Delhi District Court
State vs . Rajesh on 14 May, 2011
1
State Vs. Rajesh
FIR No.78/07
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV (OUTER): ROHINI : DELHI
Sessions Case No. : 23/09
FIR No. : 78/07
Police Station : Punjabi Bagh
Under Sections : 307 IPC r/w Section 25/27 Arms Act
State Versus Rajesh @ Khanna,
S/o Sh. Pritam Dass,
R/o A493, Gali No. 2,
Krishna Basti,
Amar Puri, Nabi Karim, Delhi.
Other Details (a) Date of Committal 17.09.2007
(b) Date of Institution
before this Court 12.01.2009
(c) Date on which reserved
for Judgment 05.02.2011
(d) Date of Judgment 14.05.2011
(e) Final Order Convicted
U/s 307 IPC
r/w Section 27 Arms Act
J U D G M E N T
1(a). In the present case, the chargesheet under Section 173 Cr.P.C. has been filed by the police officials of PS Punjabi Bagh against the accused Rajesh @ Khanna S/o Sh. Pritam Dass U/s 307 IPC read with section 25/27 Arms Act on the allegations that on 31.01.07 at about 6.30 pm at the Road 1/35 2 State Vs. Rajesh FIR No.78/07 of CBlock, Near Balmiki Mandir, Madipur, Delhi, the accused Rajesh came on a motorcycle on which he was sitting as a pillion rider who had fired from the country made pistol at the complainant who is none else but his wife Smt. Meenu while she was going in the Maruti Esteem car No. DL5CA 8112 as driven by Surjit (injured), with such intention or knowledge and under such circumstances, that had Smt. Meenu died, the accused Rajesh would have been guilty of culpable homicide amounting to murder.
(b) It is further the case of prosecution that though the accused Rajesh had fired aiming at Ms. Meenu, yet he missed the target and the bullet rather hit Surjit near his eye who was driving the said car at the relevant time. It is also alleged that the accused Rajesh @ Khanna was carrying the said country made pistol unauthorisedly and without licence or justification or permission from appropriate authorities.
(c) It is further the case of prosecution that shortly after the occurrence, the matter was reported to the police officials who reached at the spot, recorded the statement of Ms. Meenu whereupon the present FIR was registered and investigation commenced during which the accused Rajesh could not be arrested, however, later on it was revealed to police officials and the investigating officer that the accused was arrested in another case FIR No. 54/07pertaining to Special Cell of Police which information was conveyed to the Investigating Officer and accordingly the accused 2/35 3 State Vs. Rajesh FIR No.78/07 Rajesh @ Khanna was arrested in this case after which necessary documents were prepared, statements of witnesses were recorded and after completion of other necessary proceedings, the charge sheet under Section 173 Cr.P.C. was filed in the Court of Ld. concerned MM who after compliance of necessary provisions under section 207 Cr.P.C had committed the case to court of Sessions and my Ld. Predecessor, vide order dated 01.08.08 had served the charge under Section 307 IPC read with section 27 Arms Act, 1959 on the accused Rajesh @ Khanna to which he had pleaded not guilty and claimed trial.
2. The prosecution in order to bring home guilt of the accused has examined fifteen witnesses in all namely ASI Rani Devi as PW1, HC Jagir Singh as PW2, Dr. Manoj as PW3, Smt. Meenu (complainant) as PW4, HC Sanjeev Kumar as PW5, HC Bijender Singh as PW6, SI Raj Singh as PW7, SI Anil Kumar as PW8, ASI Dharambir Singh as PW9, Ct. Sukhbir Singh as PW10, HC Lokender Singh as PW11, Inspector Gagan Bhaskar as PW12, HC Harish Kumar as PW13, ASI Sumer Singh as PW14 and HC Praveen as PW15.
(b) Thereafter, statement of accused Rajesh @ Khanna was recorded under section 313 Cr.P.C. wherein he has submitted that he is innocent and has been falsely implicated in the present case and has examined Sh. Raj S/o 3/35 4 State Vs. Rajesh FIR No.78/07 Prem Singh and himself in support of his case as defence witnesses.
3. I have heard the final arguments as advanced by Sh. Anil Kumar Gupta, Ld. APP for State and advocate Sh. R.S. Gupta, Ld. Counsel for the accused Rajesh and have given my thoughtful consideration to rival submissions made by them and have also carefully scrutinized the material as placed on record.
4. Ld. APP has vehemently argued that the complainant Ms. Meenu (PW4) has categorically testified that the accused Rajesh @ Khanna was her husband, however he used to beat her, so she had left her matrimonial home about five/six years prior to the occurrence and started residing with her mother and brother at Madipur alongwith her children who has also very clearly narrated that on 31.01.07 at about 6.30 pm, while she was going to Dev Nagar in the hired Maruti Esteem Car No. DL5CA8112 as driven by Surjit to attend a function, the accused Rajesh came there on a motorcycle on which he was sitting as a pillion rider and he had fired at her, but the bullet missed the target and instead, it hit the driver Surjit near his eye, on seeing which, the accused Rajesh managed to flee away from the spot. He has also argued that the complainant has very clearly and at length narrated about the occurrence and has clearly identified the accused Rajesh to be the 4/35 5 State Vs. Rajesh FIR No.78/07 assailant. Ld. APP has further contended that the matter was immediately reported to the police officials whereupon the DD was promptly recorded and the PCR reached to the spot who shifted the injured Surjit to the hospital and detailed investigation was conducted by the police officials, however the accused Rajesh could not be arrested as he managed to escape. He has also apprised that thereafter, the accused Rajesh was arrested in another case FIR no. 54/07 which was dealt by special cell of police and during his disclosure statement recorded in that case, the accused Rajesh also confessed to have committed the present offence whereupon he was arrested in this case as well and he was also found in unauthorised possession of the said country made pistol without any licence or justification. Ld. APP has further averred that the investigation was conducted fairly during which all the relevant necessary documents were prepared which have been duly proved on record. He has prayed that since the prosecution has succeeded in bringing home the guilt of the accused beyond reasonable doubt, hence he must be convicted for committing offences as punishable under Section 307 IPC read with section 27 Arms Act.
5. Ld. Defence Counsel has vehemently rebutted the same contending that the complainant Ms. Meenu is an interested witness whose testimony cannot be relied upon as she and the accused Rajesh are noneelse 5/35 6 State Vs. Rajesh FIR No.78/07 but wife and husband and they used to quarrel after which the complainant had left her matrimonial house and simply in order to harass the accused Rajesh, she has falsely implicated him in the present case. He has further contended that the injured Surjit has not been examined which create doubt regarding genuineness of the case of prosecution and as such, no public person was joined in the investigation by the police officials though many were present at the spot. Ld. defence counsel has further averred that complainant had illicit relations with many persons and some one from them must have fired at her and has further submitted that certain photographs are placed on record by the accused in this regard. He has also contended that the complainant had not succeeded in obtaining divorce from the accused and so, she has falsely implicated him in this case. He has submitted that since the accused Rajesh is innocent and has not committed any of the alleged offences, hence he must be acquitted of the charges leveled against him in which regard, he has placed on record the copy of legal notice given to complainant in the divorce proceedings and complaints made against him to the police officials at various points of time as well as to the NHRC and also the information regarding theft of his motorcycle and other record regarding other cases.
6. Ld. APP, in rebuttal has submitted that even if Surjit is not 6/35 7 State Vs. Rajesh FIR No.78/07 examined, the case of prosecution does not collapse as Ms. Meenu has very clearly identified the accused Rajesh to be the assailant who had fired at her, however by sheer luck, she escaped and the bullet instead hit Surjit. He has also submitted that in fact the prosecution has made best possible efforts to trace out Surjit, but he could not be located, however it does not collapse the case of prosecution as testimony of complainant is very convincing and it is established on record that the accused Rajesh has committed the said offences.
7(a) In the present case, admittedly Ms. Meenu (PW4) is the most material witness being the complainant who is also the eyewitness of the occurrence, hence her testimony is discussed on priority. She has testified that in 1999, she got married with the accused Rajesh @ Khanna after which they started residing at Pahar Ganj, Nabi Karim and from the said wedlock, one son and one daughter were born but since, the accused Rajesh used to beat her, so she had left her matrimonial house about four/five years ago and started residing with her mother and brother alongwith her children, however, about one and a half months thereafter, her husband i.e. the accused Rajesh took away her son from the house of her mother who at that time was only one year old. She has further deposed that she had lodged a complaint against her inlaws and her husband i.e. the accused 7/35 8 State Vs. Rajesh FIR No.78/07 Rajesh for harassing her and also for recovery of her Istridhan and despite the fact, that she and the accused Rajesh were residing separately from her inlaws, the accused Rajesh used to quarrel with her who was also B.C. of the area and she did not want to live with him because several criminal cases were pending against him.
She has further testified that on 31.07.07 at about 6.30 pm, while she was going to Dev Nagar in a Maruti Esteem Car No. DL5CA8112 hired from Surjit which was driven by Surjit himself, to attend a function and when they reached at CBlock, Madipur, near Balimiki Mandir, Madipur, the accused Rajesh came there on a motorcycle which was driven by someone else whom she could not see as he was wearing helmet and the accused was sitting as a pillion rider. She has also deposed that the accused Rajesh took out a pistol, pointed out it towards her and fired at her but the bullet instead hit the driver of the car namely Surjit and she got saved as she had moved herself backwards. She has also testified that the said bullet hit Surjit near his eye and thereafter, the accused Rajesh escaped from the spot on the motorcycle, however, she could see him clearly in the light of car. She has further testified that immediately, thereafter, she got out of car, called the police at 100 number and after some time, PCR officials and local police officials of police post, Madipur also reached who recorded her statement which is Ex. PW4/A. She has also deposed that since Surjit was bleeding, so 8/35 9 State Vs. Rajesh FIR No.78/07 she gave him her chunni to wipe out the blood.
7(b) It would be pertinent to mention here that the accused Rajesh has not disputed the identity of motorcycle on which he is stated to have gone to the spot as pillion rider nor he has disputed the identity of Maruti Esteem Car No. DL5CA8112 in which the complainant Ms. Meenu was going with Surjit at the relevant time and has not disputed the the identity of the chunni as well.
7(c) During cross examination on behalf of the accused Rajesh, she has interalia stated that her marriage with the accused Rajesh was in fact, a love marriage and they belonged to different castes. It would be important to mention here that the Ld. defence counsel had showed her a photograph mark 'X' in which regard, she stated that the man in the said photograph was a singer with an orchestra and the lady shown is 'she' and has also stated that the said photo was taken prior to her marriage with the accused when she was working with the said person in the Orchestra. She has also stated that Surjit was a driver with her younger brother Sanjay and since, his brother used to hire it from Surjit, so she had also hired the said car from Surjit. She has also denied if she had extramarital relations with Surjit or was in love with him. She has explained that except her chunni, no other cloth of hers was stained with the blood of Surjit. She has further clarified that she was sitting at the front seat, by the side of Surjit, who was driving the car as she 9/35 10 State Vs. Rajesh FIR No.78/07 likes to sit in the front. She has also stated that in her presence, clothes of Surjit were seized by the Investigating Officer. She also stated that except her and Surjit, there was noneelse in the car. She has stated that though after the occurrence, many people had gathered but she could not tell their names and stated that they did not agree to become witnesses. She has denied if it was already dark by that time and volunteered that there were light from the houses and shops at the spot. She has expressed her inability to tell the number of the motorcycle on which the accused Rajesh had come at the relevant time. She also stated that she had filed a divorce case against the accused Rajesh and denied, if she in connivance with Surjit has falsely implicated the accused Rajesh in this case as she wanted to marry Surjit. 8(a). In the present case, Dr. Manoj Dhingra (PW3) has proved on record the MLC No. 1348 dt. 31.01.07 pertaining to the injured Surjit, wherein he had also given opinion regarding nature of injuries and also opined that local examination of injured was consistent with findings of CMO and also deposed that no definite opinion regarding nature of injuries can be given and has proved the said MLC as Ex. PW3/A. 8(b) No cross examination was offered to this witness by or on behalf of the accused despite opportunity given.
9(a). ASI Dharambir Singh (PW9) has testified that on 31.01.07, he 10/35 11 State Vs. Rajesh FIR No.78/07 was posted at PCR, North West Zone on Power 93 as Incharge and on receiving the call, he alongwith other staff reached at the spot i.e. CBlock Road, Near Balmiki Mandir, JJ Colony, Madi Pur, Delhi where one Maruti Esteem Car no. DL5CA8112 was found and Ms. Meenu (PW4) and Surjit, who was having an injury over his right eye were also present. He has further deposed that Surjit told him that the accused Rajesh who is husband of Ms. Meenu (PW4) had fired at him and thereafter, he was shifted to SGM Hospital.
9(b) During cross examination on behalf of the accused Rajesh, he has fairly conceded that he did not witness the occurrence and the said Maruti Esteem Car no. DL5CA8112 was a private car and not a taxi. He has also stated that he did not search or saw any bullet there as he was in a hurry to firstly shift the injured to the hospital, but he had noticed blood on the clothes of injured.
10(a). HC Lokender Singh (PW11) who had initially joined the investigation has testified that on 31.01.07, he was posted at Police Post Madipur and the DD Writer had handed him over DD No. 34 which he further handed over to ASI Sumer Singh (PW14) who was in the area to attend some other call alongwith Ct. Harish and thereafter, he alongwith ASI Sumer Sumer Singh (PW14) and Ct. Harish reached at CBlock Road, Near 11/35 12 State Vs. Rajesh FIR No.78/07 Balmiki Mandir, Madipur and in the meantime, SI Gagan Bhaskar (PW12) had also arrived who recorded statement of complainant Ms. Meenu (PW4), prepared rukka, handed it over to him and he got the case registered and after returning back, he handed over the copy of FIR and original rukka to the Investigating Officer and Investigating Officer had also recorded his statement.
10(b) During Cross examination on behalf of the accused, he has inter alia stated that in his statement, the number of DD was wrongly mentioned as 31 instead of 34 and has also stated that they had reached at the spot at about 6.55 pm on his motorcycle No. DL3SU7761.
11(a). Inspector Gagan Bhaskar (PW12) who is the Investigating Officer has testified that on 31.01.07, he was posted as Incharge, Police Post Madipur and on receiving DD No. 34 which is Ex. PW12/A, he alongwith ASI Sumer Singh (PW14), Ct. Lokender (PW11) and Ct. Harish reached at the spot at CBlock Road, Near Balmiki Mandir, Madipur where he met with the complainant Ms. Meenu (PW4) and recorded her statement Ex. PW4/A after which he also made endorsement Ex. PW12/A and got the case registered through Ct. Lokender (PW11), after which he prepared site plan Ex. PW12/C at the instance of complainant. He has further deposed that thereafter, he alongwith SI Sumer Singh (PW12) reached at SGM Hospital 12/35 13 State Vs. Rajesh FIR No.78/07 where Surjit was admitted vide MLC No. E6100/1348 who after medical treatment, was discharged and he recorded his statement and also seized his blood stained baniyan and one chunni vide memo Ex. PW12/D after sealing them with the seal of GB after which, the said seal was handed over to ASI Sumer Singh (PW14). He has also testified that thereafter, he alongwith SI Sumer Singh came back to the spot from where the car of injured and the fired bullet were taken into possession vide seizure memos Ex. PW12/E and Ex. PW12/F respectively which bullet was also sealed with the seal of GB and seized. He has further testified that during investigation, the spot was got inspected by the crime team, he recorded statements of witnesses, deposited the case property in malkhana and on that day, he also searched for the accused but the accused Rajesh had absconded. He has further testified that on 30.06.07, DD entry was lodged vide DD No. 25(copy of which is already exhibited as Ex. PW1/A) from Special Cell vide which, it was informed that the accused Rajesh was already arrested in case FIR 54/07, Special Cell of Police wherein he had made disclosure statement regarding commission of present offence as well. He has further testified that thereafter he had also collected requisite documents from the Investigating Officer, Special Cell, recorded his statement on 02.07.07 and also formally arrested the accused Rajesh in the present case vide arrest memo Ex. PW12/G whose personal search was conducted vide memo Ex. 13/35 14
State Vs. Rajesh FIR No.78/07 PW12/H and his disclosure statement Ex. PW12/I was also recorded. He has also deposed that during investigation, the accused Rajesh had also got recovered the motorcycle bearing No. DL6SF6769 which was used in commission of said offence which was seized vide memo Ex. PW12/J and pointing out memo at the instance of accused Rajesh was also prepared which is Ex. PW12/L. He has further testified that on 07.08.07, injured Surjit was sent to hospital through Ct. Sukbir where his blood sample was taken which was seized vide memo Ex. PW10/A. He has also deposed that on 13.08.07, exhibits of the case were deposited at the office of FSL through Ct. Sanjeev Kumar (PW5) and has also proved on record the FSL result as Ex. PW12/M. He has further testified that during investigation, he had also recorded statements of witnesses, obtained sanction U/s 39 Arms Act to prosecute the accused Rajesh under Arms Act and after completion of investigation, he had filed the chargesheet under section 173 Cr. PC in the court.
He has also identified the baniyan of the injured Surjit, chunni of the complainant Ms. Meenu (PW4) as Ex. P1 and Ex. P2 respectively and has further identified the blood samples of injured as Ex. P3 and Ex. P4 and has further identified the fired bullet and the motorcycle no. DL6SF6769 as Ex. P5 and P6 respectively.
11(b) During cross examination on behalf of the accused Rajesh, he has 14/35 15 State Vs. Rajesh FIR No.78/07 interalia stated that he did not get the pistol examined from any expert which was recovered in case FIR No. 54/07, Special Cell. He has also stated that since the said pistol did not pertain to or used in the present case, hence it was not seized in this case. He has also stated that the place of occurrence was at the end of the road and also stated that the area was thickly populated but when he had reached at the spot, persons were very less as it was winter season and as such, no witness met them who had knowledge about the present occurrence.
He has further stated that as per investigation Ms. Meenu did not receive any injury, it was revealed that the said motorcycle was in proper working condition and its driver was Deepchand who was an associate of the accused Rajesh who could not be arrested despite best efforts. He has also stated that the blood was not found either inside or outside the car and has also denied if no such incident had ever occurred.
12(a). HC Jagir Singh (PW2) has testified that on 31.01.07, he was working as duty officer and at about 8.25 pm, he had received a rukka as brought by Ct. Lokender (PW11) as sent by SI Gagan Bhaskar (PW12) on the basis of which, he recorded the present FIR and proved its carbon copy as Ex. PW2/A after which rukka and the copy of FIR was haded over to Ct. Lokender (PW11).
15/35 16
State Vs. Rajesh FIR No.78/07 12(b) During cross examination on behalf of accused Rajesh @ Khanna, he has stated that it took about half an hour to record the present FIR.
13(a). SI Anil Kumar (PW8) has testified that on 31.01.07, on receiving the information on wireless, he alongwith crime team reached at Police Post, Madipur where Maruti Esteem Car No. DL5CA8112 was found and the photographer Ct. Rakesh took various photographs. He has further deposed that he inspected the said vehicle, prepared report Ex. PW8/A and handed it over to Investigating Officer who also recorded his statement.
13(b) During cross examination on behalf of the accused Rajesh, he has stated that he inspected the Maruti Esteem Car No. DL5CA8112 at the Police Post, Madipur from 12.15 am to 12.45 am and not at the spot.
14. HC Harish Kumar (PW13) has deposed on the lines of the Investigating Officer SI Gagan Bhaskar (PW12), hence his examination in chief is not repeated for the sake of brevity, however during cross examination on behalf of the accused Rajesh, he has interalia stated that SI Sumer Singh (PW14) had not made any enquiry from any persons at the spot and has also stated that hardly two or four persons had gathered at the spot 16/35 17 State Vs. Rajesh FIR No.78/07 and has also stated that the Investigating Officer did not make any enquiry from any neighbour. He has also stated that he had not seen any blood on the bullet which was seized by the Investigating Officer in his presence.
15. ASI Sumer Singh (PW14) had joined the investigation with the Investigating Officer SI Gagan Bhaskar (PW12) who has deposed on his lines, hence his examination in chief is not repeated for the sake of brevity, however during cross examination on behalf of the accused Rajesh, he has interalia stated that neither he nor the Investigating Officer had made any enquiry from any public person and also stated that he did not see any blood on the bullet as seized by the Investigating Officer and has also stated that Ms. Meenu (PW4) had not received any injury in the incident. He has further denied if the accused Rajesh has been falsely implicated in this case at the instance of complainant and injured.
16(a). HC Praveen (PW15) has testified that on 29.06.07, he was posted in Special Cell, Lodhi Colony, Delhi and joined the investigation of the case with the Investigating Officer of case FIR No. 54/07. He has further testified that on that day, he alongwith HC Sunder Gautam went to Punjabi Bagh on receiving a secret information at about 4.00 pm that a person namely Rajesh on whose name, there was reward of Rs. 10,000/ would 17/35 18 State Vs. Rajesh FIR No.78/07 come at the service road, opposite Baba Asha Ram, upper ridge road at about 7.00 pm to meet his associate which he conveyed to his senior officiers who directed him to constitute a raiding party. He has further deposed that accordingly on that day, he alongwith HC Sunder Gautam and secret informer reached at the said place at about 6.00 pm, where they also met with SI Sanjeev, SI Chandrika Prasad, SI Girish Kumar, HC Sukhbir Singh, HC Rajender and Ct. Satender with whom, he shared the information and also requested 45 public persons to join the raiding party but they refused and having no option, they constituted a raiding party consisting of police officials. He has also deposed that at about 6.45 pm, one person was seen coming from the side of ridge road towards service road who was noneelse but the accused Rajesh present in the court and at the pointing out of the secret informer, when the police officials started covering him, he tried to move faster towards Ravinder Rang Shalla and when they tried to apprehend him after disclosing their identity, the accused Rajesh took out the country made pistol from the right side of his pant and opened fire at him and at HC Sunder Gautam, however when the accused Rajesh tried to reload his said country made pistol, he was apprehended and the said katta was seized. He has further deposed that thereafter, the accused Rajesh was formally searched from whose possession, one live cartridge was also recovered and another live cartridge was recovered from the pocket of his pant in which 18/35 19 State Vs. Rajesh FIR No.78/07 regard, sketch of the katta and sketch of both live cartridges and fired cartridge was prepared which were also converted into pullandas and were sealed with the seal of SSB and were seized. He has further deposed that thereafter he prepared rukka, got the case registered against the accused Rajesh vide FIR No. 54/07 U/s 307/186 IPC read with section 25/27 Arms Act and arrested the accused Rajesh.
He has further testified that the accused had also made the disclosure statement pertaining to the present case also which is Mark A and has proved on record, the copy of seizure memo of the country made pistol as mark 'B'. He has further testified that thereafter, the accused was brought to the office of Special Cell at Lodhi Colony, Delhi after which, information was conveyed to the Investigating Officer of the present case, on the basis of disclosure statement made by the accused and he had also handed over one copy of disclosure statement and seizure memo of katta to the Investigating Officer of this case. He has further deposed that his statement was also recorded by the Investigating Officer.
16(b) During cross examination on behalf of accused Rajesh, he has denied if the accused Rajesh did not make any such disclosure statement or that he was made to sign certain blank papers.
17(a). HC Bijender Singh (PW6) is the Investigating Officer of case 19/35 20 State Vs. Rajesh FIR No.78/07 case FIR No. 57/04, Special Cell, Lodhi Colony who has deposed that during investigation of that case, he reached at the spot i.e. at Service Road, Upper Ridge Road where HC Praveen (PW15) and HC Surender Guatam alongwith the accused Rajesh and other staff met him and HC Praveen Kumar (PW15) handed him over two pullandas which were duly sealed with the seal of SSB. He has further deposed that he had also prepared the site plan, arrested the accused Rajesh and also recorded his disclosure statement. He has further testified that on 30.06.07, he handed over the photocopies of relevant documents of case FIR No. 54/07, PS Special Cell to the Investigating Officer of present case who had also recorded his statement. 17(b) During his cross examination by Ld. defence counsel, he has interalia stated that he had not seen the articles recovered in the case FIR No. 54/07 as when they were handed over to him, they were in sealed condition.
18(a). ASI Rani Devi (PW1) has deposed that on 30.06.07, DD No. 25B was recorded by her at about 2.30 p.m. on the basis of telephonic information as received from HC Vijender of Special Cell, Lodhi Colony, Delhi regarding arrest of the accused Rajesh @ Khanna in case FIR NO. 54/07, Special Cell, Lodhi Colony, Delhi as he had also made disclosure statement in that case pertaining to present case. She has proved on record 20/35 21 State Vs. Rajesh FIR No.78/07 the correct copy of said DD entry as Ex. PW1/A. 18(b) During cross examination on behalf of the accused Rajesh @ Khanna, she has stated that there is overwriting in column no. 3 against DD No. 25, however she has clarified that in fact the word "Wireless" was inadvertently recorded which was corrected as "telephone" as information was received on telephone and thereafter, she had informed about it to SI Gagan Bhaskar (PW12) who was Incharge of police post, Madipur. 19(a). SI Raj Singh (PW7) has testified that on 29.06.07 at about 10.00 pm, he received a rukka as sent by HC Praveen Kumar (PW15) through Ct. Satender on the basis of which, he recorded the case FIR No. 54/07 under Sections 186/353/307 IPC r/w section 25/27 Arms Act and proved its photocopy on record as Ex. PW7/A. He has further deposed that after registration of FIR, he made endorsement on the rukka which is Ex. PW7/B and thereafter handed over the original rukka and copy of FIR to Ct. Satender.
19(b) It would be important to mention that no cross examination was offered to this witness by or on behalf of accused person despite opportunity given.
20. HC Sanjeev Kumar (PW5) has testified that on 13.08.07, on the instructions of Investigating Officer, he had collected exhibits of the present 21/35 22 State Vs. Rajesh FIR No.78/07 case in sealed condition from MHCM alongwith FSL form, which he had deposited at the office of FSL, Rohini vide RC and thereafter on coming back, he handed over one copy of RC with receipt of FSL to MHCM. He has also deposed that there was not tempering with the said exhibits during the period, it remained in his custody.
20(b) He was not at all cross examined by or on behalf of the accused Rajesh on any aspect whatsoever.
21(a). Ct. Sukhbir Singh (PW10) has testified that on 07.08.07, as per the instructions of the Investigating Officer, he took Surjit Singh from the Police Post, Madipur to SGM Hospital, where doctor took his blood sample and handed him over two vials containing blood of Surjit which was duly sealed with the seal of hospital alongwith sample seal which he handed over to the Investigating Officer who seized it vide memo Ex. PW10/A. 21(b) The accused Rajesh preferred not to cross examine Ct. Sukhbir Singh (PW10) despite opportunity given on any point whatsoever.
22. In the present case, the accused has examined Sh. Rajbir Singh as DW1 and himself as DW2.
(a) Sh. Rajbir Singh (DW1) has testified that the accused Rajesh is the son of his bua who came to his house on 27.01.07 as his mother had 22/35 23 State Vs. Rajesh FIR No.78/07 expired at Village Shimli, District Rohtak, Haryana and the accused remained there upto 03.02.07 till the kriya ceremony of his mother was performed and thereafter they came back to Delhi. He has placed on record the death certificate of his mother which is Ex. DW1/A.
(b) During cross examination by Ld. APP, he has interalia stated that he does not know anything about the matrimonial relations of the accused with his wife and also does not know if any criminal case is instituted against the accused Rajesh. He has also expressed his ignorance if any case related to dowry or recovery of Istri dhan is pending against the accused in Delhi.
(c) The accused Rajesh has examined himself as DW2 during which he has tendered in evidence the photocopy of petition filed U/s 9 of HMA against his wife Ms. Meenu and proved its copy as Mark A, copy of affidavit filed alongwith petition as Mark B, copy of legal notice dt. 22.306 to Ms. Meenu as Mark C, complaint against his wife and her family members dt. 09.07.05, 06.03.06 and 11.05.05 as Mark D to F, Copy of complaint against his wife and her mother for beating him outside the police station dt. 31.05.06 as Mark G, complaint against theft of his motorcycle No. DL65F 6769 alongwith postal receipts as Mark H, order dt. 21.5.10 passed by Sh. Sanjay Sharma, ASJcumGuardian Judge as Mark J and order of acquittal as passed by Sh. O.P. Gupta, Ld. ASJ, Delhi dt. 8.7.10 in case FIR No. 54/07 under Sections 186/307/353 IPC read with section 25/27 Arms Act as Mark 23/35 24 State Vs. Rajesh FIR No.78/07 K. During cross examination by Ld. APP he has stated that all the said documents are photocopies and not certified copies.
23. In the present case, before proceeding further, it would be appropriate to discuss the relevant provisions of Section 307 IPC and Section 27 Arms Act.
(a) As per Section 307 IPC: Attempt to murder "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned".
(b) As per Section 27 Arms Act: Punishment for using arms etc. (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to file.
(2) Whoever uses any prohibited arms or 24/35 25 State Vs. Rajesh FIR No.78/07 prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any person, shall be punishable with death.
24(a). In the present case, the most material witness as examined by the prosecution is Ms. Meenu (PW4) who is the complainant and also an eyewitness of the occurrence and though her testimony has already been discussed at length, yet material portion of her version is discussed again even at the cost of repetition in order to appreciate the evidence on record.
(b) Ms. Meenu (PW4) has very categorically deposed that though the accused Rajesh @ Khanna is her husband and they had a love marriage out of which, two children were born, yet as the accused Rajesh did not behave with her properly and used to assault her, hence she had left her matrimonial house and started residing with her brother and mother alongwith her children and on the fateful day, while she was going to Dev Nagar to attend a function, she hired the Maruti Esteem car No. DL5CA8112 owned by 25/35 26 State Vs. Rajesh FIR No.78/07 Surjit who himself used to drive and was driving it at the relevant time and when they reached at CBlock, near Balimiki Mandir, Madipur at about 6/6.30 pm, the accused Rajesh who she has categorically and clearly identified, came from the other side on motorcycle on which the accused Rajesh was sitting as a pillion rider and he fired aiming at her but he missed the target and it instead hit Surjit. She has also explained that she had been sitting on the front seat near the seat of driver as she likes to sit on the front seat. It would be pertinent to mention that though this witness was cross examined at length on behalf of accused Rajesh, yet it has nowhere been shown if Ms. Meenu (PW4) has not narrated the true version of the occurrence or did not witness the occurrence. Even during her lengthy cross examination, she has reiterated as to what she has already deposed in her examination in chief and it is nowhere shown if she had wrongly identified the accused Rajesh to be the assailant or has falsely implicated him in this case.
(c). It also needs to be mentioned that Ms. Meenu (PW4) has stood the test of cross examination well during which her testimony has nowhere been shaken or shattered on any material aspect whatsoever. The accused Rajesh has miserably failed to show that simply because divorce case is pending between him and the complainant Ms. Meenu (PW4), so she has falsely implicated him. Even at the cost of repetition, it is mentioned that 26/35 27 State Vs. Rajesh FIR No.78/07 Ms. Meenu (PW4) has clearly deposed regarding the act of the accused Rajesh regarding his commission of said offence i.e. firing at her but he instead fired at Surjit.
25. It is well settled that interested witnesses are not necessarily unbelievable. It cannot be laid down as an invariable rule that evidence of interested witnesses can never form basis of conviction unless corroborated to a material extent in material particulars by independent evidence. In fact, what is necessary, is that the evidence of interested witnesses should be subjected to careful scrutiny and must be accepted with caution as mere interestedness is not a valid ground to reject the evidence and effort should be made to sift the grain from the chaff to accept what appears to be true. In fact, the term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. The ground that the witness being a close relative and consequently being are partisan witnesses, hence should not be relied upon has no substance.
26(a). In the present case, from the testimony of Ms. Meenu (PW4), it is clearly shown that she has deposed before the court in a very cogent, convincing and straight forward manner and nothing is shown, if her 27/35 28 State Vs. Rajesh FIR No.78/07 testimony suffers from any artificiality or exaggeration. Further, neither her presence at the spot is shown to be doubtful, nor her witnessing the entire occurrence is shown to be false or suspicious. In fact, the testimony of complainant Ms. Meenu inspires confidence of the court in as far as she has come out with natural picture of the occurrence which has nowhere been shown to be manipulated. Further, her version has been corroborated on all material aspects by medical evidence as well and despite the fact, that though she has been cross examined at length on behalf of accused yet, nothing is shown or even whispered if the accused was not present at the spot at the relevant date and time or that he did not cause any injury on the person of Surjit in the manner as alleged.
(b) Hence, in these circumstances, it would be needless to say that simply because Ms. Meenu (PW4) had witnessed the occurrence and is the wife of the accused Rajesh, hence she has falsely implicated him is baseless. Her presence during the occurrence cannot be doubted and further there is no reason that she would leave out the real culprits and implicate the accused falsely. After scrutnising her evidence with great care and caution, in the light of the medical evidence, her previous statement, the earliest version put forward and other circumstances like the investigation being defective and also the effect of omissions or discrepancies, if any, there is nothing to show if the accused Rajesh has been falsely implicated. 28/35 29
State Vs. Rajesh FIR No.78/07 27(a). It is also well settled law that corroboration is not a sine qua and what type of corroboration is necessary in a given case depends on various facts and circumstances.
In the present case, admittedly, Surjit is not traceable and hence not served by the prosecution and except Ms. Meenu, there is not other eye witness of the said occurrence and it is also placed on record that by the time police officials reached at the spot, they could not find anyone else except Ms. Meenu who had witnessed the occurrence. It also has to be kept in mind that even if someone else had witnessed the occurrence, however if none come forward, they cannot be forced to become witness. It is a matter of common parlance that now a days, the persons who are in no way connected with the case, do not come forward to help the society. If the same rule is applied to Ms. Meenu, then one understand that she has come forward in deposing before the court as the accused wanted to shoot her, however, he missed the target and injured Surjit, so undoubtedly, it was Ms. Meenu who was aimed and the other reason can be that she had hired car of Surjit and was going with him, hence she must have considered it to be her duty to depose true facts before the court.
(b) The testimony of Ms. Meenu is corroborated in certain other material aspects by unimpeachable evidence in the form of the injuries 29/35 30 State Vs. Rajesh FIR No.78/07 suffered by Surjit as per his MLC which is duly proved on record and with the detailed investigation which is nowhere been shown to be faulty.
(c) Though, there may be some improvements in the versions of prosecutions witnesses but it is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly, but that does not mean that falsity of testimony in one material particular would ruin it from beginning to end. On the other hand, the circumstance will be a good reason merely for the Court to be put on the guard, and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically, or by reason of corroboration from other trustworthy sources.
In the present case, nonjoining of independent witnesses is not fatal to the prosecution and shortcomings as pointed out in prosecution case are mere in consistencies and do not come in the category of contradictions. 28(a). After detailed scrutiny of evidence on record, nothing worthwhile has come in the cross examination of material witnesses of prosecution to disbelieve the presence of accused at the spot at the relevant date, time and place. The accused has not led any evidence nor has brought anything on record during crossexamination of witnesses to probablise his being lifted from his house by checking team of this case or of planting the recoveries as 30/35 31 State Vs. Rajesh FIR No.78/07 shown to have been effected at the instance of accused.
(b) After scrutinizing the testimony of Ms. Meenu (PW4) as a whole, court is of the considered opinion that though she is the complainant and has deposed against the accused Rajesh, yet she cannot termed as interested or that she has falsely deposed simply because other litigation is pending between them. No sufficient motive has been attributed to falsely implicate the accused Rajesh by Ms. Meenu (PW4).
29. In the present case, the accused Rajesh @ Khanna has examined Sh. Raj Singh as DW1 and himself as DW2 whose testimonies have already been discussed at length. Sh. Rajbir Singh (DW1) who has tried to justify that the accused Rajesh was present at his house at Rohtak, Haryana since 27.01.07 till 30.02.07 as his mother had expired, however during cross examination on behalf of state, he is not able to state even the material details about the accused regarding his matrimonial life and also did not know about the relations of accused Rajesh with his wife and if at all any case is pending against him regarding divorce.
It is quite surprising that he has come forward to depose in favour of the accused Rajesh, yet he is not aware of any material details regarding him and though he has stated that his mother had expired on 27.01.07 whose kriya was performed on 03.02.07 but it is nowhere shown on record, if in the 31/35 32 State Vs. Rajesh FIR No.78/07 meantime, the accused Rajesh had no opportunity to come to Delhi. Admittedly, the place where the mother of DW1 died was Rohtak, Haryana and from there, Delhi is not far away and nothing is shown if the accused Rajesh remained at Rohtak, Haryana for 24 hours of day throughout. The accused has miserably failed to prove on record regarding his plea of alibi and the death certificate of mother of DW1 does not establish by any stretch of imagination that the accused could not have been present at the spot at the relevant date, time and place and could not have committed the said offence.
(b) Now so far as the documents furnished by the accused Rajesh is concerned, they are not related to the present case at all and have nowhere expressely or impliedly pointed out towards his innocence so far this case is concerned.
(c) On the other hand, the evidence as adduced by the prosecution is cogent, convincing and inspire confidence of the court regarding occurrence.
30. Considering the totality of peculiar facts and circumstances and also keeping in view the above discussion, court is of the considered opinion that in the given circumstances, no public person can be reasonably expected to be joined in the investigation or as a witness and since testimony of Ms. Meenu (PW4) seems cogent and convincing whose presence at the spot has not been disputed and even her witnessing the entire occurrence has not been 32/35 33 State Vs. Rajesh FIR No.78/07 shown to be false, hence there is no reason to disbelieve her version at all. In the present case, the injured Surjit has not been produced by the prosecution, however considering that Ms. Meenu (PW4) has deposed about the occurrence in a very straight forward manner which does not seem to suffer from any artificiality or exaggeration and further that MLS of Surjit has been duly proved on record which shows that he had suffered injuries on his person as alleged, hence in these circumstances, non examination of Surjit is not fatal to the case of prosecution.
31. In the present case, the prosecution has proved detailed investigation by the police officials and it is shown that there was no delay as such in informing the police officials and also that FIR was promptly registered and injured Surjit was immediately taken to the hospital and as such there is no time or opportunity to temper with the evidence or manipulate the details. It is also shown on record that after the occurrence, the accused Rajesh managed to escape from the spot, however he was later on arrested in another case FIR No. 54/07 pertaining to Special Cell, Lodhi Colony, Delhi during which his disclosure statement was recorded wherein, he had also confessed to have committed the present offence and accordingly the Investigating Officer of the present case was informed and he had also arrested the accused Rajesh and conducted other necessary proceedings. The 33/35 34 State Vs. Rajesh FIR No.78/07 accused Rajesh has miserably failed to show if he was not arrested in the manner as shown or that the investigation is manipulated or fabricated or there is anything that point out regarding his false implication in the present case.
32. In the present case, the ocular testimonies of the witnesses have been supported by documentary evidence on record on all material aspects and as such the testimony of prosecution witnesses do not seem to suffer from any artificiality or exaggeration leading to the conclusion of innocence of the accused Rajesh. The witnesses as examined by the prosecution are cogent and convincing in so far as they have come with true picture of the occurrence. On the basis of material as placed on record and in in view of above discussion, court is of the considered opinion that sufficient corroboration is on record on all material aspects and also that the prosecution has succeeded in proving on record that on 31.01.07 at about 6.30 pm at C Block Road, Near Balmiki Mandir, Madipur, Delhi, the accused Rajesh came on a motorcycle on which he was sitting as a pillion rider who had fired at the complainant who was none else but his wife Smt. Meenu while she was going in the Maruti Esteem car No. DL5CA8112 as driven by Surjit (injured), however he missed the target and the said bullet rather hit Surjit who was driving the said car. The prosecution has also 34/35 35 State Vs. Rajesh FIR No.78/07 succeeded in proving at that time, the accused Rajesh @ Khanna was carrying the country made pistol which he had used for the purpose of firing of Ms. Meenu. Accordingly, in the present case, the accused Rajesh is convicted for committing offence as punishable under Section 307 IPC read with section 27 Arms Act . Let he be heard on point of sentence.
Announced in the open Court (BARKHA GUPTA)
on this 14 day of May, 2011 Additional Sessions Judge - IV
th
Outer District
Rohini District Courts
Delhi
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