Anil Kumar vs State
2009 Latest Caselaw 5297 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision : December 18, 2009

+                          CRL. APPEAL NO.631/2007

       ANIL KUMAR                                  ...........Appellant
                Through:          Mr.Rajpal Singh, Advocate.

                                    versus
       STATE                                     ....Respondent
                      Through:    Ms.Richa Kapoor, A.P.P.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the
        Digest?                                        Yes


PRADEEP NANDRAJOG, J. (Oral)

1. Appellant and co-accused Umesh were sent to trial

for the offence punishable under Section 302/392/34 IPC. The

appellant was also charged for the offences punishable under

Section 397 IPC and Section 25/27/54/59 of the Arms Act.

2. Vide impugned judgment and order dated 20.7.2007,

the appellant has been convicted for the offence punishable

under Section 302 IPC as also the offence punishable under

Section 392 read with Section 397 IPC. He has also been

convicted for the offence punishable under Section 25 and

Section 27 of the Arms Act. The co-accused has been acquitted.

3. In convicting the appellant the learned Trial Judge

has held that the evidence establishes that the pistol Ex.P-2

recovered from the appellant when he was arrested was the

weapon of offence since the report Ex.PW-17/A of the ballistic

expert confirmed that the fired cartridge Ex.P-4 recovered near

the body of the deceased as also the bullet recovered from the

skull of the deceased during post-mortem were fired from the

pistol in question as the striation marks on the bullet recovered

from the body of the deceased matched those on the test fired

bullet and the firing pin marks and breach face on the used

cartridge Ex.P-4 matched those on the counterpart of the test

fired cartridge. The second incriminating circumstance held

established against the appellant is his being apprehended while

driving the Indica car Ex.P-1 bearing No.DL 4S AA 0085. The car

belonged to Sudhir Yadav PW-12 whose driver Satish PW-2 had

given the car to Jaipal, the deceased at around 10:00 PM on

29.12.2003. The appellant was apprehended in the car in the

intervening night of 29th and 30th December 2003 at 2:00 AM.

The third incriminating evidence against the appellant is the fact

that the appellant led the police to the spot where the dead

body of the deceased was recovered.

4. Co-accused Umesh has been acquitted for the reason

Const.Jaipal PW-15 stated that he did not see the face of the

other boy in the car since that boy ran away and Const.Surender

Singh PW-7 was not believed that Umesh was the other boy

seen by him in the car.

5. The case of the prosecution is that in the intervening

night of 29th and 30th December 2003 Const.Jaipal PW-15 and

Const.Surender Singh PW-7 were on patrol duty. They noticed

the Indica car Ex.P-1 on Dhansa Road. The car was moving in

jerks. They saw the window pane of the driver's side broken.

They intercepted the car. One boy sitting on the seat next to

the driver's seat (stated to be Umesh) ran away. Appellant was

sitting on the driver's seat. He tried to run away but was over-

powered. The pistol Ex.P-2 was recovered from his pant. Blood

was found on the driver's seat. Appellant confessed having

murdered the driver of the car and led the police to the spot

from where the dead body of Jaipal was recovered. Nearby the

body a fired cartridge Ex.P-4 was recovered.

6. Const.Surender Singh PW-7 and Const.Jaipal PW-15

have stood by their testimony which proves that the appellant

was over-powered while driving the car Ex.P-1 and the pistol

Ex.P-2 was recovered from his possession. Learned counsel for

the appellant concedes that the report Ex.PW-17/A concludes

the issue that deceased Jaipal was shot in the temporal region

with the pistol in question.

7. Through the testimony of Satish PW-2 and Sudhir

Yadav PW-12, learned counsel concedes that it has been

established that the Indica car Ex.P-1 was entrusted to Jaipal at

around 10:00 in the night.

8. The appellant being in possession of the fruits of the

crime within hours of the crime and the weapon of offence

recovered from him is sufficient evidence to hold that with a

view to rob Jaipal of the Indica car Ex.P-1, the appellant shot him

in the temporal region.

9. We may note at this stage that as per the report of

the serologist human blood of the same group as that of the

deceased was detected on the seat cover of the driver's seat of

the car.

10. The fact that the dead body was recovered from the

spot, not in the knowledge of the police, at the instance of the

appellant is an additional link in the chain of incriminating

evidence against the appellant.

11. The only contention urged by learned counsel for the

appellant is that from the act of the appellant the offence which

is made out is the offence punishable under Section 304 Part-I

IPC for the reason only one shot was fired and the intention was

to commit robbery and not to kill the deceased.

12. We do not agree. The post-mortem report Ex.PW-

14/A shows that the bullet was fired at the postero lateral side of

the skull at the point 2.5 cm behind right ear pinna and 5 cm

below right occipital region. To put it in layman's language, the

deceased was fired by putting the pistol at the head just behind

the right ear. If nothing else Section 300 Thirdly of the Indian

Penal Code is attracted.

13. Noting that the State has not challenged the acquittal

of the co-accused Umesh we dismiss the appeal.

14. Since the appellant is in jail, copy of this order be

sent to the Superintendent, Central Jail, Tihar, to be made

available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE December 18, 2009 Dharmender