Delhi District Court
State vs . Sunil Kumar @ Sitte & Ors. on 7 December, 2011
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI COURTS : DELHI
(Sessions Case No. 136/07)
Unique ID case No. 02404R0123382006
State Vs. Sunil Kumar @ Sitte & Ors.
FIR No. : 251/06
U/s : 302/201/120B IPC and 25 & 27 Arms Act
P.S : Sultan Puri
State Vs. 1. Sunil Kumar @ Sitte
S/o Sh. Mahender Singh
R/o Village Prahladpur Bangar,
P.S: Bawana, Delhi.
2. Sandeep
S/o Sh. Satish
R/o Village Firozpur Bangar
Near Ochandi border, PS Kharkhoda,
District: Sonipat (Haryana)
3. Subhash Kaushik
S/o Sh. Raj Singh
R/o village Prahladpur,
Bawana, Delhi.
Date of institution of case06.5.2006
Date on which, judgment have been reserved21.11.2011
Date of pronouncement of judgment05.12.2011
S.C No. 136/07 1/44
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JUDGEMENT
In the present case on 18.2.2006, on receipt of DD No. 83B at PS Sultan Puri, Delhi, SI Saheb Singh alongwith Ct. Pawan Kumar went to Brahm Shakti hospital and in the meantime, Insp. Mohd. Iqbal, SHO also reached there alongwith his staff. In the hospital, two boys were found admitted and one of them was deceased Tarun, who was declared brought dead and the another was accused Sunil @ Sitte. In the hospital, no eye witness was found and doctor disclosed that the death of the deceased was due to bullet injuries. Thereafter, Insp. Mohd. Iqbal left the hospital alongwith his staff for the spot after leaving SI Saheb Singh in the hospital and directed him that as and when the family members of deceased Tarun come there, he should inform him. At the spot i.e. near H. No. F166, Krishan Vihar, Insp. Mohd. Iqbal came to know that the deceased Tarun was of village Prahladpur and he had received bullet injury in the marriage party. In the meantime, SI Saheb Singh gave information to Insp. Mohd. Iqbal that the family members of deceased had arrived in the hospital and accordingly he reached the hospital where one Mukesh Kumar uncle of the deceased met Insp. Mohd. Iqbal and got recorded his statement (Ex. PW4/A), wherein he stated that he was residing at the given address and on 18.2.2006 there was marriage of Ajay S/o Sh. Dalip Singh of his village and the Barat had come to Krishan Vihar, Sultan Puri from Prahladpur and there were many people in the Barat from his S.C No. 136/07 2/44 3 village, including his nephew Tarun @ Tannu (since expired) S/o Sh. Balwan Singh. He further stated that at about 8:30 PM, Barat assembled at main road, Krishan Vihar and started moving towards bride's place at M82, Krishan Vihar in a procession alongwith Baratis and bridegroom who was on a mare (ghori). In the marriage procession, people were dancing and at that time Sunil @ Sitte took out a country made pistol from the dub of his pant and fired in the air and thereafter Subhash also fired in the air with the same countrymade pistol. Sunil again loaded the said countrymade pistol and Tarun asked not to fire in the air as bullet can hit anyone but Sunil @ Sitte abused him & slapped him and when his nephew objected, a quarrel took place and Sunil @ Sitte shouted, "Tu Jiada Banta Hai, Tujhe Abhi Maja Chakhata Hun" and fired a bullet from the said countrymade pistol in the chest of Tarun as a result of which Tarun fell down and blood started oozing out from his chest. He also stated that there was commotion in the marriage procession and Sunil @ Sitte also sustained injuries in his hand due to the back fire of the countrymade pistol and thereafter Tarun was brought to hospital where he was declared brought dead by the doctor. He further stated that Sunil @ Sitte was a bully and he had also quarrelled with his family earlier and in order to take revenge, he fired bullet at his nephew Tarun from the said countrymade pistol and legal action may be taken against him.
On the basis of the aforesaid statement (Ex. PW4/A) of the complainant Mukesh Kumar, Insp. Mohd. Iqbal prepared a rukka (Ex. PW21/A) and sent the same S.C No. 136/07 3/44 4 to PS for registration of the case which resulted in the registration of the present case vide FIR No. 251/06 at PS Sultan Puri and the investigation of this case was assigned to Insp. Mohd. Iqbal.
During the course of the investigation, IO got the spot inspected from the crime team and lifted the exhibits & earth control from the spot and prepared the site plan. IO also prepared the inquest papers and got the postmortem conducted on the dead body of Tarun and thereafter the dead body was handed over to its relatives. During the course of the investigation, accusedSunil @ Sitte was arrested and he disclosed his involvement in this case and his blood stained clothes were also seized and thereafter accused Sunil @ Sitte led the police to the house of accused Ravinder (since expired), where the said accused Ravinder was apprehended and interrogated. He also disclosed his involvement in the present case. During the investigation, accused Sunil @ Sitte and Ravinder led the police to the house of accused Subhash where the said accused Subhash was also arrested and interrogated and on his disclosure another accused Sandeep was also arrested. Thereafter, all the above said accused persons led the police to the gali ration wali at the house of sister of accused Ravinder from where accusedSandeep got recovered four live cartridges and one countrymade pistol which were seized alongwith his blood stained shirt. During the interrogation, accused persons also pointed out the place of occurrence and thereafter they were medically examined and produced before the court concerned and sent to S.C No. 136/07 4/44 5 JC. During the investigation, IO also seized the DVD of the marriage procession and exhibits of the case were also sent to FSL, Rohini. Scaled site plan was also got prepared and after completion of the investigation, charge sheet was prepared and filed before the court of concerned Ld. MM.
2. After committal, accused Ravinder had expired as was evident from the order dated 01.12.2006 passed by the Ld. Predecessor of this court and accordingly the proceedings against the said accused stands abated.
Thereafter, arguments on the point of charge were heard and charge for committing the offences punishable u/s 302 IPC, u/s 27 of Arms Act and u/s 201 IPC was framed against accused Sunil @ Sitte by the Ld. Predecessor of this court, to which the said accused pleaded not guilty and claimed trial. In addition to this, charge for committing the offence punishable u/s336 IPC was framed against accused Subhash and charge for committing the offences u/s25 of Arms Act and u/s201 IPC was also framed against accused Sandeep by the Ld. Predecessor of this court. Accused Subhash and Sandeep pleaded not guilty to the respective charges framed against them and claimed trial.
3. In support of its case, prosecution has examined twenty six witnesses i.e S.C No. 136/07 5/44 6 PW1 to PW26.
PW1 Parmeet Kumar and PW2 Dalip Kumar resiled from their earlier statements and do not support the case of the prosecution.
PW3 Sushil Kumar deposed that he was running a photo studio in the name and style of M/s. Prince Photo Studio at Bhim Singh Market and on 18.2.2006 he went to the marriage of Ajay s/o Dalip Singh resident of village Prahladpur for videography of the marriage and accordingly he did the videography in the said marriage and there were some scenes of firing in the video film. He further deposed that police told him that someone had received bullet injuries in the marriage so they asked him to provide the original video cassette and thereafter the DVC (Ex. PDVC) was seized by the police vide memo Ex. PW3/A. He has also proved the CD in this regard as Ex. PCD.
PW4 Mukesh Kumar is the complainant in this case and prosecution is mainly relying upon his testimony to prove its case on record.
PW5 Dr. Manoj Kumar has proved the MLC No. 1450 dated 18.2.2006 of patient Tarun prepared by Dr. Mohd. Nabi as Ex. PW5/A. He has also proved the MLC No. 1451 dated 18.2.2006 of patient Sunil @ Sitte prepared by Dr. Mohd. Nabi as Ex. PW5/B. PW6 Ct. Pawan Kumar deposed that on 18.2.2006 on receipt of DD No. 83B, he alongwith SI Saheb Singh reached Brahm Shakti hospital where on the S.C No. 136/07 6/44 7 instructions of the IO, he took the dead body of Tarun to mortuary, SGM Hospital and he remained there for its safety. He further deposed that after postmortem, the dead body of Tarun was handed over to its relatives and after postmortem, doctor also handed over to him the exhibits and the same were taken into possession by the IO vide memo Ex. PW6/A. PW7 Ct. Sumer is the Special Messager who delivered the copies of FIR of the present case to the Ld. Area MM, Joint CP (North Range), DCP (NW) & ACP SubDivision Sultan Puri, Delhi.
PW8 SI Manohar Lal prepared the scaled site plan of the place of occurrence at the instructions of the IO and he has proved the said detailed scaled site plan as Ex. PW8/A. PW9 Ct. Dalbir was posted in mobile crime team (NW) and working as a photographer and he took the photographs at the spot from different angle and he has proved the said photographs as Ex. PW9/A1 to A4 and negatives thereof as Ex. PW9/B1 to B4.
PW10 HC Satbir deposed that on 23.3.2006 on the instructions of the IO, he took the exhibits of this case from MHCM to FSL Rohini vide RC Nos. 897/21/05, 898/21/05 and 899/21/05.
PW11 SI Nar Singh deposed that on 18.02.2006 he was posted as a S.C No. 136/07 7/44 8 Constable at PS Sultan Puri and on that day, he was on patrolling duty in the area of Sultan Puri and at about 10:0010:30 PM, he received telephonic message from PS to reach Bhram Shakti hospital, Budh Vihar and accordingly he went to the said hospital, where SI Saheb Singh met him and Insp. Mohd. Iqbal, SHO alongwith his staff also reached there. He further deposed that Insp. Mohd. Iqbal handed over one rukka to him and he took the same to PS for the registration of the case and after getting the case registered, he came back at the spot i.e. Rathi Market, Fblock alongwith rukka in original and carbon copy of FIR and handed over the same to the IO. PW11 further deposed that on 20.2.2006, he again joined the investigation in this case and took the accused Sunil Kumar to SGM hospital for his medical examination and after his medical examination, doctor handed over blood sample and sample seal and the same were taken into possession by the IO vide seizure memo Ex. PW11/A. PW12 Ct. Rupesh Kumar has proved the copy of the DD No. 83B dated 18.2.2006 as Ex. PW12/A. PW13 Rakesh Kumar Record Clerk, SGM hospital produced the summoned record i.e. MLC No. 2198 of accused Sunil and he has proved the attested photocopy of the said MLC as Ex. PW13/A. PW14 Insp. Ravi Singh deposed that on 18.2.2006, he was posted as I/c of Mobile Crime Team ( NW) and on that day on receipt of wireless call from control S.C No. 136/07 8/44 9 room (NW), he alongwith his team reached at the spot i.e in front of H. No. F166, Rathi Market, Krishan Vihar where he inspected the spot and prepared the inspection report which was Ex. PW14/B and handed over the same to the IO.
PW15 SI Saheb Singh deposed that on 18.2.2006 on receipt of DD No. 83B (Ex. PW12/A), he alongwith Ct. Pawan Kumar went to Brahm Shakti hospital and in the meantime, SHO Insp. Md. Iqbal also reached there alongwith his staff. He further deposed that in the hospital, two boys were found admitted and one of them was Tarun who was declared as brought dead and another was Sunil @ Satte. In the hospital, no eye witness met them. Thereafter, Insp. Md. Iqbal left the hospital alongwith his staff for the spot and he remained present in the hospital and after sometime, the relatives of deceased Tarun alongwith many other persons reached the hospital. Thereafter, SHO also reached the hospital and Insp. Md. Iqbal recorded the statement of Mukesh Kumar, uncle of deceased Tarun which was Ex. PW4/A and on its basis, Insp. Md. Iqbal prepared rukka which was sent to PS through Ct. Nar Singh. PW15 deposed that thereafter on the instruction of the SHO he got the dead body removed to Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi and thereafter he alongwith Insp. Mohd. Iqbal went to the spot i.e. F166, Krishan Vihar, Rathi market where Insp. Md. Iqbal got the spot inspected by the crime team and prepared inspection report and exhibits and earth control were also lifted from the spot. He S.C No. 136/07 9/44 10 further deposed that in the meantime, Ct. Nar Singh had also reached at the spot after getting the case registered alongwith carbon copy of FIR and original rukka and he handed over the same to the Insp. Md. Iqbal and thereafter, they all went in search of accused to village Prahladpur, but they could not be traced. PW15 deposed that thereafter they all reached Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi where the postmortem on the dead body of deceased Tarun was got conducted and the dead body was handed over to its relatives vide handing over memo Ex. PW15/A. After postmortem, doctor handed over one parcel containing clothes of deceased and one box containing viscera & one sample seal and the same were taken into possession vide seizure memo Ex. PW6/A. PW15 SI Saheb Singh further deposed that in SGM hospital, accused Sunil @ Satte was found admitted in injured condition and he was discharged at about 4:00 P.M from the hospital and thereafter, accused Sunil was interrogated by Insp. Mohd. Iqbal and during that course, accused Sunil made disclosure statement which was Ex. PW4/Y and he was arrested vide arrest memo Ex. PW4/C and his personal search was also conducted vide memo Ex. PW4/D. PW15 deposed that the blood stained clothes [Ex. P2 (colly.)] of accused were also taken into possession vide memo Ex. PW4/B and thereafter accused led the police party to village Prahladpur where on his pointing out, accused Ravinder (since expired) was arrested vide arrest memo Ex. PW4/E and his personal search was conducted vide personal search memo Ex. PW4/F and he also made the disclosure S.C No. 136/07 10/44 11 statement which was Ex. PW4/G. PW15 further deposed that thereafter accused Subhash and Sandeep were also arrested at the instance of accused Ravinder and Sunil vide arrest memos Ex. PW4/H and Ex. PW4/L and their personal search were also conducted vide memos Ex. PW4/J and Ex. PW4/M respectively and both accused Sandeep and Subhash were interrogated and during that course they made their disclosure statements, which were Ex. PW4/K and Ex. PW4/N respectively. PW15 deposed that thereafter accused Ravinder (since expired) led the police party to the house of his sister at Budh Vihar, where accused Sandeep got recovered one country made pistol and four live cartridges (Ex. P1 colly.) and the sketch of said country made pistol (Ex. PW4/Q) and sketch (Ex. PW4/P) of the live cartridges were prepared and same were taken into possession vide memo Ex. PW4/R. He further deposed that accused Ravinder (since expired) also got recovered one fired cartridge (Ex. P4) and the sketch (Ex. PW4/S) of the said fired cartridge was prepared and it was taken into possession vide memo Ex. PW4/T. He also deposed that all the four accused led them to the place of occurrence and pointed out the place of occurrence vide memos Ex. PW4/U, Ex. PW4/V, Ex. PW4/W and Ex. PW4/X respectively.
PW16 Dr. Binay Kumar deposed that on 19.2.2006, he examined accused Sunil vide MLC Ex. PW13/A and referred the patient to Dr. Virender SR (Ortho) who also examined accused Sunil and opined vide endorsement Ex.PW16/A that the injury on the person of Sunil was because of some kind of explosion. PW16 S.C No. 136/07 11/44 12 further deposed that on 20.2.2006, accused Sunil was produced before him and blood sample of the patient was taken, preserved and sealed in a vial with the seal of the hospital and he has proved the same as Ex. PW16/B. PW17 HC Kali Charan had recorded the FIR No. 251/06 of this case and has proved the carbon copy of the said FIR as Ex. PW17/D and endorsement on the rukka as Ex. PW17/A. He has also proved the DD No. 4A and DD No.5A as Ex. PW17/B and Ex. PW17/C respectively.
PW18 HC Sunil Dutt joined the investigation of this case alongwith the IO Insp. Mohd. Iqbal and SI Saheb Singh and his testimony is almost on the similar lines as that of PW15 SI Saheb Singh.
PW19 HC Satpal deposed that on 19.2.2006 and 21.2.2006, IO deposited the case property and exhibits of this case in the Malkhana and he made entries in this regard in register no. 19 and he has proved the copies of the same as Ex. PW19/A and Ex. PW19/B respectively. He further deposed that on 23.3.2006, the exhibits of this case were sent to FSL, Rohini through Ct. Satbir vide RC No. 897/21 (Ex. PW19/D), RC No. 898/21 (Ex. PW19/E) and RC No. 899/21 (Ex. PW19/F). PW19 has also proved the entries in register no. 19 in this respect as Ex PW19/C and he has also proved the photocopy of the acknowledgment receipts in this regard as Ex. PW19/G, Ex. PW19/H and Ex. PW19/J respectively.
PW20 Ct. Surender Singh joined the investigation in this case on S.C No. 136/07 12/44 13 18.2.2006 and he deposed that on that day, after leaving SI Saheb Singh in the hospital, he alongwith SHO and other police staff proceeded to Fblock, Krishan Vihar where they found that blood was lying in the gali and no eye witness was found there and after leaving him at the spot, SHO alongwith staff left for Brahm Shakti hospital. He further deposed that subsequently SHO reached the spot and crime team also reached and inspected the spot, exhibits and earth control were also lifted from the spot and thereafter IO directed him to go to Brahm Shakti hospital to keep a watch on Sunil Kumar. He further deposed that at Brahm Shakti hospital, Sunil was referred to SGM hospital and he accompanied Sunil there. PW20 also deposed that accused was discharged at about 4:00 P.M and he gave information in this regard and SHO came there and took Sunil into custody.
PW21 Insp. Mohd. Ibqal is the IO of this case and major portion of his testimony is almost on the similar lines as that of PW15 SI Saheb Singh. In addition to that, PW21 deposed that on 20.2.2006 the blood sample of accused Sunil was got taken from SGM hospital and the said blood sample and sample seal were seized vide memo Ex. PW11/A. He further deposed that on 21.2.2006, he alongwith Ct. Sunil went to Prince Photo Studio at village Prahladpur and made inquiries from him who produced one small DVD and thereafter the said DVD and its another copy were taken into possession vide memo Ex. PW3/A. He further deposed that during the course of investigation, the exhibits of this case were sent to FSL Rohini through Ct. Satbir S.C No. 136/07 13/44 14 Singh and photographs were collected by him from photographer and he also collected marriage card of Ajay and the said marriage card was Ex. PW21/F. He further deposed that on 24.3.2006, SI Manohar Lal took the rough notes and measurements at his instructions and prepared the scaled site plan and after completion of the investigation, the charge sheet was prepared and filed before the court concerned.
PW22 Dr. Adesh Kumar, Sr. Scientific Asstt. (Chemistry), FSL Rohini examined the exhibits of this case chemically and he has proved his detailed report in this regard as Ex. PW22/A. PW23 Sh. V.R. Anand, Sr. Scientific Officer (ballistics), FSL Rohini examined the countrymade pistol of .315 inch bore and four 8mm/.315 inch cartridges and he has proved his detailed report in this regard as Ex. PW23/A. He further deposed that one parcel sealed with the seal of VSN FSL Delhi was also received through the Biology Division for ballistic examination and on opening the said parcel, it was containing one full sleeves shirt, one pant one underwear, one pair of socks and one pair of shoes and he has examined the said exhibits and his detailed report in this regard was Ex. PW23/B. PW24 Sh. V. Shanker Narayanan, Sr. Scientific Assistant (Biology), FSL Rohini has examined the exhibits of this case biologically and he has proved his S.C No. 136/07 14/44 15 detailed biological report in this regard as Ex. PW24/A and detailed serological report as Ex. PW24/B. PW25 Dr. Manoj Dhingra conducted the postmortem on the dead body of deceased Tarun and he has proved the detailed postmortem report in this regard as Ex. PW25/A. PW26 Sh. Sagarpreet, IPS has given sanction u/s 39 of Arms Act and he has proved the said sanction as Ex. PW26/A.
4. After recording of prosecution evidence, statements of accused persons u/s 313 Cr. P. C. were recorded, wherein all the incriminating evidence was put to the accused persons which they denied as incorrect. AccusedSunil @ Sitte, Sandeep & Subash claimed to be innocent and stated that they wanted to lead evidence in their defence.
5. In their defence evidence, accused persons have examined one witness i.e. DW1 Smt.Savita.
6. I have heard arguments put forward by Ld. Addl. PP for State and Ld. defence counsel for the accused persons and have carefully gone through the record of the case.
S.C No. 136/07 15/44 16
7. It has been submitted by Ld. Addl. PP that in view of the evidence adduced on record, the prosecution has been successful in proving on record the guilt of the accused persons, beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that on the day of the incident, accused Sunil @ Sitte committed the murder of Tarun S/o Balwan Singh by firing a bullet upon him from a countrymade pistol which he was having in his possession without any permit or licence in violation of notification issued by the Delhi Administration and after committing the murder of Tarun, accused Sunil @ Sitte caused disappearance of weapon of offence i.e. countrymade pistol by handing it over to his coaccused Sandeep with intention to screen himself from legal punishment and on the day of incident, accused Subhash also fired a shot in the air from the said country made pistol in the procession of marriage of Ajay so as to endanger human life and personal safety of others and on 19.2.2006, accused Sandeep got recovered one country made pistol from the house of his sister at H. No. 171B, Budh Vihar, Delhi and he received or retained the said country made pistol in his possession without any permit or licence in violation of notification issued by the Delhi Administration and accused Sandeep hid the countrymade pistol which was used by accused Sunil while committing the murder of Tarun with intention to screen himself and his coaccused from legal punishment. Ld. Addl. PP also submitted that in view of S.C No. 136/07 16/44 17 the evidence and material brought on record by the prosecution, the guilt of the accused have been proved on record beyond the reasonable doubts and he prayed that accused persons may be convicted of the charged offences.
In support of his contentions, Ld. Addl. PP has relied upon the case law cited as 1991 Crl.LJ 2563, AIR 2006 SC 951 & 2011 IV AD DHC 421.
On the other hand, it has been submitted by the Ld. defence counsel that prosecution has miserably failed to prove the guilt of the accused beyond the reasonable doubts. It is further submitted that the evidence brought on record by the prosecution was self contradictory and there were various loopholes in the testimonies of various prosecution witnesses, which entitles the accused to the benefit of doubt. Ld. defence counsel submitted that there were material contradictions, discrepancies and improvements in the testimonies of various prosecution witnesses, which were the fatal to the case of the prosecution. It is further submitted that in the instant case, prosecution was primarily relying upon the testimony of PW4 Mukesh Kumar, however the said witness lacks credibility as he has made inconsistent and contradictory statements in his examination in chief, cross examination by the Ld. Addl. PP, cross examination by the Ld. Defence counsel and thereafter reexamination by the Ld. Addl. PP and as such it would not be safe to rely upon the evidence of PW4 to record conviction against the accused persons. It is also submitted that S.C No. 136/07 17/44 18 material prosecution witnesses i.e PW1 Parmeet Kumar and PW2 Dalip Kumar have resiled from their earlier statements and do not support of the case of the prosecution and this creates grave doubts in the story being put forward by the prosecution. It is submitted that accused Sunil @ Sitte was one of the members of the procession of Barat on the day of incident and in that procession, some persons were having country made pistol and they fired in the air while Barat procession was proceedings and accused Sunil took the country made pistol from one of those persons and fired in the air one or two shots and one of those shots back fired and due to that he sustained injury in his hand and some one took him to Brahm Shakti Hospital and got him admitted there. It is submitted that accused had not caused any bullet injury from any pistol to Tarun and there was no altercation between him and deceased Tarun in Barat Procession nor accused was having any previous enmity with the deceased. It is further submitted that accusedSunil did not hand over any country made pistol to accused Sandeep nor did accused Sandeep hid any such pistol to screen themselves and the allegations in this regard were false & fabricated. It is submitted that the accused persons have been got falsely implicated in this case by complainant, although they have nothing to do with the offences alleged in the instant case. Ld. defence counsel also submitted that the prosecution has miserably failed to prove the guilt of the accused on record, beyond the reasonable doubts and he prayed that accused persons may be acquitted of the charged offences. S.C No. 136/07 18/44 19
In support of his contentions, Ld. defence counsel has relied upon the case law cited as 1998 Crl.LJ 3604, 1998 Crl.LJ 3628, 2009 CCC SC 327, 1980 Cr. LJ 1397, 2011 Cr,.LJ 2119, AIR 2002 SC 1169, 2002 Cr.LJ 1322 & 1993 Cr.LJ 3673.
8. I have carefully considered the submissions made by Ld. Addl. PP for state and Ld. defence counsel for the accused persons and have carefully gone through the record of the case. I have carefully considered the evidence adduced on behalf of the prosecution in support of its case and by the accused persons in their defence. I have also carefully perused the case law relied upon by the Ld. Addl. PP for State and Ld. defence counsel.
9. In the present case, accused Sunil @ Sitte has been charged for committing the offences punishable u/s 302 IPC, u/s 27 of Arms Act and u/s 201 IPC. In addition to this, accusedSubash has been charged for committing offence punishable u/s 336 IPC and accused Sandeep has been charged for committing offence punishable u/s 25 of Arms Act and u/s 201 IPC.
In brief, the case of the prosecution is that on 18.2.2006 at about 9:30 P.M in gali near H. No. F166, Krishan Vihar, Rathi Market, Sultan Puri, Delhi within S.C No. 136/07 19/44 20 the jurisdiction of PS Sultan Puri, accusedSunil @ Sitte committed the murder of Tarun S/o Balwan Singh by firing a bullet upon him from a countrymade pistol which he was having in his possession without any permit or licence in violation of notification issued by the Delhi Administration. It is also alleged that after committing the murder of Tarun, accused Sunil @ Sitte caused disappearance of weapon of offence i.e. countrymade pistol by handing it over to his coaccused Sandeep with intention to screen himself from legal punishment. It is further stated that on the day of incident accused Subhash also fired a shot in the air from the said countrymade pistol in the procession of marriage of Ajay in such manner so as to endanger human life and personal safety of others. It is stated that on 19.2.2006, accused Sandeep got recovered one countrymade pistol from the house of the sister of accused Ravinder ( since expired) at H. No. 171B, Budh Vihar, Delhi and he received or retained the said countrymade pistol in his possession without any permit or licence in violation of notification issued by the Delhi Administration. It is also allged that accused Sandeep hid the countrymade pistol which was used by accused Sunil while committing the murder of Tarun with intention to screen himself and his coaccused from legal punishment.
10. In the present case, prosecution is primarily relying upon the testimony of PW4 Mukesh Kumar to prove its case on record.
S.C No. 136/07 20/44 21
In order to properly appreciate the testimony of PW4 Mukesh Kumar, it would be appropriate to reproduce the relevant portions of his testimony.
In his examinationinchief, PW4 Mukesh Kumar deposed that on 18.2.2006, there was a marriage of one Ajay S/o Sh. Dalip Singh of their village and the Barat went to Krishan Vihar, Sultan Puri from village Prahladpur and there were many people in the Barat from their village including himself and his nephew Tarun @ Tannu (since deceased) S/o Sh. Balwan Singh. He further deposed that the Barat reached at Krishan Vihar at about 8:30 P.M and Barat was proceeding towards the house of Sh. Samunder Singh, father of bride at H. No. 82, Krishan Vihar from main road and the Baratis were dancing and enjoying themselves and Groom was on mare (Ghori). PW4 deposed that some young persons of their village, namely Sunil @ Site, Subhash, Ravinder @ Bholu ( since expired) and Sandeep were also present and accused Sunil took out a Katta from his dub (inner side of his pant) and started firing in the air and accused Subhash also started firing from the said Katta after taking the same from accused Sunil and accused Sandeep & Ravinder also started firing in the air with the same Katta. He further deposed that his nephew Tarun (since deceased) objected and asked the accused persons not to do the same and due to this fact, a quarrel took place between them. PW4 deposed that accused Sunil started abusing his nephew and he caught hold of him by his neck and also slapped him and S.C No. 136/07 21/44 22 when his nephew objected the act of accused Sunil, quarrel reached at peak and on this, accused Sunil told his nephew Tarun that " Tu Jiada Banta Hai, Tujhe Abhi Maja Chakhata Hun" and in the meanwhile, accused Sunil fired bullet upon the chest of his nephew Tarun with the same Katta which was already loaded and immediately he fell down on the ground due to bullet shot and blood was oozing out from his chest. He further deposed that thereafter, Groom was taken to the house of bride and his nephew Tarun was taken to Braham Shakti hospital in the vehicle of Parmit of their village, where his nephew was declared brought dead by the doctor. Police reached at the hospital and dead body of his nephew was sent to mortuary, Sanjay Gandhi Memorial hospital and his statement was recorded which was Ex. PW4/A. PW4 deposed that from the Brahm Shakti hospital, he accompanied the IO and reached at Krishan Vihar, the place of incident where on his pointing out, IO prepared site plan. He further deposed that at Sanjay Gandhi Memorial hospital, the clothes of accused Sunil @ Sitey were kept in a pullanda and taken into possession vide seizure memo Ex. PW4/B. PW4 deposed that after postmortem, the dead body of his nephew was handed over to his father Sh. Balwan Singh and at Sanjay Gandhi Memorial hospital, accused Sunil was interrogated and he was arrested vide arrest memo Ex. PW4/C and his personal search was conducted vide memo Ex. PW4/D. PW4 further deposed that thereafter, accused Ravinder was arrested on the pointing out of accused Sunil vide arrest memo Ex. PW4/E and his personal search was conducted vide S.C No. 136/07 22/44 23 memo Ex. PW4/F and disclosure of accused Ravinder was recorded by the police which was Ex. PW4/G. PW4 deposed that accused Subhash was arrested on the pointing out of accused Sunil vide arrest memo Ex. PW4/H and his personal search was conducted vide memo Ex. PW4/J and disclosure of accused Subhash was recorded by the police which was Ex. PW4/K and thereafter, accused Sandeep was arrested on the pointing out of accused Sunil vide arrest memo Ex. PW4/L and his personal search was conducted vide memo Ex. PW4/M and disclosure of accused Sandeep was recorded by the police which was Ex. PW4/N PW4 deposed that thereafter, accused Sandeep got recovered Dessi Katta and four live cartridges from the house of sister of coaccused Ravinder and the sketch of live cartridges was prepared which was Ex. PW4/P and the sketch of Desi Katta was also prepared which was Ex. PW4/Q and the said country made pistol and four live cartridges were taken in to possession vide seizure memo Ex. PW4/R. He further deposed that accused Ravinder got recovered one used cartridge from the house of his sister and its sketch (Ex.PW4/S) was prepared and the said used cartridge was taken in to possession vide seizure memo Ex. PW4/T. PW4 deposed that all the four accused namely Sunil, Ravinder, Subhash and Sandeep pointed out the place of incident vide pointing out memos Ex. PW4/U to Ex. PW4/X. PW4 has proved the disclosure statement of accused Sunil as Ex. PW4/Y and deposed that blood stained shirt of accused Sandeep was also taken in to possession vide seizure memo Ex. PW4/Z. In S.C No. 136/07 23/44 24 reply to a leading question by the Ld. Addl. PP, PW4 stated that accused Sunil sustained injuries in his hand after he fired with Dessi Katta towards Tarun due to back fire and he also admitted that the various pulandas were sealed by the police with the seal of MI.
It is pertinent to note that on the relevant date i.e on 11.8.2009, the recording of further evidence of PW4 was deferred at the request of Ld. Addl. PP for the State as the complete case property was not brought. Thereafter, PW4 did not appear on the next date of hearing and on the subsequent date of hearing i.e 17.11.2009, PW4 was further examined and on that day, he was shown the case property i.e one country made pistol, two live cartridges and two used cartridges and he stated that the aforesaid country made pistol, live cartridges and used cartridges were not the same, which were got recovered by accused Sandip. PW4 was further shown the blood stained clothes i.e. one shirt , one baniyan, one pant and he stated that he could not say whether the said clothes were the same which accused Sunil was wearing at the time of incident. PW4 was shown the blood stained shirt and has stated that he cannot say whether the said clothes were the same which accused Sandip was wearing at the time of incident. PW4 was also shown the used cartridge and he stated that the said used cartridge was not the same which was got recovered by the accused Ravinder (since expired).
Since PW4 was resiling from his earlier statement regarding the case S.C No. 136/07 24/44 25 property, Ld. Addl. PP for the State sought and was given permission to cross examine this witness. In his crossexamination by the Ld. Addl. PP, PW4 stated that he was having a bank account and as and when he deposit or withdraw the money from his bank account, he fill up the form carefully and signed the same after going through the same. He denied the suggestion that he was intentionally not identifying the clothes and other case property as he have been won over by the accused persons, after his deposition in the court on the previous dates of hearing. PW4 denied the suggestion that he had compromised the matter with the accused persons being a co villager after his deposition in the court or that he have been won over by the accused persons and was not identifying the case property deliberately in order to save the accused persons from the clutches of law. PW4 also denied the suggestion that he was deposing falsely in respect of the case property.
Thereafter, PW4 was crossexamined by the defence and in his cross examination by the Ld. Defence counsel, PW4 Mukesh Kumar stated that it would have taken 15 minutes for the Barat to reach Krishan Vihar from the place where it assembled at main road Pooth Kalan at about 8:00 P.M and there were about 200250 persons in the Barat and Brass Band was also there. He further deposed that the name of the father of bridegroom was Dalip and he was having good relations with them. PW4 admitted that the Band was in front of the Barat and mare having the bridegroom was behind the Barat and the Band was followed by the drum beaters and S.C No. 136/07 25/44 26 the people were dancing in front of the Band and as well as in front of the drum beaters and they were followed by the Baraties up to the mare with bridegroom. PW4 deposed that he was accompanied by Dalip father of the bridegroom at that time and the distance between the band and mare was about 200 mtrs., and Dalip was near the mare with bridegroom. PW4 admitted that there were 23 turns of the Gali on the way from the said place to 82, Krishan Vihar and there was no fire works . He further admitted that there were residential houses on both sides of the gali through which the Barat was proceeding and people residing in those houses were looking at the Barat. The site plan Ex. PW4/DA was not prepared in his presence although he was taken to the spot where the blood was lying scattered and he had not seen the bullet being fired by accused Sunil at deceased and volunteered to state that he was not present there . PW4 admitted that persons who were dancing were near the band and he was present near the mare having bridegroom. He further admitted that when the Barat reached the bride's place, he came to know that a bullet had hit his nephew Tarun and he had been removed to hospital and thereafter he went to the hospital , from where he went to his house. PW4 deposed that thereafter the police met me at about 23 A.M in the night and he had stated to the police that he was at a distance of about 200 mtrs from the spot of occurrence and he had not seen the bullet being fired by accused Sunil at his nephew. He further deposed that police obtained his signatures on various memos and statement at about 6:00 A.M on 19.2.2006 and he S.C No. 136/07 26/44 27 admitted that his signatures were taken simultaneously on various documents / memos and as such he did not got an opportunity to read the same. PW4 admitted that he used to be called to the P.S and was made to read his statement and stated that the police had detained about 25 persons after the incident and whosoever visited the Braham Shakti Hospital after the incident was detained by the police.
Since this witness i.e PW4 Mukesh Kumar had made contradictory statement in his examinationinchief recorded on previous date of hearing and his cross examination conducted by the Ld. defence counsel, Ld. Addl. PP sought and was given permission to reexamine this witness and in his reexamination by the Ld. Addl. PP, PW4 Mukesh Kumar admitted that his examinationinchief was recorded in the court in this case on 11.8.2009. He denied the suggestion that he made the statement on the said date with his own free will and without any pressure and volunteered to state that he made the statement at the instance of police on that day. PW4 stated that he did not made any complaint regarding the pressure being exerted by the police to make the statement either before the court or before the Sr. Officer of the police. He denied the suggestion that on that day he was deposing falsely at the instance of the accused persons. PW4 denied the suggestion that on the date of incident, he saw the accused Sunil fired bullet upon the chest of his nephew Tarun. He further denied the suggestion that police prepared site plan at his instance S.C No. 136/07 27/44 28 or that he was near his nephew Tarun and he was the eye witness of the incident. PW4 also denied the suggestion that he was deliberately deposing false facts before the court in order to save the accused persons as he have been won over by them after recording his statement in the court on 11.8.2009.
11. In the instant case, PW4 Mukesh Kumar was the star witness of the prosecution and he was examined on 11.8.2009, on which date his examinationin chief to a large extent was recorded and therein he fully supported the case of the prosecution. On 11.8.2009 , further examination of this witness i.e PW4 was deferred at the request of Ld. Addl. PP as the complete case property was not brought on that day . On the next date of hearing i.e 01.10.2009 this witness i.e PW4 did not appear despite service and accordingly, bailable warrants were issued against him for the subsequent day of hearing i.e 17.11.2009 and on that day, PW4 was further examined and was shown the case property i.e one country made pistol , two live cartridges and two used cartridges and he stated that the said country made pistol , live and used cartridges were not the same which were got recovered by the accused, he was also shown the blood stained clothes of accused Sunil and Sandeep and he stated that he could not say whether the same were being worn by the said accused persons at the time of incident. Thereafter Ld. Addl.PP sought and was given permission to cross examine this witness i.e PW4 wherein he denied the suggestion that he was deposing S.C No. 136/07 28/44 29 falsely in respect of the case property. After cross examination by the Ld. Addl. PP , PW4 was cross examined by the Ld. defence counsel and since this witness i.e PW4 Mukesh Kumar had made contradictory statements in his examination in chief recorded on the previous date of hearing and his crossexamination conducted by the Ld. defence counsel, Ld. Addl. PP for State sought and was given permission to re examine the witness, wherein he did not support the case of the prosecution.
It is well settled that evidence of a witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross examine him and in fact the evidence of such a witness can be accepted to the extent his version was found to be dependable on a careful scrutiny thereof as has been laid down by the Hon'ble Supreme Court of India in the case cited as AIR 2006 SC 951.
In the aforesaid case titled as "Radha Mohan Singh @ Lal Saheb & Ors. Vs. State of U.P' (cited as AIR 2006 SC 951)," it has been laid down by the Hon'ble Supreme Court of India that : " It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof."
S.C No. 136/07 29/44 30
Further, in the case titled as " Brij Pal Singh (Shri) Vs. CBI ( cited as 2011 IV AD(CRI.) (DHC.) 421), it has been laid down by the Hon'ble High Court of Delhi that : " On merits, the learned counsel for appellant Mr. Pradeep Kumar Arya has mainly relied upon PW1, PW3 and PW8 as they were declared hostile. The PW1 complainant has completely taken uturn from what he had deposed in the examinationinchief, however, the learned counsel could not find out any lacuna in the deposition of PW1 in examination inchief. Therefore, the trial judge has not relied upon what he had deposed in crossexamination. It is a settled law that if any witness has taken complete uturn from what he had deposed in examinationinchief, then the chief examination part of the witness cannot be thrown out."
In the aforesaid case, it has also been laid down by the Hon'ble High Court of Delhi that : " The law is settled that even in a criminal prosecution, when a witness is crossexamined and contradicted with the leave of the court by the party calling, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case, whether as a result of such crossexamination, the witness stands thoroughly discredited or can still be believed in regard to a part of the S.C No. 136/07 30/44 31 testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it."
In view of the above, it is clear that the evidence of the hostile witness can not be treated as effaced or washed off the record altogether merely because prosecution chose to treat him as hostile and cross examined him and the evidence of such a witness can be acted upon to the extent, his version is found to be dependable on a careful scrutiny thereof.
In the present case, in his examination in chief recorded on 11.9.2009, PW4 Mukesh Kumar has fully supported the case of the prosecution and specifically stated that in the marriage procession, accused Sunil took out a Katta from his dub and started firing in the air and accused Subhash, Sandeep and Ravinder also did so and his nephew Tarun (since deceased) objected and asked the accused persons not to do the same and due to this fact, a quarrel took place between them and accused Sunil started abusing his nephew and he caught hold of him by his neck and also slapped him and when his nephew objected the act of accused Sunil, quarrel reached at peak and on this, accused Sunil fired bullet upon the chest of his nephew Tarun S.C No. 136/07 31/44 32 with the same Katta which was already loaded and immediately he fell down on the ground due to bullet shot and blood was oozing out from his chest.
After the recording of the major portion of his examination in chief on 11.09.2009, this witness i.e PW4 was further examined, crossexamined & re examined on 17.11.2009 and during this period, it appears that something transpired which made him shift his stand in respect of the version of the incident deposed by him during his examinationinchief and his testimony on 17.11.2009 appears to be an attempt to wriggle out of what he had stated earlier in his examinationinchief on 11.9.2009. Further, from the material on record, the version of the incident as narrated by PW4 in his examinationinchief recorded on 11.9.2009 appears to be correct as that version is also corroborated by the other evidence brought on record by the prosecution . It is pertinent to note that in the instant case, during the examination of PW3 Sushil Kumar (Videographer), DVC of the marriage procession was played in the court and it was seen in the said DVC that a marriage procession was going on and during the said marriage procession, accused Sunil @ Sitte was seen firing in the air and thereafter opening country made pistol and after some time he was again seen loading the country made pistol and firing with the same in the air twice. Further, the injuries on the hands of accusedSunil were also found due to the back fire by the said country made pistol as was evident from his MLC, Ex PW13/A. In addition to this , PW23 Sh. V.R. Anand, Sr. Scientific Officer (ballistics) deposed S.C No. 136/07 32/44 33 that the clothes of the deceased Tarun were also received by him for ballistic examination and out of them , the shirt ( Ex. C1) was having hole marked as H1 on the front side and hole marked as H2 on the right sleeve of the shirt and he examined the said exhibits and on the basis of the physical examination, microscopic examination and gun shot residue particle analysis, the hole marked as H1 and H2 on the shirt marked Ex.C1 could have been caused by the bullet discharged through the fire arm. Further, PW5 Dr. Manoj Kumar who conducted the postmortem on the dead body of Tarun had also opined that the cause of death was hemorrhagic shock and asphyxia subsequent to fire arm injury to chest and he also found that all the injuries on the dead body were antemortem in nature.
Hence, in view of the above, prosecution have been able to prove on record beyond the reasonable doubts that on the day of incident, accusedSunil @ Sitte caused the death of Tarun S/o Balwan Singh by firing a bullet upon him from a country made pistol which he was having in his possession.
Now the question arises whether for the aforesaid act, accused Sunil @ Sitte can be held liable u/s 302 IPC or is he liable only u/s304 IPC as during the course of arguments, it has also been submitted by Ld. defence counsel that accused Sunil @ Sitte can be held liable only u/s304 IPC as there was a sudden fight and as such the case was covered by Exception 4 to Section300 IPC, whereas on the other hand , it has been submitted by the Ld. Addl.PP that in view of the evidence on S.C No. 136/07 33/44 34 record, the accused Sunil @ Sitte was liable to be convicted u/s 302 IPC.
Exception 4 to section300 IPC provides that 'Culpable homicide' is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and the Explanation thereto provides that it is immaterial in such cases which party offers the provocation or commits the first assault.
In the case titled as "Sandhya Jadhav VS. State of Maharashtra ( reported as (2006) 4 SCC 653)", it has been laid down by the Hon'ble Supreme Court of India that : " For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation , in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
The fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception , after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, S.C No. 136/07 34/44 35 there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do".
In the aforesaid case, it has been further laid down by the Hon'ble Supreme Court that :
" The help of Exception 4 can be invoked if death is caused
(a) without premeditation; (b)in a sudden fight ;(c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found" .
In view of the above, in order to bring a case within the purview of Exception 4 to Section 300 IPC, the following ingredients are required to be fulfilled:
(i) it was a sudden fight
(ii) there was no premeditation
(iii) the act was done in a heat of passion and
(iv) the assailant had not taken any undue advantage or
acted in a cruel manner
In the instant case, it has been established on record that on the day of S.C No. 136/07 35/44 36 the incident, in the marriage procession, accused Sunil took out a Katta from his dub and started firing in the air and other accused also did so and Tarun (since deceased) objected and asked the accused persons not to do the same and due to this fact, a quarrel took place between them and accused Sunil started abusing Tarun and he caught hold of him by his neck and also slapped him and when Tarun objected the act of accused Sunil, quarrel reached at peak and on this, accused Sunil fired bullet upon the chest of his nephew Tarun with the same Katta which resulted in the death of Tarun . In these circumstances, in view of the evidence on record, it is clear that there was no premeditation on the part of the accused to inflict the injuries on the deceased and the bullet was fired upon the deceased by the accused in the heat of passion upon a sudden fight and from the material on record, it does not appear that the accused have taken any undue advantage or acted in a cruel manner. In these circumstances, in my considered opinion, the act committed by the accused Sunil @ Sitte falls within the ambit of Exception4 to Section 300 of IPC and as such the said accused can only be held liable for committing the offence punishable u/s304 ( PartI) IPC as the act, by which the death of the deceased was caused has been done by the accused with the intention to cause death or causing such bodily injury as was likely to cause death.
12. It has also been submitted on behalf of the accused persons that material S.C No. 136/07 36/44 37 prosecution witnesses i.e PW1 Parmeet Kumar & PW2 Dalip Kumar resiled from their earlier statements and do not support of the case of the prosecution and this creates grave doubts in the story being put forward by the prosecution, however the said submissions made on behalf of the accused are devoid of any merits as the perusal of the record reveals that in view of the evidence brought on record, the prosecution has been successful in bringing home the guilt against accused Sunil @ Sitte, beyond the reasonable doubts. Further, the conviction of the accused can be based on the testimony of single eye witness even if the remaining material witnesses have turned hostile as has been laid down by the Hon'ble Supreme Court of India in the case reported as 1996 Crl.L.J 889.
In the aforesaid case titled as "Kartik Malhar Vs. State of Bihar (reported as 1996 Crl.L.J. 889)", it has been laid down by the Hon'ble Supreme Court of India that : " We have already discussed above that it is open to the courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eyewitness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eyewitnesses. The instant case, it may be pointed out, does not strictly fall within S.C No. 136/07 37/44 38 the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. Here three of the witnesses were produced but two of them turned hostile leaving the third alone and , therefore , on the principles already discussed, if the remaining eye witness is found to be trustworthy, it becomes the duty of the Court to convict the accused".
In the instant case also, in view of the earlier discussions, the examinationinchief of PW4 Mukesh Kumar has been held to be acceptable and the version of the incident given by him therein has also been corroborated to a large extent by the other evidence brought on record by the prosecution. Further, the weapon of offence i.e country made pistol ( Ex. P1) have also been got recovered by the accused and the injuries mentioned in the postmortem report could have been caused by said weapon of offence. In fact, PW23 Sh. V.R.Anand Sr. Scientific Officer ( Ballistics) have opined that the hole marked as H1 and H2 on the shirt ( Ex. C1) of the deceased could have been caused by the bullet discharged through the fire arm.
Hence, in view of the above, prosecution have been able to prove on record beyond the reasonable doubts that on the day of incident, accused Sunil @ Sitte caused the death of Tarun S/o Balwan Singh by firing a bullet upon him from a S.C No. 136/07 38/44 39 country made pistol which he was having in his possession and as such the said accused has rendered himself liable for the offence punishable u/s 304 ( PartI) IPC .
13. In the present case, the accusedSunil @ Sitte has also been charged for committing the offence punishable u/s 27 of Arms Act . In the instant case, in view of the earlier discussion, it is clear that prosecution has been successful in proving on record, beyond the reasonable doubts, that on the day of incident, accused Sunil @ Sitte caused the death of Tarun S/o Balwan Singh by firing a bullet upon him from a country made pistol which he was having in his possession. Further, from the material on record, it is also evident that the accused was possessing the said country made pistol ( Ex.P1) without any permit or license in contravention of the notification issued by Delhi Administration, Delhi and he used the said country made pistol in the commission of offence in this case. In these circumstances, the accusedSunil @ Sitte has also rendered himself liable for the offence punishable u/s 27 of Arms Act.
14. In the instant case, accused Sunil @ Sitte and Sandeep have also been charged for committing the offence punishable u/s 201 IPC.
Section201 of the IPC deals with causing disappearance of evidence of S.C No. 136/07 39/44 40 offence or giving false information to screen offender. It reads as under:
201. Causing disappearance of evidence of offence, or giving false information to screen offender: " Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life if punishable with less than ten years imprisonment In the instant case, from the material on record, it is evident that accused Sunil @ Sitte caused the death of Tarun by firing a bullet upon him from a country made pistol which he was having in his possession and after the commission of the said offence accused Sunil @ Sitte caused disappearance of weapon of offence i.e country made pistol by handing it over to his coaccused Sandeep and the said accused S.C No. 136/07 40/44 41 concealed the aforesaid weapon of offence at the house of the sister of their co accused Ravinder (since expired ) in Budh Vihar , Delhi . It is pertinent to note that the said weapon of offence i.e country made pistol and cartridges, Ex. P1 (colly.) were got recovered by the accused persons from the house of the sister of accused Ravinder (since expired) and the same were seized vide memo Ex. PW4/R. It is pertinent to note here that aforesaid exhibits i.e country made pistol and cartridges were examined by PW 23 Sh. V.R.Anand, Sr. Scientific Officer ( Ballistics) and on examination, the said country made pistol was in working order and test fire was conducted from it successfully. Further, it was also found that cartridge case ( fired empty cartridge) marked as Ex. CE1 has been fired through the aforesaid country made pistol.
To dispute the aforesaid recovery, in their DE, the accused persons have examined DW1 Smt. Savita and as far as the evidence of the said witness i.e DW1 is concerned, her testimony does not inspire confidence as there are material contradictions in her testimony and the said witness also appear to be an interested witness. Further, in the present case, DW1 had admittedly not made any complaint to the higher police officers or any other authority regarding the arrest of her brother and other covillagers in a false case and it has also not been explained by DW1 as to why she did not lodge any such complaint with the senior police officers or other S.C No. 136/07 41/44 42 authorities about the alleged false implication of the accused, which would have been normal human conduct on her part in the facts of the present case. In these circumstances, the testimony of DW1 does inspire confidence and in my considered opinion, the same is not of any help to the accused persons in the fact and circumstances of the instant case.
Hence, in view of the above and in view of the material on record, it has been established that after causing the death of Tarun , accused Sunil @ Sitte handed over the weapon of offence i.e country made pistol to his coaccused Sandeep , who concealed the said weapon of offence at the house of sister of their other coaccused Ravinder ( since expired ) with intention to cause the disappearance of the evidence of commission of the aforesaid offences and to screen themselves from legal punishment and as such both the accused Sunil @ Sitte and Sandeep have also rendered themselves liable for the offence punishable u/s 201 IPC.
15. In the present case, accused Sandeep has also been charged for committing the offence punishable u/s 25 of Arms Act, however the perusal of the testimonies of various prosecution witnesses reveals that the said charge have not been proved on record against the said accused. In fact from the material on record, it S.C No. 136/07 42/44 43 is evident that prosecution has failed to establish its case in this regard. In these circumstances, in my considered opinion, the prosecution has failed to prove the charge for committing the offence punishable u/s25 of Arms Act against the said accused, beyond the reasonable doubt. Accordingly, I acquit the accusedSandeep of the offence punishable u/s 25 of Arms Act, giving him the benefit of doubt.
16. In the instant case, accused Subhash has also been charged for committing the offence punishable u/s336 IPC. In this case, it has been stated on behalf of the prosecution that on the day of incident, accused Subhash also fired a shot in the air from the aforesaid country made pistol in the procession of marriage of Ajay in such a manner so as to endanger human life and personal safety of others and the said factum has been established on record by PW4 Mukesh Kumar, who in his examination in chief specifically stated that accused Sunil took out a Katta from his dub (inner side of his pant) and started firing in the air and accused Subhash also started firing from the said Katta after taking the from accused Sunil. The said fact has also been corroborated on record from the contents of DVC , which was played in the court during the evidence of PW3 Sushil Kumar ( Videographer ) and therein during the marriage procession, accused Subhash was seen firing in the air from a country made pistol. In these circumstances, in view of the material on record, the S.C No. 136/07 43/44 44 accusedSubhash has also rendered himself liable for the offence punishable u/s 336 IPC.
17. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I hold the accused Sunil @ Sitte guilty of the offences punishable u/s304 ( PartI) IPC, u/s201 IPC and u/s 27 of Arms Act and convict him accordingly.
Further, accused Sandeep is held guilty and convicted of the offence punishable u/s 201 IPC.
Accused Subhash Kaushik is also held guilty and convicted of the offence punishable u/s 336 IPC.
Now to come up for arguments on the point of sentence on 07.12.2011.
(Announced in the open ) (Paramjit Singh)
(court on 05.12.2011) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 136/07 44/44
45
FIR No.251/06
P.S. Sultan Puri
05.12.2011
Present: Addl.PP for the State.
Accused Sunil @ Site in JC and accused Sandeep & Subhash on bail with their counsel Sh. B.B.Sharma.
Accused Ravinder has expired.
Vide separate judgment, announced in the open court, accused Sunil @ Sitte has been convicted u/s304 ( PartI) IPC, u/s201 IPC and u/s 27 of Arms Act. Further, accused Sandeep has been convicted u/s201 IPC and accusedSubhash Kaushik has also been convicted u/s 336 IPC.
Now to come up for arguments on the point of sentence on 07.12.2011, as requested.
(Announced in the open ) (Paramjit Singh)
(court on 05.12.2011) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 136/07 45/44
46
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI COURTS : DELHI (Sessions Case No. 136/07) Unique ID case No. 02404R0123382006 State Vs. Sunil Kumar @ Sitte & Ors.
FIR No. : 251/06
U/s : 304 ( PartI)/201/336 IPC and 27 Arms Act P.S : Sultan Puri ORDER ON THE POINT OF SENTENCE
In the present case, convict Sunil @ Sitte has been convicted u/s304 ( PartI) IPC, u/s201 IPC and u/s 27 of Arms Act. Further, convict Sandeep has been convicted u/s201 IPC and convict Subhash Kaushik has also been convicted u/s 336 IPC.
I have heard the arguments on the point of sentence put forward by Ld.Addl. PP for the State and Ld. Defence counsel for the convicts.
2. It has been submitted by the Ld. Addl.PP that in view of the nature of offences, the convicts do not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convicts. S.C No. 136/07 46/44 47
3. On the other hand, it has been submitted by the Ld. defence counsel that convictsSunil @ Sitte, Sandeep & Subhash Kaushik are not the previous convicts and are having clean antecedents. It is further submitted that all the convicts are the sole bread earners of their respective families and there is none else to look after their families. Ld. defence counsel also submits that during the investigation and trial of this case, convictSunil @ Sitte has already remained in the custody for about six and half years, convictSandeep has remained in custody for more than two years and convict Subhash Kaushik has also remained in custody for more than three months and he prays that a lenient view may be taken in this case.
In support of his contentions, Ld. Defence counsel has relied upon the case law cited as 2005 Crl.L.J 2555, 1996 Crl.L.J 2860, 2003 Crl.L.J 4339, 2011 Crl.L.J 2394 & 2003 Crl.L.J 418.
4. I have carefully considered the submissions made by Ld. Addl.PP for the State and Ld. defence counsel for the convicts and have carefully gone through the record of the case. I have also carefully perused the case law relied upon by the Ld. Defence counsel.
5. In the present case, convict Sunil @ Sitte has been convicted u/s304 ( PartI) IPC, u/s201 IPC and u/s27 of Arms Act. Further, convictSandeep has S.C No. 136/07 47/44 48 been convicted u/s201 IPC and convict Subhash Kaushik has also been convicted u/s 336 IPC.
Keeping in view the nature and gravity of offences and having regard to the adverse impact which such like offences can have on the society at large, I am of the considered opinion that the convicts are not entitled to any leniency in the fact and circumstances of the present case.
Ld. Defence counsel has relied upon the case law cited as 2005 Crl.L.J 2555, 1996 Crl.L.J 2860, 2003 Crl.L.J 4339, 2011 Crl.L.J 2394 & 2003 Crl.L.J 418, however the said case law is not applicable in the present case as the fact and circumstances discussed therein are different from the fact and circumstances of the instant case and in my considered opinion, the aforesaid case law is not of any help to the convict in the present case.
Hence, in view of the above and having regard to the family circumstances of the convicts, I hereby sentence the convict Sunil Kumar @ Sitte to undergo RI for ten years and to pay a fine of Rs. 15,000/ in default SI for six months u/s - 304 ( PartI) IPC. He is further sentenced to undergo RI for two years and to pay a fine of Rs. 5000/ in default SI for two months u/s 201 IPC. Convict Sunil Kumar @ Sitte is also sentenced to undergo RI for three years and to pay a fine of Rs. 5000/ in default SI for two months u/s 27 of Arms Act. All the sentences S.C No. 136/07 48/44 49 qua convict Sunil Kumar @ Sitte shall run concurrently. Benefit u/s428 Cr.PC be also given to him .
Convict Sandeep is sentenced to undergo RI for two years and to pay a fine of Rs. 5000/ in default SI for two months u/s 201 IPC and the said period of RI of two years shall be set off against the period of custody i.e two years already undergone by this convict during investigation and trial of this case in terms of provisions of section428 Cr.PC.
ConvictSubhash Kaushik is sentenced to undergo RI for three months u/s336 IPC and the said period of RI of three months shall be set off against the period of custody i.e three months already undergone by this convict during investigation and trial of this case in terms of provisions of section428 Cr.PC.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 07.12.2011) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 136/07 49/44
50
FIR No.251/06
P.S. Sultan Puri
07.12.2011
Present: Addl.PP for the State.
Convict Sunil @ Sitte in JC and convict Sandeep & Subhash on bail with their counsel Sh. B.B.Sharma.
Accused Ravinder has expired.
Arguments on the point of sentence heard.
Vide separate order on the point of sentence, announced in the open court, convictSunil @ Sitte has been sentenced to undergo RI for 10 years and to pay a fine of Rs. 15000/ in default SI for six months u/s304( PartI) IPC. He has been further sentenced to undergo RI for two years and to pay a fine of Rs. 5000/ in default SI for two months u/s 201 IPC. He has also been sentenced to undergo RI for three years and to pay a fine of Rs. 5000/ in default SI for two months u/s 27 of Arms Act. All the sentences qua convict Sunil @ Sitte shall run concurrently and benefit u/s428 Cr.PC has also been given to him . Convict Sandeep has been sentenced to undergo RI for two years and to pay a fine of Rs. 5000/ in default SI for two months u/s201 IPC and the said period of RI of two years shall be set off against the period of custody i.e two years already undergone by this convict during S.C No. 136/07 50/44 51 investigation and trial of this case in terms of provisions of section428 Cr.PC.
2 Convict Subhash Kaushik has also been sentenced to undergo RI for three months u/s 336 IPC and the said period of RI of three months shall be set off against the period of custody i.e three months already undergone by this convict during investigation and trial of this case in terms of provisions of section428 Cr.PC.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
In the present case, in view of the observations made in the judgment dated 05.12.2011, issue notice u/s344 Cr. PC to PW4 Mukesh Kumar to show cause as to why action as per law be not taken against him. Ahlmad is directed to prepare a separate file in respect of the proceedings against PW4 Mukesh Kumar and to register the same as Misc. File.
Copy of this order be also kept on the record of the said Misc. File. File be consigned to the record room.
S.C No. 136/07 51/44 52
(Announced in the open ) (Paramjit Singh)
(court on 07.12.2011) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 136/07 52/44
53
M. No. /2011
(Proceedings against PWMukesh Kumar)
FIR No.251/06
P.S. Sultan Puri
07.12.2011
Proceedings against PW Mukesh Kumar initiated in terms of order dated 07.12.2011 passed in the case titled as 'State Vs. Sunil @ Sitte & Ors.' bearing FIR No. 251/06, P.S: Sultan Puri.
It be checked and registered.
Present: Addl.PP for the State.
Notice u/s344 Cr. PC ( in terms of order dated 07.12.2011 passed in case bearing FIR No. 251/06, P.S: Sultan Puri ) be issued to PW4 Mukesh Kumar for 07.1.2012, to show cause as to why action as per law be not taken against him.
Copy of the judgment dated 05.12.2011 and order dated 07.12.2011 passed in case bearing FIR No. 251/06, P.S: Sultan Puri be also kept on the record of this Misc. File.
In view of the above, put up for F.P on 07.1.2012.
(Paramjit Singh) S.C No. 136/07 53/44 54 ASJ (NW)01 Rohini/Delhi 07.12.2011 S.C No. 136/07 54/44