CRL.A.631/2007 Page 1 of 5 * 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 CRL.A.631/2007 Page 2 of 5 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. CRL.A.631/2007 Page 3 of 5 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 CRL.A.631/2007 Page 4 of 5 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. CRL.A.631/2007 Page 5 of 5 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