Delhi District Court
State vs . Gaurav Kumar & Anr. on 16 November, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.6838/16
Unique ID No.02406R0155092011
FIR No.158/11
U/s:307 IPC & 25/54/59 Arms Act
Police Station : Mehrauli
State
Vs.
1) Gaurav Kumar
S/o Sh. Subedar Ravi Dutt
R/o Village Chandu, PS Budhera,
District Gurugram, Haryana
2) Sandeep Shakal
S/o Sh. Sukhbir
R/o 199/1, Ward No.2, Mehrauli
.... Accused
Date of Committal : 26.07.2011
Final arguments concluded on :13.11.2018
Judgment pronounced on :16.11.2018
JUDGMENT
1. In this case, accused faced trial for the charges of offence punishable u/s 307 IPC.
Prosecution case as per charge sheet
2. Briefly stated the facts of the case as emerging out from the charge sheet are that on 03.04.2011, HC Ram Chander received a DD no.28A pursuant to which IO ASI Ravi Shankar alongwith Ct. Naveen Kumar reached the spot at Bhagwan Hospital, Mehrauli from FIR No.158/11 Page No.1/37 State vs. Gaurav Kumar & Anr.
where they came to know that the injured had already been taken to AIIMS hospital by PCR van. After reaching Trauma Centre, IO found the injured Ajay Kaushik admitted in the hospital vide MLC No.252643. After the injured was declared fit for statement, his statement was recorded by the IO.
2.1 The statement of complainant is available on record as Ex.PW3/A wherein he stated that he was living with his parents at 84- A/13, Ward No.2, Mehrauli, and was studying in class 9 th in a government school. Complainant was knowing one Gaurav who was also residing in Mehrauli. About 20-25 days prior to the incident, said Gaurav made a call at his home and started abusing complainant's younger sister Sapna and also misbehaved with her and on account of said incident, complainant had a quarrel with him (accused Gaurav) and gave him two slaps. However, later on, matter got amicably settled. On 03.04.2011, at about 10:00 pm, while complainant had returned from his sister's home, his mother informed him that his younger sister Sapna had gone to fetch something and asked complainant to bring her back.
2.2 Thereafter, complainant visited shop of Momos near his house and sent back his sister to home. However, complainant started talking to one person Pawan Bhaiya who was standing near the shop and moved a little ahead while talking to him. Pawan also moved away from the complainant after he (Pawan) started talking on his mobile phone. Thereafter, complainant met Gaurav near grocery shop of Narender. Gaurav was in drunken condition and he stopped the complainant and started talking with him. Thereafter, accused FIR No.158/11 Page No.2/37 State vs. Gaurav Kumar & Anr.
Gaurav took out one pistol like object and fired a bullet on the right thigh of the complainant. When complainant asked him as to why he did so, accused Gaurav replied that he had taken revenge of the beatings given by the complainant. After saying this, accused went away from the spot.
2.3 As per the complaint, the incident had occurred at about 10:15 pm. Thereafter, complainant telephoned his friend from his mobile phone no.9953738113, pursuant to which his friend visited the spot with 2-3 more friends and shifted him to Bhagwati hospital on his motorcycle. From Bhagwati hospital, 100 number call was made and PCR took him to Trauma Centre where he was given medical treatment.
2.4 On the aforementioned statement of the complainant, present FIR u/s 326 IPC was registered against the accused. However, later on, on the basis of the statement of complainant and other facts and circumstances of the case, the offence of section 326 IPC was changed into 307 IPC.
2.5 During investigation, IO arrested the accused Gaurav, recorded his disclosure statement, prepared the site plan of the place of incident. Pursuant to disclosure statement of accused Gaurav, the weapon used in the offence i.e. a country made pistol was recovered from the possession of his associate i.e. co-accused Sandeep Shakal. Subsequently, accused Sandeep was also arrested and his personal search was conducted. IO also recorded his disclosure statement and took the country made pistol with two live cartridges recovered from FIR No.158/11 Page No.3/37 State vs. Gaurav Kumar & Anr.
said accused Sandeep into police possession, prepared the sketch of said arms recovered from his possession and seized them vide seizure memo and got them deposited in the Malkhana.
2.6 During investigation, IO also got conducted the TIP of accused Gaurav, recorded statement of witnesses u/s 161 Cr.P.C. and collected the blood sample of the injured from the hospital and deposited the exhibits in the Malkhana vide RC no.11/21/11. Later on, IO also sent the said exhibits to the FSL. After completion of investigation, IO filed the charge sheet before the court of Ld. ACMM on 02.06.2011. However, at the time of filing of Charge sheet, report of FSL was yet awaited. After compliance of Section 207 Cr.P.C., the case was committed to the court of sessions vide order dated 19.07.2011 and later on, the case came to be assigned to this court on 26.07.2011. During the course of proceedings, IO also filed the sanction of Section 39 Arms Act in respect of the pistol and cartridges recovered from the possession of co-accused Sandeep Shakal.
3. Vide order dated 21.09.2011, charge for the offence punishable u/s 307 IPC was framed against accused Gaurav and for the offence punishable u/s 25/54/59 Arms Act against accused Sandeep Shakal. Both accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 22 witnesses namely PW1/Ct. Bhudu Ram, PW2 Rahul Khatana, PW3 Ajay Kaushik, PW4 Ct. Jagvir, PW5 Ct. Sumer, PW6 Ct. Naveen, PW7 Dr. Dhananjay Kumar, PW8 Vicky, PW9 Ct. Sher Singh, PW10 Ct. Ajay, PW11 HC Jaibir Singh, PW12 HC Jai Bhagwan, PW13 Rajender Singh, FIR No.158/11 Page No.4/37 State vs. Gaurav Kumar & Anr.
PW14 HC Babu Lal, PW15 HC Ram Chander, PW16 HC Madan Lal, PW17 HC Santosh Kumar, PW18 HC Khem Singh, PW19 SI Ravi Shankar, PW20 Sh. Rampatt, PW21 Dr. Abhijeet Jaysing Chopade and PW22 Surender Kumar.
Prosecution evidence
5. PW1/Ct. Bhudh Ram deposed that on 03.04.2011, on receipt of a call regarding a shooting incident, a DD no.28A was registered and DO had given him the copy of said DD for giving it to HC Ram Chander who met him outside the gate of PS and he (PW1) gave the same to him. He further deposed that no other investigation was joined by him. PW1 was not cross examined by the defence counsel.
6. PW2/Rahul Khatana deposed that it was about 4-5 months ago from the date of his deposition but, he did not remember the date, he was present at Bhagwati hospital, Mehrauli in connection with treatment of his child. He further deposed that one injured came to the hospital stating that he had been shot and he (PW2) made a call to police at 100 number and after sometime, police reached in the hospital. He further deposed that the doctor of Bhagwati hospital had refused for treatment of that boy. He did not know anything else. In his cross examination, PW2 stated that he had not brought any prescription of that day regarding treatment of his child.
7. PW3/Ajay Kaushik is the victim of offence. He deposed that at that time, he was studying in 9 th class at Govt. Boys Higher Secondary School at Mehrauli. As per his version, on 03.04.2011, at FIR No.158/11 Page No.5/37 State vs. Gaurav Kumar & Anr.
about 10:55 pm, he was coming back from the house of his Didi Rashmi and when he reached near the gate of his house at Mehrauli, his mother Kusum was at the gate. She told him that his sister had gone to bring momos from the shop of Narender and he (Ajay) should go and accompany her. PW3 further deposed that he went to the shop of Narender where he met his sister Sapna and he sent her home. Further as per his version, there he met Pawan and he started taking and walking with him (Pawan). Pawan was talking on mobile phone and went a little ahead of him. Further as per PW3, then accused Gaurav (present in the court and correctly identified by the witness) met him and he (accused) was little drunk. Further that, Gaurav took out a pistol from his dub and fired a shot on his (PW3) thigh, the bullet hit his thigh and blood started oozing out. PW3 further testified that when he asked Gaurav as to why he had shot him, then accused told him that he had taken revenge of the slap which he (Ajay) had given him 20-25 days ago on the issue of misbehaviour with his (complainant's) sister on telephone. Thereafter, accused Gaurav ran away from the spot.
7.1 PW3 further testified that then he called his friend Vicky from his mobile phone no.9953738113 and Vicky took him to Bhagwati hospital but, doctor at Bhagwati hospital refused to treat him. Further as per PW3, thereafter, PCR was called and PCR reached at Bhagwati hospital and he was taken to Trauma Centre AIIMS. PW3 further deposed that police came in the hospital and recorded his statement Ex. PW3/A. Further as per his version, doctor had taken out the bullet from the wound of his thigh. PW3 was discharged on next day from the hospital. PW3 could not identify accused Sandeep as he FIR No.158/11 Page No.6/37 State vs. Gaurav Kumar & Anr.
was not present at the spot. PW3 correctly identified his clothes i.e. one pant and one underwear as Ex. P-1 and P-2.
7.2 In his cross examination, PW3 further deposed that on the date of incident, he had visited the house of his sister Rashmi at Masoodpur by an auto and returned from there in a bus and the incident had occurred on 03.04.2011, at 10:55 pm. As per his version, the shop of Narender where his sister had gone to take momos was about 100 meters away from his house and he had walked down to said shop to call her but, he did not return with his sister. Further as per his version, Pawan was his neighbour and shop of Narender was though open at the time of incident but, no public person was present at the shop at that time. Further as per his version, when the incident had happened, he had walked 15 steps away from Narender's shop. PW3 further deposed that he alongwith accused might have walked about 20-25 steps when the incident had occurred. Further, the incident had occurred 15 minutes after he reached the shop of Narender and the gun firing had caused noise. Further that, Pawan had not come towards him after he sustained bullet injuries because Pawan had already turned towards another side. PW3 further testified that no public person had come to rescue him after he sustained bullet injury. He further deposed that he had not made the call at 100 number as his mobile phone was out of order, and the call to his friend Vicky was made by him from the mobile phone of one another boy Johnty who had come there. He admitted the suggestion that he had not mentioned the name of Johnty in his statement given to police nor in his examination in chief recorded in the court on the previous date. He further deposed that the mobile phone number of FIR No.158/11 Page No.7/37 State vs. Gaurav Kumar & Anr.
Vicky was 9953738113. He further deposed that he did not make any call to his family members nor his any family member came to the spot. As per his version, he was removed to Bhagwati Hospital by his friend Vicky and some other persons. In the very next sentence, the complainant said that Vicky had not come and in fact, Rohit with another boy whose name he did not know, had come to the spot after 10-15 minutes of incident on a motorcycle and removed him to Bhagwati hospital. He further deposed that Rohit had telephoned his brother while he (victim) was shifted to the hospital and subsequently, his parents also came to Bhagwati hospital where he was treated only for 5-10 minutes. He further deposed that he had not made any complaint to the police regarding the misbehaviour of accused with his sister on earlier occasion. As per his version, he had seen the pistol/katta on the date of incident. He denied the suggestion that on the date of incident he (complainant) himself was carrying a katta with him and while he was playing with the same, he got injured by a bullet. He denied the suggestion that accused persons had never misbehaved with his sister. He denied the suggestion that he was deposing falsely.
8. PW4/Ct. Jagvir is a formal witness who was deputed as a duty Ct. at JPN, Trauma Centre, AIIMS, on 11.04.2011. As per his version, on said date, IO had brought injured Ajay Kaushik to the hospital and doctor had taken his blood sample which was sealed with the seal of hospital in a pullanda and said pullanda alongwith the sample seal was seized by the IO vide seizure memo Ex. PW4/A.
9. PW5/Ct. Sumer is the witness to the arrest of accused FIR No.158/11 Page No.8/37 State vs. Gaurav Kumar & Anr.
persons and recovery of pistol and cartridges. As per his version on the intervening night of 04/05.04.2011, he alongwith ASI Ravi Shankar and HC Jai Bhagwan joined the investigation of this case and on the basis of information regarding presence of accused Gaurav at the house of his maternal uncle, they reached Shani Mandir, Kishan Garh where at about 1:00 am, they apprehended accused Gaurav. Accused Gaurav was interrogated by the IO and from his possession, a micromax black mobile phone was recovered. IO arrested the accused Gaurav vide arrest memo Ex. PW5/A, conducted his personal search vide memo Ex. PW5/B. PW5 identified his signatures on both memos at points A. PW5 further testified that accused Gaurav had made a disclosure statement and had led the police to the house of co- accused Sandeep from whom he got recovered a katta (country made pistol) and two live cartridges from underneath of bed sheet of hosue no.199, near Mor wali Chopal, ward no.2, Mehrauli. PW5 further deposed that sketch of katta and cartridges were prepared vide memo Ex. PW5/C bearing his signature at point A and same were put in a pullanda and sealed wit the seal of RS and seized vide seizure memo Ex. PW5/D. PW5 also identified his signature on the disclosure statement of accused Gaurav and Sandeep and said documents were exhibited as Ex. PW5/E and Ex. PW5/F. PW5 further proved the pointing out memo of place of incident allegedly prepared at the instance of accused Gaurav as Ex. PW5/G by identifying his signature at point A. As per his version, accused Gaurav had taken the police to the place of incident in front of shop of Narender. PW5 correctly identified both accused persons.PW5 also correctly identified country made pistol and two cartridges brought by MHC (M). The pistol was identified as Ex. P-4 while one fired cartridge and one empty cartridge FIR No.158/11 Page No.9/37 State vs. Gaurav Kumar & Anr.
were identified as Ex. P-5 and P-6 respectively.
9.1. In his cross examination, PW5 further deposed that after arrest of accused Gaurav, he was brought to PS Mehrauli. As per his version, no public person was joined in the investigation on that night. PW5 denied the suggestion that he had never joined the investigation of this case or that he had signed the documents at the instance of IO.
10. PW6/Ct. Naveen deposed that on the intervening night of 3/4.04.2011, he was on emergency duty with HC Ram Chander at PS Mehrauli. On that day, at about 10:30 pm, on receipt of DD no.28A, he alongwith HC Ram Chander reached at Bhagwati hospital where injured was not found and it was revealed that injured had been taken to AIIMS by PCR. PW6 further deposed that thereafter, they reached at Trauma Centre where Duty Constable informed that injured had been treated and doctor had given bullet lead taken out from the injured wound and same was put in a match box, sealed with the seal of JS in a cloth piece and seized vide memo Ex. PW6/A. He further deposed that clothes of injured were given by the doctor to the IO after sealing the same with the seal of hospital and same were also seized vide memo Ex. PW6/B. PW6 testified that IO then recorded the statement of injured Ajay and prepared rukka and gave it to him at about 1:30 am and PW6 took the same to PS for registration of FIR. Further as per PW6, he reached at PS at about 2:05 am and gave rukka to duty officer HC Babu Lal. PW6 was handed over the rukka and copy of FIR and was directed to join investigation with ASI Ravi Shankar with whom he reached at AIIMS Trauma Centre. PW6 further testified that FIR No.158/11 Page No.10/37 State vs. Gaurav Kumar & Anr.
thereafter, they went in search of accused Gaurav but could not find him and came back to PS where ASI Ravi Shankar deposited the pullanda at Malkhana. PW6 correctly identified the case property i.e. cartridge lead Ex. P-3, after the same was produced by MHC(M) in parcel no.2 sealed with the seal of SS, FSL. PW6 deposed further that he had given the sealed pullanda of clothes alongwith sample seal of hospital to the IO. PW6 further deposed that his statement was also recorded by the IO.
10.1 In his cross examination, PW6 deposed further that on the intervening night of 3/4.04.2011, an information was received at about 10:50 pm. He further deposed that HC Ram Chander had made departure entry in the register for leaving the PS and they went on the bike belonging to HC Ram chander, to the spot. PW6 further deposed that they reached Bhagwati Hospital at about 11:00 pm and Trauma Centre at about 11:20 pm where they met duty constable Jagbir. PW6 further deposed that said bullet lead, which was taken out of the body of injured, was already with duty Ct. Jagbir and same was not given to him by duty Constable. However, said bullet lead was sealed with the seal of JS by HC Ram Chander and said seal belonged to police offical posted at the hospital. PW6 further deposed that statement of injured was recorded by HC Ram Chander but confirmed by doctor on duty. PW6 denied the suggestion that he did not go to any spot or that he had been cited as false witness to fill up the lacuna. He further denied the suggestion that he was deposing falsely.
11. PW7/Dr. Dhananjay Kumar deposed that he had examined the X-ray plate of right upper thigh of patient Ajay Kumar and no FIR No.158/11 Page No.11/37 State vs. Gaurav Kumar & Anr.
fracture could be seen and he had prepared the report Ex. PW7/A bearing his signature at point A. In his cross examination, he admitted that no bullet was seen in the X-ray plate.
12. PW8/Vicky deposes that the incident was of year 2011, perhaps the month was of July or August. He deposed further that at about 10:00-10:30 pm, accused Gaurav had fired upon Ajay Kaushik by a country made katta near the shop of Narender Parchoon wala in the area of Mehrauli near Prince Public School. He further deposed that Ajay had called him on his telephone no.9311957703 and he reached at the spot and found Ajay was having gun shot injury on his thigh and blood was oozing out from the wound. PW8 testified that he took Ajay on his bike to Bhagwati Hospital in their area but they refused to admit Ajay Kaushik as it was police case and police was informed and Ajay was taken to Trauma Centre in a PCR van. He further deposed that police had made inquires from him.
12.1 In his cross examination, PW8 further deposed that he did not remember the phone number of Ajay Kaushik but his name got displayed when he (PW8) received a call from him. He admitted that firing incident did not take place in his presence. He deposed that he had not seen accused Gaurav and he could not say if accused present in the court was the same Gaurav or not. He denied the suggestion that he was deposing falsely or he had never gone to the spot.
13. PW9/Ct. Sher Singh deposed that he had taken the pullandas of this case and deposited the same to the office of FSL vide RC No.4/21/11 Ex. PW9/A on 26.04.2011. He further deposed that FIR No.158/11 Page No.12/37 State vs. Gaurav Kumar & Anr.
the proof of receipt Ex. PW9/B was given to MHC(M) on his return. He was not cross examined despite given opportunity.
14. PW10/Ct. Ajay deposed that he had taken the pullandas with sample seal of this case and deposited the same to the office of FSL vide RC No.4/21/11 Ex. PW10/A on 27.04.2011. He further deposed that the proof of receipt Ex. PW10/B was given to MHC(M) on his return. He was also not cross examined despite opportunity.
15. PW11/HC Jaibir Singh deposed that on 04.04.2011 while he was posted as MHC (M) at PS Mehrauli, HC Ram Chander came to Malkhana and deposited two sealed pullanda, one containing match box in which one bullet was packed and parcel was sealed in a cloth with the seal of JS and another containing clothes of injured with the seal of CMO, JPNA TC AIIMS. PW11 further deposed that he had made entry at serial no.3134 in register no.19 in Part I and Part II vide Ex. PW11/A from P1 and P2. Further as per PW11, both the sealed parcels were sent to FSL on 27.04.2011 through Ct. Ajay vide RC no.11/21/11 Ex. PW11/B and on the same date, Ct. Ajay Kumar came back to Malkhana and handed over the acknowledgment Ex. PW11/C. PW11 testified that on 05.04.2011, ASI Ravi Shankar came to Malkhana and deposited one sealed parcel with the seal of RS containing one country made katta and two live cartridges and he (PW11) made entries at serial no.3135 in register no.19 vide Ex. PW11/D. PW11 further testified that on 26.04.2011, he had sent the aforesaid exhibits to FSL, Rohini through Ct. Sher Singh vide RC No.4/21/11 Ex. PW11/E and on the same date, Ct. Sher Singh came back to Malkhana and handed over the acknowledgment Ex. PW11/F to him. PW11 was FIR No.158/11 Page No.13/37 State vs. Gaurav Kumar & Anr.
not cross examined despite given opportunity.
16. PW12/HC Jai Bhagwan deposed that on 05.04.2011 while he was posted at PS Mehrauli, he alongwith ASI Ravi Shankar had joined the investigation of present case. At about 12:40 pm, a secret informer came and informed that accused Gaurav who had fired on 03.04.2011 would visit his maternal uncle at H. No.177, Garwal Colony, Mehrauli. PW12 further deposed that IO ASI Ravi Shankar organized a raiding party. PW12 himself and Ct. Sumer reached near Shani Mandir, Garwal Colony, Mehrauli and kept waiting for accused and secret informer was with them and at about 1:00 pm on 05.05.2011, a person came from the side of Kishangarh and on the pointing out of secret informer, they had apprehended him and on interrogation, he revealed his name as Gaurav.
16.1 PW12 further deposed that accused was then interrogated by the IO and disclosed that he had a friendship with the sister of his friend Ajay and on that issue he had some quarrel with Ajay. Thereafter, he made a plan to beat Ajay with his (accused's) friend namely Sandeep Shakal who also arranged one country made katta with three live cartridges. PW12 testified that IO recorded disclosure statement of accused Gaurav vide Ex. PW12/A and on the basis of his disclosure statement, accused had taken them to the house of accused Sandeep Shakal at H. No.199, Mor Wali Chopal, Mehrauli where accused Sandeep Shakal was also found present and he had handed over one country made pistol and two live cartridges to the IO. PW12 further testified that IO prepared the sketch of katta and two live cartridge vide memo Ex. PW5/C and on measuring, the length of FIR No.158/11 Page No.14/37 State vs. Gaurav Kumar & Anr.
barrel ws 14.5 cm and body 9 cm and butt was 7.5 cm. 8 Mm was engraved on the bottom of live cartridges and KF was also engraved.
16.2 Further as per PW12, then IO packed the katta and live cartridges in parcels and seal of RS was affixed on it, seal after use was handed over to him and IO seized the same vide memo Ex. PW5/D. Thereafter, they came back to PS and case property was deposited in the Malkhana and accused was put up in the lock up. PW12 correctly identified both accused persons in the court. PW12 further deposed that accused Gaurav was arrested vide memo Ex. PW5/A and his personal search was conducted vide memo Ex. PW5/B. Accused Sandeep Shakal was arrested vide memo Ex. PW12/A and his personal search was conducted vide memo Ex. PW12/B. PW12 correctly identified the case property i.e. katta as Ex. P-4 and two live cartridges as Ex. P-5 and P-6.
16.3 In his cross examination by counsel for accused Sandeep, PW12 further deposed that they were three persons namely ASI Ravi Shankar Tyagi, himself and Ct. Sunil in the raiding party at the time of arrest of accused Gaurav Kumar, who was arrested at about 1pm. PW12 further deposed that accused Gaurav Kumar led the police party to the house of other accused Sandeep @ Shakal at House No.199, Mehrauli where accused Sandeep @ Shakal was present in his house. He further deposed that both accused Gaurav Kumar and Sandeep @ Shakal were apprehended from Ward no.2, but they were living in different streets of ward no.2. PW12 did not recollect the exact distance between the house of accused Gaurav Kumar and Sandeep @ Shakal but said that it was 10-15 minutes walking FIR No.158/11 Page No.15/37 State vs. Gaurav Kumar & Anr.
distance and they reached the house of accused Sandeep @ Shakal at 2pm. Further as per PW12, some public persons from the locality were called but none of them agreed to join the police investigation and said persons did not disclose their addresses. PW12 did not recollect whether any notice was served by the IO to said public persons, who refused to join the police investigation. PW12 further deposed that accused Sandeep @ Shakal was alone in the house when the pistol and cartridges were recovered from his house. Further that, they were only three police officials at the time of recovery of pistol and cartridges. He denied the suggestion that nothing was recovered from the house of accused Sandeep @ Shakal or that he was deposing falsely. He further denied the suggestion that country made pistol and cartridges were planted upon accused Sandeep @ Shakal or that nothing was recovered at the instance of accused Sandeep @ Shakal or for that reason, no public persons were joined at the time of recovery of weapon. PW12 was not cross examined by accused Gaurav.
17. PW13/Rajender Singh is the Metropolitan Magistrate who had conducted the TIP of accused Gaurav. As per his version, on 05.04.2011, while he was posted as Metropolitan Magistrate in Saket Court, an application for conducting TIP of accused Gaurav was marked to him from the court of Sh. Rakesh Pandit, Ld. ACMM in case FIR no. 158/11, PS Mehrauli. Further as per PW13, IO/ASI Ravi Shankar had produced accused Gaurav before him in muffled face and he was identified by the IO and his (IO's) statement to this effect was recorded. Then IO was asked to leave the chamber. Further as per PW13, he explained the menaing of TIP to the accused, but, accused FIR No.158/11 Page No.16/37 State vs. Gaurav Kumar & Anr.
refused to participate in the TIP despite warning that his refusal to take part in TIP proceedings could be used against him during trial and an adverse inference could be drawn against him. Then, PW13 recorded the statement of accused Gaurav to this effect and issued a certificate Ex. PW13/B. Further that the TIP proceeding was directed to be sealed with the seal of court as per his order Ex. PW13/C and copy of TIP proceedings was given to IO as per his request application Ex. PW13/D. PW13 was not cross examined despite given opportunity.
18. PW14/HC Babu Lal deposed that on 04.04.2011 while he was posted as duty officer at PS Mehrauli,he recorded FIR no.158/11 vide Ex. PW14/A on the basis of rukka prepared by HC Ram Chander. He was not cross examined despite given opportunity.
19. PW15/HC Ram Chander deposed that on 03.04.2011 while he was posted at PS Mehrauli and was on emergency duty, upon receipt of DD no.28A, he alongwith Ct. Naveen reached at Bhagwati Hospital where he came to know that injured had been taken to Trauma Centre. Thereafter, they reached at Trauma Centre where one boy namely Ajay Kaushik was found admitted and he was declared fit for statement. He further deposed that he recorded the statement of injured vide Ex. PW3/A and prepared rukka vide Ex. PW15/A and sent Ct. Naveen for registration of FIR. He further deposed that he was also handed over one lead, which was taken by the doctor from the body of injured and same was sealed by him with the seal of JS and seized vide memo Ex. PW6/A. He also seized the medical exhibits of injured vide memo Ex. PW4/A which were produced by duty constable Jagbir. PW15 correctly identified the said lead as Ex. P-3. He further deposed FIR No.158/11 Page No.17/37 State vs. Gaurav Kumar & Anr.
that after registration of FIR, investigation was taken over by other IO whom he handed over the case property seized by him. He was not cross examined despite given opportunity.
20. PW16/HC Madan Lal deposed that on 03.04.2011 while he was posted at PS Mehrauli and was working as duty officer from 4:00 pm to 12:00 midnight, he had received an information through wireless that one boy had been shot and admitted to Bhagwati hospital. PW16 reduced said information vide DD no.28A Ex. PW16/A. Thereafter, said DD entry was marked to HC Ram Chander for further necessary action. PW16 was also not cross examined despite given opportunity.
21. PW17/HC Santosh Kumar deposed that on the intervening night of 3.04.11, he was posted in PCR and was working as Incharge Van PCR No. E-58 from 8 pm to 8 am. During his duty hours, at about 11.30 pm, he received a call from the Control Room pursuant to which he alongwith his staff and Van reached at Bhagwati Hospital,Mehrauli at about 11.50 pm where one injured Ajay Kaushik met him in the hospital. The blood was oozing from his wound in his thigh, he was accompanied with 2-3 friends. Since doctor of Bhagwati Hospital refused to get the injured admitted or to provide him treatment therefore, he took the injured to Trauma Centre, AIIMS and furnished the information to Control Room. He further deposed that IO had recorded his statement in that regard.
22. PW18/HC Khem Singh deposes that on 30.05.2011, while he was posted at PS Mehrauli as Reader/SHO PS Mehrauli, on the FIR No.158/11 Page No.18/37 State vs. Gaurav Kumar & Anr.
directions of IO ASI Ravi Shankar, he took out print out of email Mark PW18/A in respect of call details of mobile phone of complainant Ajay Kaushik having mobile number 9953738113 of the intervening night of 03/04.04.2011.
23. PW19/SI Ravi Shankar is the second IO of the case. He in his examination in chief deposed that on 04.04.2011, while he was posted as ASI at PS Mehrauli, investigation of this case was assigned to him and copy of FIR and original rukka was handed over to him by Ct. Naveen in the police station itself. Thereafter, he alongwith Ct. Naveen reached at hospital where HC Ram Chander met him and he collected MLC of injured Ajay Kaushik. He further deposed that one sealed parcel duly sealed with the seal of CMO, JPNTC AIIMS alongwith sample seal was taken into police possession by HC Ram Chander vide seizure memo Ex.PW6/B. Further as per PW19, one sealed parcel duly sealed with the seal of JS and seizure memo of that parcel Ex.PW6/A was also handed over to him by HC Ram Chander. PW19 recorded statement of HC Ram Chander and he was relieved. PW19 further testified that he had made inquiries from the injured and recorded his supplementary statement and as per the facts disclosed to him by the injured, he discussed the matter with his senior officers and section of law in the FIR was changed to 307 IPC.
23.1 PW19 further testified that on 05.04.2011, he had received a secret information in the midnight that the person who had shot injured Ajay Kaushik, would go to the house of his maternal uncle via Shani mandir. The name of the accused was also told to him as Gaurav Kumar. On receipt of that information, PW19 constituted a FIR No.158/11 Page No.19/37 State vs. Gaurav Kumar & Anr.
raiding team consisting of HC Jai Bhagwan and Ct. Sumer and they immediately left the police station alongwith secret informer. At about 1:00 am, secret informer pointed towards a person, who was coming from the side of Kishan Garh towards Shani mandir. Said person was apprehended and his name was revealed as Gaurav i.e. accused (correctly identified by the witness). PW19 made inquiries from accused Gaurav and recorded his disclosure statement vide Ex.PW5/E. PW19 further deposed that accused Gaurav had disclosed that he could get recovered the firearm used by him from his friend Sandeep. Accused Gaurav was arrested vide arrest memo Ex.PW5/A and pointed out the place of incident. Thereafter, pursuant to his disclosure statement, accused Gaurav led them to the house of his associate Sandeep Shakal i.e. House No.199/1, Ward No.2, Morwali chaupal, Mehrauli where they reached at about 2.30am. Accused Sandeep Shakal was found present in the house and he was apprehended (correctly identified by the witness). PW19 deposed further that he had made inquiries from said accused and he got recovered one country made pistol alongwith two live cartridges which were kept by him under the pillow on his cot lying in the said room. The sketch of the country made pistol and live cartridges was prepared vide Ex.PW5/C. Thereafter, recovered weapon and cartridges were sealed in a cloth parcel with the seal of RS and FSL form was filled up. The parcel was taken into police possession vide seizure memo Ex.PW5/D. The seal after the use was handed over to HC Jai Bhagwan. PW19 further testified that accused Sandeep Shakal was arrested vide arrest memo Ex.PW12/A. Thereafter, both the accused were taken to hospital for their medical examination and after their medical examination, they were sent to lockup and he (PW19) FIR No.158/11 Page No.20/37 State vs. Gaurav Kumar & Anr.
deposited the case property in malkhana and brought this fact to the notice of SHO. Further as per PW19, on the next day, both the accused persons were produced in the court and sent to JC. PW19 recorded statement of witnesses, who joined investigation with him on said day.
23.2 Further as per version of PW19, on 11.04.2011, at the instance of injured Ajay Kaushik, he prepared site plan of place of incident vide Ex.PW19/A. Thereafter, injured was taken to hospital for taking his blood sample and blood sample was taken into possession vide seizure memo E.xPW4/A. Supplementary statement of injured was recorded in that regard. PW19 further deposed that during investigation, he collected PCR form Ex.PW19/B. PW19 again said that when the accused persons were produced in the court on 05.04.2011, he had also moved an application for the TIP of accused Gaurav vide Ex.Pw19/C but, accused Gaurav refused to join the TIP proceedings. During investigation, he also collected CDR Mark PW18/A. He further deposed that on 26.04.2011, case property was sent to FSL through Ct. Sher Singh for examination. On completion of investigation, chargesheet was filed in court.
23.3 PW19 further testified that after obtaining the report from FSL vide Ex.PW19/D and Ex.PW19/E, he also collected the FSL result in respect of firearm and recovered cartridges vide Ex.PW19/F. After obtaining the result, he obtained the requisite sanction for the prosecution of accused Sandeep Shakal under Arms Act from Addl. DCP Shri Surender Kumar and supplementary chargesheet was prepared and filed in court.
FIR No.158/11 Page No.21/3723.4 In his cross examination by counsel for accused Sandeep, PW19 deposed that they had left the police station at about 12.30am for going to the house of accused Sandeep Shakal. The distance between police station and house of accused Sandeep was about 1- 1.5 km. He further deposed that they left on foot as the lanes were narrow and vehicle could not move through those lanes. He further deposed that the door of the house was opened by the accused himself though his mother was also present in the house. PW19 further deposed that he was not aware if any other family member was also present in the house at that time. He did not call any neighbourer to join the proceedings nor asked mother of accused Sandeep to join in the investigation. PW19 could not admit or deny if the father or brother of accused Sandeep were also present in the house. He denied the suggestion that no firearm or cartridges were recovered from the house of accused Sandeep or that katta and cartridges were planted on the accused to falsely implicate him in this case. He further denied the suggestion that no proceedings were conducted at the house of accused Sandeep or that all documents were prepared in the police station. Further as per version of PW19, he did not search the complete house of accused Sandeep as the accused was apprehended from the very first room on the entrance and got recovered pistol and cartridges from the same room itself. He denied the suggestion that since no firearms were recovered from the house of accused therefore, no witness was joined in the proceedings. He further denied the suggestion that he had deposed falsely against the accused Sandeep.
FIR No.158/11 Page No.22/3723.5 PW19/ SI Ravi Shankar during his cross examination further deposed that the complainant had informed him that the alleged incident had occurred near grocery shop of Narender. The statement of said shopkeeper was not taken as the shop was locked at the time of alleged incident. As per PW19, complainant had informed him that said shop was lying closed and he himself had also inquired from said shopkeeper later on, who also told that at the time of incident his shop was already close. PW19 denied that he was deposing falsely regarding the shop being closed as no such incident had occurred near the shop as alleged by the complainant. PW19 admitted that accused was known to the complainant prior to the incident. However, he denied that accused Gaurav was arrested from his uncle's house as per information given by the complainant.PW19 denied the suggestion that accused Gaurav did not give any disclosure statement regarding the incident or any information regarding accused Sandeep. He admited that Ex.PW18/A was only a printout of call details of the mobile phone of the complainant and does not bear any stamp or signature of any authorized person of the service provider. PW19 admitted the suggestion that whenever any exhibits were handed over by the doctor after the MLC of the injured the same were handed over to the IO in sealed cover with the seal of hospital. He denied the suggestion that seizure memo of the bullet recovered from the injured's body was a false and fabricated document. He further denied that no bullet was recovered from the body of injured or that he did not record the statement of the doctor who took out the bullet from the body of injured. He further denied the suggestion that he was deposing falsely or that he had not conducted investigation fairly or that accused Gaurav had been FIR No.158/11 Page No.23/37 State vs. Gaurav Kumar & Anr.
falsely implicated in this case due to previous enmity between him and the complainant.
24. PW20/Sh. Rampatt, Medical Record Technician, AIIMS Trauma Centre, New Delhi, deposed that he had been deputed to appear and depose in the present case on behalf of Dr. Ripu Daman who had left the services of the hospital. He further deposed that he could identify his (Dr. Ripu's) handwriting and signatures as he had seen him writing and signing during the course of official work. PW20 proved the MLC no.252643 of injured Kaushik Ajay S/o Mahesh Kaushik dated 03.04.2011 prepared by Dr. Ripu Daman as Ex. PW20/A. In his cross examination by counsel for accused Sandeep, PW20 deposed that MLC Ex. PW20/A was not signed in his presence. PW20 was not cross examined by accused Gaurav despite given opportunity.
25. PW21/Dr. Abhijeet Jaysing Chopade, Sr. Resident Medicine, JPNATC, AIIMS, New Delhi, deposed that he had been deputed by Medical Superintendent to appear and depose in the present case in respect of MLC No.252643 of injured Kaushik Ajay. He deposed that he had seen the said MLC No.252643 Ex. PW20/A of injured Kaushik Ajay dated 03.04.2011, as per which, injured Ajay Kaushik was brought to the hospital by HC Santosh with alleged history of gun shot injury over the right upper thigh. Injured was advised for X-ray right thigh and orthopedic surgery. PW21 further deposed that as per MLC, there was one entry wound 2X1X1 cm on right thigh and it was also mentioned in the MLC that weapon of offence used in causing injury was a fire arm and nature of injury was simple.
FIR No.158/11 Page No.24/3725.1 In his cross examination by counsel for accused Sandeep, PW21 deposed further that MLC Ex. PW20/A was not prepared in his presence. He voluntarily stated that he was not posted in said hospital on said date. He deposed that the injury mentioned in the MLC was simple and said injury was not sufficient to cause death. PW21 was not cross examined by accused Gaurav despite given opportunity.
26. PW22/Surender Kumar deposed that on 22.07.2011, while he was posted as Additional Deputy Commissioner of Police South District, one report u/s 173 Cr.PC alongwith statement of witnesses recorded u/s 161 Cr.PC and other documents such as seizure memo of recovered firearm and cartridges from accused namely Sandeep @ Shakal s/o Sukhbir and FSL report were produced before him and after perusing all the said documents, he was satisfied that accused Sandeep @ Shakal was in conscious possession of country made pistol of .315bore with two live cartridges and committed offence alongwith his associate Gaurav Kumar. PW22 further deposed that he had accorded sanction for the prosecution of accused u/s 39 Arms Act vide his letter Ex.PW22/A bearing his his signature and seal at point A. 26.1 In his cross examination by the counsel for accused Sandeep @ Shakal, PW22 denied the suggestion that sanction was accorded without application of mind in a mechanical manner. PW22 admitted that the aforesaid weapon was not examined by him though it was produced before him in sealed parcel alongwith FSL report. He denied the suggestion that he was not aware whether any weapon FIR No.158/11 Page No.25/37 State vs. Gaurav Kumar & Anr.
was lying in that parcel or not. He was not cross examined by accused Gaurav Kumar despite opportunity.
Statement u/s 313 Cr.P.C.
27. After completion of prosecution evidence, statement of both accused was recorded u/s 313 wherein all the incriminating material was put to them but they denied the same as wrong and incorrect. The accused Gaurav pleaded his innocence by stating that he was falsely implicated by the complainant as the complainant was suspecting his affair with his girl friend. Accused Gaurav further pleaded that he was lifted from the house of his maternal uncle. He categorically denied to have made any disclosure statement to the police or got recovered any firearm from the house of co-accused Sandeep Shakal.
27.1 Accused Sandeep Shakal also pleaded his innocence by stating that he has been falsely implicated by the police and he had never got recovered any firearm or cartridges. He further stated that he had never made any disclosure statement to police and his signature were forcibly taken by the police on some blank papers.
Arguments of Ld. Addl. PP
28. Ld. Addl. PP Sh. R.K. Gurjar has argued that barring few discrepancies which are not going to the root of the matter, the testimony of injured victim is well in consonance with the version of other prosecution witnesses and is also supported with the medical evidence wherein, he is shown to have sustained gun shot injuries on his thigh on the date of incident. It is further submitted that though FIR No.158/11 Page No.26/37 State vs. Gaurav Kumar & Anr.
the injuries were simple in nature but considering the fact that same were gun shot injuries and might have proved fatal in case of excessive bleeding, a clear case of Section 307 IPC has been established on record.
Defence Arguments
29. Per contra, Ld. Defence counsel Ms. Seema Mishra appearing for accused Gaurav rebutted the arguments of Ld. Addl. PP by submitting that the version of the injured/victim is full of discrepancies and contradictions and in absence of corroboration from any independent witness, the same is not at all worthy of credence. She further submitted that considering the serious discrepancies in the victim's version, no conviction can be recorded on the basis of his uncorroborated testimony. It is further argued that as per the victim, the incident had occurred just 15-20 steps away from the grocery shop of Narender and just a few minutes before, the victim was talking to one person namely Pawan despite that the IO has not examined or cited any independent eye witness. It is further argued that the incident had occurred at about 10:30-11:00 pm and the house of the victim was also just 100 meter away from the place of incident desptie that no eye witness has been joined by the IO during investigation. It is further argued that in his statement Ex. PW3/A, complainant has stated that after sustaining gun shot injuries, he had made a call to his friend Vicky from his mobile no. 9953738113 and his friend Vicky had reached the spot with 2-3 more friends and they took him to Bhagwati Hospital whereas, in his examination in chief, he deposed that his own phone was out of order therefore, he had called his friend Vicky on his mobile no.9953738113 from the mobile phone FIR No.158/11 Page No.27/37 State vs. Gaurav Kumar & Anr.
of one boy named Johnty upon which, his friend Vicky came there with some more persons and removed him to Bhagwati hospital. Whereas, in the same breathe, he again said that Vicky had not come, in fact it was Rohit who had come with another boy whose name he did not know and took him to Bhagwati hospital on their motorcycle. Counsel vehemently argued that prosecution has also examined said Vicky as PW8, who nowhere talked about the presence of any person Rohit with him. As per his version, he himself reached the spot on his motorcycle and took the injured to Bhagwati hospital.
29.1 It was further submitted by Ld. Defence counsel Ms. Seema Mishra that as per prosecution story, the doctor who treated the injured in AIIMS hospital had handed over the bullet recovered from the wound of injured victim to the police and the same was also seized by the IO during course of investigaton but, said bullet was sent to FSL only for the purpose of comparison of blood of the accused with the blood allegedly found on the bullet and not for the purpose of comparison of fired bullet with the country made pistol allegedly used in the offence. It is further submitted that as per prosecution case, the said pistol was recovered from the house of accused Sandeep Shakal pursuant to the disclosure statement of accused Gaurav who allegedly led the police team to the house of said co-accused. However, no efforts were made by the IO to get the ballastic opinion as to whether said bullet was fired from the gun/pistol allegedly recovered from the possession of accused Sandeep Shakal. It is further submitted that the prosecution case is also shrouded with doubts with regard to recovery and seizure of said bullet. As per seizure memo Ex. PW6/A, said bullet was taken out from FIR No.158/11 Page No.28/37 State vs. Gaurav Kumar & Anr.
right hand leg of the injured by Dr. Jai Narayan Singh who handed over the same to Duty Constable George Kutty who in turn handed over the same to HC Ram Chander. HC Ram Chander put the same in match box and prepared a cloth pullanda and sealed the same with the seal of JS. But, it is nowhere clear from the seizure memo whose seal was actually used by HC Ram Chander to seal the pullanda. There is no explanation on record as to why the bullet was not handed over to the duty constable by the concerned doctor with the seal of hospital. Considering the fact that even Dr. Jai Narayan Singh who actually took out the bullet from the wound of victim has also not been examined by the prosecution, the said recovery is full of doubts and and cannot be relied upon for proving the case of prosecution. It is further argued that the clothes of the injured were also seized by the police during investigation but, as per the seizure memo Ex.PW6/B of said clothes, the same were also handed over to duty Ct. George Kutty but same were handed over in sealed pullanda with the seal of CMO, JPNACT, AIIMS, New Delhi whereas, no such seal of the hospital was found on the bullet allegedly recovered from the body of the victim.
29.2 Counsel Sh. F. Khan appearing for accused Sandeep Shakal has argued that prosecution has failed to prove the case even against accused Sandeep Shakal against whom the charges only for the offence punishable u/s 25/54/59 were framed because there are serious discrepancies and contradictions in the statement of recovery witnesses, making their testimonies totally unreliable and untrustworty. It is further argued that at the time of alleged recovery of the pistol from the house of accused Sandeep Shakal, IO had not FIR No.158/11 Page No.29/37 State vs. Gaurav Kumar & Anr.
joined any public witness nor make any efforts to join the same.
Conclusion
30. For proving any charges against he accused, the prosecution has to prove two things. Firstly, that the witnesses examined in the case are credible witnesses and secondly, the facts brought and proved on record are sufficient to prove the essential ingredients of the offence for which the accused faced trial. While assessing the credibility of a witness court may find ocular testimony falling into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way. It may convict or acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. In the third category of cases the court has to be circumspect and to look for corroboration in material particulars by reliable evidence, direct or circumstantial.
31. The court, while evaluating the facts of a case, is supposed to form its opinion about the credibility of the witnesses examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on credibility of the witness(es). For the purpose of assessing the credibility, the Court has to consider evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case.
FIR No.158/11 Page No.30/37Law recognizes following ways in which evidence of witness can be termed unreliable; (a) the witness's statement is inherently improbable or contrary to the course of nature, (b) his deposition contains mutually contradictory or inconsistent passage, (c) he is found to be bitter enemy of the opposite party, (d) he is found not to be a man of veracity, (e) he is found to have been bribed or accepted any other corrupt inducement to give evidence, and (f) his demeanor, while under examination, is found abnormal and unsatisfactory.
32. The case of the prosecution is based on direct evidence of the victim Ajay Kaushik, examined as PW3. As per his version, the incident had occurred on 03.04.2011 at about 11:00 pm after he came back home from her sister Rashmi's house. As soon as, he returned home, his mother asked him to go and accompany his sister Sapna, who had gone to bring momos from the shop of Narender. Accordingly, he went to shop of Narender, met his sister Sapna there and sent her back home. He himself however, started talking and walking with Pawan. After Pawan started talking to someone on his mobile phone, Pawan went little ahead of PW3. In the meantime, accused Gaurav met him (PW3) and accused was little drunk. Accused Gaurav took out a pistol from his dub and fired a shot on victim's thigh and PW3 started bleeding. When PW3 asked accused about the reason, he said that he had taken revenge of the slap which PW3 had given him 20-25 days prior when accused misbehaved with his sister. Thereafter, accused fled away. PW3 called his friend Vicky from his mobile phone and PW3 was taken to Bhagwati hospital by Vicky and 1-2 more friends. Later on, injured/PW3 was taken to AIIMS by the PCR where police recorded his statement Ex. PW3/A. Further as per PW3, a FIR No.158/11 Page No.31/37 State vs. Gaurav Kumar & Anr.
bullet was taken out from his wound by the doctor and he was discharged from the hospital on the next day.
33. As per prosecution case, said bullet taken out from the wound was blood stained but as per biological Division report of FSL Ex. Ex.PW19/F, no reaction was shown from the blood detected on the said bullet. But strangely said bullet was never compared with the weapon (country made pistol), which was allegedly recovered from the possession of co-accused Sandeep Shakal, at the instance of accused Gaurav. Record shows that IO did not even make any such request to ballistic expert for comparison of said bullet recovered from the body of victim with the weapon allegedly used in the offence.
34. From the above position on record, there is no ballistic/forensic evidence so as to connect the said bullet with the weapon of offence allegedly recovered at the instance of accused Gaurav from the possession of co-accused Sandeep Shakal. However, undoubtedly, the injuries caused to the injured were firearm injuries, as is also deposed by PW21 Dr. Abhijeet Jai Singh.
35. As far as involvement of accused Gaurav is concerned, prosecution case is based on sole testimony of injured/victim Ajay Kaushik. Undisputably, conviction can be based even on the sole testimony of a witness provided, his version is cogent, consistent and beyond reproach. But, if his version suffers from discrepancies or inconsistency, then court had to look for corroboration from some independent source. Non examination of any independent witness FIR No.158/11 Page No.32/37 State vs. Gaurav Kumar & Anr.
may not be fatal in every case but, where no explanation is tendered by prosecution for non joining of independent witness despite their availability at the spot, then same would certainly raise a suspicion on the credibility of prosecution case.
36. In the instant case, the victim Ajay Kaushik i.e. PW3 has though remained consistent in his examination in chief and deposed well in consonance with his statement Ex. PW3/A, but he could not withstand the test of cross-examination as his testimony faltered on many material aspects during his cross examination. As per prosecution case, injured was taken to hospital by PW8 Vicky, who was called on the spot by the victim by making a call from his own mobile no.9953738113. But, in his cross-examination, PW3 stated that his phone was out of order therefore, he had made call to his friend Vicky from the mobile phone of one boy Johnty who also came there after the incident. On one hand, PW3 stated that nobody came to his rescue after the incident and on the other hand, he said that he called his friend Vicky from the mobile phone of one Johnty about whose presence, victim was completely silent in his statement made to the police as well as in his examination in chief. Even PW8 Vicky did not talk about the presence of any such person Johnty near victim, when he reached the spot. As per injured/victim, shop of Narender, from where his sister Sapna had come to take momos (chinese dish) was 15-20 steps away from the place of incident and it was also lying open but, as per his version, no public person was present on the spot. There is nothing on record as to why the shopkeeper himself was not joined as a witness when the shop was lying open. Here, I may also mention that with regard to said shop, IO of the case has FIR No.158/11 Page No.33/37 State vs. Gaurav Kumar & Anr.
deposed contrary because, as per his version, said shop was lying closed as per the inquiry made by him.
37. Secondly, PW3 in his examination in chief deposed that it was Vicky who came to the spot with 1-2 more persons, shifted him to Bhagwati hospital. But, in his cross-examination, PW3 changed his version by saying that it was not Vicky but Rohit who had come to the spot and took him to the hospital. Furthermore, PW8 Vicky deposed that he had received the call from victim Ajay Kaushik from victim's own mobile phone as victim's name and number got displayed when he received the call from him (injured). But, interestingly, PW8 Vicky did not talk about the presence of any Rohit with him, when he (Vicky) reached the spot. As per version of PW8, he had alone visited the spot and took the injured to Bhagwati hospital on his motorcycle. And even as per Mark PW18/A, no such call at mobile phone no.9311957703 appears to have been made from the phone no.9953738113 of the complainant.
38. As per record, injuries sustained by the victim were simple in nature and he was discharged from the hospital within few hours as the incident occurred in the midnight and he was discharged on the very next day. With said nature of injuries, the victim kept waiting on the spot for 10-15 minutes for his friends to come while his own house was just about 100 meters away from the place of incident. The victim did not even ask said Johnty from whose mobile he called his friend, to call his (victim's) family members, who were living at the distance of 100 meters away.
FIR No.158/11 Page No.34/3739. Furthermore, as per seizure memo Ex.PW6/A of the bullet taken out from victim's wound, same was handed over to duty constable of the hospital by one Dr. Jai Narayan Singh, but no such doctor has been examined by the prosecution. As has been rightly pointed out by defence counsel, the parcel containing said bullet was not even having the seal of hospital and instead the same was carrying seal of JS. The duty constable George Kutty who allegedly took said bullet from Dr. Jai Narayan and later handed it over to HC Ram Chander, has also not been examined by the prosecution.
40. Interestingly, the parcel of clothes of victim was carrying the seal of hospital, while the bullet which was handed over by the same doctor, carries seal of JS and not of the hospital. Hence, recovery of bullet from the wound is also shrouded with doubts.
41. In the light of aforementioned discrepancies and infirmities in the prosecution case, accused Gaurav is entitled to be given benefit of doubt as the prosecution case qua him has not been proved beyond reasonable doubt.
42. Let us now advert to the charges framed against accused Sandeep Shakal. As regard him, only the charge of Section 25/54/59 of Arms Act was framed against him. As per prosecution case, on 05.04.2011, at about 2:30 am, a country made pistol, one empty and one live cartridges were recovered from the possession of said accused, at the instance of accused Gaurav, who made disclosure statement to the police that he could get recovered the weapon used in the offence, from the possession of his friend Sandeep Shakal and FIR No.158/11 Page No.35/37 State vs. Gaurav Kumar & Anr.
led the police team consisting of IO SI Ravi Shankar, Ct. Sumer and HC Ram Chander to his (Sandeep's) house at 199, near Mor wali Chopal, ward no.2, Mehrauli and from there from beneath the bedsheet/pillow, one country made pistol Ex. P-4 and cartridges (one fired and one live) Ex. P-5 & 6 were recovered.
43. Careful perusal of testimony of said recovery witnesses shows that even their testimonies are not in conformity with each other and suffers from serious infirmities and inconsistencies.
44. As per prosecution case, after arrest, accused Gaurav made a disclosure statement pursuant to which he led the police team to the house of co-accused Sandeep Shakal at H. No.199, Mor Wali Chopal, Mehrauli, New Delhi. Whereas, PW5 Ct. Sumer, who is one of the recovery witness, in his cross-examination deposed that after arrest of accused Gaurav, he was brought to police station and no public witness was joined in the investigation during that night. While PW12 HC Jai Bhagwan, who is another recovery witness says that both the accused were brought together to police station as firstly, accused Gaurav was arrested and later on, pursuant to his disclosure statement, another accused Sandeep was arrested from his house, after he (Sandeep) got recovered one country made pistol and two cartridges from his house.
45. Furthermore, as per PW12, he had called some public persons in the locality but none of them came forward to join the investigation though, he (PW12) did not recollect whether IO had given any notice to such public persons for refusing to join the FIR No.158/11 Page No.36/37 State vs. Gaurav Kumar & Anr.
investigation. On the contrary, IO SI Ravi Shankar i.e. PW19 deposes that considering the later hours of night, he did not call any neighbour to join the proceedings. AS per his version, mother of accused Sandeep Shakal was also present in the house at the time of visit of police to his house but, as per version of PW12. HC Jai Bhagwan, accused Sandeep Shakal was alone in his house at the time of recovery of pistol and cartridges from his house.
46. In view of above, even the version of recovery witnesses of alleged recovery of arms from accused Sandeep Shakal also suffers from serious contradictions and discrepancies. There is no corroboration from any independent witnesses nor the IO made any effort to join any such witness. Hence, it is not found safe to convict even accused Sandeep Shakal on the basis of testimony of police witnesses especially when their version are not in consonance with each other.
47. Having regard to aforementioned discussion, I feel no hesitation in holding that prosecution has failed to prove the charges against any of the accused beyond reasonable doubt. Owing to various discrepancies in the case of prosecution as discussed above, both the accused deserve to be given benefit of doubt. Accordingly, both the accused are acquitted in this case. Their bail bonds and surety bonds stand cancelled and discharged. File be consigned to record room.
Announced in open Court (Sunena Sharma)
on 16.11.2018 Additional Sessions Judge-03/South
Saket Courts, New Delhi
John Digitally signed by
John Doe
FIR No.158/11 Doe Date: 2018.11.19
11:06:22 +0530 Page No.37/37
State vs. Gaurav Kumar & Anr.