Delhi District Court
State vs Balram Etc on 11 December, 2023
State V. Balram & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT) TIS
HAZARI COURTS, DELHI
CNR No.DLWT01-000756-2012
Sessions Case No. 57630/2016
FIR No. 72/2012
PS: Khyala
U/s 307/34 IPC & 25/27 Arms Act
State Vs. Balram & Anr.
a) Date of commission of offence : 04/04/2012
b) Name of the complainant : Sh. Rohit Passi
S/o Sh. Ram Kalp
c) Name of accused and address : (1) Balram
S/o Sh. Raju
R/o B-II/51,
Raghubir Nagar, Delhi.
(2) Neeraj
Sh. Kamal Narayan
R/o B-108, Gali No. 9, Vijay
Nagar, Mohan Garden,
Uttam Nagar, Delhi
Permanent address:
Vyash Mohalla, Town
Malakhera, PS Malakhera,
Distt. Alwar, Rajasthan.
d) Offence complained of : 307/34 IPC & 25/27 Arms Act
e) Plea of accused : Pleaded not guilty
f) Final order : CONVICTED
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2023.12.11
17:08:46
+0530
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State V. Balram & Anr.
Date of institution of the case : 03/07/2012
Date of committal : 14/03/2013
Date on which judgment was : 10/11/2023
reserved
Date of judgment : 11/12/2023
JUDGMENT
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on 04/04/2012 at about 10:00 PM at M-Block, near Barat Ghar, near Nala, Raghubir Nagar, Delhi within the jurisdiction of Police Station Khyala, both accused Balram and Neeraj in furtherance of their common intention had used country made pistols for causing injuries to Sh. Ram Kalp and fired upon Sh. Ram Kalp with country made pistol with such intention or knowledge and under such circumstances knowingly that by such act, both accused had caused the death of Sh. Ram Kalp and both accused would have been guilty of murder. It is also the case of the prosecution that on the aforesaid time, date and place, accused Balram was found in possession of aforesaid country made pistol with cartridge and he was carrying the same without any permit or license. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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REGISTRATION OF FIR, INVESTIGATION AND CHARGE-
SHEET
2. In the present case, on the complaint of the complainant Sh. Rohit Passi, FIR bearing No.72/2012, Police Station Khyala U/s. 307/34 IPC & 27/54/59 Arms Act was got registered by the Police of Police Station Khyala. After registration of the FIR, the matter was investigated by the police and on completion of the investigation, the present charge-sheet was submitted in the Court of Ld. MM on 03/07/2012 for trial of the accused persons Balram and Neeraj.
COGNIZANCE
3. Cognizance of the offence was taken by the Ld. MM vide order dated 03/07/2012.
SUPPLY OF COPIES AND COMMITTAL
4. Copies of the charge-sheet were supplied to both accused Balram and Neeraj in compliance of section 207 Cr.P.C. Thereafter, vide order dated 12/03/2013 passed by the Ld. MM, the present case was committed to the Court of Sessions. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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CHARGE
5. Finding a prima-facie case against both accused Balram and Neeraj, charge for the offence u/s. 307/34 IPC & 27/54/59 Arms Act was framed against both accused and charge for the offence u/s. 25/54/59 Arms Act was also framed against the accused Balram, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. Prosecution was then called upon to substantiate its case by examining its witnesses. The prosecution in support of its case had examined 20 witnesses. The prosecution had examined the following witnesses:-
(1) PW-1 Sh. Ram Kalp
(2) PW-2 Ct. Vijender Singh
(3) PW-3 Sh. Rohit Passi
(4) PW-4 SI Gyan Singh
(5) PW-5 HC Raj Kumar
(6) PW-6 Ct. Manbeer Kajla
(7) PW-7 Ct. Sanjeev Kumar Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2023.12.11
17:09:30
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State V. Balram & Anr.
(8) PW-8 Ct. Mohit Kumar
(9) PW-9 Dr. Rather Basit Nazir
(10) PW-10 ASI Devender Kumar
(11) PW-11 Ct. Sanjay
(12) PW-12 Sh. Santoshi Lal, Record Clerk, Transport Authority, Sarai Kale Khan, Delhi (13) PW-13 SI Arvind (14) PW-14 Inspector Surya Prakash (15) PW-15 Dr. Sumit Tehlan (16) PW-16 Ct. Bijender (17) PW-17 SI Ranveer Singh (18) PW-18 Sh. V.R. Anand, Assistant Director (Ballistic) FSL Rohini, Delhi (19) PW-19 Sh. Ved Prakash Surya, Addl. DCP (20) PW-20 HC Ram Avtar DOCUMENTARY EVIDENCE RELIED UPON BY THE PROSECUTION
7. (1) PCR form Ex.PW-2/A Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(2) Statement of complainant Rohit Passi Ex.PW-3/A (3) Site plan Ex.PW-3/B (4) Seizure memo of pistol/desi katta containing one empty cartridge Ex.PW-3/C (5) Sketch of pistol/ katta and empty cartridge Ex.PW-3/D (6) Seizure memo of motorcycle Ex.PW-3/E (7) Seizure memo of Rehri Ex.PW-3/F (8) Arrest memo of accused Balram Ex.PW-3/G (9) Personal search memo of accused Balram Ex.PW-3/H (10) Disclosure statement of accused Balram Ex.PW-3/I (11) Seizure memo of piece of wood of rehri which was hit by the bullet Ex.PW-3/J (12) Disclosure statement dated 06/04/2012 of accused Neeraj Ex.PW-3/K (13) Report of In-charge, Mobile Crime Team Ex.PW-4/A (14) FIR Ex.PW-5/A (15) Endorsement on rukka Ex.PW-5/B (16) Certificate u/s 65-B Indian Evidence Act Ex.PW-5/C (17) DD No. 4A Ex.PW-5/D Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(18) MLC No.6214 of accused Balram Ex.PW-9/A. (19) Eight photographs of the spot Ex.PW-10/A1 to Ex.PW10/A8 (20) Negatives of eight photographs of the spot Ex.PW-10/B1 to Ex.PW10/B8 (21) Record of motorcycle bearing No.DL-6S-AF-4189 Ex.PW-12/A (22) Disclosure statement dated 05/04/2012 of accused Neeraj Ex.PW-14/A (23) Arrest memo of accused Neeraj Ex.PW-14/B (24) Personal search memo of accused Neeraj Ex.PW-14/C (25) Pointing out memo Ex.PW-14/D (26) FSL report dated 26/04/2013 Ex.PW-18/A (27) Sanction u/s. 39 Arms Act Ex.PW-19/A (28) Entry at serial no. 664 in register no.19 Ex.PW-20/A (29) Entry at serial no. 723 in register no.19 Ex.PW-20/B (30) Entry in roznamcha register Ex.PW-20/C (31) RC No. 94/21/12 Ex.PW-20/D (32) Entry regarding deposit of FSL result and case property in Digitally malkhana Ex.PW-20/E. signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Apart from aforesaid documentary evidence, the prosecution has also relied upon the other evidence (case property) i.e. pistol recovered from accused Balram Ex.P-1, empty cartridge Ex.P-2, rehri Ex.P-3 and piece of wood of rehri Ex.P-4.
8. TESTIMONIES OF PROSECUTION WITNESSES.
(i) PW-1 in his testimony had deposed that he was Rehri hawker by profession and used to park the same at the corner of Barat Ghar, M- Block, Raghubir Nagar, Delhi. On 04/04/2012, at about 10:00 PM, he was present at his Rehri of Chicken and in the meantime, accused Balram came at his Rehri and he took out pistol and put the same on his stomach and stated that you have refused to give him chicken and he then put the pistol on his temple and he stated that "Tere Pataka Phodu" and fired the same but he raised his hand and removed the hand of the accused from his temple, due to which, the fire goes in the air and hit the same on his Rehri. On hearing the same, public persons gathered there. One more person was with accused Balram and he had seen him first time in the area, who put the pistol on his son namely Rohit, who was also with him on Rehri and at that time, he was standing behind him and he saw that the pistol was put by that Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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accused near his temple. Public persons surrounded both the accused persons and they were trying to ran away from their motorcycle. He became so much afraid. In the meantime, two police officials also reached there. His son had called the police on 100 number. 4-5 other police officials also reached there. PCR police also reached there. Accused Balram was apprehended at the spot by the public persons and other had succeeded to ran away from there. The police officials took him, his son and Balram to police station. IO of the case interrogated him. Statement of his son Rohit Pasi was recorded by the IO and FIR was got lodged on his statement. Accused Balram was arrested by the police. Pistol was also recovered from the possession of accused Balram. Police had also seized his Rehri as well as empty case of bullet which was used by the accused, from the spot. The motorcycle of accused was also seized by the police. Public persons had also beaten accused Balram as he was abusing the public persons and threatening them to ran away from there. The motorcycle which was used by the accused persons was of black color, make Pulsar.
PW-1 was cross-examined by counsel for both accused.
(ii) PW-2 in his testimony had deposed that on 04/04/2012, he was Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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posted as constable / telephone operator at 100 number, PHQ, ITO, New Delhi and on that day, on receipt of message from Mobile No. 9313804178, he recorded the message Ex.PW-2/A as mentioned in the PCR form.
Thereafter, he conveyed the same message to the Console Operator for sending the same to concerned police station and the district as well as PCR.
PW-2 was not cross-examined by both accused despite opportunity.
(iii) PW-3, who is the complainant, in his testimony had deposed that on 04/04/2012, he alongwith his father were present at their Chicken Rehri at B-2 Chowk, Raghubir Nagar, near Barat Ghar and he was assisting his father. At about 10:00 PM, two boys came on their Rehri. One was accused Balram, who was well known to him prior to the incident as he had came several times on his rehri. Accused used to come to their Rehri and take the chicken free of cost and accused Balram used to threat them that if they would not provide him free of cost chicken, he will close their Rehri.
One time, he had also got brought the chicken through one person and he provided the same free of cost under the fear of Balram. Accused Balram Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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was B.C. of the area and was criminal in nature. One time, he had refused to provide him chicken free of cost. Therefore, on the abovesaid date and time, accused came alongwith one more accused to their chicken rehri. At that time, they were running chicken rehri. On the said date and time, accused Balram put the pistol on the temple of his father and other accused had also put his pistol on his temple. Both the accused persons had threatened them as to why they are not providing them free of cost chicken. His father replied that they are poor persons and cannot provide free of cost chicken to them on all times. On this, the accused who had put the pistol on him, stated "Bol Kaya Raha Hai, Goli Chala De". He came to know his name as Neeraj lateron. Accused Balram stated to his father "Bol Kaya Raha Hai, Teri Phirki Bana Doon". By stating so, accused Balram fired the gun shot on his father but his father had removed the hand of accused Balram in which he was having gun and due to which, the bullet hit the upper portion of the rehri and went in the air. On hearing the same, public persons started gathering there. Accused Neeraj fled away from there. Accused Balram was apprehended by the public persons and he was beaten by the public. In the meantime, two police persons came there and accused Balram was produced to them and pistol was also snatched from the hands of accused Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Balram. He had also called the police on 100 number. PCR police also reached there. IO also reached the spot. Accused was produced to the IO alongwith the recovered weapon. IO recorded his statement Ex.PW-3/A. IO got lodged the FIR and also inspected the spot and prepared the site plan Ex.PW-3/B. IO had also seized the pistol / desi katta containing one empty cartridge vide seizure memo Ex.PW-3/C. IO had also prepared the sketch of the pistol/katta and empty cartridge Ex.PW-3/D. Same was also kept in a cloth parcel and parcel was sealed by the IO. Accused persons had came at the spot on the motorcycle and same was also seized by the IO at the spot vide memo Ex.PW-3/E. His rehri was also seized by the IO vide memo Ex.PW-3/F. Accused Balram was arrested vide memo Ex.PW-3/G and his personal search was conducted vide memo Ex.PW-3/H. Accused Balram had also made his disclosure statement Ex.PW-3/I. IO had also seized the piece of wood of rehri which hit the bullet through seizure memo Ex.PW-3/J. On the next day, accused Neeraj was arrested by the police and he was called at the police station and he identified accused Neeraj and accused Neeraj made his disclosure statement Ex.PW-3/K to the IO in his presence.
PW-3 was cross-examined by counsel for both accused. PW-3 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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was also re-examined by Additional PP for the State and thereafter, PW-3 was again cross-examined by counsel for both accused.
(iv) PW-4 in his testimony had deposed that on 04/04/2012, he was posted at Mobile Crime Team West District. On the basis of message received from control room, he alongwith photographer and finger print expert went to the spot i.e. M-Block, Raghubir Nagar near Barat Ghar, Delhi. He had inspected the spot and the photographs were taken from various angles on his instruction as well as instruction of IO. One broken piece of wood was found at the spot and he handed over the same to the IO.
His report in that regard is Ex.PW-4/A. PW-4 was cross-examined by counsel for both accused.
(v) PW-5, who was the duty officer, in his testimony had deposed that on 05/04/2012 he was posted at P.S. Khyala and was working as duty officer. He had received rukka through Ct. Mohit sent by ASI Chhat Ram and on the basis of rukka, he got registered present FIR Ex.PW-5/A through computer operator. His endorsement on rukka is Ex.PW-5/B and Certificate u/s 65(B) is Ex.PW-5/C. He had also recorded DD No. 4 A Ex.PW-5/D. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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PW-5 was cross-examined by counsel for both accused.
(vi) PW-6 in his testimony had deposed that on 05/04/2012, he joined the investigation with SI Surya Prakash and ASI Chhatram in this case. On that day, accused Balram, who was in custody of the IO, was produced before Ld. Duty MM at Tis Hazari Court where SI Surya Prakash moved application for obtaining PC remand for accused and the same was allowed by Ld. Duty MM and one day PC remand was granted. IO had recorded his statement in this regard. On 06/04/2012, he again joined the investigation with ASI Chhatram in this case and on that day, accused Balram and Neeraj were produced in the court of Ld. Duty MM and thereafter, they were sent to J/C. PW-6 was not cross-examined by both accused despite opportunity.
(vii) PW-7 in his testimony had deposed that on 04/04/2012, he alongwith Ct. Bijender were on patrolling duty and at about 10:00 pm, when they were present in the Ambedkar Market, they heard some noise from the side of Nala and thereafter, they reached there and found that one Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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person was caught hold by the public persons including complainant Rohit Passi. During inquiry, the name of the said person was revealed by the public persons as Balram. Accused Balram was also known to them as he was BC of Police Station Khyala and he was also wanted in case FIR No. 60/12, PS Khyala. In the meantime, ASI Chhatram also reached at the spot and they handed over accused Balram to him in the presence of complainant. Accused was carrying country made pistol in his hand when he was apprehended by the public persons and same was also in his hand when they reached there. The Katta was also handed over to IO. As accused was beaten by the public persons and having some injuries on his person, he was taken to DDU hospital by Constable Bijender. After his medical examination, accused was brought to the spot by Ct. Bijender where he was arrested by the IO in this case and his personal search was also taken by the IO. Proceeding regarding the seizure of country made pistol was done at the spot though they were standing at a small distance as the accused was in his custody at that time. Thereafter, they came back to police station and IO recorded his statement in that regard.
PW-7 was cross-examined by counsel for the accused Balram.
PW-7 was not cross-examined by counsel for the accused Neeraj despite Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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opportunity.
(viii) PW-8 in his testimony had deposed that on 04/04/2012, he was on emergency duty alongwith ASI Chhat Ram and at around 10:15 pm, ASI Chhat Ram received a PCR call and upon receiving the said information, he alongwith ASI Chhat Ram went to B-2, Chowk M-block, near Barat Ghar and Nala, where public persons were gathered and complainant Rohit Passi met them and produced accused Balram to ASI Chhat Ram. Accused Balram was already beaten by the public persons. Ct. Sanjeev and Ct.
Bijender were also present there and they were informed that fire was made by accused Balram and at that time his associate Neeraj was also there but after fire made by Balram, he fled away from the spot. One country made pistol and fired cartridge were also handed over to the ASI Chhat Ram. On the directions of the ASI Chhat Ram, Ct. Bijender took the accused Balram to DDU hospital for medical examination. After the medical examination, Ct. Bijender brought the accused Balram to the spot. ASI Chhat Ram prepared the sketch of country made pistol and fired cartridge and measured it. ASI Chhat Ram prepared the pullanda and sealed with the seal of AKS. Pullanda of the country made pistol and fired cartridge was taken into Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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possession. ASI Chhat Ram recorded the statement of Rohit Passi and prepared the rukka and gave the same to him for registration of the case. He took the said rukka to PS where he got registered the case. After registration of the case, he returned at the spot with copy of the FIR and rukka and handed over the same to ASI Chhat Ram. IO arrested the accused Balram and conducted his personal search. IO seized one motor cycle bearing registration no. 3879 make Pulser but he does not remember the initial registration number. IO had also seized one rehdi and one piece of wood after preparing the pullanda of the same. The pullanda of the said wooden piece was also sealed with the seal of KS. After that they returned from the spot to PS. PW-8 was cross-examined by counsel for the accused Balram. PW-8 was not cross-examined by counsel for the accused Neeraj despite opportunity.
(ix) PW-9 in his testimony had deposed that on 05/04/2012, he was working as Emergency Medical Officer with DDU hospital, Delhi and on that day, one patient Balram was brought by the police with alleged history of physical assault by public. The said patient Balram was examined by Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Dr. Sumit Tehlan under his supervision. Patient was found under the influence of alcohol and level of breath alcohol concentration was found 105.7 mg/100 ml. The said patient was examined vide MLC no. 6214 Ex.PW-9/A by Dr. Sumit Tehlan. After the primary treatment, patient was discharged and police official took him.
PW-9 was not cross-examined by counsel for both accused despite opportunity.
(x) PW-10 in his testimony had deposed that on 04/04/2012, he was posted at Crime Team of West District and on that day, SI Gyan Singh In-Charge mobile crime team had received message from control room to reach B-II, near Bharat Ghar. He alongwith SI Gyan Singh and ASI Dharambir, Finger Print Proficient reached at the spot. On reaching there, ASI Chhat Ram of PS Khyala and one constable were found present. One hand cart was also lying there. There was bullet mark on the said hand cart. At the instance of ASI Chhat Ram, he had taken 10 photographs Ex. PW-10/A1 to A8 at the spot and negatives of the same are Ex.PW-10/B1 to B8.
PW-10 was cross-examined by counsel for both accused.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(xi) PW-11 in his testimony had deposed on 18/04/2012, on the directions of IO ASI Chhat Ram, he collected three sealed parcels sealed with the seal of AKS, FSL Form and sample seal from MHC(M) to deposit the same at FSL Rohini. He collected those parcels vide RC No. 68/21/12 but those parcels were not accepted in FSL office and raised some objections. Therefore, he returned back and handed over those parcels to MHC(M) PS Khyala. So long the parcels were remained in his custody, the same were not tampered with by any person in any manner.
PW-11 was not cross-examined by counsel for both accused despite opportunity.
(xii) PW-12 in his testimony had deposed that as per record Ex. PW-12/A, motorcycle bearing no. DL 6-SAF-4189 was in the name of Harish Nathwani S/o Sh. Mannu Nathwani, R/o H. No. 2163, SF Guru Arjun Dev Nagar, Shadi Pur, New Delhi.
PW-12 was not cross-examined by counsel for both accused despite opportunity.
(xiii) PW-13 in his testimony had deposed that on 07/06/2012, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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investigation of the present case was assigned to him and he sent one reminder to FSL, Rohini. Since the accused persons were in JC and investigation has already been completed, he prepared the charge-sheet and filed the same before the Court through SHO concerned.
PW-13 was also not cross-examined by counsel for both accused despite opportunity.
(xiv) PW-14 in his testimony had deposed that on 05/04/2012, investigation of the present case was assigned to him. Accused Balram was already arrested by the previous IO ASI Chatt Ram. Accused was produced before the court and he got one day PC remand of accused Balram.
Thereafter, he alongwith Ct. Jaswant Singh and Ct. Manvir took the accused Balram in the area of PS Khyala in search of his associate Neeraj. While they were searching the accused Neeraj and in that process, they reached opposite main gate Keshav Pur Mandi at about 7:35 PM and on the pointing of accused Balram, they apprehended accused Neeraj. He interrogated accused Neeraj and took his casual search and one loaded country made pistol was recovered from the right side dub of accused Neeraj. He unloaded the said country made pistol. One live cartridge was found in the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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said pistol. He got lodged the FIR No. 73/12 in the PS Khyala regarding the recovery of said country made pistol and cartridge and further investigation of the case FIR No.73/12 was assigned to ASI Bal Kishan. He handed over the sealed pullanda of country made pistol, cartridge and documents prepared by him to ASI Bal Kishan. He interrogated the accused in detail and recorded the disclosure statement Ex.PW-14/A of accused Neeraj and arrested the accused Neeraj vide arrest memo Ex.PW-14/B and conducted his personal search vide personal search memo Ex.PW-14/C. Accused Neeraj led them at the spot of the present case i.e. M-Block, Near Barat Ghar, Raghuvir Nagar and he prepared the pointing out memo Ex.PW-14/D. Thereafter, he handed over the custody of accused to the IO of case FIR No. 73/12 PS Khyala. They alongwith accused Balram came to PS Khyala. Since the further investigation of the present case was again assigned to ASI Chatt Ram, he handed over the custody of accused Balram and case file to the ASI Chatt Ram. During the investigation, he recorded the statement of Ct. Manvir.
PW-14 was cross-examined by counsel for both accused.
(xv) PW-15 in his testimony had deposed that on 05/04/2012, he
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was working as Junior Resident at DDU hospital New Delhi. On that day, injured Balram was brought in the casualty of the hospital with alleged history of beaten by public as told by himself. He medically examined injured Balram and found abrasion over left side forehead. The injuries were blunt and simple. He provided treatment to him and prepared his MLC Ex. PW-9/A. PW-15 was not cross-examined by counsel for both accused despite opportunity.
(xvi) PW-16 in his testimony had deposed the same facts as deposed by PW-7 in his testimony.
PW-16 was cross-examined by counsel for both accused. (xvii) PW-17 in his testimony had deposed that on 06/04/2012, he was posted at P.S. Ranjit Nagar as Sub-Inspector. On that day, he received information vide DD No.53-B that a motorcycle having registration No. DL-6SAF-4189, which was the case property in FIR No.52/12 u/s 379 IPC P.S. Ranjit Nagar had been recovered by the police officials of P.S. Khyala in case FIR No.72/12 u/s 307/34 IPC & 25/27/54/59 Arms Act P.S. Khyala.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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He had collected relevant documents from the concerned IO. Accused Neeraj and Balram were formally arrested by the permission of Ld. MM. Case property i.e. aforesaid motorcycle was got transferred from P.S. Khyala through Road Certificate. During the investigation of case FIR No. 52/2012, PS Ranjit Nagar, he had recorded the statement of witnesses and upon completion of investigation, filed the charge-sheet.
PW-17 was not cross-examined by both accused despite opportunity.
(xviii) PW-18 in his testimony had deposed that on 14/05/2012, three sealed parcels sealed with the seal of AKS were received in the office of FSL and the same were marked to him for examination. The seals on the parcels were intact and as per the specimen seal. On opening the parcel no.
1, one country-made pistol 12 bore was taken out and marked as F1 by him. On opening the parcel no. 2, one 12 bore cartridge case was taken out and marked as EC1 by him. On opening the parcel no. 3, one piece of wood was taken out and marked as WP1 by him. He examined the aforesaid exhibits and found that the country-made pistol was in working order and test fire was conducted successfully. The cartridge case EC1 was the fired empty Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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cartridge. Two 12 bore cartridges taken from the laboratory stock were test fired through the country-made pistol and test fired cartridges were marked as TC1 and TC2. The individual characteristic of firing pin marks and breech face marks present on EC1 and on TC1 and TC2 were compared under comparison microscope and were found identical. Hence, the cartridge case EC1 had been fired through the country- made pistol 12 bore marked as F1. The swabs taken from the piece of wood were analyzed in the atomic absorption spectrophotometer for the detection of gun shot residue particle. As a result, the element lead, antimony and copper were detected in the swab. The exhibits F1/EC1 were firearm/ammunition, as defined in the Arms Act 1959. All the exhibits were sealed with the seal of VRA FSL Delhi after examination. His detailed report dated 26/04/2013 is Ex. PW-18/A. PW-18 was cross-examined by counsel for both accused. (xix) PW-19 in his testimony had deposed that on 21/09/2013 he was posted as Addl. DCP, West District, New Delhi. On that day, he had perused the police papers placed before him i.e. the FSL report, copy of charge-
sheet, statements u/s 161 Cr.P.C of witnesses and the copies of other Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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documents relied upon by the police including the seizure memo. He satisfied himself that on 05/04/2012, accused Balram had in his exclusive and conscious possession of one country made pistol 12 bore and one 12 bore cartridge case without any licence in contravention of Section 3 of Arms Act and he also satisfied that accused thereby committed an offence u/s 25 of Arms Act vide FIR of present case. Accordingly, in pursuance of Section 39 of Arms Act, he accorded sanction for the prosecution of accused Balram u/s 25 Arms Act by the Court of competent jurisdiction. The sanction order dated 21/09/2013 is Ex. PW-19/A. PW-19 was cross-examined by counsel for both accused. (xx) PW-20 in his testimony had deposed that on 05/04/2012, he was posted at PS Khyala as MHC (M). On that day, ASI Chhatram had deposited case properties of the present case i.e., one country made katta with empty cartridge which were lying in two sealed pullandas and sealed with the seal of AKS. On the same day, an another sealed pullanda sealed with the seal of AKS containing wooden piece, one rehri (thela) and one motorcycle bearing no. DL5S-HK 3879 Pulsar Bajaj of black colour were also deposited by ASI Chhatram in the malkhana. He made entry in this Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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regard at serial no. 664 in register no. 19 Ex.PW-20/A. On 11/05/2012, ASI Chhatram had deposited five live cartridges of 12 bore in the malkhana and the entry of the same was made by him in register no. 19 at serial no. 723 Ex. PW-20/B. On 14/05/2012, the case property i.e., sealed pullanda containing desi katta, fired cartridge, wooden piece, sample seal and five live cartridges were sent to FSL, Rohini through ASI Chhatram vide RC No. 94/21/12. The relevant entry Ex. PW-20/C was made by him in roznamcha register in this regard and RC no. 94/21/12 is Ex.PW-20/D. On 22/05/2013, the FSL result alongwith case property in a sealed condition was brought by Ct. Subhash and the case property was deposited in the malkhana by HC Kuldeep and the entry Ex.PW-20/E in this regard was made by HC Kuldeep. The case property remained intact and not tampered with in any manner till it remained in his custody.
PW-20 was cross-examined by counsel for both accused.
STATEMENT OF THE ACCUSED U/S 313 CR.P.C.
9. Separate statements of both accused were recorded u/s. 313 Cr.P.C. wherein they denied the allegations against them and rebutted the prosecution evidence against them and claimed that they are innocent and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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have been falsely implicated in this case. It was also stated that they have no connection with the commission of the offence of the present case. It was also stated that Ram Kalp used to put chicken rehri and also used to sell illicit liquor and the customers of the rehri used to tease the girls of the locality and all the residents of the locality used to object the said activities of Ram Kalp. It was also stated that they and other residents requested Ram Kalp for stopping the illegal activities and Ram Kalp in connivance with the police falsely implicated them in this case. It was also stated that they want to lead evidence in their defence.
DEFENCE EVIDENCE
10. In the present case, both accused have not led defence evidence. On 27/04/2023, it was submitted by counsel for both accused that accused persons do not wish to lead defence evidence. Joint statement of both accused was recorded in this regard. Vide order dated, 27/04/2023, Defence Evidence was closed.
FINAL ARGUMENTS
11. This Court heard the final arguments advanced by Ld. Addl. PP Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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for the State and Ld. Counsel for both accused and carefully perused the entire record including the testimonies on record.
During the course of final arguments, it was submitted by Addl. PP for the State that the prosecution witnesses have duly supported the case of the prosecution and from the testimonies of prosecution witnesses and the documentary as well as other evidence relied upon by the prosecution, the prosecution has been able to prove its case against both accused beyond reasonable doubt and both accused be convicted for the offences as mentioned in the charge. On the other hand, during the course of final arguments, it was submitted by counsel for both accused that both accused have been falsely implicated in the present case and there is no incriminating evidence on record against both accused and the prosecution has failed to prove its case against both accused beyond reasonable doubt and both accused be acquitted in the present case.
Counsel for both accused in support of his contentions has relied upon the following case laws:-
(1) Vasudev Vs. State of Madhya Pradesh (CRIMINAL APPEAL NO. 388/2021 decided by the Hon'ble Supreme Court of India on 01/02/2022) Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(2) Rahul Vs. State of Delhi (2022 LiveLaw (SC) 926) (3) Chhotu Kumar @ Chote Fauji Vs. State (Govt. of NCT of Delhi) {277 (2021) DLT 333} (4) State Vs. Akash {2020 (1) JCC 765} In order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the prosecution to prove its case in such a manner so as to bring it outside the pale of any reasonable doubt.
INGREDIENTS OF OFFENCE
12. In the present case, charge for the offence u/s. 307/34 IPC & 27/54/59 Arms Act was framed against both accused and charge for the offence u/s. 25/54/59 Arms Act was also framed against the accused Balram.
Section 307 IPC has prescribed the punishment for attempt to murder. The essential ingredients for the offence under section 307 IPC are as under:-
(i) that the death of a human being was attempted;
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(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
The essential ingredients for the offence under section 25/27 Arms Act required to be proved by the prosecution are as under:-
i) that both accused in furtherance of their common intention had used country made pistols for causing injuries to Sh. Ram Kalp.
ii) that the accused Balram was found in possession of country made pistol and cartridge.
iii) that accused Balram was carrying the country made pistol and cartridge without any permit or licence.
13. It was held by Hon'ble Supreme Court of India in case titled as "Sharad Birdhi Chand Sarda Vs. State of Maharashtra", {AIR 1984 SC 1622} that following conditions must be fulfilled for successful Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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prosecution of the accused:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
14. Law relating to appreciation of evidence of the witnesses has been elaborated by the Hon'ble High Court of Delhi in case titled as "Satish @ Bombaiya Vs. State", { 44 (1991) DLT 561} and it was held that :-
"........ While appreciating the evidence of a witness approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the Court to scrutinise the evidence more Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
15. Law relating to appreciation of ocular evidence has been elaborated by the Hon'ble High Court of Delhi in case titled as " Akbar & Anr. Vs. State", { 2009 Cri. L.J. 4199 } and it was held that :-
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"49. The appreciation of ocular evidence is a Herculean task. There is no fixed or strait-jacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under:-
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
16. FINDINGS
(i) Testimonies of complainant and victim:-
PW-1 is the victim and PW-3 is the complainant/ eye-witness in the present case. PW-1 in his testimony and PW-3 in his examination-in-
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chief have categorically, elaborately and graphically described as to how the offence was committed by both accused at the relevant time, date and place.
PW-1 in his testimony had deposed that on 04/04/2012, at the relevant time and place, both accused came to his rehri and accused Balram took out pistol and put the same upon him and he fired with the pistol but he raised his hand and removed the hand of the accused and due to which, the fire/ bullet goes in the air and hit his rehri and on hearing the same, public persons gathered there. PW-1 also deposed that co-accused was also with the accused Balram and he put the pistol upon his son Rohit. PW-1 also deposed that public persons surrounded both the accused persons and accused Balram was apprehended at the spot and co-accused succeeded to ran way from there. PW-1 also deposed that the pistol was recovered from the possession of the accused Balram and police had also seized his rehri as well as empty case of bullet which was used by the accused.
PW-3 in his examination-in-chief had deposed that on 04/04/2012, at the relevant time and place, he was present with his father at their chicken rehri and accused Balram and Neeraj came to their rehri and accused Balram put the pistol upon his father and accused Neeraj put the pistol upon him and threatened them as to why they are not providing Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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chicken free of cost to them, to which his father replied that they are poor persons and they cannot provide chicken free of cost to them all times.
PW-3 also deposed that accused Balram fired the gun shot on his father but his father removed the hand of the accused Balram due to which the bullet hit the upper portion of the rehri and went in air. PW-3 also deposed that accused Neeraj fled away from there and accused Balram was apprehended by the public persons and in the meantime, two police persons came there and accused Balram was handed over to them with recovered weapon.
PW-1 in his testimony and PW-3 in his examination-in-chief have deposed almost same facts and their testimonies are corroborated with the testimony of each other. The testimonies of PW-1 and PW-3 are also corroborated with the testimonies of other prosecution witnesses and documentary evidence relied upon by the prosecution.
Complainant/PW-3 in his testimony had duly proved on record the complaint Ex.PW-3/A, on the basis of which, the present case FIR was got registered. The contents of complaint Ex.PW-3/A and FIR Ex.PW-5/A have been duly proved on record and corroborated by PW-1, PW-3 and other concerned prosecution witnesses.
There is nothing on the record to disbelieve the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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testimonies/versions of victim/PW-1 and complainant/eye-witness PW-3. In the cross-examination of PW-1, no material contradiction/ inconsistency has been surfaced or pointed out except some minor ones which are but natural.
Evidentiary value of cross-examination of PW-3 shall be discussed later-on.
(ii) Identity of accused persons PW-1, PW-6, PW-14 and PW-17 during the course of their testimonies had duly identified both accused persons. PW-3 during the course of his testimony had duly identified the accused Balram and during the course of testimony of PW-3 identity of the accused Neeraj was not disputed by his counsel. PW-7, PW-8 and PW-16 during the course of their testimonies had duly identified the accused Balram. Both accused/counsel had not put any question in the cross-examination of aforesaid witnesses to dispute the identity of both accused. Hence, identity of both accused is duly established by the prosecution.
(iii) Presence of the accused persons PW-1 in his testimony and PW-3 in his examination-in-chief have specifically deposed that both accused were present at the place of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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incident at the relevant time and date. Both accused/counsel had not put any question in the cross-examination of the PW-1 and PW-3 and other concerned prosecution witnesses to dispute the presence of both accused at the place of incident at the relevant time and date. Hence, presence of both accused at the place of the incident at the relevant time and date is duly established by the prosecution.
(iv) Identity of the case property/weapon of offence It is the case of the prosecution that weapon of offence i.e. country made pistol and cartridge were recovered from the accused Balram.
During the course of examination of PW-1, PW-3 and PW-18, case property i.e. pistol Ex.P-1, cartridge Ex.P-2, rehri Ex.P-3 and piece of wood Ex.P-4 were produced. During the course of examination, PW-1, PW-3 and PW-18 had duly identified the case property/weapon of offence i.e. pistol Ex.P-1 and cartridge Ex.P-2. Both accused/counsel had not put any question in the cross-examination of the PW-1, PW-3 and PW-18 to dispute the identity of the aforesaid case property/weapon of offence. Sketch of pistol and cartridge Ex.PW-3/D and seizure memo of pistol and cartridge Ex.PW-3/C have been duly proved on record by the prosecution. Hence, identity of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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weapon of offence i.e. pistol Ex.P-1 and cartridge Ex.P-2 has been duly established/proved by the prosecution.
(v) Forensic witness PW-18 is the forensic witness, who examined the exhibits and prepared the detailed FSL report Ex.PW-18/A. PW-18 in his testimony has proved on record the detailed FSL report Ex.PW-18/A. PW-18 in his testimony had deposed that he had examined the exhibits and found that the country made pistol was in working order and test fire was conducted successfully. PW-18 had also deposed that exhibits F1/EC1 were fire arm/ammunition as defined in the Arms Act 1959.
FSL report Ex.PW-18/A regarding aforesaid exhibits has been duly proved on record by PW-18. There is nothing on the record to disbelieve the testimony/ version/ opinion of PW-18. In the cross- examination of PW-18, the counsel for both accused had not put any question in respect of credibility of the FSL report Ex.PW-18/A. Even otherwise, the FSL result is per se admissible u/s. 293 Cr.P.C.
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(vi) Sanction u/s 39 Arms Act In the present case, charge for the offence u/s. 307/34 IPC & 27/54/59 Arms Act was framed against both accused and charge for the offence u/s. 25/54/59 Arms Act was also framed against the accused Balram.
PW-19 is the then Addl. DCP who had accorded sanction u/s 39 Arms Act for the prosecution of accused Balram u/s 25 Arms Act. Sanction u/s 39 Arms Act Ex.PW-19/A has been duly proved on record by PW-19.
There is nothing on the record to disbelieve the testimony/ version of PW-19. In the cross-examination of PW-19, the counsel for both accused had not put any question to the credibility of the sanction u/s 39 Arms Act Ex.PW-19/A.
(vii) Testimonies of police witnesses In the present case, PW-2, PW-4, PW-5, PW-6, PW-7, PW-8, PW-10, PW-11, PW-13, PW-14, PW-16, PW-17, PW-19 and PW-20 are the police officials. From the testimonies of the aforesaid police witnesses, it is evident that investigation conducted including the documents prepared in the present case during the course of investigation have been substantially Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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proved by the aforesaid police witnesses.
PW-13 and PW-14 are the IOs in the present case, who deposed regarding investigation conducted by them and they duly proved on record the documents relating to the investigation conducted by them.
(viii) Contentions of counsel for both accused
(a) During the course of final arguments, it was submitted by counsel for both accused that PW-3 is the complainant and main witness of the prosecution and PW-3 in his cross-examination had not supported the case of the prosecution and turned hostile and in view of the same, benefit of doubt should be given to both accused. It was also submitted by counsel for both accused that PW-3 in his cross-examination had deposed that accused persons have not committed any offence in his presence on 04/04/2012 and on 30/10/2013, he had deposed in the Court as per instructions of the police officials and no katta was recovered from accused Balram in his presence.
It is well settled law that evidence of a hostile witness cannot be discarded as a whole and relevant parts thereof which are admissible in law can be used by the prosecution or the defence. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Law relating to hostile witness has been elaborated by the Hon'ble Supreme Court of India in case titled as " Rajesh Yadav & Anr Vs. State of UP", {Criminal Appeal No.339-340/2014 decided on 04/02/2022} and it was held that :-
"The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
It was held by Hon'ble Supreme Court of India in case titled as " Neeraj Dutta Vs. State (Govt. of NCT of Delhi)", {Criminal Appeal No.1669/2009 decided on 15/12/2022} that :-
"Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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"hostile witness" testimony if corroborated by other reliable evidence."
It is pertinent to mention that complainant/PW-3 was examined-in-chief on 30/10/2013 and PW-3 was not cross-examined by both accused despite opportunity. On 01/10/2015, oral request was made by counsel for both accused for recalling of PW-3 for cross-examination and vide order dated 01/10/2015 passed by Ld. Predecessor of this Court, PW-3 was recalled for cross-examination and PW-3 was cross-examined by counsel for both accused on 01/10/2016. In the present case, PW-3 was cross-examined, re-examined and cross-examined after the gap of almost two years and eleven months. PW-3 in his examination-in-chief had duly supported the case of the prosecution but in his cross-examination, he turned hostile. PW-3 in his re-examination by Addl. PP for the State had deposed that accused Balram is the BC of their area and he and people of the locality are afraid of accused Balram. PW-3 in his re-examination had also deposed that today, he is afraid of accused Balram and he has apprehension that if he depose against Balram, he may harm him again. The aforesaid facts as deposed by PW-3 in his re-examination cannot be over- looked. Only on the basis of cross-examination of PW-3, the whole Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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testimony of PW-3 cannot be washed off in view of the fact that PW-3 had duly supported the case of the prosecution in his examination-in-chief and also in view of the fact that his cross-examination was conducted by counsel for both accused after the gap of almost two years and eleven months.
Even otherwise, case of the prosecution is duly supported and corroborated with the testimonies of PW-1 and other concerned prosecution witnesses. Hence, the contention of counsel for both accused in this regard is not tenable.
(b) It is the contention of counsel for both accused that there are contradictions in the testimonies of PW-1 and PW-3 in respect of words uttered by the accused persons at the time of alleged offence at the relevant date and place.
It was held in Akbar case (Supra) that a witness cannot be expected to possess a photographic memory and to recall the details of an incident and it is not as if a video tape is replayed on the mental screen and witness cannot accurately recall a conversation and reproduce the very words used by him or heard by him and he can only recall the main purport Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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of the conversation and it is unrealistic to expect a witness to be a human tape recorder.
The testimonies of PW-1 and PW-3 are corroborated with the testimonies of other prosecution witnesses and documentary as well as other evidence relied upon by the prosecution. Hence, the contention of counsel for both accused in this regard is not tenable.
(c) It is the contention of counsel for both accused that there are material contradictions and inconsistencies in the testimonies of prosecution witnesses.
It was held by Hon'ble Supreme Court of India in case titled as "Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra", { (2010) 13 SCC 657} that:-
"While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons."
In the testimonies of prosecution witnesses, no material contradiction and inconsistency has been surfaced except some minor ones which are but natural. Hence, the contention of counsel for both accused in this regard is not tenable.
(d) It is the contention of counsel for both accused that in the present case, no independent public witness was asked to join the investigation by the IO. It is well settled law that non-examination of any witness per se will not vitiate the case of the prosecution and it depends upon the quality and not the quantity of the witnesses and its importance.
It was held by Hon'ble Supreme Court of India in case titled as "Rajesh Yadav case (supra) that :-
"A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it...."
It is well settled law that non-joining of public witness in the investigation is not fatal in every case. In the present case, PW-1 and complainant/PW-3 were joined in the investigation of the present case. Hence, the contention of counsel for both accused in this regard is not tenable.
(e) It is the contention of counsel for both accused that in the present case, site plan has not been proved on record as per law and same is inadmissible in evidence. PW-3 in his examination-in-chief had deposed that IO had inspected the spot and prepared the site plan Ex.PW-3/B and same bears his signature. PW-14 in his testimony had deposed that site plan Ex.PW-3/B is in the handwriting of IO ASI Chatt Ram and bearing his Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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signature. In the present case, site plan Ex.PW-3/B of the spot has been duly proved on record by the prosecution. Hence, the contention of counsel for both accused in this regard is not tenable.
(f) It is the contention of counsel for both accused that in the present case, IO/ ASI Chatt Ram had not been examined by prosecution to prove the investigation and documentary evidence prepared by him during the course of investigation. In the present case, ASI Chatt Ram was the first/main IO, PW-14 Inspector Surya Prakash was the second IO and PW-13 SI Arvind was the third IO. It is pertinent to mention here that IO/ ASI Chatt Ram had expired and his name was dropped from the list of witnesses vide order dated 17/03/2016 passed by Ld. Predecessor of this Court. In view of the same, IO/ASI Chatt Ram was not examined in the present case. However, PW-14 and other concerned prosecution witnesses have duly proved on record the documents relating to the investigation conducted by IO ASI Chatt Ram. Hence, non-examination of IO ASI Chatt Ram is not fatal to the case of the prosecution in view of the fact that other prosecution witnesses have duly supported the case of the prosecution.
Hence, the contention of counsel for both accused in this regard is not Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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tenable.
17. In the present case, the mode & manner of commission of offence, weapon of offence, motive, intention and knowledge are relevant factors. The aforesaid factors have been duly proved on record by the prosecution.
In the present case, PW-1 in his testimony and PW-3 in his examination-in-chief have specifically deposed regarding the mode and manner in which both accused had committed the offence. Factum regarding recovery of weapon of offence i.e. country-made pistol and cartridge from the possession of accused Balram has also been duly proved on record by the PW-1, PW-3 and other concerned prosecution witnesses.
In the present case, the testimonies of PW-1 and PW-3 have been corroborated with the testimonies of forensic and police witnesses as well as forensic, documentary and other evidence relied upon by the prosecution.
18. For the purpose of any offence, motive, intention and knowledge are relevant factors. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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The terms motive, intention and knowledge have been elaborated by the Hon'ble Supreme Court of India in case titled as " Basdev Vs. The State of PEPSU", { AIR 1956 SC 488} that :-
"..........of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they cannote different things......."
It is well settled law that motive looses all its importance in a case where direct evidence of injured/ eye-witness is available.
It was held by Hon'ble Supreme Court of India in case titled as " State of Uttar Pradesh Vs. Kishan Pal & Ors.", { (2008) 16 SCC 73 } that :-
"..........the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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excited them to commit the particular crime. The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction........."
In view of the law laid in Kishan Pal case (supra), it is held that the motive was not required to be proved by the prosecution as there is a direct evidence of the victim and complainant i.e., PW-1 and PW-3 in the present case.
19. In the present case, PW-2, PW-6, PW-9, PW-11, PW-12, PW-13, PW-15 and PW-17 have not been cross-examined by both Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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accused/counsel. The testimonies of PW-2, PW-6, PW-9, PW-11, PW-12, PW-13, PW-15 and PW-17 have gone un-rebutted, un-challenged and un- controverted.
In the present case, no defence evidence had been led by both accused in support of their defence and to rebut and contradict the case of the prosecution.
There is no dispute regarding the propositions laid down in the case laws relied upon by counsel for both accused, however, the same are not applicable to the facts and circumstances of the present case.
20. All the essential ingredients of the offences u/s. 307/34 IPC and 25/27 Arms Act have been duly proved on record from the testimonies of prosecution witnesses and documentary as well as other evidence relied upon by the prosecution.
The prosecution has been able to prove the fact that on 04/04/2012 at about 10:00 PM at M-Block, near Barat Ghar, near Nala, Raghubir Nagar, Delhi within the jurisdiction of Police Station Khyala, both accused Balram and Neeraj in furtherance of their common intention had used country made pistols for causing injuries to Sh. Ram Kalp and fired Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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upon Sh. Ram Kalp with country made pistol with such intention or knowledge and under such circumstances knowingly that by such act, both accused had caused the death of Sh. Ram Kalp and both accused would have been guilty of murder. The prosecution has also been able to prove the fact that on the aforesaid time, date and place, accused Balram was found in possession of aforesaid country made pistol with cartridge and he was carrying the same without any permit or license.
21. CONCLUSION Applying priori and posteriori reasonings, this Court is held that at the relevant time, date and place, as mentioned above, both accused Balram and Neeraj in furtherance of their common intention had used country made pistols for causing injuries to Sh. Ram Kalp and fired upon Sh. Ram Kalp with country made pistol and the said weapon of offence i.e. country made pistol with cartridge was recovered from the possession of the accused Balram.
In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has been successful to prove its case Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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against both accused Balram and Neeraj beyond reasonable doubt for the offences u/s. 307/34 IPC and 25/27 Arms Act. This Court is held that both accused Balram and Neeraj have committed the offences u/s. 307/34 IPC & 27/54/59 Arms Act and accused Balram has also committed the offence u/s. 25/54/59 Arms Act. Accordingly, both accused Balram and Neeraj are convicted for the offences u/s. 307/34 IPC & 27/54/59 Arms Act and accused Balram is also convicted for the offence u/s. 25/54/59 Arms Act.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
Announced in the open Court 2023.12.11 17:21:34 on 11/12/2023 +0530 (VIJAY SHANKAR) ASJ-04 (West) Tis Hazari Courts, Delhi FIR No.72/2012 PS Khyala Page No.57 of 57