The reliability of testimonies, the burden of proof, and the requirement of circumstantial evidence to prove the guilt beyond reasonable doubt.

JUDGMENT

Rajnish Bhatnagar, J. - This is an Appeal against the Judgment dated 13.12.2018 and order on sentence dated 21.12.2018 passed by the Addl. Sessions Judge-02, South District, Saket Court, New Delhi vide which the appellant has been convicted for the commission of offence U/s 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a sum of Rs. 5,000/- as fine and in default of payment of fine to undergo 06 months of simple imprisonment.

2. Briefly stated the case of the prosecution is that an intimation vide DD No. 28A dated 05.09.2013 was received regarding gunshot injury to one boy. On this, SI Rajinder Singh alongwith Ct. Manish reached in front of H.No. 5/4, Sector1, Pushp Vihar and found three empty khols (cartridges) and glass pieces lying there. No eye witness was found at the spot. Thereafter, SI Rajinder went to Batra hospital and obtained the MLC of injured Kapil Singh in which it was mentioned that he was brought by his friends Rohit and Balraj in unconscious state and the patient could not be revived and declared dead.

3. Thereafter, SI Rajinder recorded the statement of Balraj Singh @ Babli and pursuant to the statement of Balraj Singh @ Babli, FIR u/s 307/302/34 IPC and 27 Arms Act was registered and the investigation was handed over to Inspector Ajay Pratap Singh who during investigation called the crime team, took the photographs of the spot, lifted the exhibits i.e. glass pieces as well as empty khols (cartridges). Blood stains bullet pellets and glass pieces lying in the XUV car were also lifted. The blood stained clothes of Rohit Choudhary were also seized, post mortem of dead body was also go conducted.

4. Appellant Kamal was arrested on 07.09.2013, at the instance of a secret informer from service road near Tuglakabad Railway station. On the search of accused Kamal one pistol allegedly used in the crime was recovered from his left side dub. Thereafter, his disclosure statement was recorded.

5. During the investigation the mobile phone of the appellant could not be recovered but during the PC remand the appellant was got identified through Balraj @ Babli. As per the prosecution at the instance of the appellant motorcycle used in the offence was recovered from the street in front of House No.B-36, JJ Camp, Tigri which was found to be registered in the name of Arjun.

6. On 13.09.2013, co-accused Neeraj Kumar surrendered in the Court, he was arrested and he made disclosure statement in which he disclosed that on the date of the incident he had taken Kamal (appellant) on motorcycle and they followed XUV car in which Kapil was sitting. When the car stopped at Pushp Vihar, appellant fired at Kapil and then he alongwith appellant fled on the motorcycle. On 14.09.2013, at the instance of coaccused Neeraj one Nokia phone alleged to have been used in the crime was recovered. The mobile Number 9899292973 which, according to the prosecution, was used by the appellant was found to be registered in the name of one Ranjit Middha who was not traceable. According to the prosecution, the statement of one Ahmed Parvej and Kanti Devi, mother of the appellant were recorded who stated that this number was used by the appellant.

7. The mobile number 9717499375 was found to be allotted to coaccused Neeraj by his company. Co-accused Arjun could not be arrested and was declared proclaimed offender. However, later on he was arrested. Co-accused Arjun was found to be using mobile number 9958669936 (in the name of his father) and 8527434510 in keeping touch with appellant and coaccused Neeraj.

8. Fsl report of the recovered weapon was obtained in which it was opined that the recovered cartridges (Khols) were not found to be fired from the weapon recovered from the appellant.

9. Vide order dated 25.02.2014 charges u/s 120B, 302/120B and 307/34 IPC were framed against appellant Kamal and his co-accused Neeraj. Appellant was further charged with the offence u/s 25 Arms Act. Lateron, after arrest of co-accused Arju