Delhi District Court
State vs . Ashok Kumar on 26 November, 2008
1
In the court of Sh. Bhupesh Kumar Addl. Sessions Judge,
Fast Track Court (WEST), DELHI
SC No. 2/08
State Vs. Ashok Kumar
son of Late Sh. Jai Gopal
R/o WZ 33, Ramgarh Colony,
Moti Nagar, New Delhi
FIR No. 373/95
P.S. Moti Nagar
U/s 307 IPC
Date of filing of challan : 10.5.1996
Date of decision: : 26.11.2008
JUDGMENT
1. The case of the prosecution in brief is that on 19.7.1995 on receipt of DD No.15A SI Samsher Singh alongwith HC Rajesh Tyagi went to house No. WZ 33, Ramgarh colony where they came to know that some incident of gun shoot firing has taken place in which Inderpal, his wife Renu and Brijmohini has sustained bullet injuries and all the three injured have already been taken to hospital. Some 2 blood was found in front of the main door of the house. SI Samsher Singh left HC Rajesh Tyagi on spot and he himself went to RML hospital. There he received the MLC bearing No. 79675 pertaining to Sh. Inder Singh, MLC bearing No. 69676 pertaining to injured Renu. Injured Inder Singh was opined to be unfit for statement but Smt. Renu was fit for statement. Statement of complainant Smt. Renu Chhabra was recorded wherein she has stated to the effect that she is residing at H. no. WZ-33, Ramgarh Colony alongwith his family members. Her husband is running goods carrier scooter. On the same day her husband left for his job. At about 5.15 pm when she alongwith her family including her mother in law Smt. Shanti Devi, her son Himanshu and Brijmohini were present at their house, she heard some noise from the roof of the house. To enquire into she went upstairs where she found Ashok Kumar, son of his 'Jeth' (elder brother of husband) was sitting alongwith one girl. She asked Ashok not to cause any noise and at this Ashok became adamant and started quarreling with her. But she came down stairs. But Ashok also followed her and again started quarreling with her on the account that she has called his mother as 'Randi' (widow). He has threatened that he would also make her 'Randi' by killing her husband Inder Singh. After about 5 minutes her husband Inder Singh also came there. Ashok started quarreling with her husband and slapped him. Her mother-in-law, her son Himanshu and 3 Brijmohini also came there and tried to intervene the matter. But Ashok Kumar took out pistol and fired at her, her husband and Brijmohini with intention to kill them. She sustained two bullet injuries, her husband has sustained number of bullet injuries and Brijmohini also sustained bullet injuries. On the basis of statement of the complainant rukka was prepared by the IO and was sent to PS Moti Nagar through const. Om Prakash on the basis of which FIR bearing No.373/95 U/s 307 IPC was registered at PS Moti Nagar.
2. The initial investigation of the case was carried out by SI Samsher Singh. During investigation he inspected the spot, prepared the site plan, took photographs of the spot. Crime team was called and it also inspected the spot and collected the blood samples. The samples were went to CFSL. Efforts were made to trace the accused Ashok. Thereafter, further investigation was entrusted to Insp. Sardar Singh who also tried to arrest the accused. The bank account of the accused was sealed. Proceeding U/s 82- 83CrPC were initiated against the accused and ultimately on 19.2.96 the accused was declared PO. But on 12.3.96 the accused surrendered in the court and he was formally arrested. Police custody remand of the accused was sought. Accused voluntarily made the disclosure statement disclosing the commission of the offence and further submitted that he has thrown the weapon of 4 offence in the Ganda Nala of Punjabi Bagh. But no recovery was effected. MLCs pertaining to injured Renu, Brij Mohan and Brij Mohini were collected. The injuries in person of Brij Mohini were opined to be of simple injuries and the injuries in person of Renu were opined to be of grievous injuries. The opinion regarding the injuries sustained by Inder Singh could not obtained, however it was submitted that same would be filed later on in the court. After completing the other investigations the charge-sheet U/s 307 IPC was presented against the accused Ashok Kumar on 5.7.96. After supplying the copies of the charge-sheet to the accused, the case was committed to Sessions court for trial by the Ld. concerned MM.
3. Charge U/s 307 IPC was framed against the accused on 23.8.97 by my Ld. Predecessor of the court to which accused pleaded not guilty and claimed trail.
4. The prosecution has examined 29 witnesses in support of its case. PW1 is Pradeep Kumar. He is brother of injured Inder Singh and submitted to the effect that on the day of incident i.e. 19.7.95, he was sleeping in the house. At about 5 pm his mother who was weeping came to him and told him that accused Ashok Kumar had fired shots from pistol in the person of his brother Inder Singh, sister in law Brijmohini and Renu and the accused has run away 5 from the spot. Thereafter he came out from his room and found his brother and sister Renu and his other sister-in-law lying in varandah. He took his brother and his wife to RML hospital but do not remember who has taken his other sister-in-law to the hospital. He identified the accused in court.
5. PW4 Shanti Devi is mother of Inder Singh and mother in law of injured Renu and Brij Mohani. She has submitted to the effect that accused Ashok is her grand son i.e. son of her other son Tejpal. He is living on the first floor, whereas she is living on the first floor. Ashok is bachelor. On 19.7.95 Ashok had brought some lady to his house and the said lady was making some noise. At 5.00 p.m. her daughter in law Renu went upstairs and asked her to make less noise. Mother of the accused started quarreling with Renu on the account that why she went upstairs. Her other daughter-in-law Brijmohini informed her about it. She went there where mother of accused asked her that why Renu has gone upstairs. Accused Ashok and the lady to whom he has brought and her two children were standing on the roof of the house. In the meantime her son Inder came to the house for taking tea and Ashok asked him that why he is staring at him to which Inder replied him that he was not doing so. Thereafter the accused came down stairs and fired from pistol at Inder. When his wife Renu came to rescue him, he shoot at her 6 abdomen. When her other daughter-in-law namely Brijmohini came to rescue them, Ashok fired at her twice. Thereafter accused again fired at Inder Singh which hit him at his chest and he fell down. Ashok fled from the spot. She tried to lift her son but could not do so. She called her son Pradeep who was sleeping in her house. Brijmohini was sent to DDU hospital alongwith driver of truck and her sister-in-law accompanied her. While Inder Singh and Renu were taken first to Willingdon hospital and from there they were taken to another hospital. She informed the police through somebody. Police came on the spot and took photographs. Blood stained clothes were also taken into possession by the police. Inder Singh remained admitted in hospital for a period of two years and his lower portion became totally paralysed. He cannot sit or stand. Renu remained in hospital for about six months. However condition of Brijmohini is normal.
6. PW5 is complainant Renu Chhabra. She has supported the version of the prosecution and submitted to the effect that on 19.7.95 at about 4.30/5 pm some quarrel took place between her and accused Ashok. The accused fired at her which hit her on the right side of her abdomen. Accused also fired at Brijmohini twice but only one bullet hit her. Then the accused fired at her husband Inder Singh. She and other injured were taken to hospital. The witness 7 has proved her statement recorded by the police as Ex. PW5/A. The witness has correctly identified the accused in court. She further submitted that her clothes, clothes of her mother-in-law, her sister- in-law and husband Inder Singh were taken into possession by the police. The witness has identified shirt as Ex. P3, salwar Ex. P4 and dupatta Ex. P5 belonging to her mother in law Shanti Devi.
7. PW8 is injured Brijmohini. She has also supported the case of the prosecution and submitted to the effect that accused Ashok has fired at her, Inder Singh and Renu on 19.7.95 at 5/5.30 pm. Witness has correctly identified the accused in court and further identified clothes i.e. Maxi as Ex. P1. She has also identified the accused in the Court.
8. PW9 is injured Inder Singh. He has also identified the accused in court and further submitted that on 19.7.95 at 4/5 pm accused fired at him, his wife and Bhabhi Brijmohini with pistol. After the incident he became unconscious. He has taken to hospital by his brother Pradeep and Mr. Parveen brother of the accused.
9. PW2 is Dr. Jitender Singh of the DDU hospital. He submitted that on 19.7.95 at about 7 pm patient Brijmohini , aged 44 years referred to him by CMO Orthopedic for opinion on the basis of 8 x-ray report Ex. PW2/A. He opined the injuries in person of Brijmohini as simple vide his endorsement at point C on MLC Ex. PW2/B.
10. PW6 is Dr. Amita Sahni, SMO RML hospital. She submitted to the effect that on 19.7.95 , she has examined injured Renu with alleged history of gun shot. After examining the patient she gave report Ex. PW5/A which bears her signatures at point A and B. The patient was referred to surgical emergency for further management. One kameez green colour with burnt hole was sealed.
11. PW 14 J.C. Vashist is Record Clerk, DDU hospital. He submitted to the effect that the MLC bearing No. 1523E17585 pertaining to Ashok Kumar is in the handwriting of Dr. Tajender Jr. Resident. The MLC of patient Brijmohini is in the handwriting and under the signatures of Dr. Subhash Chand. He was well conversant with the handwriting and signatures of Dr. Subhash Chand and Dr. Tajender. Both these doctors have left the hospital and their present whereabouts are not known. MLC of Ashok Kumar is Ex. PW14/A which bears signatures of Dr. Tajender at point A and MLC Ex. PW14/B bears signatures of Dr. Subhas Chand at point X.
12. PW 15 is Dr. Yashpal of DDU hospital. He submitted to 9 the effect that on 19.7.95 he examined x-ray plate of patient Brijmohan and his detailed report in this regard is Ex. PW14/A which bears his signatures at point A.
13. PW18 is Dr. Sailesh Kumar of RML hospital. He submitted to the effect that he is well conversant with the handwriting and signatures of Dr. Y.P. Singh who was working in the Anesthesia Department of RML hospital. He has left the hospital. He has seen the case sheet of Renu wife of Inder Singh. The notes are not in the handwriting of Dr. Y.P. Singh. These notes must have been written by Dr. Ritu working as junior resident. As per the operation note of page 7 of case sheet exploratory laparotomy was done under anesthesia on 19.7.1995 by Dr. S. Parashar and repair of toe jejunal perforation , four colenic perforations and anterior/posterior stomach wall perforations was done and bullet was removed.
14. PW 19 is Sh. Surender Singh Record Clerk from RML hospital. He submitted to the effect that the opinion regarding injuries in person of injured Inder Singh were given by Dr. Pankaj. The nature of injuries is at point A on ex. PW19/A and the case sheet of injured Inder Singh is ex. PW19/B.
15. PW 20 is Dr. Amit Goel. He submitted to the effect that 10 case sheet Ex. PW19/B is relating to injured Inder Singh. As per record there was a bullet injury 1 cm in size on the left side of chest near the left nipple. There was circular wound on the right side near the right shoulder about 5 cm in size. As per record the bullet had entered the chest and it had caused contusion of spine. There was blood in chest cavity. There was also fracture shaft humerus right side. Since the bullet had struck struck the spine causing contusion of cord, the patient suffered paraplegia (weakness of limbs). Both the injuries were grievous in nature.
16. PW21 is Dr. V.K. Shrivastava. He submitted to the effect that he is well conversant with the handwriting of Dr. Sushma Chawla. She was working in Radiology department. She has developed paralysis and as such unable to present in court. X-ray report Ex. PW21/A is in the handwriting of Sushma Chawla which bears her signatures at point A. The report is on the basis of skiagram. The skygram is Ex. PW21/B-1 to B-4.
17. PW23 is Dr. Daljeet Kaur. She submitted to the effect that on 19.7.95 Inder Singh was brought to hospital by Pradeep Kumar at 5.50 pm with alleged history of gun shot injury. She has examined the patient and found the following injuries:-
i) One oval shaped wound present on the left side chest 11 about 1 cm size margine blackened near to the left nipple.
ii)Circular wound present on right arm about .5 cm edges blackened.
iii)Right shoulder swelling tenderness present.
iv)Circular wound .5 cm present on the left acromoclavicular joint, edges blackened.
She has prepared MLC Ex. PW23/A bears her signatures at point A. Patient was referred to surgical emergency for further management. Shirt of grey colour with stripes was taken off and handed over to the police.
18. PW 26 is Sh. Surender Singh Record Clerk from RML hospital. He submitted to the effect that MLC No. 79676/95 pertaining to injured Renu was prepared by Dr. Amita Sawhney and the opinion was given by Dr. Sanjay Saraf. Both the doctors have left the services of the hospital and their present whereabouts are not known. He is well aware of the handwriting and signatures of both the doctors. The MLC prepared by Dr. Amita Sawhney is Ex. PW26/A which bears her signatures at point A and the opinion on the MLC given as dangerous by Dr. Sanjay Saraf is mentioned at point B which bears signatures of Dr. Sanjay Saraf at point C. 12
19. PW 27 is Dr. K.C. Varshney. He submitted to the effect that on 31.5.96 three sealed parcels sealed with the seal of RK FSL Delhi bearing Nos. 1, 9 and 10 were received in his division from Biology Division of the laboratory in connection with case FIR No. 373/95 PS Moti Nagar. The seals on the parcels were intact. On opening of parcel No.1 it was found that it was containing one fired bullet of .32 inch caliber which was marked as B1 by him. Parcel No.9 was containing one fired bullet of .32 inch caliber which was marked as B2 by him. Parcel No.10 was containing one fired bullet of .32 inch caliber which was marked as B3 by him. He examined the exhibits. The bullet mark Ex. B1 to B3 were fired through standard firearms of .32 inch caliber having seven lands/grooves. The detailed report in this regard is ex. PW27/A which bears his signatures at point A1. The witness has rightly identified the three fired bullets of .32 inch caliber in court as Ex. P8, P9 and P10.
20. PW28 is Dr. Rajender Kumar , Sr. Scientific Officer, FSL Rohini. He submitted to the effect that on 8.9.95, nine sealed parcels were received from SHO PS Moti Nagar in connection with FIR No. 373/95 dated 19.7.95 U/s 307 IPC and the same were marked to him for examination. The parcel No.1 and 2 were sealed with the seal of CMO and DDU hospital, Delhi. Parcels No.4, 5 and 6 were sealed 13 with the seal of SS and parcel No.7, 8 , 9 and 10 were sealed with the seal of CMO Willingdon Hospital, Delhi. Parcel No.1 was containing Ex.1 i.e. One bullet. Parcel No.2 was containing Ex.2 i.e. ladies gown. Parcel No.4 was containing Ex.4 i.e. Blood stained cotton wool. Parcel No.5 was containing ex.5 i.e. Blood stained earth. Parcel No.6 was containing ex.6a, 6b and 6c i.e. Ladies shirt, salwar and dupatta respectively. Parcel No.7 was containing Ex.7 i.e. Shirt. Parcel No.8 was containing Ex.8 i.e. Ladies shirt. Parcel No.9 was containing Ex.9 i.e. Bullet. Parcel No.10 was containing Ex.10 i.e. Bullet. On biological examination blood was detected on exhibits 2,4, 5, 6a, 6b, 6c, 7 and 8. Blood could not be detected on Ex.1, 9 and 10. On serological examination, human blood was detected on Ex.2, 4, 5, 6a, 6b, 7 and 8. Ex.2, 6a, 6b, 6c and 8 were found to have B blood group. Ex. 7 was found to have AB group. No reaction was observed in exhibits 4 and 5 in relation to ABO grouping. All the parcels were sealed with the seal of RK FSL Delhi after examination. The detailed report in this regard is Ex. PW28/A which bears his signatures at point A1. His serological report is Ex. PW28/B which bears his signatures at point A1. The witness has rightly identified all the items in court i.e. Ladies gown as P1, blood stained cotton wool as Ex.P6, one vial containing blood stained earth as Ex. P7, one ladies shirt, salwar and dupatta Ex. P3., P4 and Ex. P5 respectively, one shirt having brown stains as Ex. P2. One more ladies shirt having brown 14 stain as Ex. P11.
21. The remaining witnesses are police officials. PW3 is HC Vikram Prashad. He submitted to the effect that on 13.3.96 accused Ashok Kumar was interrogated by the IO in his presence and the accused has made disclosure statement which is Ex. PW3/A which bears his signatures at point A. As per the disclosure statement , he alongwith Insp. S.S. Rana and accused went to ganda nala of Punjabi Bagh, Karam Pura but katta could not be recovered.
22. PW7 is const. Babu John. The witness submitted to the effect that on 19.7.95 he was posted at RML hospital at casualty ward as duty constable. On that day concerned doctor after examining injured Renu Chabbra has given him two sealed parcels sealed with the seal of CMO willingdon hospital and sample seal and he handed over said parcels and sample seal to SI Shamsher which were seized by him vide Ex. PW6/A which bears his signatures at point A. So long the parcels and sample seals remained in his possession, the same were not tampered with.
23. PW8 is Const. P.P. Vargis. He submitted to the effect that on 19.7.95 he was posted as duty constable at DDU hospital. On the said date , doctor has given him sealed parcel sealed with the seal of 15 CMO, DDU hospital. The said sealed parcel related to injured Brij Mohini. He has further handed over the sealed parcel and the sample seal to IO which were taken into possession vide Ex. PW7/A which bears his signatures at point Ak.
24. PW10 is HC Om Prakash. He is the witness of FIR and proved the copy of FIR Ex. PW10/A.
25. PW13 is HC Rajesh. PW 16 is Constable Om Prakash. Both these witnesses have also joined the investigation alongwith IO and supported the version of the prosecution. PW17 is const. Attar Singh.
26. PW24 is SI Mukesh Kumar. He submitted to the effect that the accused was arrested in case FIR No. 18/07 of PS Moti Nagar U/s 307 IPC and 25/27 Arms Act from Safdarjung Hospital and during the investigation it was revealed that the accused was PO in the present matter and was arrested U/s 41.1 of CrPC.
27. PW25 is IO Insp. Samsher Singh who has conducted the major initial investigation of the case.
28. PW22 is Insp. Sardar Singh is a witness who has conducted 16 the investigation of the case after the arrest of the accused and filed the charge-sheet. PE was closed.
29. The accused was examined U/s 313 CrPC wherein he has impleaded false implication and innocence and further submitted that he intended to examine defence witness.
DW1 is Smt. Prakash Rani. She submitted that accused is a good man and she has no complaint against him at present. She has not seen the alleged incident for which the accused is facing trial as she was not present at the time when incident took place. She did not know anything else and did not know the address of the accused. DE was closed.
30. I have heard the arguments of Sh. R.K. Tanwar Addl. PP for the State and Sh. Yogender Singh Ld. Counsel for the accused. Ld. Addl. PP for the State submitted that the prosecution has proved its case against the accused beyond reasonable doubts. The FIR against the accused is by name. The accused has been rightly identified by all the spot witnesses. The medical evidence produced by the prosecution is corroborating the testimony of the injured/spot witnesses.
31. On the other hand Ld. Counsel for the accused has 17 submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubts as it suffers from material infirmities and material contradictions. It was submitted that weapon of offence was not recovered in this case. No independent witness/ any neighbourer was joined to the investigation. As per the evidence of the IO he inquired the matter from the neighbours but he has not joined any neighbour to the investigation and there is no proper explanation that why the neighbours or any independent witness was not joined to the investigation.
As per the evidence of the IO, mother and brother of injured Inder Singh and even injured Brijmohini met him on spot but the IO has not recorded the statement of any of these important witnesses though he has received the information regarding the incident. The IO was supposed to record the statement of these witnesses present on spot who furnished him information regarding the commission of the cognizable offence for the first time and he was supposed to register the FIR on the basis of their statement. But the FIR was recorded only on the statement of Renu Chhabra recorded at the hospital. It is hit by section 162 Cr. P.C. which is fatal to the case of prosecution.
32. It is further submitted that no concerned doctor was examined and only record clerks were examined in this matter and 18 the evidence of the record clerk are of no use for the purpose of corroborating the medical evidence. It was further submitted that there was earlier enmity between the parties due to the property dispute and due to the said enmity the accused has been falsely implicated.
33. Apart from these infirmities, the case of prosecution also suffers from material contradictions and even the witnesses made material improvements. It was pointed out that PW1 Pradeep Kumar has stated in his examination in chief that on the day of incident he was sleeping in his room as he was on duty on the previous night. His mother knocked the door and she was crying. When he came out, his brother and Renu lying in street and the other sister was lying in the varanda in injured condition and thereafter he removed his brother and wife of his brother to RML hospital. But during cross-examination this witness has denied this fact that he has stated in this regard to the police in his statement. The evidence of this witness reveals that he is stating different version at different stretch of time which makes his testimony unreliable and un-trustworthy.
34. PW5 Renu Chhabra during cross-examination stated that Usha mother of the accused Ashok told her that she would kill her 19 husband in the same manner in which she got killed uncle of her husband but she did not know if the same was recorded by police or not and it was (confronted with her statement Ex. PW5/DA where it was not so recorded). It was further submitted that she stated to the police that Usha, mother of the accused further told her that her son is professional killer and no harm would be done to him but she did not remember if it was recorded by the police or not. (This portion of statement of this witness was confronted with her statement Ex. PW5/DA where it was not so recorded.) Further she submitted that she had also stated to the police that her husband looked towards Ashok standing upstairs, Ashok told him "Ankhe phad phad ke kya dekh raha hai" and Ashok came downstairs and caught hold of her husband from his collar ( confronted with her statement Ex. PW5/A where it was not so recorded). It was submitted that after the case started and she came to the court, her statement was readover to her by the police and she told omissions appearing in her statement. It reveals that she does not know anything about the case and has deposed in court only on the basis of false case prepared by the police against the accused.
35. PW9 Brij Mohini during cross-examination submitted that she has stated to the police that Ashok had brought one lady who was making noise but her statement has been twisted by the IO. (It 20 was confronted with her statement Ex. PW8/DA where it was not so recorded). She further submitted that she has stated to the police that on inquiry Renu told her that she is having headache and lot of noise is coming and she was going upstairs in order to tell the lady not to make noise. (Confronted with her statement Ex. PW8/DA where it was not so recorded). She had further submitted that she stated to the police that after talking to that lady , Renu came downstairs. (confronted with her statement Ex. PW8/DA where after talking to that lady was not mentioned). She further submitted that Usha Rani mother of the accused abused her by saying that she has called her Randi and she will make her Randi and that Ashok will not spare her and even if Ashok had to go jail for 3-4 months there will be no problem because even earlier he had gone to jail. (Confronted with her statement Ex. PW8/DA where it was not so recorded). She further submitted that she had stated to the police that from other side, bell rang and when she went to open the door, her mother in law Shanti Devi came and she told her that she is not in the habit of fighting and she should see why Usha quarrelling with Renu and then her mother in law went that side (confronted with her statement Ex. PW8/DA where it was not so recorded). She further stated that she stated to the police that Inder Singh came from factory and when he was going to park and he saw upward, accused told that why he was staring at him and he should make his wife 21 understand and then Inder inquired from Ashok as to what has happened, Ashok came downstairs from his side and immediately caught hold Inder Singh from his collar. ( confronted with statement Ex.PW8/DA where it was not so recorded). She has not stated to the police that the incident was witnesses by the other persons. ( confronted with portion B to B of statement Ex.PW8/DA where it was so recorded). She had stated to the police that one bullet injury was caused to Inder by accused in his presence. (confronted with statement Ex.PW8/DA where it was not so recorded).
36. Regarding PW 10 Inder Singh it was submitted that this witness has also made material improvements and during cross- examination as on calling explanation the witness has stated that he had stated in his statement to the police that accused Ashok told him that what he was looking upstairs with open eyes ( confronted with statement Ex.PW9/DA where it was not so recorded). He had told the police that mother of the accused Usha told that he should kill his wife and Brijmohini also but did not know if this fact was recorded by the police or not. (confronted with statement Ex.PW9/DA where it was not so recorded). The witness has denied that he has stated to the police that due to property dispute there used to be quarrel between them and accused and his family (confronted with statement Ex.PW9/DA where it was not so 22 recorded). These are the material improvements made by the witnesses which make their testimony doubtful and accordingly their testimonies became unworthy of credence. On the basis of these submission prayer was made to acquit the accused by giving him benefit of doubt.
37. Arguments of Ld. Addl. P.P. for the State and Ld. counsel for accused heard at length besides going through the file carefully. The first contention of Ld. counsel for the accused is that the weapon of offence was not recovered. Admittedly, the weapon of offence was not recovered in this matter. But as per the material available on record, the offence was committed on 19.7.95 and after committing the offence the accused absconded and on 12.3.96, the accused surrendered before the court. On 13.3.96 the accused was formally arrested and two days police custody remand was sought for purpose of recovery of the weapon of offence. The accused on the same day made disclosure statement that after commission of the offence he has thrown the country made pistol in Punjabi Bagh, Ganda Nala. The weapon of offence was not recovered though efforts were made by the police. Under these eventualities due to long time gap and the place where the weapon of offence was thrown, there was very dim chances of recovery of weapon of offence. Hence considering these circumstances and the fact that 23 the FIR against the accused is by name non- recovery of weapon of offence in the case does not affect the case of the prosecution.
38. One of the line of argument of Ld. counsel for the accused was that no neighbour or independent witness was joined to the investigation on the spot. In this regard, evidence of PW 25 IO Insp. Samsher Singh is perused carefully. During cross examination, the witness has stated that he remained at the spot for about one hour. There were other houses near the house in question. He made inquiries from the neighbours but at his asking none has got ready to join the investigation. Regarding the non joining of independent witnesses or any witness from the neighbourhood, it is found that generally public persons avoid coming forward to depose against anybody to avoid legal technicalities or under fear etc especially in shoot out cases. Further, the prosecution has examined 5 material witnesses i.e. PW1 Pradeep Kumar and PW4 Shanti Devi both spot witnesses and PW5 Renu Chhabra, PW9 Brij Mohini and PW 10 Inder Singh all three injured and eye witnesses. More over, it is not necessary to join the investigation each and every person present on the spot. It is well settled law of land that it is the quality of the witness which matters and not quantity of the witnesses. Hence I do not find any force in the argument advanced by Ld. counsel for the accused on this score also.
2439. One of the contention of Ld. counsel for the accused was that why the IO has not recorded the statement of eye witnesses and even of injured PW5 Brijmohini who met the police on spot when she came back from Nursing Home. Ld. counsel for the accused has vehemently argued that when eye witnesses and even one injured met the police on spot and the police came to know about the commission of the cognizable offence, why at that first instance, the statement of any of the eye witness or injured was not recorded. The statement of PW5 Renu recorded at hospital is hit by section 162 CrPC. On this score, admittedly, this fact came on record during the cross examination of PW5 Brij Mohini that when she came back from Nursing home, the police met her at spot but she has specifically stated that police did not inquire from her about the incident at that time. PW1 Pradeep Kumar has also stated that IO met him on the spot on the date of occurrence. IO PW 25 Insp. Samsher Singh has also stated during cross-examination that when he reached at the spot son of Shanti Devi and Shanti Devi met him on spot and he even made inquiry from mother and brother of the accused. Now the question arises when the IO for the first time came to know about the incident and commission of cognizable offence on spot from the material witnesses and recording of the FIR on the basis of statement of PW5 Smt. Renu subsequently recorded at 25 hospital is fatal to the case of prosecution or whether it is hit by section 162 CrPC. The answer of this query is in negative because the IO might have avoided to record the statement of these witnesses because three members of the family were injured in the shoot out took place there. Further, it might have been in the mind of the IO that the witnesses and injured might not give the correct account of incident as they would have been undergone the trauma of the incident. In case Pattad Amarappa Vs. State of Karnataka AIR 1989 SC 2004 wherein Hon'ble Supreme Court has inter alia held that in their panic stricken state witnesses would not have been able to give cogent and comprehensive statements to the IO about the attack launched on them and the deceased by the assailant. For all these reasons it could not be said that the statement was not the earlier statement to be recorded. Thus it was not hit by section 162 CrPC.
40. In the instant case also three members of the family has sustained bullet injuries. Even as per the evidence came on record PW 10 Inder Singh has sustained serious injuries as he was fired at twice. In the light of the aforesaid judgment and the fact and circumstances of the case , if the IO has not recorded the statement of witnesses for the first time at spot, it is not hit by section 162 CrPC and is not fatal to the case of the prosecution.
2641. Regarding the earlier enmity between the parties and the false implication of the accused as submitted by Ld. counsel for the accused it is found that explanation in this regard was called from PW1 Pradeep Kumar , brother of injured, PW4 Shanti Devi, PW5 Renu Chhabra, PW9 Brijmohini, but they have denied the pendency of any dispute regarding the partition of the property. However PW 10 Inder Singh denied that he stated to the police that due to property dispute there used to be quarrel between the accused and his family. This portion was confronted with portion A to A of statement Ex.PW9/DA where it is so recorded. Whether the earlier enmity is ground for false implication or not depends on the facts and circumstances of each case. In the present matter nothing came on record if any partition suit or any sort of other litigation was pending between the parties qua the property of family. In case State of Punjab Vs. Gurmit Singh AIR 1996 Supreme Court of India 1393 it was hold that the enemity is double edged sword, it may be reason for false implication and may be good reason for committing crime.
In the present matter three persons has sustained bullet injuries. No prudent person could inflict such injuries that too at the vital parts of the body simply to falsely implicate the other person. Considering the nature of the injuries sustained by the injured I do 27 not find any ground to doubt the case of the prosecution that these injuries are self inflicted simply to falsely implicate the accused or the accused was falsely implicated due to earlier enmity.
42. The next contention of Ld. counsel for the accused is that no doctor was examined and only record clerks were examined by the prosecution. Regarding the medical evidence in case Chiman Bhai Uka Bhai Vs. State of Gujarat AIR 1993 SC 484 , it was held by Hon'ble Supreme Court that ordinarily the value of medical evidence is only corroborative. It is proved that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not be possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless however, medical evidence in its pattern goes so far that it completely rules out all possibilities whatsoever if the injuries taking place in the manner alleged by the eye witnesses. The testimony of eye witnesses cannot be thrown out on the ground of alleged inconsistencies between it and the medical evidence.
43. Now coming to the present matter first the case of injured Inder Singh is taken up. Inder Singh was taken to RML hospital on 19.7.95 and he was medically examined by PW 23 Dr. Daljeet Kaur 28 and she has proved the MLC prepared by her as Ex. PW23/A. She has further submitted that patient Inder Singh was brought to the hospital with alleged history of gun shot injury. She has further referred the patient to surgical emergency for further management and this fact is even mentioned in the MLC Ex.PW23/A. Opinion regarding the nature of injuries in person of Inder Singh is given by Dr. Pankaj. PW 19 Surender Singh Record Clerk from RML Hospital appeared in court and submitted to the effect that Dr. Pankajk has left the hospital and he identified the handwriting and signatures of Dr. Pankaj. The opinion regarding the nature of injuries given on Ex. PW19/A is at point A. During cross examination of this witness only one question was put whether the doctor has left the address while leaving the hospital to which he replied in affirmative. But no further explanation was called and no objection was raised regarding marking the MLC of the injured as Ex. PW19/A at that time. As per the Evidence Act, one of the mode to prove the signatures on a document is by calling a person calculated with the handwriting of a person by whom the document is supposed to be signed or written. PW 19 Surender Singh has submitted that he can identify the signatures and handwriting of Dr. Pankaj who has left the hospital and has marked the opinion of the Dr. Pankaj regarding the nature of injury on person of Inder Singh is Ex. PW19/A but no objection was taken when the said document was exhibited. In case State 29 Bank of India Vs. Ramayannapu Krishna Rao AIR 1995 Orissa 244, it was inter alia held that if the objection is confined only to the mode of proof it must be taken at the earliest point of time when the document was tendered in evidence in the trial court. The objection is not permissible to be raised at a subsequent stage or in appeal.
In this matter also no objection was taken by the accused or on behalf of the accused at the time when the opinion given by Dr. Pankaj was exhibited by PW 19 record Clerk Surender. When the document has been exhibited the contents of the document have to be read in evidence. In Ex. PW19/A at point A, the concerned Dr. Pankaj has opined the injuries grievous in nature.
44. Now coming to the medical documents of PW5 Renu Chabra. PW6 Dr. Anita Sahni has submitted that on 19.7.95 she has examined injured Renu and prepared MLC Ex.PW5/A which bears her signatures at point A and B. She has also submitted that she was brought to the hospital with alleged history of gun shot. On the basis of the injury sustained by the injured she was referred for surgical emergency for further management. The opinion on the said MLC was given by Dr. Sanjay Saraf. PW 26 Surender Singh record clerk from RML hospital submitted that he has seen Dr. Sanjay Saraf writing and signing during official duties. He has left the services of hospital and his present whereabouts are not known. The witness 30 has proved the opinion of Dr. Sanjay Saraf at point B on MLC Ex. PW26/A. (MLC of injured Renu Chhabra bearing No. 79676/95 is on record which bears the opinion of Dr. Sanjay Saraf as dangerous but this document has not been formally exhibited as Ex. PW26/A neither it is shown that signatures of Dr. Sanjay Saraf bears at point C. It seems that the document has not been formally exhibited as Ex. PW26/A and or the signatures of Dr. Sanjay Saraf at point C inadvertently. But considering the statement of PW 26 the said document is considered as no prejudice is going to cause the accused as PW 26 was not cross examined at all.)
45. Regarding injured Brij Mohini it is found that she was taken to DDU hospital on 19.7.95. PW 14 Mr. J.C. Vashist Record Clerk from DDU hospital was examined. He submitted to the effect that the MLC in question pertaining to patient Brijmohini is in the handwriting of Dr. Tejender Jr. Resident who has left the services of the hospital and his present whereabouts are not known. He is conversant with the handwriting and signatures of Dr. Tejender and proved MLC Ex.PW14/B. On the basis of contents of Ex. PW14/B it is revealed that injuries sustained by the injured Brij Mohini she was referred for x-ray and x-ray report was proved by PW15 Dr. Yashpal as Ex. PW14/A. The opinion in the injuries in person of Brijmohini was given by Dr. Yashpal who was examined as PW2 and proved his 31 endorsement regarding the opinion of injuries in person of Brijmohini in Ex. PW2/B at point C. In view of this discussion it is found that the medical documents were duly proved by the prosecution.
46. Regarding the improvements in evidence of witnesses as pointed out by the Ld. counsel for the accused it is found that the core issue in the case is the date, time , place of incident and manner in which the accused has fired at the injured persons. But none of the improvement as pointed out goes to the root of the matter and shakes the basic version of the witnesses. Moreover, the improvement made by the witnesses and variation in their earlier and later statements are not by itself sufficient to hold their testimonies infirm. Reliance can be made in case Maqsoodan Vs. State of UP AIR 1983 SC 126.
47. In order to prove the guilt of the accused the prosecution was required to prove that on 19.7.95 at about 5.30 pm at house No. WZ 33 Ramgarh Colony, Moti Nagar, accused Ashok has voluntarily caused hurt in person of Renu, Inder Singh and Brijmohini with bullet fire from the pistol with knowledge and intention to kill them.
48. The FIR against the accused is by name. The accused has 32 been rightly identified by the material witnesses i.e. PW4 Shanti Devi, PW5 Renu Chhabra, PW9 Brij Mohini and PW 10 Inder Singh. The accused is related to eye witness Shanti Devi and the injured persons, hence no question arises to doubt the identification of the accused. Further all these witnesses has categorically stated that incident is of 19.7.95 at house No. WZ 33 Ramgarh Colony, Moti Nagar. There are some minor contradictions about the time of the incident as PW4 stated at 4 pm and PW 10 Inder Singh has stated the time as 5 pm whereas PW5 Renu Chhabra stated the time of incident at 4.30/5pm and PW9 Brijmohini has stated the time of incident at 5/5.30 pm. But such type of contradictions are bound to happen how much trustworthy and reliable witnesses may be due to normal error of observation, normal error of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. Further PW4 Shanti Devi and PW5 Renu Chhabra have categorically stated that after some time quarrel took place between Ashok and Renu and when Inder PW 10 returned to home , accused Ashok has first fired at Inder Singh and when he fell, PW 5 Renu Chhabra tried to intervene and rescue Inder Singh. But accused fired at her and when PW5 Brij Mohini came to intervene, accused fired at her also twice. Thereafter accused again fired at Inder Singh as a result all the three persons has sustained bullet injuries. All these witnesses were cross-examined at length but Ld. counsel for the 33 accused has failed to shake their testimonies. Hence the testimonies of these material witnesses remained unshaken and unimpeached. No ground is found to doubt the testimony of any of the witnesses regarding the manner in which the accused has committed the offence.
49. The accused has examined DW1 Smt. Prakash Rani in support of his case but she has not deposed anything on account of the facts of the case but has simply deposed on the personality of the accused. She has further deposed that she has not seen the alleged incident and did not know anything else. In these circumstances, it is found that the defence evidence does not help the accused at all and same is discarded accordingly.
49. The medical evidence led by the prosecution has been discussed earlier in detail. In addition to that here it is necessary to mention that as per MLC Ex.PW14/B pertaining to injured Brij Mohini, it is found that she sustained bullet injury on her left thigh and it is mentioned as injury No.4 in the said MLC.
As per MLC Ex.PW5/A of injured Renu Chhabra , she sustained bullet injury over the right iliac crest over the highest point of iliac crest and on the left side above the highest point of iliac crest.
As per MLC Ex. PW23/A injured Inder Singh has sustained 34 bullet injury near left side of chest near left nipple, right shoulder and left acromoclavicular joint.
As per the testimony of injured persons and PW4 Shanti Devi it is found that they have in unmistakable terms stated that the accused first fired at Inder Singh, then fired at Renu Chhabra, then on Brijmohini. Thereafter the accused again fired at Inder Singh. The medical evidence is fully corroborating the testimonies of all these witnesses.
50. The clothes worn by the injured were containing bullet holes and the blood collected from the spot was human blood is proved from the uncontroverted testimony of PW28 Dr.Rajender Kumar Sr. Scientific Officer as this witness was not cross-examined at all.
51. All the injured has sustained injuries with bullets of .32 inch caliber is proved from the testimony of PW 27 Sh. K.C. Varshney Sr. Scientific Officer (ballistic). As a matter of record this witness was also not cross examined and as such evidence of this witness also remained uncontroverted.
52. In the light of the above discussion, it is found that the prosecution has proved its case beyond reasonable doubt against 35 the accused. Hence the accused is held guilty U/s 307 IPC. Let he be heard at the point of sentence.
(Bhupesh Kumar) ASJ(FTC)/West/Delhi 26.11.2008 (Announced in open court ) In the court of Sh. Bhupesh Kumar Addl. Sessions Judge, Fast Track Court (WEST), DELHI SC No. 2/08 State Vs. Ashok Kumar son of Late Sh. Jai Gopal R/o WZ 33, Ramgarh Colony, Moti Nagar, New Delhi FIR No. 373/95 P.S. Moti Nagar U/s 307 IPC Order on Sentence
1. Arguments of Sh. Atul Kumar Gupta, Ld. Addl. P.P. for the State and Sh. Yoginder Singh, Ld. counsel for accused heard at 36 point of sentence.
2. Ld. Addl. P.P. for the State submitted that in this matter the convict has committed brutal act of shooting three members of his family. Now a days in the present scenario the crime is increasing in society day by day. The sentence should be such that it should have deterrent effect and public should avoid taking law in their hands. Considering the nature of crime committed, the convict is not entitled for any leniency rather deserves maximum punishment.
3. On the other hand, Ld. counsel for convict prayed for lenient view on the ground that the convict is suffering the agony of trial since 1995. He is a poor person and sole bread earner of the family. He is looking after his old aged widowed mother as other brothers of the convict are living separately. The case is outcome of the enmity between the accused and the complainant party. The convict was only 28 years old at the time of said incident. He is young and opportunity should be given to him to become good citizen and to lead peaceful life.
4. I have heard the arguments of Ld. Addl. P.P. for the State and Ld. counsel for convict besides going through the material on 37 record carefully.
5. The accused has been held guilty in the present matter for committing offence U/s 307 IPC for shooting his real uncle and two aunties with knowledge and intention to kill them.
Section 307 IPC deals with two situations so far as the sentence is concerned. Firstly, whoever does any act with such intention or knowledge and under such circumstances that, if he by that act causes death, would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine; and secondly 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 indicated in the first part i.e. 10 years.
The present case is covered under the second part of the Section 307 IPC as the accused has caused bullet injuries to three persons. In the event of causing of the shoot out the convict has first shoot his uncle Inder Singh and when his aunty Smt. Renu Chhabra, wife of Inder Singh came to rescue him the convict fired at her and when another aunty Smt. Brijmohini intervened he has shot her also. The convict has not stopped here but he again shot his uncle Inder Singh while he was lying in the lap of his mother in injured condition. The act of the convict is found to be gruesome 38 and brutal. In case State of Madhya Pradesh vs. Salim, AIR 2005 Supreme Court of India 3996, it was held by Hon'ble Supreme Court that the object of imposing sentence should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to an be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'.
6. The contention of Ld. counsel for convict that the convict has been falsely implicated in this mater due to old enemity has already been discussed in the judgment. There is no reason to discuss on this aspect again. However considering the entire facts and circumstances, the age of the convict and the agony of the trial the convict has suffered, he is convicted to undergone 39 rigorous imprisonment for 10 years and fine of Rs. 5000/-. In default of payment of fine, further SI for six months. Fine not paid. Benefit of Section 428 CrPC given. Copy of judgment and order on sentence be supplied to the convict free of cost.
(Bhupesh Kumar) ASJ(FTC)/West/Delhi 28.11.08 (Announced in open court) 40 In the court of Sh. Bhupesh Kumar Addl. Sessions Judge, Fast Track Court (WEST), DELHI SC No. 2/08 State Vs. Ashok Kumar son of Late Sh. Jai Gopal R/o WZ 33, Ramgarh Colony, Moti Nagar, New Delhi FIR No. 373/95 P.S. Moti Nagar U/s 307 IPC Order on Sentence
7. Arguments of Sh. Atul Kumar Gupta, Ld. Addl. P.P. for the State and Sh. Yoginder Singh, Ld. counsel for accused heard at point of sentence.
8. Ld. Addl. P.P. for the State submitted that in this matter the convict has committed brutal act of shooting three members of his family. Now a days in the present scenario the crime is increasing in society day by day. The sentence should be such that 41 it should have deterrent effect and public should avoid taking law in their hands. Considering the nature of crime committed, the convict is not entitled for any leniency rather deserves maximum punishment.
9. On the other hand, Ld. counsel for convict prayed for lenient view on the ground that the convict is suffering the agony of trial since 1995. He is a poor person and sole bread earner of the family. He is looking after his old aged widowed mother as other brothers of the convict are living separately. The case is outcome of the enmity between the accused and the complainant party. The convict was only 28 years old at the time of said incident. He is young and opportunity should be given to him to become good citizen and to lead peaceful life.
10. I have heard the arguments of Ld. Addl. P.P. for the State and Ld. counsel for convict besides going through the material on record carefully.
11. The accused has been held guilty in the present matter for committing offence U/s 307 IPC for shooting his real uncle and two aunties with knowledge and intention to kill them.
Section 307 IPC deals with two situations so far as the 42 sentence is concerned. Firstly, whoever does any act with such intention or knowledge and under such circumstances that, if he by that act causes death, would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine; and secondly 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 indicated in the first part i.e. 10 years.
The present case is covered under the second part of the Section 307 IPC as the accused has caused bullet injuries to three persons. In the event of causing of the shoot out the convict has first shoot his uncle Inder Singh and when his aunty Smt. Renu Chhabra, wife of Inder Singh came to rescue him the convict fired at her and when another aunty Smt. Brijmohini intervened he has shot her also. The convict has not stopped here but he again shot his uncle Inder Singh while he was lying in the lap of his mother in injured condition. The act of the convict is found to be gruesome and brutal. In case State of Madhya Pradesh vs. Salim, AIR 2005 Supreme Court of India 3996, it was held by Hon'ble Supreme Court that the object of imposing sentence should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose 43 such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to an be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'.
12. The contention of Ld. counsel for convict that the convict has been falsely implicated in this mater due to old enemity has already been discussed in the judgment. There is no reason to discuss on this aspect again. However considering the entire facts and circumstances, the age of the convict and the agony of the trial the convict has suffered, he is convicted to undergone rigorous imprisonment for 10 years and fine of Rs. 5000/-. In default of payment of fine, further SI for six months. Fine not paid. Benefit of Section 428 CrPC given and the period of detention the accused already undergone shall stand set off. The convict who was earlier on bail, is taken into custody. Copy of judgment and order on sentence be supplied to the convict free of 44 cost. File be consigned to record room.
(Bhupesh Kumar) ASJ(FTC)/West/Delhi 28.11.08 (Announced in open court)