IMPORTANT POINT
Circumstantial evidence – principles reiterated. .

JUDGMENT

Ranjan Gogoi, J

These appeals are directed against the common judgment and order dated 10.08.2009 passed by the High Court of Delhi whereby the conviction of the appellant under Sections 302 and 460 read with Section 34 of the IPC as well as under Section 25 of the Arms Act has been affirmed. The appellant has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 read with Section 34 IPC whereas for the offence under Section 460 read with Section 34 IPC sentence of seven years rigorous imprisonment has been imposed. Insofar as the offence under the Arms Act is concerned, the accused-appellant has been sentenced to undergo rigorous imprisonment for one year. All the sentences have been directed to run concurrently.

2.The short case of the prosecution is that on 06.06.2001, H.C. Brij Pal (PW 11), who was posted in the PCR, received an information at about 10.35 PM that firing is taking place at Savitri Nagar near a sweet shop. Accordingly, PW 11 alongwith other police personnel reached the said place and saw that a crowd had gathered near a STD booth where blood was splattered and some articles were lying scattered in broken condition. The STD booth belonged to one Omiyo Das of Malik Communications, who having been injured in the firing had already been removed to the hospital. The said information was passed on to the local police station which was duly recorded in the Daily Diary of the Police Station and marked to SI – Sudhir Sharma, PW 24, who along with Constable- Bajrang Bahadur reached the place of occurrence. On reaching the said place the police party could come to know that the injured Omiyo Das had already been declared brought dead to the hospital. Further more, according to the prosecution, one Vicky Malik (PW 1) was an eye witness to the occurrence. Accordingly, his statement (Ex.PW- 1/A) was recorded where he had stated that on 06.06.2001 at about 10.20 P.M. when he was sitting outside his STD booth and sweet shop at J-196, Savitri Nagar, he had noticed a white Maruti Car stopping on the other side of the road. In the statement recorded by the police, PW 1 has stated that two men alighted from the vehicle and entered the STD booth whereafter they started firing at his maternal uncle, Omiyo Das. According to PW 1 he tried to intervene and in fact had brought a palta from his nearby sweet shop but his uncle told him to run away from the place and save his life. PW 1 had further stated that blood was oozing out from the injuries suffered by his uncle and he ran towards his house No.86B shouting for help. According to PW 1, thereafter, the assailants fled away and he had along with his younger brother –Raj Kumar Malik –PW 3 and another maternal uncle – Ravi Kumar Dass – PW 4 had removed the injured to the hospital. In his statement, PW 1 had categorically stated that one Satish Kumar who had killed his father and who had been acquitted about a month ago in the case arising from the said incident was one of the assailants whereas the other/second assailant was about 25-26 years of age and was a well built person. On the basis of the aforesaid statement made by PW 1 – Vicky Malik, the FIR –Ex.PW-6/A was lodged and FIR Case No. 438/2006, Police Station Malviya Nagar (hereinafter referred to as the present case) was registered. Three live cartridges cage of 0.380 bore; one empty cartridge of 0.380 bore and four lead pieces of fired bullets were seized from the place of occurrence by PW 24 – Sudhir Sharma. The blood stained baniyan of PW 3; blood stained earth etc. were also seized from the place of occurrence by the Investigating Team.

3.The further case of the prosecution is that on the next day, i.e. on 07.06.2001, PW 9 –Dr. T. Milo had conducted the post mortem on the body of the deceased in the course of which nine ante-mortem bullet injuries were noted and four bullets had been extracted from the body which along with one cotton underwear; one cotton baniyan, one long pan