Delhi District Court
State vs . Surinder Singh on 3 October, 2011
State vs. Surinder Singh
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 95/08
FIR No. 39/08
ID No. 02403R0586432008
PS: Malviya Nagar
U/s 307 IPC & 27 Arms Act
State Vs. Surinder Singh,
S/o Late Sh. Dev Prakash,
R/o 1588, Urban State, Jind,
District Jind, Haryana.
Date of institution : 10.09.2008
Case received by way of transfer : 25.02.2009
Date when arguments were heard : 03.10.2011
Date of Judgment : 03.10.2011
JUDGMENT
The accused was charged for the offence U/s 307 IPC on the allegations that on 12.01.2008 at about 1.30 am (night), he had fired upon SC No. 95/08 1/19 State vs. Surinder Singh the complainant Vivek Chhabra with his own pistol in the parking area of Indochin Bar and Restaurant, Lado Sarai, New Delhi within the jurisdiction of PS Malviya Nagar. He was also charged for the offence U/s 27 of the Arms Act for having fired from his pistol in violation of Section 5 of the Arms Act as he was not having a valid license.
2. The facts of the case are that on 12.01.2008, the complainant Vivek Chhabra had visited Indochin Bar and at about 1.30 am, he alongwith some persons had come in the parking area of the Bar and sat on a car. The driver of the said car was sitting inside who misbehaved with them and pushed him. They started abusing each other. Then the person who was sitting in the car abused him and threatened to kill him and took out the pistol from his pocket and fired on his leg. The said person was identified by Mr. Lakhani, the owner of the car, as his driver Surinder Singh i.e the accused in the case. The accused was apprehended on the spot and the injured Vivek Chhabra was taken to the hospital.
3. On the basis of the statement of injured, Ex. PW5/A, HC Devender who had reached the spot on receipt of DD No. 31, sent his rukka Ex. PW15/B which led to the registration of the FIR U/s 307 IPC. The investigation was assigned to SI Aishvir Singh who visited the spot and prepared the site plan Ex. PW8/A, arrested the accused and recorded his disclosure statement Ex. PW8/D. He seized the pistol from the SC No. 95/08 2/19 State vs. Surinder Singh possession of the accused alongwith five live cartridges vide memo Ex. PW12/C. He prepared the rough sketch of the pistol as well as the empty cartridges which were found lying on the spot vide Ex. PW12/A and Ex. PW12/B respectively. He also seized the copy of the license of the pistol vide Ex. PW8/E and arrested the accused vide arrest memo Ex. PW8/B.
4. The injured Vivek Chhabra was initially taken to Safdarjung Hospital where he was treated vide MLC Ex.PW7/A. The injury on his person was opined as "grievous". The pistol seized from the possession of the accused was sent to FSL and it was opined that it was a "firearm" and the cartridges which were recovered from the spot were fired by the said pistol.
5. The prosecution examined following witnesses in this case to prove its case: 5.1 PW1 is Kuldeep Tiwari. He deposed that on the day of incident, he was working as a Bouncer at Indochin Bar, Lado Sarai, New Delhi. At about 12.30 am (night), he came out from the Bar after hearing the noise of firing and saw some gathering of public persons outside the Bar and some police officials of the beat were also present in front of the Bar. He further deposed that the police had apprehended the accused Surinder Singh.
SC No. 95/08 3/19
State vs. Surinder Singh 5.2 PW2 is Saurav Batra. He deposed that he alongwith his friend Sahil Batra and his wife Divya Batra had gone to Climax Club situated near Saket, New Delhi. He further deposed that at about 11.30 pm/ 12.00 midnight, they found a person in injured condition outside the Club, whose name they later on came to know as Vivek. He further deposed that they had removed the injured to Safdarjung Hospital. 5.3 PW3 is Sahil Batra. He has also deposed on the same line as PW2 Saurav Batra.
5.4 PW4 is Nand Kishore, who was the security guard in the Indochin Bar and Restaurant, Saket, New Delhi. He deposed that at about 1.30 am, 4/5 persons came out from the Bar and they were again re entering the Bar. He asked them not to go into the Bar as the closing hours were over but they insisted to go again and to have drink. Two of them fetched some glasses from some car and they stood near a big car. He deposed that they started having drinks by keeping the drinks on the bonnet of the said car. He further deposed that one person sitting in the said car objected to this. He further deposed that first, those boys dragged the said person to the side and then one of those boys exhorted the other to beat the said person who was objecting them to drink on the bonnet. That person in the big car was having a pistol with him, he took out the SC No. 95/08 4/19 State vs. Surinder Singh same, but it was snatched by those 4/5 persons. He deposed that in the on going scuffle, fire was shot from the said pistol. He further deposed that he had seen one of the boy out of those 4/5 persons having an injury on the foot which was bleeding. He further deposed that within 4/5 minutes, the police had arrived at the spot. The person who was injured in the scuffle had already gone from the spot.
5.5 PW5 is Vivek Chhabra, who is the injured in this case. He deposed that on 11.01.2008, he alongwith his friends namely Sahil Batra, Vaibhav Arora and 2/3 other friends had gone to Indochin Club at Saket, New Delhi and after closing hours of the Club, he came out alongwith his friends at about 2.00 am. He further deposed that the accused was sitting in a car outside the Club and they were standing by taking the support of his car. He further deposed that the accused came out of the car and had some verbal dual with him and Sahil Batra. He further deposed that when he intervened, the accused first fired in the air and then fired a shot on his leg. The security staff of the Club came in the meantime and caught the accused. He further deposed that he was taken to the hospital by his driver.
5.6 PW6 is ASI Kamal Singh, who had recorded the FIR Ex. PW6/A at around 4.25 am.
SC No. 95/08 5/19
State vs. Surinder Singh 5.7 PW7 is Dr. Satyendra Prakash, who had examined the injured Vivek Chhabra and prepared the MLC Ex. PW7/A. 5.8 PW8 is Inspector Aishvir Singh. He is the Investigating Officer of the case.
5.9 PW9 is Mayank Lakhani, who deposed that at about 1.15 am, he came outside the Bar in the parking and saw the accused standing near his car. He deposed that four boys were also standing near him. Two of them had caught hold the accused Surinder Singh. He deposed that one of the boy out of those four, was sitting on the bonnet of his car and one of them perhaps Vicky was grappling with the accused and the accused was trying to snatch his gun back from Vicky. He further deposed that he heard the sound of a gunshot. He deposed that the accused had ran away from the spot and he called the accused on his mobile phone but the accused did not pick up the phone. He deposed that he went near his car and found some pieces of glass lying there and a bottle of alcohol containing very little alcohol in it near the bumper on the front side. Thereafter, he took his car and left the place. 5.10 PW10 is HC Rampal, who had taken five photographs of the scene of spot from different angles and after developing the prints, he had handed over the photographs alongwith negatives to the IO. SC No. 95/08 6/19
State vs. Surinder Singh 5.11 PW11 is SI Nafe Singh, InCharge of the crime team. He deposed that on 12.01.2008 on the requisition of local police, he alongwith other members of the crime team had inspected the spot. 5.12 PW12 is HC Vikram Singh, who deposed that he was on patrolling duty at 1.30 am on 11/12.01.2008. He deposed that he reached near Indochin Bar, Lado Sarai, New Delhi when he heard the noise of two gun fires. He rushed towards the Bar and found that accused Surinder Singh was standing there and was having a pistol in his hand. He further deposed that he had apprehended the accused alongwith the pistol with the help of security guard of Indochin Bar. 5.13 PW13 is Ct. Arvind Kumar. He deposed that on 12.01.2008, he was posted at Safdarjung Hospital as Duty Constable and had informed the Duty Officer of PS Malviya Nagar regarding admission of injured Vivek Chhabra.
5.14 PW14 is Ct. Satyaveer Singh, who had deposited two pulandas (of case property) with the FSL and handed over the receipt to the MHC (M) of PS Malviya Nagar.
5.15 PW15 is ASI Devender Singh. He deposed that on receipt of DD No. 31, he alongwith Ct. Ved Prakash had reached the Indochin Bar, Lado Sarai, New Delhi at around 2.00 am where he met Ct. Vikram and SC No. 95/08 7/19 State vs. Surinder Singh the security guard of the Bar. He further deposed that the accused was found apprehended by Ct. Vikram. He further deposed that thereafter he had gone to Safdarjung Hospital where injured Vivek Chhabra was found admit. He had collected the MLC and recorded his statement Ex. PW5/A. 5.16. PW16 is Inspector Dalip Kumar, who had sent the exhibits pertaining to this case to FSL, Rohini through Ct. Satyavir Singh and had collected the FSL report Ex. PW16/A.
6. The incriminating evidence in the statement of the witnesses was explained to the accused when he was examined U/s 313 Cr.P.C. He denied all the evidence as false. He pleaded not guilty and claimed the trial.
7. The prosecution had to prove that the accused had fired upon Vivek Chhabra with the requisite 'intention' or 'knowledge' and "under the circumstances" that if Vivek Chhabra had died, then he would have been guilty of murder. However, the evidence on the record raised a very vital question at the outset, whether the shot were fired, from the pistol of the accused by him or the shot were fired in the scuffle which took place between complainant and the accused?
8. First of all, the statement of PW5 Vivek Chhabra may be seen who deposed that on 11.01.2008, he alongwith his friends namely Sahil SC No. 95/08 8/19 State vs. Surinder Singh Batra, Vaibhav Arora and 2/3 other friends had gone to Indochin Club at Saket, New Delhi and after closing hours of the Club, he came out alongwith his friends at about 2.00 am. The accused was sitting in a car outside the Club and they were standing by taking the support of his car. The accused came out of the car and had some verbal dual with him and Sahil Batra. He further deposed that he intervened and the accused first fired in the air and then fired a shot on his leg. The security staff of the Club came in the meantime and caught the accused and he was taken to the hospital by his driver. PW5 Vivek Chhabra has referred to a fact that the verbal dual had taken place between accused and the Sahil Batra. Sahil Batra has been examined as PW3. He deposed that on the day of incident, he had gone to IndochinBar of Climax Club situated near Saket, New Delhi. At about 2.30 am, he alongwith his brother Saurav Batra came outside the Club and found Vivek Chhabra in injured condition. They took injured Vivek Chhabra in their vehicle to the hospital. As per the case of the prosecution, Sahil Batra is the eye witness of the case, however, he did not support the prosecution case and rather even denied having given any statement to the police. He specifically denied that on the intervening night of 11/12.01.2008, he alongwith Vivek Chhabra (PW5) came outside the Club and stood near the black Mercedes car in SC No. 95/08 9/19 State vs. Surinder Singh the parking in which a driver was sitting who started misbehaving with them. He also denied the suggestion that he stated to the police that the accused had took out the pistol and fired two shots on Vivek Chhabra to kill him. He also denied having the knowledge that the accused had fired upon Vivek Chhabra. Now the statement of Vivek Chhabra (PW5) and Sahil Batra (PW3) are not supporting each other.
9. The prosecution has also examined one Saurav Batra (PW2) who was also with Sahil Batra on the date of incident. He also denied having any knowledge about the accused and the incident. It means that the incident did not take place in the presence of PW2 Saurav Batra as well. Now the falsity of the prosecution case is also reflected from the statement of the witnesses. The witnesses have given statements which are contrary to each other making the prosecution case doubtful. PW2 Saurav Batra in his statement had stated that when he came out of the Club, he saw one person in an injured condition whose name later on he came to know as Vivek Chhabra. It means he did not know Vivek Chhabra prior to this incident. However, PW5 Vivek Chhabra deposed in his cross examination that Saurav Batra (PW2) was also with them in the Bar. He further deposed that Saurav Batra is the elder brother of Sahil Batra. So, these two witnesses have given statement contrary to each other.
SC No. 95/08 10/19
10. Now PW5 Vivek Chhabra has also deposed in his cross examination that after the incident, Mayank Lakhani had also come out of the Bar. It may be mentioned here that Mayank Lakhani was the owner of the car in which the accused was the driver/PSO. PW5 deposed that Mayank Lakhani talked with the accused Surinder Singh and then he came to know that he was the driver of Mayank Lakhani. The statement of PW5, thus, shows the presence of Mayank Lakhani on the spot. This leads to the statement of PW9 Mayank Lakhani who deposed that at about 1.15 am, he came outside the Bar in the parking and saw the accused standing near his car. Four boys were also standing near him. Two of them had caught hold the accused Surinder Singh. One of the boy out of those four, was sitting on the bonnet of his car and one of them perhaps Vicky was grappling with the accused and the accused was trying to snatch his gun back from Vicky. He further deposed that he heard the sound of a gunshot. He deposed that the accused had ran away from the spot and he called the accused on his mobile phone but the accused did not pick up the phone. He deposed that he went near his car and found some pieces of glass lying there and a bottle of alcohol containing very little alcohol in it near the bumper on the front side. He took his car and left the place. He could not find accused Surinder Singh at that time. Now this witness states about some glass pieces lying near the car and a SC No. 95/08 11/19 State vs. Surinder Singh bottle of alcohol containing very little alcohol in it. This would lead to the statement of PW4 Nand Kishore who was the security guard in the Indochin Bar and Restaurant, Saket, New Delhi.
11. He deposed that at about 1.30 am, 4/5 persons came out from the Bar and they were again reentering the Bar. He asked them not to go into the Bar as the closing hours were over but they insisted to go again and to have drink. Two of them fetched some glasses from some car and they stood near a big car. He deposed that they started having drinks by keeping the drinks on the bonnet of the said car. He further deposed that one person sitting in the said car objected to this. He further deposed that first those boys dragged the said person on the side and one of them boy exhorted the others to beat the said person who was objecting them to drink on the bonnet. That person in the big car was having a pistol with him, he took out the same, but it was snatched by those 4/5 persons. In the on going scuffle, fire was shot from the said pistol. He further deposed that he had seen one of the boy out of those 4/5 persons having an injury on the foot which was bleeding. He further deposed that within 4/5 minutes, the police had arrived at the spot. The person who was injured in the scuffle had already gone from the spot.
12. Now this statement of PW4 Nand Kishore is again contrary to the prosecution case. He has been very categorical in his statement that SC No. 95/08 12/19 State vs. Surinder Singh the fire was shot when there was a scuffle between the accused and the other persons who had snatched his pistol. This statement of PW4 Nand Kishore is the positive statement on behalf of the prosecution which is contrary to its own version. Thus, prosecution itself has come out with two versions of the incident. In the first version, the accused had fired shot at Vivek Chhabra. In the second version, there was a scuffle in which the fire was shot and the pistol was snatched from the accused before the fire was shot.
13. The statement of PW9 Mayank Lakhani, who also deposed that he had seen the incident is much closer to the version given by PW4 Nand Kishore. He had deposed that Vicky was grappling with the accused and the accused was trying to snatch his gun back from the Vicky. It means that the pistol of the accused was snatched by the complainant Vivek Chhabra from him.
14. This is the statement of the public witnesses who have deposed contrary to each other making the prosecution version of the case highly doubtful. The next category of witness is of the police officials. Even their statement fails to inspire much confidence. HC Vikram Singh is the first police official who had reached the spot. He is examined as PW12 and deposed that he was on patrolling duty at 1.30 am. He reached near SC No. 95/08 13/19 State vs. Surinder Singh Indochin Bar, Lado Sarai, New Delhi when he heard the noise of two gun shot. He rushed towards the Bar and found that accused Surinder Singh was standing there and was having a pistol in his hand. He apprehended the accused alongwith the pistol with the help of security guard of Indo chin Bar. First of all, it is not the case of the prosecution that the accused had made any attempt to run away. When he was standing with a pistol, where is the question of taking help of the security guard of Indochin Bar to apprehend him. He further deposed that when he heard the noise of the gunshot, he was at a distance of 50 meters from Indochin Bar. It means that immediately after hearing the noise of the gunshot, he came to the Bar by traveling a distance of 50 meters, but strangely enough, he had not met the injured. As per his deposition, within half a minute of hearing the gunshot, he had reached the spot.
15. The next police official who had reached the spot is HC Devender (now ASI) who is examined as PW15. His investigation is also not upto the mark. He deposed that he recovered the pistol from the accused and in the cross examination, he stated that it was handed over to him by Ct. Vikram Singh. He did not seal the pistol in a pulanda rather in a very casual manner, he kept it under his shirt and tucked under the belt and kept on roaming with the pistol tucked in this manner for more than one and a half hour. In the cross examination, he said that he did not send SC No. 95/08 14/19 State vs. Surinder Singh the pistol to FSL for taking chance prints. The reason for this given by him, was that it was a licensed pistol and it was presumed that it was with the accused at the time of firing. It was his duty to ascertain by obtaining the fingerprints from the pistol by sending the same to the FSL as to whose fingerprints were available on the same. But even this would not have given any worthwhile information because the manner in which he handled the weapon of offence, might have erased the fingerprint on pistol. Perhaps PW15 was not aware how to handle the weapon of offence. Now he is the Investigating Officer of the case but his cross examination has demolished his entire statement by raising a serious doubt about his manner of investigation. When he recommended registration of the case U/s 307 IPC against the accused, he must have acted upon some information which he found convincing to recommend the registration of the FIR and thereafter to arrest the accused through SI Aishvir Singh. He deposed that he cannot say that the injured Vivek Chhabra was standing near the Mercedes car and was intending to drink on the bonnet of the car and when the accused objected to this, a quarrel ensued and Vivek Chhabra was trying to snatch the pistol of the accused and in the process, the fire was shot accidentally. Thus, despite recommending the case for the offence U/s 307 IPC, he is not even ruling out the correctness of the version of the accused about the incident. SC No. 95/08 15/19
16. Inspector Aishvir Singh examined as PW8, had conducted investigation after registration of the case. As per his statement, he had met the injured Vivek Chhabra in the Safdarjung Hospital and he knew that the injured was shifted to Max Hospital on 12.01.2008. He did not collect the discharge slip of injured Vivek Chhabra from Safdarjung Hospital. He did not collect any medical record of injured Vivek Chhabra from the Max Hospital. Thus, a vital evidence about the injury on the person of Vivek Chhabra has been withheld from the Court by his inaction to collect the medical evidence. Now his further statement also raise a doubt in the mind of the Court whether there have been any attempt on the part of the Investigating Agency to hide certain facts from the Court. PW8 in his cross examination deposed that he does not know any P.D. Lakhani but at the same time, he said that he had given the information to him about the arrest of the accused. The incident had taken place near the car of PW9 Mayank Lakhani, but neither PW15 HC Devender Singh (now ASI) nor PW8 SI Aishvir Singh is aware as to how and when this car left the parking of the Indochin Bar and what was registration number of car. He has not made any effort to seize the said vehicle during the investigation. There is no investigation on this aspect. PW8 ASI Aishvir Singh has deposed that he came to know about the firing of two rounds from the witnesses Kuldeep (PW1) and Nand SC No. 95/08 16/19 State vs. Surinder Singh Kishore (PW4). If he had recorded the statement of Nand Kishore and had come to know about the incident, then why he had not acted on his statement in which he had categorically stated that there was a scuffle and the fire was shot during the scuffle. PW1 Kuldeep Tiwari from whom he came to know about the incident had deposed that when he came out of the Bar, the police had already apprehended the accused. So, PW1 Kuldeep Tiwari is not even the witness of the incident and he categorically denied that he had seen the accused quarreling with 2/3 boys and the accused had fired gunshot towards them.
17. Thus, the evidence by the prosecution is too uncertain and ambiguous to point out towards the guilt of the accused rather it would suggest that the true facts have not been brought before the Court and the investigation is not done in a proper manner.
18. Before parting with the judgment, I would also refer to the statement of PW7 Dr. Satyendra Prakash who prepared the MLC of injured Vivek Chhabra. In his cross examination, he deposed that the injuries in this case were sufficient to cause death in the ordinary course of nature. On what basis he said so was a matter of query for the Court. Therefore a court question was put to him, as to whether the injury in this case was of such a nature to cause death to which he replied that the injury was of such a nature as to cause death. He was questioned, on what SC No. 95/08 17/19 State vs. Surinder Singh basis he had opined the injury in this case sufficient to cause death. He deposed that he had given the statement as per the situation where the injury had caused a fracture as well as crushed the bone. The reason why he said that the injury was sufficient to cause death, is that in such a situation air embolism can occur which "may" cause death. There is a subtle but significant difference between an injury which is "sufficient" to cause death in "ordinary" course of nature and an injury which "may" cause death. As per statement of PW7, death might occur if "air embolism" occur in the crush bone. So injury by itself could not have caused death. He has in a very casual manner stated in the Court that the injury was sufficient to cause death in the ordinary course of nature.
19. Thus, the evidence on the record is not inspiring confidence and is full of inconsistencies and contradictions. Therefore, the accused deserves the acquittal in this case for the offence U/s 307 IPC. As regard the charge U/s 27 of the Arms Act, it is the case of the prosecution that the accused was having a valid license but he used the firearm in contravention of Section of the Arms Act. Since the prosecution has even failed to prove that the shots were fired by the accused from his firearm, there is no question of his using the "firearm" in contravention of Section 5 of the Arms Act. Hence, he deserves an acquittal for the offence U/s 27 SC No. 95/08 18/19 State vs. Surinder Singh of the Arms Act as well. The accused Surinder Singh is hereby acquitted of the charges U/s 307 IPC and Section 27 of the Arms Act. He is on bail. His bail bond stands cancelled and surety stands discharged. Documents of the surety, if any, be returned to him on proper receipt and identification.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 3rd October, 2011 Addl. Sessions Judge02: South
East Saket Court: New Delhi
SC No. 95/08 19/19