incident.
21. Apart from this eye witness account, the prosecution case is also supported by other evidence. It is the case of the prosecution that a Motorola mobile phone was recovered from the spot which was having a Sim card bearing No. 9718443695. Now, there is no denial by the accused that he was using this phone number. Even when the evidence was put to him regarding this phone when examined U/s 313 Cr.P.C, he has accepted that this mobile phone number was being used by him. However, he took the plea that this phone was given to him by Sanjeev Sharma. Now, prosecution had examined a witness namely Narender SC No. 115/09 28/42 State vs. Vipin @ Kake Kumar as PW12. He is the person who had given the mobile Sim card No. 9718443695 to the accused. He has deposed that he run a shop in the name and style of Babbar Telecom and Repair Centre at Shop No. 89, Main Market, Badarpur, New Delhi. He deposed that the accused had come to his shop and purchased a mobile Sim card after giving the photocopy of the Election Icard as ID proof of his uncle. Now, this ID proof is of one Vikram who has also appeared in the court as PW2. The accused had used the identity proof of Vikram to obtain this Sim card by posing that Vikram is his uncle. This ID proof is on record as Ex. PW2/A. Ex. PW12/A would show that on the Customer Application Form, the name of one Vikram Lal was mentioned and the photograph of one Vikram was attached. On this application form, the Sim card which was alloted was 9718443695. Now, the accused has denied that he had taken this Sim card. PW12 in his cross examination has deposed that he knew Vipin (accused) for the last six years. Now, this plea by the accused that he did not purchase the Sim card from Narender Kumar stands belied because PW12 Narender Kumar has categorically deposed that accused had purchased the mobile Sim card No. 9718443695 from him by showing the Election ICard as ID proof of one Vikram and he know the accused for the last six years. So, the fact stands proved that the accused had purchased the mobile Sim card by furnishing the Election ICard as SC No. 115/09 29/42 State vs. Vipin @ Kake the ID proof of somebody else and the mobile Sim card No. 9718443695 was taken by him from PW12 Narender Kumar and this fact he has also admitted in the statement U/s 313 Cr.P.C that he was using this mobile number.
22. Now, the question comes about the recovery of this mobile phone. The seizure memo of the mobile phone (Ex. P1) is Ex. PW4/A. It says that the mobile phone black colour having Sim card No. 9718443695 with IMEI No. 357487002190500 was recovered from the spot where the incident took place. Now, the witness to this recovery is PW15 Ram Avtar @ Bobby who is the person who had seen the incident taking place. The place of recovery is opposite to the Govt. School near the DDA Flats in the bushes. This Sim card No. 9718443695 is the same which is found mentioned on the Application Form Ex. PW12/A. So, the factual sequence is now complete that the accused purchased a mobile Sim card from PW12 Narender Kumar by showing the Election ICard as the ID proof which belonged to one Vikram and he was alloted a Sim card with No. 9718443695 and the mobile phone of Motorola was recovered from the place of incident pointed out by the eye witness in which there was a Sim card having this mobile number. This recovery memo cannot be doubted as it is signed by an independent witness who is the complainant as well. Nothing has come on the record to raise suspicion SC No. 115/09 30/42 State vs. Vipin @ Kake about the testimony of PW15 Ram Avtar @ Bobby about the recovery of this mobile phone in his presence. PW13 SI Girjesh and PW4 Ct. Harinder also deposed about the recovery of this mobile phone from the spot. The accused has also not denied about the fact that he was having a black colour mobile phone although in his statement U/s 313 Cr.P.C he has said that this mobile phone was given to him by Sanjeev Sharma (PW5). Thus, the recovery of the mobile phone Motorola having the Sim card No. 9718443695 which was used by the accused, from the place of occurrence provide a further link and corroborative evidence to the statement of PW15 Ram Avtar and, thus, prove the presence of accused Vipin @ Kake at the spot.
23. The another piece of evidence of the prosecution is the recovery of the country made pistol from the back of MCD Pump House near the Rajiv Gandhi Stadium. In the disclosure statement, the accused had stated that he had concealed the country made pistol near Rajiv Gandhi Stadium, on DDA land behind MCD Pump House and he can get recovered the same. This disclosure statement led to the recovery of the country made pistol (Ex. P2) with an empty cartridge (Ex. P3) in it. The recovery memo Ex. PW4/H is witnessed by PW15 Ram Avtar as well. The country made pistol Ex. P2 and the empty cartridge Ex. P3 was sent to FSL. The FSL Report Ex. PW22/H says that the country made pistol . SC No. 115/09 31/42
State vs. Vipin @ Kake 303" bore and one .303" cartridge are the firearm and ammunition as defined in the Arms Act. One bullet lead was extracted from the body of the deceased in the Holy Family Hospital which was seized by Inspector V.P. Dahiya vide memo Ex. PW4/C. Now this bullet lead has also been opined to be an ammunition. It is also opined that this bullet marked as Ex. EB1 at the FSL corresponds to the bullet of .303" cartridge. Although the FSL Report says that individual characteristic of striation mark present on the Ex. EB1 was insufficient for comparison and the opinion whether it has been fired through the country made pistol (Ex. F1) or not. Nevertheless, it has given an opinion that this bulled lead which was recovered from the body of the deceased was the bullet of .303"
cartridge. So far as the recovery of this weapon of offence is concerned, the prosecution case cannot be suspected on the ground that it is not witnessed an independent witness. If it has been recovered in the presence of Ram Avtar @ Bobby who happens to be a complainant, it will not adversely affect the prosecution case if some other person was not joined at the time of recovery. It is a known fact that the general public is not interested or willing to join police during the investigation. The general apathy of people in this regard is well known.
24. Now, the prosecution case is based on the eye witness account of the incident which is supported by the medical evidence, given by SC No. 115/09 32/42 State vs. Vipin @ Kake PW15 Ram Avtar @ Bobby. Recovery of a mobile phone having a Sim card, which was used by the accused, from the place of occurrence is another piece of evidence showing presence of accused at the spot. The recovery of the weapon of offence at the instance of the accused is another piece of evidence. The cumulative effect of the evidence led by prosecution is that it connect the accused with the commission of the offence.
25. This evidence led by prosecution, of course, is being challenged by the accused and now I shall deal with the defence taken by the accused to assail this evidence. First of all, the Ld. Counsel for accused had argued that the accused had no "motive" to attack the deceased. In a criminal trial, motive is an important piece of evidence. No act is committed without an intention. Every act of a person is propelled by a thought behind it. The proof of a motive indicates towards the guilt of an accused but the absence of a motive will not ipso facto indicate vice versa. Thus, motive is not a sina qua non to prove the case of the prosecution. In the case of circumstantial evidence, motive plays a very important role. But when the commission of the offence is witnessed by an eye witness, in that case, the proof or absence of motive would recede to the background. As has been observed in the case of Molu & SC No. 115/09 33/42 State vs. Vipin @ Kake Ors. vs. State of Haryana AIR 1976 SC 2499 where the direct evidence regarding the assault is worthy of credence and can be believed, "the question of motive become more or less academic." If the evidence of eye witness is found creditworthy and believed by the court, the question whether there is any motive or not becomes wholly irrelevant.
26. Now coming to the present case, the prosecution case is that there was some money transaction between PW5 Sanjeev Sharma and the accused Vipin. The accused had given Rs. 80,000/ to PW5 for purchase of a plot for him but he neither purchased the plot nor returned his amount and because of this, the accused was agitated. When PW5 Sanjeev Sharma was present at his house at 496, DDA Flats on 24.09.2008 in the night, he was having talk with him over this issue. The deceased Humayun had gone to discuss this issue only with accused. The Ld. Counsel for accused had argued that PW5 Sanjeev Sharma in his statement in the court as well as in his statement U/s 164 Cr.P.C (Ex. PW10/A) is silent about the money transaction of Rs. 80,000/ while other witnesses speak about this transaction. PW5 Sanjeev Sharma was declared hostile by the State and cross examined on this point and he was also confronted with his earlier statement U/s 164 Cr.P.C on this issue but he denied that he had to pay Rs. 80,000/ to the accused. But this is not going to affect the prosecution. There may be so many reasons for SC No. 115/09 34/42 State vs. Vipin @ Kake Sanjeev Sharma, who is an Estate Agent by profession as stated by the witnesses, to deny his liability towards the accused. Whether he had any liability towards the accused remains no more relevant when the evidence has come on the record that the deceased was with Sanjeev Sharma (PW5) on the date of incident when he received a call from the accused. It has also come in the evidence that the deceased had also a talk with the accused on the telephone and thereafter, he alongwith PW15 had gone out to meet the accused. Thereafter, the incident has been witnessed by PW15 Ram Avtar @ Bobby. So, in the face of this evidence, the question of motive has become irrelevant.
27. The Ld. Counsel for accused had also argued that the police had changed the place of incident. He refers to DD No. 76B in which the place of incident has been shown as DDA Flat 336, Badarpur. He submitted that to show the recovery of the mobile phone, the place of occurrence has been later on changed to the DDA ground opposite to the Govt. School near DDA Flats, Badarpur. However, how he has drawn this conclusion from the evidence is not understandable. PW15 Ram Avtar @ Bobby in his statement has clearly pointed out the place where the incident took place. Simply on the basis of the DD entry No. 76B, it cannot be said that the place of incident was 336, DDA Flats, Badarpur, New Delhi. The entries in the DD Register noted at the police station SC No. 115/09 35/42 State vs. Vipin @ Kake cannot be expected to be an encyclopedia of the event. A cryptic information about the commission of an offence cannot be used to discredit the other reliable evidence of the prosecution. Now if one read the DD No. 76B, it is a disjointed and a cryptic information. It would be appropriate to refer the relevant portion in the vernacular here. The relevant portion is as under: "Samay 10/22 baje raat darj hai ki S67 operator bahazir DO Room aakar tehrir karaya ki DDA Flat No. 336, Badarpur ek admi ko goli maar di."
Now this information simply speaks about a person being shot. It nowhere says that he was shot inside Flat No. 336, DDA Flats, Badarpur, New Delhi or outside this flat. At the most, the reference to DDA Flat No. 336 in DD No. 76B is only to show that the incident has taken place somewhere around this place. It has come in the evidence of PW5 Sanjeev Sharma and PW6 Amar Singh @ Gafua that the deceased was found near House No. 336, DDA Flats. PW6 said that after the information was received from Ram Avtar @ Bobby (PW15), they rushed towards the road and found the deceased Humayun sitting at the side of the road. PW15 Ram Avtar also said that when they came back, they found injured Humayun near the road near DDA Flats. Now it is to be noted here that the information to the police had been sent after PW5 SC No. 115/09 36/42 State vs. Vipin @ Kake and PW6 had come downstairs near the injured Humayun. The site plan in this case will be helpful to understand this issue. The site plan Ex. PW8/A shows the place where the deceased Humayun had fallen before being taken to the hospital. Now this point 'C' is on the pakka road on the corner of DDA Flats No. 336 and 332. The distance between the place of incident, shown at point 'A', and that of the place where the injured was found at point 'C' is just 400 meters. The eye witness (PW15) had seen the accused grappling with the deceased from point 'B'. It was not difficult for the deceased rather it was natural for him to walk towards the locality after having received the injury. The witnesses have deposed that when they met injured Humayun, he was not unconscious and was saying that he has been shot by Kake. It means despite having been shot, he was conscious and, thus, if he has traveled from point 'A' shown in site plan Ex. PW8/A to point 'C', nothing adverse can be read against the prosecution. This point 'C' in site plan Ex. PW8/A is near Flat No. 336, DDA Flat, Badarpur. It was, therefore, natural that if someone would give information about the incident, then this Flat No. 336 would be reference point. Therefore, to say that the place of incident has been changed by the Investigating Officer is without any basis and without any material to support this argument.
28. The Ld. Defence Counsel had also argued that when in DD SC No. 115/09 37/42 State vs. Vipin @ Kake No. 76B it was already mentioned that the injured has been taken to Holy Family Hospital, then why the police official went to the spot? He stated that this shows the malafide of SI Girjesh. If the DD No. 76B itself has mentioned that the injured has been taken to Holy Family Hospital, then perhaps it would have been more appropriate to go to the hospital but if the police official instead of going there first went to the spot, then it can be considered a mere irregularity but simply because of this act, the investigation cannot be considered malafide.
29. The Ld. Defence Counsel has argued that SI Girjesh had sent rukka on the basis of DD No. 76B and he deposed that he did not meet any eye witness in the hospital when he obtained the MLC of the injured. He argued that this he had done so that he could manipulate the facts later on while recorded the statement of witnesses U/s 161 Cr.P.C. The Ld. Defence Counsel is not able to explain why SI Girjesh would do this. He is a police official and a public servant who is supposed to act in accordance with the law. The court cannot start with a presumption that the police official will not function as per the law. If there is any malafide, then it has to be brought to the notice of the court. Mere allegation will not be sufficient. Now statement of SI Girjesh (PW13) and the Inspector V.P. Dahiya (PW22) would clearly show that when they went in the hospital, the MLC of the injured was collected. At that SC No. 115/09 38/42 State vs. Vipin @ Kake time, they did not meet any eye witness. But SI Girjesh (PW13) has deposed categorically in the examinationinchief itself that after Ct. Harinder was sent to the police station for registration of the case, he met Ram Avtar @ Bobby, Sanjeev Sharma and Amar Singh @ Gafua. Same is the statement of PW22 Inspector V.P. Dahiya. The Ld. Defence Counsel has referred to the statement of PW5 Sanjeev Sharma where he said that the local police had come to the Holy Family Hospital after 1/2 minutes of admission of Humayun and he met police officials outside ICU. No doubt that PW5 Sanjeev Sharma has deposed so, but on the basis of this portion of his statement, the statement of PW13 SI Girjesh and PW22 Inspector V.P. Dahiya cannot be discredited unless this fact in the statement of PW5 is brought to their knowledge during their examination in court, so that they could have offered an explanation on this point. The law is to the effect that even if the statement of one witness is not found trustworthy or contrary to the evidence on the record, the statement of other witnesses cannot be ignored or discredited on that account.
30. The Ld. Defence Counsel has assailed the statement of PW15 Ram Avtar @ Bobby also. The Ld. Defence Counsel had referred to the particular line of PW15 at Page 2, Line 2nd which reads as under: "During this quarrel, the accused Humayun took out a pistol SC No. 115/09 39/42 State vs. Vipin @ Kake and abused him and said aa tujhe abhi batata hoon".
The Ld. Defence Counsel had submitted that this statement shows that witness did not know as to who was having a pistol with him. The Ld. Defence Counsel perhaps want to take advantage of a clerical and typographical mistake of the name "Humayun" after the word "accused" in the sentence. The next line would clear the doubt when PW15 said that "immediately he fired at Humayun which hit him on the left side of the chest." So, I do not consider it to be a very strong piece of argument to defend the accused. The Ld. Counsel for accused also stated that PW15 Ram Avtar @ Bobby has deposed that he was brought by the police to the spot where the incident had taken place. This shows that the witness i.e PW15 Ram Avtar never disclosed the place of occurrence and the police had manipulated the entire facts. Again, the Ld. Defence Counsel wants to read between the lines while there is nothing to suspect the statement of PW2. The simple meaning of the statement of PW15 is that he had accompanied the police to the place of occurrence. Thereafter, the Ld. Defence Counsel has referred to minor contradictions in the statement of PW5 and PW6. He refers to the statement of PW5 Sanjeev Sharma and PW15 Ram Avtar @ Bobby vizaviz the statement of PW6 Amar Singh @ Gafua. PW6 has stated in his examinationin chief that Sanjeev Sharma (PW5) had told him thiat Kake was SC No. 115/09 40/42 State vs. Vipin @ Kake demanding his advance which he had given to Sanjeev Sharma (PW5) for purchase of plot. However, PW5 Sanjeev Sharma had totally denied this theory. He further pointed out that PW6 in his statement has deposed that he alongwith Sanjeev Sharma and Ram Avtar @ Bobby had taken Humayun to Holy Family Hospital but PW15 Ram Avtar @ Bobby did not go to the hospital with Sanjeev Sharma (PW5) and Amar Singh (PW6). These contradictions are very normal in a criminal case. Nobody can expect a parrot like statement from all the witnesses and there cannot be any mathematical precision in the narration of the facts by the witnesses. The addition and the omission in the statement of the witnesses generally occur. Unless it goes to the root of the matter, they can be easily ignored.
31. Lastly, the Ld. Defence Counsel argued that the Ballistic Report does not favour the prosecution as this report could not establish the fact that the bullet lead recovered from the body of the deceased was fired from the country made pistol recovered allegedly at the instance of the accused. The reason why the FSL could not give this opinion was that the characteristic of striation mark on the bulled lead (Ex. EB1) was insufficient for comparison. It does not rule out that the bullet (Ex. EB1) was not fired from the country made pistol recovered at the instance of the accused. On the other hand, it has specifically said that Ex. EB1 (the SC No. 115/09 41/42 State vs. Vipin @ Kake bullet lead recovered from the body of the deceased) corresponds to the bullet of a .303 cartridge and it has also said that the country made pistol was .303 bore and empty cartridge recovered from the country made pistol was a .303 cartridge. The country made pistol was also in a working order. So, this report is not against the prosecution though it may not be giving a specific evidence on the particular issue regarding the bullet lead recovered from the body of the deceased. Notwithstanding this ballistic report, the other evidence on the record is sufficient to bring home guilt of the accused.
32. Thus, considering the evidence of the prosecution brought on the record, it can be safely concluded that the prosecution has been successful in proving its case against the accused for the offence U/s 302 IPC beyond reasonable doubt. The prosecution has also succeeded in proving the commission of the offence U/s 27 of the Arms Act against him. Accordingly, the accused Vipin @ Kake is held guilty for the offence U/s 302 IPC and 27 of the Arms Act and convicted accordingly.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 24th November, 2011 Addl. Sessions Judge02: South
East Saket Court: New Delhi
SC No. 115/09 42/42
State vs. Vipin @ Kake
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: FIR No. 456/08 Sessions Case No. 115/09
State vs. Vipin @ Kake ID No. 02403R0035552009
PS: Badarpur
U/s 302 IPC & 27 Arms Act
State Vs. Vipin @ Kake, S/o Sh. Prem Pal,
R/o House No. 169A, Tajpur Pahari,
Badarpur, New Delhi.
ORDER ON SENTENCE:
I have heard the submissions of the Ld. Addl. Public Prosecutor for the State and the Ld. Counsel for the convict.
2. The convict Vipin @ Kake is about 25 years of age. He has stated that he had studied only upto 10th Standard and thereafter, he could not pursue his studies due to some family circumstance. He has further stated and informed the court that even in prison, he is doing an English speaking course. Apart from this, the convict has no criminal background and it is his first aberration with law.
3. The manner of commission of the offence also cannot be termed brutal. Therefore, without even a second thought, one can say that SC No. 115/09 43/42 State vs. Vipin @ Kake the present case does not fall in the category of "rarest of rare cases". That leaves the court with the only option to announce the alternative sentence for the offence U/s 302 IPC.
4. The convict Vipin @ Kake is sentenced to Rigorous imprisonment for life for the offence U/s 302 IPC and he is further sentenced to pay a fine of Rs. 5,000/, in default, to undergo SI for a further period of five months.
For the offence U/s 27 Arms Act, the convict is sentenced to Rigorous imprisonment for a period of three years and also sentenced to pay a fine of Rs. 3,000/, in default, to undergo SI for a further period of three months.
Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C be given to the convict on both the sentences.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 26th November, 2011 Addl. Sessions Judge02: South
East Saket Court: New Delhi
SC No. 115/09 44/42