Delhi District Court
S T A T E vs Jayant Kumar @ Sintu on 11 August, 2010
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS : DELHI
FIR No. : 279/2005
Police Station : New Usmanpur, Delhi
Under Section : 307 IPC & 27/54/59
of Arms Act
Unique ID No. : 02402R0611492005
SC No. : 155/2008
S T A T E Versus Jayant Kumar @ Sintu
S/o Sh. Hari Kishore Singh
R/o Village: Dhaboli, PS Fatehgarh
District: Saharsa, Bihar.
Date of Institution : 20/11/2005
Date of committal : 06/12/2005
Date of reserving judgment : 09/08/2010
Date of pronouncement : 11/08/2010
J U D G M E N T
1.Accused Jayant Kumar Singh @ Sintu was sent up for trial by police of PS: New Usmanpur, Delhi to stand trial for offence punishable under Section 307 IPC & 25/54/59 of Arms Act on the allegations that 26.08.2005, DD No. 22A, was received by ASI Jawahar Singh. On the receipt of the same, he alongwith Ct. Khubi Ram reached at the spot i.e at Hansraj Dairy, FIR No. 279/2005 Page 1 of 21 2 Gamari Road, Ghonda, Delhi where he came to know that injured has been removed to the GTB Hospital by PCR police. He reached at GTB Hospital and obtained the MLC of injured Rinku. Injured Rinku was declared fit for making the statement. He was given having gun shot injury. The statement of injured Rinku was recorded, wherein, he stated that on the intervening night of 25/26.08.2005, he had played CD player at his house and his friends namely Saleem and Shamshad also come to his house. Both Saleem and Shamshad slept after watching the movie and he was alone watching the movie. At about 3 AM, he had gone for natural call on the roof of his room. He saw two boys were standing with 'rehri' in front of the plot of his friend Manish. One boy jumped from the wall inside the plot. He raised alarm of chorchor. On this, all the three boys ran away with 'rehri'. He followed them. One boy fired at him at corner of HBlock, Gali No. 2/18, Jai Prakash Nagar with country made pistol but he escaped unhurt and he kept on chasing them. When he reached at Gali No. 4, Gangoli Vihar, Shiv Mandir, the boy who had earlier fired again loaded his katta and on this, he grappled with him. He again fired at him which struck him near left leg knee but he continued to grapple FIR No. 279/2005 Page 2 of 21 3 with him but he managed to escape. He stated that he can identify the accused, if shown to him. He had fallen on that place. Somebody informed his friends. He was taken to his room. Somebody called the police and he was taken to GTB Hospital. On this information, FIR was registered. Police seized the empty fired cartridge from Gali No. 4. On 28.08.2005, he was discharged from the hospital and on 22.09.2005, at the instance of the complainant, accused was apprehended and at his instance, one country made pistol with live cartridge was recovered and after the completion of the investigation, chargesheet was filed against the accused.
2. After supplying the necessary copies to the accused, the case was committed to the Court of Sessions vide order dated 06.12.2005.
3. After committal of the case, My Ld. Predecessor vide order dated 12.01.2006, after finding primafacie charged the accused Jayant Kumar for offence punishable U/s 307 IPC and U/s 27 of Arms Act, to which he pleaded not guilty and claimed trial.
FIR No. 279/2005 Page 3 of 21 4
4. The prosecution in support of their case examined as many as 12 witnesses.
5. The prosecution examined the following material witnesses: PW1 Rinku is the material eyewitness and injured who proved his statement made to the police Ex.PW1/A, disclosure statement of accused Jayant Ex.PW1/B, sketch of katta and cartridge Ex.PW1/C, seizure memo Ex.PW1/D, his arrest memo Ex.PW1/E, personal search memo Ex.PW1/F and pointing out of the place of occurrence vide memo Ex.PW1/G. PWs Shamshad and Saleem could not be traced despite repeated efforts.
6. The prosecution examined the following formal witnesses: PW2 S.I Om Prakash was the Duty Officer who on the basis of rukka, recorded computerized copy of FIR and proved the copy of the same as Ex.PW2/A and he also recorded the information of firing incident at 4.11 AM which is Ex.PW2/B. PW3 Sh. Devesh Chander Srivastav, Addl. DCP who proved he sanction U/s 39 of Arms Act to prosecute accused Jayant Kumar Singh @ Sintu vide sanction order Ex.PW3/A. FIR No. 279/2005 Page 4 of 21 5 PW4 Dr. Parmeshwar Ram who proved the MLC of injured Rinku Ex.PW4/A which was prepared by Dr. A.K Gillay who has left the services of the hospital.
PW5 Dr. Mohit Kumar Joshi who proved the opinion given by Dr. Gyanander Mittal on the MLC Ex. PW5/A of injured Rinku and nature of injury was given as simple. He also proved the Xray report Ex. PW5/B. PW6 Sh. B.P. Singh, Assistant Registrar , who had examined the exhibits at CFSL and proved his report Ex. PW6/A and as per his report, the country made pistol was found to be in working order and cartridge was fired through the country made pistol and found to be live. Subsequently, again given the opinion vide report Ex.PW6/B regarding the seized cartridge which was recovered from the spot and he opined that the said cartridge was not fired through the recovered country made pistol.
PW7 Constable Jas Bir Singh, who was posted as duty Constable at GTB Hospital and he received one seal parcel duty sealed with the seal of GTB Hospital containing the blood stained jeans of injured Rinku and he handed over the FIR No. 279/2005 Page 5 of 21 6 same to the IO who seized the same vide seizure memo Ex. PW7/A. PW8 Constable Vir Singh deposited the Exhibits at CFSL Chandigarh.
PW10 ASI Sohan Kashyap was the MHC(M) with whom the case property was deposited and he prove the entry Ex. PW 10/A and Road Certificate by which Exhibits were sent to CFSL Ex. PW10/B. The prosecution examined the following witnesses of investigation:
PW9 Constable Khubi Ram Gautam who joined the investigation with the IO and proved the seizure memo of empty case of bullet lying near the electric poll Ex. PW9/A, seizure memo of rehri of blue colour on which three empty bories, one woolen chadarof matmela clour and one iron sandasi and two big screw drivers of iron vide Ex. PW9/B. PW11 Ct. Bijender is the witness of arrest of the accused and seizure of country made pistol recovered at the instance of accused.
FIR No. 279/2005 Page 6 of 21 7 PW12 S.I Jawahar Singh is the Investigating Officer who in addition to other memos proved his endorsement on the statement of Rinku Ex.PW12/A and site plan Ex. PW12/B.
7. After conclusion of Prosecution Evidence, Statement of accused was recorded U/s 313 Cr.PC wherein he denied the prosecution evidence and claimed innocence. Accused chose not to lead defence evidence. In his statement, he stated that he is innocent. He was lifted up by the police from Pushta where he was sleeping and IO taken him to the police station and called one person and got him identified from him. He stated that he has been falsely implicated in this case.
8. I have heard Sh. Virender Singh, Ld. Addl. Public Prosecutor for the State and Sh. Sandeep Srivastava, Advocate for the accused. I have also gone through the record.
9. PW1 Rinku deposed on the lines of his complaint and stated that accused had fired at him and fell down on the ground. Somebody informed his friends Saleem and Shamshad and they came at the spot and taken him to his house. Somebody called the PCR and he was taken to the GTB Hospital, where his statement was recorded. He stated that on 22.09.2005, he FIR No. 279/2005 Page 7 of 21 8 was coming back to the house of his uncle. He saw the accused in the Yamuna Khadar area near ISBT Bridge. He came to police station and informed the IO, the person who had fired at him, he was available in Yamuna Khadar area near ISBT bridge. IO alongwith other staff, accompanied him to the spot where he had seen the accused and he was found there and he was apprehended whose name was revealed to him as Jayant Kumar @ Sintu. He was interrogated and his disclosure statement Ex.PW1/B was recorded. He stated that at the instance of accused, one loaded katta was recovered which was wrapped in his bedding from his jhuggi. Accused was arrested vide arrest memo Ex.PW1/E and his personal search was conducted vide memo Ex.PW1/F. Accused led them to the place of incident and pointed out the same vide Ex.PW1/G.
10. PW9 Ct. Khubi Ram Gautam testified that on 25.08.2005, he was posted as constable and was on night duty from 8.00 PM to 8.00 AM. On that day, at about 4.45 AM on receiving DD No. 22A, he alongwith the IO ASI Jawahar Singh reached at the spot i.e Hans Raj Dairy, Gamari Road, Ghonda, Delhi FIR No. 279/2005 Page 8 of 21 9 where they came to know that injured has been removed to the hospital. On this, he alongwith the IO reached GTB Hospital where IO received the MLC of injured Rinku. Injured was declared fit for statement, hence, IO recorded the statement of injured and endorsed the same and handed over the same to him to get lodge the FIR from PS New Usmanpur, Delhi. After registration of the FIR, he returned at the spot and handed over the copy of FIR and rukka to the IO. One person namely Shamshad was also present at the spot with the IO and he pointed out the spot where the gun shot was made upon the injured Rinku at Gali No. 4, KBlock, Gangotri Vihar. Shamshad had also pointed out the empty case of bullet lying near the electric poll. IO seized the same vide seizure memo Ex.PW9/A. Thereafter, Shamshad has pointed one rehri of blue colour on which three empty boris and one woolen chadar of matmela colour and one iron sandasi and two big screw drivers of iron were kept which was parked at the Gamiri Road (sic) near Hansraj Dairy. He stated that on 28.08.2005, at about 6.00 PM, injured Rinku came to the police station and met with the IO and thereafter, they alongwith Rinku reached at Gali No. 6, Jai Prakash Nagar, Delhi where Rinku pointed FIR No. 279/2005 Page 9 of 21 10 out the spot where the fire was made upon him by the accused persons. He also pointed out the spot i.e Gali No. 4, Gangotri Vihar, Shiv Mandir, where the fire was also made upon the injured Rinku. IO inspected the spot and prepared the site plan and thereafter, they returned to the police station and some photos of the criminals of the area were shown to the injured but he could not identify accused persons. Thereafter, they had gone to the PS Bhajanpura and photos of the criminals were also shown to the Rinku and there he identified the photo of Asraf @ Bhola @ Raju like an accused who had fired upon him. Thereafter, they returned to the police station.
11. PW11 Ct. Bijender testified that on 22.09.2003 (the witness states that on 22.09.2003, it appears to be a typographical error, the date should be 22.09.2005) at about 2 PM, he alongwith the IO/ASI Jawahar Singh and complainant Rinku went to Yamuna Khadar in search of accused who had fired upon the complainant Rinku. IO had asked about the accused from the children who were playing in Yamuna Khadar and IO had also disclosed the description of the accused and on which, IO came to know the name of the accused as Sintu @ FIR No. 279/2005 Page 10 of 21 11 Jayant Kumar. Thereafter, in search of accused Sintu @ Jayant Kumar, they reached bank of Yamuna river where they saw that one person on seeing the police party, started running from under the grass who was identified by the complainant Rinku as accused, who had fired upon him. On this, they overpowered him and his name was known as Jayant Kumar @ Sintu. Thereafter, he was arrested vide arrest memo Ex.PW1/E and his personal search was conducted vide memo Ex.PW1/F. He was interrogated by the IO and on which, he confessed the offence of this case. He made his disclosure statement Ex.PW1/B, wherein, he disclosed that he can get recovered the katta from near the jhuggi of Pawan. He led them near the jhuggi of Pawan where one wrapped bistar is lying and from the bistar, he taken out one katta lying under the pillow which was wrapped in a bedsheet (bistar). IO checked the katta and found it containing one live cartridge. IO prepared the sketch of the katta and seized the same vide seizure memo Ex.PW1/D. Thereafter, accused led the police party at the spot and pointed out the same vide memo Ex.PW1/G. Thereafter, they brought the accused to PS Seelampur and sent him in a lockup.
FIR No. 279/2005 Page 11 of 21 12
12. Ld. Counsel for the accused submitted that there are material inconsistencies between the testimony of the witnesses. There is no corroboration to the testimony of the complainant. The identity of the accused is not fully established. It is further submitted that the fired cartridge was not fired from the allegedly recovered countrymade pistol and the same was planted upon the accused.
13. PW1 Sh. Rinku in his crossexamination stated that there were scooters, 'rehris' and cycles in the plot at the time of incident. There was an electric pole in the gali from which the light was coming in the plot. He had seen the accused from a distance of 6 to 8 feet. He stated that he made alarm as 'chor chor' from the roof as well as from the ground after coming down from the roof. He stated that two boys Saleem and Shamshad had slept after seeing the movie. He stated that the other two assailants were pulling the rehri and accused Jayant was pushing the rehri. He was chasing the accused from a distance of 15 ft. Accused was having katta in his hand. He did not get frighten on seeing katta and voluntarily stated that, accused fired upon him, still he did not get frighten and FIR No. 279/2005 Page 12 of 21 13 followed the accused. He did not notice the accused in the dark while jumping the wall. He had seen him in the plot. He stated that when the accused fired first upon, he saved himself but when accused fired second time, the bullet hit on his left leg and when accused fired, first, he chased him upto a distance of 15 steps. He denied the suggestion that he had chased the accused upto a distance of 15 to 20 steps from the plot of Manish when the accused fired second time. He stated that accused fired on his person from a distance of about 2 feet when bullet hit him. When bullet hit him, he caught hold of the accused but he succeeded in running away. When bullet hit him, he caught hold of the accused but accused released himself by pushing him. Accused had fired at him after he had grappled with accused. Saleem and Shamshad came within 1015 minutes after receipt of bullet injuries. He fell down after bullet injury near Shiv Mandir. He cannot tell the exact distance of the place of incident from his house. His house is at a distance of 200 meters from the place where he received gun shot injuries. He became unconscious on receiving gun shot injuries. He regained his consciousness in his room. He stated that he does not remember who informed FIR No. 279/2005 Page 13 of 21 14 police at 100 number. He cannot tell the exact time when police arrived at his room but it was early in the morning. He went to hospital with police. Accused was apprehended by the police at his instance.
14. PW9 Ct. Khubi Ram Gautam testified that he alongwith IO reached at the spot. They found one rehri of blue colour having three empty boris and one woolen chadar of matmela colour and one iron sandasi and two big screw drivers of iron and also fired bullet. This version of PW9 Ct. Khubi Ram corroborates PW1 Rinku regarding the incident. He stated that they visited the spot on two wheeler scooter. He does not know the name who had informed them regarding the removal of the injured to the hospital. No police official was present when they reached at the spot. They remained at the spot for about ten minutes and thereafter, on the same two wheeler scooter, they went to GTB Hospital. He does not know the name of the doctor who had informed the IO that the patient was fit for the statement. He remained at the hospital for about 1½ hour. PW Shamshad was not known to him prior to the incident.
FIR No. 279/2005 Page 14 of 21 15
15. PW12 IO/S.I Jawhar Singh in his crossexamination stated that both the witnesses namely Salim and Shamsad met him in the hospital, who were present near Rinku in the emergency ward. He does not remember the colour of the clothes of injured. After return from the hospital to the spot, he made inquiries from nearby persons, but no eye witness was found. Injured was residing on rent. He made inquiries from the land lord. During the investigation, he did not come to know any dispute between Rinku, injured and Jayant, accused.
16. From the testimony of these witnesses, the incident has been proved that PW Rinku chased the assailants and one of them fired at him. They were on rehri. They had kept three empty bories, one woolen chadar of matmela colour and one iron sandasi and two big screw drivers of iron. The implements for committing the theft and Rinku had seen him jumping inside the plot and they had fired at him, when he was chasing them.
17. Now coming to the identification of accused Jayant Kumar. The accused was apprehended at the instance of Rinku himself and at the time of his arrest, one loaded countrymade pistol was recovered at the instance of the accused. PW Rinku in his FIR No. 279/2005 Page 15 of 21 16 crossexamination has stated that they were on two scooters while going to Yamuna Khadar from the PS. He had seen the accused from a distance of 20 feet, when he was apprehended. They remained at Yamuna Khadar for about 10 minutes. There was no house or shop at the place from where the accused was apprehended. When they left Yamuna Kadar, accused was with S.I and he was with constable. Accused took them to his jhuggi from where accused got recovered katta. Thereafter they went to PS. There was none else present in the jhuggi of accused. There was no door in the jhuggi of the accused. There was only one room in the jhuggi. There were other jhuggis near the jhuggi of the accused. Persons might be present in other jhuggis. He stated that there might be 2025 jhuggis there.
18. On the other hand, PW11 Ct. Bijender in his cross examination has stated that he was present at the PS when the complainant Rinku visited the PS at about 2.00 PM. He does not remember the colour of the clothes worn by the complainant. There was no injury on the body of the complainant, at that time. They went to Yamuna Khadar by FIR No. 279/2005 Page 16 of 21 17 TSR but he does not remember the number of the TSR. He stated that he cannot tell the name of the owner and number of the jhuggis. IO had not called any public person of the locality to join the investigation and to know about the accused. Complainant had only disclosed the description of the accused to the children who were playing in Yamuna Khadar. No specific identification mark was disclosed to the children. The complainant had not told about the colour of the clothes which were worn by the accused, at the time of the incident. The children had told them that one person like description as disclosed has gone towards the bank of Yamuna. He stated that he can not tell the exact location of the bank of Yamuna from where the accused was apprehended. They searched the accused for about three hours. They reached at the Yamuna Marginal Point at about 4.15 PM. He stated that IO had asked the public persons during the search of accused to join the investigation but none agreed to join the investigation. IO had tried to join the public witness in the investigation at the time of recovery of katta and cartridge but none agreed and they left from there without telling their names and addresses. There were jhuggis at the distance of 100 meter from the place of FIR No. 279/2005 Page 17 of 21 18 recovery of kata and cartridge. The distance between the place of recovery and jhuggi of Pawan was about 10 meters.
19. On the other hand, IO in his crossexamination has stated that he apprehended the accused at the instance of the complainant, however, the complainant had not disclosed any mark of identification. There was no fixed identification mark of the place where the nakabandi was made as it was Yamuma Khadar. It was not a public place.
20. Therefore, there are three versions coming regarding the arrest of the accused and his identification. The complainant states that he has seen the accused from the distance of 20 feet when accused was apprehended. They remained at Yamuna Khadar on two scooters and remained there for about 10 minutes. Whereas, PW11 Ct. Bijender testified that they were there by TSR. In his examinationinchief, he stated that IO had asked about the accused from the children who were playing at Yamuna Khadar and had disclosed the description of the accused and came to know the name of accused as Jayant Kumar @ Sintu. Thereafter, they searched for him and accused started running on seen the police party under grass FIR No. 279/2005 Page 18 of 21 19 and was identified by Rinku. PW11 Ct. Bijender in his cross examination stated that complainant had only disclosed the description of the accused to the children who were playing in Yamuna Khadar. The children had not disclosed the name of the accused, his address and his parentage. The complainant was not aware about the whereabouts of the accused and about his availability.
21. Therefore, there are material inconsistencies about the description of the accused came to the knowledge of the children without complainant disclosing them his description and how his name came to their knowledge. IO also stated that he had apprehended the the accused at the instance of the complainant. However, complainant did not disclose any mark of identification nor there was any fix place where the nakabandi was done. Although, these inconsistencies appears on the face of it to be minor in nature. However, it assumes significance if one read it alongwith the testimony of PW9 Ct. Khubi Ram who states that complainant had identified Asraf @ Bhola @ Raju when he was shown the photographs of the criminals. Then, how the present accused has been identified FIR No. 279/2005 Page 19 of 21 20 by him. Further, the alleged recovery of countrymade pistol was found to be not the same from which the recovered bullet was fired which was seized from the spot. Therefore, accused is entitled to be benefit of doubt on this account.
22. Now as regards the recovery of countrymade pistol. PW1 Rinku testified that accused took them to Jhuggi and got recovered the katta. None was present in the Jhuggi. there was no door in the jhuggi and there was only one room in the jhuggi. There were other jhuggis near the jhuggi of the accused. Persons might be present in other jhuggis. He stated that there might be 2025 jhuggis there. Despite these facts, no public witness has been joined in the investigation. Further, PW11 Ct. Bijdender testified that accused led them 'near the jhuggi of Pawan' where one wrapped bistar is lying and from the bistar, he taken out one katta lying under the pillow which was wrapped in a bedsheet (bistar). IO checked the katta and found it containing one live cartridge. In his crossexamination, PW11 Ct. Bijender has stated that he cannot tell the name of the owner and number of the jhuggis. IO had tried to join the public witness in the investigation but none agreed. There were FIR No. 279/2005 Page 20 of 21 21 jhuggis at the distance of 100 meter from the place of recovery of katta and cartridge. He stated that the distance between the place of recovery and jhuggi of Pawan was about 10 meters.
23. Both the police witnesses are consistent that the countrymade pistol was found near the jhuggi and not inside the jhuggi, whereas, PW1 Rinku has categorically stated that country made pistol was recovered from inside jhuggi which was lying in a bistar. Even, as per the, seizure memo Ex.PW1/D, the country made pistol was recovered from near jhuggi of Pawan. Meaning thereby, it was an open place. Therefore, it is apparent that either of the two sets of witnesses have not visited the place.
24. Therefore the recovery is also doubtful. Accordingly, accused Jayant Kumar @ Sintu is entitled to be benefit of doubt. Accused Jayant Kumar @ Sintu is accordingly acquitted from the charges against him. His bail bond stands canceled. Surety discharged. File be consigned to record room. Announced in the open court Today i.e. on 11.08.2010 GURDEEP SINGH ASJ04/KKD/11.08.2010 FIR No. 279/2005 Page 21 of 21