Delhi District Court
St. vs . Parveen on 23 May, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.49/14
ID No. 02406R0190722012
FIR No. 365/13
U/s: 302/309 IPC & 25/27/54/59 of Arms Act
Police Station : Sangam Vihar
State
Vs.
Praveen
S/o. Sh. Nagender Pandey
R/o. H. No. C-1/535, Sangam Vihar,
New Delhi .... Accused
Date of Institution : 04.08.2012
Final arguments concluded: 23.05.2017
Judgment pronounced on :23.05.2017
JUDGMENT
1. Accused Praveen has been tried and prosecuted for the offence as punishable u/s 302/309 of Indian Penal Code & section 25/27/54/59 of Arms Act. Prosecution case as per charge sheet is as under:-
DD no.39A (Ex. PW28/A) was received in police station Sangam Vihar, New Delhi on 27.08.2013 conveying the information about an incident of gun firing at C-1/535, Sangam Vihar, New Delhi. As per DD no. 39A, the PCR call was received from phone no. 9871412114. The DD was entrusted to SI Vikram who alongwith Ct.FIR No.365/13 1/55
St. Vs. Parveen Ramroop rushed to the spot where crowd of people had gathered outside house no.C-1/535, Sangam Vihar. After entering inside the house, dead body of a stout built person aged about 48 years was found lying on the bed in the room on the ground floor. The head of the deceased was towards North-West. The fragmented pieces of flash and bones of the left side skull of deceased were found scattered on the floor of the room and some pieces of flash were found clinged even on the walls of the room. The feet of the deceased were hanging outside the bed and one revolver/country made pistol was found lying near the feet. The bed was drenched with the blood which oozed out from the head of the deceased.
2. Upon inquiry, the name of the deceased was revealed as Sanjay Kumar Jha S/o Sh. Ram Kripal Jha. The spot of incident was preserved by SI Vikram Singh and crime team was called. The crime team after reaching the spot made inspection of the spot and also took photographs of crime scene. SI Vikram Singh recorded statement of complainant Shashi Kant Jha (49 years) S/o Late Raj Karan Jha, R/o G-38, Near Amrita Public School, Sangam Vihar, New Delhi. As per statement of complainant, he was working as a Camera Man, NDTV. On 27.08.2013, since it was complainant's weekly off, he at about 12:00 noon, went to see his acquaintance Sanjay Kumar Jha (the deceased) at his readymade garments shop in L-Block. When complainant reached the shop, he found the deceased and his brother in law (whose name the complainant did not know) present on the shop. The deceased got one quarter bottle of liquor by sending his brother in law and it was consumed by all three. In the meantime, Praveen, i.e. the accused, who used to run his clinic in Sangam Vihar, FIR No.365/13 2/55 St. Vs. Parveen also came there and he had some conversation with the deceased. As the complainant had to pick up his daughter from her school, the deceased asked the complainant to join him for lunch at the residence of Praveen after dropping his daughter at home.
3. Thereafter, complainant took his daughter from her school from A-Block, Sagam Vihar and after dropping her at home, he reached Praveen's residence at C-1/535, Sangam Vihar, at 2:20 PM and found both Praveen and deceased Sanjay Kumar Jha were present there. Praveen and Sanjay Kumar Jha went out on complainant's motorcycle to fetch beer bottle and paratha from the market. After coming back on the room, Praveen and complainant consumed beer and all three also had their meal. Thereafter, at about 3:30 PM when the complainant was about to leave for his home, the accused Praveen took out one revolver from the drawer and shot fire on left side head of the deceased, while deceased was sitting on the bed. After gun shot, the deceased fell down on the bed and accused Praveen after throwing the revolver there in the room ran away from the spot. The complainant chased the accused for some distance but could not catch him. Thereafter, complainant came back to the room and in the meantime, he also made a call at 100 number. The dead body of deceased was lying in the pool of blood and pieces of flash were lying scattered in the room.
4. Upon aforementioned statement of complainant, SI Vikram Singh made his endorsement and sent the Tehrir through Ct. Ramroop, to the police station Sangam Vihar for registration of FIR. After registration of FIR u/s 302 IPC & 25/27/54/59 of Arms Act, the FIR No.365/13 3/55 St. Vs. Parveen investigation was assigned to SHO/Inspector Shahid Khan of PS Sangam Vihar. Ct. Ramroop, with the copy of Tehrir and FIR reached back to the spot and handed over the same to IO/Inspector Shahid Khan. IO prepared the site plan on the identification of complainant. A country made pistol which was found lying near the legs of deceased was recovered and when it was opened with the help of button, an empty cartridge case was found, on one side of which KF 8 MM was written. The country made pistol and the empty cartridges were taken into police possession and recovery memo was prepared. The same was sealed with seal of SGV1SED. One coin of cartridge measuring 3 cm in length made up of brass like metal was also recovered from a doorless concrete almirah built in the wall of the room and the same was also taken into possession vide separate recovery memo and both the recovery memos were sealed with the seal of SGV1SED. Cotton swab of both the palms of deceased were also taken into police possession vide separate recovery memo. Blood lying near the dead body, lifted with the help of cotton gauge was kept in a plastic bottle and the same was also sealed with the seal of SGV1SED. After using the seal, the same was handed over to SI Vikram. Signature of witnesses were taken on all the recovery memos. The dead body of deceased was shifted to AIIMS mortuary.
5. Despite efforts, accused Praveen S/o Nagender could not be apprehended. In the meantime, SI Vikram Singh received a telephonic call on his mobile no. 98681211416, from ASI Lala Ram regarding admission of one person Praveen S/o Nagender vide MLC no.385445/13 in Trauma Centre, AIIMS hospital. Pursuant thereto, SI Pankaj Kumar alongwith Ct. Brij Mohan and Ct. Jitender reached AIIMS FIR No.365/13 4/55 St. Vs. Parveen Trauma Centre.
6. On next day, on 28.08.2013, the IO alongwith SI Vikram Singh reached AIIMS Mortuary for postmortem of deceased and prepared all the requisite documents and got the postmortem conducted. Thereafter, the dead body was handed over to the legal heirs of deceased. After postmortem, doctor handed over sealed viscera peti sealed with the seal of Department of Forensic Medicine, AIIMS New Delhi and sealed plastic bags containing "Sample of gun Powder Analysis from Rt. Parietal region and left Parietal region" and a sealed envelop containing blood ingauge, to the IO. The sample seal was handed over to Ct. Sanjay and samples were handed over to the IO which were taken into police possession vide separate recovery memo.
7. On 29.08.2013, after discharge of accused Praveen from the hospital, HC Rakesh and Ct. Sanjay produced him before IO/Inspector Shahid Khan for joining the investigation. Upon enquiry, accused Praveen informed the IO that "he was a bachelor having illicit relations with many girls and same was in the knowledge of Sanjay Kumar Jha who usually asked him to stay away from such girls. Sanjay Kumar Jha also insulted him several times in front of his girl friends which made him feel bad and therefore, he decided to teach him (deceased) a lesson upon getting a suitable opportunity. On 27.08.2013, while he (accused) alongwith his friend Sanjay Kumar Jha and Shashi Kant Jha were consuming liquor in his room, Sanjay Kumar Jha started giving him (accused) sermons on moralities of life which enraged him and he shot him (the deceased) dead with the FIR No.365/13 5/55 St. Vs. Parveen countrymade pistol by firing on his head and thereafter, he fled away from the spot while leaving the pistol in the room. Later, he realized his mistake and tried to commit suicide by climbing on the electric transformer. Due to electric shock, he got burnt injuries on his head and back and fell down on the ground. Someone called police and police shifted him to hospital and after his treatment, police took him to the police station".
8. On the basis of abovementioned incriminating material, accused Praveen was arrested in the present case and intimation of his arrest was given to Anurag Pandey, the brother in law of his landlady. Disclosure statement of accused was also recorded. IO also got the place of occurrence identified through accused. As the accused had attempted to commit suicide, Section 309 IPC was also added subsequently. On 30.08.2013, accused Praveen was produced before the Magistrate and his two days police remand was taken. During police remand, accused further disclosed that the country made pistol and cartridges used in the commission of offence were purchased by him from one Firoz r/o Meerut. On 05.09.2013, the viscera vide R/C No.187/21 dated 05.09.2013, country made pistol and empty cartridges and cartridge coin vide RC no.186/21, dated 05.09.2013 were deposited with CFSL vide CFSL-2013/F-1279 dated 05.09.2013. Thereafter, on 09.09.2013 five sealed exhibits having blood stained clothes of complainant Shashi Kant Jha, blood stained bed sheet, blood in gauze of deceased Sanjay Kumar from spot and clothes of deceased Sanjay Kumar and two sample seals were deposited with CFSL, CBI Lodhi Road, New Delhi for expert opinion vide RC No.190/21 dated 09.09.2013 to CFSL-2013/B-1301 dated FIR No.365/13 6/55 St. Vs. Parveen 09.09.2013. Statement of witnesses were recorded. Scaled site plan was got prepared from a Draftsman. Postmortem report was obtained wherein the cause of death was opined to be "shock due to cranio- cerebral injury consequent upon firearm injury". All injuries were opined to be antemortem in nature. Viscera was preserved to rule out any poisoning/intoxication." On 03.10.2013, IO/Inspector Shahid got recorded the statement of complainant Shashi Kant Jha before Ld. Magistrate u/s 164 Cr.P.C.
9. On the suspicion raised by deceased's wife Smt. Ranju Devi regarding involvement of complainant Shashi Kant Jha in the murder of her husband, IO/Inspector took the permission from the court to conduct the polygraphy test of complainant Shashi Kant Jha and got the same conducted from FSL, Rohini, Delhi. But as per the polygraphy test report Ex. PW29/A, Shashi Kant Jha was reported to be truthful in his answers on issue no. (i) to (v). On 22.10.2013, a letter was sent to CFSL with the request to send the result of exhibits. After completion of investigation, chargesheet for the offences punishable u/s 302/309 IPC and u/s 25-27/54/59 of Arms Act was filed before the court, while the CFSL result in respect of exhibits was still awaited. Vide order dated 14.03.2014 the charges for the offences punishable u/s 302/309 IPC & 25/27/54/59 Arms Act was framed against accused to which he pleaded not guilty and claimed trial.
10. In order to prove its case, prosecution examined 32 witnesses in total.
11. PW-1, Shashi Kant Jha is the star witness of prosecution FIR No.365/13 7/55 St. Vs. Parveen case as he has been cited as eye witness, who was allegedly present with the deceased and the accused in the same room where the incident had occurred. As per his version, at the relevant time, he was working as cameraman in NDTV. On 27.08.2013, it was his weekly off. At about 8am, after dropping her daughter to her school, when he was parking his motorcycle in front of his house, in the meantime accused came there along with one person on his motorcycle & asked PW1 that whether Sanjay Ji, i.e. the deceased would be available at his home. At request of accused, PW1 made a call to deceased, but his son picked up the call and told that his father was in toilet. Thereafter, the accused left from there.
12. At about 12.00 noon, PW1 reached at the shop of deceased at L-Block, Sangam Vihar where he saw deceased along with his brother in law ( jeeja). Deceased gave his jeeja currency note of Rs. 100/- and asked him to bring one quarter of whiskey. After 10-15 minutes, Deceased's jija came back with one quarter bottle of liquor, same was consumed by PW1 & jija of deceased but deceased did not have it. At about 12.15 to 12.30PM, jeeja of deceased left for his work. At about 1.00PM, accused came there, and at request of deceased, PW1 went outside the shop as deceased had to talk to Praveen. Accused remained present in the shop of deceased for about 10 minutes. Thereafter, accused left from there. PW1 came back inside the shop and told deceased that accused was searching for him (deceased) even in the morning. Thereafter, deceased again gave Rs. 100/- note to PW1 and asked him to bring quarter bottle of whiskey. After PW1 brought the whiskey, the same was consumed by both the PW1 and the deceased. Thereafter, deceased asked PW1 to reach at FIR No.365/13 8/55 St. Vs. Parveen accused's house for lunch, after dropping his (PW1's) daughter at home. At request of deceased, PW1 dropped deceased near gali of accused, and assured him to join them after dropping his daughter at home.
13. After dropping his daughter at about 2.30PM when PW1 reached accused's home, PW1 found the accused and deceased sitting in the room. After 5-7 minutes, leaving PW1 at room, accused and deceased went out for bringing paranthas and beer bottles. Both deceased and accused returned back with paranthas and beer bottles. All three had eaten paranthas but beer was consumed only by PW1 and accused as at that time deceased refused to drink. First of all, accused finished his Paranthas and drink and kept aside his plate and he went towards space between bed and drawer. In lighter mood PW1 said that since he was given only one paranth to eat, therefore, he was leaving from there. At that time deceased was sitting in the middle of the bed and when PW1 went towards door of the room, he heard a sound of firing and when he turned back, he saw the accused running outside the room after leaving the katta in the room, and deceased sustained bullet injury on the left side of his forehead. PW1 tried to apprehend the accused and chased him for about 100 meter but accused succeeded to flee away. While, PW1 was trying to call police at 100 number from his mobile, the phone incidentally got connected to relative of Sanjay and PW1 told him about the incident. Thereafter, PW1 called police at 100 number and returned back at the room and kept standing outside the room. Lot of public persons also gathered there.
FIR No.365/13 9/5514. Police arrived at the spot and made inquiries from PW1. Thereafter, PW1 was taken to police station where his statement Ex PW1/A was recorded by police. Site plan Ex PW1/B was also prepared at the instance of PW1. Katta, the weapon of offence as well as empty cartridge were also seized from the spot and their sketch Ex PW1/C was also prepared by police before seizing them. The fired bullet /lead which passed through the forehead of deceased Sanjay was also seized from the spot vide seizure memo Ex PW1/D and its sketch Ex PW30/C was also prepared before its seizure. PW1 also proved on record the seizure memo of katta and empty cartridge as Ex PW1/E, the cotton hand swab of both hand of deceased as Ex PW1/F, blood in gauze lifted from the spot as Ex PW1/G & his blood stained clothes as Ex PW1/H. As per PW1 since at the time of incident, ceiling fan in the room was running, therefore, blood stains also fell on his (PW1) clothes.
15. PW1's deposition is further to the effect that on the same date, in PS, PW1 came to know that accused had climbed on an electric pole in the area of PS Neb Sarai and had been taken to AIIMS, New Delhi. At the request of police PW1 sent his son and nephew with police to AIIMS Trauma Centre where they identified the accused. Thereafter, accused was brought to PS Sangam Vihar where he was arrested in the presence of PW1 vide arrest memo Ex PW1/I and search memo Ex PW1/J bearing his signature. On 03.10.2013, PW1 was taken to court, where his statement Ex PW1/K was recorded before Magistrate u/s. 164 CrPC.
16. During his examination before court, PW1 correctly FIR No.365/13 10/55 St. Vs. Parveen identified the accused as well as the case property brought by MHCM in unsealed stapled envelopes. PW1 identified his clothes taken out from parcel no. 1 as Ex PW1/P-1 (colly). The seal impression of 'SGV1SED' was however appearing on a cloth taken out from parcel no. 1.
17. The bed sheet taken out from parcel no.1, blood in gauze from parcel no. 3, were identified as EX PW1/P-2 and Ex PW1/P-3. PW1 also identified the clothes of deceased taken out from parcel no. 6 and guaze cloth piece from parcel no. 5 as Ex P1/P-5 and Ex PW1/P-4 respectively. Country made pistol, fired cartridge and piece of doctor tape as Ex PW1/P-6 to Ex PW1/P-8. The left hand and right hand swaps of deceased and cotton control brought in three plastic containers duly sealed as Ex PW1/P-9 to Ex PW1/P-11 respectively.
18. PW2 Constable Mahesh is the photographer who took photographs of crime scenes and proved them on record as Ex PW2/A1 to A-16 and their negatives as Ex PW2/B-1 to PW2/B-16.
19. PW3, W/Constable Anita proved on record the PCR form Ex PW3/A. On 27.08.2013, while she was working in PCR, at 15.56.18 hours, she received a call from phone no. 9013599354 that at Jhule Lal Mandir, Krishna Park, Neb Sarai, one person had fallen from power line. She transmitted this information on internet after recording the message vide CR DD no. 27 August 131330333.
20. PW4 Ranju Devi, is another material witness of prosecution case, as she is the wife of the deceased. As per her FIR No.365/13 11/55 St. Vs. Parveen version, PW1 Shashi Kant Jha was known to them for last more than 10 years as her husband i.e. deceased used to treat wife of PW1 as his sister. PW4 deposed further that accused (whom she correctly identified in the court) was also known to her for 8-9 years as she used to visit his clinic for treatment. That on 23.08.2013, when she visited his clinic for treatment, he told her that he would commit murder in K-II Block upon which, PW4 replied that in that case, he (accused) would also go to jail.
21. She further deposed to the effect that on 27.08.2013 at about 7.30 to 8AM, his son had picked up a call on her husband's mobile phone from Shashi Kant Jha as he was asking about her husband, who at that time was in bathroom. Immediately thereafter, accused along with one person came on a motorcycle and asked about her husband and she told them that her husband was inside the bathroom, upon which accused said her to ask her husband to come out soon and in the meantime her husband came out and accused asked him as to why had he called him yesterday to which her husband replied that he had called him (accused) yesterday and not today and asked accused to go. Upon this, accused went away along with that person and after some time, deceased also left for his shop.
22. On the same day at 3.30 to 4PM, she was informed by her sister in law (jethani), who had received information from her husband, that her husband i.e. the deceased had expired due to bullet injury. Upon reaching at the spot, she came to know from Shashi Kant Jha, that her husband had been murdered by accused Parveen, who after firing at deceased's forehead fled away from the FIR No.365/13 12/55 St. Vs. Parveen spot after throwing the pistol in the room. Upon seeing the dead body of her husband, she became unconscious and her statement was recorded by police at her home on 30.8.13.
23. PW5 W/constable Laxmi, who proved on record CPCR form as Ex PW5/A, deposed that on 27.8.2013, while she was on duty in CPCR, PHQ, at 15:38:52 she had recorded a call from mobile no. 9871412114 (PW1's mobile phone) conveying the information about shoot out at C-1535, Sangam Vihar and caller was Shashi Kant Jha who told " yahan ek padosi ke kisi ne goli maar di hai aur injured hai." Said message was forwarded by her to consoled Operator at 15:41:53.
24. PW6, ASI Lala Ram deposed that on 27.08.2013, he was posted at PS Neb Sarai. At 4.05PM, he received a PCR call conveying the information that one person had fallen down from power line near Jhule Lal Mandir, D Block, Krishna Park. Upon said information PW6 along with Ct. Anil reached the spot where two eye witnesses namely Ram Rattan Sharma and Sushma met them and informed that one person, who was wearing only pant and was without any chappal (footwear) climbed on the Transformer and caught hold the naked wire, due to which he fell down and sustained burn injuries on legs and hands, and had already been taken to hospital by PCR van. Thereafter, both PW6 and Ct. Anil reached AIIMS Trauma Centre and obtained MLC bearing number 385445/14 of accused Parveen who was found admitted there. Upon inquiry, when accused did not give any satisfactory answer, PW6, after leaving Ct. Anil at the hospital went to the address of accused as disclosed in his MLC but said FIR No.365/13 13/55 St. Vs. Parveen address C-1/13, Sangam Vihar, was not found to be correct. However, from the public persons, PW6 came to know that accused Parveen used to live at C-2/535, Sangam Vihar and PW6 also got the information that accused had shot one Sanjay on that day itself. After that PW6 made inquiry from PS Sangam Vihar and later came to know from SI Vikram Singh, whose phone number was provided by the duty officer that accused Praveen had shot one person Sanjay. Later on, when PW6 again visited AIIMS Trauma Centre, where SI Vikram Singh met him to whom PW6 handed the MLC of deceased. PW6 brought the original record of DD No. 29A vide which information of falling of a person from power line was recorded and same is proved on record as Ex PW6/A.
25. PW7, Ct. Sanjay Kumar was on patrolling duty in the area of Sangam Vihar on the date of incident. Upon seeing the crowd of people outside C-1/535 Sangam Vihar, PW7 went there where he met SI Vikram Singh and also saw one dead body lying on the bed inside the room. The person had sustained injuries in the head and pieces of flesh were scattered in the whole room, and one desi katta was lying near the feet and the legs of deceased were hanging down from the bed. In the meantime SHO/Inspector Shahid Khan and crime team also reached at the spot. IO recorded the statement of eye witness Shashi Kant Jha, who was also present at the spot and PW7 was sent with dead body to the mortuary in a govt. vehicle. Dead body was identified by Hari Kishan Jha and Sunil Kumar vide Ex PW7/A and Ex PW7/B. After postmortem dead body was handed over to relatives vide handing over memo Ex PW7/C. PW7 also handed over the exhibits handed over to him by the doctor after postmortem of dead FIR No.365/13 14/55 St. Vs. Parveen body, to the IO.
26. PW8, Neelam Devi is the wife of deceased's younger brother, who was informed by her husband on phone about murder of deceased. She received said information on 27.8.13 between 3.30 to 4PM. Thereafter, she conveyed said information to deceased's wife Ranjo Devi and later visited the place of incident with her.
27. PW9, Ct. Siddharth is the messenger who delivered the copy of FIR to Joint CP, Vijay Gogia at his residence, DCP P. Karunakaran and Addl. DCP Gaurav Sharma and concerned Illaqa Magistrate Sh. Ajay Garg at Ballabgarh (Haryana) on 9.11.2013.
28. PW10, Sh. Hare Krishan Jha is the elder brother of deceased. He deposed that on 27.8.2013 at 3.45PM, he had received a call from PW1 who used to work in NDTV, informing him that his younger brother Sanjay had been murdered by gun shot by accused Parveen in his (accused) house. However, when he again tried to contact Shashi Kant Jha, his call was not picked up. Later on, PW10 informed his wife who in turn informed deceased's wife Ranju Devi. Dead body of deceased was also identified by him and after postmortem, the same was handed over to him vide delivery memo already Ex PW7/A.
29. PW11, Sh. Sunil Kumar Jha is the co-brother of deceased, his testimony is repetitive as he also identified the dead body and after postmortem, handed over the same.
FIR No.365/13 15/5530. PW12, Dr. Sanjeev Dwivedi who examined the injured ( since deceased) vide MLC No. 8535, available on record as Ex PW12/A. As per his version, on 27.8.13 at 7.18PM, one Sajay Kr. Jha aged about 35 years was brought to casualty of AIIMS Hospital by Ct. Sanjay with alleged history of bullet injury in head at about 3.55PM on that date. On examination, no signs of life were present. A large wound was seen in left temporo-parietal region with fractured and fragmented skull and brain parenchyma. Rigor mortis was present. As per PW12, entry and exit points of bullet could not be assessed. Injured was declared "brought dead" at 7.18PM and shifted to mortuary.
31. PW13, Ct. Dharmender, is the special messenger, who delivered the copy of present FIR at the residence of Illaqa Magistrate on 27.8.2013 and on 9.11.13, his statement in this regard was recorded by the IO.
32. PW14, Dr.Hari Prasad is the doctor, who conducted postmortem on the body of deceased. PW14 proved the PM report as Ex PW14/A. As per his opinion, the cause of death was shock due to cranio-cerebral injury consequent upon firearm injury. All injuries were ante-mortem. During postmortem following injuries were found :-
(I) A cruciate shaped firearm entry wound of size 3x2 Cm is present over right parietal region of scalp. It is situated 169 Cm above right heel, 3 Cm below the vertex, 6 Cm right lateral to midline, 11 Cm from above right mastoid and 11 Cm from above occiput protuberance.
Entry wound is directed to forward, downward and FIR No.365/13 16/55 St. Vs. Parveen laterally towards left causing comminuted fracture of anterior fossa, left frontal, temporal and parietal bone associated with hematoma. The track of the wound cutting through the right parietal bone, meninges, brain matter and exiting from the left fronto-temporo-parietal region. The tract of the wound is filled with reddish black colour clotted blood. Cranial cavity contains 150 Ml clotted and fluid blood.
(II) A lacerated exit wound of size 26x20 Cm was present over left fronto-temporo-parietal region involving left eye and ear with underlying comminuted fractures of anterior fossa, left frontal, temporal and parietal bone associated with hematoma. Separation of saggital and coronal suture was present. Margins are irregular and brain matter was protruding through the wound. No other injury present over the body. After postmortem, he preserved viscera, clothes, blood in guaze, swabs from entry and exit wound, these were sealed and handed over to IO along with sample seal, inquest papers and PM report.
33. PW15, Ram Ratan is the person, who allegedly witnessed the incident of accused climbing on the electric pole and falling down from there. As per his version, said incident related to one and a half year back. It was summer season between 3 to 5PM, when he had seen a person climbing over an electric pole just in front of his house around 25-30 feet away from his house.
34. PW16 is Ct. Mahender Singh. His testimony is repetitive as he has also deposed on the line of PW7 Ct. Sanjay with whom, he was on patrolling duty in the area of Sangam Vihar on the fateful day on FIR No.365/13 17/55 St. Vs. Parveen 29.8.13, PW16 also joined the police team at the time of arrest of accused in PS Sangam Vihar and was present at the time when accused was taken to the place of incident vide pointing out memo Ex PW16/A and further when his disclosure statement Ex PW16/B and Ex PW16/C was recorded by police on 29.8.2013 and 31.8.2013 respectively. On 4.9.13, PW16 also received clothes of deceased from AIIMS mortuary in sealed condition with sample seal and same were handed over to IO vide memo Ex PW16/D. On 5.9.2015, PW16 deposited pullandas of desi katta and cartridge to CFSL, CBI against a receipt and said receipt was handed over to MHCM. On 9.9.13, five more pullandas were deposited to CFSL, CBI by PW16. As per version of PW16, one blood stained bed sheet and blood samples of accused collected from AIIMS Trauma centre were also seized in his presence and he proved said two seizure memos as Ex PW16/E and PW16/F respectively.
35. PW 17, Sushma is another eye witness to the alleged incident of accused falling from the electric pole at Jhule Lal Mandir, Krishna Park, Khanpur. As per her version, she used to do the work of ironing in the aforementioned area and on the date of incident i.e. on 27.08.2013, at about 04 PM, the accused, whom she correctly identified, fell down from the electric pole and also sustained burn injuries due to electric current and was taken to hospital in police gypsy. On next date, police came there and inquired her and recorded her statement. As per her version, she noticed the accused only after she heard the noise of falling.
36. PW 18, Anurag Pandey has deposed that he was running a FIR No.365/13 18/55 St. Vs. Parveen shop of general Store at C-1/546, Sangam Vihar. On 27.08.2013, at about 3.15-3.30 PM, when he was present in his shop, he heard the sound of a bullet fire and when he reached the spot, he saw one person, Shashi Kant Jha standing near the gate and he was calling police. Then PW18 went inside and saw one person lying on a bed and blood was oozing out and pieces of flesh were scattered in the room all around. After seeing the said scenario, he became unconscious. Same day in the evening at about 06.15-6.30 PM, he went to the police station, he was inquired by police and his statement was also recorded.
37. PW19, Avinash Kumar Jha is the person on whose motorcycle the accused allegedly visited deceased's house in the morning of the fateful day. As per his version, about more than one year back, when he was going to gym on his motorcycle and reached Sehrawat Gas Agency, accused (whom he correctly identified) met him and asked him to drop him (accused) at Amrita Public School, K-II, Sangam Vihar. Accordingly, he dropped the accused there and also accompanied him inside the room, where he talked to a lady and a man Sanjay Kumar Jha. After 15 minutes, they both i.e. PW19 and accused returned and PW19 dropped the accused to his clinic near Sehrawat Gas Agency. In the evening, PW19 came to know that accused had committed a murder. Police met him (PW19) after 20-25 days of incident and his statement was recorded. On being put a leading question by Ld. Addl. PP, witness disclosed the date and time when he visited deceased's home with accused as 27.08.2013 at 8:00 am.
FIR No.365/13 19/5538. PW20 ASI Sajjan is Incharge Crime Team from South District. As per his deposition, on 27.08.2013, he was posted at PS C R Park as Incharge Crime Team. As per the instructions from control room, he reached the place of incident i.e. C-1/535, Sangam Vihar with his crime team and saw one person lying unconscious at the spot. One country made gun was also lying nearby. He inspected the spot and lifted the exhibits. But no chance prints could be found. Ct Mahesh (PW2) took photographs of the spot. PW20 proved the crime team report as Ex. PW20/A.
39. PW21, Smt Heera Pandey is the landlady of the house No. C-1/535, where the incident had occurred. As per her version, 10 months prior to the date of incident, one room at the ground of the said house was let out to the accused Parveen, whom she correctly identified. The incident occurred in her absence when she was away to her parental home in Ahmedabad and she was informed on phone by her devar Anurag Pandey, that accused had murdered his friend in the said room of her house.
40. PW22, ASI Shiv Kumar was Incharge of PCR Van K 460 on 27.08.2013. At about 3.38 PM, on that day, he received a call from Control Room that a person had been shot at C-1/535, Sangam Vihar. Pursuant to said information, he along with other PCR staff reached at the spot, where he found a crowd of public persons outside the room. In the room, on the ground floor, he found one person lying dead on the bed with gun shot injury and one country made pistol was also lying near the dead body. The name of the deceased was revealed as Sanjay Kumar Jha, while the informer, who informed that deceased FIR No.365/13 20/55 St. Vs. Parveen had been shot by accused Parveen, was Shashi Kumar Jha. PW22 accordingly informed police control room. In the meanwhile, SI Vikram Singh along with other staff also reached at the spot.
41. PW 23 is ASI Pradip Singh. On the date of incident i.e. on 27.08.2013, he was posted in PCR South Zone. At about 3.58 PM, he received an information from control room regarding falling of one person from electric transformer near Jhule Lal Mandir, Krishna Park. Upon said information, he immediately reached the spot with PCR van and found one person Parveen in mysterious conditions and he took him to AIIMS Trauma Center. As per the public persons present at the spot, injured had sustained injuries due to electrocution and he had fallen down from an electric pole.
42. PW 24 ASI Malkhan Singh is the duty officer. As per his version, on 27.08.2013 at about 7.20 PM, Ct Ram Roop came along with one ruqqa for registration of FIR and in that regard, he(PW24) lodged DD No.42A, ExPW24/A at 07.40PM and registered the FIR No. 365/13 ExPW24/B through computer operator and thereafter, he made endorsement ExPW24/C on original ruqqa. After registering the FIR, he again recorded DD No. 43A at about 08.40 PM regarding completion of recording of FIR and regarding handing over of copies of FIR to Ct Siddharth and Ct. Dharmendra to deliver the same to senior officials. Copy of FIR and original ruqqa was handed over to Ct Ram Roop to deliver the same to Insp. Shahid Khan.
43. PW25, Inspector Mahesh Kumar is the draftsman from Crime Branch, PHQ, who prepared the scaled site plan ExPW25/A. On FIR No.365/13 21/55 St. Vs. Parveen 12.09.2013, he took rough notes and measurements of the spot when he visited the place of incident along with Inspector Shahid Khan and on the basis of said rough notes and measurement, he prepared scaled site plan Ex. PW-25/A and handed over the same to the IO Inspector Shahid Khan.
44. PW26 HC. Raj Kumar is the MHC(M) in PS Sangam Vihar, who was handed over seven parcels by Inspector Shahid Khan on 27.08.2013, out of which 6 parcels were sealed with the seal of CMO JPNTC AIIMS ND, while one was sealed with seal of SGV1SED and all the parcels were deposited vide entry at Sr. No. 3235, Ex. PW-26/A. On 28.08.2013, Inspector Shahid Khan deposited two more parcels with seal of Department of Forensic Medicines, AIIMS, New Delhi vide entry at Sr. No. 3235 Ex. PW-26/B. On 05.09.2013, Ct. Mahender took parcels containing viscera and country made pistol for depositing the same with CFSL, Lodhi Colony vide RCs No. 186/21/13 and 187/21/13 and PW-26 made entries at Sr. No. 3235 Ex.PW26/C in this regard. On 09.09.2013, five sealed parcels alongwith sample seal were handed over to Ct. Mahender to deposit the same with CFSL vide RC No. 190/21/13 and PW-26 made entries in the register at Sr. No.3235 Ex.PW-26/D. PW-26 also proved the record of RC No. 186, 187 and 190/21/13 as Ex. PW-26/E, F and G respectively.
45. PW-27, ASI Satya Prakash is a formal witness, who on 12.09.2013, collected PM report with inquest paper from Mortuary, AIIMS. On 04.10.2013, he took an appointment from Smt. Asha Pahwa, Sr. Scientific Officer for polygrah test of Shashi Kant Jha and on 29.10.2013, he collected polygraph test report. All said documents FIR No.365/13 22/55 St. Vs. Parveen were handed over by him to IO Inspector Shahid Khan.
46. PW-28 HC. Avdesh Kumar proved on record DD No. 39A, Ex. PW-28/A regarding the incident of firing. As per his version, said DD was registered on receipt of said information from PCR and said information was received on 27.08.13 at about 3.55 pm.
47. PW-29, Ms.Asha Pahwa, Assistant Director, Lie Detection Department, FSL, Rohini, Delhi, had conducted polygraphy test on the complainant Shashi Kant Jha on the appointed day w.e.f. 15.10.2013 to 17.10.2013 and she proved on record her detailed report FSL- 2013/LD-7591 dated 23.10.2013 as Ex. PW-29/A. As per her report/opinion, Shashi Kant Jha was truthful on issues No. 1 to 5 mentioned in the said report.
48. PW-30 SI Vikram Singh is the 1st IO to whom DD No. 39A Ex. PW-28/A was assigned and pursuant thereto, he with Ct. Ramroop reached at the spot i.e. House No. C-1/535, Sangam Vihar, New Delhi. As per his version, on reaching there, he found the dead body of a person on the bed in a room at ground floor and left side of head was severally injured. Blood was lying on the bed and pieces of flesh were found clinged on the wall of the room. Complainant Shashi Kant Jha was also present there. In the meantime SHO Inspector Shahid Khan also reached there and inspected the spot. The legs of the deceased were hanging from the bed and a country made pistol was lying near his feet. Crime team was also called, inspected the crime scene, took photographs. PW30 recorded statement of complainant and prepared rukka Ex. PW30/A and handed over the same to Ct. Ramroop. Exhibits FIR No.365/13 23/55 St. Vs. Parveen were lifted from the spot. Hand swabs of both hands of deceased alongwith control swab were seized vide memo Ex. PW1/F, country made pistol lying on the floor was checked and it was found containing empty shell. Sketch of shell and pistol was prepared vide Ex. PW1/C bearing his signatures at point 'E' and same were seized vide memo Ex. PW1/E. The dead body was sent to mortuary through Ct. Sanjay vide request letter Ex. PW30/B. Blood stained bed sheet, one lead of bullet (sikka of bullet) which was recovered from cemented shelf near the bed in the room were seized vide memo Ex. PW16/E and Ex. PW1/D respectively. The sketch of sikka Ex. PW30/C was also prepared before its seizure. All the parcels were seized with the seal of SGV1SED. Upon direction of Inspector Shahid Khan, PW30 also prepared the rough site plan Ex. PW1/B at the instance of complainant. In the meantime, PW5 received a call from ASI Lala Ram, PS Neb Sarai who informed that one person Praveen Kumar, who had committed crime in Sangam Vihar had been admitted in AIIMS Trauma Centre with burnt injuries. Upon direction of Inspector Shahid Khan, SI Pankaj with other police staff was sent to AIIMS, Trauma Centre. Clothes worn by complainant, which were having blood stains were also taken into police possession vide seizure memo.
49. On the next date, PW30 alongiwth IO Inspector Shahid Khan and other police staff reached mortuary where inquest papers were prepared by Inspector Shahid Khan for postmortem of dead body. After postmortem, exhibits of deceased i.e. viscera box, gun powder were taken into police possession vide memo Ex. PW30/D and E respectively. Thereafter, police team also visited Burn ward of Safdarjung Hospital where accused was admitted but he (accused) FIR No.365/13 24/55 St. Vs. Parveen was declared unfit for statement. On 29.08.2013, PW30 again joined the investigation with Inspector Shahid Khan and other police staff. On that day, accused Praveen was brought to police station by police staff. Complainant was called in PS and he identified the accused and he was arrested vide arrest memo Ex. PW1/I bearing his (PW30) signatures at point C. Accused was interrogated and his disclosure statement Ex. PW16/B was also recorded. Thereafter, accused was taken to the spot where he pointed out the place of incident vide pointing out memo Ex. PW16/A.
50. On 31.08.2013, PW30 again joined the investigation with IO Inspector Shahid Khan and further interrogated accused and his supplementary disclosure statement Ex.PW16/C was also recorded. On 04.09.2013, Ct. Mahender brought one sealed parcel with seal of Department of Forensic Medicines, AIIMS and handed over the same to IO Inspector Shahid Khan and same was seized vide memo Ex. PW16/D.
51. PW31, Ct. Ramroop had reached the spot with SI Vikram and he was sent with rukka prepared by SI Vikram, for registration of FIR at PS Sangam Vihar. His examination in chief is on the lines of SI Vikram i.e. PW30, whose testimony has already been discussed.
52. PW32, is the IO Shahid Khan. His version in examination in chief is also similar to what has been deposed by PW30 SI Vikram. He proved on record inquest paper with form 25.35 (1) and the application for postmortem on the dead body of deceased as Ex. PW32/A and Ex. PW32/B respectively. Upon his authority letter Ex.
FIR No.365/13 25/55St. Vs. Parveen PW32/D, Ex. PW32/E, Ct. Mahender and HC Satya collected the clothes of deceased and postmortem report from the hospital. Besides this, PW32 himself collected report regarding weapon of offence, hand swabs of deceased and viscera report and same are available on record as Ex. PW32/F to Ex. PW32/I respectively. Request letter regarding CDR mobile phones of Shashi Kant Jha and deceased is Ex. PW32/J.
53. Except PW2, PW3, PW9, PW11 and PW28 who were formal witnesses all other witnesses were duly cross examined by the defence counsel and relevant part of their cross examination shall be discussed in the later part of this judgment under the heading 'court discussion'.
Statement under section 313 Cr.P.C.
54. After completion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein accused denied the case of the prosecution and came up with the defence plea that he has been falsely implicated in this case by Shashi Kant Jha, who was having some monetary dispute with the deceased and for this reason Shashi Kant Jha was also suspected for deceased's murder even by deceased's wife as she had filed a complaint in this regard. In answer to the question as to why PW's have deposed against him, he stated that Shashi Kant Jha, in order to save himself, falsely implicated the accused and he (PW1) did not disclose the true facts before the court or to the IO. Accused further stated that Shashi Kant Jha was the best person who could tell in which manner the incident had occurred because either it is the case of accidental fire caused with the hands FIR No.365/13 26/55 St. Vs. Parveen of deceased or an intentional murder committed by Shashi Kant Jha.
55. In answer to question that he committed murder of Sanjay Kant Jha by firing on his head by using county made revolver, which he took out from his room, accused replied that when he reached the spot alongwith paranthas, he found the deceased lying in injured condition and Shashi Kant Jha was also present in the room. After seeing the position of the deceased and scene of crime, he ran away from the spot in order to save himself. He further denied that he was carrying any revolver with him.
56. Regarding incident of his falling from the electric transformer and suffering burn injuries by electrocution, he came up with the plea that after seeing the dead body, he ran away from the spot and while running, he scaled over the wall and unconsciously touched some wire and got electric shock.
57. On being confronted with the incriminating material which has come on the record by way of deposition of eyewitness Shashi Kant Jha, accused answered that Shashi Kant Jha never went to bring any paranthas nor any paranthas were consumed by them because it was he (accused) who went to bring paranthas and when he returned back to his room with the paranthas, the incident had already taken place and he ran away from the spot alongwith the paranthas which were thrown by him on the way while he was running to save himself.
Defence Arguments
58. Arguments put forward by the defence counsel Sh. L.K. FIR No.365/13 27/55 St. Vs. Parveen Verma are manifold. The first contention urged on behalf of the accused is that prosecution case is based on an eyewitness account, who was allegedly present in the room at the time of alleged incident but, his testimony is not in consonance with the medical evidence. It is argued that the version of the eyewitness suffers form material contradiction hence, cannot be relied upon to base conviction in the present case. Ld Defence counsel raised the contention that as per the contents of the charge sheet, at about 3.30 PM, when complainant was about to leave for home, the accused took out one revolver from the drawer and shot fire on the left side head of the deceased, while deceased was sitting on the bed. After gun shot deceased fell down on the bed and accused Praveen ran away from the spot after throwing the revolver in the room. Thus, as per charge sheet, the gun fire was shot on the left side head of the deceased. Even in the examination in chief PW1 took the same stand by deposing that deceased sustained bullet injury on the left side of his head. In his cross examination, PW1 further clarified the position by deposing that accused shot deceased on his left side. Further as per his version, deceased was trying to leave the bed, when he received bullet injury and the accused was standing on the left side of the deceased, while he i.e. PW1 was in front side of the deceased. In cross examination PW1 further denied the suggestion that bullet was fired from right side of the deceased and exited from the left side of deceased.
59. Whereas, on the contrary the medical evidence which the prosecution adduced on record suggests that the entry wound of the gun shot was found over the right parietal region of scalp and the FIR No.365/13 28/55 St. Vs. Parveen exist wound was present over the left fronto-tempero parietal region. it is contended that, if the accused was standing on the left side of the deceased at the time of the incident, there could be no possibility of shot being fired by him on the right side scalp of the deceased so as to cause the entry wound on the right parietal region. He further argued that said material contradiction in the prosecution evidence is itself sufficient to discard the version of the eyewitness as the same leaves his testimony unworthy of reliance to base any conviction on the same.
60. It is further argued that the incident had occurred when only the deceased and eyewitness were present in the room as the accused had left them for fetching some pranthas from the market. And the eyewitness in order to save his skin put the blame on the accused. It is further submitted that as per testimony of wife and brother of deceased who have been examined PW4 and PW19 respectively, they had raised suspicion on Shashi Kant Jha i.e. PW1 regarding his involvement in commission of murder of deceased and pursuant to that only polygraphy test of Shashi Kant Jha was got conducted, though the same came out to be negative as despite the IO having prepared 20 questions, only 5 questions were put to PW1 during said test.
61. The second contention raised on behalf of accused is that although the hand swab of both the palms of the deceased were taken by the crime team to rule out the possibility of suicidal death but the IO did not deliberately send the same to CFSL and allowed the material evidence to contaminate so as to give it an angle of FIR No.365/13 29/55 St. Vs. Parveen homicidal death. it is further argued that even as per the testimony of PW14 Dr Hari Parsad who conducted the postmortem of dead body, the kind of injuries mentioned in the PM report could have been caused by way of suicidal attempt.
62. The third contention raised on behalf of the accused is that as per the version of eyewitness, at the time of incident, the distance between the deceased and the accused was approximately 3 fts, whereas as per version of PW14, blackening was present inside the wound, which was possible both in case of close range and in contact range and close range means when the firing was done from the distance of not more than 10cm. In this way, the version of eyewitness is again not aligning/ matching with the medical evidence because as per medical expert the gun shot was fired from the distance of not more than 10cm whereas as per the eyewitness the accused was standing 3 fts away from the deceased at the time of alleged incident.
63. Further more, as per cross examination of PW14, about 300 ml of partially digested food was present in the body of the deceased at the time of postmortem and it takes about 1-2 hours for the food to get partially digested. On the contrary PW1 in his cross examination deposed that deceased had consumed paranthas just 10 minutes before the gun shot was fired. Hence, in such a short duration of 10 minutes, there is no possibility of food having got partially digested. Counsel submitted that PM report no where suggests that any undigested food particles were found inside the body of the deceased.
FIR No.365/13 30/5564. Counsel further argued that as per prosecution case after the accused ran away from the spot, PW1 chased him for 100-150 meters. Whereas, as per PW18 Anurag Pandey, who was running a general store at C-1/546, Sangam Vihar i.e. just near the place of incident C-1/535, he had heard the sound of bullet fire at about 3.15- 3.20 PM when he was present in the shop and after hearing the sound he went to place of occurrence where he saw one person Shashi Kant Jha standing near the gate and he was calling the police. He submitted that aforementioned version of PW18 falsify the version of PW1 that he (PW1) had chased the accused for about 100 metres because had it been so, PW1 would not have been found present at the gate just after 3-4 minutes of the gun shot because considering the proximity of distance between the shop of PW18 and the place of occurrence, PW18 would not have taken more than 3-4 minutes to reach the spot.
65. It is further contended that cloths of deceased and the eyewitness were seized by the police but cloths of accused were never seized by the police because they were not having any blood stains showing thereby that he was not present at the time of alleged incident.
66. Ld Defence counsel further pointed out certain more discrepancy in the statement of PW1 such as that as per his version he was taken to police station within 10 minutes of arrival of police and thereafter, he never came back at the spot and further that his statement was recorded by the police at about 7-8.00 PM. Whereas, FIR No.365/13 31/55 St. Vs. Parveen as per police witnesses, his statement was recorded on the spot.
67. It is further argued that site plan Ex.PW1/B does not mention the place from where the eyewitness witnessed the incident or the place where the accused was standing at the time of alleged incident and therefore, no reliance can be placed on it. In this regard, Counsel has placed reliance on the judgment of Hon'ble Apex Court of Tori Singh vs State of U.P AIR 1962 SC 299.
68. Since the above contention relating to faulty site plan is based on a judgment, I would like to deal with the same here only instead of leaving it to be decided at the end. I have carefully perused the aforementioned judgment relied upon by the defence counsel. Perusal of said judgment shows that as per the law laid down therein, the site plan/ sketch map prepared by IO shall be admissible only to the extent it indicates all that IO himself had seen but, any mark put on sketch map based on the statements made by the witnesses to the IO could not be admissible in view of bar or section 162 CrPC, as it will not be a statement more than statement made to police.
69. In view of above judgment, no weight could have been attached to such marks even if the same were mentioned in the site plan as the same would be in any case based on the version of eyewitness and would not have been based on the personal knowledge of the IO. Even otherwise, we should not lose sight of the fact that present case is based on eyewitness account and not a case of circumstantial evidence.
FIR No.365/13 32/5570. Defence counsel has further pointed out one more discrepancy with respect to position of bullet/pistol saying that as per the crime team report as well as the cross examination of PW22 In-charge PCR, who first reached the spot after getting PCR call, the pistol i.e the weapon of offence was lying on the bed and even PW5 who was working in CPCCR, PHQs also confirmed in her cross examination that on 27.08.2013 at 16:25:57 hours, PCR had reported the matter back to control room and it was also reported that SHO alongwith staff had reached the spot and the katta was lying on the bed with the deceased. Whereas, as per the prosecution witnesses who had joined the investigation or who had been to the place of occurrence immediately after the incident, said pistol was lying on the floor near the feet of dead body which again creates a serious doubt on the truthfulness of the prosecution story.
71. It is urged by the Ld Defence counsel that except the disclosure statement of accused, prosecution has not adduced any iota of evidence to prove the motive of offence or to prove the source from where the alleged weapon of offence was allegedly procured by the accused. Rather as the version of PW1 and PW4, the relation between deceased and accused were cordial and they had never heard of any enmity or dispute between them. On the other hand both PW1 and PW4 have admitted in their cross examination that PW1 had taken a loan of Rs. 1 lakh for marriage of his daughter from some third person through deceased and as per their version same was not repaid till the death of deceased.
FIR No.365/13 33/55St. Vs. Parveen Arguments of Ld Additional Public Prosecutor
72. Ld Additional Public Prosecutor Sh. R.K. Mehta rebutted the arguments regarding difference in the version of eyewitness and the medical expert with respect to the position of entry wound and exit wound by submitting that eyewitness is a layman who could easily commit an error of judgment. He pointed out that even PW12 Dr. Sanjeev Diwedi, who had prepared the MLC of deceased, has deposed in his testimony that point of entry and exit wound could not be assessed and even in the MLC Ex.PW12/A same opinion has been given by the doctor. Ld Additional Public Prosecutor submitted that testimony of PW12 has gone unbuttered as he was never cross examined by the defence side. It is further argued that since PW1 as per his own version was standing opposite to the deceased i.e. just in front of him and he turned back only after having the gun shot, therefore, there is a possibility of the eyewitness misjudging his left side with the left side of the deceased and deceased's right side with his right side while describing the position of gun shot.
73. Regarding defence plea that no parantha were consumed by deceased as incident had occurred while accused had gone out to fetch parantha from market, it is submitted that as per postmortem report, 300 ml of partially digested food particles were found in the stomach of deceased, which clearly shows that some solid food was eaten by deceased just within 1 hour before his death, which falsifies the defence plea that accused was not present as he had gone for fetching paranthas from the market.
74. As regard motive of offence, Ld Additional Public FIR No.365/13 34/55 St. Vs. Parveen Prosecutor submitted that testimony of PW1 regarding deceased having spoken with accused in private while he (accused) visited deceased's shop at about 12.00 noon on the date of incident, shows that the deceased and the accused had something secret between them and the same was within their knowledge only. Further even PW4 Ranju Devi i.e. deceased's wife has deposed regarding the incident of morning, when accused came to deceased's house with one person (examined as PW19) on his motorcycle and having asked Ranju Devi to ask her husband i.e. the deceased, who at that time was in toilet to come out soon and then asking the deceased after he came out from the toilet as to why had he called him yesterday and reply of deceased that he had called him yesterday and not today and then asking him (accused) to go away, again reflects that the relation between two were not cordial and there was some secret matter to which only they both were privy. Testimony of deceased's wife in this regard has been duly corroborated by both PW11 Avinash Kumar Jha who was accompanying the deceased when he came to deceased's house in the morning as well as by PW1, from whom accused asked about availability of deceased at his home before visiting him in the morning.
75. Ld Additional Public Prosecutor further argued that the conduct of accused in fleeing away from the spot immediately after the incident, then jumping down from an electric transformer from 10- 15 feet of height is clearly reflective of his guilty mind as out of remorse he attempted to commit suicide and said incident of attempted suicide by jumping from the electric transformer has been duly proved on record by two independent eyewitnesses i.e. PW15 FIR No.365/13 35/55 St. Vs. Parveen Ram Rattan and PW17 Sushma, who were present near the place of occurrence and themselves witnessed the said incident.
76. Ld. Additional Public Prosecutor further submitted that since the incident of attempt of suicide had occurred within 30 minutes of alleged incident of murder, the second incident of attempted suicide formed part of same transaction and hence instead of registering separate FIR, section 309 IPC was added in the present FIR itself.
COURT'S DISCUSSION
77. After having noted down all the contentions raised from both the sides let us now advert to the material, which has come on record in the form of ocular and documentary evidence. As already noted above, the case of the prosecution is based on the testimony of an eye witness Shashi Kant Jha, as per whose version, at about 2.30 PM after dropping his daughter at home, he reached accused's house at C-1/535, where deceased and accused both were already present. After leaving the eyewitness at the room, they both deceased and accused went out on his motorcycle to bring some beer bottles and paranthas. After some time, they came back, they all ate paranthas; accused and complainant also had consumed beer. Accused first finished his pranthas and drink and keeping aside his plate, he went towards space between bed and drawer; deceased was sitting in the middle of the bed; complainant in lighter mood while complaining about having being given only one parantha, said that he was leaving from there & when complainant went towards door of the room, he heard the sound of firing and when he turned back, he saw the FIR No.365/13 36/55 St. Vs. Parveen accused running away from the room after leaving the Katta/Pistol in the room, and complainant also saw the deceased having sustained injuries on the left side of his forehead. The complainant tried to apprehended the accused by chasing him for about 100 mtrs. but accused succeeded to flee away. Thereafter, complainant returned back to the spot. While coming back to spot, he tried to call 100 number but his phone got connected to the relative of the deceased whom he informed about the murder of deceased and thereafter, he called police at 100 number and reported the incident. By that time, lot of public also gathered at the spot.
78. From the aforementioned testimony of the complainant, one thing is clear that though complainant was present in the room at the time of incident but the gun shot was not fired within his view. As per deposition of PW-1, when the shot was fired, he (PW-1) was facing towards the door of the room while deceased was sitting at his back and he (PW1) turned back only after he heard the sound of gun fire and the moment he turned back, he saw the accused running from the spot after leaving the revolver in the room. This shows that he (PW1) did not have the occasion to see as to from which side of deceased the gun shot was fired. The deposition of the complainant that deceased had sustained bullet injury on the left side of his forehead seems to be based merely on the observation of complainant after he turned back. Since the complainant had seen the left side of the deceased's head severally injured, as is also evident from the photographs of the crime seen, he might have inferred that deceased was shot from the left side and just to support his version, he added said fact which is based on his own inference FIR No.365/13 37/55 St. Vs. Parveen drawn from the condition of the deceased's head. Though, PW-1 in his cross-examination has deposed that accused was standing on the left side of deceased and he was in front side of deceased but he has nowhere deposed that he had seen the accused firing at the deceased from the left side.
79. It is worthwhile to know that as per MLC of the deceased which is Ex PW-12/A, even the doctor who was a medical expert, could not assess by mere examination of dead body as to on which side was the entry room and on which side was the exit room. In said circumstances, how a layman can be expected to correctly make out the position of direction of firing merely by looking at the wound. Because of the fact that after gun shot, complainant saw the brain material coming out from the left side of deceased's head, there is every likelihood of his presuming that shot was fired on the left side. But, not much weight can be attached to witness's said version, which is nothing but an improvement, which he seems to have made to lend support to prosecution case.
80. We cannot lose sight of the fact that there is a tendency amongst the truthful witnesses also to back up a good case by false and exaggerated version. In this type of situation, the best course to the Court would be to discard exaggerated version or falsehood but not to discard the entire version. Further, when a doubt arises in respect of certain facts stated by said witness, the proper course is to ignore the fact only unless it goes into the root of the matter so as to demolish the entire prosecution evidence. Reliance placed on State of Gujarat vs. Bharwad Jakshibhai Nagrivhibhai and others FIR No.365/13 38/55 St. Vs. Parveen 1990 Cr.LJ 2531.
81. In Bharwad Bhoginibhai Hirjibhai vs. State of Gujarat AIR 1983 SC 753, wherein the court observed that a witness though wholly trustful is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or to fill up details from imaginations on the spur of the moments, but that would be no ground for discarding the evidence of the witness.
82. In the light of aforementioned position of law, said contradiction with the medical evidence, which has come in the version of complainant, cannot be fatal to the prosecution case for the reason that the witness has nowhere claimed to have seen the firing of gunshot because at the time of firing, he was facing the door of the room and his back was towards the bed where deceased was sitting. In view of said position, his testimony to the extent that shot was fired from left side, which is going contrary to PM report, can be ignored and it cannot be a reason to discard his rest of the version which is otherwise clinching and trustworthy.
83. The version of PW1 to the effect that when he turned back, he saw the accused running outside leaving the pistol in the room and accused lying on the bed in injured condition, makes it clear that account given by PW1 in his cross-examination regarding position of accused on left side of deceased was related to the period prior to the fire of gunshot i.e. before he (PW1) proceeded towards the door of FIR No.365/13 39/55 St. Vs. Parveen the room.
84. As per accused, they only had consumed liquor and did not eat any paranthas, as he had gone to take paranthas and when he came back, the deceased was lying dead. But as per postmortem report, about 300 ml. partially digested food was found in the stomach of deceased which shows that immediately before death, some solid food item was consumed by the deceased which goes contrary to defence plea that no parathas were consumed and indeed it lends support to the prosecution case that all three including the deceased had consumed paranthas, which were fetched from market by deceased and accused just prior to the incident.
85. In the instant case, the presence of eye-witness in the room where incident had occurred is not a disputed fact. Rather the defence plea is that it was the complainant only who was present in the room with the deceased at the time of alleged incident. It is also not disputed that just before incident, liquor was also consumed by all three, though as per the complainant only complainant and accused consumed the beer. As per the statement recorded u/s 313 CrPC, accused seems to have taken the plea that after consuming the liquor, he had gone to fetch paranthas and when he returned back, he saw the deceased lying in the injured condition and complainant Shashi Kant Jha present in the room. After seeing the deceased in such condition he (accused) ran away from the spot.
86. Here, what is interesting to note is the reaction of the accused. It is nowhere the defence plea that when accused returned FIR No.365/13 40/55 St. Vs. Parveen back in the room, besides seeing the dead body of deceased in the room he (accused) had also seen Shashi Kant Jha with the pistol in the hand. Accused did not even say that he had seen any pistol in the room or that complainant had threatened him in any manner. In such situation, it is not clear, as to what actually scared him to feel unsafe about his life and that too to the extent that instead of trying to know about the cause of death of deceased, who had visited his room as a guest or to call the police, the accused preferred to run away from the spot.
87. As per defence plea, it was either the case of an intentional murder committed by Shashi Kant Jha, or an accidental fire by deceased. But in the both said cases, the person who happens to see such scene in his own house is not expected to react in such a way. Although human behaviour varies from person to person and to same situation different people tend to react in different ways but, still the behaviour of a prudent man is usually taken as standard behaviour to judge the reasonableness of a person's conduct or action.
88. Considering said standard of behaviour, the reaction of accused in running away from the spot, without making any effort to inform anyone about the incident is nothing but suggestive of his own involvement in the offence. His unusual behaviour did not stop merely in running away from the spot, but his feeling of guilt/remorse further got manifested when just within 30 minutes of alleged incident, he tried to commit suicide by jumping from electric transformer from the height of 10-15 feet. The fact of accused having FIR No.365/13 41/55 St. Vs. Parveen sustained burn injuries due to electrocution is not a disputed fact. But, accused has come out with the plea that while running away from the spot, he scaled over a wall and unconsciously happened to touch some naked wire and sustained burn injuries. In this regard, let us advert to the evidence adduced on record. For proving the alleged incident of attempted suicide by the accused by jumping from the transformer and sustaining burn injuries, prosecution has examined six witnesses i.e. PW1, PW6, PW15, PW17, PW23 and PW30.
89. As per the version of PW23 ASI Pradeep Singh, on 27.08.13 at about 3.58 PM, upon receipt of an information from control room regarding falling of one person from transformer near Jhulelal Mandir near Krishna Park, he alongwith Ct. Anil reached the spot with PCR van and found one person in mysterious condition and he (PW23) was informed by public present on the spot that injured had fallen down from transformer and suffered injuries due to electrocution.
90. Ld. defence counsel has contended that ASI Pratap Singh, who as per prosecution case first reached the spot after alleged incident of jumping from transformer, deliberately did not hand over the log book to the IO and concealed the true facts as no such incident of accused falling from transformer or electric pole was ever reported to PCR.
91. It is pertinent to mention here that MLC no. 385445 (Ex. PX) of the accused was prepared on 27.08.2013 at 4:48 pm at AIIMS and same is an admitted document (S. 296 CrPC) and even said MLC FIR No.365/13 42/55 St. Vs. Parveen narrates the same fact that accused was admitted with alleged history of electric injury due to fall from approx 10 ft. height and by the time when accused was admitted in the hospital, there was no knowledge on the part of PCR Staff who first reached the spot or on the part of local police of Neb Sarai Police station, who reached there after receipt of information from PCR about the involvement of injured i.e. accused Praveen in any offence, and therefore, the contention that police tried to manipulate by concealing material facts does not hold good. It is only upon visiting the address of accused as mentioned in his MLC, PW6 ASI Lala Ram, a police official from local police station of PS Neb Sarai, came to know about the involvement of accused in commission of murder in the area of Sangam Vihar and it is then only he contacted SI Vikram, the first I.O of present FIR after taking his phone number from duty officer of P.S. Malviya Nagar. On the other hand prosecution has duly proved on record the alleged incident of the accused jumping from an electric transformer by examining two eye-witnesses namely Ram Rattan and Sushma.
92. I have carefully perused the testimony of both the said witnesses. PW15 Ram Rattan is a 62 years old man, who was living in the same area of Krishna Park where the alleged second incident had occurred. As per his version, his house was 25-30 feet away from the electric pole and same was just in front of his house and he had seen the incident from the balcony of his house, because at relevant time he was not gainfully employed and used to stay at home. The incident had occurred between 3-5 PM on a day about 1½ to 2 years ago, when he saw a person having climbed on an electric pole and then falling on the ground. When said person fell, he (PW15) saw FIR No.365/13 43/55 St. Vs. Parveen some blood and could not bear the scene and came inside his room. In his cross-examination, PW15 further deposed that the pole from where said person fell down was 15 feet height as one electric transformer was installed on a pair of two electric poles and that person had gone upto where transformer was installed. He denied the suggestion that he had not seen the incident or that since his house was situated near an electric pole, therefore, police cited him as a witness.
93. The testimony of PW15 has been duly corroborated by another witness Sushma, who used to do the work of ironing in the same area. As per her version (PW17), at above 4.00 PM on 27.08.13, one person whom she correctly identified as accused in the Court, fell down from an electric pole and sustained burn injuries due to electric current. Thereafter, someone called police and police took him (injured) to hospital in their Gypsy. On the next date police came and inquired about the incident and recorded her statement. In her cross- examination, she deposed that she had noticed the accused only when she heard the noise of his falling. He was unconscious and blood was oozing out from his mouth. He denied the suggestion that her statement was not recorded by police on 28.08.2013.
94. It was contended by Ld. defence counsel that PW17, in her cross-examination has admitted that the electric pole from where the accused allegedly jumped, was not visible from the place from where she used to iron the clothes, hence, she was not competent to depose in this regard.
FIR No.365/13 44/5595. However, I may mention here that, as per PW17 she had not seen the accused climbing or jumping from the electric pole. As per her deposition, she noticed the accused only when he fell down on the ground and she heard the thud sound of his falling. The lady has nowhere claimed that at the time of hearing said sound of falling, she was present at the place where she used to do ironing work. In absence of any such claim, the non-visibility of electric pole from place of her work, will not make her testimony unworthy of credence. There may be a situation that she might have gone to deliver ironed clothes in the vicinity and then would have come across of alleged incident. It is also interesting to note that though the accused has all along taken this defence that he had sustained burn injuries when he unconsciously touched live wires while scaling over the wall but no such suggestion was put to either of said two witnesses. Ld. Defence counsel failed to elicit anything in cross-examination of said two witnesses to either raise any doubts on their presence at the spot or to shake their testimony regarding manner of incident. Testimony of both the witnesses has remained unimpeached and unshaken.
Contradictions in prosecution case in view of Ballistic Report
96. As per prosecution case, accused had taken out a pistol from the drawer and fired gun shot in the right side of deceased's head and the fired bullet exited from the left side of the head. Whereas, as per testimony of the IO (PW32), the shelf where the bullet lead/sikka was found was on the wall which is shown in white colour in the photograph Ex. PW2/A2. The perusal of said photograph shows that the said cemented shelf was on the right side of the FIR No.365/13 45/55 St. Vs. Parveen deceased. As per the IO, there was no blood on the bullet lead and bullet was lying inside the shelf. He further deposed in his cross examination that he had not noticed any mark in the almirah/shelf where the bullet lead would have hit. However, he had found some cemented particles on the bullet lead. Even as per the seizure memo of said fired bullet Ex. PW1/D, the sikka of the bullet was recovered from the doorless almirah in the wall of the room and same was measuring to 2.8 cm and at one side of it some cement particles were also noticed and same was sealed with the seal of SGV-1SED and taken into police possession.
97. As per the medical evidence brought on record, the bullet was fired from the right side and exited from the left side head of the deceased. Whereas, from the position of the place from where the fired bullet was allegedly recovered, it appears that it exited from the right side of the head of the deceased and it struck against the wall of the cemented almirah with such a force that some cement particles also got clinged on the bullet. The said position is going against the medical evidence because as per postmortem report, the exit wound was on the left side of the deceased and in view thereof, there was no occasion for the fired bullet to reach the right side of the deceased without bouncing back after striking on the bed or the wall of the room on the left side. It is nowhere the prosecution case that any such strike mark of the bullet was noticed on the left wall of the room. In cross examination, PW6 has deposed that the point containing bullet hit mark was at the height of approximately 5 ft. from the floor but he did not disclose on which side wall of the room said bullet hit mark was allegedly present i.e. whether it was on the wall of the left side of FIR No.365/13 46/55 St. Vs. Parveen deceased or on the cemented almirah on the right side of the deceased. It is also pertinent to mention that as per the version of IO, he did not notice any mark even on the almirah on the right side after firing where the bullet would have fallen on the ground. There certainly ought to have some hit mark of bullet on the cemented almirah especially, when some particles of cement were also noticed by the IO. Perusal of the record shows that although a scaled site plan Ex. PW25/A which was prepared by PW25 after visiting the place of occurrence on 12.09.2013 does find mention point 'E' where bullet mark in open almirah was found and point 'F' just on the opposite wall on the left side of the deceased, where another bullet mark at the height of 2.15 cm was found but as already noted above, it is not consistent with the version of IO/PW32 who deposed that there was no bullet hit mark in the cemented almirah on the right side of the deceased. Even the photographs of the crime scene which have been placed on record as Ex.PW2/A-1 to PW2/A-16 nowhere show any such bullet mark on the walls of the room. In these circumstances, it is not clear as to how the bullet reached on the right side of the deceased without hitting some obstructions on the left side especially when the exit wound as per medical examination was on the left side.
98. During the course of final arguments, when ballistic report was perused by the court it was noticed that neither it was admitted by defence u/s 294 Cr.P.C. nor it was proved by prosecution by examining the Principal Scientific Officer who prepared the report despite the fact the the Principal Scientific Officer does not fall in exempted category of experts provided u/s 293(4) Cr.P.C. In said report, as per the opinion of the ballistics expert, though the cartridge FIR No.365/13 47/55 St. Vs. Parveen case recovered from the spot was found to have been fired from the country made pistol recovered from the spot but, the fired bullet recovered from the almirah in the room was not fired from the country made pistol recovered from the spot.
99. From the aforementioned opinion of the expert in the ballistic report, a major discrepancy crept in the prosecution case because as per the prosecution case, the gun shot was fired on the deceased from the pistol/katta recovered from the spot, whereas, opinion of ballistic expert is just contrary to it. To seek clarification in this regard, this court summoned the ballistic expert who prepared said report, u/s 311 Cr.P.C. as a court witness.
100. He was examined as CW1 and in his examination in chief he deposed that the report Ex. PW32/F was prepared after examination of contents of parcel-I and parcel-2. Parcel-1 was containing.315"/ 8mm country made pistol (marked as W/I by him) and.315"/8mm cartridge case (marked as C/1 by him). Parcel-2 was containing .315"/8mm fired bullet (marked BC/1 by him). As per his report, the pistol mark W/1 contained in parcel-I was designed to fire standard .315"/8mm cartridges and was, therefore, "Fire-arm" as defined in the Arms Act,1959. The .315"/8mm country made pistol mark (W/1) was in working order in its present condition and had been fired through. Further, as per his report, .315"/8mm cartridge case (marked C/1) contained in parcel-I had been fired from the .315"/8mm country made pistol (W/1) contained in parcel-I. But, .315"/8mm fired bullet (marked BC/1) contained in parcel-2 (wrongly mentioned in the evidence sheet as parcel-I) had not been fired from the .315"/8mm FIR No.365/13 48/55 St. Vs. Parveen country made pistol (W/1) contained in parcel-I.
101. On the specific question put to the witness by the court that whether from his report it could be concluded that cartridge case marked C/1 contained in parcel-I was not of the fired bullet marked BC/1 contained in parcel-2, to which the witness answered in affirmative. He further deposed that his opinion that the fired bullet contained in parcel-2 had not been fired from country made pistol W/1 contained in parcel-I was given after conducting test firing of the firearm in question in the laboratory with the laboratory stock . 315"/8mm cartridges and after test firing, test fired cartridges cases and test fired bullets were examined under the comparison microscope with the evident cartridge case and bullet (the one in the parcel-1 & parcel-2) and on the basis of said microscopic examination, it was opined that the evident cartridge case (C/1) had been fired from the country made pistol in question and the evident fired bullet (BC/1) had not been fired from the country made pistol in question. CW1 further deposed that the opinion was given on the basis of the difference of characteristics striation marks available on the evident fired bullet and on the test fired bullets.
102. Before evaluating the credibility of ocular evidence vis-a- vis ballistic evidence, which has come on record in the instant case, let us first discuss the legal position in this regard. Although, the medical and scientific evidences in current scenario of scientific developments do play an important role in criminal trials for proving the guilt, but these are only corroborative piece of evidence and often inconclusive in nature because it is primarily an evidence of opinion FIR No.365/13 49/55 St. Vs. Parveen and not of fact. The testimony of an eye witness, therefore, cannot be thrown out merely on the ground of inconsistency with the scientific evidence which is only probative and corroborative.
103. In this regard, Hon'ble Apex Court in Gangabhawani vs. Rayapati Venket Reddy & Ors., Crl. Appeal no. 84/2011, decided on 04.09.2013 has laid down as under:
"7. It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion an another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'.
Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. (Vide: Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727; State of Haryana v. Bhagirath, AIR 1999 SC 2005; Abdul Sayeed v. State of M.P., (2010) 10 SCC 259; and Rakesh v. State of M.P., (2011) 9 SCC 698).FIR No.365/13 50/55
St. Vs. Parveen Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
104. Now adverting to the facts of the present case, as per the prosecution, at the time of alleged incident there were only three persons in the room i.e. the accused, the deceased and the complainant. It is nowhere the prosecution case or the defence plea that there was any window in the room so as to give rise to any possibility of gun shot being fired by someone from outside the room. Even the photographs of crime scene placed on record, nowhere show that any window was there either on the left or right side of the bed where the injured was allegedly sitting at the time of incident. However, as regard the number of doors in the room, prosecution witnesses have deposed differently in their cross examination. As per PW1, there were two entry and exit gate whereas, as per PW16 & PW18 there was only one door for exit and entry from the room. In these circumstances, the gun shot must have been fired either by the accused or by the complainant or by the deceased himself. As per PW14 who conducted the postmortem of dead body, the gun shot was fired from 'close range' or 'contact range' and by 'close range' he meant at the distance of not more than 10 cm away from the target. PW14 further opined that kind of injuries mentioned in PM report could have been caused by suicidal attempt. Considering said circumstances of the case, it was incumbent upon the IO to take the FIR No.365/13 51/55 St. Vs. Parveen palm swabs of deceased to rule out the possibility of suicidal death. In this case, IO performed his duty only partly as though he took the hands swabs of the deceased, but he failed to promptly send the same to FSL for getting expert opinion. It is only during trial after examination of few witnesses, it was pointed out that hand swabs were still lying in the malkhana of concerned police station and thereafter, upon directions of the court, they were sent to FSL for expert opinion. However, as per FSL report Ex. PW32/H, which subsequently came on record, no opinion could be given on the swabs marked Ex. 'S1' & 'S2' due to insufficient data. In the background of aforementioned circumstances, the delay occasioned in sending of hands swabs of deceased is attributable to IO, who did not give any satisfactory explanation for said lapse on his part and said flaw left in the investigation has certainly weakened the prosecution case.
105. Now, again coming to the question of contradictions between eye witness account and ballistics evidence. As already noted above that even the opinion of an expert is not the last word on the subject and has to be tested by the court on the scale of logic and objectivity before discarding a conflicting ocular evidence of an otherwise trustworthy and credible eye witness. As has been discussed in preceding paras of this judgment, PW1 i.e. complainant though was allegedly present in the room at the time of gun firing but, he himself had not witnessed the firing of gun shot hence, as far as the use of that pistol, which was allegedly recovered from the spot in inflicting gun shot injuries to the deceased is concerned, the account given by PW1 is not an account of an eye witness in a strict FIR No.365/13 52/55 St. Vs. Parveen sense and therefore, cannot be given preference over the scientific evidence which has been duly tested by the court by examining the ballistics expert as a court witness. As per CW1, the fired bullet marked BC/1 taken out from parcel 2, was not fired from the country made pistol (W/1) contained in parcel 1. And his opinion is based on difference of striation marks available on the evident fired bullet and on the test fired bullet and same was noticed after microscopic examination of the two by comparison microscope in the laboratory.
106. The fact that cartridge case (C/1) recovered from the spot was found to have been fired from the evident country made pistol (W/1), establishes the fact that a gun shot was fired from said pistol (W/1). But on account of the fact that fired bullet recovered from the room was not fired from said pistol (W/1) raises a serious doubt that said pistol was used for the gun shot fired on the deceased. It is also pertinent to note that as per prosecution story, cartridge case (C/1) was found inside the pistol recovered from the spot and it was not found lying on the ground in the room.
107. In above circumstances, the contention raised by defence counsel that scene of crime was tempered cannot be brushed aside. As per the testimony of PW22 ASI Shiv Kumar, Incharge PCR K Van 460, after receiving the call from Control Room, he had reached the spot and also reported back to police Control Room about the compliance proceedings. In his cross-examination, he admitted that he had reported back that the weapon of offence was lying on the bed and said position has been further corroborated by PW5 W/Ct. Laxmi in her cross-examination wherein she admitted the suggestion that on FIR No.365/13 53/55 St. Vs. Parveen 27.06.2013 at 16:25:57 hours, PCR had reported back to Control Room and it was reported that the SHO and the staff had reached the spot and katta was lying on the bed with the deceased and same is also evident from CPCR form which mentions that the weapon of offence/pistol was lying on the bed whereas, as per prosecution case weapon of offence was lying near the feet of deceased.
108. Having regard to above discussed contradictions, a serious doubt has been created on the prosecution case with respect to the charges for the offences punishable u/s 302 IPC and Section 25/27 Arms Act. As per ballistics report, the fired bullet recovered from the spot was not fired from the recovered pistol which leads to the conclusion that either the pistol recovered from the room was not the one from which the gun shot was fired or the bullet which caused gun shot injuries to the deceased was removed from the spot and some other used bullet has been replaced. But both said circumstances are indicative of the fact that scene of crime has been tempered for which the accused is entitled to be given a benefit of doubt. It is a cardinal principle of jurisprudence that guilt of accused has to be proved beyond all reasonable doubt. However, in the instant case, on account of aforementioned contradictions in the ballistics evidence, a serious doubt has been created on the credibility of prosecution story as regard the charges for the offences u/s 302 IPC and Section 25/27 of Arms Act.
109. However, the charges of Section 309 IPC for the offence of attempt to suicide, the prosecution case has been successfully proved by the clinching evidence of prosecution witnesses PW6, PW15, PW17, FIR No.365/13 54/55 St. Vs. Parveen PW23 & PW30. The credibility of said witnesses has remained unshaken and unimpeachable as has already been discussed in preceding paras 88 to 95 of this judgment.
110. Accordingly, the accused is acquitted for the offences u/s 302 IPC and Section 25/27 of Arms Act. However, he is convicted for the offence punishable u/s 309 IPC for which the maximum punishment prescribed is one year. Whereas, the accused in this case is in judicial custody for more than three and half years and in view thereof, he is sentenced to imprisonment for one year which accused has already undergone. As a consequence, accused be released from custody forthwith, if not required in any other case.
111. As per record, accused has already furnished bail bond in terms of Section 437A Cr.P.C. which was accepted by the court vide order dated 27.01.2017.
112. Attested copy of judgment be given to the accused, free of cost. Copy of this order be sent to concerned Superintendent, Tihar Jail.
113. File be consigned to Record Room.
Announced in open Court on 23.05.2017 (Sunena Sharma) Additional Sessions Judge-03 (South) Saket Courts, New Delhi FIR No.365/13 55/55 St. Vs. Parveen