Delhi District Court
State vs Maan Singh @ Pappy on 2 February, 2013
State Vs.Maan Singh @ Pappy
FIR No: 157/10
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE-01,
DWARKA COURTS, DELHI
In the matter of :--
SC No. : 66/12
FIR No. : 157/10
Police Station : Palam Village
Under Section : 307/506/34 IPC, 1860 &
25/27/54/59 Arms Act, 1959
State
v/s
Maan Singh @ Pappy
S/o Vijay Kumar
R/O RZ-10/B, Gali No.2, Kailash Puri, Palam Colony
New Delhi. ... Accused
Received by transfer : 14.09.2012
Reserved for judgment on : 28.01.2013
Judgment announced on : 02.02.2013
JUDGMENT
1. On 28.07.2010, at around 10.45 p.m., complainant Bheem Singh was returning after getting his mobile phone re-charged when he found that a crowd had gathered near his house situated at RZ-26P/42F, Street No.10F, Indira Park, Palam Colony, Delhi at Balaji Provision Store on Mangal Bazar road where his younger brother Ghanshyam was also present. On inquiry, Ghanshyam told to complainant Bheem Singh that accused Maan Singh @ Pappy had come alongwith his two SC NO: 66/12 1/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 other friends on a motorcycle and he had threatened Ghanshyam that since he had deposed against him in the previous cases, therefore, he would be killed. After threatening Ghanshyam, accused Maan Singh alongwith his friends left. Thereafter, complainant Bheem Singh alongwith his younger brother Ghanshyam were returning to their house when again accused came with his previous two friends on the motorcycle and accused was riding pillion and on seeing the complainant Bheem Singh and his brother, he fired upon them and complainant Bheem Singh received a gun shot injury on his left shoulder. Thereafter, when they tried to apprehend accused Maan Singh and his friends, he again fired 3-4 shots in the air and managed to flee on the motorcycle with his friends. Thereafter, complainant Bheem Singh informed police through his mobile phone and thereafter PCR came at the spot and took the injured/complainant Bheem Singh to the Deen Dayal Upadhyay Hospital where the statement was recorded of injured Bheem Singh and based upon his statement, FIR no. 157/10, PS Palam Village was registered and the matter was taken up for investigation.
2. The crime team of PS Palam Village had also reached the spot on receiving the information regarding the incident and had found three empty cartridges lying at the spot.
3. During the course of investigation, investigating officer had seized three empty cartridges and one piece of metal from the spot. The SC NO: 66/12 2/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 investigating officer had also seized one blood stained part of bullet in the form of a coin from the doctor of Deen Dayal Upadhyay Hospital which was taken out from the left shoulder of the injured Bheem Singh during the course of operation.
4. Further, on 02.08.2010, information was received at PS Palam Village from PS Crime Branch, Nehru Place to the effect that accused Maan Singh has been arrested in case FIR No. 114/10, PS Crime Branch. The said FIR No. 114/10, PS Crime Branch was with regard to offence of Section 25 Arms Act for unauthorized possession of a country made pistol found in possession of accused Maan Singh. Further, accused Maan Singh disclosed in the FIR no. 114/10 regarding using the aforementioned country made pistol in the commission of offence of the present case. Thereafter, accused was arrested in the present case and was taken on police remand. During the police remand, search was made for other two accused persons and of the motorcycle used in the commission of offence but the same could not be traced. However, the country made pistol recovered from the accused in FIR No.114/10, PS Crime Branch was seized in the present case and was sent to the FSL, Rohini alongwith the three empty cartridges and the piece of brass recovered in the present case for the opinion of ballistic expert.
5. The investigating officer also recorded the statement of witnesses u/s 161 Code of Criminal Procedure, 1973 (hereinafter referred to as SC NO: 66/12 3/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 Cr.P.C.) and also collected the MLC of injured Bheem Singh from the hospital as well as the X-ray report of the injured and based upon the material collected during the course of investigation, accused Maan Singh was charge sheeted for the offence u/s 307/506/34 Indian Penal Code, 1860 (hereinafter referred to as IPC) and u/s 25 and 27 Arms Act. 1959 (hereinafter referred to as Arms Act).
6. After supplying of copies of charge sheet u/s 207 Cr.P.C., Ld.MM.committed this case to the court of Sessions.
7. The Ld.Predecessor of this court after hearing the counsel for accused and after perusing the material in the form of charge sheet had come to the conclusion that a prima facie case u/s 307/506/34 IPC and u/s 25 and 27 Arms Act is made out against accused and accordingly, charge was framed against accused under aforementioned sections.
8. Accused pleaded not guilty to the aforementioned sections and claimed trial.
9. At the stage of trial, prosecution has examined 23 witnesses. PW1 SI Balram has proved the registration of case FIR no. 29/08, PS Palam Village as Ex.PW1/A.
10.PW2 Dr.Lalit Kishore from Deen Dayal Upadhyay Hospital has proved SC NO: 66/12 4/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 on record the medical examination of injured Bheem Singh and the injury noted by him on the left shoulder of injured Bheem Singh vide MLC Ex.PW2/A. PW2 Dr.Lalit also proved that a blunt metallic object resembling like bullet was removed from the left shoulder and the injury received by injured was grievous in nature vide MLC Ex.PW2/B.
11.PW3 HC Chand Ram has only proved the registration of FIR No. 114/10 u/s 25 of Arms Act, PS Crime Branch, Nehru Place vide Ex.PW3/A.
12.PW4 Bheem Singh is the injured in the present case. PW4 Bheem Singh has proved his statement recorded on 29.07.2010 in Deen Dayal Upadhyay Hospital which is Ex.PW4/A. Further, PW4 has also deposed all the facts which were stated in the complaint Ex.PW4/A. In his cross examination, PW4 admitted that although no quarrel had taken place between him and accused Maan Singh but he deposed that accused Maan Singh had a quarrel with his brother Ghanshyam. PW4 also admitted in his cross examination that he was not present at the spot when accused had extended threats to his brother Ghanshyam. PW4 Bheem Singh clarified in his cross examination that there was street light at the place where they were standing and the bike on which accused had come was a pulsar. In the cross examination, PW4 again reiterated that accused had fired about 4--5 times. Nothing more could be extracted from PW4 in his cross examination.
SC NO: 66/12 5/25State Vs.Maan Singh @ Pappy FIR No: 157/10
13.PW5 Sh.Ghanshyam has deposed that on 28.07.2010 at about 10.20 p.m., he alongwith his brother Bheem Singh were returning to their house after the evening walk when accused Maan Singh alongwith his two friends reached there on a motorcycle and had threatened to kill his brother Bheem Singh as Bheem Singh has deposed against him in a criminal case. Thereafter, all three accused fled away from the spot. After 10-15 minutes, accused Maan Singh alongwith both the same boys again came on a motorcyle and accused Maan Singh fired a bullet on his brother Bheem Singh due to which his brother sustained injury on the right side of his shoulder. PW5 further deposed that when they tried to apprehend the accused persons, they fled from the spot while firing. PW5 further proved the site plan Ex.PW5/A prepared at his instance and recovery of three empty cartridges from the spot in his presence.
14.In his cross examination, PW5 deposed contrary to his examination in chief regarding threat being given to PW4 Bheem Singh and stated that accused Maan Singh had threatened him to kill as he had deposed against him in a criminal case u/s 307 IPC. However, PW5 corroborated PW4 regarding the fact that motorcycle was a pulsar. PW5 also corroborated injured Bheem Singh on the fact that accused had fired 4-5 times at them. PW5 also corroborated injured by stating that there was light at the place where they were shot and on the point that bullet had hit the left shoulder of his brother. PW5 further deposed SC NO: 66/12 6/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 that he had deposed against the accused in the previous criminal case but he had denied that he had any enmity with the accused Maan Singh and that is why he had falsely implicated him in the present case.
15.PW6 Dr.Narender Kumar has proved that while working as Senior Resident, Casualty Department, Deen Dayal Upadhyay Hospital, he had examined injured namely Bheem Singh and had found the injury i.e.circular wound with diameter approximately 9 to 10 mm on interior middle aspect of left shoulder with irregular wound with blood oozing from wound. He also proved the sealing of shirt of injured which was handed over to the IO. PW6 also proved his MLC Ex.PW2/A.
16.PW7 ASI Attar Singh was the member of crime team, who had reached the spot on receiving information. PW7 has proved that he had inspected the crime scene and photographs were also taken of the same by constable Arun on his directions. PW7 has also proved on record of having seen three empty cartridges at the spot which was mentioned by him in his report Ex.PW7/A.
17.PW8 Constable Nawal Singh, who had reached at the spot alongwith SI Hansraj has proved finding of three empty cartridges and one piece of brass at the spot which was seized by the IO in his presence vide Ex.PW8/B. SC NO: 66/12 7/25 State Vs.Maan Singh @ Pappy FIR No: 157/10
18.PW9 Constable Dinesh Rana has proved on record collecting of case property from PS Crime Branch, Nehru Place.
19.PW10 Constable Arun Kumar, member of crime team, who was the photographer has proved on record various photographs taken by him of the crime scene which were Ex.PW10/B1 to Ex.PW10/B7 and negatives Ex.PW10/A1 to Ex.PW10/A7.
20.PW11 HC Satish Kumar has proved the deposition of five sealed parcels alongwith two sample seals at FSL, Rohini on 15.10.2010.
21.PW12 HC Mahinder Singh of PS Palam Village has proved on record that while working as MHCM, he had received sealed parcels on 29.07.2010 which were duly entered by him in register no.19 at Srl.No.675 vide Ex.PW12/A, one sealed parcel alongwith one sample seal on 02.08.2010 which were duly entered by him in register no.19 at Srl.No.686 vide Ex.PW12/B, one sealed parcel on 29.09.2010 which was duly entered by him in register no. 19 at Srl.No. 805 vide Ex.PW12/C and four sealed parcels alongwith one sample seal on 15.10.2010 against receipt Ex.PW12/F.
22.PW13 HC Deen Dayal was the member of the PCR Team, who has proved on record that on receiving the call, they had reached at RZ-26P/42F, Gali No.1, Indira Park Extension, Palam Village and found injured Bheem Singh present at the spot who had received gun SC NO: 66/12 8/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 shot injury on his left shoulder. He also proved three empty cartridges and one small piece of brass found lying at the spot. PW13 also proved that he was taken the injured to the hospital and on his way, he had disclosed the name of accused as Maan Singh.
23.PW14 HC Sunil Kumar of PS Palam Village is a witness of receiving one sealed parcel by SI Hansraj from Deen Dayal Upadhyay Hospital vide seizure memo Ex.PW14/A.
24.PW15 HC Satvinder Kaur, who was posted at police headquarter Control Room has proved that he had received information on 29.7.2010 regarding one person had been shot which was recorded vide Ex.PW15/A.
25.PW16 Constable Bharat Singh was the DD writer posted at PS Palam Village, who had proved on record that he had received the information vide Ex.PW16/A from PS Crime Branch regarding the arrest of accused Maan Singh in case FIR NO. 114/10.
26.PW17 HC Satyawan has proved on record that while working as Duty Officer at PS Palam Village, he had registered the FIR No. 157/10 which is Ex.PW17/A.
27.PW18 HC Jag Narain is the MHCM of Crime Branch, Nehru Place and he has proved on record the deposition of sealed parcel in the SC NO: 66/12 9/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 police malkhana vide Ex.PW18/A and handing over of the same to the constable Surender Pal Singh for depositing the same in the FSL, Rohini vide Ex.PW18/C.
28. PW19 Constable Sushil, PW20 HC Hanuman Singh and PW21 HC Raja Ram, all from PS Crime Branch have deposed regarding apprehending of accused Maan Singh in case FIR No. 114/10 on the basis of receiving information from DDA Park near Sector 11, Dwarka Metro Station, New Delhi. They have also deposed regarding recovery of country made pistol and three live cartridges from the possession of accused. They have also deposed regarding the disclosure statement made by accused of having fired upon injured Bheem Singh in the present case.
29.PW22 SI Hansraj was the initial IO of PS Palam Village, who had reached at the place of incident alongwith constable Naval after receiving a call from PCR and found that a crowd had gathered and came to know that injured had been taken to Deen Dayal Upadhyay Hospital. Thereafter, PW22 had gone to the Deen Dayal Upadhyay Hospital and recorded the statement of injured Bheem Singh vide Ex.PW4/A. He has also proved seizing of three empty cartridges vide Ex.PW8/B from the spot and seizing of one sealed parcel containing the blood stained shirt of injured Bheem from Deen Dayal Upadhyay Hospital vide Ex.PW8/A. SC NO: 66/12 10/25 State Vs.Maan Singh @ Pappy FIR No: 157/10
30.PW23 Inspector Satyavir Singh was the subsequent IO of the present case and he has deposed that on 03.08.2010, he had gone to the Tihar Jail where accused was arrested vide arrest memo Ex.PW23/A and thereafter, he had taken accused on police remand. However, despite making efforts during the police remand, motorcycle and co- accused could not be apprehended. He also proved regarding collection of country made pistol recovered in case FIR No. 114/10, PS Crime Branch and depositing of the same with FSL, Rohini for examination alongwith the empty cartridges recovered in the present case. In his cross examination, it was submitted by the IO that despite making best efforts, co-accused could not be arrested at the instance of accused Maan Singh and even the complainant was unable to provide the details of the same.
31.Further, FSL report dated 17.02.2011 and sanction order u/s 39 of the Arms Act of 28.07.2011 were exhibited as Ex.P1 and P2 respectively and the witnesses to prove the same were not called as counsel for accused had not disputed the aforementioned documents.
32.After completion of prosecution evidence, all the incriminating evidence coming on record was put to the accused u/s 313 Cr.P.C. In his examination, accused submitted that he has been falsely implicated in the present case and denied to lead any evidence in his defence. Thereafter, the matter was posted for final arguments.
SC NO: 66/12 11/25State Vs.Maan Singh @ Pappy FIR No: 157/10
33.I have heard the ld.Addl.PP for state and counsel for accused and have perused the documents and the evidence recorded in the present case and the record of case FIR No. 114/10 PS Crime Branch, Nehru Place which is attached with this case.
34.I shall first deal with the charge framed u/s 506 IPC. The prosecution was required to prove that accused alongwith his two other co- accused in furtherance of their common intention had criminally intimidated to kill Ghanshyam. The crucial witness of the prosecution who could have proved the offence u/s 506/34 IPC was PW5 Ghanshyam, who was alleged to have received criminal intimidation from the accused and his co-associates. However, examination in chief of PW5 reveals that PW5 Ghanshyam has nowhere deposed regarding being criminally intimidated on 28.07.2010 by accused and his co-associates. On the contrary, PW5 Ghanshyam had deposed that it was his brother Bheem Singh to whom accused had threatened to kill. However, PW4 Bheem Singh in his examination in chief had firstly no where deposed that he was threatened by accused and secondly, he had deposed that PW5 Ghanshyam had told him that he (Ghanshyam) was threatened by accused as he had deposed against accused in a case. Therefore, the evidence of PW4 and PW5 with regard to extension of threat to kill by accused is contradictory to each other and is inconsistent which make deposition of PW5 Ghanshaym unbelievable.
SC NO: 66/12 12/25State Vs.Maan Singh @ Pappy FIR No: 157/10
35.Yet another fact which belies the case of prosecution regarding the extension of threat by accused on 28.07.2010 to PW5 Ghanshyam is the contradiction regarding presence of PW4 Bheem Singh on the spot. Although PW5 Ghanshyam had deposed that when he alongwith his brother Bheem Singh was coming, accused Maan Singh had extended the threat whereas PW4 Bheem Singh had deposed that he was not present when threats were extended to his brother Ghanshyam.
36.Lastly, PW5 Ghanshyam by stating in his cross examination that accused had extended threats to kill him, has contradicted himself from his deposition in his examination in chief where he had deposed that accused had extended threats to kill his brother Bheem Singh.
37.In the light of aforesaid contradiction in the testimony of PW5 Ghanshyam and PW4 Bheem Singh, a doubt has been created whether any threat had been extended by accused to PW5 Ghanshyam on 28.07.2010 at around 10.20 p.m., benefit of which has to go to accused. Accordingly, accused is acquitted for the offence u/s 506 IPC.
38.Now, I shall deal with the charge framed u/s 25 and 27 Arms Act against accused with regard to possession of country made pistol and using the same upon injured Bheem Singh and his brother Ghanshyam. The onus to prove the said charge is upon the SC NO: 66/12 13/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 prosecution. It has been proved in the present case that pistol used in the commission of the present offence has been alleged to have been recovered in case FIR No. 114/10, PS Crime Branch, where a separate FIR u/s 25 of the Arms Act was registered. However, record of case FIR No. 114/10, PS Crime Branch, Nehru Place reflects that accused has been acquitted vide judgment dated 29.08.2011 with regard to possession of country made pistol alleged to have been recovered on 01.08.2010 from the DDA Park, near Sector 11, Dwarka Metro Station, New Delhi. Once the accused has been acquitted in FIR No. 114/10 with regard to possession of country made pistol u/s 25 of the Arms Act, he cannot be again prosecuted for the same offence in the light of bar contained in Section 300(1) of Cr.P.C. Therefore, on this short ground alone, accused stands acquitted u/s 25 of the Arms Act.
39.With regard to offence u/s 27 of the Arms Act, sanction u/s 39 of the Arms Act has been proved in the light of permission granted by Sh.Parmaditya, Addl.Dy.Commissioner of Police, SW District, N. Delhi vide Ex.P2. Further, PW4 Bheem Singh and PW5 Ghanshyam have both deposed regarding seeing accused firing upon them. Further, nature of the injuries received by injured Bheem Singh have been proved to have been received on account of gun shot by the unrebutted testimony of PW2 Dr.Lalit Kishore. Further, three used cartridges which were fired by the accused have been held to be ammunition in the FSL report dated 17.02.2011 Ex.P1 which is not SC NO: 66/12 14/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 being disputed by the accused. Although it is true that prosecution has not been able to prove the arm from which the bullets were fired, in the light of acquittal of accused with regard to possession of country made pistol in FIR No. 114/10 and in the light of FSL report Ex.P1 which does not connect alleged recovered country made pistol with three used cartridges found in the present case, however, still the court cannot lose sight of the fact that used cartridges comes within the definition of "ammunition" and there is ocular evidence of PW4 and PW5 proving using of arm and ammunition by the accused which is further supported by medical evidence. Therefore, although the arm from which bullets were fired upon injured Bheem Singh have not been recovered but court can take judicial notice of the fact that bullets cannot be fired without any arm. Therefore, it is proved by the prosecution that accused had used arm in firing the bullets on 28.07.2010 at injured Bheem Singh and his brother Ghanshyam. Accordingly accused is convicted for the offence u/s 27 Arms Act for using arm and ammunition.
40. As far as offence u/s 307 IPC is concerned, the prosecution is required to prove that accused attempted to cause death of injured Bheem Singh and his brother Ghanshyam by firing upon them.
41. In order to prove the offence u/s 307 IPC, the prosecution has examined injured Bheem Singh as PW4 in this case. PW4 has deposed on oath that his brother Ghanshyam, who is PW5 in this SC NO: 66/12 15/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 case had told him that accused had extended threat to kill him as he has deposed against accused Maan Singh in a case. Even in the complaint made by the injured Bheem Singh to the police Ex.PW4/A on 29.07.2010, it is categorically mentioned by injured Bheem Singh that accused had threatened his brother Ghanshyam as he had deposed against him in some case. There has been no cross examination of PW4 with regard to motive of accused in shooting at PW4 Bheem Singh and his brother PW5 Ghanshyam meaning thereby that this fact has been admitted by the accused. Further, the fact that PW5 Ghanshyam had deposed against accused Maan Singh in previous criminal case, has been proved by accused himself by suggesting to PW5 Ghanshyam regarding pendency of criminal case against accused Maan Singh regarding injuries caused to PW Ghanshyam. Further, accused has himself relied upon the previous pending criminal case in FIR No. 29/08 u/s 324/326/307/506 IPC by filing the copy of judgment delivered in the aforesaid case on 04.06.2010 alongwith his bail application.
42.I have carefully perused the judgment delivered in FIR No. 29/08, PS Palam Village and in the said case, PW5 Ghanshyam was only the witness who had deposed against present accused and his co- associates. The other injured in the said case had become hostile and accordingly, accused and his associates were acquitted vide judgment dated 04.06.2010.
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43.In the light of aforesaid discussion, it has been proved by the prosecution on record that accused had the motive to kill PW4 Bheem Singh and PW5 Ghanshyam as PW5 Ghanshyam had deposed against accused Maan Singh in a criminal case registered against him vide FIR No. 29/08, PS Palam Village.
44.In the present case, prosecution has also proved on record that bullets were fired by accused Maan Singh in this case upon PW4 Bheem Singh and his brother PW5 Ghanshyam, out of which one bullet had caused injury on the left shoulder of PW4 Bheem Singh. PW4 Bheem Singh, who is the injured in this case and also the complainant, from the very inception of reporting the matter to the police vide his complaint Ex.PW4/A had named the accused in his statement Ex.PW4/A of having fired upon him and his brother Ghanshyam. Further, evidence of PW4 Bheem Singh and his brother PW5 Ghanshyam is unimpeachable with regard to the fact that it was Maan Singh and his two associates, who had come on a motorcycle on 28.07.2010 and accused Maan Singh had fired 3-4 shots at them out of which one bullet had hit in the left shoulder of injured Bheem Singh. The evidence of PW4 Bheem Singh and PW5 Ghanshyam with regard to firing of bullets 3-4 times by accused has been further corroborated by recovery of three used cartridges from the spot by PW7 ASI Attar Singh, PW13 HC Deen Dayal and PW22 SI Hansraj and one blood stained bullet seized by the police from Deen Dayal Upadhyay Hospital which was taken out from the left shoulder of SC NO: 66/12 17/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 injured Bheem Singh vide seizure memo Ex.PW14/A. Although incident took place in the night at around 10.30-10.45 p.m. but both PW4 Bheem Singh and PW5 Ghanshyam have corroborated each other regarding seeing the accused as there was light available at the place where they were shot. No suggestion was given by accused to either PW4 Bheem Singh or PW5 Ghanshyam regarding the place being purely lit or having no light making it impossible for PW4 Bheem Singh and PW5 Ghanshyam to see him.
45.In the present case, accused Maan Singh has admitted his presence at the spot as no suggestion has been given either to PW4 Bheem Singh or PW5 Ghanshyam, who are the sole eye witnesses to the incident of firing in this case that he was not present on 28.07.2010 at the place where incident in question took place. Even in his examination u/s 313 Cr.P.C., accused had offered no explanation pursuant to question being put to him that it was he who alongwith his co-associates had fired upon PW4 Bheem Singh and PW5 Ghanshyam on 28.07.2010. Therefore, all these facts establish beyond reasonable doubt that it was accused Maan Singh, who alongwith his associates had fired upon PW4 Bheem Singh and PW5 Ghanshyam on 28.07.2010.
46.Yet another fact which establishes the identity of accused in having fired upon PW4 Bheem Singh is the deposition made by PW13 HC Deen Dayal. PW13 HC Deen Dayal was the person who was on PCR SC NO: 66/12 18/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 duty on the date of incident and was instrumental in transporting PW4 Bheem Singh to Deen Dayal Upadhyay Hospital. PW13 HC Deen Dayal has deposed in his examination in chief that while he was taking injured Bheem Singh to the hospital, on his inquiry, injured Bheem Singh had told him that it was accused Maan Singh, who had shot at him. PW13 HC Deen Dayal was not cross examined by the accused counsel meaning thereby that whatever he has deposed, has been accepted to be correct by the accused. Therefore, it has been proved by the prosecution, beyond reasonable doubt, that accused and his associates pursuant to their common intention had fired upon PW4 Bheem Singh and his brother PW5 Ghanshyam due to which PW4 Bheem Singh got injured with bullet injury on his left shoulder.
47.It was contended by the counsel for accused during the course of arguments that it was not the accused, who had fired as accused was in his house on the date and time of the alleged incident. It was further contended by him that both PW4 Bheem Singh and PW5 Ghanshyam have admitted in their cross examination that lot of public persons had gathered at the spot on hearing about the fire incident but none of the witnesses have been examined and the evidence of PW4 Bheem Singh and PW5 Ghanshyam, who happens to be the brothers and are interested witnesses, cannot be believed as even the evidence of PW4 Bheem Singh and PW5 Ghanshyam is not consistent with regard to allegation of threat having been extended by accused.
SC NO: 66/12 19/25State Vs.Maan Singh @ Pappy FIR No: 157/10
48.The first contention of the counsel for accused that he was in his house on the date and time of the incident cannot be believed as it is an after thought. If the defence of accused was that he was in his house on the date and time of the alleged incident then what prevented accused from suggesting the said fact either to PW4 Bheem Singh or PW5 Ghanshyam in their cross examination. The entire cross examination of PW4 Bheem Singh and PW5 Ghanshyam reflects that no such suggestion has been given by accused to these witnesses regarding his absence on the date and time of the incident. Further, accused at the time of his examination u/s 313 Cr.P.C. simply denied when incriminating evidence regarding his firing upon PW4 Bheem Singh and PW5 Ghanshyam was put to him and nowhere offered his explanation that he could not be present at the spot as he was in his house. Therefore, this plea of counsel for accused regarding his absence from the spot cannot be believed and is accordingly rejected.
49.Now, I shall deal with the second contention of counsel for accused doubting the credibility of PW4 Bheem Singh and PW5 Ghanshyam. Although it is true that PW4 Bheem Singh and PW5 Ghanshyam have admitted regarding presence of public persons at the spot but their non-examination will not be fatal to the present case as evidence of PW4 Bheem Singh and PW5 Ghanshyam with regard to role of accused in firing is trustworthy, consistent and believable. Further, although it is true that PW4 Bheem Singh and PW5 Ghanshyam have SC NO: 66/12 20/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 not deposed consistently with regard to threat been extended to them by accused but that will not be fatal to the prosecution case, as with regard to allegations of threat u/s 506 IPC, benefit of doubt has already been given to accused, as discussed hereinabove.
50.In the matter of Mahesh Janardhan Gonnade Vs. State of Maharashtra, 2008 Crl.Law Journal, 3602, it was held by the Hon'ble Supreme Court of India that where the evidence of injured eye witness is corroborated by other witnesses then his evidence cannot be discarded on the ground of non-examination of independent witnesses. It was further held by the Hon'ble Supreme Court of India in para 48 that where FIR has been lodged promptly and where the name of accused has been disclosed in the FIR and it is proved that accused had a strong motive to commit the offence of murder, then there is no ground to believe that accused has been falsely implicated. It was further held by the Hon'ble Supreme Court that minor discrepancies in evidence and non-adduction of certain witnesses although available is insignificant. In the light of aforementioned judgment of the Hon'ble Supreme Court of India, since in the present case also, name of the accused has been disclosed in the FIR and it is proved on record that he had a strong motive to commit the offence in question, therefore, there is no reason to believe that he has been falsely implicated. Further, since the testimony of PW4 Bheem Singh and PW5 Ghanshyam is inconsistent, reliable and corroborated by the other witnesses, the non-examination SC NO: 66/12 21/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 of public witnesses although available will not be fatal to the prosecution case. Accordingly, the contention of counsel for accused doubting the credibility of PW4 Bheem Singh and PW5 Ghanshyam is rejected.
51.The prosecution was next required to prove that injured Bheem Singh had indeed received gun shot injury. To prove the same, the prosecution has examined PW6 Dr.Narender Kumar of Deen Dayal Upadhyay Hospital, who was the first doctor to have examined injured Bheem Singh in the hospital. He has deposed on oath that he had observed a circular wound with diameter approximately 9 to 10 mm on interior middle aspect of left shoulder with irregular wound with blood oozing from wound. He has further deposed that thereafter injured was referred to department of emergency surgery and Ortho emergency. The prosecution has thereafter examined Dr.Lalit Kishore from the ortho department of Deen Dayal Upadhyay Hospital as PW2. PW2 Dr.Lalit has deposed on oath that on examination, he had found following injuries on the person of injured Bheem Singh:--(1) Entry wound present below the acromion process of the left shoulder joint; and (2) Movement of the shoulder was full and free. There is no distal neuro vascular deficit present. He has also deposed on oath that bullet like object was also removed from the left shoulder of injured Bheem Singh and he had opined the nature of injury to be grievous vide MLC Ex.PW2/A and his opinion vide Ex.PW2/B. Both PW2 Dr.Lalit Kishore and PW6 Dr.Narender Kumar have not been cross SC NO: 66/12 22/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 examined by the accused. Therefore, it is proved that injured Bheem Singh had indeed received a gun shot wound on his left shoulder which was grievous in nature.
52.Regarding the weapon of offence used in firing bullets upon injured Bheem Singh and his brother Ghanshyam, although prosecution has tried to set up a case that a country made pistol recovered from the possession of accused Maan Singh in FIR No. 114/10, PS Crime Branch, Nehru Place was the same which was used by him in commission of crime in question but prosecution has failed in its attempt to prove the same. The reason for my conclusion is firstly that the alleged country made pistol alleged to have been used by the accused in the present case was alleged to have been recovered from the possession of accused in FIR No.114/10 from near DDA Park near Sector 11, Dwarka Metro Station, New Delhi. However, in the said FIR no.114/10, accused has been acquitted vide judgment of the ld.trial court dated 29.08.2011. Once the accused has been acquitted with regard to possessing the country made pistol in FIR No. 114/10, PS Crime Branch, country made pistol cannot be connected with the accused in the present case.
53.Secondly, even as per FSL report dated 17.02.2011 Ex.P1 the alleged country made pistol recovered in FIR No. 114/10, PS Crime Branch is not the same pistol from which the bullets in question were fired. Therefore, from the above discussion, it is proved that no weapon of SC NO: 66/12 23/25 State Vs.Maan Singh @ Pappy FIR No: 157/10 offence used in the commission of crime has been recovered from the present accused.
54.The counsel for accused during the course of arguments made an attempt to take advantage of the fact of non-recovery of weapon of offence from the possession of accused to connect him with the crime in question. However, no such benefit can be given to accused with regard to non-recovery of weapon of offence as accused has never raised any doubt in the cross examination of PW4 Bheem Singh or PW5 Ghanshyam or in the evidence of PW2 Dr.Lalit Kishore and PW6 Dr.Narender Kumar that injury which was suffered by PW4 Bheem Singh could not have been caused by a pistol and the same was caused by some other weapon. Further, it has come in the evidence of PW4 Bheem Singh and PW5 Ghanshyam that immediately after firing bullet upon them, accused had fled from the spot. Therefore, the possibility of accused dropping or throwing the weapon of offence at some undisclosed location to create defence in his favour, cannot be ruled out. I am supported in my reasoning by the judgment of the Hon'ble High Court of Delhi reported as Vinod S/o Rameshwar Kumar Vs. State, (2004) Crl.Law Journal 722 wherein on the point of non-recovery of weapon of offence, no benefit of the same was given to accused after taking into account the evidence of eye witnesses and the fact that no doubt had been created by the accused in the cross examination of prosecution witnesses that injury was not caused by a knife but the same was caused by some other weapon.
SC NO: 66/12 24/25State Vs.Maan Singh @ Pappy FIR No: 157/10 Therefore, in the present case also, due to non-recovery of weapon of offence, no benefit can be given to accused and accordingly, the contention of counsel for accused is rejected.
55.In the light of above discussion, prosecution has been able to prove, beyond reasonable doubt that since PW5 Ghanshyam had deposed against accused Maan Singh in FIR No. 29/08 PS Palam Village, therefore, he had a motive to kill him. It is also proved by the prosecution that accused and his associates had fired 3-4 times upon PW4 Bheem Singh and his brother PW5 Ghanshyam out of which one bullet had hit PW4 Bheem Singh on his left shoulder which resulted in grievous injury to him. Therefore, the facts proved on record are squarely covered by illustration (c) of Section 307 IPC. Accordingly, accused is convicted for the offence u/s 307/34 IPC.
56.In the light of aforesaid discussion, accused is acquitted for the offence u/s 25 Arms Act and 506 IPC. However, he is held guilty for the offence u/s 27 Arms Act and 307/34 IPC.
Announced in the open court (Vikas Dhull)
Dated: 02.02.2013 ASJ-01/Dwarka Courts
New Delhi
SC NO: 66/12 25/25