Delhi District Court
State vs . Pradeep @ Shyam Singh & Anr. Fir ... on 7 November, 2022
-:: 1 ::-
IN THE COURT OF SH. NEERAJ GAUR : ASJ05, NORTH WEST :
ROHINI COURTS, DELHI
In the matter of :
SC No.53697/2016
(CNR No.DLNW01-0097152016)
FIR No. 498/2016
PS Begumpur
U/s 302/34 IPC & 27 Arms Act
The State
Versus
1. Pradeep @ Shyam Singh @ Sunder
@ Mota
S/o Sh. Ganga Singh
R/o H. No. B-60, Rajeev Nagar,
Begumpur, Delhi
2. Parveen @ Sushil
S/o Sh. Matadeen
R/o G-282, Sector-20,
Rohini, Delhi
....Accused Persons
Date of Institution 02.12.2016
Date of Arguments 14.10.2022, 28.10.2022 &
05.11.2022
Date of Order/Judgment 07.11.2022
Decision Accused Pradeep convicted u/s
302 IPC and u/s 27 Arms Act.
Accused Praveen is acquitted of
the charges framed against him.
State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016
Page No.1 of 31
-:: 2 ::-
JUDGMENT
PROSECUTION CASE
1. The FIR has been lodged on a complaint of Sh. Basant who stated that on 24.07.2016, he went out for a night walk. He saw that his nephew Harish was standing near his plot and was having conversation with someone. Another boy was present on his motorcycle at some distance from Harish. Suddenly, the first mentioned boy took out a pistol and fired 3 shots on Harish. Both the said boys ran away on the aforementioned motorcycle alongside the complainant. The complainant identified the shooter as Sunder @ Mota. The complainant rushed towards the injured Harish and sent him to hospital with the help of a neighbor Kailash. Harish died and case u/s 302/34 IPC and 25/27 Arms Act was registered.
INVESTIGATION
2. During investigation, 3 empty cartridges were recovered from the spot. On 02.08.2016, an information was received about apprehension of accused Parveen @ Sushil and Pradeep @ Shyam Singh @ Sunder Mota in case FIR No.136/2016 PS Crime Branch. Both of them were State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.2 of 31
-:: 3 ::-
interrogated after taking permission from the court. Their disclosure statements were recorded. A pistol was recovered from the accused by Crime Branch officials that was sent to FSL. Charge-sheet was filed on completing the investigation.
CHARGE
3. Vide order dt. 02.12.2016, charge u/s 302/34 IPC was framed against both the accused persons. Charge u/s 27 Arms Act was also framed against accused Pradeep @ Shyam Singh. Both the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove the charges, the prosecution examined total 32 witnesses.
5. PW-6 Sh. Basant supported the prosecution case. He categorically identified the accused Pradeep @ Shyam Singh as the person who fired on Harish. He also identified accused Parveen as the boy sitting State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.3 of 31
-:: 4 ::-
on the motorcycle at the spot and who drove away the motorcycle alongwith accused Pradeep after committing the murder. PW-6 proved his complaint as Ex.PW-6/A, the site plan as Ex.PW-6/B, the seizure memos of road/concrete as Ex.PW-6/C, seizure Memo of 3 cartridges from the spot as Ex.PW-6/D, seizure memo of one pair of slipper and one single foot slipper (of deceased Harish) as Ex.PW-6/E. The single foot slipper of deceased Harish has been identified as Ex.P2.
6. PW-1 Sh. Kailash Kumar deposed that on 24.07.2016 at about 09:45 PM, he was returning to his house when his neighbor Basant asked him to stop. PW-1 saw Harish lying there. PW-1 rushed Harish to Brahm Shakti Hospital in a car belonging to Harish.
7. PW-2 Sh. Daya Singh is the brother of the deceased and PW-12 Sh.
Rajesh Kumar is the uncle of the deceased. They identified the dead body of deceased Harish and proved the identification memos.
8. PW-3 ASI Satish Kumar only made a request to the hospital for conducting the autopsy of the dead body of the deceased and deposed about the handing over of 4 sealed pullindas and sample seals by the State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.4 of 31
-:: 5 ::-
concerned doctor to Insp. Mahender Singh. He proved the seizure memo as Ex.PW-3/A.
9. PW-4 HC Maruti Munde, being the duty officer, proved the FIR as Ex.PW-4/A that was recorded on the basis of rukka brought by Ct. Run Singh.
10. PW-8 Sh. Kapoor Singh deposed that on 25.07.2016, on a call from the police, he videographed the postmortem conducted at SGM Hospital. The DVD of the videography is Ex.P3.
11. PW-11 HC Arvind Kumar was the photographer with the Mobile Crime Team and PW-13 SI Akashdeep was the In-charge of the Mobile Crime Team on 24.07.2016. Both of them reached at the spot on receipt of DD No. 50A. PW-11 took 10 photographs of the spot that are Ex.PW-11/A1 - A10 with negatives Ex.PW-11/B. PW-13 prepared a report Ex.PW-13/A.
12. PW-14 Ct. Ankur was posted in PCR HQ who received an information from a mobile No. 9718543654 regarding firing at the spot. The State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.5 of 31
-:: 6 ::-
information recorded by PW-14 is Ex.PW-14/A.
13. PW-7 Dr. Afroz deposed that he was posted at Brahm Shakti Hospital on 24.07.2016 when patient Harish was brought to the casualty with the history of gunshot. PW-7 examined him and declared him brought dead. The MLC is Ex.PW-7/A.
14. PW-16 Dr. Anurag Thapar conducted the autopsy on 25.07.2016 on the dead body of deceased Harish. The detailed PM Report is Ex.PW- 16/A.
15. PW-23/Ms. Monika Chakarwarti, Senior Scientific Assistant, Biology Division FSL, deposed that the FSL received sealed pullandas pertaining to the present case and PW-23 performed the DNA examination. As per her report Ex.PW-23/A, DNA profile generated from gauge cloth piece of the deceased was similar with the DNA profile of (1) the gauge cloth piece taken from the scene of crime, (2) the baniyan of the deceased and (3) the shirt of the deceased.
16. PW-24 Sh. Avinash Shrivastava was the Senior Scientific Officer, State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.6 of 31
-:: 7 ::-
Ballistics, FSL. He examined the bullets and the improvised pistol of the present case and he prepared a detailed report Ex.PW-24/A.
17. PW-5 Insp. Manohar Lal was the draftsman who prepared the scaled site plan Ex.PW-5/A.
18. PW-9/Ct. Ram Karan deposed that he deposited 4 pullandas at FSL.
PW-10 ASI Deen Dayal also deposited 2 pullandas at FSL.
19. PW-15/ASI Ramesh Kumar, PW-28 Ct. Ajay and PW-22 SI Gurmeet Singh were posted at ISC Crime Branch, Chankyapuri on 01.08.2016. PW-22 received a secret information about arrival of the accused Sunder (Pradeep @ Shyam) and Parveen who could be apprehended. A raiding party was prepared and they reached at ESI Hospital at about 08:30 PM. At about 08:55 PM, on the pointing out of the secret informer, both the accused persons herein were apprehended. From the possession of accused Sunder, one country-made pistol was recovered on which AOTO pistol was engraved. The magazine of pistol was found containing 2 live cartridges. Sketch Ex.PW-19/B was prepared and was seized vide Memo Ex.PW-19/C. The motorcycle on State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.7 of 31
-:: 8 ::-
which the accused persons came was disclosed to be stolen motorcycle that was taken into possession vide memo Ex.PW-19/D. An FIR No.136/16 was registered at PS Crime Branch. The IO of the present case Insp. Mahender Singh was informed about the apprehension of the accused persons. The country-made pistol recovered from accused Sunder @ Shyam Singh is Ex.P-4 and the two fired cartridges recovered from the magazine are Ex.P-5. PW-19 Sh. Satish Chand Mishra was the Assistant Ahlmad who brought the judicial file pertaining to case FIR No.136/16 and he proved the copies of various documents from the judicial file. The copy of FIR is Ex.PW-19/A. PW-30/Sh. Vishram Singh was the Ahlmad of the concerned Trial Court of case FIR No.136/16 and he proved the arrest and personal search memos of the accused Shyam Singh @ Sunder and Praveen @ Sushil as Ex.PW-30/A -30/D.
20. PW-25/ASI Jaipal Singh was the Duty Officer at PS Crime Branch who registered the FIR No. 136/16 Ex.PW-19/A.
21. PW-27/Ct. Sandeep is a witness of formal nature who took the copies of the FIR of the present case to the ACP, DCP, Joint CP and the Ilaka State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.8 of 31
-:: 9 ::-
Magistrate.
22. PW-31/Sh. Bhisma Singh DCP deposed that on 26.09.2016, he perused the case file of FIR No.136/16 and after careful examination of the file, he accorded the sanction u/s 39 Arms Act Ex.PW-31/A.
23. PW-32/SI Rajesh Kumar and PW-17 Ct. Ran Singh were posted on emergency duty at PS Begumpur on 24.07.2016 when DD No.50A was entrusted to PW-32. They reached at plot No.A-283 and from there, they reached to Brahm Shakti Hospital. MLC of deceased Harish was collected. PW-32 recorded the complaint Ex.PW-6/A and reached at the spot. Tehrir Ex.PW-31/A was prepared.
24. PW-26/ HC Yashpal Singh joined the investigation on 06.08.2016 with the IO/Insp. Mahender Singh when both the accused persons were formally arrested and personally searched at Rohini Jail vide memos Ex.PW-26/A-D. PW-21/HC Pramod Kumar also joined the IO during the investigation conducted on 17.08.2016 when both the accused persons were formally interrogated after taking due permission from the concerned MM. Pointing out memo Ex.PW-21/A State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.9 of 31
-:: 10 ::-
& B were prepared at the instance of accused persons.
25. PW-29 /Insp. Mahender Singh is the IO of this case who deposed about the various steps taken by him during the investigation. He proved the Sketch Memo of 3 empty cartridges lying in the street at the spot as Ex.PW-29.A. He inter-alia prepared the seizure memos of the various pullandas already seized by SI Rajesh as Ex.PW-29/B.
26. PW-20/ASI Jaiveer Singh is the MHC(M) at PS at the relevant time who deposed about depositing the case properties of the present case on various dates. He also deposed about sending the case properties to FSL. He proved the relevant entries made in the malkhana register as Ex.PW-20/A -20/M.
27. PW-18/Sh. Apoorv Sarvaria deposed that while working as link MM of the concerned Ilaka Magistrate, he received an application Ex.PW- 18/A for conducting the TIP of the accused Pradeep @ Shyam Singh who refused to participate in the TIP proceedings. The proceedings are Ex.PW-18/A1. On 16.08.2016, he conducted the TIP of accused Parveen Sushil vide proceedings EX.PW-18/B when the witness State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.10 of 31
-:: 11 ::-
correctly identified the accused in the TIP.
28. All the prosecution witnesses were duly cross examined on behalf of the accused persons.
STATEMENT OF ACCUSED AND DEFENCE
29. The statements of accused persons were recorded u/s 313 CrPC on 02.08.2019 after putting all the incriminating evidence. The accused persons claimed innocence. Accused Pradeep opted to lead defence evidence but closed the same vide a separate statement dt. 31.10.2019. ARGUMENTS AND FINDINGS
30. Arguments have been heard. Written arguments filed on behalf of the accused persons have been considered. Record has been carefully perused.
31. It is argued by Ld. Defence Counsel of both the accused persons that PW-6 is a planted witness and his testimony is completely unreliable. State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.11 of 31
-:: 12 ::-
It is argued that the conduct of PW-6 is strange and and the conduct itself is a proof of the unreliability of PW-6. It is submitted that PW-6 was the real uncle of the deceased Harish and was allegedly present when Harish was shot but it was not PW-6 who removed Harish to the hospital. It was rather PW-1 Kailash Kumar who took Harish to the hospital. PW-6 did not even accompany PW-1 in the car. It is argued that if PW-6 were present at the spot, it would have been him and not PW-1 to have taken Harish to the hospital. To create a further doubt in the presence of PW-6, Ld. Defence counsels highlighted that the court asked a question to PW-1 if he had asked PW-6 Basant as to what had happened to Harish and PW-1 answered to the court that there was no time as it was emergency as Harish was to be rushed to the hospital. On the other hand, PW-6 deposed in chief-examination "I met Kailash (PW-1) who was of our village and I told him about the said incident of firing". It is argued that this contradiction in the testimonies of PW- 1 & PW-6 creates a further doubt in the very presence of PW-6. To support their arguments, Ld. Defence counsels further argued that PW- 6 himself stated "I and Kailash then put Harish in the car. Kailash took him to Brahm Shakti Hospital". It is argued that admittedly, Harish had suffered 3 gunshot injuries and was bleeding. If PW-6 had State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.12 of 31
-:: 13 ::-
put Harish in the car, he himself must have been stained by the blood of Harish. No clothes of PW-6 were seized during the entire investigation. It shows that PW-6 was subsequently planted by the police as an eye-witness. It is further highlighted by Ld. Defence Counsels that as per the scaled site plan Ex.PW-5/B coupled with the testimony of PW-5/Insp. Manohar Lal (the draftsman), the distance between the place where deceased was shot and PW-6 was 30 meters. Whereas the distance between PW-6 and accused Praveen alongwith his bike was hardly 3 meters. The street was a blind alley towards the side of the deceased (North) and the only way to escape was towards the (Southern) side where PW-6 was allegedly present. If PW-6 was in fact present, he must have stopped the accused persons from escaping the spot. It further creates a doubt in the very presence of PW-6. It was further highlighted that as per the PCR Form Ex.Pw-14/A, the caller was PW-6. It is mentioned in the PCR Form "jo aj Sunder aur Praveen aur Harish teeno ne sath me Shrab pii thi, uske bad inka quarrel ho gayi, jinme se ek ne, kisne pata nahi sunder ko left side me kaan se thoda aage goli mardi hai.". It is submitted by Ld. Defence counsels that the PCR Forms mentions about the names of both the accused Sunder and Praveen. Strangely, in the complaint Ex.PW-6/A, State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.13 of 31
-:: 14 ::-
PW-6 only mentioned the name of the shooter as Sunder @ Mota. About the second boy standing on the motorcycle, he did not give his name and only stated that he could identify this second person if shown to him. It is argued that the complaint Ex.PW-6/A was admittedly recorded in the hospital itself and prior to that, PW-6 had made the PCR call. It is argued that the police tried to create a foolproof case by planting PW-6 as an eye-witness but the police omitted to take into account the information sent to the PCR. It is argued that the complaint Ex.PW-6/A does not correspond with the information sent to PCR especially regarding the name of the second assailant as Praveen. It is argued that PW-6 is a completely unreliable witness.
32. Ld. APP for the State refuted the above arguments. Regarding the conduct of PW-6, it is submitted that PW-6 himself explained that after the incident of firing, PW-6 ran from there. He was trembling hence he requested PW-1 Kailash to take Harish to the hospital. It was further argued that no suggestion has been given to PW-6 by the accused persons if his clothes were stained with blood. Hence, the non-seizure of clothes of PW-6 cannot be considered as a lapse of State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.14 of 31
-:: 15 ::-
investigation. It is further argued that there are no material contradictions in the testimonies of PW-1 & 6. Regarding the mentioning of the names of the accused persons in the PCR Form, it is submitted that the PCR Form not only contains the initial information but also the subsequent updates and there are no contradictions between the information contained in the PCR Form and the complaint Ex.PW-6/A.
33. The only eye-witness of the present case is PW-6 and his testimony needs closest of the scrutiny. The position of the scene of occurrence as per the scaled site plan Ex.PW-5/A is that PW-6 is standing on the Southern side of a gali which is very narrow. Very near to PW-6 towards Northern side, the position of accused Praveen standing alongwith his motorcycle is marked. On further North side, at a distance about 30 meters from PW-6, the position of deceased Harish is shown where he was shot. Presumably, accused Pradeep was near the deceased and he ran about 28 meters towards accused Praveen and finally escaped in front of PW-6. It implies that PW-6 had a clear opportunity to see the faces of both the accused persons. PW-6 deposed that he saw his nephew Harish standing at a distance of 15-20 State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.15 of 31
-:: 16 ::-
steps from the motorcycle. So far, there is no contradiction between the actual scene of crime and the version of PW-6 regarding the scene of crime.
34. PW-6 explained in his testimony that after seeing the incident, he was trembling and hence he requested PW-1 Kailash to take Harish to the hospital. Any person who has seen a murder in front of his eyes by gunshot can become nervous. Such a reaction of PW-6 was not unnatural. Under such state of mind, it was equally natural that PW-6 would ask PW-1 to take Harish to the hospital instead of PW-6 himself taking him to the hospital.
35. A contradiction between the testimonies of PW-1 & 6 was highlighted by Ld. Defence counsels that PW-1 clearly stated that PW-6 had not told anything about the incident. Whereas PW-6 deposed that he had told PW-1 about the incident of firing. The situation in which PW-1 & 6 were at that time was an emergency situation when Harish was lying on the spot in severely injured condition. In such a situation, it is not necessary that PW-1 & 6 would clearly remind or recall as to what was stated by them to each other. The testimonies of PW-1 & 6 are State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.16 of 31
-:: 17 ::-
consistent with each other on the aspect of arrival of PW-1 when PW- 6 was near Harish and asked PW-1 to take Harish to the hospital. Both of them have stated that Harish was taken to the hospital in a car belonging to Harish only which was parked in the same street. No inconsistency or material contradiction is found in the testimonies of PW-1 & 6.
36. As regards the non-seizure of the clothes of PW-6, Ld. APP for the State has rightly pointed out that no question has been asked to PW-6 during the cross-examination that his clothes were actually stained with blood in the process of putting Harish inside the car. The non-
seizure of clothes of PW-6 is not found a lapse in investigation, serious enough to create a benefit in favor of the accused persons.
37. I have also perused the PCR Form in which various contradictions have been pointed out by Ld. Defence counsels especially as regards the name of accused Praveen as mentioned in the PCR Form but not stated in the complaint. Ld. APP for the State submitted that PW-6 Basant only gave the information "goliyan chal rahi hain Begumpur". This much of information is attributable to PW-6. Regarding the State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.17 of 31
-:: 18 ::-
remaining information mentioned in the PCR Form, it is submitted that the 2 PCR Vans that arrived at the spot gave various updates to the control room. The family of deceased Harish informed about a prior quarrel of Harish with accused Sunder and Praveen. It is submitted that whatever information that was being brought to the notice of the PCR officials was transmitted to the Control Room and recorded in PCR Form with the times. It is submitted that all the information and updates recorded in the PCR Form are not based on the information given by PW-6.
38. A careful perusal of the PCR Form Ex.PW-14/A shows that several updates given by the official of the 2 PCR vehicles at the spot were recorded in the PCR Form alongwith the time. At 22.50.39 Hrs., it was updated that the family members had informed about some prior quarrel of the deceased with the accused persons. It nowhere states that it was PW-6 who had named accused Parveen. PW-6 clearly stated in the complaint that he had seen Sunder at the spot after the incident and that he could identify the second person (on the motorcycle) if shown to him. The second person i.e. accused Parveen was identified in judicial TIP proved as Ex.PW-18/B. PW-6 stated in State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.18 of 31
-:: 19 ::-
his cross-examination that he did not tell the name of the accused during the 100 number call which matches with the information recorded in the PCR Form.
39. Ld. Defence counsel further argued that as per the PM Report Ex.PW-
16/A, there were 3 firearm injuries on the body of the deceased. One firearm entry wound was over right upper back, the second over the back of left forearm and the third over left side of forehead. It is argued that two entry wounds are on the backside of the body and the third is on the forehead. Such injuries could be inflicted if either the deceased was in movement which is not possible after the first shot was fired. Or if the accused was moving around the deceased and firing the shots. It is argued that PW-6 did not specifically state that either the accused was moving or the deceased was in movement. It shows that PW-6 was not present at the time of the incident.
40. I am finding little conviction in the above arguments. First of all, a person who has been shot once may not at once collapse and he may still move to escape or struggle. It is also possible that the accused Pradeep was in movement while firing the shots. So far as PW-6 is State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.19 of 31
-:: 20 ::-
concerned, he was seeing the incident from a distance when a person can see the shots being fired but he may not minutely observe the various movements of the victim or the assailants. Even if such movements were observed, it would not be presumptuous that such minute details could be omitted at the time of making the complaint. It is noteworthy that no question has been put by the accused persons to PW-6 in this regard during the cross-examination.
41. Ld. counsel for accused Pradeep further argued that PW-6 was having a financial transaction with accused Pradeep @ Sunder hence, he falsely implicated him. In this regard, it is rightly argued by Ld. APP that besides a bald suggestion, no further material has been placed by the accused in support of his defence. No details of any such financial transaction has either been put to PW-6 during his cross-examination or proved otherwise during defence. On the basis of such vague defence, the testimony of PW-6 can not be discredited.
42. By far, no doubt could be created in the version given by PW-6 or as to his reliability as a witness.
State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.20 of 31
-:: 21 ::-
43. Ld. Defence Counsels further argued that in the initial PCR call, the information was that gunshots are fired at H. No.22, Begumpur whereas the actual spot, as per the prosecution case, was in front of H. No. A-283, Rajeev Nagar, Begumpur. It is argued that the crime scene mentioned in the PCR call is entirely different from the actual crime scene. The police official i.e. PW-32 deposed that he received the information regarding incident of firing near H. No.22, Begumpur but he reached in front of H. No.283 which was an entirely different spot. It is further argued that as per the PCR information, the gunfire was going on at the time of making the PCR call which is contradictory to the version of PW-6 who clearly stated that after the deceased was taken to the hospital, the PCR call was made. It is further submitted that from the PCR information, it can be inferred that gunfire was going on at 09:55 PM (the time of making the PCR call) that too at H. No.22. The police never visited such spot where gunfire was going on and rather reached in front of H No. 283 without there being any prior information regarding this place.
44. Ld. APP for the State argued that the H. No.22 is the residential address of PW-6 and the same seems to have been mentioned as the State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.21 of 31
-:: 22 ::-
place of incident in the PCR call. It is further submitted that PW-32 clearly stated that after receiving the information, he telephonically contacted the caller and reached in front of H. No. 283.
45. I have considered the above arguments. PW-32/SI Rajesh Kumar has clearly stated that after receiving the information of firing near H. No.22, he contacted the PCR caller and then he reached in front of H. No.283. The H. No.22 being the residence of PW-6 has not been challenged during the cross-examination. The explanation given by Ld. APP for the State of mentioning the address of PW-6 as the place of incident in the PCR call seems plausible and acceptable.
46. After considering the rival submissions and in view of the discussion made herein above, I am of the opinion no doubt could be created in the evidence of PW-6 and he is a reliable witness. PW-6 identified the accused Pradeep @ Shyam Sunder as the person who shot Harish from his pistol. He also identified accused Praveen as the person who was standing at a distance on his bike when accused Pradeep shot Harish and that both of them fled away from the spot on the same bike. The identity of both the accused persons has been duly State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.22 of 31
-:: 23 ::-
established on record.
47. Ld. Defence Counsel further argued that as per the sketch Ex.PW-19/B prepared by PW-22 SI Gurmeet Singh of Crime Branch, the two cartridges taken out from the magazine of the recovered pistol were bearing the mark KF-7.62. Whereas, as per the deposition of the ballistic expert/PW-24, he test fired the cartridges of 7.65 mm in the pistol allegedly recovered from accused Pradeep. PW-24 further confirmed in his cross-examination that 7.62 cartridge could not be fired from a pistol of 7.65 mm bore. It is argued that the pistol allegedly recovered from accused Pradeep could not be linked with the murder and benefit of doubt accrues in favor of the accused.
48. Ld. APP for the State argued that the 2 empty cartridges recovered by the crime branch were also sent to FSL and PW-24 clearly mentioned about parcel No.2 sealed with the seal of FSL containing the particulars of PS Crime Branch case FIR 136/16 and these cartridges were 7.65 mm and not 7.62 mm. It is submitted that in the sketch Ex.PW-19/B the particulars of the cartridges seems to be wrongly mentioned as KF-7.62 instead of KF-7.65. It is further submitted that State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.23 of 31
-:: 24 ::-
the bore of the pistol could be best proved by the expert and the same could not be decided on the basis of the two cartridges that were found in the magazine of the pistol at the time of recovery. During the testimony of PW-24, it has nowhere been disputed by the accused persons that the actual gun examined by PW-24, was of 7.65 bore. Therefore, the prosecution has been able to prove that the crime was committed from a 7.65 bore pistol. The bullets recovered from the body of the deceased have been proved as bullets fired from the said recovered pistol.
49. I have considered the above submissions. The pistol Ex.P-4 recovered from accused Pradeep at the time of his arrest by the Crime Branch has been proved as Ex.P-4. As per the deposition of PW-24, the said pistol was 7.65 mm bore. The empty cartridges recovered from the spot were also 7.65 mm. The bullets recovered from the body of Harish also corresponds to the bullet of 7.65 mm cartridges. The bullets recovered from the body of Harish have been linked with the pistol Ex.P-4.
50. Now I will deal with the controversy as regards the mentioning of the State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.24 of 31
-:: 25 ::-
cartridges as KF-7.62 in the sketch Ex.PW-19/B. As per the deposition of PW-24, the said two cartridges were 7.65 mm. No question or suggestion has been given to PW-24 by the accused persons to show that the said two cartridges were 7.62 mm and not 7.65 mm. In view of the uncontroverted deposition of PW-24, it appears that in the Sketch Memo Ex.PW-19/B, the details have been wrongly mentioned as KF-7.62 instead of 7.65. Even if it is presumed for a moment that the magazine was loaded with 7.62 mm cartridges, the bore of the pistol could be proved by an expert opinion and not by the two cartridges found in the magazine of the pistol when it was recovered. No doubt could be created in the prosecution case on account of the discrepancy in the Sketch Memo Ex.PW-19/B.
51. It is further argued by Ld. Counsel for accused Pradeep that the pistol was not shown to the eye-witness/PW-6 and the same could not be proved as the same weapon that was used by the assailants.
52. PW-6 deposed during his cross-examination that it was a small pistol and he could not give any further description. The PW-6 witnessed the incident from a distance of about 28-30 meters. From such a distance, State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.25 of 31
-:: 26 ::-
it is itself difficult to clearly observe the weapon that too by a person who is seeing his nephew being shot. Such a person with such a distance cannot be expected to keenly observe the weapon with minute details. Therefore, the non-identification of the pistol through PW-6 is hardly of any consequence.
53. It is further argued by Ld. Counsel for accused Pradeep that the prosecution has not proved on record any motive to accused Pradeep to cause the death of Harish and in absence of any motive, the charge could not be proved.
54. It is settled proposition of law that the prosecution is not bound to prove the motive for commission of crime especially in a case where there is direct evidence. The absence of motive in the present case is not found fatal for the prosecution case.
55. Ld. Defence Counsel further argued that both the accused persons have been acquitted in the case FIR No.136/16 PS Crime Branch and the recovery of the pistol from their possession could not be proved. State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.26 of 31
-:: 27 ::-
56. It is pertinent to note that charge u/s 25 Arms Act for illegal possession of the pistol has not been framed in the instant case. The acquittal of the accused persons in the Crime Branch case does not have any mitigating effect in the present crime.
57. The prosecution has firmly established the identity of the accused persons. It has been proved on record that the accused Pradeep @ Shyam Sunder caused the death of Harish by shooting him with his pistol. Accused Praveen was standing on his bike in the same street. After the shooting, accused Pradeep came towards the bike of accused Praveen and both of them fled from the spot on the same bike.
58. Ld. counsel for the accused Praveen argued that the element of common intention could not be proved by the prosecution. It is submitted that as per the disclosure statements of accused Pradeep as well as Praveen Ex.PW-26/C & D, accused Pradeep was having a money dispute with the deceased and was having a grudge against the deceased. On 24.07.2016, accused Pradeep was already drunk and he met with accused Praveen and they both drank. Accused Pradeep asked accused Praveen to drive his bike as he was too drunk to drive. State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.27 of 31
-:: 28 ::-
Driving the bike of accused Pradeep, they came near the house of the deceased. Accused Pradeep proceeded towards the deceased after telling accused Praveen that he was just returning after taking money from the deceased. It is argued that the accused Praveen was not privy to any money dispute between Pradeep and the deceased. On the night, he did not know that accused Pradeep was carrying any pistol or he had any intention to shoot the deceased. Accused Praveen did not share any common intention with accused Pradeep for committing the murder. He has been wrongly charged u/s 34 IPC only on the basis of the fact that he drove the motorcycle.
59. In this regard, Ld. APP for the State argued that the very fact that the accused Praveen came together with the accused Pradeep on the bike and after committing the murder, they fled together, is a sufficient proof of the common intention between them. It is argued that from the facts and circumstances, it can be gathered that both the accused persons shared a common intention to commit the murder. Ld. APP for the State further argued that PW-6 deposed that accused Praveen was sitting on the motorcycle which was in start condition. It is argued that the motorcycle being in start condition establishes that accused State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.28 of 31
-:: 29 ::-
Praveen was in prior knowledge of the intention of murder of Harish by co-accused Pradeep and there was a common intention.
60. Ld. Defence Counsel refuted the above arguments especially regarding the motorcycle being in start condition submitting that PW-6 made a substantial improvement in his chief-examination. He was duly confronted with the complaint Ex.PW-6/A and he admitted that he did not mention in his complaint that the motorcycle was in start condition. It is argued that the PW-6 was improving upon his statement and such improvements have to be rejected.
61. I have minutely examined the rival contentions. The element of intention in any case is to be gathered from the facts and attendant circumstances. The facts proved on record are that the accused Praveen was present on a bike at a distance of about 28 meters from the place where accused Pradeep and Harish were having a conversation. It is further proved that accused Pradeep suddenly took out a pistol and shot Harish. Pradeep then came towards the bike after shooting Harish and thereafter, they fled from the spot. There is no material to show that accused Praveen was having any prior enmity State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.29 of 31
-:: 30 ::-
with the deceased. Even as per the disclosure statements, what can be gathered is that accused Pradeep and Praveen had drinks together. The accused Pradeep was too drunk to drive his bike and he asked Praveen to drive the bike. Only on the basis of the fact that accused persons fled together after Pradeep had shot the deceased, it will be unsafe to presume that accused Praveen shared a prior common intention with accused Pradeep or that there was any premeditation to commit the offence. PW-6 did not state in the initial complaint Ex.PW-6/A that the motorcycle on which accused Praveen was sitting was in start condition. He however improved in his deposition before the court and this improvement was duly confronted during cross-examination on behalf of the accused. This improved portion of the testimony of PW-6 cannot be made the basis for conviction in such a serious offence. Suspicion, howsoever grave, can not take place of proof. From the facts and circumstances proved on record, I am finding it unsafe to fasten accused Praveen with the vicarious liability by invoking Section 34 IPC. A reasonable doubt has been created as to the existence of any common intention of accused Praveen. He is entitled to be given a benefit of doubt.
State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016 Page No.30 of 31
-:: 31 ::-
CONCLUSION
62. In view of the foregoing discussion and on the basis of evidence proved on record, the prosecution has proved the charge u/s 302 against accused Pradeep beyond reasonable doubts. It is further proved on record that accused Pradeep @ Shyam Singh used a firearm as well as ammunition in contravention of Section 5 of the Arms Act 1959 which is an offence u/s. 27 Arms Act. The charge u/s. 27 Arms Act is also proved against accused Pradeep @ Shyam Singh. I hold the accused Pradeep @ Shyam Singh @ Sunder guilty and accordingly convict him u/s 302 IPC. Further, accused Pradeep @ Shaym Singh is held guilty and accordingly convicted u/s 27 of the Arms Act 1959.
63. The charge u/s 302 r/w Section 34 IPC could not be proved against accused Praveen beyond shadow of doubts. Accused Praveen is accordingly held not guilty and acquitted of the charges framed against him.
Announced in the open court (Neeraj Gaur)
Date : 07.11.2022 ASJ05/NorthWest District
Rohini Courts/Delhi/07.11.2022
State Vs. Pradeep @ Shyam Singh & Anr. FIR No.498/2016
Page No.31 of 31