Delhi District Court
State vs Mahesh Mishra on 23 December, 2011
Sessions Case No. 276/1/10
FIR No. 264/08
State Vs Mahesh Mishra
Police Station Moti Nagar
Convicted Under Sections 304 part I,
323 IPC and 25/ 27 Arms
Act.
23.12.2011
Pre: Ld. APP for the state.
Ld. counsel Sh. S K Pandey, for convict Mahesh Mishra.
Arguments on sentence heard. Vide separate order on sentence placed
along side in the file, convict Mahesh Mishra is sentenced to undergo 7 years
RI for the offence u/s 304 Part 1, IPC and to pay a fine of Rs.2000/ in default 2
months further RI; Convict Mahesh Mishra is further sentenced to undergo 3
years RI for the offence u/s 25/27 Arms Act; and Convict Mahesh Mishra is
also sentenced to undergo 9 months RI for the offence u/s 323 IPC. All
sentences shall run concurrently. Benefit of section 428 Cr.P.C. be given.
Copy of this order and judgment be given to the convict at free of cost forthwith.
File be consigned to record room.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
23.12.2011
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 276/1/10
FIR No. 264/08
State Vs Mahesh Mishra
Police Station Moti Nagar
Convicted Under Sections 304 part I,
323 IPC and 25/ 27 Arms
Act.
ORDER ON THE POINT OF SENTENCE
23.12.2011
Pre: Ld. APP for the state.
Ld. counsel Sh. S K Pandey, for convict Mahesh Mishra.
Ld. APP submits that offence is of very serious nature since accused/
convict definitely had the knowledge and intention that such injury was likely to
cause death of deceased. Ld. APP again submits that accused has been
convicted for the offences u/s 304 part I, 323 IPC and 25/ 27 Arms Act and
section 304 Part I, IPC provides [imprisonment for life], or imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to cause death. On
these grounds ld. APP prayed for awarding the severe sentence to the convict.
Contrary to it, ld. Counsel for convict Mahesh Mishra submits that
accused has 3 minor children aged about 5, 8 and 10 years old. He has also
old parents to look after. Ld. counsel further submits that in the family of
accused/convict there is no other person to look after his family. Ld. counsel
2
further submits that accused/ Convict is languishing in JC since his arrest. On
these grounds ld. counsel prays for taking lenient view at the time of awarding
sentence to the convict.
I have given careful consideration to the submissions of ld. APP and ld.
Counsel for the Convict as well. Keeping in view of the conduct of the convict
during the course of trial to my view ends of justice will be met if convict is
sentenced to undergo 7 years RI for the offence u/s 304 Part 1 of IPC and to
pay a fine of Rs.2000/ in default 2 months further RI and further ends of justice
will be met if convict is sentenced to undergo 3 years RI for the offence u/s
25/27 Arms Act; again ends of justice will be me if convict is sentenced to
undergo 9 months RI for the offence u/s 323 IPC.
Accordingly, convict Mahesh Mishra is sentenced to undergo 7
years RI for the offence u/s 304 Part 1, IPC and to pay a fine
of Rs.2000/ in default 2 months further RI;
Convict Mahesh Mishra is further sentenced to undergo 3
years RI for the offence u/s 25/27 Arms Act; and
Convict Mahesh Mishra is also sentenced to undergo 9
months RI for the offence u/s 323 IPC.
All sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given.
Copy of this order and judgment be given to the convict at free
of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 23.12.2011
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
3
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 276/ 1/ 10
Assigned to Sessions. 26.02.2009
Arguments heard on 15.11.2011
Date of order. 17.12.2011
FIR No. 264/08
State Vs Mahesh Mishra s/o Ram Parvesh
Mishra, R/o VPO Parichman, PS
Shahpur, Distt. Aara, Bihar.
Police Station Moti Nagar
Under Section 304, 323 IPC & 25/ 27 Arms Act
Convicted u/s 304 part I, 323 and 25/ 27 Arms Act
JUDGEMENT
1. Briefly facts of the case are that on the intervening night of 15/16.08.2008 at about 1 a.m. at open land or DCP Chemical factory near Metro Project Site, Zakhira, Delhi within the jurisdiction of PS Moti Nagar, accused Mahesh Mishra fired with gun intentionally causing the death of deceased Lok Nath, while exercising in good faith of the right of private defence of property and exceeded the power given to him by law and caused death of Lok Nath, committed culpable homicide not amounting to murder. On the aforesaid date, time and place accused Mahesh Mishra caused simple injury on the 4 person of Kishor @ Chawani and Yogender. Accused was found in possession of single barrel gun, which he used in the commission of offence on the above noted date, time and place, in contravention of notification issued by Delhi Administration.
2. PW13 ASI Mahabir Singh, initial IO of the case on receiving DD no. 10A vide Ex.PW1/A, he along with Ct. Dinesh reached at the spot where he noticed that a dead body was lying there. He recorded the statement of Mr. Lakhvinder vide Ex.PW5/A and prepared a rukka, same was handed over to Ct. Dinesh. Crime Team was called at the spot, photographers inspected the site. After registration of the FIR Ct. Dinesh reached at the spot along with SI RS Meena to whom further investigation was marked. PW16 Isnp. R S Meena, IO inspected the site and prepared a site plan vide Ex.PW16/A. PW 16 SI RS Meena lifted the earth control and blood stained earth from the spot. Same were converted into sealed pulanda and sealed with the seal of RS, same were seized vide seizure memo Ex.PW12/A and B. Crime team official SI Lalit along with other members of team were already present 5 at the spot. They inspected the site and prepared a report which is Ex.PW16/B.
3. IO/PW16 prepared the inquest documents for postmortem; brief facts vide Ex.Pw16/C; from 25.35 Ex.PW16/D. IO recorded the statement of Shakeel @ Chhotu in this regard. On 17.08.2008, he recorded the statement of Amar Nath, brother of deceased and Sonu Kumar about the identification of dead body vide statements Ex.PW7/A and PW7/B. Dr. conduced the postmortem of dead body on 18.08.08. Thereafter, the dead body was handed over to the relatives of deceased vide receipt Ex.PW8/A. After postmortem doctor handed over three sealed exhibits of this case along with sample seal of DFMT DDU hospital vide seizure memo Ex.PW16/E. The case property which was seized on 16/18.08.08 were deposited with MHC(M) date wise. IO collected the postmortem report from the hospital vide Ex.PW2/A.
4. On 20.08.08, accused Mahesh Mishra was called in the police station along with one other suspect. They were called in the police station 6 after serving them a notice. At about 5p.m., IO was present in the police station along with Mahesh Mishra and another suspect. In the meantime complainant of this case reached in the police station along with two more witnesses. The complainant and other two witnesses identified Mahesh Mishra as an accused, who had fired towards them and Lok Nath deceased.
5. IO recorded statement of those persons namely Yogender and Kishor @ Chawani who also received gun shot injury during incident. After interrogation accused Mahesh Mishra was arrested in this case vide arrest memo Ex.PW11/A and Personal search Ex.PW11/B. Accused made disclosure statement vide Ex.PW11/C. In his disclosure statement accused disclosed that gun which was used by him in this incident is lying in his residence.
6. IO along with HC Mumtaaz and Ct. Pavinder went to the house of the accused along with him. From there accused produced gun along with three live and two used cartridges. IO prepared a sketch of live 7 cartridge and used cartridge vide sketch Ex.PW11/D. All the cartridges and gun was converted into a sealed pulanda and sealed with the seal of RS and same was seized vide seizure memo Ex.PW11/E.
7. After recovery he returned back to the police station and deposited the case property in the Maalkhana. Thereafter, injured Yoginder and Kishor @ Chavanni were sent to DD hospital for medical examination through Ct. Pavinder. IO recorded statement of Mumtaaz, after some time Ct. Pavinder came back and produced MLC of Kishor vide Ex.PW3/A and MLC of Yoginder.
8. On 01.10.2008 exhibits of this case were sent to the FSL Rohini through Ct. and statement of the Ct. was also recorded. During trial IO collected FSL report of ballistic unit and biology division and same were placed on record. License of the accused was recovered during his personal search and it was found fake. The report of Pradeep Kumar, Uppar Zila Magistrate (City) Allhabad is Ex.PW16/F. The 8 licence is Ex.PW16/G. After completion of the investigation case file was sent to the court through SHO Moti Nagar for judicial verdict.
9. After completion of the investigation which was conducted by the police officials the challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 26.02.2009. Consequent upon committal of the case to the Court of Sessions a charge against accused was directed to be framed for the offence punishable under section 304, 323 IPC vide court order dated 03.03.2009. Addl. Charge for the offence u/s 25/ 27 Arms Act was also framed against the accused vide court order dated 28.01.2010 to which he did not plead guilty and claim trial.
10.To prove and substantiate its case the prosecution has examined witnesses namely PW1 WSI Veena duty officer; PW2 Dr. Komal Singh, Forensic medicine, DDU Hospital; PW3 Dr. Vinal Sharma, Medical Officer, DDU Hospital; PW4 Master Shakeel @ Chotu - eye witness but hostile witness; PW5 Mr. Lakhvinder another eye witness 9 but hostile witness; PW6 Ct. Suresh Kumar formal witness being photographer; PW7 Mr. Ashok Kumar - formal witness: dead body identification witness; PW8 Mr. Sonu Kumar another formal witness:
dead body identification witness; PW9 HC Naresh Kumar - formal witness being MHCM; PW10 Ct. Sarjeet Kumar formal witness who deposited the case property to FSL; PW11 ASI Mumtaz Ali - he accompanied the IO on 20.08.2008; PW12 Ct. Dinesh Kumar - he accompanied the initial IO of the case on 16.08.2008; PW13 ASI Mahabir Singh - Initial IO of the case; PW14 Kishor @ Chavani -
eye witness; PW15 Joginder - another eye witness of the incident;
PW16 R S Meena - II IO of the case; PW17 Dr. Nishu Dhawan, CMO DDU hospital and PW18 Mr. K C Varshney, Asstt. Director, Ballastic Division.
11.PW1 WSI Veena is the formal witness being duty officer. She came to the witness box and deposed that DD no.10/A was recorded on 16.08.2008 by earlier duty officer HC Pawan regarding lying a dead 10 body near stop DCM Chemical. In this regard she got exhibited the copy of the DD as Ex.PW1/A. She further deposed that on that day at about 10.10 a.m. she registered the FIR of this case on the basis of the rukka produced by Ct. Dinesh. She got exhibited the copy of the FIR as Ex.PW1/B. This witness has not been crossexamined.
12.PW2 Dr. Komal Singh, Forensic Medicine, DDU Hospital came to the witness box and deposed that on 18.08.2008, at about 10.30 a.m. he conducted postmortem on the body of deceased Lok Nath s/o Radhey Shyam, who was about 17 years old male. The body was brought by SI R S Meena of PS Moti Nagar for the postmortem with the alleged history of found shot dead on 16.08.2008 at 7.30 a.m. He was allegedly hit by a shot gun on 16.08.2008 at 1 a.m. by a security guard. This witness further deposed that person was wearing half Tshirt, brown black jean, red waist, shirt and waist had multiple small holes. Person was bleeding from mouth and nose. Penetrating external injuries approximately superficial to deep painted injuries made by pallets of shot gun. It all are spreading anteriorty from neck to chest, 11 abdomen, thigh and knee. In this regard this witness got exhibited detailed postmortem report as Ex.PW2/A. This witness further deposed that cause of death was hemorhagic shock subsequent shot gun injuries to the vital organs of the body. Injuries were sufficient to death in combination in ordinary course of nature. This witness has been crossexamined by defence counsel. In the crossexamination this witness deposed that in his opinion firing might be from a distance of about 15 ft.
13.PW3 Dr. Vinal Sharma, Medical Officer, DDU Hospital, Delhi came to the witness box and deposed that on 20.08.2008 he was posted at Deen Dayal Hospital as a CMO. He examined Kishor @ Chavani and prepared MLC vide Ex.PW3/A. He deposed that patient came at hospital with the alleged history of fire arm injury with no history of loss of consciousness. On the examination, the patient was conscious and oriented. Multiple partially healed abrasion present on abdomen and chest. Patient was referred to surgery department. This witness has not been crossexamined.
12
14.PW4 Master Shakeel @ Chotu and PW5 Lakhvinder both are the material witnesses in this case being eye witness of the incident. But on careful perusal of their testimonies it reveals that both of them have been got declared hostile. Neither they identify the accused as culprit nor they deposed anything against the accused. They did not support the prosecution story on any count.
15.PW6 Ct. Suresh Kumar - photographer in the Mobile Crime Team. He came to the witness box and deposed that on 16.08.2008 on receiving information he reached at the spot along with Crime Team members. He took seven photographs of the spot. This witness got exhibited the negatives of the photographs as Ex.PW6/1 to PW6/7. This witness has been crossexamined by defence counsel. I have perused the same. No contrary evidence has come on record.
16.PW7 Ashok Kumar and PW8 Sonu Kumar are the formal witnesses in this case. Both of them have identified the dead body of deceased. 13 In this regard they got exhibited the identification memo as Ex.PW7/A and B and PW8/A. Both these witnesses have not been cross examined.
17.PW9 HC Naresh Kumar is also a formal witness in this case being MHCM at PS Moti Nagar on 16.08.2008. This witness got exhibited the relevant entries with regard to depositing of case property of the present case as Ex.PW9/1 to Ex.PW9/3. He deposed that on 01.10.2008 parcels were sent to FSL Rohini by HC Hairati Lal. This witness has not been crossexamined.
18.PW10 Ct. Sarjeet Kumar is also formal witness in this case. This witness got deposited the case property of the present case from PS Moti Nagar to FSL Rohini vide RC no.85 and 86/21/08. This witness has not been crossexamined.
19.PW11 ASI Mumtaz Ali came to the witness box and deposed that on 20.08.2008 he was posted at PS Moti Nagar as HC. He joined the 14 investigation of this case along with IO. This witness deposed that IO interrogated the accused Mahesh Mishra and other gunman Vipin Chauhan. In the meantime, Lakhinder reached there with Mr. Joginder and Chawanni who told that they had planned to commit theft in the metro construction side at Zakhira. This witness further deposed that these witnesses also deposed accused Mahesh Mishra had fired on them, in which deceased Lok Nath died. This witness further deposed that accused was interrogated by the IO and he confessed his crime. This witness again deposed that accused was arrested and disclosure statement was also recorded. This witness got exhibited the arrest memo of accused as Ex.PW11/A, personal search memo as Ex.PW11/B, disclosure statement as Ex.PW11/C. He further stated that in pursuance of the disclosure statement of accused, accused took them at H. no. 208, Gali no.6, Nehru Nagar, Delhi where from he produced 12 bore single barrel gun along with two empty cartridges and three live cartridges. He further categorically stated that IO prepared the sketch of empty cartridges vide Ex.PW11/D. Gun and cartridges were seized vide seizure memo Ex.PW11/E. This witness 15 identified the accused correctly. He also identified cartridges as Ex.P2 Colly. This witness has been crossexamined at length by defence counsel. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
20.PW12 Ct. Dinesh Kumar and PW13 ASI Mahabir Singh, initial IO have deposed more or less on similar lines since both have visited the place of incident on 16.08.2008 on receiving DD no.10A. They inspected the spot. PW13 got the case registered after recording statement of Lakhvinder vide his endorsement Ex.PW13/A made on statement Ex.PW5/A. After registration of the case, investigation was marked to SI R.S. Meena. Both these witnesses have been crossexamined. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
21.PW14 Kishor @ Chavani is also the most material witness in this 16 case being eye witness. He came to the witness box and deposed that on the night of 15.08.2008 he had gone in the metro site to pick up the iron (Hum waha loha chugne gai thai) around 1011 p.m. He further stated that he was along with Loki, Jogender, Santosh at that time. The guard had fired towards them considering that they were stealing the iron lying there. Thereafter, they all started running but two of their associates sustained bullet injury namely Joginder and Loki. He identified the person who had fired as accused Mahesh. This witness further deposed that he was called by the police stating that they would not lodge any complaint against them. This witness deposed that he narrated all the facts of the incident. Accused was apprehended by the police himself, he came to know about his arrest in the morning. This witness further deposed that he again went to the PS where he identified the accused. Police had also recovered the gun from the accused. This witness correctly identified the gun as Ex.P1. This witness corrected himself on questioning by ld. APP that he had also received injury of pallets of gun on his stomach and chest. This witness has been crossexamined at length. I have perused the 17 same. In the crossexamination it has come on record that f irstly , the guard had fired in the air and when they ran the guard had fired again which had hit Loki. He was also hit with the bullet in the chest. He admitted that they started running, after hearing the first shot. He also admitted that they all were standing very close to each of them and in one direction. It is also admitted by him that they got scared after hearing the first shot and started running continuously after hearing the gun shot. They ran for about half an hour. He could not identify the thumb impression on Ex.PW11/A, which Mr. Meena got his thumb impression upon his statement recorded by him. He was medically examined after 45 days of the incident. He put his thumb impression as per direction of police officials.
22.PW15 Joginder is also the most material witness in this case being eye witness. For the sake of brevity and convenience his statement is being reproduced verbatim which is as under: "In the intervening night of 15.08.2008, I along with five persons gone to Metro Rly. Site, Moti Ngar to pick up the iron (hum paanch ladke loha uthane ke liye gai thai). We were seen by the guards. He fired in the air once. Thereafter, we left the iron about 10 kg which I had lifted from the site. Thereafter, we started running. The guard 18 had again fired, which caused injury to Chavani @ Kishor, Loki and myself. My two other associate namely Lakhinder and Satish had also run away from there.
After four days we were called by the police official through Lakhinder. "Lakhinder nai kaha tumhai kuch nahi Hoga, tum chal kar gavahi do". On 20.08.2008 i had gone to PS and I found that the gateman was in the custody of police, who had fired towards us. I had identified the gateman as the same person who had fired towards us. Personal search of the gateman/ guard was conducted by the police and from his personal search a licence of a gun and Rs.100/ was recovered. Thereafter, I was allowed to leave the PS, I came back to my home. I put thumb impression on some documents. Gun was also recovered from the possession of accused in my presence. I do not recollect any other thing. I had gone to DDU hospital for my medical check up where I was medically examined. Witness correctly identify the accused present in the court. Now the pallets of bullet is available in my right hand. Loki had died in this incident, who had received injuries on his chest. Personal search of accused is Ex.PW11/A which bears my thumb impression at point C. arrest memo of accused is Ex.PW11/B which bears my thumb impression at point C . Disclosure statement of accused is Ex.PW11/c which bears my thumb impression at point C. At the time of incident I was working as a conductor on truck. I can identify the gun, if shown to me.
At this stage, a sealed pulanda duly seal with the seal of court seal is opened, out of which a single barrel gun is taken out and shown to the witness. Witness has identified the gun, which is used by the accused in the commission of offence. the gun is Ex.P1."
This witness has been crossexamined at length by the defence counsel. In the crossexamination it has come on record that there is no theft case against him. He admitted that he had gone at the site of occurrence with intention to commit theft. Besides him, Chavani, Loki, Lakhinder and Mantu were also there when they had gone to DCM for 19 committing theft of iron. When they were stealing iron the guards had fired three shots. He had seen the guard who was firing and it was the accused who was firing. He had seen the guards standing there. There were 45 guards. He does not know who had fired the first gun shot. The second and third shot were fired by the accused. In the crossexamination he again admitted that they ran, after hearing the first gun shot out of fear and danger. He again admitted that he did not stop on the way after hearing the first gun shot. It is also admitted by him that none of them stopped from running, after hearing the first gun shot and when they were running they were surrounded by many guards.
23.PW16 Insp. R. S. Meena came to the witness box and deposed that investigation of this case was marked to him. He reached at the spot and inspected the site and prepared a site plan vide Ex.PW16/A. He had lifted the earth control and blood stained earth from the spot. Same were converted into sealed pulanda and sealed with the seal of RS, same were seized vide seizure memo Ex.PW12/A and B. Crime 20 team official SI Lalit along with other members of team were already present at the spot. They inspected the site and prepared a report which is Ex.PW16/B.
24.IO/PW16 prepared the inquest documents for postmortem; brief facts vide Ex.Pw16/C; from 25.35 Ex.PW16/D. IO recorded the statement of Shakeel @ Chhotu in this regard. On 17.08.2008, he recorded the statement of Amar Nath, brother of deceased and Sonu Kumar about the identification of dead body vide statements Ex.PW7/A and PW7/B. Dr. conduced the postmortem of dead body on 18.08.08. Thereafter, the dead body was handed over to the relatives of deceased vide receipt Ex.PW8/A. After postmortem doctor handed over three sealed exhibits of this case along with sample seal of DFMT DDU hospital vide seizure memo Ex.PW16/E. The case property which was seized on 16/18.08.08 was deposited with MHC(M) date wise. IO collected the postmortem report from the hospital vide Ex.PW2/A.
25.On 20.08.08, accused Mahesh Mishra was called in the police station 21 along with one other suspect. They were called in the police station after serving them a notice. At about 5p.m., IO was present in the police station along with Mahesh Mishra and another suspect. In the meantime complainant of this case reached in the police station along with two more witnesses. The complainant and other two witnesses identified Mahesh Mishra as an accused, who had fired towards them and Lok Nath deceased.
26.IO recorded statement of those persons namely Yogender and Kishor @ Chawani who also received gun shot injury during incident. After interrogation accused Mahesh Mishra was arrested in this case vide arrest memo Ex.PW11/A and Personal search Ex.PW11/B. Accused made disclosure statement vide Ex.PW11/C. In his disclosure statement accused disclosed that gun which was used by him in this incident is lying in his residence.
27.IO along with HC Mumtaaz and Ct. Pavinder went to the house of the accused along with him. From there accused produced gun along 22 with three live and two used cartridges. IO prepared a sketch of live cartridge and used cartridge vide sketch Ex.PW11/D. All the cartridges and gun was converted into a sealed pulanda and sealed with the seal of RS and same was seized vide seizure memo Ex.PW11/E.
28.After recovery he returned back to the police station and deposited the case property in the Maalkhana. Thereafter, injured Yoginder and Kishor were sent to DDU hospital for medical examination through Ct. Pavinder. IO recorded statement of Mumtaaz, after some time Ct. Pavinder came back and produced MLC of Kishor vide Ex.PW3/A and MLC of Yoginder.
29.On 01.10.2008 exhibits of this case was sent to the FSL Rohini through Ct. and statement of the Ct. is also recorded. During trial IO collected FSL report of ballistic unit and biology division and same were placed on record. License of the accused was recovered during his personal search which was found fake. The report of Pradeep 23 Kumar, Uppar Zila Magistrate (City) Allhabad is Ex.Pw16/F. The licence is Ex.PW16/G. After completion of the investigation case file is sent to the court through SHO Moti Nagar for judicial verdict. This witness has been crossexamined at length. I have perused the same. In the crossexamination I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. In the crossexamination it has also come on record that the names of the gaurds who were carrying the gun on the date of incident are not mentioned by him in the charge sheet as he did not deem it necessary. Mr. Dwivedi had told him that he had been told by Mr. R N Singh the site incharge that accused along with other security guards were on duty during the night and accused had shot at Lok Nath.
30.PW17 Dr. Nishu Dhawan, CMO DDU Hospital came before the court and deposed that he has been deputed in place of Dr. Mayank Aggarwal who has left the services of the hospital, to depose regarding the MLC no.15846 of Kishor and MLC no.15849 of 24 Yogender. This witness identified the signature of Dr. Mayank on MLC Ex.PW3/A and on MLC Ex.PW17/A of injured persons. This witness has not been crossexamined.
31.PW18 Mr. K C Varshney, Asstt. Director, Ballastic Division, FSL Rohini, Delhi came before the court and got exhibited his detailed report in respect of gun and cartridges recovered from the accused as Ex.PW18/A. This witness has not been crossexamined.
32.After recording the statements of prosecution witnesses, statement of accused u/s 313 Cr. P. C. was recorded in which he denied all the allegations and stated that he has been falsely implicated in this case. He produced two defence witnesses in his defence namely DW1 Ashok Kumar Pruthi and DW2 Satpal Diwedi.
33.I have perused the testimonies of DW1 Ashok Kumar Pruthi, Sr. General Manager with IDEB Project Pvt Ltd. and DW2 Satpal Diwedi, Manager, HR B4 Group Security Services (Regd) carefully. In 25 their crossexamination done by ld. APP they stated that they did not have any personal knowledge regarding the present case. DW2 has also stated that he was not present at the spot and without seeing the the register he was unable to depose anything. Thus, testimonies of these witnesses do not come to rescue of the accused.
34.Thereafter, case was fixed for final arguments. During the course of arguments ld. counsel for the accused argued and submitted that accused is innocent and has been falsely implicated in this case. Ld. counsel for the accused again submitted that there are so many lacunae in the prosecution story. Ld. counsel again submitted that from the crossexamination of witnesses it is clear on record that there were so many guards besides accused who have fired but IO did not mention the names of those guards in the charge sheet. Ld. counsel again submitted that witnesses had identified the actual culprit in the police station but the police in connivance with the culprit took Rs.1 lac from him and let him to go and thereafter present accused was falsely implicated in this case. Ld. counsel again submitted that Mr. Vipin 26 Chauhan, who was also a security guard is the actual culprit but he has not been arrested and prosecuted. There was one more gunman by the name of Mr. Arjun Singh and even he has not been prosecuted. Accused had not used his gun and has not shot the deceased. He has not killed him. Ld. counsel for accused again submitted that most material witnesses i.e. PW4 and PW5 Lakhvinder (complainant) have been got declared hostile by ld. APP they have not supported the prosecution case on any count. On these grounds ld. counsel for accused submitted that accused is entitled for benefit of doubt and she be acquitted.
35. Contrary to it, ld. APP argued and submitted that there is sufficient evidence on record to hold the accused guilty since all the material witnesses have correctly identified him as culprit who had fired towards them. Ld. APP further argued and submitted that gun license of the accused was also found fake vide license Ex.PW16/G and report Ex.PW16/F. Ld. APP again argued and submitted that act of the accused is on higher side, he might have fired / hit the victims/ upon 27 their legs to avoid the theft in the premises in question since victims had come there to steal the iron pieces. Ld. APP further argued and submitted that since all the material witnesses have correctly identified the accused as culprit therefore, no question arises whether firing was made by other person. Thus contentions of ld. counsel for the accused that accused had not fired upon the victims are not sustainable. Ld. APP further submitted that PW4 and PW5 have been won over by the accused hence they have deposed falsely in the present case to save the accused while other PWs namely PW14 and PW15 have brought on record all the material facts on record and have correctly identified the accused as culprit who had fired upon them. On these grounds ld. APP submitted that accused be convicted as per law.
36.Before reaching at any conclusion let the relevant sections be reproduced: "300 Murder -
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 28 3rdly. If it is done with the intention of causing bodily injury to any persons and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
"Sec. 304 IPC :
Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder, shall be punished [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, if the act by which the death is cause is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
37. Distinction between part I and II of Section 304 IPC. It has been made clear in 'Bonda Devesu Vs State of A.P. (1996) 7 SCC 115: 1996 SCC (Cri.) 187' that :
"When it is proved that the accused had the intention to cause such bodily injury as is likely to cause death, the offence committed is punishable under section 304, PartI IPC;
When he had the grave and sudden provocation to cause death of the deceased, the offence committed is punishable under section 304, Part I."
In 'M.T. Nambiar Vs State of Kerala AIR 1997 SC 687 : 1997 SCC (cri) 726: 1997 Cr.LJ' it has been held that :
"Section 304, Part II is attracted when it is proved that even if the 29 accused had no intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause death. When the accused appellant gave one blow with a pair of scissors on the chest of the deceased, the intention to cause death cannot be imputed to him but it would be reasonable to infer that he had knowledge that any injury on the vital part of the body of the deceased would cause death. So he can be convicted under section 304, Part II of IPC.
Again in 'Ramkishan Vs State of Rajasthan (1997) 7 SCC 518 : 1997 SCC (Cri) 1106' "When axe injuries were caused on the body of the deceased then even if the accused persons did not have the intention to cause death, they definitely had the knowledge that such injury was likely to cause death. So they are guilty under section 304, Part II, IPC."
Again in 'Shanmugam @ Kulandaivelu Vs State of Tamil Nadu,AIR 2003 SC 209' it has been observed that: "The accused inflicted bodily injuries on the deceased which were of such nature that they were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries, therefore liable to be punished under the first part of section 304 of Indian Penal Code."
38.In the case in hand it is on record as per depositions of PW14 and PW15 that on the intervening night of 15.08.2008, they along with other friends had gone to Metro Rly. Site, Moti Ngar to pick up the iron (They were five in numbers and loha uthane ke liye gai thai). They were seen by the guards. The guard had fired, which caused injury to Chavani @ Kishor , Loki and him. His two other associate namely Lakhinder and Satish had also run away from there. On 20.08.2008 30 PW15 had gone to PS and found that the gateman was in the custody of police, who had fired towards them. Gun was also recovered from the possession of accused. Witnesses correctly identified the accused as culprit. The pallet of bullet was available in his right hand. They stated that victim Loki had died in this incident, who had received injuries on his chest. IO of this case has also affirmed their testimonies by proving relevant records such as site plan vide Ex.PW16/A; inspection report of the site vide Ex.PW16/B; brief facts vide Ex.PW16/C; from 25.35 vide Ex.PW16/D; statements of Amar Nath, brother of deceased and Sonu Kumar about the identification of dead body vide Ex.PW7/A and PW7/B; after postmortem doctor handed over three sealed exhibits of this case along with sample seal of DFMT DDU hospital vide seizure memo Ex.PW16/E; postmortem report from the hospital vide Ex.PW2/A; after interrogation accused Mahesh Mishra was arrested in this case vide arrest memo Ex.PW11/A and Personal search Ex.PW11/B; disclosure statement vide Ex.PW11/C; accused produced gun along with three live and two used cartridges vide sketch Ex.PW11/D and seizure memo Ex.PW11/E; 31 License of the accused was found fake vide report of Pradeep Kumar, Uppar Zila Magistrate (City) Allhabad is Ex.PW16/F and license Ex.PW16/G. However, PW4 and PW5 have been got declared hostile by ld. APP.
, it is difficult to impute
39.On a consideration of the totally of the circumstances to the accused the intention to put an end to the life of the deceased. Nevertheless, intention to cause severe bodily injuries has to be necessarily imputed to the accused. But then, the objective test whether the injuries were sufficient in the ordinary course of nature to cause death, has to be satisfied to bring home the guilt of the accused under Clause thirdly of Section 300 IPC. It is here that the medical evidence assumes much importance. The defence evidence and arguments of ld. counsel for the accused does not come to the rescue of accused precisely for the reasons as discussed above and that material witnesses namely PW14 and PW15 have correctly identified the accused as culprit who had fired upon them in which deceased sustained bullet injury in his chest and expired in this incident. PW2 Dr. Komal Singh, who had conducted the postmortem on the dead body of deceased Lok Nath have deposed that cause of death was hemorhagic shock subsequent shot gun injuries to the vital organs of the 32 body. Injuries were sufficient to cause death in combination in ordinary course of nature vide Postmortem report Ex.PW2/A. The nature of injuries and the medical opinion unmistakably point to the fact that the bodily injuries inflicted on the deceased were of such nature that they were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries. Therefore, I am of the view that the accused is liable to be punished under the first Part of Section 304 IPC.
40.Though charge for the offences punishable under section 304, 323 IPC and additional Charge for the offence u/s 25/ 27 Arms Act have been framed against the accused yet it has come on record that accused has not taken the plea of private defence/ self defence. But it is on record that weapon of offence i.e. gun Ex.P1 was recovered at the instance of accused vide his disclosure statement Ex.PW11/C and seizure memo Ex.PW11/E vide depositions of PW11 ASI Mumta Ali and PW16 Insp. R S Meena. License of the accused was found fake vide report of Pradeep Kumar, Uppar Zila Magistrate (City) Allhabad Ex.PW16/F and license Ex.PW16/G.
41.Besides, PW18 Mr. K C Varshney, Asstt. Director, Ballistic Division has opined in his report Ex.PW18/A that Gun marked as F1 was in working 33 order and fired cartridges cases marked as EC1 and EC2 and test fired marked Ex.TC1 on comparison were found identical after making test fire with the alleged Gun. He has categorically opined that hence, Ex.EC1 and EC2 have been fired through the single barrel breach loading (SBBL) gun 12 bore marked as Ex.F1. This witness has also affirmed the fact that Ex.F1 (One Single barrel breach loading (SBBL) gun 12 bore bearing no.2847803; three 12 bore cartridges marked A1 to A3 and two 12 bore cartridges cases marked as Ex.EC1 and EC2; two pellets marked as Ex.P1 and P2 are the firearm/ ammunition as defined in Arms Act, 1959. It is interesting to note that accused has taken plea in the statement u/s 313 Cr.PC that two more gunmen namely Vipin and Arun were present at the spot and actual culprit is Vipin but both have not been prosecuted. Accused has also produced two defence witnesses namely DW1 Ashok Kumar Pruthi and DW2 Satpal Diwedi. On their examination nothing has come on record that both these gunmen were on duty on that day. Presuming for the sake of arguments both the persons namely Arjun and Vipin were on duty still recovery of the alleged gun has been made at the instance of accused himself. Besides, PW14 and PW15 - eye witnesses have correctly identified the accused as culprit who had fired upon them. So this contention also does not come to rescue to the accused. So, in light of the judgments ' Bonda Devesu Vs 34 State of A.P. (1996) 7 SCC 115: 1996 SCC (Cri.) 187' and 'Shanmugam @ Kulandaivelu Vs State of Tamil Nadu,AIR 2003 SC 209' (supra) I convict accused for the offence punishable u/s 304 Part I IPC in view of the fake gun lincense used by him for keeping and using the same. Again in view of the deposition of PW11, PW16 and PW18, I also convict accused for the offence punishable u/s 25/ 27 Arms Act precisely for the reasons that he was in possession of illegal firearm and used the same to shoot the victims and he was having fake license vide report of Pradeep Kumar, Uppar Zila Magistrate (City) Allhabad vide Ex.PW16/F. Accused is also convicted for the offence punishable u/s 323 IPC for causing injuries to PW14 Kishor @ Chavanni and PW15 Jogender @ Yogender vide their MLCs Ex.PW3/A and PW17/A and depositions of PW3 and PW17.
Accordingly, accused is convicted for the offence punishable u/s 304 Part I IPC;
accused is also convicted for the offence punishable u/s 323 IPC; and again accused is convicted for the offence punishable u/s 25/27 Arms Act.
ANNOUNCED IN THE OPEN COURT ON THIS 17.12.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 35