Delhi District Court
State vs Sunil Kumar on 4 September, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : KARKARDOOMA COURTS, DELHI
SC No.30/2011
Unique Case ID No.02402R0295212011
FIR No.116/2011
Police Station Gazipur
U/s 307/34 IPC and 25/27/54 Arms Act.
State Versus Sunil Kumar
S/o Daya Veer
R/o H.N.117, Saraswati Colony,
Village Sahibabad, Ghaziabad, UP.
Date of Institution : 03.10.2011
Date of judgment reserved : 16.08.2013
Date of judgment : 31.08.2013
JUDGMENT
The Police of police station Gazipur has filed the present chargesheet against accused Sunil Kumar in FIR No. 116/2011, under Section 307/34 IPC and 25/27/54 Arms Act. 2 Briefly stating the case of prosecution is that on 14.04.2011 on receipt of DD No.34A Ex.PW2/C, SI Amarjeet Singh (PW17) reached road No.5E, near EDM Mall opposite Maruti Suzuki Competent where ASI Bhagwat Dayal (PW4) along with Ct. Rakesh SC No.30/2011 State Vs. Sunil Kumar Page 1 of 53 (PW1) was already present. It is also alleged that at the spot one DTC bus old Model bearing Registration No.DL 1PB 5189 Route No.542 and front wind screen of the said DTC bus was broken and Sarai Kale Khan was written on the Board of the bus. Broken glasses were lying in the bus as well as on the road outside the bus. One piece of brick was also lying inside the bus. One live cartridge was lying on the road and one empty shell was lying in front the bus on driver's seat side. The complainant Harbir Singh, driver of the bus met at the spot and he got his statement Ex.PW10/A recorded.
3 In his statement Ex.PW10/A, Harbir Singh, had stated that he was employed in the DTC as a driver, having Batch No.10177. He had stated that on 14.04.2011, his duty was from 1.00 p.m. to 9.00 p.m. He had further stated that on 14.4.2011, he along with conductor Ram Milan Yadav were on duty on DTC Bus Route No. 542 bearing registration No. DL 1PB 5189 (Old Model) and had started from Seema Puri Depot at about 7.30 p.m. for Sarai Kale Khan. At about 8 PM, as soon as he started from bus stand opposite EDM Mall towards Gazipur, a car make Indigo No.DL 4C AL 0826 of white colour came in front of bus of the complainant Harbir Singh and he applied brakes of the bus. According to Harbir Singh, he had given the said car in the SC No.30/2011 State Vs. Sunil Kumar Page 2 of 53 marriage of his daughter Monika. Three boys including accused Sunil Kumar (soninlaw), his younger brother Bittoo and one another boy alighted from the car and third boy sought permission of accused Sunil Kumar to fire at the complainant. In the meantime, Bittoo picked up a piece of brick and hit against the front driver's seat glass of the bus. Accused Sunil Kumar took out country made pistol from his pant pocket and fired towards the complainant. Complainant bowed down and saved himself, but the front glass of the bus got broke and scattered. 1520 passengers of the bus hastily got down and vacated the bus. Thereafter, all the three accused persons fled away in the said Indigo car. Complainant has further stated that dowry case between his daughter and accused Sunil was going in Nanakpura and that his soninlaw accused Sunil threatened to kill him. He further stated that accused Sunil, his brother and their third associate had attacked him with a view to kill him.
4 Police came to the spot. One live cartridge Ex.P2, one fired cartridge Ex.P1; broken pieces of glass Ex.P4 of the bus and piece of the brick Ex.P3 were taken into possession vide seizure memos Ex.PW4/B, Ex.PW4/C and Ex.PW4/D respectively. DTC bus was also seized vide seizure memo Ex.PW4/E. Sketch Ex.PW4/A of SC No.30/2011 State Vs. Sunil Kumar Page 3 of 53 the seized cartridges from the spot was prepared. IO prepared rukka Ex.PW17/A and got the case registered. IO HC Pramod recorded FIR Ex.PW2/B and made his endorsement Ex.PW2/A on the rukka. Crime Team was called at the spot headed by SI Naveen Kumar (PW6). Spot was got photographed through photographer Ct. Sandeep (PW3) vide negatives Ex.PW3/P1. Site plan was prepared at the instance of the complainant. Statement of Ram Milan Yadav (PW7), conductor of the bus was recorded under section 161 Cr.P.C. Statements of members of Crime Team were recorded.
5 On 15.04.2011, Police reached Sahibabad at the house of accused Sunil and recorded his statement. Car No. DL 4C AL 0826 was got photographed. Mobile of the accused was put on surveillance. On 19.04.2011, above DTC bus was got examined by FSL expert Sh. R. Suresh (PW16) vide report Ex.PW16/A . During the course of investigation, statements of Ajay Pratap (PW5), Babita (PW10) and Monika (PW12) were recorded. On 19.04.2011, DTC bus was released on superdari vide memo Ex.PW14/D after report Ex.PW14/A to Ex.PW14/C in this regard were prepared by DTC. On 30.04.2011, it was revealed that complainant Harbir Singh had been murdered regarding which an FIR No.646/2011 under Section 302/201 IPC had SC No.30/2011 State Vs. Sunil Kumar Page 4 of 53 been registered at PS Sahibabad, UP against accused Sunil and his brother Bittoo. Accused Sunil was arrested in a case registered at PS Sahibabad in which he made disclosure statement regarding present case that on 14.04.2011, he along with his brother Bittoo and his friend Kuldeep, had fired on the bus of his fatherinlaw Harbir Singh in view with intention to kill him. Documents Ex.PW11/A and Ex.PW11/B of case FIR No.646/2011, PS Sahibabad have been produced by SI Avadhesh Partap Sigh (PW11). Production warrant was got issued against accused Sunil and he was arrested in the present case vide memo Ex.PW17/C and his disclosure statement Ex.PW17/B was recorded. Personal search of accused was conducted vide memo Ex.PW17/D. Accused took the police party to the place of incident and pointed out the same vide memo Ex.PW17/E. Case property i.e. offending TATA Indigo car was found deposited in PS Sahibabad which was inspected by PW13 Tasnim Uddin Siddiqui vide report Ex.PW13/A. No clue could be found about fire arm and coaccused. Exhibits were got sent to FSL, Rohini. The glass pieces and the cartridges found at the spot were sent to FSL which were examined vide reports Ex.PW16/B and Ex.PW16/C. 6 After completion of the investigation, chargesheet SC No.30/2011 State Vs. Sunil Kumar Page 5 of 53 was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
7 After hearing Ld. Counsel for the accused and Ld. Addl. PP for the State, charge under Section 307/34 IPC apart from charges under Sections 25/27/54 Arms Act were framed against the accused on 17.10.2011 to which he pleaded not guilty and claimed a trial.
8 In order to prove its case, prosecution has examined 17 witnesses. PW5 Ajay Pratap Singh, PW7 Ram Milan Yadav, PW9 Jitender Sharma, PW10 Smt. Babita and PW12 Monika are the public witnesses. PW13 Tasnim Uddin Siddique inspected the car. PW14 Jai Pal Singh is the witness from DTC. PW15 Parshuram Singh and PW16 R.Suresh are Expert witnesses from FSL/CFSL. PW1 Ct. Rakesh Kumar, PW2 HC Pramod, PW3 Ct. Sandeep, PW4 ASI Bhagwat Dayal, PW6 SI Naveen Kumar, PW8 ASI Udai Singh, PW11 SI Avdhesh Partap Singh and PW17 SI Amarjeet Singh are the police witnesses.
9 After completion of prosecution evidence, statement SC No.30/2011 State Vs. Sunil Kumar Page 6 of 53 of accused under section 313 Cr.P.C. was recorded in which he has denied the case of the prosecution in toto and has stated that he has been falsely implicated in the present case. He has stated that his wife Monika was having illicit relations with her earlier neighbour Ajay Pratap. Both of them were caught red handed and police of Indirapuram had registered FIR No.346/2011 in this regard. Thereafter, Monika left her matrimonial home and lodged a false case in CAW Cell. On the alleged date of incident i.e. 14.04.2011 a false case was registered against him. He regularly joined the investigation. Later on, he has falsely been implicated in the murder case of complainant Harbir Singh. He made several representations to Police Authorities regarding his false implication. Accused opted to lead evidence in his defence. Accused examined himself DW1, DW2 Chunni Lal Mishra, DW3 Vineet Rastogi, DW4 Smt. Harpyari, DW5 Sh. R.K.Singh, DW6 Sh. Surender Kumar and DW7 Sh. Israr Babu. 10 I have heard. Ld. Addl. PP for the State and Ld. Counsel for accused. Written submissions have also been filed on behalf of accused. I have meticulously gone through their submissions and material available on record.
Occurrence SC No.30/2011 State Vs. Sunil Kumar Page 7 of 53 11 Case of the prosecution is that on the day of incident, while complainant Harbir Singh was plying DTC Bus being its driver, accused along with his associates came before the bus and fired a gun shot upon the complainant Harbir Singh. It is also the case of prosecution that accused was not apprehended and later on it was revealed that he was arrested in a murder case of complainant. 12 To prove its case, prosecution has examined PW7 Ram Milan Yadav who deposed that he was working as a conductor in DTC since 1982 and at that time of incident, he was posted in Seema Puri DTC Bus Depot. On 14.04.2011, his duty hours were from 1.00 p.m. to 9.10 p.m. and he was working as a conductor on bus No. DL1PB 5189 plying on route No.542. Harbir Singh was the driver of said bus on that day. On that day at about 7.30 p.m., they started from Seema Puri Bus Deport for Sarai Kale Khan and at about 8.00 p.m., they reached bus stand EDM Mall. After dropping and taking passengers from bus stand of EDM Mall, they might have moved for 10 paces and reached near Competent Maruti Showroom near TATA Automobiles before Gazipur Flyover. Meanwhile, he heard noise of Dhamaka (blast). There might be 30 or 35 passengers in the bus at that time. After hearing the noise of blast, passengers started running SC No.30/2011 State Vs. Sunil Kumar Page 8 of 53 out from the bus through gate. PW7 also came down from the bus and reached near driver's side. Driver Harbir told PW7 that his soninlaw along with his brother came in white coloured car No. DL4C AL 0826 and his soninlaw had fired shot upon him, while his brother had hit the front glass with piece of brick. The front glass of driver's side was broken. Piece of brick was also lying near bonnet. Driver Harbir informed the police from his mobile phone. One fired cartridge and one live cartridge were found lying near right front wheel. Police reached there and his statement was recorded. Driver Harbir told the name of assailants as Sunil and Bittoo. Harbir had further told that there was another third boy with them. PW7 further deposed that as the front glass of the bus was damaged, he got written complaints in Complaint Book kept in DTC bus. He had deposited the Complaint Book in DTC Depot, Seema Puri. The bus was seized by the Police Officers and was taken to Police Station. Later on, the officials of Seema Puri Bus Depot came to Police Station and they were discharged from investigation. Driver Harbir had also informed that matrimonial dispute was going on between his daughter and his son inlaw Sunil Kumar.
13 During cross examination, PW7 admitted that he had SC No.30/2011 State Vs. Sunil Kumar Page 9 of 53 not seen the vehicle No.DL4C AL 0826 and that he had not seen the assailant who came and attacked the bus. He further admitted that passengers got down and he had written in the Complaint Book. He further admitted that Police had not recorded statement of any other person except the driver in his presence. Statement of the driver was recorded in a separate room. He denied that site plan was not prepared in his presence. However, he stated that the site plan was prepared at the spot. He denied that he was not present at the spot. 14 The complaint made by the complainant Harbir Singh has been proved by his wife Smt. Babita (PW10). PW10 Smt. Babita has deposed that accused Sunil is her soninlaw, whereas deceased Harbir, complainant of the present case, was her husband. The relations between her daughter Monika and soninlaw accused Sunil were not cordial for which they had made a complaint in CAW Cell where accused abused her husband, a quarrel had taken place and she was beaten by accused on 30.03.2011. Accused used to threat her husband to withdraw the proceedings for which a complaint was made on 7.4.2011 in PS Seema Puri. She further deposed that on 14.04.2011, accused attempted to commit murder of her husband and later on 28.04.2011 her husband was murdered by accused. She stated SC No.30/2011 State Vs. Sunil Kumar Page 10 of 53 that she could identify the handwriting of her husband as she had seen writing and signing. She deposed that statement Ex.PW10/A, site plan Ex.PW1/DB, seizure memo of DTC Bus Ex.PW4/E, seizure memo of cartridge and shell Ex.PW4/B, seizure memo of glass pieces Ex.PW4/D, seizure memo of piece of brick Ex.PW4/C and sketch of live cartridge and empty shell Ex.PW4/E bore signatures of her husband.
15 The complaint/ statement made by the complainant Harbir Singh (who is now deceased) has been proved by his wife Babita (PW10) as Ex.PW10/A. In his statement Ex.PW10/A, the complainant had specifically stated to the police that on 14.04.2011 when he was plying DTC Bus, accused along with his brother Bittoo and another associate came in Tata Indigo Car No. DL4C AL 0826 and accused fired a gun shot upon him after Bittoo smashed the front glass of bus by throwing piece of brick.
16 PW17 SI Amarjeet Singh, Investigating Officer of the present case, has stated that on 14.04.2011 after receiving information of firing in the present case, he reached the spot where a DTC Bus No. DL1PB 5189 along with driver Harbir Singh, Conductor Ram Milan Yadav, ASI Bhagwat Dayal and Ct. Rakesh was found. He made SC No.30/2011 State Vs. Sunil Kumar Page 11 of 53 inquiry about the incident and recorded statement of driver Harbir Singh Ex.PW10/A. Statement Ex.PW10/A was recorded at the version of Harbir Singh, same was read over to him and then he put his signatures at point A admitting the same as correct. 17 The recording of statement of complainant Harbir Singh has also been corroborated by PW4 ASI Bhagwat Dayal and PW1 Ct. Rakesh Kumar. Both of these witnesses have stated that SI Amarjeet Singh recorded statement of driver Harbir Singh in their presence.
18 The making of complaint Ex.PW10/A by the complainant Harbir Singh who is now deceased, has duly been proved by his fellow conductor Ram Milan Yadav (PW7), his wife PW10 Smt. Babita, as well as by Investigating Officer SI Amarjeet Singh (PW17) and PW1 Ct. Rakesh Kumar and PW4 ASI Bhagwat Dayal. PW4 Ram Milan Yadav has stated that he was posted on the same bus on which complainant driver Harbir Singh was posted on day of incident and that statement of Harbir Singh was recorded by police in his presence. PW10 Smt. Babita, wife of the complainant, has identified the signatures and handwriting of her deceased husband in the complaint Ex.PW10/A. IO SI Amarjeet Singh (PW17) is the SC No.30/2011 State Vs. Sunil Kumar Page 12 of 53 author of statement Ex.PW10/A has stated that he recorded statement of driver Harbir Singh and its contents were read over to him who signed the same having admitted it to be correct. So, in my considered opinion, the prosecution has duly proved making of complaint Ex.PW10/A by complainant Harbir Singh in which he specifically stated that gun shot was fired upon him by accused Sunil Kumar. There is nothing to doubt the making of statement Ex.PW10/A inasmuch as its genuineness and authenticity has duly been established.
19 The contents of complaint Ex.PW10/A to the effect that accused Sunil Kumar fired gun shot on the day of incident upon the complainant Harbir Singh has also been corroborated by the conductor of the bus PW7 Ram Milan Yadav. PW7 specifically deposed that on 14.04.2011, he was posted as conductor on the same bus on which Harbir Singh was driver. When their bus reached near Competent Maruti Showroom, he heard a noise of blast and when he reached near driver's side, driver Harbir Singh told him that his sonin law along with his brother came in white coloured car No. DL4C AL 0826. Harbir also told that his soninlaw had fired shot upon him while his brother had hit the front glass of bus with a piece of brick. SC No.30/2011 State Vs. Sunil Kumar Page 13 of 53 Driver Harbir Singh told the name of assailants as Sunil (soninlaw) and Bittoo.
20 The testimony of PW7 Ram Milan Yadav has duly corroborated the contents of complaint Ex.PW10/A made by complainant Harbir Singh, now deceased. A joint reading of complaint Ex.PW10/A and the testimony of PW7 leaves no room for any doubt that it was accused Sunil who fired a gun shot upon driver Harbir Singh and made an attempt to commit his murder. 21 SI Amarjeet Singh (PW17) has stated that after recording statement of complainant Harbir Singh, he seized glass pieces from inside and outside the bus vide memo Ex.PW4/D; he also seized the piece of brick lying on gear box of bus vide memo Ex.PW4/C; he also stated that one live cartridge and one used cartridge were lying near the bus which were seized vide memo Ex.PW4/B after preparing their sketch Ex.PW4/A. 22 PW1 Ct. Rakesh Kumar has corroborated the testimony of SI Amarjeet Singh. PW1 stated that when he along with ASI Bhagwat Dayal, reached the spot, he found DTC Bus No. DL1PB 5189 stationed and its front glass was in broken condition. One piece of brick was lying inside the bus near driver's seat, whereas broken SC No.30/2011 State Vs. Sunil Kumar Page 14 of 53 glass pieces were lying inside and outside the bus. One live cartridge and one fired cartridge were also lying near the bus. All these articles were seized by the IO. ASI Bhagwat Dayal (PW4) has also corroborated the testimony of IO SI Amarjeet Singh (PW17) and PW1 Ct. Rakesh. He has identified his signatures on seizure memos. He identified the used cartridge as Ex.P1, tested cartridge as Ex.P2, piece of brick as Ex.P3 and glass pieces as Ex.P4 which were lifted by IO from the spot.
23 The seizure memos of glass pieces Ex.P4, brick piece Ex.P3 and cartridges Ex.P1 and Ex.P2 duly proves the case of prosecution that the front glass of bus in which the complainant and PW7 were deployed as driver and conductor respectively, was firstly smashed and gun shot was fired.
24 PW16 Sh. R.Suresh, Assistant Director, Ballistics, CFSL, Kolkata has stated that on receipt of letter dated 19.04.2011 from SHO Gazipur, he along with Sh. Sachin Tiwari and Ms.Aditi visited the spot and inspected the same. SI Amarjeet was also present. They had examined DTC Bus No. DL1PB 5189 parked in PS Gazipur and submitted their report Ex.PW16/A. Report Ex.PW16/A shows that broken glass pieces were found on the dash board in front of SC No.30/2011 State Vs. Sunil Kumar Page 15 of 53 steering and on floor of the bus. The report Ex.PW16/A further corroborates the case of prosecution that glass of the DTC bus was broken.
25 PW6 SI Naveen Kumar has stated that on 14.04.2011, he was posted as Crime Team Incharge, East District, Shakarpur, Delhi. On that day at about 9.30 p.m., he received a call through record room and he along with his team reached near Competent Maruti Suzuki Showroom, Gazipur Flyover, where SI Amarjeet Singh along with his subordinate staff and one DTC Bus No. DL1PB 5189 was found there. Front glass of the driver side of the bus was broken and broken pieces were lying scattered on the dash board as well as on the road. He inspected the scene of crime where one piece of brick was lying on the gear box of the bus, one live cartridge and one empty round were found near the front wheel of the bus and photographer had taken the photographs.
26 The testimony of PW6 SI Naveen Kumar also corroborates the case of prosecution that a gun shot was fired and front glass of the bus was broken which fact has been established as he stated that he found broken glass pieces and fired as well as live cartridge at the spot.
SC No.30/2011 State Vs. Sunil Kumar Page 16 of 53 27 Ld. defence counsel has argued that the complainant has not been examined in the present case, therefore, his statement/complaint Ex.PW10/A can not be proved and exhibited. In support of his contention, he has relied upon a judgment in case of Malay Kumar Ganguly vs. Sukumar Mukherjee and others AIR 2010 SC 1162 in which it was observed that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof can not be held to have been proved unless he is examined and subjected to cross examination.
28 Ld. Addl. PP for the State has argued that it is not possible to produce the complainant Harbir Singh in witness box as he had already been murdered by accused for which he was arrested in FIR No. 646/2011 PS Sahibabad. He has submitted that since the complainant has been murdered, the complaint has been proved by his wife PW10 Smt. Babita who has deposed that she had seen her deceased husband writing and signing. Even otherwise, contents of complaint Ex.PW10/A have been corroborated PW7 Ram Milan Yadav and IO SI Amarjeet Singh and other police officials. 29 PW17 SI Amarjeet Singh has deposed that on 30.04.2011, he received an information from PS Sahibabad that Harbir SC No.30/2011 State Vs. Sunil Kumar Page 17 of 53 Singh, complainant of the present case, had been murdered. He visited the house of accused but none could be found there. On 22.06.2011, he received information regarding arrest of accused Sunil by the police of PS Sahibabad in murder case of the complainant. On 23.06.2011, he went to PS Sahibabad and collected copy of disclosure statement of accused Ex.PW11/A and Ex.PW11/B. He moved the application before the Court. Accused was produced, he was interrogated and arrested. Disclosure statement Ex.PW17/B of accused was recorded and he was arrested vide memo Ex.PW17/C. Accused took the police party at the scene of crime and pointed out the spot vide pointing out memo Ex.PW17/E. 30 SI Avadhesh Pratap Singh(PW11) has stated that on 30.04.2011, he was posted in PS Sahibabad. On that day, case FIR No. Nil/2011 under section 302 IPC PS Seema Puri was sent to their PS. He had gone through the FIR and registered FIR No. 646/2011 under section 302 IPC. He produced the copy of FIR and disclosure statement of accused Sunil Kumar who was arrested in the said FIR. He proves the documents regarding said FIR Ex.PW11/A and Ex.PW11/B. 31 Ex.PW11/B is the disclosure statement of accused SC No.30/2011 State Vs. Sunil Kumar Page 18 of 53 Sunil in FIR No. 646/2011 PS Sahibabad in which he disclosed that he was having a dispute with his wife and her family members. His wife Monika had lodged a complaint against him in Women Cell where a quarrel had taken place on 30.03.2011. He was upset due to the same and made a plan to kill his father in law Harbir. He further disclosed that on 14.04.2011 at about 8.00 p.m., he along with his brother Bittoo and his associate Bittoo stopped the bus of his father in law by placing car No. DL4C AL 0826 opposite EDM Mall. The front glass of the bus was broken by throwing stone and a gun shot was fired with a view to kill him but he survived. A case was registered against him for the said incident. Accused also disclosed that on 28.04.2011, he along with his associate committed the murder of Harbir Singh. The disclosure statement Ex.PW17/B of accused in the present case was also recorded in which he admitted the commission of offence of the present case. He also disclosed that he had committed the murder of Harbir Singh for which he was arrested by UP Police. 32 The statement Ex.PW10/A of complainant Harbir Singh, who is now deceased to the effect that accused Sunil had made an attempt on his life by firing a gun shot at him has duly been established. Conductor Ram Milan Yadav(PW7) duly corroborates the SC No.30/2011 State Vs. Sunil Kumar Page 19 of 53 contents of statement Ex.PW10/A that Harbir Singh was posted as driver with him on the same bus. When he went to Harbir Singh after hearing a noise of blast, he was told that accused Sunil had fired a gun shot upon him. Making of statement Ex.PW10/A by Harbir Singh has also been corroborated by his wife Smt.Babita (PW10) who identified the signatures and handwriting of Harbir Singh on the same. From the testimony of PW17 SI Amarjeet Singh, PW1 Ct. Rakesh Kumar and PW4 ASI Bhagwat Dayal as discussed above, it has also been established that complainant Harbir Singh made statement Ex.PW10/A to the Police in which he specifically alleged that accused Sunil had fired a gun shot at him. Seizure memos of brick, broken glass pieces and of cartridges found at the spot also corroborate the case of prosecution. Therefore, accused can not get any help from the judgment of Malay Kumar Ganguly(supra) as the facts of the present case are distinguishable from facts of the present case. 33 Consequently, it is held that the prosecution has successfully established that on the day of incident, accused fired a gun shot on complainant Harbir Singh with a view to kill him. Intention & Knowledge 34 Intention and knowledge of a culprit to commit a SC No.30/2011 State Vs. Sunil Kumar Page 20 of 53 crime is to be gathered from the circumstances brought on record. In the judgment titled as State of M.P. Vs. Kashiram & Ors. 2009 AIR (SC) 1642, the Hon'ble Supreme Court has observed that whether there was intention to kill or knowledge that death will be caused, is a question of fact and would depend on the facts of a given case. The determinative question is intention or knowledge, as the case may be, and not the nature of injury.
35 In the present case, the intention and knowledge of the accused to commit the murder of complainant Harbir Singh has been established from the testimony of PW7 Ram Milan Yadav, conductor, who was deployed on the bus and was present at the spot at the time of incident. The contents of complaint Ex.PW10/A to the effect that accused Sunil Kumar fired gun shot on the day of incident upon the complainant Harbir Singh has duly been corroborated by the conductor of the bus PW7 Ram Milan Yadav. PW7 specifically deposed that on 14.04.2011, he was posted as conductor on the same bus on which Harbir Singh was driver. When their bus reached near Competent Maruti Showroom, he heard a noise of blast and when he reached near driver's side, driver Harbir Singh told him that his soninlaw along with his brother came in white coloured car No. DL4C AL 0826. SC No.30/2011 State Vs. Sunil Kumar Page 21 of 53 Harbir also told that his soninlaw had fired shot upon him while his brother had hit the front glass of bus with a piece of brick. Driver Harbir Singh told the name of assailants as Sunil( soninlaw) and Bittoo.
36 The intention and knowledge of the accused to commit the murder of complainant Harbir Singh is apparent from the fact that he was armed with a deadly weapon i.e. pistol and he fired a shot from same on the complainant Harbir Singh. The fired cartridge as well as one live cartridge were seized from the spot vide seizure memo Ex.PW4/B and their sketch Ex.PW4/A was prepared. 37 The acts committed by the accused i.e. firing a gun shot from the pistol has also been corroborated by the report of Ballistics Expert Ex.PW16/B. This report proves that the recovered live cartridge was successfully test fired and the shell recovered from the spot was the base portion of 12 bore cartridge. As per report Ex.PW16/B, both live cartridge as well as shell were ammunition as defined in Arms Act. So, the prosecution has successfully established that the accused intended to commit murder of the complainant Harbir Singh while firing gun shot at him and had knowledge that by firing a gun shot, it would definitely result into death of complainant. SC No.30/2011 State Vs. Sunil Kumar Page 22 of 53 Motive 38 The motive to eliminate the complainant by the accused brought on record by the prosecution is that accused was having grudge against the complainant as he got lodged a case against him in Crime against Women Cell. To prove the motive, prosecution has examined Monika, wife of accused and daughter of the complainant Harbir Singh.
39 In her testimony, Monika(PW12) has deposed that on 5.4.2009, she was married with accused Sunil. She deposed that after 2 months of her marriage, her father in law expired and thereafter accused and his family members started mentally and physically torturing her and beating her on pretext of bringing insufficient dowry and accused Sunil also used to pass comments on her. She gave birth to a female child on 27.12.2009. Accused and his family members became more offending and started torturing, beating and caused mental and physical cruelty upon her. Accused was not happy with birth of a female child. Once, accused poured kerosene oil on her and tried to set her afire but she somehow managed to save herself. After sometime, accused shifted to Vasundhara, Ghaziabad and gave beatings there also. On 27.02.2011, they again returned to Saraswati SC No.30/2011 State Vs. Sunil Kumar Page 23 of 53 Colony, Sahibabad. On 2.3.2011, accused did not marriage of her cousin. Accused got Ajay Pratap, neighbour of her parents and her god brother, arrested by the Police of Vasundhra when she was present at her matrimonial house. Accused wanted to level false allegations against her that she had illicit relations with Ajay Pratap. Accused forced her to take divorce. Accused conspired with his mother and brother to commit her murder which PW12 informed to her father. Her parents came to her matrimonial house where accused picked up quarrel with them. She somehow managed to flee along with her mother. Accused and his brother forcibly took her female child along with them. She informed the police. The police filed the case in CAW Cell,Nanakpura which was fixed for 30.03.2011 for calling the accused. On 30.03.2011, accused along with his aunt came there, abused her, her mother, assaulted her mother and also threatened her father. On 7.4.2011, again accused threatened her father to face dire consequences, if she complained in CAW Cell. She further stated that on 14.04.2011, accused along with his brother and one another associate assaulted her father in order to commit his murder at Gazipur. Thereafter, on 28.04.2011, her father left house to attend duty and he was murdered by accused on 30.04.2011. SC No.30/2011 State Vs. Sunil Kumar Page 24 of 53 40 In her cross examination, she stated to have told the police that she was beaten for bringing insufficient dowry. FIR was lodged against Ajay Pratap on 2.3.2011 and on that day, she went to PS along with her husband. The defence has failed to put any dent to the testimony of this witness despite lengthy cross examination. 41 As per testimony of PW12 Monika, daughter of complainant Harbir Singh, she was not having cordial relations with accused being husband and wife. As per her testimony, she was constantly beaten up and tortured by accused on account of insufficient dowry. She also stated that accused was suspecting her of having affair with Ajay Pratap Singh, neighbour of her parents and her god brother. She had lodged a complaint against accused in CAW Cell which offended the accused and he had even intimated her father and other family members in CAW Cell. She specifically stated that accused threatened to kill her father and thereafter on 14.04.2011, he made an attempt on the life of her father and even subsequently committed his murder on 30.04.2011. Thus from the testimony of PW12 Ms Monika, the prosecution has successfully proved the motive with accused to make an attempt to commit murder of complainant Harbir Singh.
SC No.30/2011 State Vs. Sunil Kumar Page 25 of 53 42 PW10 Smt. Babita, wife of complainant Harbir Singh, also corroborated that relations between her daughter Monika and her husband accused Sunil were not cordial. Smt. Babita stated that there used to be quarrel between her daughter and accused on the excuses like accused did not like her daughter; she was not good looking and giving of small car in dowry. Once her daughter was put to burns by pouring kerosene oil. Her daughter was not permitted to talk to them. Accused and his family members did not attend the marriage of daughter of her brother when they were invited. Accused called Ajay Pratap at his tenanted residence at Saraswati Vihar, Sahibabad. At that time, her daughter was not there. On 7.3.2011, her daughter Monika called her to be taken along otherwise she would be killed. PW10 along with her husband went to bring their daughter. At that time, quarrel took place. She brought back her daughter and grand daughter but thereafter accused and his brother forcibly took back her grand daughter. On 14.03.2011, they made complaint in CAW Cell and they were told to come on 30.03.2011. In the women Cell, accused abused her husband and her, a quarrel had taken place and she was given beatings. Accused used to threat her husband in the Depot to withdraw the proceedings. Her husband made the complaint on SC No.30/2011 State Vs. Sunil Kumar Page 26 of 53 7.4.2011 in PS Seema Puri. On 14.04.2011, accused attempted to commit murder of her husband and later on, on 28.04.2011, her husband was murdered by accused.
43 In her cross examination, she stated that she had stated to the police that accused did not like her daughter and demand of big car but the police had not recorded the same. She stated that her daughter was harassed and tortured on account of dowry. She denied that in CAW Cell a quarrel had taken place where she was abused and beaten up. She admitted that her husband deceased Harbir Singh had beaten the accused at CAW Cell. Subsequently, accused lodged complaint against her and her husband in Dwarka Court. On 14.04.2011, she was at her home when the incident of the present case had taken place. Her husband informed telephonically about the incident. Police recorded her statement after murder of her husband. She denied that they gave beatings to Monika for having illicit relations with Ajay Pratap. Monika and Ajay Pratap were like brother and sister. She made complaint against accused at PS Jafrabad on 8.3.2011.
44 From the testimony of PW10 Smt. Babita, wife of complainant Harbir Singh, also it has been established that relations SC No.30/2011 State Vs. Sunil Kumar Page 27 of 53 between accused and Monika were not cordial. Accused is the sonin law of PW10 Smt. Babita and she has specifically stated that accused used to pick up quarrel and beat her daughter Monika as he did not like her and also on account of insufficient dowry. She has also stated that accused bore a grudge against complainant Harbir Singh as a complaint against accused was made in CAW Cell and thereafter accused even threatened Harbir Singh at his work place to withdraw the said complaint. She has specifically stated that her deceased husband informed about the happening of incident on the date of incident itself and that later on he was murdered by accused. 45 It is a settled law that motive is not an essential ingredient in criminal cases, but even otherwise it is proved, it creates an additional link for bringing home the guilt of accused. In the present case, both PW10 and PW12 have stated that accused used to have grudge against complainant Harbir Singh as a complaint was lodged against accused in CAW Cell. They have also stated that accused even threatened the complainant to withdraw the complaint, else face the consequences. Thus the prosecution has duly established the motive behind commission of attempt to murder of the complainant by the accused.
SC No.30/2011 State Vs. Sunil Kumar Page 28 of 53 Offence U/s 25/27 Arms Act.
46 The accused has also been charged for possessing countrymade pistol and cartridges while attempting to commit the murder of complainant Harbir Singh which he used in firing at him. 47 The complaint/ statement Ex.PW10/A of complainant Harbir Singh has duly been exhibited and proved by the prosecution. In his complaint, he had mentioned that when his reached near EDM Mall, accused along with his brother and another associate in a car and fired a gun shot at him. The complainant of the present case has not been examined by the prosecution and the explanation for his non examination given is that he has already been murdered by accused for which a case vide FIR No. 646/2011 PS Sahibabad under section 302 was registered and accused Sunil has been chargesheeted for the same. 48 PW7 Ram Milan Yadav who was deputed as conductor on the bus at which complainant was also deputed, has deposed that he heard the noise of blast and he was told by driver Harbir that his soninlaw i.e. accused Sunil fired a gun shot at him. PW1 Ct. Rakesh Kumar and PW4 ASI Bhagwat Dayal who were the first police officials who reached at the spot have also deposed that they found one used cartridge and one live cartridge at the spot. Their SC No.30/2011 State Vs. Sunil Kumar Page 29 of 53 testimony has been duly corroborated by IO SI Amarjeet Singh (PW17) who deposed that he seized both the used as well as live cartridge from the spot vide memo Ex.PW4/B after preparing their sketchEx.PW4/A. Both the live cartridge as well as shell of used cartridge were examined by ballistic expert PW16 Sh. R.Suresh vide report Ex.PW16/B. 49 Report Ex.PW16/B shows that live cartridge was of 12 bore and a test fire was successfully conducted with the use of single barrel gun. The shell recovered from the spot was found to be base portion of standard 12 bore cartridge and as per this report, both live cartridge as well as base portion of cartridge were part of ammunition as defined in Arms Act.
50 So, from the statement Ex.PW10/A of complainant, testimony of above witnesses and report of ballistic expert, it has duly been established that accused Sunil was in possession of countrymade pistol and cartridges without any license or permit at the time of incident with which he fired a gun shot at complainant Harbir Singh. Defence 51 The defence taken by the accused is that there are material contradictions and variations in the statements of the SC No.30/2011 State Vs. Sunil Kumar Page 30 of 53 prosecution witnesses which go to the root of the matter and the accused is entitled for acquittal. Ld. Defence counsel has argued that there are contradictions with regard to time of sending the rukka and registration of the FIR. He has further pointed out that there are contradictions with regard to breaking of front glass of bus. He has submitted that PW1 Ct. Rakesh has stated that there was a hole in front glass of the bus, whereas ASI Bhagwat Dayal has stated that half of the front glass was broken, but PW16 R. Suresh has stated that during inspection, it was found that glass of the bus was completely broken. He has further argued that PW3 Ct. Sandeep has stated that he had taken 8 photographs of the spot but only 6 photographs and their negatives were placed on record. The IO was unable to tell how many photographs were taken. He has argued that there is no photographs of cartridges, broken glasses and piece of brick which creates doubt. On this proposition of law, Ld. Counsel for the accused has relied upon an authority reported as State of Orissa vs. Madhusudan Sahu & Ors. 2007 Cri. L.J. 440(Orissa High Court) in which it has been held that where there are glaring contradictions, omissions and improbabilities in evidence and conduct of injured and witnesses, extending benefit of doubt to accused is proper.
SC No.30/2011 State Vs. Sunil Kumar Page 31 of 53 52 So far as the contradictions as pointed out by ld defence counsel in the testimony of witnesses are concerned, it appears that there are a few contradictions in the testimony of witnesses but the same can not be said to be fatal or so material to discard the entire case of prosecution. I am not convinced with the arguments advanced inasmuch as firstly the contradictions so alleged have not been pointed out which go to the root of the matter and discredit the case set up by the prosecution. Secondly, in Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh, (2009) 11 SCC 588, it has been held that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety.
"Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is SC No.30/2011 State Vs. Sunil Kumar Page 32 of 53 sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be atuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. So far as contention regarding photographs is concerned, photographs placed on record clearly show that front glass of the driver's side of bus had been broken. The broken glass pieces have also been shown in the photographs placed on record. From the seizure memo Ex.PW4/B of the seizure of cartridges, seizure memo Ex.PW4/C of the seizure of brick piece and seizure memo Ex.PW4/B of the seizure of glass pieces, it has duly been established that fired cartridge and one live cartridge were found at the spot apart from brick piece with which front glass of the bus was broken. Witnesses PW1 Ct. Rakesh Kumar, PW4 ASI Bhagwat Dayal, PW17 SI Amarjeet Singh and PW16 R. Suresh have specifically deposed in their examination in chief that front glass of the driver seat of the bus was completely broken. So, there is no force in this contention of ld defence counsel and the judgment relied upon by him in case of State of Orissa vs. Madhusudan Sahu(supra) is not SC No.30/2011 State Vs. Sunil Kumar Page 33 of 53 applicable to the facts and circumstances of the present case.
53 It has been argued by ld defence counsel that there is delay in recording the statement of PW10 Smt.Babita, wife of the complainant and PW12 Monika, daughter of the complainant. He has argued that PW10 Babita has admitted that her statement was recorded by the police after the murder of her husband Harbir Singh after about one and half months, whereas IO(PW17) has stated that he did not remember when he recorded statement of Monika and Babita. He has further argued that though both these witnesses were very much available to the IO but their statements have been recorded after lapse of considerable period. In support of his contention, he has relied upon authorities in case of Maruti Rama Naik vs. State of Maharashtra ( 2003) 10 SCC 670 and Sonu Arora vs. State 2010(4) JCC 2614 in which it was observed that delay in recording statements of witnesses puts the Courts on guard to search for an explanation, if any. If the delay remains unexplained, there is a possibility of embellishment creeping in and a coloured or distorted version of the incident being introduced by the witness can prove to be fatal to the prosecution.
54 From the testimony of PW10 Smt. Babita, it is SC No.30/2011 State Vs. Sunil Kumar Page 34 of 53 apparent that her statement was recorded by the police after the murder of her husband who is the complainant of the present. Ld. Addl. PP for the state has submitted that similar is the position with regard to statement of Monika (PW12) made to the police. It is apparent that their statements were recorded by the police after a considerable period i.e. one and half months of the incident of the present case. The explanation offered by the prosecution for recording statements of these witnesses at such a belated stage is that firstly they are not the eye witnesses of the incident and secondly with a view to prove the motive of accused to commit the crime, their statements were recorded only when the murder of complainant Harbir Singh had taken place on 28.04.2011. The disclosure statement Ex.PW11/B made by accused in FIR No. 646/2011 PS Sahibabad shows that he confessed the commission of murder of Harbir Singh on 28.04.2011. So, the explanation given by the prosecution appears to be plausible that the need to record statements of PW10 ad PW10 arose only after commission of murder of Harbir Singh for which accused has been booked by police of PS Sahibabad. The delay, as explained, in my view does not discard the testimony of PW10 and PW12. Therefore, authorities in case of Maruti Rama Naik (supra) & Sonu Arora vs. SC No.30/2011 State Vs. Sunil Kumar Page 35 of 53 State (supra) render no assistance to the accused. 55 It has further been argued by ld defence counsel that the bus as well as glass pieces of the alleged broken glass of bus were examined by PW16 Sh. R.Suresh, CFSL Expert, who did not find any clue regarding firing. He also did not find any impact of bullet or gun shot residue on the glass pieces which falsifies the case of prosecution that any such incident of firing had taken place. In support of his contention, he has relied upon judgment in case of Ghurey Lal vs. State of Uttar Pradesh (2008) 10 SCC 450 in which it was observed that the ballistic expert is a disinterested, independent witness who has technical knowledge and experience. The Hon'ble Apex Court observed that since the report of ballistic expert did not support the case of prosecution, acquittal of the appellant on that count was held to be justified.
56 It is apparent from the report Ex.PW16/A of PW16 Sh. R.Suresh that no hole was found on the fixed back side glass of driver seat and no physical clue material was recovered relating to impact of bullet from the bus. As per his report Ex.PW16/C, no opinion could be given on the glass pieces whether it could be broken by bullet shot or otherwise due to insufficient data. But the fact SC No.30/2011 State Vs. Sunil Kumar Page 36 of 53 remains that PW7 Ram Milan Yadav, who was deputed as conductor on the said bus, has stated that he heard the sound of blast and when asked driver Harbir Singh, he was told that accused had fired a gun shot at him. PW1 Ct. Rakesh Kumar, PW4 ASI Bhagwat Dayal and PW17 SI Amarjeet Singh have also stated that they found one live cartridge and one fired cartridge at the spot which proves the case of prosecution that a gun shot was fired by accused. Hence, the judgment of Ghurey Lal's case (supra) is of no help to accused. 57 Ld. Counsel for the accused has argued that accused has examined himself as well as other witnesses in his defence which goes to prove his defence and entitles him for acquittal. He has also argued that defence witnesses also deserve equal treatment with those of the prosecution. To support his contention, he has relied upon authorities reported as Dudh Nath Pandey vs. State of Uttar Pradesh 1981 SCC (Crl) 379, Ajay Goswami vs. State 2011 (2) JCC 1279 and Nasir Sikander Shaikh vs. State of Maharashtra AIR 2005 SC 2533 wherein it has been held that defence witnesses are entitled to equal treatment with those of the prosecution and that Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. It was also observed that quite often they tell lies but so do the SC No.30/2011 State Vs. Sunil Kumar Page 37 of 53 prosecution witnesses. It was also observed that defence has only to probabilise the defence while the burden on prosecution is heavy to prove every ingredient of the offence.
58 Accused has also taken the defence that since his marriage with Monika, he was pressurized by Monika to live separately and for this reason a dispute was there. In his statement under section 315 Cr.P.C., accused stated that Monika was having affair with Ajay Pratap. Monika was having mobile number 9582567448, whereas Ajay Pratap was having mobile No. 9289404102. Monika used to receive calls/ vulgar SMSs from the mobile of Ajay Pratap. On 2.3.2011, he checked the mobile phone of Monika and found one SMS " mere husband thodi der main ghar se jaane wale hain, uske baad tum ghar par aajao" ( my husband is about to leave in a short while and thereafter you come to my house). Accused further stated that he informed the police of Indirapuram regarding SMS. Police reached his house and found his wife and Ajay Pratap in objectionable condition. An FIR No. 346/2011 Ex.DW1/ A was lodged in this regard. He has also stated that he was pressurized to withdraw the said case and later on implicated him in the present case falsely. He has proved the complaints made to Higher Authorities SC No.30/2011 State Vs. Sunil Kumar Page 38 of 53 as Ex.DW1/B to Ex.DW1/J. 59 DW4 Smt. Harpyari has stated that accused was married with Monika and their relations were normal initially. She used to talk to one Ajay Pratap and Sunil persuaded her not to talk to him. Monika did not like DW4, therefore, they started living separately. About 2 years and 2 months back, Sunil told that he caught Monika's boy friend Ajay through Police. Thereafter, Sunil brought his luggage to her house. Thereafter, parents of Monika visited their house and quarreled with them. Monika filed a dowry case against Sunil in CAW Cell where an attempt to commit murder of Sunil was made by associate of Babita. Amarjeet Singh, Purshottam and one another police official came and enquired about Sunil as his father in law lodged FIR against him. She showed the car given in the dowry. Photographs of the car were taken. Vehicle was already parked for the last about 15 days. She made complaint Ex.DW4/1 to SSP Ghaziabad against false implication of her son. 60 Accused has also relied upon the call details of mobile phone No. 7838766642 belonging to Monika and of Mobile No. 9999405066 belonging to Ajay Pratap. As per Ex.DW7/A and Ex.DW7/B, both these mobile phone numbers were issued in the name SC No.30/2011 State Vs. Sunil Kumar Page 39 of 53 of Ajay Pratap and Monika respectively. Call details of phone number of Monika is Ex.DW7/F, whereas call details of mobile number of Ajay Pratap is Ex. DW7/G and cell ID Chart is Ex.DW7/J. Perusal of call details Ex.DW7/F and Ex.DW7/G shows the exchange of SMSs and calls between these mobile phones. But exchange of messages and calls can not in any way proves illicit relations between the receiver and sender of messages and calls. PW10 Smt. Babita, mother of Monika, has specifically stated that Ajay Pratap was her neighbour and they were having family relations with them. They even attended the marriage of daughter of her brother. She specifically stated that Ajay Pratap and Monika were like brother and sister. Ms. Monika, PW12 has also denied that she was having any affair with Ajay Pratap. She has specifically stated that Ajay Pratap was like her brother and being neighbour of her parental house, they were having family relations with his family.
61 There is nothing on the record to say that there is any basis in the defence of accused that his wife Monika was having illicit relations with Ajay and for that he has been falsely implicated in the present case to withdraw FIR Ex.DW1/A. So far as FIR Ex.DW1/A is concerned, it is not mentioned therein that Monika and Ajay were SC No.30/2011 State Vs. Sunil Kumar Page 40 of 53 caught by the police in objectionable position as stated by accused Sunil Kumar in his statement under section 315 Cr.P.C. So, there is no substance in the defence of the accused that Monika and Ajay were having any affair.
62 Accused has also taken the defence that he was not present at the spot. Accused in his statement under section 315 Cr.P.C. has stated that he was doing a job and on 13.04.2011, he received a mail in his office that there would be a holiday on account of Ambedkar Jayanti on 14.04.2011. Accused has also examined Sh. Vinit Rastogi (DW3) Director, TMF India Pvt. Ltd. This witness deposed that accused Sunil joined their company as Sr. Accountant on 25.03.2011. He specifically stated that on 14.04.2011, the office was closed.
63 The incident of the present case had taken place on 14.04.2011. As per the admission of the accused himself that that day was a holiday in his office on account of Ambedkar Jayanti. DW3 Director of the company in which accused was employed at the relevant time has also stated that on 14.04.2011, office was closed. This admission of the accused himself and the testimony of DW3 go to prove that on 14.04.2011 i.e. day of incident, accused was not on his SC No.30/2011 State Vs. Sunil Kumar Page 41 of 53 duty, so the possibility of his presence at the place of incident cannot be ruled out.
64 The accused has also taken the defence that his car make TATA Indigo bearing No. DL4C AL 0826 was lying parked in a plot and had not gone out on the day of incident i.e. on 14.04.2011. In support of this defence, he has examined DW2 Sh. Chunni Lal Mishra who deposed that on 15.04.2011, he was going to take out his vehicle to go to market. He met police official Amarjeet Singh at the Gate who asked him at what time DW2 normally used to take out the vehicle. He replied that there was no fixed time but on 14.04.2011, he had taken out the vehicle at about 6.006.30 p.m. The plot where he used to park his vehicle was taken on rent and apart from his vehicle, two other vehicles were also being parked there. One vehicle i.e. TATA Indigo car bearing No. DL4C AL 0826 was lying parked in the said plot ahead of his car for the last number of days. He took out his vehicle and came back at bout 8.00 p.m. and the vehicle was still there in the same status. He further stated that vehicle could have been taken out while in the back position from the gate. 65 During cross examination by Ld. Addl PP, DW2 stated that he did not have any rent receipt/agreement for the plot. At SC No.30/2011 State Vs. Sunil Kumar Page 42 of 53 that time, 3 vehicles used to be parked there. The third vehicle was belonging to one Mr. Saxena but he did not recollect the number of said vehicle. He stated that he had been paying rent of Rs.800/ per month for parking his vehicle. He admitted that he was not to be present at the plot all the time/ throughout the day. He stated that he did not have good relations with accused and he used to park his vehicle under compelling circumstances.
66 The testimony of DW2 does not inspire any confidence of this Court inasmuch as it is peculiar to note that DW2 has not given the make and number of his vehicle as well as make and number of third vehicle which was allegedly being parked at the said plot. It is very strange that despite having strained relations with accused, DW2 remembered the make and number of vehicle of accused forgetting even the make and number of his own vehicle. Even otherwise, DW2 has not produced any rent receipt or agreement from which it could be inferred that the plot where vehicles were allegedly used to be parked had been taken on rent by him. Even as per admission of DW2, he was not to be present at the said plot throughout the day. He has even not given the name of the owner of the plot where vehicles were allegedly parked. Accused has also not SC No.30/2011 State Vs. Sunil Kumar Page 43 of 53 examined the owner of the plot to substantiate his defence that his car used to be parked there. More the reason, the complainant Harbir Singh in his complaint Ex.PW10/A, had given the number of the car used by the accused, which duly establishes the use of said car in the commission of crime.
67 I have gone through ratio of a landmark judgment in case of Sharad Biridhichand Sarda Versus State of Maharashtra 1984 AIR (SC) 1622 wherein it has been held that false plea taken in the defence leads to additional link. Relevant portion of the judgment reads as under : "It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1)various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2)the said circumstance point tot he guilt of the accused with reasonable definiteness, and (3)the circumstance is in proximity to the time and situation.
If these conditions are fulfilled only then a Court can SC No.30/2011 State Vs. Sunil Kumar Page 44 of 53 use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise."
68 Consequently, the defence taken by the accused as discussed above does not bear out from the facts and circumstances of the case and rather it is an additional circumstance as per the judgment of Hon'ble Supreme Court in Sharad Biridhichand Sarda Versus State of Maharashtra (supra). The accused has failed to probabilise his defence at all and the defence witnesses examined do not go to falsify the case of the prosecution. Thus the judgments in case of Dudh Nath Pandey (supra), Nasir Sikandar Shaikh(supra) and Ajay Goswami(supra) are of no help to the accused as he has failed to probabilise his defence.
Conclusion 69 The prosecution has successfully established on record beyond reasonable doubt that on the day of incident i.e. 14.04.2011, accused Sunil Kumar came in a car along with his brother Bittoo and another associate in front of the bus which was driven by complainant Harbir Singh. First, Bittoo thrown a brick on the due to which the front glass of the driver's side of the bus broken and then accused Sunil Kumar fired a gun shot from country made pistol. The SC No.30/2011 State Vs. Sunil Kumar Page 45 of 53 complainant Harbir Singh made complaint/statement Ex.PW10/A to the police in which he specifically named accused Sunil Kumar who was his soninlaw.
70 PW7 Ram Milan Yadav, who was deputed on the same bus on which the complainant was deputed as driver, has corroborated the contents of the complaint/statement Ex.PW10/A. PW7 has specifically deposed that at that time, he heard the noise of a blast and when he went to the driver Harbir Singh, he told that his son inlaw accused Sunil Kumar fired a gun shot at him. 71 The police officials who reached at the spot have also corroborated the fact that gun shot was fired at the complainant. PW1 Ct. Rakesh Kumar and PW4 ASI Bhagwat Dayal were the first police officials who reached at the spot. They have stated that at the spot they found a DTC bus stationed. They also found that front glass of the bus was broken, glass pieces were lying inside and outside the bus, one brick piece was lying inside the bus and two cartridges i.e. one fired and one live were lying near the bus. The investigating officer SI Amarjeet Singh who recorded the statement of the complainant Harbir Singh, has also corroborated that the statement was made before him and complainant signed on the same admitting its contents to be SC No.30/2011 State Vs. Sunil Kumar Page 46 of 53 correct. SI Amarjeet Singh has also stated that one live and one fired cartridge were lying at the spot apart from glass pieces and brick piece inside the bus.
72 PW10 Smt. Babita, wife of the complainant has proved the complaint/statement Ex.PW10/A as she had seen her husband/complainant Harbir Singh writing and signing. The complainant has not been produced in the witness box by the prosecution and the explanation given for his nonproduction is that he had already been murdered by accused for which he is facing a case bearing FIR No.646/2011, PS Sahibabad.
73 The motive to attempt to commit the murder of complainant by the accused brought on record by the prosecution is that the accused was having grudge against the complainant as a case in Crime against Women Cell was lodged against him. PW12 Smt. Monika, daughter of the complainant has specifically stated that she was being harassed and tortured by the accused and his family members, due to which she lodged a complaint with the police and police referred the matter to CAW Cell, where accused threatened the complainant with dire consequences and to kill him. The wife of the complainant, namely, Smt. Babita (PW10) has also deposed that SC No.30/2011 State Vs. Sunil Kumar Page 47 of 53 relations between her daughter Smt. Monika and accused were not cordial for which a complaint against accused was made in CAW Cell, where a quarrel had taken place. She specifically stated that accused threatened her deceased husband in the bus depot to withdraw the proceedings pending in CAW Cell. The prosecution has successfully established the motive with the accused for which an attempt was made by him to commit the murder of the complainant on the day of incident.
74 The prosecution has duly proved the intention and knowledge of the accused to cause the death of complainant Harbir Singh as it has duly been established that at the time of firing, he was carrying country made pistol and he fired a gun shot from it on the at the complainant. The fired cartridge along with live cartridge recovered from the spot, duly establishes that accused had intended to commit the murder of complainant and he had the knowledge that by firing a gun shot, it would result into his death.
75 The testimony of the witnesses and the seizure memo of the cartridges from the spot duly established that accused fired a gun shot at the complainant. The report of the ballistic expert corroborates the case of the prosecution that the cartridges found at the SC No.30/2011 State Vs. Sunil Kumar Page 48 of 53 spot were the ammunition and a successful test fire was conducted from the seized live cartridge. The contents of the complaint/ statement Ex.PW10/A made by complainant Harbir Singh have duly been proved from the testimony of PW7 Ram Milan Yadav and PW10 Smt. Babita, which has further been corroborated by PW1 Ct. Rakesh Kumar, PW4 ASI Bhagwat Dayal and PW17 SI Amarjeet Singh. It has duly been established that on the day of incident, accused was in possession of country made pistol and cartridges without any licence or permit and he used the same in firing at the complainant Harbir Singh.
76 Consequently, in view of above discussion, accused Sunil Kumar is hereby held guilty for the commission of offence punishable under Section 307/34 IPC as he attempted to commit the murder of complainant Harbir Singh and also for offence punishable under Section 25 & 27 of Arms Act as he was in possession of country made pistol and cartridges at the time of incident without any licence or permit and used the same while firing at complainant. Accused is convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 31.08.2013 District & Sessions Judge(East)
Karkardooma Courts, Delhi
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IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI.
SC No.30/2011 Unique Case ID No.02402R0295212011 FIR No.116/2011 Police Station Gazipur U/s 307/34 IPC and 25/27/54 Arms Act.
State Versus Sunil Kumar
S/o Daya Veer
R/o H.N.117, Saraswati Colony,
Village Sahibabad, Ghaziabad, UP.
ORDER ON SENTENCE
Vide my judgment dated 31.08.2013, convict Sunil Kumar has been convicted for the commission of offences punishable under Section 307 IPC & 25/27 Arms Act.
2 I have heard Ld. Addl. PP for the State as well as Ld counsel for convict on the point of sentence.
3 The learned Addl. PP for the State has argued that convict has been held guilty for attempting to commit murder of the complainant Harbir Singh. He has further argued that the convict has SC No.30/2011 State Vs. Sunil Kumar Page 50 of 53 destroyed the evidence by committing murder of complainant. The convict is facing trial for committing murder of the complainant of the present case in Uttar Pradesh. He has further submitted that the convict has also been held guilty for possessing prohibited arms and ammunitions and using the same in the present case. He has argued that the convict deserves no leniency and maximum punishment of ten years imprisonment as provided under the law may be awarded to him. 4 On the other hand, learned counsel for convict has submitted that the convict is a student of Chartered Accountancy and is pursuing the said course. He is having one minor daughter aged 3 years in his family apart from old aged mother of 70 years. There is no previous conviction against the convict in any other case. He has submitted that no injury was suffered by the complainant in the present case. The convict has already remained in custody for about 22 months. Ld. Counsel has prayed that a lenient view may be taken while awarding sentence to him.
5 So far as contention regarding destruction of evidence by the convict as contended by Ld. Addl PP is concerned, it is pertinent to mention that the convict was not charged in the present case for destruction of evidence. It is alleged against the convict that he is facing the trial in Uttar Pradesh Court for murder of the SC No.30/2011 State Vs. Sunil Kumar Page 51 of 53 complainant of the present case. The offence of the present case falls within the ambit of illustration (a) of section 307 IPC which is reproduced as under :
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. 6 In view of facts and circumstances of the present case, convict Sunil Kumar is sentenced as under :
(i)Convict Sunil Kumar is awarded five years rigorous imprisonment and fine of Rs.20,000/ for the offence punishable under Section 307 IPC. In default of payment of fine, convict shall further undergo SI for six months.
(ii)Convict Sunil Kumar is further awarded three years rigorous imprisonment and fine of Rs.10,000/ for the offence punishable under Section 25 Arms Act. In default of payment of fine, convict shall further undergo SI for three months.
(iii)Convict Sunil Kumar is further awarded three years rigorous imprisonment and fine of Rs.10,000/ for the offence punishable under Section 27 Arms Act. In default of payment of fine, convict shall further undergo SI for three months.
SC No.30/2011 State Vs. Sunil Kumar Page 52 of 53
7 All the sentences shall run concurrently. The convict shall be entitled for the benefit of Section 428 of Cr.P.C. Copy of the judgment and order on sentence be given free of cost to the convict.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 04.09.2013 District & Sessions Judge(East)
Karkardooma Courts : Delhi
SC No.30/2011 State Vs. Sunil Kumar Page 53 of 53