Delhi District Court
State vs Shibu Semol on 19 July, 2010
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - III (EAST)
KARKARDOOMA COURTS : DELHI
SC No. 53/2009
Unique Case ID No. 02402R0017222006
FIR No. 543/2005
PS Kalyanpuri
Under Section 307/452/506 IPC
State Versus Shibu Semol
Shibu Semol S/o Denial Semol
R/o F-76, East Vinod Nagar Delhi
Date of Institution of Case : 12.9.2006
Date on which judgment Reserved : 08.7.2010
Date on which judgment delivered : 15.7.2010
JUDGMENT :
The facts of the prosecution case in brief are that on 18.10.2005 at about 11.45 AM at House No. F-73, Gali No. 2, East Vinod Nagar, Delhi while the victim Richa was alone at her house and nursing the fracture in her leg, accused Shibu Semol forcibly entered into the house, gagged her mouth with the cloth and fired twice with the country made pistol. The bullets, however, did not hit the victim at any vital part but went off FIR No. 543/2005 1 of 19 touching her feet and breast. On the cries for help raised by the victim, neighbours gathered and apprehended the accused who was later handed over to Ct. Anil Kumar with the katta .
2. After completion of investigation , charge sheet was filed against the accused for the offences punishable under Section 452/307/506 IPC.
3. After the case was committed to the court of Sessions and on considering the material placed on record, vide order dt. 09.1.2007 charge was framed against the accused for the offences punishable under Section 452/307/506 IPC to which he pleaded not guilty and claimed trial.
4. In order to substantiate the allegations against the accused, the prosecution examined 14 witnesses in all. PW1 Richa @ Gudia was the victim with whom the accused caused the alleged incident. She deposed the above facts and identified her clothes worn by her at the time of incident, as Ex.P10, P11 and P12. PW2 Smt. Rani was her mother who reached the spot after apprehension of the accused by the public persons. She stated that prior to this occurrence, the accused had extended threats that he would kill her husband in case they would not FIR No. 543/2005 2 of 19 marry their daughter with him. PW3 Ashok Gautam was the father of PW1 and husband of PW2 and he was in his office when the alleged incident took place. He had reached LBS Hospital on receiving the information through telephone regarding the incident.
PW4 Ct. Anil Kumar was on area patrolling duty and had reached the spot on hearing noise of bachao-bachao. He found public persons present at the spot who pointed out towards the accused whom PW4 found holding a country made pistol in his hand. PW4 further deposed that he snatched the said pistol from the hand of accused and apprehended him and made a call at 100 number. He further deposed that SI Manoj alongwith Ct. Ishwar reached the spot and on his statement Ex.PW4/A the present case was registered. He further proved the sketch and seizure memo of the country made pistol and cartridge as Ex.PW4/B and PW4/C respectively, seizure memo of letters and letter paid as Ex.PW4/D, sketch of bullets recovered from the spot as Ex.PW4/E and their seizure memo as Ex.PW4/F, arrest memo and personal search memo of the accused as Ex.PW4/G and PW4/H respectively. He further proved the disclosure statement of the accused as Ex.PW4/J and the seizure memo of clothes of the victim girl as Ex.PW4/K and also identified the case property in the Court.
FIR No. 543/2005 3 of 19 PW5 Ins. Sushma was the Duty Officer who proved the copy of FIR as Ex.PW5/A and her endorsement made on the ruqqa as Ex.PW5/B and further proved DD No. 19A regarding the alleged incident as Ex.PW5/C. PW6 HC Prem Pal Singh was the MHC(M) and he proved the entries made in Register No. 19 as Ex.PW6/A (seven pages).
PW7 Ct. Ishwar Singh reached the spot alongwith SI Manoj Kumar/IO on receipt of DD No. 19A and joined the investigation with him and got the present case registered on the instructions of the IO. He proved the certain seizure memos of the case property and arrest documents of the accused and further identified the case property.
PW8 Ct. Shiv Om was the Photographer from the Crime Team and he proved the photographs as Ex.PW8/A1 to A9 and negatives thereof as Ex.PW8/B1 to B9. PW9 Ct. Jitender was the Duty Constable at LBS Hospital. He got admitted the victim girl in the hospital who was brought by PCR and also handed over the pullanda containing clothes of said victim to the IO. PW10 Dr. Parmesh Sharma examined the injured Gudia vide MLC Ex.PW10/A . PW11 Ct. Vindhayachal Singh was a witness to the sample handwritings of the accused taken by IO/SI Manoj. He proved the said handwritings as Ex.PW11/A1 to A3. PW12 HC Ishwar Dayal took the exhibits from the malkhana vide RC FIR No. 543/2005 4 of 19 No. 393/21, 394/21 and 393/21. He deposed that only exhibits vide RC No. 394/21 could be deposited and he brought back the remaining exhibits and redeposited them with the MHC(M). PW13 Ct. Anil Kumar deposited the exhibits containing clothes of the injured alongwith sample seal and two envelopes containing sample handwriting of the accused at FSL Rohini.
PW14 Ins. Manoj Kumar was the IO of this case and he deposed about the investigation conducted by him and proved the certain documents, as stated herein above. He proved the ruqqa as Ex.PW14/A , sketch of bullets as Ex.PW14/B , letter head containing the writing of accused as Ex.PW14/C, site plan as Ex.PW14/D and further identified the case property in Court.
5. Statement of the accused was recorded under Section 313 Cr. PC and the entire incriminating evidence was put to him which he denied and pleaded innocence. He claimed that Richa was having affair with him and they wanted to marry each other but her family members were against them and under their compulsion and pressure, she deposed against him. No witness was examined by the accused in his defence.
6. I have heard Ld. APP for the State, Shri Akhtar Shamim - Advocate for the accused and have carefully gone FIR No. 543/2005 5 of 19 through the case file.
7. The present case of the prosecution is based mainly on the testimony of the victim/PW1 who had deposed about the alleged incident. The other witnesses cited and examined by the prosecution were only of corroborative nature and no other eye- witness was cited. As per the prosecution case, the possibility of any other eye-witness was also not here as the victim was alone at her house at the time of alleged incident. Hence, her testimony is of vital importance.
8. According to PW1, she specifically named the accused as the assailant and deposed that he fired twice upon her while she was lying on her bed nursing a fracture in her leg which was tied with bricks to give traction . She also deposed that before firing the accused uttered that she had cheated him and ditched him. She further deposed that on hearing the sound of fire, the neighbours reached there and apprehended the accused. She was confronted with her previous statement during her cross- examination when she deposed that the accused came inside her house, shouted, threatened and gagged her mouth with a cloth .
9. In her further cross-examination she denied the FIR No. 543/2005 6 of 19 suggestions that she was having any friendly relations with the accused who also provided her medical certificate to enable her to appear in her first year graduation examination as her attendance was found to be short. She also denied the suggestions that she alongwith her friend Pooja , Sanjay and the accused used to meet often and had cordial relationship and because of her frequent meetings with the accused, she was short of attendance. She admitted that the accused had proposed her for marriage in July or August of the year of occurrence but she refused to it and thereafter her father and uncle had gone to the accused to make him understand. Similarly, PW2 and PW3, mother and father of the victim respectively, also deposed about the incident but since they were not present at that time, their depositions regarding the incident is merely hearsay. In any case, they deposed that they came to know of the incident on reaching the house through neighbours and the police officials and then went to the hospital. They both also denied that PW1 was short of her attendance in the college because she used to roam with the accused and other friends, but deposed that her attendance was short on account of her neurological ailment and other diseases and that PW2 had obtained the medical certificate from one Dr. Vinod Puri of GB Pant Hospital. It was also deposed by PW2 that she and her husband had approached the accused to FIR No. 543/2005 7 of 19 persuade him for disconnecting the ties with PW1.
10. PW4 had first reached the spot and on his statement the present case was registered. He had taken the katta from the accused and handed over the same to the IO alongwith the accused. He was also a witness to the recovery of two empty cartridges and one bullet from the place of incident and one live cartridge and one empty cartridge from the rented room of the accused from a suitcase alongwith one letter pad which the accused got recovered from beneath his pillow containing the writings of the accused. These recoveries were also proved by the IO/PW14 and PW7.
11. Ld. Counsel for the accused pointed out the contradictions in their testimonies regarding these recoveries as PW14 deposed that two empty cartridges and one bullet were recovered from the room and one bullet was recovered from outside the staircase. PW7 deposed that two live and two fired cartridges were recovered from the spot and similar deposition was made by the IO. I find no inconsistency in the depositions of these three witnesses regarding the recovery.
12. It was argued by Ld. Counsel for the accused that there FIR No. 543/2005 8 of 19 had been a delay of about one month in recording the statement of the victim which has not been explained. It was further submitted that since the victim was in love with the accused, therefore, she was not willing to make any statement against him and that is why it was not recorded promptly but later on she was forced to make this statement and hence, the same cannot be relied upon . No specific question was put to the victim for not making the statement promptly and on the same day. Similarly, no question in this respect was put to PW2 or PW3. The IO was asked in his cross-examination for this delay which he explained deposing that at the time of the hospitalization of the victim she was under trauma and therefore, he could not record her statement and thereafter he visited her house 7 or 8 times and was informed by the father of the victim that she had been sent to their native village to the house of her grant parents as she was in trauma and therefore, he could not record her statement because of her unavailability till the date he succeeded in recording her statement. Thus, the delay has been properly explained and there had been no counter evidence, except mere suggestions, to show that the victim remained present at Delhi after the incident and till her statement was recorded.
13. The doctor who examined the victim i.e. PW10, in his FIR No. 543/2005 9 of 19 cross-examination deposed that he had not specifically mentioned that the victim was fit for statement as he noted that she was conscious and oriented. This is only an opinion and as per the ocular evidence which has come on record, the victim was found to be under trauma and therefore, her statement could not be recorded. Hence, in my opinion the plea raised by the defence that the statement of the victim was not promptly recorded at the first instance, deliberately or that she was not willing to make the statement, cannot be accepted in view of the aforesaid and also for the reason that she was never cross- examined on this point.
14. The other argument raised by Ld. Defence Counsel was that no public person was made a witness in this case regarding the apprehension of the accused though they were available at the spot. The presence of the neighbours has been accepted by all the material witnesses. However, it has been explained by the IO that he had asked the neighbours to join the investigation but they refused. He also deposed that the parents of the victim even refused to become witness of recovery of empty and live cartridges from the house of the accused. Similar deposition was made by PW4 as well. This explains the non- joining of the public witnesses.
FIR No. 543/2005 10 of 19
15. Ld. Counsel for the accused further pointed out that there was contradiction in the testimony of PW1 regarding the sequence in which the accused allegedly fired upon her. It was pointed out that in her statement U/S 161 Cr. PC she stated that the first fire went touching her breast and the second touching her feet whereas this sequence was reversed during her testimony. In my opinion this is a very minor contradiction when the fact of firing has been duly proved.
16. It was next argued that though the incident allegedly took place in a small room, however, not a single bullet hit the victim nor any fire mark was found on any object or wall of the room. According to the IO, the room was about 10 X 10 feet or 10 X 12 feet in dimension . As per the testimony of PW1, the accused fired from a distance of about 2-3 steps from the bed. It is the case of the prosecution that the fire arm used in the incident was a country made pistol which has no accuracy. The accused himself was not a sharp shooter or a person with criminal background. If none of the bullet hit the victim, though she was immobile, is only per chance. Even otherwise in the case like one in hand, the intention of the accused is to be seen and the consequences thereof are not so important unless they result FIR No. 543/2005 11 of 19 into any fatal incident. Further more, the question asked suggests that the accused did fired upon the victim. The fact that no fire mark could be observed in the room is only a lapse on the part of the IO for which no benefit can be given to the accused. It is pertinent to mention that in this regard the IO deposed that he did not remember whether there was any bullet mark on the walls or other articles in the room. It is also worth noting that as per the prosecution case, two empty/fired cartridges were recovered from the room and there had been no cross-examination on this aspect except the mere suggestions to the contrary which are not sufficient to disprove the allegations.
17. Ld. Counsel for the accused further pointed out towards certain contradictions regarding the seizure of the katta from the accused, some minor differences in the manner of arrival of the police officials to the spot from the hospital which are too minor in nature and can easily be brushed aside. Ld. Counsel further pointed out that there is a contradiction between the MLC and the FSL Result regarding the gunshot injury. In the MLC it has been mentioned that injury No. 3, i.e. Abrasion over left side of chest (left breast) was having carbon (black particles) present, whereas in the FSL Result of the clothes of the victim, no gunshot residue was detected on the clothes of the victim. The FIR No. 543/2005 12 of 19 said FSL Report was not proved nor the expert was examined who could have explained the difference. However, the tattooing or blackening as a result of fire arm injury on the body is obvious when the fire is made from a close range and it was first observed on the MLC. The clothes were received in the FSL on 13.7.2006 i.e. after a gap of about nine months and the possibility of the marks getting diminished cannot be ruled out.
18. As regarding the Ballistic Report to prove the fact whether the fired cartridge recovered from the room were fired from the country made pistol recovered from the accused, the same is inconclusive as it was observed that the individual characteristics of firing pin marks and breech fact marks on the fired cartridge and bullets were insufficient for comparison and opinion . Hence, no opinion could be given regarding it and this report is of no use either to the prosecution or to the accused.
19. In this case it is worth noting that a letter pad was recovered from the room of the accused at his pointing out which contains his handwriting and which was compared with his admitted handwriting, taken before the Court, by the FSL and found to be in the handwriting of the accused. A perusal of these writings Ex.PW14/C (colly.) clearly demonstrates that the FIR No. 543/2005 13 of 19 accused was having an affair with the victim and was perturbed because of her indifferent behaviour. Not only that he was so much mentally charged that he wanted to kill her which is clear from the writings marked as Q3, Q4 and Q11 (emphasis supplied). There had been no cross-examination of any witness regarding the recovery of this letter pad nor the said writings have been disputed by even suggestions. These writings go on to show that the accused was highly frustrated and emotionally charged and was adamant to kill the victim/PW1. These writings also reveal that he was already in possession of a gun (emphasis supplied on writings Q3). These writings clearly reveal the mindset of the accused, his intention to commit the offence as well as the motive to commit the offence. These facts coupled with the testimony of PW1 which has almost gone unrebutted on the material point of the accused having fired at her clearly point out towards the guilt of the accused. On the other hand, the accused has failed to explain the injuries on the person of the victim/PW1 which have been duly proved by PW10. Even in the MLC Ex.PW10/A the alleged history has been given as assault by desi katta which was given by the injured herself and again on which there was no cross-examination .
20. In view of the above findings, I am of the considered FIR No. 543/2005 14 of 19 opinion that the prosecution has been able to prove its case against the accused beyond reasonable doubt. It has been proved that he entered into the house of the victim, armed with a country made pistol, i.e., after making preparations to cause hurt and fired at her twice with the said pistol and further extended threats to her. Hence, accused Shibu Semol is hereby held guilty for the offences punishable under Section 452/307/506 IPC and is convicted accordingly.
ANNOUNCED IN OPEN COURT ON 15th day of July 2010 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) - III KARKARDOOMA COURTS : DELHI FIR No. 543/2005 15 of 19 IN THE COURT OF SHRI SANJAY SHARMA ADDITIONAL SESSIONS JUDGE - III (EAST) KARKARDOOMA COURTS : DELHI SC No. 53/2009 Unique Case ID No. 02402R0017222006 FIR No. 543/2005 PS Kalyanpuri Under Section 307/452/506 IPC State Versus Shibu Semol Shibu Semol S/o Denial Semol R/o F-76, East Vinod Nagar Delhi ORDER ON THE QUANTUM OF SENTENCE :
The convict namely Shibu Semol was convicted for the offences punishable under Section 452/307/506 IPC, vide judgment dt. 15.7.2010.
2. I have heard the Ld. Addl. PP for State and Shri Akhtar Shamim - Advocate for the convict on the quantum of sentence.
FIR No. 543/2005 16 of 19
3. It is submitted on behalf of the State that the convict was armed with a country made pistol before entering into the house of the victim and fired at her twice with the said pistol resulting injuries upon her and further extended threats to her and therefore, prayed that maximum sentence be inflicted upon the convict.
4. On the other hand, Ld. Counsel for the convict submitted that the convict is a young man with clean antecedents and that he has never been held guilty in any other case. It was also submitted that any substantive sentence may ruin his married life and his two young children would also be left without the protection of the father and hence, lenient sentence has been prayed for.
5. I have considered the aggravating & mitigating circumstances.
FIR No. 543/2005 17 of 19
6. It is not disputed that the convict has no history of any criminal nature and that he is a person of clean antecedents and further that this is the first offence committed by him. The present offence is also an outcome of his love having gone sour and was thus committed more out of emotion and passion than without a criminal intent. Hence, I am inclined to take a lenient approach .
7. Considering the above, convict is hereby sentenced to Rigorous Imprisonment for a period of three years for the offence punishable under Section 452 IPC. He is also sentenced to pay a fine of Rs.2000/- for the said offence failing which he shall further undergo SI for a period of two months.
The convict is further sentenced to undergo Rigorous Imprisonment for a period of seven years for the offence punishable under Section 307 IPC and is also sentenced to pay a fine of Rs.20,000/- for the said offence, failing which he shall further undergo SI for a period of six months.
FIR No. 543/2005 18 of 19 The convict is further sentenced to undergo Rigorous Imprisonment for a period of one year for the offence punishable under Section 506 IPC.
Out of the fine realized, a compensation of Rs. 15000/- shall be paid to the victim.
All the sentences shall run concurrently.
Benefit of Section 428 Cr. PC, if any, be extended to the convict.
A copy of judgment and order on sentence be given to the convict free of cost. Bail Bond of the convict stands discharged.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 19th day of July 2010 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) - III KARKARDOOMA COURTS : DELHI FIR No. 543/2005 19 of 19