Delhi District Court
State vs . 1). Naveen Kumar @ Bawla on 19 October, 2012
1 FIR No. 538/08
PS Sultanpuri
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
SESSIONS CASE NO. : 60/09
Unique ID No. : 02404R0020432009
STATE Vs. 1). NAVEEN KUMAR @ BAWLA
S/O SH. NAIN SINGH
R/O B177 BEGUM PUR EXTN.,
DELHI.
2). RAJU @ NAGESH
S/O SH. RAM PAL SINGH
R/O F139 RAJEEV NAGAR,
BEGUM PUR, DELHI.
FIR No. : 538/2008
Police Station : Sultanpuri
Under Sections : U/S 307/34 IPC
& 25/27/54/59 Arms Act
1 of 62
2 FIR No. 538/08
PS Sultanpuri
Date of committal to session court : 17.01.2009
Date on which orders were reserved: 06.10.2012
Date of which judgment announced: 17.10.2012
JUDGMENT:
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 18.08.2008 on receipt of DD No. 29A SI Jaspal Singh alongwith Ct. Narayan Dass reached at spot, 25 Foota Road, Near Som Bazar Road, Near K.P. Property Dealer, Jain Nagar, Karala, (where Wagon R Car No. DL9CQS4962 was standing in a gali of which, on the right side window, body, driving seat, foot step (paidan) and steering blood was present) blood was also present on the leaves of nearby bushes. On the spot, Beat Officers Ct. Jai Singh and Ct. Rajesh were also present. On inquiry at the spot, on knowing about taking of the injured by PCR to hospital, after leaving Ct. Jai Singh and Ct. Rajesh at the spot, for protection of the spot, SI Jaspal Singh with Ct. Narayan Dass reached at SGM Hospital, Mangolpuri, 2 of 62 3 FIR No. 538/08 PS Sultanpuri where on MLC No. 10068/08 injured Suresh Pradhan was found under treatment and obtained MLC No. 10068/08 on which doctor had endorsed; alleged history of gunshot as told by B/B and opinion on injury was kept pending.
SI Jaspal Singh recorded the statement of complainant Sh. Suresh Pradhan which is to the effect that he lives on rent at H.No. 1704, Kashmiri Colony, Jain Nagar, Karala, Delhi with his family and is the owner of weekly newspaper "Public Darshan". Today (18.08.2008) from his house he was going by WagonR Car No. DL9CQS4962 to his office at Plot No. 240, Shop No. 2, Jain Nagar, Karala and at about 3.45 PM when he reached at 25 Foota Road, Near K.P. Property Dealer, Jain Nagar Karala, then Raju on coming from the front side, by giving a hand signal got stopped his car and he told him that his (Raju) motorcycle has gone out of order and he needed a spanner (panna). He (complainant) told him (Raju) let he (Raju) find out from his (complainant) house about it (spanner), then, in the meantime Naveen fastly came from the backside and stood with the front right side window of the car. He (complainant) has further stated that as he (complainant) looked towards the Naveen, then he (Naveen) by a pistol like thing, suddenly fired upon him (complainant), the bullet went away after 3 of 62 4 FIR No. 538/08 PS Sultanpuri grazing (Bedh Te Huae) his (complainant) right hand. He (complainant) immediately tried to start his car, but Raju caught hold his (complainant) hands. He (complainant) after unfastening (chudda kar) his (complainant) hands, after opening the right side door (of the car) started raising an alarm on which Raju and Naveen started running in opposite direction then, he (complainant) firstly ran after Naveen to catch him, but then he (complainant) on recollecting that he (Naveen) is having a weapon, then he (complainant) leaving chasing Naveen, ran after Raju, at that time Naveen also came running after him (complainant) saying to Raju "Raju catch hold him (complainant), this time after shooting in his (complainant) head, let he (complainant) be finished, this time the target (nishana) will not be missed". By that time the nearby persons also ran towards their (unki taraf) side, on which both Raju and Naveen fled from the spot. He has further stated that about 2 months back Raju had come to him to seek employment but he had refused since that time he (Raju) started hating him (complainant). Because of this hate, Raju and Naveen who are cousin brothers, has attempted to murder him (complainant) by firing upon him. Legal action be taken against both of them. He has further stated that because of bullet injury in his right hand he cannot sign from it hence he is putting his left thumb impression on the statement. On the said statement SI Jaspal Singh prepared rukka and got 4 of 62 5 FIR No. 538/08 PS Sultanpuri the case registered and carried out the investigation.
During the course of the investigation, IO inspected the spot and at the instance of complainant prepared the site plan. Crime team was called and photography of spot was got done. Exhibits lifted from the spot were taken into police possession. Statements of witnesses were recorded. Accused were searched but no clue of accused could be found. Forensic opinion regarding the injury of the complainant was taken from Sanjay Gandhi Hospital.
On 27.08.2008 both the accused Naveen and Raju surrendered in the Court. After obtaining permission from Court, they were interrogated and arrested and their police remand was obtained, their disclosure statements were recorded and at their pointing out the katta and one live cartridge used in the crime were recovered, of which sketches were prepared and were taken into police possession. Section 25 Arms Act was added in the case. Accused were produced in the Court after police remand and were sent to judicial custody. Opinion regarding the nature of injury was obtained from Sanjay Gandhi Hospital. Exhibits were sent to FSL.
5 of 62 6 FIR No. 538/08 PS Sultanpuri Upon completion of the necessary further investigation challan was prepared for the offences u/s 307/34 IPC & U/s 25/54/59 Arms Act against both the accused Naveen Kumar @ Bawla and Raju @ Nagesh and was sent to the Court for trial.
2. Since the offence u/s 307 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the court of Session, after hearing of charge prima facie a case u/s 307/34 IPC & U/s 25/27/54/59 Arms Act, 1959 was made out against the accused Naveen Kumar @ Bawla and Raju @ Nagesh. Charge was framed accordingly which was read over and explained to both the accused persons to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined seventeen witnesses. PW1 Dr. Satpal, Sr. Resident Orthopaedics, Sanjay Gandhi Hospital, Delhi, PW2 Mahipal Singh, PW3 Sh. Suresh Pradhan, 6 of 62 7 FIR No. 538/08 PS Sultanpuri PW4 Dr. B.K. Jha (be read as Dr. V.K. Jha), Medical Officer, BJRM Hospital, Delhi, PW5 Constable Manish, PW6 ASI Rajbir Singh, PW7 Sh. Puneet Puri, Senior Scientific Officer cum ex official chemical examiner FSL Rohini, Delhi, PW8 Ms. Shashi Bala, Senior Scientific Assistant (Biology), FSL Rohini, Delhi, PW9 Inspector Joginder Singh, PW10 ASI Joginder Singh, PW11 Constable Narayan Das, PW12 HC Jai Singh, PW13 HC Om Prakash, PW14 HC Ramesh Kumar, PW15 SI Jaspal Singh, PW16 Sh. B.K. Singh, DCP (NorthEast), Delhi and PW17 Ct. Sanjeev Kumar.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 Dr. Satpal, Sr. Resident Orthopaedics, Sanjay Gandhi Hospital, Delhi, who deposed that on 18.08.2008 he examined the patient Suresh Pradhan and proved his orthopaedic examination report Ext. PW1/A. PW2 Dr. Mahipal Singh, Casualty, Medical Officer, Sanjay Gandhi Hospital, Delhi who examined the patient on 18.08.2008 brought by HC Om Prakash PCR at about 4.35 PM with alleged history of gunshot as 7 of 62 8 FIR No. 538/08 PS Sultanpuri told by HC Om Prakash. He proved the MLC of Suresh Pradhan Ex. PW2/A (be also read as Ext. PW2/B).
PW3 Sh. Suresh Pradhan is the victim/complainant who proved his complaint made to the police Ext. PW3/A. He also proved the seizure memo of mat and back seat cover (Ext. P3 & Ext. P6) Ext. PW3/B, seizure memo of other seat covers (Ext. P4 & Ext. P5) Ext. PW3/C, seizure memo of blood stained leaves (Ext. P2) Ext. PW3/D, seizure memo of shirt (Ext. P7) Ext. PW3/E, seizure memo of car (Ext. P1) Ext. PW3/F (also Ext. P8 in the testimony of PW15 SI Jaspal Singh), blood sample Ext. P8.
PW4 Dr. B.K. Jha (be read as Dr. V.K. Jha), Medical Officer, BJRM Hospital, Delhi, proved opinion on the nature of injuries as grievous on the person of Suresh Pradhan (PW3) Ext. PW4/A on MLC Ext. PW2/B (be read as Ext. PW2/A) bearing his signatures at PointB. He also proved the opinion Ext. PW4/B on application of police Ext. PW4/C and deposed that the injuries on the person of Suresh Pradhan (PW3) were consistent with fire arm injury.
8 of 62 9 FIR No. 538/08 PS Sultanpuri PW5 Ct. Manish is the photographer of Crime Team. He proved the photographs of WagonR Car No. DL9C QS 4962 and certain plant with blood stains. He also proved the negatives Ext. PW5/A1 to Ext. PW5/A4 and positive photographs Ext. PW5/A5 to Ext. PW5/A8.
PW6 ASI Rajbir Singh is the Duty Officer, who proved the copy of the FIR as Ext. PW6/A and his endorsement Ext. PW6/B on the rukka.
PW7 Sh. Puneet Puri, Senior Scientific Officer Cum Ex Official Chemical Examiner, FSL Rohini, Delhi is the Ballistic Expert, who proved the Ballistics Report Ext. PW7/A. PW8 Ms. Shashi Bala, Senior Scientific Assistant (Biology) FSL, Rohini, Delhi, who deposed that she examined the exhibits and proved her detailed biological and serological reports Ext. PW8/A & Ext. PW8/B respectively.
PW9 Inspector Joginder Singh is the member of the Crime Team who proved the crime team report Ext. PW9/A signed by him at PointA. 9 of 62 10 FIR No. 538/08 PS Sultanpuri PW10 ASI Joginder Singh who proved DD No. 29A dated 18.08.2008 at 4.07 PM Ext. PW10/A. PW11 Ct. Narayan Das who joined investigation with SI Jaspal Singh, IO (PW15) and deposed on the investigational aspects.
PW12 HC Jai Singh, is the Beat Officer who alongwith Ct. Rajesh were first to reach at spot and deposed on the investigational aspects.
PW13 HC Om Prakash is the Incharge PCR Van, LibraIVI, who on 18.08.2008 took the injured Suresh Pradhan (PW3) to Sanjay Gandhi Memorial Hospital and got admitted him there.
PW14 HC Ramesh Kumar is the MHC(M), who proved the copies of relevant entries of Register No. 19 Ext. PW14/A (collectively), copies of Register No. 21 (Road Certificate) Ext. PW14/B (collectively).
PW15 SI Jaspal Singh is the Investigating Officer (IO) of the case, who deposed on the investigational aspects and besides proving the 10 of 62 11 FIR No. 538/08 PS Sultanpuri other memos also proved his endorsement Ext. PW15/A on the statement of PW3 Suresh Pradhan Ext. PW3/A, site plan Ext. PW15/B, arrest memo of accused Naveen Ext. PW15/C and his personal search memo Ext. PW15/E, arrest memo of accused Raju Ext. PW15/D and his personal search memo Ext. PW15/F, disclosure statement dated 27.08.2008 of accused Naveen Ext. PW15/G, disclosure statement dated 27.08.2008 of accused Raju Ext. PW15/H, disclosure statement dated 29.08.2008 of accused Naveen Ext. PW15/J, disclosure statement dated 29.08.2008 of accused Raju Ext. PW15/K, sketches of country made pistol and live cartridge Ext. PW15/L, seizure memo of country made pistol and cartridge Ext. PW15/M, pointing out memo of place of recovery of country made pistol and cartridge of accused Raju Ext. PW15/N, pointing out memo of place of incident of both accused Ext. PW15/O, FSL reports Ext. PW8/A & Ext. PW8/B, sanction u/s 39 of Arms Act, country made pistol Ext. PX, empty cartridge Ext. PX1, deformed bullet Ext. PY.
PW16 Sh. B.K. Singh, DCP (NorthEast), Delhi, who proved the sanction order u/s 39 Arms Act Ext. PW16/A for the prosecution of accused Naveen.
11 of 62 12 FIR No. 538/08 PS Sultanpuri PW17 Ct. Sanjeev Kumar who took two pullandas on 27.11.2008 and one sample seal, sealed with the seal of 'JS" from MHC(M) and deposited the same in FSL Rohini.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
6. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
7. Statements of accused Naveen Kumar @ Bawla and Raju @ Nagesh were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. They opted not to lead any defence evidence.
8. Ld. Counsel for the accused submitted that the prosecution has failed to examine one main material cited witness namely Ct. Rajesh, No. 12 of 62 13 FIR No. 538/08 PS Sultanpuri 1145/00 rather he was dropped by the prosecution intentionally and malafidely or due to the reason best known to the prosecution on 10.5.2011 on the statement of Ld. APP. The said Ct. Rajesh was very important and material witness for the just and proper decision of the present case as the IO of the case/PW15 has stated in his crossexamination that at the time of recovery of Katta, Ct. Jai Singh/PW12 and Ct. Rajesh were also present with him and the signature of Ct. Rajesh also appears on the memo Ext. PW15/M i.e Fard Makboozgi Desi Katta dated 29.08.2008. Non examination of Ct. Rajesh is very much fatal to the prosecution case as he is a material witness in the present case as he has been shown witness to Ext. PW3/C (Fard Makboozgi) dated 18.08.2008, Ext. PW3/D (Fard Makboozgi Blood stained leaves), Ext. PW3/B (Fard Makboozgi dated 18.08.2008), Ext. PW3/F (Fard Makboozgi Car) Ext. PW15/J (Fard Inksaf accused Naveen dated 29.08.2008), Ext. PW15/M (Fard Makboozgi Desi Katta), Ext. PW3/E (Fard Makboozgi Blood stained shirt), Ext. PW15/L (Khaka Desi Katta and cartridges), Ext. PW15/H (Fard Inkshaf accused Raju @ Nagesh dated 27.08.2008), Ext. PW15/N (Fard Nishandesi Mauka Vardat), Ext. PW15/F (Personal search memo of accused Raju @ Nagesh) and arrest memo of the accused Raju @ Nagesh Ext. PW15/D. Ld. Counsel for accused further submitted that nonexamination of SI Ashok Kumar nor 13 of 62 14 FIR No. 538/08 PS Sultanpuri citing his name in the list of witnesses is also fatal to the prosecution case as he has been the IO of the present case for some time and he has conducted the investigation of the case independently during that period. Ld. Counsel for accused further submitted that no public witnesses were joined in the investigation of the case at any point of time despite their availability as the place of alleged incident, the place of recovery of desi katta, place of arrest and place of alleged disclosure statements of the accused persons are public places and the public persons were always available there. He further submitted that the prosecution has miserably failed to prove the recovery of Desikatta by which alleged injury was caused to PW3 / Complainant. He further submitted that the prosecution has failed to prove the motive/reason behind the alleged incident. He further submitted that as per the prosecution story and the statement of PW3/Injured/complainant, the PW3 was well known to the accused person prior to the alleged incident and he himself made a PCR call after the said alleged incident, but there is no mention of the names of the accused persons in DD No. 29A dated 18.08.2008 which is Ext. PW10/A. There is only mention in Ext. PW10/A that "MUJHE EK AADMI GOLI MAAR KAR BHAG GAYA HAI". If the accused persons were the real culprits of shooting upon the PW3, then their names must be mentioned in the exhibit PW10/A. He further submitted that there is 14 of 62 15 FIR No. 538/08 PS Sultanpuri mention of motor cycle belonging to the accused Raju in the complaint Ext. PW3/A and in the statement of PW3 for which accused Raju was in a need of plug/pana for the fault in his said motorcycle. The motorcycle is also mentioned in the alleged confessional statements of the accused persons Ext. PW15/G& H dated 27.08.2008 but prosecution has miserably failed to seize/trace that motorcycle involved in the alleged incident. He further submitted that as per the complaint Ext. PW3/A and the statement of PW3/injured, the WagonR car bearing No. DL9CQS4962 belongs to him but the real fact has come on record even in his cross examination that the said car belonged to one Mr. Anuj Kumar Tiwari. It shows that the injured/PW3 has not come to the Court with clean hands and has made a false story to implicate the accused persons in this case. He further submitted that there are material contradictions in the testimony of the prosecution witnesses. He further submitted that the prosecution has further failed to prove that the alleged injury was caused by the recovered desti katta. It is worth to mention here that PW1 Dr. Satpal has deposed in his cross examination that "The wound and fracture in question are possible with any, metal object or any hard object, pillet of fire arm". He further submitted that the prosecution has also failed to prove that the blood found on the seat of the car, on leaves etc. are of the same blood group of the 15 of 62 16 FIR No. 538/08 PS Sultanpuri complainant/injured/PW3. It is very much clear from the document/report Ext. PW8/B. He further submitted that the site plan (Naksha Mauka Najri) which is Ext. PW15/B is also wrong and incorrect. In the whole site plan, the PW 15/IO has shown only the office and the residence of the injured/PW3 and has concealed the other shops and residences situated there at/near the spot. He further submitted that in the present case, no Test Identification Parade (TIP) of both the accused persons was got conducted nor the injured PW3 identified the accused persons at any point of time during the investigation of the case and prayed for the acquittal of the accused for the offences charged against them.
9. While the Ld. Addl. PP for the state, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and further submitted that the contradictions and discrepancies as pointed out are minor and not the material one's and do not effect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Ld. Addl. PP for the state and Sh. Dharamvir Sharma, Ld. Counsel for the accused and have also carefully perused the entire record.
16 of 62 17 FIR No. 538/08 PS Sultanpuri
11. The charge for the offences u/s 307/34 IPC and u/s 25/27/54/59 Arms Act against the accused Naveen Kumar @ Bawla and Raju @ Nagesh is that on 18.08.2008 at about 3.45 PM at 25 Foota Road near Som Bazar near KP Property dealer Chain Nagar Karala, Delhi, they both in furtherance of their common intention caused injury to Suresh and accused Naveen Kumar fired upon Suresh on his right arm and accused Raju caught hold of Suresh with such intention or knowledge and under such circumstances (if) by that act they caused the death of Suresh they would have been guilty of murder and that on the above said date, time and place they were found in possession of a desi katta with a cartridge in contravention of Notification of Delhi Administration.
INFORMATION OF CRIME:
12. PW10 ASI Joginder Singh has proved DD No. 29A dated 18.08.2008 at 4.07 PM Ext. PW10/A. PW10 ASI Joginder Singh in his examinationinchief has deposed which is reproduced and reads as under: 17 of 62 18 FIR No. 538/08 PS Sultanpuri " On 18.08.2008 I was working as duty officer at PS Sultan Puri from 9 am to 5 pm. At about 4:07 pm wireless operator informed me on intercom regarding PCR call that, "jain nagar som bazar road, mujhe ek admi goli maar kar bhag gaya hai." On the basis of the said information I recorded DD No. 29A. Copy of the same is EX PW10/A. Original DD seen and returned."
PW13 HC Om Prakash is the Incharge PCR Van, LibraIVI, who on 18.08.2008 took the injured Suresh Pradhan (PW3) to Sanjay Gandhi Memorial Hospital and admitted him there.
PW13 HC Om Prakash in his examinationinchief has deposed which is reproduced and reads as under: "On 18.8.2008, I was posted as Incharge PCR Van, LibraIVI. On that day after receiving the information I alongwith staff reached at 25 feet road near K.B. Property dealer, Jain Nagar, where we met Suresh Pradhan who was having bullet injury on his right hand, thereafter, we took him Sanjay Gandhi Hospital, Delhi and got him admitted there".
There is nothing in the crossexamination of PW10 ASI Joginder Singh and PW13 HC Om Prakash so as to impeach their creditworthiness.
18 of 62 19 FIR No. 538/08 PS Sultanpuri In view of above and in the circumstances, it stands established on the record that information of crime was received at police station from PCR call at 4.07 PM on 18.08.2008 which was recorded vide DD No. 29A Ext. PW10/A. MEDICAL EVIDENCE:
13. PW1 Dr. Satpal, Sr. Resident Orthopaedics, Sanjay Gandhi Hospital, Delhi, who deposed that on 18.08.2008 he examined the patient Suresh Pradhan and deposed that there were two wounds on the right hand of patient size of 1x1x1 cm over the dorsal and ventral respect of hand and there was swelling & tenderness present over the base of right side of thumb and X rays shows fracture of second metatasal bone of the right hand & distal part of ulna bone of the right hand and proved his orthopaedic examination report Ext. PW1/A. During crossexamination PW1 Dr. Satpal, Sr. Resident Orthopaedics, Sanjay Gandhi Hospital, Delhi, deposed that the wound & fracture in question are possible with any metal object or any hard object, pillet of firearm.
19 of 62 20 FIR No. 538/08 PS Sultanpuri PW2 Dr. Mahipal Singh, Casualty, Medical Officer, Sanjay Gandhi Hospital, Delhi who examined the patient on 18.08.2008 brought by HC Om Prakash PCR at about 4.35 PM with alleged history of gunshot as told by HC Om Prakash. On examination there was swelling over right hand & abrasion right wrist costeriorly, lacerated wound measuring approximately 1x1 cm. over right thumb. After giving the first aid he referred the patient in Orthoepadic Department and Forensic Department and proved the MLC of Suresh Pradhan Ex. PW2/A (be also read as Ext. PW2/B).
PW4 Dr. B.K. Jha (be read as Dr. V.K. Jha), Medical Officer, BJRM Hospital, Delhi, proved opinion on the nature of injuries as grievous on the person of Suresh Pradhan (PW3) Ext. PW4/A on MLC Ext. PW2/B (be read as Ext. PW2/A) bearing his signatures at PointB. He also proved the opinion Ext. PW4/B on application of police Ext. PW4/C and deposed that the injuries on the person of Suresh Pradhan (PW3) were consistent with fire arm injury.
There is nothing in the crossexamination of said PWs so as to impeach their creditworthiness.
20 of 62 21 FIR No. 538/08 PS Sultanpuri In view of above and in the circumstances, it stands established on the record that the nature of injuries suffered by PW3 Suresh Pradhan was 'Grievous' and the injuries on his person were consistent with fire arm injury.
BALLISTIC EVIDENCE:
14. PW7 Sh. Puneet Puri, Senior Scientific Officer Cum Ex Official Chemical Examiner, FSL Rohini, Delhi is the Ballistic Expert, who proved the Ballistic Report Ext. PW7/A. For better appreciation, let the FSL report Ext. PX be reproduced.
It reads as under:
1. DESCRIPTION OF PARCEL (S):
Sealed cloth parcels: 02 (two) Total: 02(two) Two sealed cloth parcels; seals were intact and tallied with the specimen seal as per forwarding letter (FSL FORM).
21 of 62 22 FIR No. 538/08 PS Sultanpuri
2. DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL (S)/EXHIBIT (S):
Parcel No. & Seal Description of Exhibit (s) contained in no. Impression parcel (s) 1 04 J S One country made pistol 7.65mm bore marked exhibits 'F1', one 7.65mm cartridge marked exhibit 'A1' and one 7.65mm cartridge case (extracted from the chamber of exhibit 'F1') marked as exhibit 'EC1'.
2 04 J S One deformed bullet marked exhibit 'EB1'.
3. RESULTS OF EXAMINATION/OPINION:
(1) The country made pistol 7.65mm bore marked exhibit 'F1' is designed to fire a standard 7.65mm cartridge. It is in working order in its present condition. Test fire conducted successfully. (2) The 7.65mm cartridge marked exhibit 'A1' is live one and can be fired through 7.65mm bore firearm.
(3) The 7.65mm cartridge case marked exhibit 'EC1' is fired empty cartridge.
(4) The deformed bullet marked exhibit 'EB1' correspond to the bullet of 7.65mm cartridge.
22 of 62 23 FIR No. 538/08 PS Sultanpuri (5) The 7.65mm cartridge from the laboratory stock was test fired through the country made pistol 7.65mm bore marked exhibit 'F1' above, the test fired cartridge case was marked as 'TC1' and recovered test fired bullet was marked as 'TB1'. (6) The individual characteristics of firing pin marks and breech face marks present on evidence fired cartridge case marked exhibit 'EC1' and on test fired cartridge case marked 'TC1' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence, the exhibit 'EC1' has been fired through the country made pistol 7.65 mm bore marked exhibit 'F1' above. (7) The individual characteristics of striations present on evidence deformed bullet marked exhibit 'EB1' are insufficient for comparison and opinion whether it has been discharged through the country made pistol 7.65mm bore marked exhibit 'F1' above or not.
(8) The exhibits 'F1' / 'A1', 'EC1' & 'EB1' are firearm/ammunition as defined in the Arms Act, 1959.
NOTE: (1) Case Exhibits/Remnants of Exhibits sent to this laboratory for examination have been sealed with the seal of PP FSL Delhi.
On careful perusal and analysis of the Ballistic evidence on record as reproduced hereinabove, it is clearly indicated that the individual 23 of 62 24 FIR No. 538/08 PS Sultanpuri characteristics of the striations present on evidence deformed bullet Marked Exhibit. EB1 (also Ext. PY) are insufficient for comparison and opinion whether it has been discharged through the country made pistol 7.65mm bore marked Ext. F1 (also Ext. PX). But it stands established that the fired empty cartridge Ext. PX1 (Ext. EC1) has been fired through the country made pistol Ext. PX (Ext. F1).
BIOLOGICAL & SEROLOGICAL EVIDENCE:
15. PW8 Ms. Shashi Bala, Senior Scientific Assistant (Biology) FSL, Rohini, Delhi, who deposed that she examined the exhibits and proved his detailed reports biologically and serologically Ext. PW8/A & Ext.
PW8/B respectively.
As per FSL report Ext. PW8/A, the description of articles contained in parcel and result of analysis reads as under: DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "JS"
containing exhibit '1', kept in a plastic dibbi.
24 of 62 25 FIR No. 538/08 PS Sultanpuri Exhibit '1' : Dried leafy material alongwith fungal growth described as 'blood stained bush leafs'.
Parcel '2' : One sealed cloth parcel sealed with the seal of 'JS' containing exhibit '2'.
Exhibit '2' : One plastic foot rest of the car having brown stains described as 'blood stained bush leafs".
Parcel '3' : One sealed cloth parcel sealed with the seal of 'JS' containing exhibits '3a' and '3b'.
Exhibit '3a' : One car seat cover having brown stains. Exhibit '3b' : One car seat cover having few brown stains. Parcel '4' : One sealed cloth parcel sealed with the seal of 'JS' containing exhibit '4'.
Exhibit '4' : One shirt having brown stains described as shirt of the injured Suresh Pradhan'.
Parcel '5' : One sealed cloth parcel sealed with the seal of 'SGMH GOVT. OF NCT DELHI containing exhibit '5', kept in an injection vial.
Exhibit '5' : Dark brown liquid described as blood sample of injured'.
25 of 62 26 FIR No. 538/08 PS Sultanpuri RESULT OF ANALYSIS
1. Blood was detected on exhibits '1', '2', '3a', '3b', '4' and '5'.
2. Report of serological analysis in original is attached herewith.
As per FSL report (biology) Ext. PW8/B the result of analysis reads as: Exhibits Species of ABO Origin Grouping/Remarks '1' Vegetative material No reaction '2' Plastic foot rest Human 'A' Group '3a' Car seat cover Human 'A' Group '3b' car seat cover Human 'A' Group '4' Shirt Human 'A' Group '5' Blood sample Human 'A' Group On careful perusal and analysis of the medical and serological evidence on record as reproduced hereinabove, it is clearly indicated that on the exhibits 2, 3a, 3b, 4 the species of blood origin is 'Human' and the blood is of 'A' Group.
26 of 62 27 FIR No. 538/08 PS Sultanpuri From the exhibit 5 (Blood sample) of the complainant (PW3 Suresh Pradhan), it is clearly indicated that species of blood origin is 'Human' and the blood is of 'A' Group, which corresponds to the blood found on exhibits 2, 3a, 3b and 4.
In the circumstances, there is no substance in the submission of Ld. Counsel for accused that prosecution has also failed to prove vide report Ext. PW8/B that the blood found on the seat of the car, on leaves etc. are of the same blood group of the complainant/injured/PW3.
Ld. Counsel for accused appears to have misread and mis analysed the serological report Ext. PW8/B. SANCTION UNDER SECTION 39 ARMS ACT:
16. PW16 Sh. B.K. Singh, DCP (NorthEast), Delhi, who proved the sanction order u/s 39 Arms Act Ext. PW16/A for the prosecution of accused Naveen Kumar @ Bawla. He was not crossexamined despite grant of opportunity.
27 of 62 28 FIR No. 538/08 PS Sultanpuri In the circumstances, the sanction u/s 39 Arms Act for prosecution of accused Naveen Kumar @ Bawla stands proved on the record.
TESTIMONY OF COMPLAINANT/INJURED:
17. PW3 Sh. Suresh Pradhan is the victim/complainant who proved his complaint made to the police Ext. PW3/A. He also proved the seizure memo of mat and back seat cover (Ext. P3 & Ext. P6) Ext. PW3/B, seizure memo of other seat covers (Ext. P4 & Ext. P5) Ext. PW3/C, seizure memo of blood stained leaves (Ext. P2) Ext. PW3/D, seizure memo of shirt (Ext.
P7) Ext. PW3/E, seizure memo of car (Ext. P1) Ext. PW3/F (also Ext. P8 in the testimony of PW15 SI Jaipal Singh), blood sample Ext. P8.
18. Now let the testimony of PW3 Suresh Pradhan, Complainant/injured be perused and analysed.
PW3 Suresh Pradhan in his examinationinchief has deposed which is reproduced and reads as : 28 of 62 29 FIR No. 538/08 PS Sultanpuri "On 18.8.08 I was going in my Wagon R car bearing registration no. DL9C QS4962 from my house to my office, situated at plot no.240 shop no.2, Som Bazar Road, Jain Nagar. At about 3.45/4.00 pm when I reached 25 foota road near KP Property Dealer, Jain Nagar, Karala, Raju came in front of my car and he made a (an) indication to stop the car. I stopped the car. Accused Raju present in the court, the witness correctly identified the accused. Raju stated to me that there is some fault in his motorcycle, therefore, he is in the need of plug/pana. I advised Raju to take the pana from my house. In the meantime second person namely Naveen came from the back side of the car and he stood near the front window of right side of the car and Naveen had fired upon me. The bullet hit me on my right hand wrist. The bullet after hitting my wrist came out from the wrist and hit the seal (seat) of the car. Thereafter, I tried to start the car, the accused Raju had caught hold my hand. After getting myself free from Raju I got down the car and raised the alarm, the accused Raju and Naveen started running in opposite direction of each other. I chased the accused Naveen but I stopped chasing him as he was having firearm in his hand. Thereafter, I was escaping from the accused persons, the accused Naveen asked Raju to caught hold me and they should murder me. Thereafter, many public persons gathered at the spot. The reason behind shooting me was that Raju had come to me for giving him employment one or two days prior to date of occurrence but I refused. Raju & Naveen are cousin brothers. I made a PCR call and I was taken to Sanjay Gandhi Hospital. I was medically examined and also treatment was given to me. I made a complaint Ext. PW3/A bears my thumb impression at point A. I was knowing both the accused well prior to the date of occurrence. One or two days prior to the occurrence but I do not remember the exact date Raju had come to my office and requested me to go with him as Raju had to take the payment of Rs. 5,000/ from some 29 of 62 30 FIR No. 538/08 PS Sultanpuri person for the work of driver, however, that person is not giving his money but I refused to accompany him. Thereafter, Raju had left my office by saying that I have become a (an) effective man and I am not helping Raju and Raju had left away my office."
From the aforesaid narration of PW3 Suresh Pradhan it is clearly indicated that both accused Raju and Naveen acted in furtherance of their common intention and in pursuance of that accused Raju stopped the car of the complainant by giving a hand signal on the pretext of need of spanner (panna) as his motorcycle had gone out of order and immediate thereafter reaching of accused Naveen at spot and of his firing upon the complainant, thereby injuring him and when complainant tried to start his car, of the holding of his (complainant) hands by accused Raju, whereby to prevent him (complainant) from leaving the spot. Running from spot, of both accused Raju and Naveen, in opposite direction when complainant raised alarm. While complainant escaping utterance of words by accused Naveen to accused Raju to caught hold him (complainant) and they should murder him and of their fleeing from spot when public persons gathered at the spot clearly indicates that both the accused Raju and Naveen acted with such intention or knowledge and under such circumstances that if they by that act of firing caused death of the complainant, they would have been guilty of 30 of 62 31 FIR No. 538/08 PS Sultanpuri murder.
It is well settled that an act of meeting of minds has to be inferred from the circumstances of the case. (Rel. Virender Singh Vs. State of Delhi 2011 I AD (Delhi) 242.
During his crossexamination PW3 Suresh Pradhan has negated the suggestions that on 18.08.2008 neither Raju accused stopped the car nor accused Naveen fired the shot upon him or that he was not even (given) any injury upon (by) the accused persons or that he has falsely implicated (the accused persons) in the present case or that his thumb impressions were obtained on the complaint and other papers at PS or that he is deposing falsely or that no work was done regarding the seizure of the articles and car and (at) the spot and the same was done in the PS itself.
Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach his creditworthiness. In the witness box he has withstood the test of crossexamination and his testimony is consistent throughout.
31 of 62 32 FIR No. 538/08 PS Sultanpuri The testimony of PW3 Suresh Pradhan is in consonance with the complaint Ext. PW3/A (detailed while delineating the prosecution case as unfolded by the report u/s 173 Cr.P.C) lodged by him with the police, which led to the registration of FIR Ext. PW6/A. His testimony is natural, clear, cogent, convincing, trustworthy and inspires confidence. There is nothing in his statement to suggest that he had an animus against the accused persons to falsely implicate them in the case. Except the bare statements of the accused persons u/s 313 Cr.P.C that they have been falsely implicated by the complainant with the connivance of the police nothing has been brought on record that may substantiate their claim that the complainant/PW3 Suresh Pradhan had motive to falsely implicate them.
The testimony of PW3 Suresh Pradhan is further corroborated by the "Medical Evidence" and "Biological and Serological Evidence" as discussed hereinbefore.
While discussing the ballistic evidence PW7 Sh. Puneet Puri, the Ballistic Expert has proved the ballistic report Ext. PW7/A and in the said report in the result of examination/opinion he has categorically opined 32 of 62 33 FIR No. 538/08 PS Sultanpuri which reads as under: (6). The individual characteristics of firing pin marks and breech face marks present on evidence fired cartridge case marked exhibit 'EC1' and on test fired cartridge case marked 'TC1' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical.
Hence, the exhibit 'EC1' has been fired through the country made pistol 7.65 mm bore marked exhibit 'F1' above.
(7). The individual characteristics of striations present on evidence deformed bullet marked exhibit 'EB1' are insufficient for comparison and opinion whether it has been discharged through the country made pistol 7.65mm bore marked exhibit 'F1' above nor not. As per the ballistic report Ext. PW7/1 it is clearly indicated that the individual characteristics of the striations present on evidence deformed bullet Marked Exhibit. EB1 (also Ext. PY) are insufficient for comparison and opinion whether it has been discharged through the country made pistol 7.65mm bore marked Ext. F1 (also Ext. PX). But it stands established that the fired empty cartridge Ext. PX1 (Ext. EC1) has been fired through the country made pistol Ext. PX (Ext. F1).
33 of 62 34 FIR No. 538/08 PS Sultanpuri Reading the testimony of PW3 Suresh Pradhan, coupled with the ballistic report Ext. PW7/1 it stands established on the record that the fired empty cartridge Ext. PX1 (Ext. EC1) extracted from the chamber of Ext. PX (Ext. F1) was fired from the pistol Ext. PX (Ext. F1) which accused Naveen got recovered alongwith one live cartridge vide pointing out cum recovery memo Ext. PW15/M. Further the testimony of PW3 Suresh Pradhan is also corroborated by investigational evidence on record, PW11 Ct. Narayan Dass, PW12 Jai Singh and PW15 SI Jaspal Singh (IO). There is also nothing in their crossexamination so as to impeach their creditworthiness.
19. Ld. Counsel for accused has submitted that the prosecution has failed to examine one main material cited witness namely Ct. Rajesh, No 1145/00 rather he was dropped by the prosecution intentionally and malafidely or due to the reason best known to the prosecution on 10.05.2011 on the statement of Ld. APP.
34 of 62 35 FIR No. 538/08 PS Sultanpuri I have carefully perused the entire record.
Perusal of record shows that on 10.05.2011, PW Ct. Rajesh was dropped by Ld. APP by making a statement that he does not want to examine Constable Rajesh being repetitive in nature to PW12 Jai singh.
PW3 Sh. Suresh Pradhan, the complainant and PW15 SI Jaspal Singh have proved the relevant memos which were also witnessed by PW Ct. Rajesh and the said PW3 Sh. Suresh Pradhan and PW15 SI Jaspal Singh have been incisively crossexamined on behalf of accused.
In the circumstances, the examination of PW Ct. Rajesh would have only been a repetition or duplication of the evidence already adduced, therefore, for the nonexamination of PW Ct. Rajesh the prosecution case cannot be termed as suffering from a deficiency and withholding of a mterial witness.
The Hon'ble Supreme Court in case Takhaji Hiraji Vs Thakore Kubersing Chamansing 2001 IV AD (S.C) 393 has observed that 35 of 62 36 FIR No. 538/08 PS Sultanpuri "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Nonexamination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise."
In view of above and in the circumstances, there is no substance in the plea so raised by the Ld. Counsel for accused.
20. Ld. Counsel for accused submitted that nonexamination of SI Ashok Kumar is also fatal to the prosecution case as he has been the IO of the present case for some time and he has conducted the investigation of the case independently during that period.
36 of 62 37 FIR No. 538/08 PS Sultanpuri I have carefully perused the evidence on record. PW15 SI Jaspal Singh in his examinationinchief has deposed that "During the course of further investigation when I had proceeded on training, SI Ashok had also taken the blood sample of complainant/injured and had also the exhibits of this case was sent to FSL.
After completion of the investigation challan was filed in the court through SHO."
During his crossexamination PW15 SI Jaspal Singh has deposed that "Q. Is it correct that you remained the IO of the present case since beginning since the filing of the chargesheet?
Ans. During sometime the investigation was also done by SI Ashok Kumar.
I do not remember the period during which SI Ashok Kumar conducted the investigation of the present case. The investigation was handed to SI Ashok Kumar for sometime as I had proceeded on a 'course'. I do not recollect the time period during which I remained on the 'course'. SI Ashok had conducted the 37 of 62 38 FIR No. 538/08 PS Sultanpuri investigation independently during the period it remained with him and not under my supervision. I cannot tell as to when the blood sample of the complainant was taken by SI Ashok Kumar. I did not record the statement of SI Ashok Kumar. Q. Is it correct that SI Ashok Kumar has not been cisted as a list of witnesses filed alongwith the chargesheet? Ans. It is correct. Vol. SI Ashok had filed the chargesheet in the present case in the Court."
From the aforesaid narration of PW15 SI Jaspal Singh it is clearly indicated that his testimony if clear, cogent, convincing and trustworthy. He has deposed all the facts candidly within in his knowledge and has not concealed anything. It is also to be noticed that FSL reports Ext. PW8/A and Ext. PW8/B have been proved on record by PW8 Ms. Shashi Bala as discussed in detail hereinbefore SI Ashok Kumar had done some investigation during the period when PW15 SI Jaspal Singh had proceeded on training only with regard to taking of blood sample of complainant/injured (PW3 Suresh Pradhan) and of taking the exhibits to FSL and of filing of chargesheet.
38 of 62 39 FIR No. 538/08 PS Sultanpuri In the circumstances, noncitation and nonexamination of SI Ashok Kumar does not materially affect the prosecution case which is otherwise proved on record by cogent, convincing and trustworthy evidence.
21. Ld. Counsel for the accused submitted that no public witnesses were joined in the investigation of the case at any point of time despite their availability as the place of alleged incident, the place of recovery of desi katta, place of arrest and place of alleged disclosure statements of the accused persons are public places and the public persons were always available there.
I have carefully perused the evidence on record. Nonjoining of the public witnesses in the prosecution case does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a known fact that the persons of the public are reluctant to join the police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and Court for giving evidence [Rel. Nirmal Singh & Ors. Vs. State 2011 II AD (Delhi) 39 of 62 40 FIR No. 538/08 PS Sultanpuri 699].
The Hon'ble Supreme Court of India in case Appabhai and another vs. State of Gujarat, AIR 1988 696 (para 11 and 12) has held that Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals of parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused'...... The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants".
22. Ld. Counsel for accused submitted that prosecution has miserably failed to prove the recovery of Desikatta by which alleged injury was caused to PW3/Complainant and further submitted that the prosecution has further failed to prove that the alleged injury was caused by the recovered desikatta. He further submitted that PW1 Dr. Satpal has deposed in his cross examination that "The wound and fracture in question are possible with any, 40 of 62 41 FIR No. 538/08 PS Sultanpuri metal object or any hard object, pillet of fire arm".
I have carefully perused the evidence on record. In view of the categorical testimonies of PW1 Dr. Satpal, Sr. Resident Orthopaedics, Sanjay Gandhi Hospital, Delhi and PW7 Sh. Puneet Puri coupled with the testimonies of PW4 Dr. Mahipal Singh, Casualty, Medical Officer, Sanjay Gandhi Hospital, Delhi PW4 Dr. B.K. Jha (be read as Dr. V.K. Jha), Medical Officer, BJRM Hospital, Delhi PW15 SI Jaspal Singh, IO and PW3 Sh. Suresh Pradhan, the complainant/injured as discussed hereinbefore, there is no substance in the plea so raised by the Ld. Counsel for the accused.
23. Ld. Counsel for accused submitted that the site plan (Naksha Mauka Najri) which is Ext. PW15/B is also wrong and incorrect. In the whole site plan, the PW15/IO has shown only the office and the residence of the injured/PW3 and has concealed the other shops and residences situated there at/near the spot.
41 of 62 42 FIR No. 538/08 PS Sultanpuri PW15 SI Jaspal Singh, IO has proved the site plan Ext. PW15/B. He has categorically deposed and proved the site plan Ext. PW15/B relevant to the incident involved in the present case. To say that he has concealed the other shops and residences situated there/near the spot does not appear to have substance. Moreover, nothing material could be elicited in the lengthy crossexamination of PW15 SI Jaspal Singh, so as to impeach his creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
24. Ld. Counsel for the accused submitted that in the present case, no Test Identification Parade (TIP) of both the accused persons was got conducted nor the injured/PW3 identified the accused persons at any point of time during the investigation of the case.
I have carefully perused the evidence on record. In view of categorical deposition of PW3 Suresh Pradhan (as discussed hereinbefore) and that of PW15 SI Jaspal Singh. The plea so 42 of 62 43 FIR No. 538/08 PS Sultanpuri raised by the Ld. Counsel for accused has no substance. Ld. Counsel for the accused appears to have misread the evidence of PW3 Suresh Pradhan and PW15 SI Jaspal Singh, IO.
PW15 SI Jaspal Singh in his crossexamination recorded on 19.03.2012 has specifically deposed which is reproduced and reads as under: "Q. It is correct that no Test Identification Parade (T.I.P) of both the accused Naveen & Raju was got conducted in the present case?
Ans. It is correct that no TIP was got conducted of the accused in the present case. Vol. both the accused were named in the FIR and both the accused had surrendered in the court. On 27.08.2008 when both the accused had pointed out the place of incident and the pointing out memos were prepared thereof, at that time both the accused Naveen & Raju were identified by the complainant Suresh Pradhan who was present there at that time."
25. Ld. Counsel for the accused submitted that the prosecution has failed to prove the motive/reason behind the alleged incident.
43 of 62 44 FIR No. 538/08 PS Sultanpuri PW3 Suresh Pradhan, the complainant/injured in his examinationinchief has specifically deposed that "I was knowing both the accused well prior to the date of occurrence. One or two days prior to the occurrence but I do not remember the exact date Raju had come to my office and requested me to go with him as Raju had to take the payment of Rs. 5,000/ from some person for the work of driver, however, that person is not giving his money but I refused to accompany him. Thereafter, Raju had left my office by saying that I have become a (an) effective man and I am not helping Raju and Raju had left away my office."
There is nothing in the crossexamination of PW3 Suresh Pradhan so as to impeach his creditworthiness. His testimony is cogent, convincing, trustworthy and inspires confidence.
In cases where ocular evidence is forthcoming, absence of motive or absence of proof of motive is an insignificant factor [Ref. Madan Lal @ Manohar @ Motta Vs. State 184 (2011) DLT 160 (DB)].
44 of 62 45 FIR No. 538/08 PS Sultanpuri It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes however, the motive is shrouded in a mystery and it is difficult to locate the same. (Molu Vs. State of Haryana AIR 1976 SC 2499). It is true that the motive for the assault was a trivial (plucking of mangoes) one but human nature being what it is, murders are known to have taken place for lesser motives (Jagdish Vs. State of Madhya Pradesh AIR 1981 SC 1169).
In view of above, prosecution has been able to establish on the record the motive for crime committed by the accused persons in furtherance of their common intention.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
45 of 62 46 FIR No. 538/08 PS Sultanpuri
26. Ld. Counsel for the accused submitted that there is mention of motorcycle belonging to the accused Raju in the complaint Ext.PW3/A and in the statement of PW3 for which accused Raju was in a need of plug/pana for the fault in his said motorcycle. The motorcycle is also mentioned in the alleged confessional statements of the accused persons Ext. PW15/G & H dated 27.08.2008 but the prosecution has miserably failed to seize/trace that motorcycle involved in the alleged incident.
I have carefully perused the evidence on record. In view of the categorical deposition of PW3 Suresh Pradhan the plea so raised by Ld. Counsel for the accused has no substance. Further when prosecution has discharged its initial burden of proving the presence of accused Raju at the place and time of the incident and of his stating to PW3 Suresh Pradhan that there is some fault in his motorcycle and he is in the need of plug/panna. Accused Raju was under an obligation to explain about the whereabouts of the motorcycle. His complete denial becomes additional link in prosecution case. The absence of such an explanation in the Section 313 Cr.P.C statement by accused Raju and his omission to lead any evidence in this case has an adverse impact on his plea.
46 of 62 47 FIR No. 538/08 PS Sultanpuri In case Prithipal Singh and Ors. Vs. State of Punjab and Anr. (2012) 1 SCC 10 the Hon'ble Supreme Court has held as under in para 53:
"In state of W.B. V. Mir Mohammad Omar, this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.........."
47 of 62 48 FIR No. 538/08 PS Sultanpuri
27. Ld. Counsel for accused submitted that as per the complaint Ext. PW3/A and the statement of PW3/Injured, the WagonR car bearing no. DL9CQS4962 belongs to him but the real fact has come on record even in his crossexamination that the said car belonged to one Mr. Anuj Kumar Tiwari.
In view of categorical testimony of PW3 Suresh Pradhan the plea so raised has no substance.
Moreover, it is not made clear as to what benefit the Ld. Counsel for accused intends to reap by raising such plea. Rather it is indicative of the fact that PW3 Suresh Pradhan is a truthful witness and has not concealed anything.
28. Ld. Counsel for accused submitted that as per the prosecution story and the statement of PW3/Injured/complainant, the PW3 was well known to the accused persons prior to the alleged incident and he himself made a PCR call after the said alleged incident, but there is no mention of the names of the accused persons in DD No. 29A dated 18.08.2008 which is Ext. PW10/A. 48 of 62 49 FIR No. 538/08 PS Sultanpuri I have carefully perused the evidence on the record. Undisputably, PW3 Suresh Pradhan was crossexamined at length. Inspite of his incisive crossexamination nothing material has been brought out on the record so as to impeach his creditworthiness. Moreover, PW3 Suresh Pradhan during his crossexamination recorded on 18.09.2009 has specifically deposed that "I have informed PCR that Raju and Naveen have shot me." PW10 ASI Joginder Singh has proved DD No. 29A dated 18.08.2008 at 4.07 PM Ext. PW10/A. PW10 ASI Joginder Singh in his examinationinchief has deposed which is reproduced and reads as under: " On 18.08.2008 I was working as duty officer at PS Sultan Puri from 9 am to 5 pm. 49 of 62 50 FIR No. 538/08 PS Sultanpuri At about 4:07 pm wireless operator informed me on intercom regarding PCR call that, "jain nagar som bazar road, mujhe ek admi goli maar kar bhag gaya hai." On the basis of the said information I recorded DD No. 29A. Copy of the same is EX PW10/A. Original DD seen and returned."
PW13 HC Om Prakash is the Incharge PCR Van, LibraIVI, who on 18.08.2008 took the injured Suresh Pradhan (PW3) to Sanjay Gandhi Memorial Hospital and admitted him there.
PW13 HC Om Prakash in his examinationinchief has deposed which is reproduced and reads as under: "On 18.8.2008, I was posted as Incharge PCR Van, LibraIVI. On that day after receiving the information I alongwith staff reached at 25 feet road near K.B. Property dealer, Jain Nagar, where we met Suresh Pradhan who was having bullet injury on his right hand, thereafter, we took him Sanjay Gandhi Hospital, Delhi and got him admitted there".
There is nothing in the crossexamination of PW10 ASI Joginder Singh and PW13 HC Om Prakash so as to impeach their creditworthiness.
50 of 62 51 FIR No. 538/08 PS Sultanpuri It was for the accused to elicit information about the contents of information from PW13 HC Om Prakash, Incharge PCR Van during the course of his crossexamination, which accused failed to do.
For noneliciting such information accused are to blame none else but themselves only.
In the circumstances, there is no substance in the said plea and the plea appears to have been raised by the accused in order to save their skins from the clutches of law.
29. Ld. Counsel for accused submitted that there are contradictions in the testimony of prosecution witnesses on the seizure of WagonR car; time at which it was taken to police station; on the time at which PW15 SI Jaspal Singh came at the spot with PW3 Suresh Pradhan; as to who went for the search of accused; as to when the statement of PW13 HC Om Prakash was recorded and by whom; on the aspect of joining of investigation by PW3 Suresh Pradhan on 27.08.2008; and on the time of leaving of hospital PW11 Ct. Narayan Dass with rukka.
51 of 62 52 FIR No. 538/08 PS Sultanpuri I have carefully gone through the testimonies of the prosecution witnesses. Except for the minor contradictions on the aspects so raised they are otherwise corroborative in nature. Such minor contradictions are merely the inconsistencies on the fringe without materially affecting the creditability of the evidence. Moreover, the facts regarding the arrest of the accused vide arrest memos Ext. PW15/C, Ext. PW15/D, their personal searches vide memos Ext. PW15/E, Ext. PW15/F; seizure of the car (Ext. P1, also Ext. P8 in the testimony of PW15 SI Jaspal Singh) vide memo Ext. PW3/F, registration of case vide FIR Ext. PW6/A, on the complaint Ext. PW3/A of PW3 Suresh Pradhan, without any delay, and taking of injured Suresh Pradhan to Sanjay Gandhi Memorial Hospital and getting him admitted there have been proved on record by the clear, cogent and convincing testimonies of PW15 SI Jaspal Singh, PW16 ASI Rajbir Singh and PW13 HC Om Prakash, Incharge, PCR Van as well as that of PW3 Suresh Pradhan.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be 52 of 62 53 FIR No. 538/08 PS Sultanpuri expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court of India in case Sucha Singh Vs. State of Punjab (2003) 7 SCC 643 has held that even in criminal trial, the word "proof beyond reasonable doubt" is a guideline and not a fetish. The prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reasons and common sense. It must grow out of evidence in the case. Law cannot afford any favourite other than truth. It was further held in the said judgment that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.
53 of 62 54 FIR No. 538/08 PS Sultanpuri
30. In view of above and in the circumstances, the prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 18.08.2008 at about 3.45 PM at 25 Foota Road, Near Som Bazar, Near K.P. Property Dealer, Jain Nagar, Karala, Delhi, accused Raju @ Nagesh in furtherance of the common intention with accused Naveen Kumar @ Bawla stopped the car of the complainant on the pretext of the need of a spanner (panna) that his motorcycle had gone out of order and immediate thereafter reaching of accused Naveen Kumar @ Bawla at the spot and of his firing upon the complainant by pistol Ext. PX thereby injuring him and when complainant tried to start his car, of the holding of his (complainant) hands by accused Raju @ Nagesh whereby to prevent him (complainant) from leaving the spot and the utterance of the words by accused Naveen Kumar @ Bawla to accused Raju @ Nagesh to caught hold him (complainant) and they should murder him clearly proves that both the accused Raju @ Nagesh and Naveen Kumar @ Bawla acted with such intention or knowledge and under such circumstances that if they by that act of firing caused death of the complainant, they would have been guilty of murder and has also proved the recovery of pistol Ext. PX with a live cartridge used in the commission of the offence.
54 of 62 55 FIR No. 538/08 PS Sultanpuri I accordingly, hold accused Naveen Kumar @ Bawla and accused Raju @ Nagesh guilty for the offence punishable u/s 307/34 IPC and accused Naveen Kumar @ Bawla is also hold guilty for the offences punishable u/s 25/27/54/59 Arms Act, 1959.
31. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Naveen Kumar @ Bawla and accused Raju @ Nagesh in the commission of the offence u/s 307/34 IPC and also that of accused Naveen Kumar @ Bawla in the commission of the offences u/s 25/27/54/59 Arms Act, 1959 is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Naveen Kumar @ Bawla and Raju @ Nagesh beyond Shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Naveen Kumar @ Bawla and accused Raju @ Nagesh guilty for the offence punishable u/s 307/34 IPC and accused Naveen Kumar @ Bawla is also hold guilty for the 55 of 62 56 FIR No. 538/08 PS Sultanpuri offences punishable u/s 25/27/54/59 Arms Act, 1959 and convict them thereunder.
Announced in the open Court today on 17th Day of month of October, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
56 of 62 57 FIR No. 538/08 PS Sultanpuri IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI SESSIONS CASE NO.: 60/09 Unique ID No. : 02404R0020432009 STATE VS. 1). NAVEEN KUMAR @ BAWLA S/O SH. NAIN SINGH R/O B177 BEGUM PUR EXTN., DELHI.
2). RAJU @ NAGESH S/O SH. RAM PAL SINGH R/O F139, RAJEEV NAGAR , BEGUM PUR, DELHI.
FIR No. : 538/2008 Police Station : Sultanpuri Under Sections : U/S 307/34 IPC & 25/27/54/59 Arms Act ORDER ON SENTENCE : 57 of 62 58 FIR No. 538/08 PS Sultanpuri
1. Vide my separate detailed judgment dated 17.10.2012 accused Naveen Kumar @ Bawla and Raju @ Nagesh have been convicted for the offence punishable u/s 307/34 IPC and accused Naveen Kumar @ Bawla has also been convicted for the offences punishable u/s 25/27/54/59 Arms Act.
2. Sh. Dharamvir Sharma, Ld. Counsel for convicts submitted that convict Naveen Kumar @ Bawla is 28 years of age and is a married person and his marriage had taken place on 30.4.2012. He is having the old parents to look after and is also having the two brothers. He further submitted that he was a student of 10+2 at the time of the registration of the present case. He further submitted that he has remained in judicial custody for more than three years with effect from 27.8.2008 to 12.10.2011. As regards convict Raju @ Nagesh, he is 23 years of age and works as a private driver and is unmarried and his engagement has taken place on 15.9.2012. He is the only son of his parents. He is studying in 10+2 . He is having the old parents who are suffering from various ailments . He further submitted that he has remained in judicial custody for more than three years with effect 58 of 62 59 FIR No. 538/08 PS Sultanpuri from 27.8.2008 to 18.11.2011. Ld. counsel for the convicts further submitted that they are not involved in any other case and are the victim of the circumstances and are having clean antecedents and their conduct during the course of the trial was very cooperative and prayed for leniency.
3. Ld. Addl. PP for state, on the other hand submitted that convicts be dealt with strictly and severest punishment be given to deter them from committing the same offence in future.
4. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the convicts Smt. Naveen Kumar @ Bawla and Raju @ Nagesh at length on the quantum of sentence. The car of the complainant PW3 Suresh Pradan in furtherance of the common intention with convict Naveen Kumar @ Bawla, was stopped by convict Raju @ Nagesh on the pretext of the need of a spanner (panna) that his motorcycle had gone out of order, immediate thereafter convict Naveen Kumar @ Bawla reached there and fired upon the complainant by pistol Ex. PX and injured him (complainant) and when complainant tried to start his car he was prevented from leaving the spot by convict Raju @ Nagesh 59 of 62 60 FIR No. 538/08 PS Sultanpuri by the holding of his ( complainant) hands and the words were uttered by convict Naveen Kumar @ Bawla to convict Raju @ Nagesh to caught hold him (complainant) and they should murder him.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
6. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment 60 of 62 61 FIR No. 538/08 PS Sultanpuri to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under: "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime".
8. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convicts, I am of the considered opinion that the ends of justice can be met by sentencing convicts Naveen Kumar @ Bawla and Raju @ Nagesh to undergo Rigorous Imprisonment for a period of ten years each and to pay a fine of Rs. 6,000/ each in default thereof to further undergo Rigorous Imprisonment for a period of two year each u/s 307/34 IPC. Convict Naveen 61 of 62 62 FIR No. 538/08 PS Sultanpuri Kumar @ Bawla is further sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 3,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 25/54/59 Arms Act, 1959. Convict Naveen Kumar @ Bawla is further sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 3,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 27/54/59 Arms Act, 1959. All the substantive sentences shall run concurrently. The period already undergone by the convicts Naveen Kumar @ Bawla and Raju @ Nagesh during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convicts free of costs.
Announced in the open Court today on 19th Day of month of October, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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