Delhi District Court
State vs . Suresh Chand Sharma on 14 December, 2010
State Vs. Suresh Chand Sharma
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE (FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 62/08 (new)
31/01 (old)
State Vs. : Suresh Chand Sharma
S/o Sh Prabhu Dayal
R/o Village Dhobi Dhuli,
P.S Jatiyana
District Alwar (Rajasthan)
Local address:
B231, JJ Colony, Khanpur,
New Delhi
FIR No. 709/2000
P.S. Mehrauli
U/s 307/302 IPC
Date of Institution : 20/02/2001
&
SC No. 62/08 & SC No. 62A/08 1/56
State Vs. Suresh Chand Sharma
Session Case No. 62A/08 (new)
85/01 (old)
State Vs. : Suresh Chand Sharma
S/o Sh Prabhu Dayal
R/o Village Dhobi Dhuli,
P.S Jatiyana
District Alwar (Rajasthan)
Local address:
B231, JJ Colony, Khanpur,
New Delhi
FIR No. 710/2000
P.S. Mehrauli
U/s 25/27/54/59 Arms Act
Date of Institution : 20/02/2001
Date when arguments
were heard : 06/12/2010
Date of Judgment : 14/12/2010
JUDGMENT
Vide this judgment I shall dispose of the two aforesaid SC No. 62/08 & SC No. 62A/08 2/56 State Vs. Suresh Chand Sharma Sessions Cases Nos. 62/08 (31/01 old No.) and 62A/08 (85/01 old No.) arising out of the FIR Nos. 709/2000 and 710/2000, P.S Mehrauli, since these cases have been clubbed together vide order dated 09/11/2001, again on 22/05/2002 by my Ld. Predecessor since these cases have arisen out of the same occurrence. FACTS OF PROSECUTION CASE:
2. The factual matrix of the case of prosecution is that on 16/11/2000 at 12.14 p.m a wireless message was received at PP IGNOU of P.S Mehrauli which was reduced in writing in DD No. 9, copy Ex PW13/A, that at D33 & 34 , Freedom Fighter Colony, one employee had shot another employee and HC Ashok No. 896 of PCR E69 is at the place of occurrence. The copy of daily diary was entrusted to PW9 HC Hari Singh who alongwith Ct. Sudhir went to place of occurrence. PW13 SI Satender Sangwan also reached there and recorded statement of PW2 Dinesh Kumar. PW2 Dinesh Kumar gave statement Ex PW2/A that he was employee in Filo Company, D12, F.F Colony, Neb Sarai, New Delhi. At about 12 noon when he SC No. 62/08 & SC No. 62A/08 3/56 State Vs. Suresh Chand Sharma was inside the company, the other employee of company namely accused Suresh Chand was having in his hand a country made pistol and the other employee of the company namely Murthy, trying to overpower Suresh Chand was removing him towards outside.
Accused Suresh was trying to fire shot towards Murthy. PW2 Dinesh alongwith Murthy had tried to snatch the country made pistol from accused Suresh Chand. Accused Suresh Chand fired the shot from country made pistol, which hit in the stomach of Murthy. Murthy fell down. Accused Suresh Chand threw the country made pistol on the road outside and tried to run away on his motor cycle no. DL3SU8268. PW2 Dinesh and the guard of D33, FF Colony, Neb Sarai, New Delhi tried to apprehend the accused Suresh Chand but he ran away from the spot leaving behind his aforesaid motor cycle. Murthy was taken to hospital by other employees of Filo Company namely Sushil and Raman in a vehicle. Police had been informed. PW9, HC Hari Singh, told PW13, SI Satender Sangwan, that doctor at Batra Hospital had declared Murthy unfit for statement. PW13, SI Satender Singh scribed Tehrir Ex PW13/B and called upon the crime team at the spot. PW8, SI Kuwar Sahab of the crime team, arrived at SC No. 62/08 & SC No. 62A/08 4/56 State Vs. Suresh Chand Sharma the place of occurrence, got the spot photographed through PW5 Ct Giri Raj Singh, prepared report Ex PW8/A but did not find any finger print at the spot. PW13 prepared sketch Ex PW2/D of country made pistol Ex P1. Country made pistol Ex P1 with one empty cartridge Ex P2 in it were seized vide memo Ex PW2/B; the motor cycle aforesaid was seized from the spot vide memo Ex PW2/C. Initially case was registered under Section 307 IPC in FIR No. 709/2000, since the injured Murthy was admitted in Batra Hospital for treatment while regarding possession of the country made pistol and its use by the accused, the case was registered for offences punishable under Sections 25 and 27 Arms Act in FIR No. 710/2000 at police station Mehrauli. In the course of investigation, PW1 Natasha Kohli also gave statement of the fact that initially on the day of occurrence accused had entered upon her office of Filo Company where she was doing furnishing work. She stated that the accused had taken out pistol from inside of his shirt and at about 12 noon had aimed the pistol towards her and pressed its trigger, upon which initially she could not understand anything. Upon shrieks of PW1 Natasha Kohli, P.V.V.S Murthy (now deceased) came inside the office of his SC No. 62/08 & SC No. 62A/08 5/56 State Vs. Suresh Chand Sharma employer PW1 Natasha Kohli, apprehended the accused and tried to remove him outside by pulling him from the office. PW1, Natasha Kohli, bolted the door of the office from inside but later heard the sound of firing of the bullet and commotion in her office took place. On coming out of the office, she saw the employee Murthy lying on the road outside, the pistol Ex P1 near side him and accused Suresh Chand having run away.
3. After completion of investigation, charge sheets were filed in the both aforesaid cases. After completing requirements under Section 207 Cr.P.C, matters were committed to the Court of Sessions. Later on, after expiry of injured Murthy on 29/03/2001, other charge sheet was filed for offence under Section 302 IPC in case FIR No. 709/2000 which also was committed to the Court of Sessions, after completing the requirement of Section 207 Cr.P.C.
4. As has been stated at the outset, both the cases, i.e arising out of FIR Nos. 709/2000 and 710/2000, P.S Mehrauli, were clubbed together.
SC No. 62/08 & SC No. 62A/08 6/56
State Vs. Suresh Chand Sharma CHARGE:
5. Initially vide order dated 22/05/2002, charges for offence punishable under Section 304(ii) IPC in case FIR No. 709/2000 and for offence under Section 27 Arms Act in case FIR No. 710/2000 were framed against the accused to which he pleaded not guilty and claimed trial. Later vide order dated 07/11/2006 of my Ld. Predecessor amended charge for offence under Sections 302 and 307 IPC was framed against the accused in case FIR No. 709/2000, P.S Mehrauli to which accused pleaded not guilty and claimed trial. EVIDENCE:
6. To connect the accused with the offences alleged, the prosecution has examined in all 17 witnesses. OFFICIAL WITNESSES:
6A(i). PW4 HC Attar Singh being duty officer at police station Mehrauli on 16/11/2000 has proved his scribed FIR no. 709/2000 as Ex PW4/A and FIR No. 710/2000 as Ex PW4/B. SC No. 62/08 & SC No. 62A/08 7/56 State Vs. Suresh Chand Sharma 6A(ii) PW5 Ct Giri Raj Singh, photographer, has proved the positives of the photographs as Ex PW5/7 to12. 6A(iii) PW6 HC Pradeep Singh was only partly examined in chief by prosecution on 19/07/2004 but later he has not been further examined. Incomplete testimony of PW6 cannot be read in evidence.
6A(iv) PW8 SI Kuwar Sahab of Crime Team has proved his report Ex PW8/A and had got the spot photographed but did not find chance finger prints at the spot.
6A(v) PW9 HC Hari Singh initially received the copy of DD No. 9 at PP IGNOU on 16/11/2000 and had reached the place of occurrence with Ct. Sudhir, then proceeded to Batra Hospital where he had found injured P.V.V.S Murthy admitted who was declared by the doctor unfit for statement. PW9 collected the MLC of injured, came to spot and handed over the MLC and application, wherein doctor had declared injured unfit for statement, to PW13 SI Satender Sangwan. Later, PW9 HC Hari Singh brought the rukka to police station for getting the FIR registered. The blood sample was lifted from the spot, motor cycle no. DL3SU8268 was seized by PW13, SC No. 62/08 & SC No. 62A/08 8/56 State Vs. Suresh Chand Sharma SI Satender Sangwan, sketch of country made pistol, Ex P1, Ex PW2/D was prepared. Ex P1 was found containing one empty cartridge inside it. Exts P1 and P2 were kept in a pullanda and sealed with the seal of SS and seized vide memo Ex PW2/B. A separate case was got registered in FIR No. 710/2000 for offence under Section 25 and 27 Arms Act, which case was marked to PW9 for investigation. PW9 stated that at hospital the doctor handed over two sealed parcels, one having clothes of injured and other having bullet lead pellets recovered from body of injured which were seized vide memos Ex PW9/A and Ex PW9/B. 6A(vi) PW11 SI J.S Joon had received the case file on 28/11/2000 for further investigation but since the investigation was already completed, he prepared the challan. On 29/03/2001, as the injured P.V.V.S Murthy had expired in the hospital, PW11 SI J.S Joon conduced the inquest proceedings and postmortem of the dead body was got conducted. The dead body was handed over to the relatives of deceased vide memo Ex PW11/A. Sealed parcel with a sample seal was handed over by the doctor to PW11 who seized the same vide memo Ex PW11/B. SC No. 62/08 & SC No. 62A/08 9/56 State Vs. Suresh Chand Sharma 6A(vii) PW13 SI Satender Sangwan is the investigating officer of the case FIR No. 709/2000.
6A(viii) PW14 HC Mahavir Singh deposed of having recorded the disclosure statement Ex PW14/C of accused on 21/11/2000. He also stated of the personal search of the accused conducted vide memo Ex PW14/A (in the Arms Act case) and arrest memo of accused prepared being Ex PW14/B. 6A(ix) PW15 SI Virender Jain deposed that on 06/07/2001 he arrested the accused for offence under Section 302 IPC and his personal search was conducted vide memo Ex PW15/A. Accused was produced before area MM and sent to judicial custody. On 29/06/2001, PW15 also called draughtsman, SI Madan Pal and got prepared the scaled site plan Ex PW15/B. PW15 deposed of having sent the case properties to FSL, having collected the FSL report, Ex PA, obtained sanction under Section 39 Arms Act, Ex PB, bearing signature of Addl. CP, Sh Alok Kumar. After completion of investigation, charged sheet was prepared and filed. MEDICAL EVIDENCE:
SC No. 62/08 & SC No. 62A/08 10/56
State Vs. Suresh Chand Sharma 6B(i) PW10 Dr T. Millo, Assistant Profesesor, Department of Forensic Medicine, deposed that he conducted the postmortem on the body of deceased P.V.S Murthy on 31/03/2001 and the following antemortem injuries were found:
1. Wound with pus exudate and sloughing, below amlicus of 20 cm length (below amlicus) in the mid line region and width of 8 cm.
2. Colostomy wound in right iliac foes, 2X2 cm size.
3. Wound with pus discharge in the left iliac foes 5X10 cm size, 4 cm from superilliac spine, 5 cm from mid line.
4. Bed sore wound in the sacral region with pus discharge On internal examination, there was yellowish coloured fluid in the pleural cavity and both lungs showed consolidation with pus and weight of right lung was 450 gms and left lung was 400 gms.
The abdominal cavity showed multiple stitches and adhesions with pus exudiates. There was repair of perforation in the urinary bladder.
PW10 has proved his postmortem report as Ex PW10/A and has stated cause of death to be septicemia consequent upon fire arm injury which is sufficient to cause death in ordinary course of nature.
SC No. 62/08 & SC No. 62A/08 11/56
State Vs. Suresh Chand Sharma 6B(ii) PW16 Dr. Avnish deposed that he identified the handwriting and signature of Dr Vijay Hangloo on the death summary Ex PW16/A of P.V.S Murthy, deceased.
6B(iii) PW17 Dr Vijay Hangloo deposed that on 16/11/2000 he was posted as Consultant Surgery in Batra Hospital, where that day patient E.V.V.S Murthy was admitted having bullet injuries and was under his treatment. Later, on 21/11/2000 IO moved an application Ex PW13/DA. After examining the patient, PW17 declared the said injured fit for statement after discussing with Dr. Manoj Goel. Later, said injured expired in the hospital on 29/03/2001. Copy of the death summary is Ex PW16/A. OCULAR EVIDENCE 6C(i) PW1 Natasha Kohli, employer of the accused; PW2 Dinesh, co employee of deceased and the accused; PW3 Sushil Kumar Soni, the electrician, co employee of accused and the deceased and PW7 R.K Dubey, exsecurity guard in Filo Company are the examined material and eye witnesses of the occurrence. Appreciation of their evidence will follow later in the course of the judgment. SC No. 62/08 & SC No. 62A/08 12/56
State Vs. Suresh Chand Sharma STATEMENT OF ACCUSED:
7. All the incriminating evidence was put to the accused in his statement recorded under Section 313 Cr.P.C for him to explain. The accused admitted of working as Machine Operator in Filo Pvt Ltd whose owner was PW1, Natasha Kohli. The accused denied of having gone to the office of PW1 on the day of occurrence at 12 noon with a gun. The accused denied of having aimed the gun at the head of PW1 Natasha Kohli or having kept Ex P1, country made pistol, in his possession or having caused any act of attempt to murder of PW1 Natasha Kohli or having caused murder of Murthy by firing the shot from Ex P1. The accused alleged false implication and innocence. Accused denied to enter upon his defence. ARGUMENTS:
8. I have heard the rival contentions of Ld. Addl. PP for the State assisted by Ld. Counsel for the victim, Ld. Defence Counsel and the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. SC No. 62/08 & SC No. 62A/08 13/56
State Vs. Suresh Chand Sharma 8(i) Ld. Defence Counsel for the accused argued that accused had left the job of machine operator from the employment of PW1 Natasha Kohli as he was treated as bonded labourer, has been got falsely implicated by his previous employer, PW1 Natasha Kohli, herself and through other employees, while accused deserves acquittal as the testimonies of PWs 1,2,3 and 7 suffer from severe infirmities; PW2, the first informant, did not mention in his lodged report Ex PW2/A of the accused having pointed katta towards PW1 Natasha Kohli; PW2 did not remember whether the police lifted the blood sample from the spot; though the witnesses state of presence of Mujjafar Ali, Prachi Bhargava, Umesh, Saklin, Raman and one Mr. Rawat having witnessed the occurrence but none amongst them have been either cited as prosecution witnesses nor examined in court; PW2 saying that the alleged weapon of offence i.e katta, was not lifted in his presence from the spot; PW1 saying accused had taken out katta from inside shirt in her statement to police under Section 161 Cr.P.C but in court deposed that accused took out katta from pocket of kurta; PW3 saying accused going with katta in hand; PW1 saying Murthy (now deceased) pulled the accused from office of PW1 SC No. 62/08 & SC No. 62A/08 14/56 State Vs. Suresh Chand Sharma which was locked from outside but later on, on further cross examination, she stated that the office of PW1 was locked from inside; statement of PW1 was recorded belatedly in the course of investigation, while she was confronted with previous statement in court on various counts and being a shooting expert, had got the ex employee, the accused falsely implicated by concocting the occurrence, though accused never visited the office of PW1, Natasha Kohli, on the alleged day of occurrence nor had committed any alleged offence; mandate of law for search of premises of accused for recovery of alleged blood stained clothes of accused was not followed; PW3 Sushil Kumar was the introduced witness; the alleged weapon of offence i.e pistol, Ex P1, was not sent to FSL for finger prints matching nor chance finger prints were lifted from the weapon of offence; even later, FIR No. 138/01, P.S Mehrauli, under Section 506 IPC was lodged by PW1 against accused, though at that time accused was in jail in the present case; statements of injured Murthy , Ex PW9/X and Ex PW13/X cannot be teated as the dying declarations; for the alleged offence of Section 307 IPC, said Ms. Prachi Bhargava and Mujjafar Ali, the other employees of PW1, could SC No. 62/08 & SC No. 62A/08 15/56 State Vs. Suresh Chand Sharma have been cited as the eye witnesses but have not been cited or examined in the present case. Ld. Counsel for accused relied upon the following judgments:
1. State of Kerala vs. Anilchandran @ Madhu & Ors., AIR 2009 SC 1866,
2. Ramesh Vithalrao Thakre & Another vs. State of Maharashtra, 1995 CRI.L.J 2907,
3. Sukhar vs. State of Uttar Pradesh, AIR 1999 SC 3883,
4. Bimla Devi vs. State of Haryana, AIR 2003 SC 4138,
5. Sanwat Ram vs. State of Rajasthan, 2006(1) CJ (Raj.) Cr. 266,
6. Mujeeb & Anr. vs. State of Kerala, AIR 2000 SC 591,
7. State of Madhya Pradesh vs Kriparam, 200304 Cr.L.R (SC) (Suppl.) 290,
8. Khima Vikamshi & Ors. vs. State of Gujarat, AIR 2003 SC 1326,
9. Sayeed Moeen vs. State of Rajasthan, 2006(2) Cr.L.R (Raj.)1615,
10.Ajay Singh vs. State of Maharashtra, AIR 2007 SC 2188,
11. Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra, SC No. 62/08 & SC No. 62A/08 16/56 State Vs. Suresh Chand Sharma AIR 2008 SC 1184,
12. Mani vs. State of Tamil Nadu, AIR 2008 SC 1021,
13.Shantabai & Ors. vs. State of Maharashtra, AIR 2008 SC 1571.
8(ii) Ld. Addl. PP argued that the dying declaration of deceased does not come in the ambit of Section 162 Cr.P.C, which when signed by deceased, Murthy, gave more weightage, as per law laid in the case of Vidhya Devi v. State of Haryana, AIR 2004 SUPREME COURT 1757; when there is direct evidence on record of firing of the cartridge by the accused on the person of injured/deceased, then any discrepancy regarding the distance between the assailant and the victim in the testimonies would be insignificant; the eye witnesses of the occurrence viz. PWs 1,2,3 and 7 having all stood their ground and have supported the case of prosecution; non examination of some other employees of PW1, Natasha Kohli, as prosecution witnesses, cannot be termed fatal to the case of prosecution as it is the quality of the evidence and not quantity of the evidence which matters because prosecution is not duty bound to examine all such witnesses; only when the case is SC No. 62/08 & SC No. 62A/08 17/56 State Vs. Suresh Chand Sharma based on circumstantial evidence, the motive becomes relevant and there is no need for prosecution to prove the motive in case of ocular version of occurrence on record; on account of some dispute with regard to payment of salary, as stated by accused in his statement under Section 313 Cr.P.C, the accused had committed the crime; the forensic reports corroborate the version of the prosecution as on examination the expert opined that empty cartridge, Ex P2, was fired from same pistol, Ex P1 and the holes on the clothes of deceased when compared with the 23 pellets by the expert, it was found that such pellets were fired from the cartridge, Ex P2, of pistol, Ex P1, while the cartridge had struck in the pistol; the forensic report also having the opinion with regard to the Blood of Group B being on the clothes of deceased; on the blood sample lifted from the spot, blood in gauze of deceased; the motor cycle on which the accused came to spot was seized from the place of occurrence on which even the accused had tried to flee from spot after the commission of crime but had left it on the place of occurrence; five day's later to the occurrence, the then injured and now deceased, Murthy gave statement Ex PW13/X to PW13, recorded by him after he was declared by PW17 Dr Vijay SC No. 62/08 & SC No. 62A/08 18/56 State Vs. Suresh Chand Sharma Hangloo and other Dr. Manoj Goel as to being fit for statement; later again on 07/12/2000, the then injured and now deceased, Murthy giving statement Ex PW9/X to PW9 HC Hari Singh which was recorded under Section 161 Cr.P.C; which two statements of the deceased were his dying declarations under Section 32 of Evidence Act and it is the law that such statement is not to be given under expectation of death; the attending circumstances when considered in totality of the material placed on record with evidence led point towards the crime of murder of Murthy and attempt to murder of Natasha Kohli, committed by accused by the use of fire arm, country made pistol, Ex P1, having cartridge, Ex P2, without licence. APPRECIATION OF EVIDENCE:
9(i). PW1 testified that she was owner of company Filo Pvt Ltd where accused Suresh Chand was working as machine operator. On the day of incident at about 12 noon, while PW1 Natasha Kohli was present in her factory, accused walked in her office having a country made pistol, which he took out from pocket of his kurta and aimed the country made pistol, Ex P1, at the head of PW1 Natasha SC No. 62/08 & SC No. 62A/08 19/56 State Vs. Suresh Chand Sharma Kohli which was one inch away from the head of PW1. PW1 stated that the accused pulled the trigger of Ex P1 but it did not go off. PW1 stated that she went under the table and had also screamed. On hearing the scream of PW1, Mr Murthy (now deceased) who was on reception, just outside the table, came in the office. PW1 stated that Mr. Murthy caught the accused from the back, pulled him outside the office. Initially PW1 stated that when the accused was pulled outside from the office by Murthy, her office was locked from outside. In the course of her cross examination, PW1 later elicited that she had locked her office from inside and perhaps it was some clerical/typographical mistake, as it was so deposed by her before my Ld. Predecessor.
9(ii) PW2 Dinesh deposed that while working in Filo Co., on 16/11/2000, he was present in the kitchen and preparing the tea when he heard the noise of crying, he came out from the kitchen to see what was happening. PW2, Dinesh, deposed that he saw Murthy, other employee of the company, was pulling out accused Suresh Chand Sharma from the office room of PW1. PW2 stated that he also helped Murthy in bringing out accused from said room. PW2 SC No. 62/08 & SC No. 62A/08 20/56 State Vs. Suresh Chand Sharma deposed that he tried to snatch katta, country made pistol, Ex P1, from the hands of accused but he fired; the bullet hit Murthy at his stomach due to which he fell down.
9(iii) PW3, Sushil Kumar, electrician of the Filo Co., deposed that on 16/11/2000 at 12 noon he was working in the basement when he heard the noise coming from ground floor. PW3 came towards ground floor from the basement and saw accused was caught hold from behind by Murthy. PW3 stated that accused was having a desi katta in his right hand. PW3 further stated that grip of Murthy was loosened and in the meantime a shot was fired by the accused from the desi katta. As a result, Murthi fell down on the ground. Both PWs 2 and 3 deposed that the accused had thrown the desi katta, Ex P1, at the place of occurrence i.e on the ground and fled away from the spot. PW3 stated that the fired shot from desi katta had hit Murthy in his stomach. PW2 stated that the accused had come on motor cycle and had left the motor cycle outside the company which was seized vide memo Ex PW2/C. The country made pistol, Ex P1, was seized vide memo Ex Ex PW2/B. Statement Ex PW2/A of PW2 Dinesh was recorded. The motor cycle no. DL3SU8268 was seized vide SC No. 62/08 & SC No. 62A/08 21/56 State Vs. Suresh Chand Sharma memo Ex PW2/C. Sketch of country made pistol, Ex PW2/D, was prepared. PWs 1 and 2 have identified Ex P1, country made pistol, to be the one to have been used by the accused. PW2 had identified the cartridge, Ex P2, also.
9(iv) PW7 Sh R.K Dubey, the then Security Guard, deposed that at 12 noon on 16/11/2000 he was standing outside near the gate and saw PW2, Dinesh and Murthy were bringing out Suresh Chand, accused, by pinioning him. PW7 stated that he heard noise of shot fired, upon hearing which he rushed towards the accused, tried to apprehend him but the accused fled away, throwing revolver on the ground as he was trying to flee away on motor cycle. PW7 stated that accused fired a shot on Murthy and Murthy had fallen down on the ground.
9(v) PW2 stated that he informed the police, while he alongwith Sushil, electrician, took Murthy to hospital.
10. In 2008 CRI. L.J. 3061, "Dalbir Singh v. State of Haryana, Hon'ble SUPREME COURT held that "Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is SC No. 62/08 & SC No. 62A/08 22/56 State Vs. Suresh Chand Sharma found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar.
The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called " a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of SC No. 62/08 & SC No. 62A/08 23/56 State Vs. Suresh Chand Sharma Punjab, AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for place reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictim is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab v/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of SC No. 62/08 & SC No. 62A/08 24/56 State Vs. Suresh Chand Sharma observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Court have to label the category to which a discrepancy may be cateogrised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
11. The elicited discrepancies/contradictions emanating from testimony of PW1 from her previous statement under Section 161 Cr.P.C, Ex PW1/DA viz. taking out the gun from kurta, aiming at head of PW1, it being one inch away, but the gun did not go off, Prachi Bhargava, Production Manager, taking dictation across the table, PW1 going under the table, Murthy (now deceased) having caught hold the accused from back, initial saying of locking the office from outside being the version in court, while such version being not there in the previous statement Ex PW2/DA could be attributed to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. Much importance cannot be attributed to such discrepancies. SC No. 62/08 & SC No. 62A/08 25/56
12. Similarly, narration of PW2 of preparing tea in the kitchen, coming out of the kitchen helping Murthy in bringing out the accused, being so said by PW2 in his deposition, while in Ex PW2/A, PW2 had merely stated that he was inside the company. Inability of PW2 to tell that in how much time injured was removed to hospital, about the discrepancy of persons who removed the injured to the hospital; saying PW1 being alone in her room; also saying that only PW2, Murthy and accused were there at the time of occurrence, would not in any way make PW2 a dishonest and untruthful witness. Normal discrepancies are bound to occur in the testimony of a normal person and can be attributed to the fact that the mental faculties of such witness cannot be attuned to observe the details like videographic version and replay them in the course of testimony as such.
13. Infact, the aforesaid eye witnesses of the occurrence corroborate the version of each other in material particulars and no crack in the substratum of the evidence of the vital witnesses can be noticed.
SC No. 62/08 & SC No. 62A/08 26/56
14. PW1 was categorical, saying, in her office the accused pointed the country made pistol, Ex P1, having cartridge, Ex P2, one inch away from her head, pulled the trigger. It was the fortune of PW1 that the gun did not go off and it was her destiny that she was alive.
15. Murthy with the aid of PW2 had pulled the accused from inside of the office to the outside of the premises. PW2 and Murthy even while holding the accused had tried to take out the country made pistol, Ex P1 from the hand of accused. Instead, the accused had fired from country made pistol, Ex P1. Cartridge, Ex P2 got struck in the country made pistol, Ex P1, but from near to the stomach part of Murthy the pellets entered in the body of Murthy. To that, PW2 and PW3 described of the bullet/shot having hit Murthy on his stomach. PW2, the employee who used to prepare tea, doing other similar type of job and PW3, the electrician, cannot be said to be the persons conversant with the fire arms or ammunition. But having seen the occurrence, they described it as elicited herein above. SC No. 62/08 & SC No. 62A/08 27/56
State Vs. Suresh Chand Sharma Undue importance cannot be attached to their having stated bullet/shot having hit Murthy, instead of pellets of cartridge.
16. Murthy, the then injured and now deceased was removed to Batra Hospital. Death Summary Ex PW16/A scribed by PW17 Dr Vijay Hangloo has a vivid description. It finds mention that Mr. P.V.S Murthy was admitted on 16/11/2000 at 1 pm with alleged history of gun shot injury in the abdomen; he was admitted in a state of shock; he had hemoperitoneum, small intestine were enscrerated out on the abdomen through a wound in the abdominal wall; the intenstine was perforated at many places and fecal matter was soiling his abdomen; the wound of entry was just below umbilicus and the abdominal wall around the wound was sloughed; patient was resuscitated and given blood transfusion for low hb; he was also explored that day; patient had hemoperitoneum; bleeding was coming from the pelvis and right internal iliac artery was bleeding; it was ligated; patient had multiple pellets in the abdomen and pelvis ; some of which were retrieved; a segment of intestine around half to two feet was dentalised due to multiple perforations in it and its SC No. 62/08 & SC No. 62A/08 28/56 State Vs. Suresh Chand Sharma mesentry. The entire treatment has been made vivid in Ex PW16/A. Also, it finds mention that all attempts to revive him failed despite aggressive/treatment and Murthy was declared dead at 8 pm on 29/03/2001.
17. PW10 Dr T. Millo opined that the cause of death of deceased Murthy was septicemia consequent upon fire arm injury which was sufficient to cause death in ordinary course of nature.
18. In the course of testimony of PW9, he tendered and proved the FSL report Ex PX. In terms thereof, the country made pistol 12 bore marked therein as exhibit F1, which is exhibited as Ex P1 in court was opined as fire arm and designed to fire standard 12 bore cartridge, was in working order and from it test fire was conducted successfully. 12 bore cartridge case marked exhibit EC1 in Ex PX when produced in court was exhibited as Ex P2. As per Ex PX, after examining P2 with test fired cartridge TC1, the expert was of the opinion that Ex P2 had been fired through Ex P1; the firing pin marks present on Ex P2 and TC1 were found identical. SC No. 62/08 & SC No. 62A/08 29/56
19. PW15 in the course of testimony had tendered and proved the CFSL report Ex PA in four pages. The result of the examination in CFSL inter alia was that the hole observed on pant and corresponding hole on shirt and Vshaped underwear of deceased, could have been caused due to passage of pellets of size no. 1 of 12 bore cartridge, fired from 12 bore , fire arm from close range.
20. Also, as per Ex PA, the blood was detected on Exhibit 1, the blood sample lifted from the spot; Exhibit 2, earth control; Exhibits 3a to 3d, shirt, pant, underwear, pair of leather shoes, all of deceased; Exhibit 4, blood in gauze of deceased and Exhibit 7, twenty three pieces of metallic pellets alongwith plastic wad. Also, is mentioned in Ex PA that the group of blood ascertained on Exhibits 1, 3a, 3b, 3c, 4 was of group B. Accordingly, the blood of deceased was of group B and blood of same group was detected on the blood sample lifted from the spot, from the aforesaid clothes of deceased. SC No. 62/08 & SC No. 62A/08 30/56
21. No chance prints were lifted from the country made pistol, Ex P1. It was despite the fact that PW8 SI Kuwar Sahab of Crime Team had visited the spot and PW13 SI Satender Sangwan with others were there for investigation work including that of seizure of the weapon of offence viz. Ex P1.
22. In case of Dhanaj Singh v. State of Punjab, AIR 2004 SUPREME COURT 1920, it was held that "In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518) AIR 1995 SC 2472."
"In Paras Yadav and others v. State of Bihar (1999 (2) SCC 126; AIR 1999 SC 644) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
SC No. 62/08 & SC No. 62A/08 31/56
State Vs. Suresh Chand Sharma It was observed in Ram Bihari Yadav v. State of Bihar and others (1998 (4) SCC 517; AIR 1998 SC 1850) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh and others (2003 (2) SCC 518; AIR 2003 SC 1164"). When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission or negligence on part of the IO cannot affect credibility of the prosecution version.
23. The stand of the accused relates essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of nonexamination of weapon of assault or the pellets etc. in the background of defective investigation have been considered in Amar Singh's case (supra). In the case at hand, no crack in the substratum of evidence of the vital witnesses can be noticed.
24. PW17 Dr. Vijay Hangloo deposed that on 21/11/2000 investigating officer had moved an application Ex PW13/DA SC No. 62/08 & SC No. 62A/08 32/56 State Vs. Suresh Chand Sharma regarding fitness of injured. PW17 further stated that he had discussed with Dr. Manoj Goel and when they both were satisfied, they had declared the patient E.V.V.S Murthy fit for statement. It was subsequent thereto that statement Ex PW13/X of the then injured and now deceased was recorded. In his statement Ex PW13/X, the injured P.V.V.S Murthy alleged that on 16/11/2000 at about 10.50 am accused Suresh Chand came and went inside the office of the factory owner and aimed the pistol towards the madam (owner). Also, is mentioned that at that time Murthy was inside and he had apprehended the accused, pulled him out and they 3 /4 persons had taken the accused to road outside and he had apprehended the accused, then suddenly accused Suresh Chand pressed the trigger of his pistol and he received injury on the right side of his stomach. As per Ex PW13/X, the accused, whom deceased was knowing being employee of the factory, absconded from that place. On Ex PW13/X the purported signature of said injured and now deceased Murthy are in English with the date 21/11/2000 and below the signatures in English the name mentioned is P.V.V.S Murthy while Ex PW13/X is recorded in Hindi. Similar SC No. 62/08 & SC No. 62A/08 33/56 State Vs. Suresh Chand Sharma version is contained in the statement under Section 161 Cr.P.C, Ex PW9/X of P.V.S Murthy recorded by PW9 on 07/12/2000, excepting of the fact that the time of occurrence mentioned there is in between 10.50 to 12 on 16/11/2000.
25. In case of Dharam Pal v. State of U. P, 2008 CRI. L. J. 1016, it was held that "The report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under S. 32 of the Evidence Act as a dying declaration. The said report has rightly been admitted as a dying declaration. There appears no reason for the police to falsely implicate any one of the accused."
26. In case of P. V. Radhakrishna v. State of Karnataka, AIR 2003 SUPREME COURT 2859, it was held that when there is no material to show that dying declaration was result of product of imagination, tutoring or prompting, it appeared trustworthy and had credibility, though recorded by a police officer. SC No. 62/08 & SC No. 62A/08 34/56
27. In case of Vidhya Devi v. State of Haryana,AIR 2004 SUPREME COURT 1757, it was held that "when the doctor opined that the deceased was in a fit state of mind to make the statement and the statement of the deceased, recorded by a police officer, was signed by the deceased in token of its correctness,it adds credibility to the same and consequently involvement of the accused and the respective role played by them in having the deceased killed, remains firmly established by concrete and sufficient material."
28. In Ex PW13/X the name of the accused and the important features of the case have been mentioned. The version given in the report Ex PW13/X finds complete corroboration from the testimony of eye witnesses and medical evidence on record. PW17, Dr Vijay Hangloo, stated on oath that Murthy, the then injured and now deceased, was fit for statement. Only upon such declaration PW13 had recorded the statement of Murthy, Ex PW13/X. The evidence on record does not show that the deceased was not in a position to speak at the time when he had narrated the statement of the occurrence.
29. In case of Varikuppal Srinivas v. State of A.P, AIR SC No. 62/08 & SC No. 62A/08 35/56 State Vs. Suresh Chand Sharma 2009 SUPREME COURT 1487, it was held that "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817).
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)].AIR 1976 SC 2199
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. SC No. 62/08 & SC No. 62A/08 36/56
State Vs. Suresh Chand Sharma State of Bihar (AIR 1983 SC 164)].
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)].
(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC
264)].AIR 1974 SC 332
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P. (AIR 1982 SC 1021)].
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)].
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)].
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505)].
SC No. 62/08 & SC No. 62A/08 37/56
(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].
(xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors. v. State of Haryana (2007 (9) SCC 151)]."
30. The statement dictated by the deceased, Ex PW13/X dated 21/11/2000 fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, I may refer to some of the general propositions relating to a dying declaration. Section 32(1) of the Indian Evidence Act deals with dying declaration and lays down that when a statement is made by a person as to the SC No. 62/08 & SC No. 62A/08 38/56 State Vs. Suresh Chand Sharma cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question. The principle on which a dying declaration is admissible in evidence is indicated in the Maxim Nemo Moriturus Praesumitur Mentire, which means that a man will not meet his maker with a lie in his mouth. Thus it is clear that a dying declaration may be relating to :
a) as to the cause of death of the deceased,
b) as to "any of the circumstances of the transaction" which resulted in the death of the deceased.
It is also clear that it is not necessary that the declarant should be under expectation of death at the time of making the statement. If we look at the report dictated by the deceased in the light of the aforesaid propositions, it emerges that the name of the accused and the important features of the case have been clearly mentioned in the SC No. 62/08 & SC No. 62A/08 39/56 State Vs. Suresh Chand Sharma report. It contains a narrative by the deceased as to the cause of his death, which finds complete corroboration from the testimony of eye witnesses and the medical evidence on record. There is nothing on record to show that the deceased was not in a position to speak at the time when he dictated the report of occurrence. On the other hand, the materials and the other evidence on record would conclusively show, that the deceased was in a position to speak when he dictated the report of occurrence. Therefore, in my view, the deceased was in a fit state of mind at the time of making the statement. In the present case, as noted herein above, the dying declaration was fully corroborated by the other evidence on record.
31. PW13 deposed that after the arrest of accused on 21/11/2000, in the course of police remand, later, he led the police party to J.J Colony, B231, Khan Pur, Delhi, the place of his residence, from where he got recovered one pant and one shirt which after sealing them in a pullanda with the seal of SS were seized vide memo Ex PW6/C. In Ex PW6/C it finds mention that blood was on the clothes, since they were worn by the accused at the time of SC No. 62/08 & SC No. 62A/08 40/56 State Vs. Suresh Chand Sharma occurrence, while before the seizure, the clothes were washed. No blood could be detected by the forensic expert on the clothes of the accused.
32. The precedents relied by the Ld. Defence Counsel embodied facts and circumstances entirely different and distinguishable to the facts and circumstances of the present case. The cases of (1) Mujeeb & Anr. (supra); (2) Sayeed Moeen (supra); (3) Sattatiya @ Satish Rajanna Kartalla (supra); (4) Mani (supra) and (5) Shantabai & Ors. (supra), were all based on circumstantial evidence and the recovery of vehicle/clothes or weapon of offences were not supported by the version of prosecution and were effected under suspicious circumstances. In the case of Anilchandran @ Madhu (supra), it was held that the case of prosecution has to stand on its own legs. In the case of Sukhar (supra), the prosecution had not established therein how the deceased had died or his death was in any way connected with the injury sustained by him on relevant date of occurrence. In the case of Bimla Devi (supra), there were no blood stains on Bankri, which weapon of offence had pierced inside SC No. 62/08 & SC No. 62A/08 41/56 State Vs. Suresh Chand Sharma the body of the victim. In the case at hand, cartridge, Ex P2, got struck in country made pistol, Ex P1, but from it pellets came out and had pierced the abdomen part of the deceased. There being no blood stains detected on the country made pistol, Ex P1, in the present set of fact would not make the prosecution version improbable at the outset. In the case of Sanwat Ram (supra), it was held that the admission before the police officer is not admissible. In the case of Kriparam (supra), the recovery of blood stained clothes and axe had not supported the prosecution version, while also there were much contradictions with regard to the direction and the place the witnesses ran away creating suspicion as to their presence. In the case of Khima Vikamshi (supra), the absence of blood stains at the place of occurrence and on clothes of PW4 and PW5 therein who took the deceased to hospital created doubt over the version of the prosecution. In the case at hand on the blood sample lifted from spot, Blood of Group B which was the group of blood of deceased, was detected. In the case of Ajay Singh (supra), the officer giving FSL report was not examined. In the case at hand, FSL reports Exts PX and PA respectively were tendered by PW9 and PW15 SC No. 62/08 & SC No. 62A/08 42/56 State Vs. Suresh Chand Sharma respectively in the course of their testimonies and these reports were per se admissible in evidence and in the course of evidence of either PW9 or PW15, no objection at all was raised by the defence counsel regarding their exhibition nor even the accused through counsel had asked for calling upon forensic expert for cross examination, even during the course of trial. In the case of Ramesh Vithalrao Thakre (supra), wherein the deceased got a single blow by knife in abdomen by accused while intervening to save her brother being attacked by accused, it was held that accused can be clothed with knowledge and not intention that injury was likely to cause death and offence would fall under Section 304 II IPC and not Section 300 IPC.
33. In case of Gyasuddin Khan v. State of Bihar,AIR 2004 SUPREME COURT 210, it was held that "Evidence of eyewitnesses who were all present at the camp at crucial time was quite consistent and reliable; factors like discrepancies in regard to position from which accused aimed his firearm at victims; no one else was injured, though accused resorted to indiscriminate firing and that no witness from village in vicinity was examined by prosecution would not make a dent on overwhelming prosecution evidence. So also lapses in investigation were SC No. 62/08 & SC No. 62A/08 43/56 State Vs. Suresh Chand Sharma not sufficient to affect veracity of most natural eye witnesses"
"When the accused is causing death by firing gun shots, it is not reasonable to expect that the scared eyewitnesses would be able to give a meticulous and precise account of details of shots that landed on deceased."
34. In case of Janak Singh v. State of U.P, AIR 2004 SUPREME COURT 2495 , it was held that "Where direct evidence of the eyewitness is that the accused committed the murder by firing a gun, some inconsistency relating to distance based on medical opinion offered would be of no significance whatsoever. See Karnail Singh and others v. The State of Punjab, AIR 1971 SC 2119. The view in Karnail Singh's case (supra) was also reiterated in State of Uttar Pradesh v. Sughar Singh and others, AIR 1978 SC 191."
35. Accordingly considering the evidence of eye witnesses PWs 1,2,3 and 7 on record, when accused used country made pistol, Ex P1, to attempt to murder PW1 and to fire shot on stomach of Murthy, it would not be reasonable to expect that the said eye witnesses would be able to give a meticulous and precise account of exact sequence of occurrence. Minor variations in testimonies of eye witnesses would not make a dent on overwhelming prosecution evidence. The grounds for acquittal of accused furnished by the SC No. 62/08 & SC No. 62A/08 44/56 State Vs. Suresh Chand Sharma defence do not hold water. Nonciting and non examination of other employees of PW1 alleged to be present at scene of crime cannot be termed fatal to the case of prosecution.
36. In the case of Settu v. State of Tamil Nadu, AIR 2006 SUPREME COURT 2986, it was held that ''the test laid down in Virsa Singh v. State of Punjab, AIR 1958 SC 465 for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300, IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present the injury that was intended to be inflicted.
Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
SC No. 62/08 & SC No. 62A/08 45/56
State Vs. Suresh Chand Sharma Clause (c) of Section299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.''
37. The factual scenario is examined in the background of the legal principles set out above. The conclusion is that the accused used country made pistol, Ex P1, a fire arm, as defined in Arms Act, 1959, as per FSL report Ex PX. The said country made pistol Ex P1 was aimed by the accused at the head of PW1, one inch away from her head, in her office and trigger was pressed but it did not go off. At SC No. 62/08 & SC No. 62A/08 46/56 State Vs. Suresh Chand Sharma that time country made pistol, Ex P1, was containing cartridge, Ex P2. It was absolute sheer luck of PW1 to survive. Later, when the accused had been taken outside by Murthy, now deceased, accused fired from country made pistol, Ex P1, while the cartridge, Ex P2, got struck in Ex P1 but the pellets of the cartridge entered the body of Murthy from close range. The accused also threw country made pistol, Ex P1, on the ground and was successful in running away from the scene of crime. The weapon, the country made pistol, Ex P1 was used by the accused, while it was containing the cartridge, Ex P2, which the accused had so used without any licence. The injuries were inflicted in the abdomen part of Murthy, intestine became perforated, pellets got embedded in the abdomen and pelvis of the deceased. The medical opinion is on record that the fire arm injury resulting in septicemia caused death of Murthy, the deceased and such fire arm injury was sufficient to cause death in ordinary course of nature. Intention of the accused to commit culpable homicide amounting to murder of PW1 Natasha Kohli is proved on record from the act of accused by pointing country made pistol, Ex P1, containing P2, cartridge, at her head from close range and pressing the trigger. The SC No. 62/08 & SC No. 62A/08 47/56 State Vs. Suresh Chand Sharma elicited facts and circumstances of the case proved beyond reasonable doubt that the accused Suresh Chand Sharma was having intention to inflict the bodily injury on abdomen part of Murthy, by fire arm, Ex P1, unlicenced, which in ordinary course of nature, was sufficient to cause death and the elicited injuries found to be present on such body part of Murthy, the deceased, were those that were intended to be inflicted. It also stands proved on record that the accused Suresh Chand Sharma had committed culpable homicide which amounted to murder of Murthy. By the use of country made pistol, Ex P1, containing, cartridge, Ex P2; the fire arm and ammunition, defined in Arms Act, 1959, without any licence for which sanction/consent under Section 39 Arms Act, Ex PB, is on record, it is also proved by the prosecution that the accused used such fire arm and ammunition in commission of offences of attempt to murder Natasha Kohli and murder of Murthy. The prosecution has been successful in proving its case against the accused Suresh Chand Sharma for offences punishable under Sections 302 IPC, 307 IPC and Section 27 Arms Act, 1959, for which the accused is held guilty and convicted accordingly. Copy of this judgment be also placed in the matter of SC No. 62/08 & SC No. 62A/08 48/56 State Vs. Suresh Chand Sharma case FIR no. 710/2000.
Announced in the open court (GURVINDER PAL SINGH) on dated 14.12.2010 ASJ (FTC)/SD/ NEW DELHI.
SC No. 62/08 & SC No. 62A/08 49/56
State Vs. Suresh Chand Sharma IN THE COURT OF SHRI GURVINDER PAL SINGH ADDL. SESSIONS JUDGE (FTC), SOUTH DISTRICT SAKET COURTS, NEW DELHI Session Cases Nos. 62/08 & 62A/08 State Vs. : Suresh Chand Sharma S/o Sh Prabhu Dayal R/o Village Dhobi Dhuli, P.S Jatiyana District Alwar (Rajasthan) Local address:
B231, JJ Colony, Khanpur, New Delhi FIR No. 709/2000 & 710/2000 P.S. Mehrauli U/s 307 IPC; 302 IPC & 27 Arms Act ORDER ON SENTENCE:
The accused Suresh Chand Sharma had been brought to trial by the prosecution in the instant cases on the allegations that on 16/11/2000 at about 12 noon at D12, FF Colony, Neb Sarai, New SC No. 62/08 & SC No. 62A/08 50/56 State Vs. Suresh Chand Sharma Delhi in the office of Natasha Kohli he attempted to murder Natasha Kohli; secondly, on the said date, time and in front of D12, F F Colony, Neb Sarai he committed murder of Murthy by firing at him from unlicensed country made pistol containing cartridge, which arm and ammunition were recovered from the spot as said arm was thrown at spot by the accused after it was used for unlawful purposes.
2. On the above said allegations of the prosecution, initially vide order dated 22/05/2002, charges for offence punishable under Section 304(ii) IPC in case FIR No. 709/2000 and for offence under Section 27 Arms Act in case FIR No. 710/2000 were framed against the accused to which he pleaded not guilty and claimed trial. Later vide order dated 07/11/2006 of my Ld. Predecessor amended charge for offence under Sections 302 and 307 IPC was framed against the accused in case FIR No. 709/2000, P.S Mehrauli to which accused pleaded not guilty and claimed trial.
3. Vide my separate detailed judgment dated 14.12.2010, the convict has been found guilty and convicted of the offences SC No. 62/08 & SC No. 62A/08 51/56 State Vs. Suresh Chand Sharma punishable under Sections 307 IPC, 302 IPC and 27 Arms Act, of which he stood charged in this court in the instant cases.
4. I have heard the arguments of Ld. Addl. PP for the State, Ld. Counsel for convict as well as the convict himself on the point of sentence.
5. Convict has submitted that he is of age 37 years, by profession a carpenter. Convict also stated that he was married, having wife and three children to support including son of 18 years of age, two daughters of 13 years and 9 years of age respectively and prays for lenient view. The Ld. Counsel for the convict submits that the convict is not a previous convict and has already suffered detention for considerable period and the case does not come under rarest of rare cases. Lenient view is prayed for the convict.
6. Ld. Addl. PP conceded that the present case does not come under rarest of rare cases. The convict entered the office of his employer, PW1 Natasha Kohli and very near to her head placed his SC No. 62/08 & SC No. 62A/08 52/56 State Vs. Suresh Chand Sharma unlicensed country made pistol containing cartridge and pressed its trigger. It was the fortune of PW1 that the pistol did not go off and she was lucky to survive. When the convict was removed by his co employee, Murthy, to outside the premises of office, the convict fired from the country made pistol in the abdomen part of Murthy, now deceased. The cartridge got stuck in the pistol but the pellets of cartridge entered the body of Murthy from close range. The unlicensed used country made pistol, Ex P1, was thrown on the ground by the convict and he absconded from the scene of crime.
Even aggressive treatment of Murthy did not result in his survival and he succumbed to the fire arm injuries which had even caused septicemia.
7. Intention of the convict was to commit culpable homicide amounting to murder of PW1, Natasha Kohli, by use of unlicensed country made pistol. Upon being removed from office of PW1 by Murthy the convict intentionally inflicted bodily injury on abdomen part of Murthy, now deceased, by use of unlicensed fire arm Ex P1. Those were the injuries intended to be inflicted on such body SC No. 62/08 & SC No. 62A/08 53/56 State Vs. Suresh Chand Sharma part of Murthy and were sufficient to cause death in ordinary course of nature.
8. Life imprisonment is the rule and death sentence is an exception. Upon taking an overall global view of all the circumstances in the light of the pronouncements of Bachan Singh v. State of Punjab [1980(2) SCC 684] ; Machhi Singh v. State of Punjab, 1984(2) RCR (Criminal) 412 reiterated in Devender Pal Singh v. State of NCT of Delhi, 2002(2) RCR(Criminal) 515 ; Ankush Maruti Shinde and others Vs State of Maharashtra, 2009(2) R.C.R.(Criminal) 868 (SC) and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case at hand are such that death sentence is not warranted, since the present case does not fall in the rarest of rare cases. The murder was neither extremely brutal, grotesque, diabolical, revolting, nor in dastardly manner so as to arouse intense and extreme indignation of the community.
9. In these circumstances and having regard to the facts SC No. 62/08 & SC No. 62A/08 54/56 State Vs. Suresh Chand Sharma and circumstances of the present case, I hereby sentence the convict Suresh Chand Sharma as follows:
(i) to undergo imprisonment for life and to pay a fine of Rs.3,000 / in default Simple Imprisonment for six months under section 302 IPC.
(ii) to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs. 3,000/ in default Simple Imprisonment for six months under section 307 IPC.
(iii) to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.3,000/ in default Simple Imprisonment for six months under section 27 Arms Act, 1959.
The sentences of Rigorous Imprisonment shall run concurrently and the sentences of Simple Imprisonment in case of default of fine shall run consecutively.
10. Convict was arrested on 21/11/2000, produced in court on 22/11/2000, sent to judicial custody that day. In case FIR No. 709/2000, convict was enlarged on bail on 28/02/2001. In case FIR No. 710/2000, convict was enlarged on bail on 26/02/2001. Again in case FIR No. 709/2000, convict was rearrested on 06/07/2001 and SC No. 62/08 & SC No. 62A/08 55/56 State Vs. Suresh Chand Sharma sent to judicial custody, that day, since when he is in judicial custody in this case. Benefit u/s 428 Cr.P.C. be also given to the convict.
11. Committal warrant be prepared. Copy of the judgment and order on sentence be supplied to convict free of cost immediately.
Fine not deposited.
File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH) on dated 15.12.2010 ASJ (FTC)/SD/ NEW DELHI.
SC No. 62/08 & SC No. 62A/08 56/56