Vinod Kumar vs State Of Delhi
2009 Latest Caselaw 374 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                               Crl. Appeal No. 329/2008

%                                Date of Order : February, 05, 2009

VINOD KUMAR                                    ..... Appellant
                           Through : Mr. M.L.Yadav, Advocate with
                                     Mr. Mohit Mathur, Advocate.

                                     VERSUS

STATE OF DELHI                                .....Respondent

Through : Mr. Pawan Sharma, APP

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be allowed to see the judgment?

(2) To be referred to the reporter or not?

(3) Whether the judgment should be reported in the Digest ?

PRADEEP NANDRAJOG, J.(Oral)

1. At 11.10 P.M. on 1.9.2005, DD entry No.72-B was

recorded at Police Station Nand Nagri to the effect that the

informant had informed that his mother has been shot dead

in Gali No.16, Amar Colony, Gokal Puri, Nand Nagri. SI Jai

Prakash Meena PW-16, accompanied by Const. Virender Singh

PW-7, left for the spot and on reaching there they found Ravi

Kumar PW-2, with accused Vinod in his custody. Ravi Kumar

handed over custody of accused Vinod to the police personnel

as also handed over a country made pistol; stating that Vinod

had shot dead Sushila.

2. Sushila is the mother of Ravi Kumar. Vinod is the

brother-in-law of Ravi Kumar i.e. is the son-in-law of Sushila.

3. Const. Virender Singh PW-7, took custody of Vinod

and SI Jai Prakash Meena recorded Ravi Kumar's statement,

Ex.PW-2/A, and having learnt that the injured was removed to

the hospital proceeded to G.T.B. hospital where Sushila had

been declared brought dead at 12.00 mid night. Dr.

Prabhakar Yadav PW-10, who had examined her, had so

recorded on the MLC Ex.PW-10/A.

4. SI Jai Prakash Meena PW-16, returned to the spot

and made endorsement Ex.PW-16/A beneath the statement,

Ex.PW-2/A, of Ravi Kumar and forwarded the same for

registration of the FIR.

5. In the meanwhile, Insp. Bahori Singh PW-17, the

Additional SHO of the Police Station Nand Nagri had also

reached the spot.

6. SI Jai Prakash Meena and Inspector Bahori Singh

conducted investigations at the spot and in the meanwhile, on

receipt of Ex.PW-2/A duly endorsed as per endorsement

Ex.PW-16/A; at the Police Station the FIR under Section 302

IPC read with Section 25 of the Arms Act was registered by

ASI Krishan Pal PW-8.

7. A disclosure statement, Ex.PW-16/E, of the

appellant was recorded at the spot by SI Jai Prakash Meena

PW-16. Blood, earth control sample and blood-stained soil

were lifted from the spot vide seizure memos Ex.PW-16/B,

Ex.PW-16/C and Ex.PW-16/D. They were converted into

separate parcels and were sealed. The country made pistol

was seized by the police vide seizure memo Ex.PW-2/B and

sketch thereof Ex.PW-2/C was prepared. Appellant Vinod, was

formally arrested as per arrest memo Ex.PW-16/F. Inspector

Bahori Singh PW-17, prepared a rough site plan Ex.PW-17/A

and recorded marginal notes thereon.

8. Anand Kumar PW-9, a photographer by profession,

was summoned at the spot and he took five photographs of

the place of occurrence; being Ex.PW-9/A-1 to Ex.PW-9/A-5;

negatives whereof are Ex.PW-9/B-1 to Ex.PW-9/B-5.

9. Since Sushila was declared brought dead at the

hospital, her body was seized by the police and after filling up

the requisite inquest documents, was handed over to the

Forensic Department of GTB hospital for post-mortem

examination of the dead body, where Dr. S.K. Verma PW-12,

conducted the post-mortem on 2.9.2005 and prepared the

post-mortem report Ex.PW-12/A. He recorded the following

external and internal injuries on the deceased:-

"1. Fire arm entry wound, oval in shape of size 2 x 1 cm placed on left side lower chest 7 cms from mid line and 23.3 cms below the left mid clavicular point, having blackening and tattooing (in an area of 30 x 11 cms) mostly on the lower aspect from main wound. A graze injury mark was also present on left breast at six o'clock position and 7.4 cm below the centre of the left nipple having size of 2.5 x 1.5 cms. The entry wound was directed medially downwards and positeraly into the abdomenial caveity. Injuries were bowel loops and going through the liver and coming out from right side back by making and exit would of size 2 x 0.5 cms placed 10 cms. To the right of the mid line. And 26 cms above right anterior superior iliac spine. Blood was present through out the tack.

2. Fire arm entry wound over left eye of size 4 x 2 cms with total destruction of eye archituchure and facture of orbit going backwards or medially through the base of skull with no blackening and tattooing. Visible outside. On exploring the wound it was going into the cranial caviety and bring entry from the frontal lobe base going upto temporal low on right side and coming out through temporal bone by making an exit wound of size. 1 x 0.8 over mastoid region 10.5 cms to the right of mid line and siz cms from right mastoid. The vellinig of outer table present around the exit wound on moistoid area. Blood was present through out the track.

3. Internal examination : There was extravegiation of blood ibn left frontal right temporal region. Fracture base of the skull anterior cranial fosa and right temporal bone.

4. Brain:- Sub archaloid haemorrhage both frontal temporal. Contusion laceration left frontal, left temporial and right temporial low. Peritonium was filed with clotted and fluid blood approx. 2 liters. Liver weight 1400 grams shattered with large laceration of size 20 x 8 cms.

10. He opined that fire-arm injuries No. 1 and 2 were

both sufficient to cause death in the ordinary course of

nature, independently and collectively.

11. The country made pistol was sent for ballistic

examination and as per report Ex.PA dated 3.4.2006, it was

opined that the country made pistol had .315" bore and was

designed to fire a standard 8 mm/.315" cartridge. It was

opined to be in working order and that a test fire was

successfully conducted there from. It is opined that the

country made pistol is a fire-arm as defined under the Arms

Act, 1959.

12. We note that there is no evidence pertaining to the

serology test, if at all conducted, with respect to the blood-

stained clothes of the deceased and the earth control, blood-

stained earth sample, and blood which were lifted from the

spot. There is no evidence that the bullets which hit the

deceased were fired from the country made pistol seized by

the police. The report of the ballistic expert shows that no

such opinion was sought.

13. Rohtash Singh PW-1, Kanta PW-3, Kashmiri PW-4,

Nanhe Lal Nigam PW-5 and Pooja PW-6 were the persons

whom police found at the spot when SI Jai Prakash Meena and

Const. Virender Singh had reached. Their statements were

recorded by the Investigating Officer during the course of

investigation. Needless to state, the statements were

recorded under Section 161 Cr.P.C. As per the statements

the appellant had fired two shots at his mother-in-law which

proved to be fatal.

14. After a few days Mukesh Kumar PW-15, a

drafts-man was taken to the spot on 12.9.2005 and with the

assistance of Inspector Bahori Singh prepared the site plan to

scale, Ex.PW-15/A.

15. Armed with the eye witnesses of the incident and

citing them as witnesses of the prosecution; including in the

list of witnesses the names of the police officers who were

associated with the investigation and registration of the FIR;

the photographer who took photographs of the site; the

doctor who recorded the MLC of the deceased and the doctor

who conducted the post-mortem and the drafts-man who

prepared the site plan to scale; filing the various memos

prepared at the spot and the report of the ballistic expert, a

charge sheet was filed against the appellant alleging that

with the intention of causing death of his mother-in-law, the

appellant fired twice upon her and that both shots hit the

mother-in-law, resulting in her death i.e. the appellant having

murdered his mother-in-law. The appellant was also charged

for illegally possessing a fire-arm i.e. committing an offence

punishable under Section 27 of the Arms Act.

16. At the trial, the two doctors i.e. PW-10 and PW-12

proved MLC and the post-mortem report. PW-15, the

draftsman, proved the site plan to scale. PW-9 the

photographer proved the photographs which he had taken at

the spot.

17. SI Jai Prakash Meena PW-16 and Insp. Bahori Singh

PW-17 as also Const. Virender Singh PW-7 deposed to the

facts relatable to the investigation conducted by them, which

needless to state included the fact of the apprehension of the

appellant at the spot after being produced by Ravi Kumar PW-

2, and being handed over the weapon of offence as also the

memos prepared, when at the spot the blood control earth,

earth sample, blood sample and the weapon of offence were

seized.

18. The eye witnesses to the incident namely PW-1 to

PW-6 were examined.

19. Since the learned Trial Judge has accepted the eye

witness account of the incident, it would be appropriate for us

to note the relevant deposition of the eye witnesses.

20. Rohtash Singh PW-1, deposed that the accused

was a tenant in his house since about a year ago and that at

around 10/10.30 P.M. on 1.9.2005 he was present at the roof

of his house along with other family members and came down

upon hearing a gun shot. As he came on to the street he

found a dead body lying there. It was of Sushila, the mother-

in-law of the appellant. That the appellant was also standing

there. A crowd had gathered. A PCR van reached and

removed the body of Sushila. That the appellant was

apprehended and taken away by the police. He was

questioned by the court whether he had seen any weapon

lying at the spot, to which he responded, that he had not seen

any weapon of offence. He stated that when he saw the body

of Sushila he noted blood was lying on the spot. On being

cross examined by counsel for the accused, he stated that

dead body of Sushila was lying on the thresh-hold of his

house.

21. Ravi Kumar PW-2, deposed that accused Vinod was

his brother-in-law; being married about 1-2 years ago with his

sister Pooja. He deposed that at around 10.00 P.M. on

1.9.2005, he was present in his house and that the appellant

came to his house and started quarrelling with the family

members demanding money from them. At that time his i.e.

Ravi Kumar's father, mother and father's sister were present

in the house and that when money was not paid, uttering that

he will beat Pooja, the appellant returned to his house. He i.e.

Ravi Kumar, his mother, his grand-mother and his father's

sister followed the appellant to his house which was at street

No.2, Amar Colony, East Gokal Pur, Delhi. They all reached

his house at around 10.15 P.M. He i.e. Ravi Kumar bolted the

main door from outside and the appellant came out of his

house through a shop which was located in the same house

and was having a country made pistol in his hand and that he

fired a shot at his mother. His mother immediately rushed to

him and requested him to call the PCR van. The shot hit his

mother in the abdomen. She fell down and his father's sister

tied a chunni on the wound of his mother. That when he

came back after informing the police he found that there was

another gun shot wound on the left eye of his mother. The

appellant stood there with a country made pistol in his hand.

The police came and took possession of the pistol from the

appellant and removed his mother in a PCR van to the

hospital. He went to PS Nand Nagri where his statement

Ex.PW-2/A was recorded and the pistol was seized vide

seizure memo Ex.PW-2/B and sketch thereof, Ex.PW-2/C was

prepared.

22. On being cross examined he admitted that the

under noted statements were not part of his earlier statement

Ex.PW-2/A. The statements are :-

"(i) Vinod was demanding money from my mother.

(ii) No money was paid to Vinod.

(iii) I had closed the main door of the house.

(iv) Vinod came out of the house through the door which opens in a shop.

(v) When Vinod came out of the house through the door opening in the shop, there was a country made pistol in his hands.

(vi) When my mother sustained gun shot injuries, she cried for help and told me to give a telephone call to PCR.

(vii) I had gone to give a telephone call to PCR at the instance of my mother.

(viii) When my mother fell down, my sister tied her chunni around the wound.

(ix) When I returned after making a telephone call, I found one gun shot injury over the left eye of my mother.

(x) Vinod was present there having a country made pistol in his hands.

(xi) Police reached there and seized the country made pistol from the possession of the accused.

(xii) I went to PS Nand Nagri, where my statement was recorded."

23. Kanta PW-3 deposed that the appellant was the

son-in-law (Bhatij Jamai), meaning thereby, the son-in-law of

her brother. She deposed that on 1.11.2005 at about 10.00

P.M. the appellant came to their house. She explained that by

November she meant the month which comes after August.

The appellant demanded money from her sister-in-law i.e.

Sushila Devi. Sushila told the appellant that she was not

having any money with her and requested the appellant to

leave for his house. Sushila and Ravi followed the appellant

and since the appellant had raised an altercation at their

house, she and other family members followed them. They

reached the house of the appellant after about 10-15

minutes. The appellant went inside the house. Sushila bolted

the door from outside. The appellant came out of the house

from another door and was armed with a country made pistol

which he was having in his hand and he fired a shot at Sushila

who sustained injuries in her abdomen and fell down. She

tied a chunni on the wound of Sushila. The appellant told her

to go away otherwise he would shoot at her. She withdrew at

some distance from Sushila, when appellant fired another

shot at the eye of Sushila who expired immediately. She

raised alarm. The appellant declared whoever would come

near him would be killed. She left for her house. The witness

was cross examined wherein she admitted that in her

statement under Section 161 Cr.P.C. she had not disclosed

that the appellant had demanded money from Sushila. She

admitted that in said statement she had not told the police

that when appellant had come to their house, her children

and the children of her sister-in-law were present in the

house. She admitted that she had not told the police that

Sushila had told the appellant to go home and that she would

not give him any money. She admitted not having informed

the police that Sushila bolted the door from outside and that

the appellant came out of his house from another door. She

admitted that she did not tell the police that the appellant

was having a country made pistol in his hand. She further

admitted that she did not tell the police of having tied a

chunni on the wound of Sushila. She admitted that she had

not told the police that the accused had threatened her to

leave, otherwise he would fire at her. She stated that she had

told the police that the accused had fired a second gun shot

but admitted that the same was not recorded in her

statement under Section 161 Cr.P.C.

24. Kashmiri PW-4 deposed that the appellant is the

son-in-law of her son and that Pooja was married with him

about a year ago and that about five months ago, the

appellant had come to their house at about 10.00 PM;

demanding money from his mother-in-law Sushila. Sushila

told him to speak to her in the morning and the appellant

declared that he will teach Pooja a lesson and left for his

house. Sushila, Kanta and herself followed the appellant who

resided nearby. The appellant went inside his house and

came out from another door and give kick blow to his mother-

in-law. He took out a country made pistol and fired at Sushila

who sustained injuries in the abdomen. He fired another shot

on the left eye of Sushila. Police reached the spot as someone

had made a telephone call to the PCR. Vinod was having a

country made pistol in his hand which was seized by the

police. She deposed that Ravi was also present at the spot at

that time. In cross examination she stated that she had told

the police that the appellant had left their house uttering that

he would teach Pooja a lesson, but admitted that the said

statement was not recorded by the police and was not

forming a part of her statement recorded under Section 161

Cr.P.C. She stated that she told the police that the family

members followed Vinod as there was a possibility of his

having an altercation with Pooja, but admitted that the same

was not to be found in her statement recorded by the police.

25. Nanhe Lal Nigam PW-5, a neighbour deposed that

he was present in his house at 10.00 P.M. on 1.8.2005 and

learnt that a gun shot was fired. He reached for the said spot

and found Sushila lying on the ground. Police reached and

removed Sushila to the hospital. He stated that when he

reached the spot Vinod was in the custody of the police.

26. Pooja PW-6, the wife of the appellant deposed that

she was married to the appellant on 16th June about 1-2 years

ago and after living in the matrimonial home which belonged

to the elder brother of the father of the appellant they shifted

to the present house about six months ago. At 10.00 P.M. the

appellant had a quarrel with her mother demanding money.

Her brother had informed her that the appellant was

quarreling with her mother. He requested her to call Vinod

back to their house and she expressed her inability to do so.

After sometime, her husband came home and took out a

country made pistol. He went outside; fired at her mother

who was outside the house. Her mother died in front of her.

She saw her mother bleeding from an injury in the abdomen.

Her grandmother, her father, father's sister and her brother

Ravi were also present there. Her husband was taken away

by the police.

26. In cross-examination, Pooja admitted that her

husband used to prevent her from going to the house of her

parents. She stated that she was confined inside a room and

could not state whether the incident happened on the right

side or the left side of the main gate.

27. The appellant was questioned on the incriminating

evidence emerging against him. He denied his involvement

in the crime and stated that he had been framed up. He said

that he would lead evidence in defence. But did not lead any.

28. Believing Ravi Kumar PW-2, Kanta, PW-3 and

Kashmiri PW-4 and additionally finding corroboration from the

testimony of Pooja PW-6 of the appellant taking out his

country made pistol, the learned trial judge has held that the

ocular evidence was of a high quality and was enough to

sustain a finding of guilt. The result is the conviction of the

appellant for the offence of murdering his mother-in-law as

also for the illegal use of an unlicensed firearm.

29. At the hearing today Sh.M.L.Yadav, learned

counsel for the appellant has urged that the 12 statements

noted hereinabove in para 22 were improvements made by

PW-2 on his earlier statement Ex.PW-2/A and therefore the

testimony of PW-2 had to be discarded. Learned counsel

urges that Kanta PW-3 deposed that the deceased and PW-2

Ravi went to the house of the accused to leave him at his

house; whereas PW-2 and Kashmiri PW-4 deposed that the

family members left their house and followed the appellant

because they feared that he would harm Pooja. Counsel

urges that this shows material contradictions in the deposition

of the witnesses. Learned counsel further urges that Kanta

PW-3 improved upon her statement recorded by the police in

which statement she had not told that she had tied a chunni

on the wound of Sushila. Learned counsel further urges that

Kanta PW-3 deposed that when the appellant threatened her

after she had tied a chunni on the wound of Sushila, she left

the house along with her brother and sister but surprisingly

enough the police officers found them at the spot. Learned

counsel further urges that Pooja PW-6 deposed that her

brother had informed her that the appellant was quarreling

with her mother and requested her to call Vinod back to the

house and she expressed her inability to do so and that after

some time her husband came home and took out a country

made pistol; but the other witnesses had not deposed that

Vinod had left his house to summon Pooja when the appellant

was fighting with the deceased in the house of the deceased.

Learned counsel further urges that the evidence probablizes

that Ravi PW-2 had murdered his mother and the motive was

the ill repute of his mother.

30. The last submission made, that the evidence

probablizes that Ravi PW-2 could be the murderer of his

mother and the motive was the ill repute of his mother,

requires to be thrown in the dustbin without any further

consideration, for the reason, save and except a vague

suggestion given to Kashmiri PW-4, that it was Vinod who had

shot his mother, no such line of cross-examination was

adopted vis-à-vis the other witnesses. Even in his statement

under Section 313 Cr.PC the appellant did not say that Ravi

was the assassin. We may note that Sushila has admittedly

been shot outside the house of the appellant. If Ravi had to

kill his mother, surely he would not have done so in a street;

in full public glare.

31. Pertaining to the 12 statements made by PW-2 and

as noted in para 22 above, in respect whereof, submissions

have been made that they are material improvements; what

is a material improvement has to be kept in mind vis-à-vis

variations in the narration of the same sequence of events at

two different points of time by the maker of the statement.

32. Now, what was told by Ravi to the police which

finds recorded in the statement Ex.PW-2/A has to be

understood with reference to the fact that this statement was

made by Ravi immediately after his mother was shot at, in his

presence. His mental condition has to be kept in mind while

analyzing what he stated when Ex.PW-2/A was recorded and

what he deposed later on in court.

33. In his statement Ex.PW-2/A, Ravi has stated that on

1.9.2005 his brother-in-law Vinod came to their house at

around 9.30 PM and started accusing his mother and him

(meri maa va mujhe bura-bhala kehne laga). His sister Pooja

was married to Vinod on 16.6.2004. After the marriage, Vinod

did not allow his sister to visit them. Vinod suspected the

character of his mother and this is the reason why he did not

permit Pooja to visit their house. After verbally abusing their

family, Vinod returned to his tenanted house A-2/226, East

Gokulpuri, Delhi. Soon after Vinod left, he i.e. Ravi and his

mother had a doubt that Vinod may cause harm to Pooja. At

that time his mother Sushila, aunty Kanta and grand-mother

Kashmiri were present in the house and all followed. They

reached house of Vinod. His sister and his brother-in-law

were sitting outside their house. His mother and his

grandmother were speaking with Pooja so that Pooja could

counsel her husband to not visit their house and create a

scene, when Vinod went inside his house and came out with a

country made pistol and fired at his mother, who sustained an

injury in her abdomen. He attempted to snatch the country

made pistol from the hand of Vinod at which Vinod yelled at

him and threatened that if he did not move away Vinod would

shoot him and re-loaded a second round and fired at his

mother which hit her near the eye. At that he i.e. Ravi

pounced upon Vinod and disarmed him.

34. In substance and in material particulars, Ravi has

stated the same facts which were disclosed by him at the first

instance. Whether money was demanded by Vinod when he

had come to their house and that none was paid and whether

after entering the house of Vinod the gate (referred to as the

main door of the house) was closed or not are not of material

consequence. Whether it was disclosed to the police that

when his mother fell down, his sister tied the chunni or it was

not so disclosed is immaterial. Similarly whether his sister

tied the chunni around the waist of his mother or his aunty

did so is immaterial. Similarly, variations which have been

pointed out by learned counsel with respect to the testimony

of PW-2 and PW-4 of the sequence of the family members

following the appellant when he left their house are not fatal.

We note that PW-4 was aged 70 years when she deposed.

She is a rustic lady and possibility of not remembering minor

details of the exact sequence of events leading to the family

members going to the house of the appellant cannot be ruled

out. Similarly, Kanta PW-3 deposing that she tied a chunni on

the wound of Sushila and left the house when threatened by

the appellant, but the police officers finding her at the spot is

explainable as a memory lapse by the witness, who certainly

went home after every thing was over. Merely because she

deposed to have left a little earlier, is immaterial for the

reason, she has deposed in harmony with her statement

recorded by the police under Section 161 Cr.PC up to the

events of the appellant shooting at his mother-in-law and the

mother-in-law falling down. Similarly, Pooja having mixed up

some facts of her brother coming to her house and requesting

her to call back her husband, with the actual event of her

husband accompanying her mother, her aunty and her

grandmother when they reached her house cannot be ruled

out. In any case, we see no point of substance in the said mix

up.

35. It is of importance to note that the police had

found PW-1 to PW-6 at the spot and hence they being the

natural witnesses stands corroborated from said fact. It is

true that PW-1 and PW-5 have not deposed of having seen the

shooting but have corroborated having seen the deceased

shot dead outside the house of the appellant and that the

appellant was being held by Ravi. Why would Ravi be holding

the appellant? Obviously, so that the appellant could not run

away.

36. Some witness speaking that the police picked up

the country made pistol from the ground and some speaking

that Ravi handed over the same to the police is

inconsequential because every witness would be scared

having seen a woman being fatally fired upon and would not

precisely be expected to remember the minutest details of

the incident. The social background of the witnesses have to

be kept in mind. They are all residents of an unauthorized

slum colony and unlike educated persons have poor

vocabulary at their command and hence cannot speak with

precision. It is settled law that minor variations by eye

witnesses pertaining to the account of the incident seen by

them are inconsequential. It is only contradictions on

material facts which discredit the eye witnesses.

37. Learned counsel for the appellant does not dispute

that the place where Sushila was murdered is the street just

opposite the house of the appellant; a place at a distance of

about 15 minutes walk from the house of the deceased. The

place of occurrence corroborates the testimony of all eye

witnesses that the assassin was the appellant.

38. We find no merits in the appeal. The appeal is

dismissed.

                                           (PRADEEP NANDRAJOG)
                                                 JUDGE



                                             (ARUNA SURESH)
February 05, 2009                                JUDGE
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