Delhi District Court
Sc No. 111/13, Fir No.61/11, State vs . Ajay @ Gadnu Page 1 Of 25 on 6 April, 2015
IN THE COURT OF SH. CHANDRA SHEKHAR, ADDITIONAL
SESSIONS JUDGE02 (CENTRAL)/TIS HAZARI COURTS/
DELHI
Sessions Case No. 111/13
Unique Case ID No. 02401R0319632011
FIR No. 61/11
U/s: 302 IPC & 27 Arms Act
PS: Nabi Karim
In the matter of:
STATE
Versus:
Ajay @ Gadnu S/o Goli Yadav
R/o Village Devoli Mishr, P. S. Kaptan Ganj,
Teh Harya, District Basti, U. P.
Presently at : C68, IIIrd Floor, Gali no. 10,
Chinnot Basti, Nabi Karim, Delhi.
Date of Institution : 18.07.2011
Date of Reserving Judgment : 25.03.2015
Date of Pronouncement : 06.04.2015
Conclusion : Conviction
Pages: 1 to 25
SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 1 of 25
JUDGEMENT:
1. CASE OF THE PROSECUTION:
Precisely, the case of the prosecution in its essentials, is that on 27.04.2011 accused, the R/o House no. C68, IIIrd Floor, Gali no. 10, Chinnot Basti, Nabi Karim, Delhi gave several knife blows to Smt. Kalawati by entering into her house on 2nd Floor, C-68, Chinnot Basti, Delhi due to which she died.
2. REGISTRATION OF THE CASE, INVESTIGATION AND FILING OF CHARGE SHEET:
The case was registered as per provisions u/s 154 Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C.) vide case FIR No. 61/2011 U/S 302 Indian Penal Code, 1861 (hereinafter referred as IPC) and u/s 27 of Arms Act, 1959 (hereinafter referred as Arms Act) in Police Station: Nabi Karim, Delhi on the statement of Sh. Ashok Tripathi S/o Radha Raman Tripathi, aged about 28 years, R/o C-69, Chinnot Basti, Multani Dhanda, Nabi Karim, Delhi. The accused was arrested on the spot and after investigation, the charge sheet u/s 173 Cr.P.C. was filed against the accused u/s 302 IPC and u/s 27 of Arms Act in the court of Ld. area Magistrate.
SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 2 of 25
3. COMMITTAL OF THE CASE TO THE SESSIONS' COURT:
The Ld. Area Magistrate took cognizance of the offence u/s 302 IPC and u/s 27 of Arms Act as per provisions u/s 190 (b) Cr.P.C, summoned the accused as per provisions u/s 204 Cr.P.C, supplied copies of the charge sheet and other relevant documents as per provisions u/s 207 Cr. P.C. and observing that as per Schedule 1 of Cr. P.C.; the offence u/s 302 IPC is exclusively triable by the Sessions' Court, completed the committal proceedings u/s 209 Cr.P.C and committed the case to the Sessions' Court for trial.
4. FRAMING OF CHARGES AGAINST THE ACCUSED:
Ld. Addl. P.P. for the State, started trial of the accused as per provisions u/s 226 Cr.P.C. Ld. Addl. P.P. for the State and Ld. Defence Counsel for the accused addressed their respective submissions on the point of charge as per provisions u/s 227 Cr.P.C which were considered as per provisions u/s 228 (1) Cr.P.C however, from perusal of record, a prima facie case u/s 302 IPC r/w Section 27 of Arms Act was made out, therefore, on 23.07.2011 charges under aforesaid sections were framed in writing against the accused as per provision u/s 228 (1) (b) Cr.P.C and as per provisions u/s 228 (2) Cr.P.C. the same were read over and explained SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 3 of 25 to him in his vernacular and was asked whether he pleads guilty of the offence charged or claims to be tried. The accused did not plead guilty, but claimed trial therefore, as per provision u/s 230 and 231 of Cr. P.C opportunities were given to Ld. Addl. P.P. for the State to lead prosecution evidence to prove the aforesaid charges against the accused.
5. PROSECUTION EVIDENCE ON RECORD:
Ld. Addl. P.P. examined HC Devendra Singh; (The Duty Officer) as PW1, Ashok Tripathi (The Eye witness) as PW2, Shesh Dutt Tripathi (The husband of the deceased) as PW3, HC Ramkesh (The Duty Officer) as PW4, Ct. Tara Chand (The Photographer) as PW5, HC Khurshed Ali (Assisted SHO Kushal Singh, the main IO during investigation) as PW6, Ct. Ram Gopal (Assisted IO SI Ram Narayan during investigation) as PW7, Radhey Shyam (The landlord of accused and deceased) as PW8, Ct. Nitin Rathi (The Special Messenger) as PW9, HC Johri Lal (The MHC(M)) as PW10, SI Bale Singh (The Incharge PCR) as PW11, ASI MS Bisht (The Finger Print Expert) as PW12, HC Ramzan (The PCR motor cycle rider) as PW13, HC Habib Mohd.
(Feeded information received at PCR, to computer) as PW14, Ct. Antresh Kumar (Took sealed packets to FSL) as PW15, SI Mahesh Kumar (The SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 4 of 25 Draftsman of Crime Branch) as PW16, SI Ram Narayan (The initial IO) as PW17, Dr. Kulbhushan (Conducted Post Mortem) as PW18, Din Dayal (Record Clerk from RML Hospital) as PW 19, Dr. Parijat Mathur (Prepared Death Report and Death Summary) as PW20, SI Dhan Singh (Incharge Mobile Crime Team )as PW21, SI Mohit Yadav (Assisted SHO Khushal Singh, the main IO during investigation) as PW22, Inspector Kushal Singh (The main IO) as PW23.
6. STATEMENT OF ACCUSED AND HIS DEFENCE:
After completion of prosecution evidence, all incriminating evidences on record against the accused, were brought into his notice and his explanations were recorded separately as per provisions u/s 313 Cr.P.C. The opportunity was given to the accused to lead defence evidence as per provisions u/s 233 Cr.P.C., but he neither led any defence evidence nor examined himself u/s 315 Cr. P.C. though he stated in his examination u/s 313 Cr. P.C that he has been falsely implicated in the case.
7. FINAL ARGUMENTS ON BEHALF OF STATE AND DEFENCE:
After examination of the accused u/s 313 Cr.P.C, the SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 5 of 25 opportunities were given to Ld. Addl. P. P. for the State and Ld. Defence counsel as per provisions u/s 234 & 314 Cr.P.C. to address oral final arguments and file memorandum of arguments if any.
Ld. Addl. Public Prosecutor Sh. Rakesh Mehta, on behalf of the State summed up his case as per provisions u/s 234 Cr.P.C.
Ld. Defence Counsel Sh. Praveen Suri replied his submissions and also filed memorandum of arguments u/s 314 Cr.P.C on behalf of accused.
8. WHAT IS TO BE PROVED TO PROVE THE GUILT OF THE ACCUSED:
The Charges against the accused have been framed u/s 302 IPC & 27 Arms Act, therefore, as per provision u/s 101 Indian Evidence Act, 1872, prosecution must prove commission of those incriminating facts against the accused beyond reasonable doubt which are covered within the definition of murder provided u/s 300 IPC and those facts which are punishable u/s 27 Arms Act.
WHAT IS SECTION 300 IPC:
The relevant portion of Section 300 IPC applicable in this case is as under:SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 6 of 25
Section 300 IPC:
Section 300 IPC defines murder as-
"Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done-
(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death..."
WHAT IS SECTION 27 OF ARMS ACT:
The relevant portion of Section 27 of Arms Act applicable in this case is as under:
"(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
WHAT IS SECTION 5 OF ARMS ACT:
The relevant portion of Section 5 of Arms Act applicable in this case is as under:
"5. License for manufacture, sale, etc., of arms and ammunition -
(1) No person shall--
(a) use, manufacture, sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 7 of 25 his possession for sale, transfer, conversion, repair, test or proof, any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made thereunder."
The word "arms" is defined u/s 2 (c) of Arms Act as under:
"2 (c) "arms" means articles of any description designed or adapted as weapons for offences, or defence, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include aricles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons."
The word "prescribed" is defined u/s 2 (g) of Arms Act as under:
"2 (g) "prescribed" means prescribed by rules made under this Act."
The Arms Rules, 1962 classify arms and ammunition in clause 3 as under:
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"Classification of arms and ammunition: For the purposes of the Act and these rules, "arms" or "ammunition" shall be of the categories specified in columns 2 and 3 respectively of schedule 1 and references to any category of arms or ammunition in these rules shall be construed accordingly."
The relevant portion of the The Schedule 1 of The Arms Rules, 1962 defining arms for the purpose of this case is in category V which is as under:
"Arms other than fire-arms: Sharp-edged and deadly weapons, namely-Swords (including sword-sticks) daggers, bayonets, spears (including lances and javelins; battle-axes, knives including Kripans and Khukries) and other such weapons with blades longer than "9" or wider than "2" other than those designed for domestic, agricultural, scientific or industrial purposes steelbatton; "Zipo" and other such weapons, called "life preservers" ' machinery for making arms other than category II, and any other arms which the Central Government may notify under section 4."
9. EVALUATION AND APPRECIATION OF PROSECUTION EVIDENCE VIS A VIS SUBMISSIONS OF LD. ADDL. P. P AND LD.DEFENCE COUNSEL:
SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 9 of 25
Ld. Addl. Public Prosecutor Sh. Rakesh Mehta, on behalf of the State submitted that case has been proved beyond reasonable doubt by testimony of eye-witness Sh. Ashok Tripathi (The PW2) and his deposition is fully corroborated by medical witnesses Dr. Kulbhushan (PW-18), Dr. Parijat Mathur (PW-20) & Din Dayal (Record Clerk at RML Hospital) and hence, accused may be convicted for the offences charged against him.
Ld. Defence Counsel Sh. Praveen Suri submitted that there are material contradictions in the testimonies of prosecution witnesses which go to the root of the prosecution case, the charges against the accused have not been proved beyond reasonable doubt and hence, accused may be acquitted.
A perusal of judicial record shows that the case of the Prosecution is based on the sole testimony of an eye-witness Sh. Ashok Tripathi (The PW2) who is nephew of the deceased. As per his statement Ex. PW2/A (on which FIR was lodged) to the police, he was residing at C- 69, Chinnot Basti, Multani Dhanda, Nabi Karim, Delhi. The deceased Smt. Kalawati was residing at C-68, 2nd Floor Chinnot Basti, Delhi and accused was residing at C-68, 3rd Floor Chinnot Basti, Delhi. The testimony of Sh. Ashok Tripathi (PW-2) in the court is as under: SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 10 of 25
"He was working as waiter at Hotel 'Ricky Deluxe', Pahar Ganj. His uncle Sh. Shesh Dutt Tripathi with his wife was residing in the same locality as his neighbour. On 27.04.2011 as a routine, he went to the second floor for taking buckets for bringing water for his aunt. When he reached in front of the house of his uncle, he heard cries of his aunt Smt. Kalawati. He immediately pushed open the door and saw that accused Ajay @ Gadnu was stabbing his aunt with a knife. His aunt was lying on the floor and crying. He raised alarm, after that many public persons had gathered there. The accused tried to run away but he was apprehended by public and was beaten by them. His aunt was lying in a pool of blood. He lifted her with the help of some public persons and took her to RML hospital in a TSR but, after sometimes she expired in the hospital. The police had met him in the hospital and recorded his statement vide Ex. PW2/A. He signed the same at point A. He correctly identified the accused in the Court. He also had accompanied the police to the spot. One blood stained knife was found from the room. The accused Ajay was present at the spot. He was over powered by public persons. The crime team had also reached there. The scene was photographed. IO had prepared the sketch of the knife, sealed and seized the same. He also signed the sketch of the knife vide Ex. PW2/B at point A and signed the seizure memo Ex. PW2/C at point A. The blood stained bed sheet was also sealed and seized vide memo Ex. PW2/D which bears his signatures at point A. The blood was lifted from the room by the police. Police also inspected the SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 11 of 25 spot and done some other proceedings. The police had prepared the site plan at his instance. The accused was handed over to the police. The brother of the accused namely Ramesh was also their at that time. He had identified the dead body of the deceased and police had recorded his statement vide Ex. PW2/E. The postmortem was conducted and after that the dead body was handed over to him. He identified the knife vide Ex. P1. He identified the bedsheet as Ex. P2.
During his crossexamination, he stated that his uncle Sh. Shesh Dutt Tripathi resides opposite to his house in the same gali. His uncle, aunt and their two children used to reside there. The water tap was behind the house of his uncle. He used to fetch water at about 6.00 a.m.. There are fifteensixteen rooms in the building, where his uncle resides and in each room, twothree persons reside. There was no water connection in the said building. But, he has water connection in his house. He admitted that many persons from neighbour were present at the time of the incident. He heard cries as the same were loud. None had came out after hearing cries. There were many room adjacent to the room of his uncle and aunt. The rooms are small and have capacity of one single bed inside it. The Police had recorded his statement at about 6.30 a.m. to 7.00 a.m.. The statement of his uncle was also recorded in his presence. He was doing his duty in the hotel from 9.00 a.m. to 9.00 p.m.. His attendance used to be marked by his Manager. He was not on duty at the time of incident. He did not hand over any document to IO. He denied the suggestion that the accused was not stabbing his aunt Smt. Kalawati with knife and she was not lying on the floor.SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 12 of 25
He denied the suggestion that he was not present at the house of his uncle. He admitted that his aunt was bleeding profusely. His clothes were stained with blood at the time of lifting and taking his aunt to the Hospital. He had thrown his clothes on way to hospital. He remained in his underwear only. He denied the suggestion that he did not lift and took his aunt to the hospital. He did not told the police that he had thrown his blood stained clothes on way to the hospital. He left the hospital in the evening around 03.00 p.m./4.00 p.m. When he came back to the spot, there was none at the spot. His uncle also remained in the hospital. He admitted that when he returned to the spot, the Police had already finished his work. He denied the suggestion he did not sign any paper at the spot. He denied the suggestion that accused has been falsely implicate in this case. He denied the suggestion that nothing was seized in his presence from the spot. "
Ld. Defence Counsel raised first contention that PW-2 Ashok Tripathi, the eye-witness, is not an eye-witness as his deposition does not corroborate with post-mortem report exhibited by Dr. Kulbhushan (The PW-18). As per post-mortem report, the time of death of the deceased precedes the time of death stated by PW-2.
A perusal of judicial record shows that the PW2 Ashok Tripathi has stated in statement Ex. PW2/A that he had gone around 06.00 a.m to his aunt's house to fetch water, where he saw that accused SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 13 of 25 Ajay was stabbing her. He took his aunt to the RML hospital, where after sometimes, she was declared dead. Dr. Kulbhushan (The PW-18) has stated in his testimony that on 27.04.2011 he had conducted the post- mortem at about 02.50 p.m. As per post mortem report Ex. PW 18/A Smt. Kalawati had died at about 07.30 a.m. Therefore, time of death stated by PW-2 does not precede the time of death reported in medical record prepared in the hospital and hence, the contention of Ld. Defence counsel cannot be sustained and is rejected.
The second contention raised by Ld. Defence counsel is that the prosecution did not explain as to how blood has come on the bed- sheet, as PW2 Ashok Tripathi stated that his aunt Smt. Kalawati was lying in a pool of blood on the floor of the house.
It is observed that PW2 Ashok Tripathi did not see the occurrence since inception, so he is not aware whether knife blows were firstly given by the accused to Smt. Kalawati while she was on the bed or not. The PW2 has stated that he had heard the cries of his aunt Smt. Kalawati from outside of her door and when he pushed the door, she was lying on the floor. The possibility of the fact that accused first gave knife blows to Smt. Kalawati while she was on bed, cannot be ruled out. Nonetheless, the fact that there was blood on the bed-sheet, does not SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 14 of 25 adversely affect the case of the prosecution and favours the accused. Therefore, the contention of Ld. Defence Counsel cannot be sustained and hence, is rejected.
The third contention of Ld. Defence Counsel is that IO could not explain whether the knife was a kitchen knife or it was commercial.
It is observed that it was not the duty of the IO to explain this fact. The IO has charge-sheeted the accused for possession and use of the Knife as the accused used the knife against the provisions of section 27 of Arms Act. PW2 Ashok Tripathi had identified the knife as P-1 and stated that accused gave knife blows to his aunt with said knife. The identification of knife, the weapon of offence is not disputed, therefore, the contention of Ld. Defence counsel cannot be sustained and hence, is rejected.
The fourth contention raised by Ld.Defence Counsel is that the IO did not collect the evidence on the aspect as to whether on the date of incident, PW-2 Ashok Tripathi was on duty or not.
It is observed that as per record PW2 Ashok Tripathi had brought his aunt Smt. Kalawati in injured condition to RML hospital, where the first IO/SI Ram Narayan had come around 07.00 a.m., therefore there was no question before the IO/SI Ram Narayan to inquire SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 15 of 25 from PW2 regarding his working hours and verifying the same from his office. Nonetheless, as accused was apprehended by the public persons on the spot, therefore, contention looses its significance. Therefore, the contention of Ld. Defence counsel cannot be sustained and hence, is rejected.
The fifth contention raised by Ld. Defence Counsel is that the motive assigned by the prosecution against the accused, is not sufficient. It cannot be presumed that accused can commit murder of the deceased over the issue of just fetching water.
It is observed that motive varies with the status, position and personalities of the persons, though apparently motive seems to be insufficient. But, keeping in view the status of the accused, the locality where the deceased and accused were residing, the fact that, previously also, the accused had quarreled with the deceased over the issues of water and the fact that PW2 daily used to fetch water for his deceased aunt, it seems that fetching water was a perpetual problem of the persons living in the said locality, therefore, the possibility of the said motive cannot be ruled out. Therefore, the contention of Ld. Defence Counsel cannot be sustained and hence, is rejected.
The sixth contention raised by the Ld. Defence Counsel is SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 16 of 25 that PW-2 Ashok Tripathi did not hand over his blood-stained clothes to the IO. Therefore, the story put forward through the said eye-witness is falsified and it cannot be believed that PW-2 Ashok Tripathi brought the deceased from the spot of occurrence to the RML hospital.
It is significant to note that PW2 Ashok Tripathi has stated in his cross-examination that his clothes were stained with bloodstains at the time of lifting and shifting his aunt to the hospital, so he had thrown his clothes on the way to the hospital. He remained in his underwear only. The explanation given by PW2 Ashok Tripathi is natural and plausible. Moreover, non-seizing of bloodstained clothes of PW2 Ashok Tripathi looses its significance in view of the fact that he had heard the cries of his aunt from outside the door of his aunt and pushed open the door and had raised the alarm and public person gathered there had apprehended the accused on the spot and beaten him. Therefore, the contention of Ld. Defence Counsel cannot be sustained and hence, is rejected.
The seventh contention raised by Ld. Defence Counsel is that the IO did not examine any independent public witness, though, PW- 2 Ashok Tripathi stated that many people had gathered at the spot when he had raised alarm.
SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 17 of 25
Undoubtedly, examination of independent public witness gives credit to the prosecution case and strengthens its probative value. But, as per Indian Evidence Act, 1872, it is not mandatory that in each and every case prosecution must examine an independent public witness. As per law, the only duty of the prosecution is, to prove the facts by leading cogent, consistent, and creditable evidence through trustworthy and reliable witness(s) to prove the charges against the accused beyond reasonable doubt without dilating on the defective or diametrically different stands taken by the defence. The testimony of a witness cannot be discarded only on the ground that he is relative of the deceased, therefore, he is an interested witness and hence, is unreliable. It is observed that in case law AIR 2007, Supreme Court 3228 titled as Kulesh Mondal v. State of West Bengal, it is held that:
"deposition of close relative cannot be discarded only because of relationship."
There is nothing in the deposition of PW2 Ashok Tripathi, which shows that he was not present on the spot of occurrence, not seen the commission of the offence or made any material contradictory statement cutting the very root of the case. The testimony of PW-2 Ashok Tripathi seems to be truthful and reliable. Therefore, the contention of Ld. Defence Counsel cannot be sustained and hence, is rejected. SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 18 of 25
The eighth contention of Ld. Defence Counsel is that the finger prints or the chance prints lifted by the Crime Team, are not against the accused.
The nineth contention of Ld. Defence Counsel is that the knife in question, was not recovered from the accused.
It is observed that it has been held by Hon'ble Supreme Court in AIR 2008, SC 12 in case titled as Tama v. State of West Bengal that"
"whether bloodstains collected from place of occurrence had been sent for chemical examination or not, or weapon of offence was recovered or not, is not of much importance in view of clear and reliable evidence of the eye-witness."
Therefore, eighth and nineth contentions of Ld. Defence Counsel cannot be sustained and hence are rejected.
The tenth contention raised by Ld. Defence Counsel is that there are material contradictions in the deposition of witnesses.
It is observed that there are few contradictions in the deposition of Prosecution witnesses on the point of recording of D.D entries, the place of recording of statement of witnesses, time of reaching to the spot and in hospital, but the same are natural and normal. In case SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 19 of 25 law AIR 2002, Supreme Court 1965 titled as Krishna Mochi vs. State of Bihar and AIR 2007, Supreme Court 3228 titled as Kulesh Mondal v. State of West Bengal it was held that:
"The overall discrepancies, which have come on record are not material, they are natural and minor based on the errors of lapse of time and mental indisposition and the same does not affect the case of the prosecution. Therefore, tenth contention raised by ld. defence counsel is repeated."
It is observed that as per case law AIR, 2008 Supreme Court 927 titled as Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra:
"the conviction can be based on the solitary evidence if the testimony of the single witness is wholly reliable. The corroboration is required only if the testimony is partially reliable."
The testimony of PW2 Ashok Tripathi in the present case, is admissible in evidence and is, wholly reliable and if ingredients of offences charged against the accused are proved, accused may be convicted on his deposition.
10. WHETHER THE FACTS REQUIRED TO BE PROVED U/S 300 IPC, HAVE BEEN PROVED BEYOUND REASONABLE DOUBT?: SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 20 of 25
The facts required to be proved u/s 300 IPC are that:
"accused caused the death of the deceased "With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted, is sufficient in the ordinary course of nature to cause death;"
The PW2 Ashok Tripathi, has stated in his deposition that he saw that accused gave several knife blows to his aunt Smt. Kalawati. He took her to RML hospital where she died after sometimes. The Post mortem report Ex. PW 18/A exhibited by Dr. Kulbhushan shows that Smt. Kalawati died on 27.04.2011 at 07.30 a.m in the RML hospital. The PW-18 Dr. Kulbhushan has stated in his report Ex. PW-18/A that the injuries no.1 and 2 on the body of deceased were as under:
1. Cut throat wound of length 4 cm, gaping 1.5 cm, obliquelly horizontal, clean cut margin present over front of neck, 6 cm below mentum, 6 cm above supra sternal notch. The left end is 0.5 cm lateral to the mid line, the right end 4.5 cm right to midline.
In the wound, subcutaneous tissue, underline muscles and trachea was cut at the level of second tracheal ring. The tracheal cut on all sides except the SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 21 of 25 small part of posterior wall.
2. Stab wound of length 3.6 cm, gaping 0.5 cm, obliquelly transverse with protrusion of part of large intestine (2 X 1 cm) and part of omentum (6 X 4 cm) with faecal matter present present over left side of upper abdominal wall, 8.5 cm upper and lateral to umblicus, 14.5 cm above to left anterior superior iliac spine, 2 cm lateral to the mid line going till posterior abdominal wall. Though intestine was cut about length of 0.5 cm. Mesentery was also cut. On dissection of wound, the track was found cutting the subcutaneous tissue and muscles of abdominal wall in the direction of backward and straight then in to abdominal cavity and reached upto posterior abdominal wall at left para vertebral region where a cut wound of length 1.5 cm found.
As per the medical opinion of the Dr. Kulbhushan, the injuries no. 1 and 2 present on the person of the deceased were ante- mortem, these were possible from the weapon of offence used in SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 22 of 25 inflicting those injuries and corresponding to the cut marks on the clothes which, deceased was wearing at the time of commission of offence and most significantly, the injuries no. 1 and 2 were at the vital part of the body and were sufficient in ordinary course of nature to cause death individually. Therefore, there is no doubt that the prosecution has proved beyond reasonable doubt, that case is squarely covered within clause III of section 300 IPC which is punishable u/s 302 IPC.
11. WHETHER THE FACTS REQUIRED TO BE PROVED U/S 27 OF ARMS ACT, HAVE BEEN PROVED BEYOUND REASONABLE DOUBT ?:
It is observed that for the purpose of the present case, Section 27 of Arms Act punishes the use of any arm or ammunition in contravention of Section 5 of the said Act.
Section 5 states that license is required for using of arm. Section 5 of the Arms Act also stated that license is required for using of arms, description of which may be prescribed. The word "arms" is defined under Section 2(c) of the Arms Act and includes sharp edged and other deadly weapons.
SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 23 of 25
Section 2(g) of Arms Act defines the word "prescribed" which means prescribed by rules made under the Arms Act.
The rules made under the Arms Act are the Arms Rules, 1962 which classify in clause 3, the arms and ammunition as mentioned in column 2 and 3 of Schedule I provided under the Arms Rules, 1962.
The Schedule I of Arms Rules, 1962 defines "arms" (relevant for the purpose of this case in category V) in which the knife with blades longer than 9 inches or wider than 2 inches are covered. Therefore, if a person uses a knife which has blade longer than 9 inches and wider than 2 inches then he must have a license under Section 5 of Arms Act.
In the present case, the accused used the knife of blade 7.1 inches in length and 1.5 inches in width, for which he was not required to have license under Section 5 of the Arms Act. Therefore, it seems that the prosecution has failed to prove the offence under Section 27 of the Arms Act, hence, he is acquitted under Section 27 of Arms Act.
12. CONCLUSION:
In the end, it is manifested that Ld. Addl.P.P. for the state, SC No. 111/13, FIR No.61/11, State Vs. Ajay @ Gadnu Page 24 of 25 has very ably conducted the case of prosecution and his submissions are supported by cogent, credible and reliable evidence and they have forcefully militated against the certitude of guilt of the accused.
Ld. Defence Counsel has raised the significant legal issues but, his submissions are not sustainable as they lack support of evidence and law.
The scales of justice have heavily tilted in favour of the state and against the accused. Therefore, accused is convicted for offence u/s 302 IPC as per aforediscussed procedure prescribed under Cr.P.C and by passing the present judgment u/s 235 sub-clause (1) of Cr. P.C. The opportunity to Ld. Defence Counsel and Ld. Addl.P.P shall be given as per provisions under sub-section (2) of section 235 Cr.P.C to address their respective submissions on the point of quantum of sentence and after considering their submissions, convict shall be sentenced under relevant penal provisions vide separate 'order on the quantum of sentence' as per law.
Ordered accordingly.
ANNOUNCED IN THE OPEN (CHANDRA SHEKHAR)
COURT ON 06th APRIL, 2015 ASJ-02 (Central)/THC/Delhi
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