STATE vs. VINOD KUMAR YADAV

IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL LEAVE PETITION No. 36/2013
th
% Date of decision: 19 May, 2015
STATE .........APPELLANT
Through: Mr. Sunil Sharma, APP for State.
Versus
VINOD KUMAR YADAV ........RESPONDENT
Through : Mr. Ajay Verma, Advocate.

CORAM:
HON’BLE MR. JUSTICE G. S. SISTANI
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

SANGITA DHINGRA SEHGAL, J.

1. By the present Leave Petition filed under Section 378 (1) of the
Code of Criminal Procedure, the State seeks leave to appeal against
the judgment dated 17.03.2012 passed by the learned Trial Court in
Session Case No. 30/10, whereby the respondent (accused before
the Trial Court) was acquitted of the charge punishable under
Section 302 of the Indian Penal Code.
2. The facts of the case, as noticed by the learned trial court, are that
on 05.11.2009 a dead body was recovered near Sonia Vihar water
treatment plant; that the information was conveyed through
wireless operator that a person had been shot; that SHO, Police
Station – Khajuri Khas and Inspector Pankaj Sharma PW24
reached the spot and found lot of blood on the right side wall of the
footpath and six empty cartridges along with one bullet led, one
Crl. L.P. 36/2013 Page 1 of 11


green cap, a pair of slippers, a wooden log and one bicycle lying
there; that the victim had been taken to the Guru Teg Bahadur
hospital in a PCR Van, where he was reported “brought dead”;
that during the personal search of the victim at Guru Teg Bahadur
hospital a pocket diary, few keys and a visiting card in the name of
V. K. Cycles was recovered having the mobile numbers of PW2
Om Prakash and PW4 Mahendra Singh, who were called to the
hospital; that PW2 Om Prakash identified the deceased as Rajab
Ali, a rickshaw Puller and PW4 Mahendra Singh also identified the
deceased as his tenant; that Rabia, wife of the deceased was also
called, who identified the dead body of her husband and suspected
that the respondent may be responsible for the murder of her
husband; that an FIR No. 312/09 under Section 302 of Indian
Penal Code was registered on 05.11.2009 against the respondent;
that the respondent was arrested on 16.11.2009 and during
investigation, he confessed his guilt; that on completion of
investigation, the prosecution filed chargesheet under Section 302
of the Indian Penal Code against the respondent.
3. To bring home the guilt against the respondent, the prosecution
examined 25 witnesses in all. Statement of respondent was
recorded under Section 313 of Code of Criminal Procedure by the
learned Trial Court wherein he claimed to be innocent and denied
all prosecution charges and examined 8 witnesses in his defence.
4. Mr. Sunil Sharma, APP for the State argued the case on behalf of
the State and opened his submission by contending that the
impugned judgment was erroneous in law and suffered from serious
Crl. L.P. 36/2013 Page 2 of 11


infirmities; that the view taken by the learned Trial Court is
contrary to the established principle laid down by the Hon‟ble Apex
Court; that learned Trial Court failed to appreciate the evidence
adduced by the prosecution and overlooked the complete chain of
circumstantial evidence without any missing link; that learned Trial
Court overlooked the fact that the respondent and the wife of the
deceased had illicit relations and the respondent wanted to get the
custody of his son, born to the wife of the deceased out of their
illicit relationship and on the day of incident or a day before, when
the respondent had called the wife of the deceased on phone and
asked her to bring his son „Sonu‟ with her, the deceased reacted and
shouted at the respondent that “teri maa ne doodh pilaya hai to aa
kar le ja”; that the only motive for the occurrence was fully
established which was apparent but overlooked by the learned Trial
Court; that the deceased was a rickshaw puller and had hired a
rickshaw from PW2 Om Prakash which was found in possession of
the respondent at the time of his apprehension; that on the pointing
out of the respondent, his blood stained clothes were recovered and
samples of his blood were taken; that the samples of blood matched
with the blood group of the deceased; that similarly, a country
made pistol was got recovered by the respondent on his pointing
out; that the impugned judgment is liable to be set-aside as the
prosecution has successfully proved its case beyond any reasonable
doubt.
5. On the other hand, Mr. Ajay Verma, Advocate appearing for the
respondent refuted the aforesaid submissions in the strongest
Crl. L.P. 36/2013 Page 3 of 11


possible manner and arguing in favour of the impugned judgment
passed by the learned Trial Court contended that the acquittal of the
respondent is justified and the impugned judgment does not call for
any interference. Expanding his arguments, he submitted that
respondent is an innocent person and the rickshaw, weapon of
offence and blood stained clothes have been planted upon him to
falsely implicate him in the present case. Mr. Verma further
contended that the learned Trial Court rightly observed that the
respondent had no motive to murder the deceased nor the same has
been proved. It is further contended that the prosecution has not
been able to bring forward any evidence to connect the weapon of
offence with the respondent and recovery of weapon is not duly
proved and is a case of planting of a weapon.
6. We have carefully considered the rival contentions of both the
parties in detail and perused the testimonies of the witnesses as well
as the relevant record.
Motive
7. According to the prosecution, the motive behind the killing of the
deceased was illicit relations between the respondent and the wife
of the deceased and the respondent wanted the custody of a child
born out of this illicit relationship. The respondent called the wife
of the deceased on phone to bring the child to him but the deceased
came on line and challenged him by saying “teri maa ne doodh
pilaya hai to aa kar le ja” . In support of this, prosecution
examined PW16 Afsaroon @ Rabia, wife of the deceased but she
Crl. L.P. 36/2013 Page 4 of 11


turned hostile and failed to support the case of the prosecution. She
deposed:
“xxxxxxx Accused started treating me as his sister
and told me that since he was living alone, I should
cook for him also. I had no brother and on request
of accused, I started treating him as my brother and
used to tie rakhi. xxxxxxxxxxx

xxxxxxx One day accused took me to the side of
Madanpur Khadar and started living with me after
taking a room on rent and after that he came to
house of Kiran, who used to reside in Sonia Vihar
and accused made to talk with Kiran on telephone.
Kiran told this fact to my husband
Rehman............After my son was born accused
threatened to have relation with him otherwise he
will kill my husband. Under that threat, I developed
physical relation with him, but it was without my
consent. When I was living in the house of Attar
Singh, at that time, I had not physical relation with
accused.”

8. On being cross examined by the learned APP, this witness deposed:
“It is correct that I had stated to the police that in
the beginning of 2004 I went to Vinod to his village
Tikrahar. It is correct that I had stated to the police
that in Tikarahar, I was blessed with a son, namely,
Sonu. It is correct that I had stated to the police that
in September, 2007 I again started living with my
husband deceased Rehman in Delhi. It is also
correct that I had stated to the police that after some
Vinod had also come to Delhi. It is correct that I
had stated to the police that I started meeting with
accused. It is correct that I had stated to the police
that one day my deceased husband seen myself with
the accused on which a quarrel and taken place
between my husband and accused Vinod. It is
correct that I had stated to the police that in April,
Crl. L.P. 36/2013 Page 5 of 11


2009 I started living with accused Vinod in village
Jedpur in a rented house. It is correct that I had
stated to the police that in September, 2009 I again
started living with my husband Rehman. It is
correct that I had stated to the police that in
September, 2009 I again started living with my
husband Rehman. It is correct that I had stated to
the police after few days when I had started living
with my husband, Vinod used to call me through a
mobile no. 9313693715 that he had vacated the
house and I should come alongwith his son Sonu to
him. It is correct that altercation took place
between Vinod and Rehman on telephone also and
Rehman had told Vinod “teri maa ne doodh pilaya
hai to aa kar le ja”.

9. On careful examination of the testimony of this witness, it is
evident that PW16 Afsaroon @ Rabia is not a trustworthy and
reliable witness. Her testimony needs to be discarded as she has put
forth a concocted and totally improbable version, which does not
inspire confidence. At one juncture, she deposed “ Accused started
treating me as his sister and told me that since he was living alone,
I should cook for him also. I had no brother and on request of
accused, I started treating him as my brother and used to tie rakhi”
and at the same breath she deposed “after my son was born accused
threatened to have relation with him otherwise he will kill my
husband. Under that threat, I developed physical relation with him,
but it was without my consent. When I was living in the house of
Attar Singh, at that time, I had not physical relation with accused. ”
Moreso, there is nothing on record to prove that the respondent was
father of „Sonu‟, son of PW16 Asfaroon @ Rabia and he wanted his
Crl. L.P. 36/2013 Page 6 of 11


custody and when he was unable to do so, he killed the deceased.
The motive behind the crime has nowhere been proved.
Recovery of articles
10. According to the prosecution, the deceased was a rickshaw puller
and had hired a rickshaw from PW2 Om Prakash on 05.11.2009 and
the rickshaw was recovered after 10 days of the incident from the
possession of the respondent on 16.11.2009. No explanation has
come forth why PW2 who was running the business of giving his
rickshaws to rickshaw pullers on hire basis failed to lodge a missing
report for 10 days. Moreso, PW2 has failed to specify the date
when he came to know that his rickshaw had been seized and was
lying in the Police Station – Khajuri Khas. These unspecific
deposition and information furnished by this witness casts serious
doubt on alleged recovery of the rickshaw.
11. As per the record, the weapon of offence i.e. country made pistol
along with two live cartridges, blood stained shirt and jeans of the
respondent were recovered on 16.11.2009 at the instance of
respondents. The death of the deceased took place on 05.11.2009.
It is not understandable as to why the respondent would hide his
blood stained clothes from 05.11.2009 to 16.11.2009 in his house.
The normal conduct of the respondent would have been to wash his
clothes at the first available opportunity to hide the crime.
12. PW18 Puneet Puri, Senior Scientific Officer (Ballistics) proved his
report Ex.PW18/A and opined that two bullets exhibited „EB2‟ and
„EB3‟ recovered by the doctor while undressing the pant of the
deceased. Ballistic Expert Ex.PW18/A in his report stated that
Crl. L.P. 36/2013 Page 7 of 11


bullets „EB1‟ and „EB2‟ were fired from the firearm country made
pistol „F1‟ but because of insufficiency of characteristic of striation
present on the bullet mark „EB3‟ & „EB4‟, it cannot be opined that
those were discharged from the country made pistol „F1‟. The
report further reveals that the empty cartridges „EC1‟ to „EC6‟
which were seized from the spot as alleged by the prosecution, had
been fired from the country made pistol „F1‟. As per the version
of PW14 Dr. strangely enough two fired bullets were found in the
pant pockets of the deceased and the prosecution has failed to
explain how and why the fired bullets were in the pant of the
deceased and the bullets recovered from the pant of the deceased
has been identified as fired from pistol „F1‟. These unanswered
questions cast a doubt in the story of the prosecution and
strengthen the possibility of false implication of the respondent
13. It appears to us that the recovery of rickshaw from the possession
of the respondent and weapon of offence, two live bullets and
blood stained clothes at the instance of respondent are not free
from doubt and have been pressed into aid to buttress the
prosecution's case. We are, therefore, unable to place reliance on
the recoveries, the genuineness of which are in doubt.
14. In Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC
637 , it has been held by the Apex Court that :
“In criminal cases mere suspicion however
strong cannot take the place of proof. The court
must be satisfied that the case of the
prosecution is not only substantially proved,
but the guilt of the accused has also been
established beyond reasonable doubt.”
Crl. L.P. 36/2013 Page 8 of 11



15. In a case where two views are possible from the perusal of
evidence and application of law, the view which favours the
accused should be taken. In Main Pal & Anr. v. State of Haryana
& Ors, 2004 (2) RCR (Criminal) 466 , the Apex Court has held
that :
“12. …The golden thread which runs through the
web of administration of justice in criminal cases
is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view
which is favourable to the accused should be
adopted. The paramount consideration of the court
is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent.”

16. The law with regard to the grant of leave is well settled by a catena
of judgments. Leave to Appeal can be granted only where it is
shown that the conclusions arrived at by the Trial Court are
perverse or there is misapplication of law or any legal principle.
The High Court cannot entertain a petition merely because another
view is possible or that another view is more plausible. In
Arulvelu and Anr. vs. State 2009 (10) SCC 206 , while referring
with approval the earlier judgment in Ghurey Lal vs. State of Uttar
Pradesh : (2008) 10 SCC 450 , the Supreme Court reiterated the
principles which must be kept in mind by the High Court while
entertaining an Appeal against acquittal. The principles are:
“ 1. The accused is presumed to be innocent until
proven guilty. The accused possessed this
Crl. L.P. 36/2013 Page 9 of 11

principles culled out by the Apex Court are to be kept in view. In
the present case from the evidence which has emerged on record
we conclude that the learned Trial Court rightly observed that the
prosecution failed to prove motive, recovery of rickshaw of the
deceased, recovery of weapon of offence and also the recovery of
blood stained clothes of the respondent.
18. The prosecution has not made out a case to grant the leave to appeal
and the view taken by the learned trial court for acquitting the
Crl. L.P. 36/2013 Page 10 of 11


respondent was possible and plausible. Thus, the learned trial court
has rightly acquitted the respondent. Also it is well-established that
if two views are possible on the basis of evidence on record and one
favourable to the accused has been taken by the trial Court, it ought
not to be disturbed by the appellate Court.
19. In the totality of the facts and circumstances, no other view is
possible than the view taken by the Trial court that the evidence
adduced by the petitioner is insufficient to implicate the accused.
The petition is without any merit and is hereby dismissed.



SANGITA DHINGRA SEHGAL, J.



G. S. SISTANI, J.


MAY 19, 2015
sc/gr
Crl. L.P. 36/2013 Page 11 of 11