Delhi District Court
State vs 1) Harish Dagar on 23 November, 2022
FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act IN THE COURT OF VIPLAV DABASS: ADDL. SESSIONS JUDGE : FAST TRACK COURT: SOUTH-WEST DISTRICT DWARKA COURTS: NEW DELHI SC No. 441056/2016 CNR No. DLSW0100147-2011 State vs 1) Harish Dagar s/o Sh. Ram Kishan R/o Village Samaspur Khalsa, Post Office Ujwa, Police Station Jaffar Pur Kalan, New Delhi. (2) Sandeep @ Roodi s/o Sh. Samay Singh R/o Samaspur Khalsa, Post Office Ujwa, New Delhi FIR No. 48/11 PS Jaffar Pur Kalan Under Section 452/307/34 IPC & 25/27 Arms Act Date of Institution 16.08.2011 Date of committal to sessions 17.09.2011 court Date of transfer to this court 01.09.2022 Date of Reserving Judgment 23.11.2022 Date of pronouncement 23.11.2022 Final Order /Judgment Convicted State V/s Harish Dagar & Anr. Page 1 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act JUDGMENT
FACTUAL MATRIX
1. On 16.06.2011 at about 11.45 pm, both accused persons namely Harish Dagar and Sandeep @ Roddi in pursuance of the common intention shared by them had tresspassed in the house of complainant Sunita wife of Sh. Ajay, by crossing over the boundary wall, after having made preparation for causing hurt to her son Govind. On being exhorted by accused Sandeep @ Roddi to fire upon the chest of victim Govind, the accused Harish fired upon Govind's chest from his unlicensed pistol carried by him in contravention of notification of Delhi Administration, with such intention and knowledge that, if that act had caused the death of Govind, they would have been guilty of murder of victim Govind. On the basis of the aforesaid allegations, present FIR was registered and after completion of the investigation, the charge-sheet was filed in the court.
INITIAL COURT PROCEEDINGS AND CHARGE
2. The Court of Ld. Magistrate took cognizance of the alleged offences and committed the matter to Ld. Sessions Court after compliance of provisions of section 207 Cr.P.C.
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3. After hearing detailed arguments on behalf of the accused persons and the State, as a prima facie case was made out, charge for the offence punishable under Section 452/307/34 IPC was framed against both accused persons and a separate charge for offence punishable under section 25/27 Arms Act, 1959 against accused Harish Dagar was also framed to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
PROSECUTION EVIDENCE AND STATEMENT OF ACCUSED
4. During the course of the trial, prosecution examined 18 witnesses to substantiate the accusations levelled against the accused persons.
5. PW-1 HC Bhagwati Prasad was the Duty Officer at PS Jaffar Pur Kalan, on 12.05.2011. This witness was not cross examined by the Ld. Defence counsels despite opportunity. He proved the factum of lodging of DD No. 3-A making of call to SI Udai Singh, sending of rukka by SI Udai Singh through Ct. Sanjay, lodging of present FIR by him on the basis of said rukka and marking of investigation to PW-12 Inspector Ram Singh.
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6. PW-2 Smt. Sunita was the mother of the victim, PW-3 Sh. Ajay Singh was the father of victim and PW-5 Govind was the victim. Their testimonies will be discussed in detail in later part of this judgment.
7. PW-4 Constable Virender was posted at CPCR on 17.06.2011. This witness was not cross examined by the Ld. Defence counsels despite opportunity. He proved the factum of receipt of call regarding the incident from mobile number 9540372281, the factum of uploading the said information on net, filling up of the PCR form and the PCR Form Ex. PW-4/A.
8. PW-6 Constable Suresh was the Photographer posted with mobile Crime Team South West Delhi on 17.06.2011. This witness was not cross examined by the Ld. Defence counsel for accused Sandeep @ Roddi despite opportunity but was duly cross examined on behalf of accused Harish. He proved the factum of taking the photographs of the spot and also proved the said photographs as well as their negatives vide as Ex.PW-6/A to PW-6/A-12, Ex. PW-6/B-1 to PW-6/B-12 respectively.
9. PW-7 Inspector Anil Kumar was the Incharge Crime Team South West, New Delh on 17.06.2011 who reached the spot along with one photographer PW-6. The witness was duly cross State V/s Harish Dagar & Anr. Page 4 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act examined on behalf of both the accused persons. He proved the factum of finding blood spots in the compound of the house, factum of taking of photographs of the crime spot by photographer PW-6 on his instance, factum of inspection of the spot of incident and also proved his report in that regard Ex. PW- 7/A.
10. PW-8 Constable Sanjay was the police official of PS Jaffar Pur Kalan, who was the first person to reach the spot along with SI Udai Singh, PW-13 from PS Jaffar Pur Kalan. The witness was duly cross examined on behalf of both the accused persons. He proved the factum of reaching of Inspector Ram Singh at the spot, the fact that he and SI Udai Singh were left at the spot by Inspector Ram Singh, the fact that PW-12 SI Ram Singh went to RTRM Hospital, the factum of return of Inspector Ram Singh to the spot after about one hour, the fact that mother of injured Govind had already reached at the spot, the factum of recording of statement of victim's mother by Inspector Ram Singh, the factum of preparation of rukka and handing over of the same to him by Inspector Ram Singh, the fact that he took the rukka to the police station and got the FIR registered as well as brought back the original rukka and copy of FIR to the spot and handed over the same to Inspector Ram Singh. He further proved the factum of lifting of blood sample and earth control from the State V/s Harish Dagar & Anr. Page 5 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act spot and sealing as well as seizure of the same by Inspector Ram Singh in his presence. He further proved the fact that he along with SI Udai Singh reached DDU hospital where father of injured handed over blood stained clothes to them and the factum of arrest of accused Sandeep @ Roddi from Surhera Mor, Najafgarh at the instance of father of the victim vide Ex. PW- 3/A. He also proved the identity of accused Sandeep @ Roddi as the same person who was arrested in his presence.
11. PW-9 Dr. Bikas Sinha was the Medical Officer in RTRM Hospital, Jaffar Pur, New Delhi who proved the MLC Ex. PW- 9/A of victim and his observations qua injuries upon the victim. The witness was duly cross-examined on behalf of both the accused persons.
12. PW-10 Constable Ajay Pal was posted as Constable in Police Station, Jaffar Pur Kalan. The witness was duly cross examined by ld. Defence counsel. He proved that he along with Inspector Ram Singh and SI Udai Singh reached village Issapur in search of accused Harish where they met the father of injured Govind who told them that accused Harish was seen in village Samaspur and he can be found there, the factum of reaching the house of accused Harish in village Samaspur, the factum that Inspector Ram Singh made inquiries from the mother of accused State V/s Harish Dagar & Anr. Page 6 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Harish, the fact that they went to the fields of accused Harish and remained hidden there for about ten minutes in wait for accused Harish, the fact that on his arrival there accused Harish was duly identified, apprehended and arrested vide arrest memo Ex. PW- 2/B, the fact that accused Harish got recovered a country made revolver from the tubewell in his fields, the fact that the revolver was sealed by Inspector Ram Singh vide seizure memo Ex. PW- 10/A and the fact that from there they returned to the police station along with accused Harish and case property and that his statement was recorded by the IO in the police station. He further proved the identity of the accused Harish and country made pistol Ex. P5 as the same person and the same weapon which was recovered at his instance.
13. PW-11 Constable Dushyant Rathee was Constable posted in PS Jaffar Pur Kalan on 17.06.2011. He was duly cross examined by ld. Defence counsel. He proved the factum of his going to DDU Hospital, the fact that the doctor handed over to him one sealed pullanda and a sample seal, the fact that he brought them to the police station and handed over the same to Inspector Ram Singh and the fact that the same was seized by Inspector Ram Singh vide seizure memo Ex. PW-11/A in his presence.
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14. PW-12 Inspector Ram Singh was the Inspector ATO/IO in PS Jaffar Pur Kalan on 17.06.2011 and PW-13 SI Udai Singh was on emergency duty at PS Jaffar Pur Kalan who went to the spot of incident along with PW-8/Ct. Sanjay and also participated in the investigation along with PW-12. Both the witnesses were cross-examined at length by the Ld. Defence counsel. Their testimonies will be discussed in the later part of this judgment.
15. PW-14 Sh. Pankaj Kumar Singh was posted as Addl. DCP, SW District Dwarka, New Delhi 26.09.2012. The witness was cross examined by Ld. Defence counsel. He proved the sanction under section 39 of Arms Act as Ex. PW-14/A.
16. PW-15 Sh. Naresh Kumar, was posted as Sr. Scientific Officer (Biology) on 05.08.2011 at FSL Rohini. The witness was duly cross examined by Ld. Defence counsel. The witness proved his biological report as Ex. PW-15/A and his serological report as Ex. PW-15/B. He further proved that out of the 10 sealed parcels received in the office of FSL, Rohini, three parcels were sent to Ballistic Division for examination.
17. PW-16 Sh. Puneet, was posted as Sr. Scientific Officer (Ballistics), FSL, Rohini on 24.11.2011. The witness was not cross examined by Ld. Defence counsel despite opportunity. He State V/s Harish Dagar & Anr. Page 8 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act proved the factum of receiving three sealed parcels through Biology Division of their laboratory. He further proved that the country made pistol marked as Ex. F1 was a firearm and the cartridges marked a Ex. A1 and Ex. A2 and the bullet marked as Ex. EB1 were ammunition as defined in Arms Act 1959. He further proved the his detailed report in this regard as Ex. PW- 16/ A.
18. PW17-DR. MANINDER KAUR CHHABRA, SPECIALIST SURGERY was posted at DDU hospital on 17.06.2011. The witness was cross examined by Ld. Defence counsel. She proved the fact the victim/patient was admitted in surgery department and was operated on the same day and the fact that his injuries were dangerous and caused by gun shot. She further proved the original discharge file of patient Govind vide Ex. PW-17/A and the fact that bullet was handed over to Ct. Dushyant Rathee.
19. PW18 SI Narender Singh(was summoned pursuant to allowing of application under section 311 Cr.P.C) was posted as HC at PS J.P. Kalan on 17.06.2011 and was assigned duty of MHC(M). The witness was duly cross examined by Ld. Defence counsel. He proved the factum of deposition of seven sealed parcels on 17/6/2011 by the IO inspector Ram Singh in the State V/s Harish Dagar & Anr. Page 9 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act malkhana vide entry number 962/11 Ex. PW-18/A made in the register number 19. He further proved that on 20.06.2011 three sealed parcels and one Zen car bearing registration number DL3CK2680 was handed over to him by the IO which were also deposited in the malkhana vide entry number 966/11 Ex. PW- 18/B made in the register number 19. He further proved that on 5/8/2011 10 sealed parcels of this case were got deposited in FSL, Rohini vide RC number 104/21/11 Ex. PW-18/C and the case property remained intact in his possession.
20. Thereafter, prosecution evidence was closed vide order dated 20.01.2020 at the request of the Ld. (Sub) Additional Public Prosecutor and the matter was fixed for recording statement of accused persons under Section 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to them to which they stated the same are incorrect, that the same is a matter of record, that the witnesses have deposed against them being interested witnesses and that they have been falsely involved in the present case. However, on 26.11.2021 an application under section 311 Cr.P.C was filed by Ld. Addl PP for State, which was allowed and the then MHC(M) was summoned along with Register No 19 and Road Certificates for the year 2010 and 2011 and he was discharged after cross- examination. Thereafter, additional statement of accused persons State V/s Harish Dagar & Anr. Page 10 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act under section 313 Cr.P.C was recorded on 01.09.2022 wherein, all incriminating circumstances appearing in the evidence were put to them and they replied that the facts alleged by the prosecution are incorrect, that they are innocent, that they have been falsely implicated in the present case and the witnesses are the interested witnesses. The accused persons opted not to lead defence evidence and therefore, defence evidence was closed. Thereafter, matter was fixed for final arguments.
SUBMISSIONS OF THE PARTIES AND REASONS FOR THE DECISION
21. This court heard the arguments advanced by the Ld. (substitute) Additional PP for the State as well as Ld. Counsel for the accused persons and also perused the written arguments of both the parties and the record of the case.
22. Ld. Substitute Additional Public Prosecutor argued that the eye witnesses PW-2, PW-3 and PW-5 and the other prosecution witnesses ie police witnesses and the medical/ballistic experts have clearly established the prosecution version of sharing of common intention by both the accused persons, the identity of both the accused persons as assailants, the fact that the accused persons tresspassed into the house of the complainant Sunita in State V/s Harish Dagar & Anr. Page 11 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act furtherance of their common intention after making preparation to hurt the victim Govind, the factum of sharing of common intention by both the accused persons to shoot at the complainant in a manner that would have made them liable for murder in case death of the victim was caused, the fact that in pursuance of said common intention both accused committed house tresspass after making preparation of causing hurt, that the accused Harish shot at the chest of the victim Govind on the exhortation of accused Sandeep @ Roddi by using pistol due to which victim sustained dangerous injury, the factum of happening of the alleged incident of firing/ shooting in the alleged manner and that accused Harish was found in possession of unlicensed pistol with two live cartridges which was used by accused Harish in the said incident. He further argued that the various discrepancies, inconsistencies and lacuna as mentioned in the written arguments filed on behalf of the accused persons are not fatal to the case of the prosecution as the same are not material. In view of aforesaid arguments, Ld. Sub. Addl. PP for State submitted that both the accused persons be convicted for the charge u/s 307/34 and 452/34 IPC levelled against them and accused Harish Dagar be also convicted for the offence punishable under section 25 and 27 Arms Act levelled against him.
23. Ld. counsel for the accused persons argued that there are State V/s Harish Dagar & Anr. Page 12 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act grave inconsistencies in the testimony of prosecution witnesses regarding the alleged manner of the happening of the incident, the presence of the prosecution witnesses at the spot and during investigation, the recovery of the pistol, live cartridge and car allegedly used by the accused persons at the time of the incident. He further argued that even the ballistic report regarding the bullet extracted by the doctors at the time of surgery is not supporting the prosecution version as the experts failed to give any opinion due to insufficient striations.
Ld. Defence counsel further argued that the IO admittedly did not investigate on the point of motive ie taking place of marriage function wherein some hot argument took place between the victim and the accused persons and which formed the motive as per the prosecution version for commission of present offence. He further argued that this omission creates grave doubt on the story of the prosecution.
Ld. Defence counsel for the accused persons further submitted that that the accused persons were admittedly known to PW-2 ie the mother of the victim but she did not mention the name of the accused persons at the very first instance. He submitted that this omission on the part of PW-2 creates grave doubt on the prosecution version of involvement of the accused persons in the incident which further substantiates the defence version of false implication.
State V/s Harish Dagar & Anr. Page 13 of 75FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Learned counsel for defence further argued that prosecution failed to prove the fact as to by whom the injured/PW-5 was admitted to the hospital and this fact creates grave doubt upon the place of incident from which the victim was taken to hospital. He further argued that as per PW-2 and PW-3, the injured was taken to hospital by them in the car of the relative Sachin, whereas as per MLC and testimony of PW-13 one constable Karan Singh, PCR had taken the injured to the hospital.
Ld. Counsel for the defence argued that apart from the various discrepancies during the investigation, the most glaring omission is that the investigating agency did not join any public person at the time of investigation, at the spot of incident, at the time of arrest of accused persons, at the time of recovery of pistol, two live cartridges and car as well as at the time of making various other memos exhibited during the evidence. He further submitted that the accused persons in these circumstances should be acquitted.
24. Per contra, Ld. Sub. Addl. PP for State has countered the aforesaid arguments by stating that the said inconsistencies are minor ones and not material in the present facts as they do not go to the roots of the case & hence the arguments made by Ld. Counsel for accused are not tenable.
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25. In order to prove the offense U/s 307/452/34 IPC and offence punishable under section 25/27 Arms Act, 1959 against both accused persons the prosecution was required to prove beyond reasonable doubt the identity of both the accused persons as assailants, the fact that the accused persons tresspassed into the house of the complainant Sunita in furtherance of their common intention after making preparation to cause hurt to the victim Govind, the factum of sharing of common intention by both the accused persons to shoot at the complainant in a manner that would have made them liable for murder in case death of the victim was caused, the fact that in pursuance of said common intention both accused committed house tresspass after making preparation of causing hurt, that the accused Harish shot at the chest of the victim Govind on the exhortation of accused Sandeep @ Roddi by using pistol due to which victim sustained dangerous injury, the factum of happening of the alleged incident of firing/ shooting in the alleged manner and that accused Harish was found in possession of unlicensed pistol with two live cartridges which was used by accused Harish in the said incident.
26. For proving the aforesaid ingredients, the prosecution examined 18 witnesses out of which PW-2, PW-3 and PW-5 are the most important witnesses being the eye witnesses of the State V/s Harish Dagar & Anr. Page 15 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act incident and the remaining witnesses are the police and medical/FSL officials who carried out the investigation based on the version of the complainant and examined the accused in hospital and his pistol/revolver at FSL.
27. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
OCULAR TESTIMONY OF PW-2, PW-3 AND PW-5
28. Perusal of the record reveals that PW-5 Govind, who is the victim, specifically deposed in his examination in chief that on 16.06.2011, at about 10.00 or 10.30 pm, he was present in a marriage party in Qazi Pur, New Delhi. Accused Harish and Sandeep (present in court) were also present in the marriage party and they were drunk. He knew accused Harish and Sandeep before hand as they were in his friend circle. He heard accused Harish and Sandeep hurling abuses and he asked them whey they were doing so. A scuffle took place between him and the two accused and they manhandled each other. Thereafter, all of them left the marriage party. He returned to his home and slept.
He further deposed that after some time, the two accused Harish and Sandeep came to his house and crossed over the State V/s Harish Dagar & Anr. Page 16 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act boundary wall of their house. They knocked on their door which was opened by his mother. He also came out. The two accused asked his mother for tea. He also asked his mother to serve the two accused with water and tea. Accused Harish asked him to come outside as he had to talk to him. He refused. At the same time, accused Sandeep exhorted Harish to kill him saying that he was acting smart in the marriage party. Accused Harish made a gun fire on him. The bullet hit him on the left side of his chest. He fell down on the floor and both accused persons ran away. Thereafter, he was taken to RTRM hospital, from where he was referred to DDU hospital, where he remained admitted for about 10 to 11 days.
He further stated that police met them in RTR hospital, Jaffar Pur and made inquiries from them. The clothes which he was wearing at the time of incident were seized by the police. He deposed that he can identify the clothes but cannot identify the gun, from which accused Harish had made fire. He correctly identified the clothes worn by him at the time of incident Ex. P-2 (colly).
In the cross-examination conducted on behalf of accused Sandeep, PW-5 testified that the two accused being drunk were hurling abuses on him without any rhyme and reason, that he must have reached the marriage venue at about 07.00pm- 08.00pm, that he left the marriage venue immediately after the State V/s Harish Dagar & Anr. Page 17 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act quarrel, that the accused persons had already reached the marriage venue before him and that first of all accused Harish hurled abuses upon him. Similarly, in the cross-examination conducted on behalf of accused Harish, PW-5 deposed that he had gone to the marriage party alone and that a marriage was of a boy known to him. These testimonies of PW-5 established the truthfulness of his version deposed in his examination in chief regarding the presence of the accused persons along with him at the marriage venue on the date of the incident as well as the factum of taking place of a quarrel between him and the accused persons at the marriage party which was initiated by accused persons. It is further inferred from afore-discussed testimonies of PW-5 that instead of challenging the version of PW-5 and extracting material in its favour, the defence got the version of happening of the quarrel with PW-5, which was initiated by the accused Harish at the marriage party, reaffirmed.
In his cross examination PW-5 further affirmed his aforesaid deposition made in the examination in chief by firmly denying the suggestions put to him to the effect that when he met the accused persons in the stairs of the community center, he threatened them that he would get them implicated in a false criminal case, that he was so heavily drunk that he caused ruckus in the marriage function and he was asked to leave the marriage party and that he had reached the marriage venue before the two State V/s Harish Dagar & Anr. Page 18 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act accused. This is clear from the aforesaid firm denials that defence failed to impeach the credit of PW-5 who remained firm in his version and established that there was no reason for him to falsely implicate the accused persons.
It is further revealed from the cross examination of PW-5 conducted on behalf of accused Sandeep that he affirmed that only Harish accused was armed with weapon, that accused Harish fired upon him from the front side, that accused Harish was facing towards him at that time, that the time must have been 11.30-pm or 12.00 mid night, that he has reached his home from the marriage venue at about 10.45 pm, that he had gone on his own motorcycle and also returned from Kazipur on the same motorcycle, that the marriage venue is 3 kms from his house and that he did not become unconscious after receiving bullet injury.
In the cross-examination conducted on behalf of accused Harish, PW-5 again affirmed that accused Harish had fired upon him from a distance of 4-5 feet. He firmly denied the suggestions that accused Harish and Sandeep had not come to his house on the date of incident, that accused Harish does not fire upon him, that he himself shot on the left side of his chest and have got the two accused falsely implicated for the same and that he was deposing falsely. These firm denials and depositions of PW-5 show that he has remained consistent qua his version of returning to his house from the marriage and causing of gun shot injury to State V/s Harish Dagar & Anr. Page 19 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act him at his house by the accused Harish at the exhortation of accused Sandeep @ Roddi.
The testimony of PW-5 to the effect, that after some time the two accused Harish and Sandeep crossed over the boundary wall of their house, that they knocked on their door which was opened by his mother, that the two accused asked for tea, that he also asked his mother to serve them tea, that accused Harish asked him to come outside as he had to talk to him, that he refused and that at the same time, accused Sandeep exhorted accused Harish to kill him saying that he was acting smart in the marriage party, has gone unrebutted as no specific suggestion to negate the same was put on behalf of the accused persons which amounts to admission of said version on behalf of accused persons.
It is seen that the defence failed to impeach his credit regarding his reaching home after attending the marriage as well as the factum of the accused persons crossing over the boundary wall of his house and making of gun fire by the accused Harish on his chest at the exhortation of accused Sandeep. It thus follows from the aforementioned discussion and deposition of PW-5 that his sole testimony is clear, cogent and credit worthy regarding, the aspect of identity of accused persons, the entry of the accused persons at his house after crossing over the boundary wall, the firing of gun shot by accused Harish on the left side of State V/s Harish Dagar & Anr. Page 20 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act chest of PW-5 at the instance of accused Sandeep due to which PW-5 sustained injury and the quarrel in the marriage function at Kazipur being the motive behind causing of the said injury by the accused persons.
29. The record shows that PW-2 Sunita and PW-3 Ajay Singh are the parents of victim/PW-5 who were present at the time of the alleged incident. PW-2 supported the version of PW-5 by firmly deposing in the examination in chief regarding the factum of knocking at their door by accused Harish at about 11.30 am, the factum of exhortation given by accused Sandeep @ Roddi to accused Harish to hit upon the chest of their son, the factum of gun firing made by accused Harish on their son and the factum of the bullet hitting on the left side of chest of their son. PW-2 also stated in examination in chief that she followed accused Harish but he jumped over the wall and left in a car waiting outside the gate.
30. PW-3 Ajay Singh specifically deposed in his examination in chief that while he was talking to his wife, his son Govind woke up and asked him not to be angry. Govind went outside. His wife also went outside that room. When they did not return for about one or two minutes, he also went outside. His wife was standing on the varandh of the house. Govind and Harish were State V/s Harish Dagar & Anr. Page 21 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act standing at a distance of about 7-8 feet from her wife. They were talking to each other while shaking their hands. On seeing her Harish said Namaste to her. She asked them to wind up their talks quickly and to go sleep. He went towards the wall of the courtyard to answer the call of nature. Soon, he heard a voice of a person saying to hit on the chest. He turned his head towards the direction of the voice and he saw accused Sandeep, standing at a distance of about 8 to 10 paces from him. Harish and Govind were standing behind him at the same distance. Just after two or three seconds when he had heard the aforesaid expression, he heard the sound of a gun fire. When he turned back to see what has happened, he saw Govind holding his chest with both his hands and bending downwards. Accused Harish, was fleeing away from the spot.
31. Perusal of the cross-examination of PW-2 Smt. Sunita conducted on behalf of accused Sandeep, reveals that she testified that only one fire was made during the incident, that accused Harish started hurling abuses first, that only accused Harish had brought the desi katta and that bullet was fired by accused Harish. She testified that vehicle in which the accused had come was of blue colour. She further affirmed that accused Sandeep was wearing a red colour shirt at that time. It is further seen from the aforesaid cross-examination of PW-2 no State V/s Harish Dagar & Anr. Page 22 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act suggestion to the effect that accused Sandeep was not present at the spot or was not wearing said coloured shirt or the shirt does not belong to Sandeep or that accused Sandeep did not exhort Harish to fire at the chest of victim/PW-5 was given to her. This omission along with the aforesaid firm testimony regarding the shirt worn by the accused Sandeep at that time establishes the presence of accused and his involvement in the alleged incident. In the cross-examination conducted on behalf of accused Harish, PW-2 remained firm in her version by firmly denying the suggestions to the effect that accused Harish had not fired upon her son, that the incident happened with her son near the school and not inside their house; that the incident did not happen in her presence, that she had deposed at the instance of Police Officials; that she had mentioned the height of boundary wall, in her statement to the police as 4.5 feet and that on the day of incident accused Harish did not come to their house and did not knock at their gate. It is evident from the afore-discussed testimony of PW-2 that she corroborated the prosecution version of happening of the incident of firing in the alleged manner at about 11.30 pm as well as the role played by the accused persons in the incident as deposed by PW-5/victim.
32. Similarly, PW-3 affirmed in his cross-examination conducted on behalf of accused Sandeep that only one bullet was State V/s Harish Dagar & Anr. Page 23 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act fired in the incident. PW-3 further firmly denied that accused Sandeep was arrested from his residence, that he had deposed falsely or that the accused persons have been falsely implicated in the present case. It is further seen from the aforesaid cross- examination of PW-3 that no suggestion to the effect that accused Sandeep was not present at the spot was given.
In cross-examination of PW-3 conducted on behalf of accused Harish he asserted that he had seen Harish for the first time at the time of incident, that the incident took place at about 11.30 pm and that on the date of incident his son Govind had gone to attend a marriage function at village Kajipur. He voluntarily explained that he had returned to house at 11.00 pm. He firmly denied the suggestions that he did not get his son Govind admitted in the hospital, that he had deposed about the incident falsely at the instance of the Police Officials, that his son Govind did not return from the marriage function on the date of incident, that accused Harish does not fire upon his son on the date of incident and he had deposed falsely in this regard.
33. It is evident from the afore-discussed testimony of PW-3 and his firm denials that the defence failed to extract any material in its favour and that PW-3 corroborated the material particulars of the version of happening of the incident of gun firing in the alleged manner at about 11.30 pm as well as the role of the State V/s Harish Dagar & Anr. Page 24 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act accused persons in the incident as deposed by PW-2 and PW-5.
Record shows that PW-2 affirmed that her blood stained clothes worn at the time of incident were seized by IO PW-12 vide Ex. PW-2/B and her statement was also recorded vide Ex. PW-2/A by the said IO. She further identified her clothes Ex. P-1 during evidence and similarly she identified the blood stained yellow colour half nikker and white colour torn Baniyan worn at the time of incident by her son PW-5. PW-3/ father of the victim correctly identified the red colour shirt worn by accused Sandeep and blue jeans worn by the accused Harish at the time of incident. He further proved that he handed over clothes of his son Govind to IO vide Ex. PW-3/A. His testimony regarding the fact that the red colour shirt and the blue colour jeans were worn by the accused Sandeep and Harish respectively at the time of the incident as well as regarding the correct identification of the same by him has gone unrebutted. PW-5 the victim correctly identified his clothes Ex. P2 which were worn by him at the time of the incident. It is seen from the testimony of these three eye witnesses that the factum of wearing of the said clothes by them as well as by accused persons is substantially established as the said evidence has gone unrebutted as even a suggestion to the effect that the said clothes were never worn by them or accused at the time of the incident or that the same do not belong to them or accused or that the same have been planted by them. The State V/s Harish Dagar & Anr. Page 25 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act testimony of IO/PW-12 and PW-13 who accompanied the IO in the major part of the investigation reveals that they both have established the factum of recovery of the aforesaid clothes from the eye witnesses/injured and the accused persons. PW-12 and PW-13 have further correctly identified the said clothes as the same which were worn by eye witnesses and accused persons at the time of incident which is in consonance with the version regarding identity of the said clothes made by PW-2, PW-3 and PW-5. PW-12 and PW-13 have further established the identity of the two pieces of the brick vide Ex. P-7 and another piece of brick vide Ex. P-8 by firmly deposing that the same were lifted from the spot. The testimonies of PW-12 and PW-13 regarding the identity of the aforesaid blood stained clothes and bricks has gone unrebutted as no specific suggestion was put to them regarding the same. Furthermore, as per the duly proved serological report Ex. PW-15/A, Exhibits '8a' ie red colour shirt/T-shirt was having brown stains which, as per the firm testimony of PW-2, PW-3 and PW-5 and police officials belongs to accused Sandeep, were found to be of human origin and having 'O' Group which corresponds to the blood group 'O' found on the clothes of the victim and of her mother Sunita. It is thus clear from aforestated observations and testimonies that presence of accused persons wearing the aforesaid clothes at the spot of incident and causing of injury to PW-5 due to which State V/s Harish Dagar & Anr. Page 26 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act blood oozed out, are duly established. It further connects the accused persons with the commission of the alleged incident.
34. Perusal of the testimony of PW-5 reveals that he stated in his examination in chief that the two accused Harish and Sandeep came to his house and crossed over the boundary wall. It is further observed from the cross-examination of PW-5 that no specific suggestion to the effect that the accused persons had not crossed over the boundary wall of their house was put to him which being a material omission amounts to admission of that part of the testimony of PW-5. Perusal of the cross-examination of PW-2 shows that she affirmed in her cross-examination that they locked their main gate during night. PW-2 further testified that boundary wall of their house was about 7-8 feet in height and she cannot tell the exact width of the gate of their house, but she can say that vehicle passes through the same easily. Similarly, PW-3 affirmed that gate of their house was locked from inside at the time of incident and their boundary wall around their house is about 5-5.5 feet in height. PW-12/IO testified in his cross-examination conducted on behalf of accused Sandeep that parents of injured Govind had told him that they lock the main gate during night. This deposition of PW-12 corroborates the version of PW-2 and PW-3 qua locking of main gate by them. These testimonies show that the accused persons State V/s Harish Dagar & Anr. Page 27 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act got it admitted that gate of the house of (PW-2 & PW-3) was locked from inside at the time of incident.
35. Perusal of the cross-examination of PW-6 Ct. Suresh, who was the photographer accompanying the Crime Team, reveals that he testified that the distance between the main gate and door of the room would be around 60-70 feet. This witness has duly proved the photographs Ex. PW-6/A-1 to PW-6/A-12 of the spot taken by him. Perusal of the photographs reveals that gate is seen installed against a wall opening towards kacha rasta/road.
36. PW-12/IO Inspector Ram Singh testified in his cross examination that the height of the boundary wall around the house is about four and a half feet and that there is a distance of about 40 feet between the main gate and house. PW-13/SI Udai Singh who was one of the police official to reach the place of incident and also accompanied the IO during investigation, testified in his cross-examination that courtyard in front of house is cemented, that there is one big room in said house and that distance between the main gate and the room is about 50 gaz.
37. It is clear from the afore stated testimonies and record that the place of incident comprised of a house with a varanda surrounded by a boundary wall with a gate installed on one of the State V/s Harish Dagar & Anr. Page 28 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act boundary walls opening towards the Road/Kacha Rasta. In this background, it is important to refer to the the testimony of PW- 5/victim to the effect that the accused persons crossed over the boundary wall of their house and knocked at their door which was opened by his mother, that he also came out, that accused Harish asked him to come outside as accused Harish had to talk to him and he refused and that at same time accused Sandeep exhorted accused Harish to fire on his chest and accused Harish shot him. The import of this testimony is that door of the living room /building was opened by his mother after which he and his mother had come out in the courtyard/varanda and that accused Harish had asked him to come out of the varanda/courtyard having locked main gate which he refused and that his refusal irked the accused persons due to which accused Harish fired on his chest at exhortation of accused Sandeep. These testimonies show that IO/PW-12 has rightly deposed in cross-examination that gun fire took place in front of house of PW-3/Ajay as gun fire occurred in the varanda/courtyard of the said house which formed an integral part of that house. It is already established from the testimonies of PW-2, PW-3 and PW-5, PW-12 that the main gate (installed on the boundary wall of courtyard/varanda) of the house was locked at the time of the incident. This implies that the accused persons armed with gun/pistol had entered the house by crossing over the said boundary of that house. So, the State V/s Harish Dagar & Anr. Page 29 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act factum of committing criminal trespass after making preparation of causing hurt is duly established.
38. Perusal of testimonies of PW-2 and PW-3 reveals that they affirmed that they along with their son/victim PW-5 were present in their house at the time of incident. They all affirmed that the incident happened at around the same date, month and time ie 16.06.2011 between 11.30 pm to 12.00 midnight which is almost the same as per the prosecution version. PW-2 testified that she went to open the door and her husband/PW-3 was also with her. PW-2 and PW-3 further affirmed that PW-2 opened the door. PW-3 deposed that he also went outside. PW-3 further explained the details of manner of happening of the incident. Similarly, PW-5/victim stated that the door was opened by his mother and he also went out. PW-13 affirmed that light was switched on at the house of injured which establishes that there was no chance of wrong identification of the accused persons by the PW-2, PW- 3 and PW-5. All these testimonies established that PW-2, PW-3 and PW-5 were present at the place of incident and had ample opportunity as well as occasion to witness the incident by their eyes and ears. These testimonies of PW-2, PW-3 and PW-5 can by no stretch of imagination be considered to be contradictory to each other qua happening of incident and their presence at the place of incident as they have fortified the version of each other State V/s Harish Dagar & Anr. Page 30 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act by affirming their presence at the spot and explaining the manner as to how and what they observed at the time of gun fire made by the accused Harish on the exhortation of accused Sandeep @ Roddi. Moreover, expecting the witnesses to depose verbatim in parrot like manner would create doubt on their versions as the verbatim reproduction reflects tutoring. No body can have parrot like version in respect of each and every minute details about the incident that took place. So, the arguments advanced by the Ld. Defence counsel that the testimonies of PW-2, PW-3 and PW-5 are contradictory to each other and hence cannot be relied, are not tenable.
39 Perusal of the record reveals that DD No. 3-A dated 17.06.2011 received by PW-13 from control room at 16/17.06.2011 at about 12.05 am mentions that 'Issapur School ke pass mere ladke ko goli marr di'. In duly prove DD no. 4-A at 12.10 am received by PW-12/IO, it is mentioned that gun fire has taken place near Issa Pur school. PW-4/Constable Virender, PCR stated in his examination that on 17.06.2011 at about 12.02 am, he received a call from phone number 9810372281 to the effect that somebody has fired upon my son near cremation ground near Issapur School. PW-13 testified in his cross-examination that they came to know that incident took place near Government School, Village Issapur.
State V/s Harish Dagar & Anr. Page 31 of 75FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act
40. PW-2 stated in his cross-examination that the distance between her house and the school would be same as distance between this court room and metro station. She further stated that their house is situated outside the village and adjacent to fields. PW-3 testified that the distance between his house and that of cremation ground was about 450 ft. The distance between the Cremation Ground and Primary Govt. School was about 1700 ft. The distance between his house and Govt. Primary School was about 1100 ft.
41. PW-5 deposed in his cross examination that there were two government school near their house. It is evident from the afore said testimonies of PW-2, PW-3 and PW-5 that their house, which is the place of incident, is situated outside the village near cremation ground and schools. It is further seen from the record and the testimonies of PW-1, PW-2 and PW-5 that no specific address ie house number etc is mentioned against their names at the time of commencement of evidence except Village Issapur. Even, otherwise, generally there are no specific addresses in the villages and a particular place is identified by its surroundings. Moreover, defence neither suggested to any of the PWs nor explained at time of recording statement under section 313 cr.P.C and led any evidence to probabilize that house of the victim State V/s Harish Dagar & Anr. Page 32 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act where incident took place is located somewhere else or is having some other address. So, it is clear that there cannot be any doubt regarding the happening of the incident in the house of the victim which is located near fields, schools, cremation ground etc. in village Issapur. The aforesaid testimonies observations show that defence version of existence of grave doubt on the factum of house of the victim being the place of incident does not have any weight.
42. This is quite evident from the analysis of testimonies discussed above that the firm version of eye witnesses PW-2, PW-3 and PW-5 establishes that both the accused committed criminal tresspass by jumping the boundary wall of the victim's house after making preparation to cause hurt and accused Harish Dagar fired at PW-5 at the exhortation of accused Sandeep @ Roddi by using a deadly weapon ie pistol. Any deliberate use of deadly weapon specially a pistol against unarmed persons must be imputed to carry intention to cause death. Undoubtedly, if death would have resulted accused would have been culpable under section 302 Indian Penal Code. Consequently, the penal provision under section 307 IPC inter alia attempt to cause death is attracted against the accused upon the survival of the victim after the said act of firing from a pistol. It is also established from the cogent testimony of PW-2, PW-3 and PW-5 that both the State V/s Harish Dagar & Anr. Page 33 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act accused persons were present together at the place of incident and that they had committed house tresspass after making preparation to cause hurt to the victim. It is also proved that accused Sandeep exhorted accused Harish to fire upon the chest of the victim upon which accused Harish fired upon the chest of the victim. These consistent testimonies established that the accused persons shared common intention not only to commit house tresspass after making preparation to cause hurt to victim but also shared common intention to kill the victim by causing gun fire. In these facts, the court is of the determination that statements of PW-2, PW-3 and PW-5 are strong proof of the attempt of the accused persons to commit the murder of PW-5 pursuant to common intention shared by them.
43. It emerges, from the afore discussed fact, circumstances and consistent ocular account given by PW-2, PW-3 and PW-5, which is found credible and believable by this court, that irrespective of failure of eye witnesses to identify the pistol at the time of fire and recovery of the same at the instance of accused Harish, the allegations of sharing of common intention by the accused persons and pursuant to the said sharing of common intention, commission of criminal tresspass after making preparation to cause hurt punishable under section 452/34 IPC and attempting to kill the victim by firing at his chest which is a State V/s Harish Dagar & Anr. Page 34 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act vital part of the body punishable under section 307/34 IPC stands established against both accused persons beyond reasonable doubt.
MEDICAL EVIDENCE
44. Perusal of the testimony of PW-9 Dr. Bikas Sinha, RTRM Hospital reveals that he had examined the patient and found a penetrating wound size 4x4 cm deep to internal organ on the left side of the chest. he further deposed that he had prepared the MLC of the injured which is Ex. PW-9/A. Perusal of the said MLC reveals that the patient was diagnosed with gun shot injury on the left chest with haemothrombosis and rib fracture. It is further revealed that the nature of injury has been opined as dangerous with his signatures at point A under the opinion. In the cross-examination of PW-9, no question was put on behalf of the accused persons with respect to the contents, correctness, authenticity of the MLC which amounts to admission of the same on behalf of the accused persons. Even, the nature of injury opined as dangerous under which signatures of PW-9 are present was not disputed on behalf of the accused persons. Another medical witness PW-17 Dr. Maninder Kaur Chhabra had given voluntary explanation in her cross examination that the opinion on injury being dangerous in nature was given by Dr. Bikash State V/s Harish Dagar & Anr. Page 35 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Sinha, RTRM hospital on the basis of discharge summary of DDU Hospital. This unrebutted explanation further fortifies that the opinion regarding the injury being dangerous, was given by PW-9. These firm testimonies of PW-9 and PW-17 and aforesaid omissions of defence, establish that injury on the chest of victim was caused by gunshot and was dangerous in nature.
45. Record shows that PW-17 Dr. Manander Kaur Chhabra, Specialist, Surgery, DDU Hospital, specifically testified in her examination in chief that patient was admitted in surgery department and was operated on the same day. She further deposed that his injuries were dangerous and caused by gun shot. This part of the testimony of PW-17 has gone unrebutted as even a suggestion to negate the same was put to him, thereby amounting to admission of said versions on behalf of the accused.
46. These two medical witnesses proved the medical report of PW-5/victim as Ex. PW-9/A and Ex. PW-17/A. A perusal of the said medical reports reveals that there was a gun shot entry wound over the left side of the chest which caused rib fracture. This injury is commensurate with the description of the bullet fired by Harish Dagar upon chest of victim/PW-5 at the exhortation of accused Sandeep. So, the medical evidence bears State V/s Harish Dagar & Anr. Page 36 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act out the version of firing by accused Harish Dagar.
47. Moreover, the injuries upon PW-5 are in consonance with the statement of police officials and eye witnesses as well as the report of the biologial examiner who had deposed that human blood was found present on the clothes of victim PW-5, eye witness PW-2 (who had taken victim to hospital) and accused Sandeep.
48. The evidence led by the State must be read in a holistic manner. Read together, the statements of the victim PW-5, PW-2 and PW-3 eye witnesses, PW-9 and PW-17 lead only to the conclusion that the injuries recorded in the medical report were caused by a fire arm. Besides, the offence in contemplation being section 307 IPC, the description of the incident coupled with the deposition of the doctors leads to the inescapable conclusion that accused Harish Dagar and Sandeep @ Roddi acted to harm the victim in a manner that would have constituted murder if the victim had died from the assault.
49. It thus follows that the prosecution has succeeded in establishing the charge under section 452/34 and 307/34 IPC against accused Harish Dagar and Sandeep @ Roddi from the credible deposition of eye witnesses PW-2, PW-3 and PW-5.
State V/s Harish Dagar & Anr. Page 37 of 75FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act ARREST AND RECOVERY EVIDENCE
50. In the examination in chief, PW-3 did not support the prosecution about the factum of getting the accused Sandeep arrested at his instance, the factum of his accompanying the police officials at the time of arrest of accused Harish and recovery of pistol with two live cartridges at the instance of accused Harish. So, he was cross examined by the Ld. Addl. PP for the State wherein PW-3 admitted that he had gone along with police officials in the search of the accused on 17.06.2011 and when they reached Surhera Mor Bus Stand, he saw accused Sandeep and pointed out him to the police officials and accused Sandeep was apprehended at his instance and that accused Sandeep was arrested in his presence. He further deposed that he had signed the arrest memo Ex. PW-3/A of accused Sandeep. He admitted that on 20.06.2011, he remained in the investigation of this case and his statement was recorded on that day. He admitted that they came to know that accused Harish could be found near the tube well in the fields of village Dhansa. He further admitted that he along with police officials reached the fields of accused Harish near the tube well where accused Harish was present and was apprehended by the police officials. He further admitted that accused Harish was arrested by the police officials in his State V/s Harish Dagar & Anr. Page 38 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act presence vide memo Ex. PW-3/B and accused Harish got recovered a pistol in his presence from inside a water tank in the fields. He further deposed that accused Harish handed over two bullets to the police. The police did not make the sketch of the pistol and the bullets in his presence. The police did not prepare any pullanda in his presence. He further deposed that accused Harish did not point out the spot of incident in his presence and that he cannot identify the pistol as it was not shown properly to him by the police officials.
51. In the cross examination conducted on behalf of accused persons, the afore stated admissions of PW-3 regarding his participation in the investigation at the time of arrest of accused persons and recovery of pistol with two bullets have gone unrebutted as even a suggestion to negate the same was not put to him. This omission along with the aforesaid firm admissions is sufficient enough to rely upon the testimony of PW-3 as mere hostility does not wipe out the credibility and reliability of the witness, whose version is found clear and cogent upon reading the testimony as whole.
52. PW-8 Ct. Sanjay who accompanied PW-13 at the spot and was also present along with PW-12/IO during further investigation deposed that in the evening at 4:00 p.m, he along State V/s Harish Dagar & Anr. Page 39 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act with the father of Govind/victim, went to Surhera Mor, Najafgarh where father of the victim pointed out towards a boy saying that he is Sandeep who had fired upon Govind, that they apprehended Sandeep and arrested him vide arrest memo Ex.PW- 3/A and that he was then brought to the police station. He correctly identified the accused Sandeep in court. In the cross examination PW-8 affirmed that no public persons had gathered at the spot when accused Sandeep was arrested. He denied that he was never associated in the investigation of the case or that he signed the documents at the police station at the instance of IO. It is clear that PW-8 remained firm in his testimony regarding the factum of arrest of accused Sandeep from Surhera Mor by denying the aforesaid suggestion. His testimony regarding going to Surhera Mor and arrest of the accused Sandeep in his presence has gone unrebutted as no specific suggestion to negate the same was put to him.
53. Constable Ajay Pal PW-10, accompanied PW-12 IO/Inspector Ram Singh and PW-13 SI Udai Singh on 20.06.2011 in search of accused Harish along with father of the injured Govind. He deposed that accused Harish was arrested vide arrest memo exhibit PW-2/B and that accused Harish also got recovered a country made revolver from the tubewell in his fields. He correctly identified the accused Harish and case State V/s Harish Dagar & Anr. Page 40 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act property ie country made revolver brought by the MHCM during his testimony. He testified in his cross-examination that no public person was with them when they reached the fields of Harish, that it took them 20 minutes to reach village Samaspur from village Issapur , that it took them hardly 10 minutes to reach the fields of the accused Harish from his house, that the distance between the house of accused Harish and his fields would be less than 1 km, that there was no crop standing in the fields of accused Harish at the time, that the way to the fields of accused Harish is kaccha, that there are tubewells in the adjoining fields also and that the height of the room around the tubewells was about 8 to 10 feet and its dimensions were 8 by 10 feet. He denied that he did not join the investigation of this case on the day along with the IO or that he was made to sign the documents in the Police Station by the IO. No specific suggestions to the effect that he never went to the village Samaspur along with other police officials was put to him during his cross examination. The aforesaid manner of disclosing the details of the time taken to reach village Samaspur and from house of Harish to his fields as well as regarding the dimensions of the tubewell room and the fact that there were no crops in the fields of accused Harish at that time, establishes the factum of his participating in the investigation at the time of arrest of accused Harish and recovery of Desi katta at the instance of the accused State V/s Harish Dagar & Anr. Page 41 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Harish.
54. Perusal of testimony of PW-12/IO reveals that he affirmed about the factum of recording the statement of PW-2 vide Ex. PW-2/A (which is also deposed by PW-2), preparation of rukka Ex. PW-12/A and sending of rukka to police station through constable Sanjay(who also deposed about the same) for registration of FIR, factum of lifting the blood, blood stain brick pieces, another brick without blood from the spot and sealing them in three pullandas as well as seizing them vide memo Ex. PW-8/A, Ex. PW-12/B, Ex. PW-12/C prepared by him, factum of seizure of clothes of PW-5 Govind at DDU Hospital through PW-3 who has also deposed about handing over of the blood stained white colour vest and yellow colour pant of PW-5 vide memo Ex. PW-3/A, factum of seizure of sealed container with seal of DDU hospital CMO, handed over to him by PW-11 vide seizure memo Ex. PW-11/A (which is also deposed by PW-11), factum of arresting accused Sandeep @ Roddi vide memo Ex. PW-3/A, in the presence of PW-13, PW-8, PW-10 and PW-5, factum of recording of his disclosure statement vide Ex. PW- 12/D, factum of pointing out of the spot by accused Sandeep vide memo Ex. PW-12/E and factum of seizure of red colour T-Shirt with blood stains and coca cola colour pant of accused Sandeep vide Ex. PW-12/F. State V/s Harish Dagar & Anr. Page 42 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act He further affirmed the factum of reaching the village of accused Harish on 20.06.2011, the factum of arresting the accused Harish on 20.06.2011 vide memo Ex. PW-3/B in the presence of PW13, PW-10 and PW-3, factum of recording his disclosure statement vide Ex. PW-12/G, factum of recovery of white colored handkerchief which contained a desi katta and two live cartridges from beneath a small water tank near tubewell, the factum of preparation of site plan of spot of recovery Ex. PW-12/H, factum of sealing and seizing the katta and two cartridge separately vide memo Ex. PW-10/A, the fact that accused Harish told him that he had thrown the empty cartridge used in the commission of offence at Rawta Mor and their reaching that place for search of the said cartridge which could not be found, factum of disclosure made by accused Harish that he had left the Maruti Zen Car which was used in the commission of offence in the parking at Dhansa Border, the fact of going to Dhansa parking and seizing the car vide memo Ex. PW-12/K and factum of seizing one T-Shirt and pant of accused Harish vide memo Ex. PW-12/L, who disclosed that he was wearing the same clothes at the time of offence. He correctly identified both the accused and entire case property ie Ex. P1 to P8. PW-12/IO Inspector Ram Singh affirmed in his cross- examination that on 20.06.2011, they left the police station at about 11.00 am, on that day they returned to the police station at State V/s Harish Dagar & Anr. Page 43 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act about 8.30-09.00 pm, that they were in police uniform, that there were tubewells at a distance from the tubewell near which accused Harish was arrested, that distance between the spot of accused Harish and the police station would be around 2 kms and that they remained at spot for around 1 ½ hours. PW-12 firmly denied that the accused Harish was picked up from his residence at the instance of complainant or that during the course of investigation he had come to know that there was some monetary transaction between Harish and mother of the injured due to which accused has been falsely implicated in the present case, that rukka was not prepared and sent by him, that desi katta has been planted upon accused Harish as nothing was recovered at his instance, that he neither recorded the statements of various persons as stated above nor sealed and seized the aforementioned articles vide the various pullandas and that clothes of injured were not handed over to him by the father of the injured. These firm denials show that defence failed to impeach his credit qua his participation in the investigation as deposed by him in examination in chief.
55. The aforesaid manner of disclosing the details of leaving the police station and going back on 20.06.2011 as well as that distance between the spot of arrest of accused Harish and the police station and the time for which they remained at spot, State V/s Harish Dagar & Anr. Page 44 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act establishes the factum of his participating in the investigation at the time of arrest of accused Harish which further substantiates the truthfullness of his version regarding recording of disclosure statement of accused Harish as well as recovery of Desi katta with two live cartridges and car at the instance of the accused Harish. No specific suggestion was given to PW-12 to the effect that the two live cartridges were not recovered or that the car was not recovered at the instance of accused Harish or that the said car does not belong to accused Harish. Further more, reading the evidence of PW-12 as a whole, the sanctity of the version of PW-12 that he went to the village Samaspur where they met accused Harish who led them to his fields and Dhansa Border where the country made pistol along with cartridges and the Blue coloured Zen Car were recovered respectively at the instance of accused Harish, stands bolstered from the admission made by him during cross-examination that he had prepared the documents at the spot.
56. Perusal of the testimony of PW-13 SI Udai Singh reveals that he corroborated the version of PW-12 Inspector Ram Singh, PW-3 Ajay, PW-8 Sanjay, PW-10 Ct. Ajay regarding the various steps taken during investigation. He further corroborated the version of PW-12 regarding his going to the village Samaspur where they met accused Harish who led them to his fields and State V/s Harish Dagar & Anr. Page 45 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Dhansa Border where the country made pistol along with cartridges and the Blue coloured Zen Car were recovered respectively at the instance of accused Harish. He duly identified the case property Ex. P1 to P8 and also correctly identified the Zen Car bearing no. DL-3CR-2880 from the digital photographs (Ex. P-7 to P-11 taken as per order of the court) as the same car which was taken into possession at instance of accused Harish. In the cross examination he affirmed that at the time of their visiting the fields in the village of accused Harish, no crops were there in the fields and they were in their uniform(same fact as stated by Pw-12/IO). He further affirmed that so many tubewells were situated on their way and that the way leading to the land of Harish was a kaccha road. He firmly denied all the suggestions relating to his non participation in the investigation. He denied the suggestions that no car was recovered on the pointing out of accused Harish or the same was planted for falsely implicating the accused Harish at the instance of mother of injured or that no desi katta or empty shells were recovered from the possession of accused Harish and same were planted at the instance of mother of injured or that he had not visited the fields of accused with the IO or that accused Harish was not arrested in his presence or that no disclosure was made by accused Harish in his presence. These firm denials along with the aforesaid manner of disclosing the details of the area visited by them like absence of crops in the State V/s Harish Dagar & Anr. Page 46 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act fields of accused Harish, presence of so many tubewells situated on their way and the way leading to the land of Harish being a kaccha road establishes the factum of his participating in the investigation at the time of arrest of accused Harish which further substantiates the truthfullness of his version regarding witnessing of recording of disclosure statement of accused Harish as well as recovery of Desi katta with two live cartridges and car at the instance of the accused Harish.
57. It is clear from the aforementioned testimonies of police witnesses that they have corroborated the version of each other in material particulars which is in tune with the depositions of eye witnesses regarding the various steps taken during the investigation as well as the recoveries of pistol with two live cartridges and car made at the instance of accused Harish. It is further evident from the aforesaid discussion that defence failed to shake the credit of the said witnesses regarding the material particulars of this case despite detailed cross-examination.
58. It follows that the firm testimonies of PW-8, PW-12/IO- Ram Singh(author of arrest memo) and PW-13/SI Udai Singh as well as the duly proved arrest memo Ex. PW-3/A of the accused Sandeep @ Roddi corroborates the version of PW-3 that the said accused was duly arrested on 17.06.2011 in the manner deposed State V/s Harish Dagar & Anr. Page 47 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act by him. Similarly, the testimonies of PW-10 Ct. Ajay, PW-12/IO- Ram Singh(author of arrest memo) and PW-13/SI Udai Singh as well as the duly proved arrest memo Ex. PW-3/B and recovery memo of the pistol with live cartridges Ex. PW-10/A corroborates the version of PW-3 that the accused Harish was duly arrested in his presence and the pistol along with the live cartridges were recovered at his instance in the manner deposed by him. Furthermore, PW-2 has firmly deposed in his examination in chief that the accused left in a car waiting outside the gate. In the cross-examination conducted on behalf of accused Sandeep, PW-2 affirmed that the vehicle in which the accused had come was of blue colour. In the cross-examination conducted on behalf of accused Harish not even a question to challenge the veracity of said testimony of PW-2 was put which amounts to admission of the said version on behalf of accused Harish. These testimonies along with the duly proved fact that the car allegedly recovered at the instance of accused Harish was also blue in colour leave no doubt in the factum of use of the said car by the accused persons in the alleged offence and recovery of the car. It can be concluded from the testimonies of PW-12 and PW-13 and afore stated observations that the factum of recovery of pistol along with live cartridges as well as car at the instance of Harish Dagar has been proved beyond reasonable doubt.
State V/s Harish Dagar & Anr. Page 48 of 75FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act
59. Furthermore, subsequent conduct of accused Harish Dagar in leading the police party to the fields in Samaspur and to Dhansa parking and in getting the pistol with live cartridges as well as car recovered from the places which were within his exclusive knowledge, is relevant fact which is admissible under section 8 of the Indian Evidence Act. Its a matter of common knowledge that in every disclosure statement recorded by the police, the accused orally states his version which is then reduced into writing and it is not the case that accused himself has given some statement in writing pursuant to which recoveries have been effected. Considering the same and the afore-discussed firm testimonies of PW-12 and PW-13 and other police witnesses, the recoveries of the pistol, two live cartridges and car made at the instance of accused Harish become relevant as it is settled law that recoveries can be effected on oral disclosure statements.
60. So, the factum of arrest of the accused Sandeep @ Roddi and Harish Dagar as well as the factum of recovery of the pistol with two live cartridges from the fields of village Dhansa at the instance of accused Harish stands established.
BALLISTIC EVIDENCE
61. Perusal of the record reveals that as per the duly proved State V/s Harish Dagar & Anr. Page 49 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Ballistics Report Ex. 16/A, the katta/pistol recovered at the instance of accused Harish was found in working condition and the bullets which were test fired by the said pistol were of the dimensions ie 8mm/.315". It is further revealed from the report that the bullet Exhibit 6 which was extracted from the chest of the victim Govind was also found to be of the same dimension ie 8mm/.315". This fact indicates that the factum of firing of bullet from the chest of Govind from the pistol duly recovered at the instance of accused Harish cannot be ruled out. The testimony of ballistic expert PW-16 reveals that he opined that the striations on the said bullet were insufficient for comparison and opinion, so no further opinion was possible as to whether the said bullet was discharged through the country made pistol sent for examination. He nowhere stated that striations were totally absent or that the bullet was unfired. He was not cross-examined on behalf of defence regarding the fact that insufficiency of striations is a conclusive proof of the fact that bullet was not at all discharged from the country made pistol under examination. He further proved that the country made pistol was a Fire Arm, the cartridges marked Ex. A1 and Ex. A2 and bullet mark EB1 were ammunition as defined in Arms Act 1959. This witness was not cross-examined on behalf of accused despite opportunity. Here, it is important to refer to the cross-examination of PW-15 Senior Scientific Officer, Biology who admitted that no blood State V/s Harish Dagar & Anr. Page 50 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act group could be ascertained on Ex. 6 as there was no reaction on the ABO blood grouping. This Ex. 6 is the bullet which was extracted from the chest of the victim. PW-15 further firmly denied the suggestion that the blood group cannot be ascertained because Ex. 6 had no blood stain. This firm denial indicates that non ascertainment of blood group does not necessarily mean absence of blood stains. Keeping in view that Ballistics opinion is a corroborative evidence and the aforesaid observations as well as the fact that the eye witnesses PW-2, PW-3 and PW-5 are consistent in their stand that only one bullet was fired which has been duly recovered from the body of the victim which was duly sent to FSL examination, the argument of ld. Defence counsel that failure to ascertain the blood group on this bullet establishes that the same has been planted, does not have any force. In these facts and circumstances, the aforesaid observations and unrebutted testimony of PW-16 along with the factum of recovery of the pistol with two live cartridges at instance of accused within three days of the offence from a place which could have been within his exclusive knowledge, established that the bullet recovered from the body of the victim was fired from the country made pistol by accused Harish and that the country made pistol, two cartridges and the said bullets are Arms and ammunition respectively as defined in the Arms Act.
State V/s Harish Dagar & Anr. Page 51 of 75FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act
62. Record further shows that PW-14, Addl. DCP Sh. Pankaj Kumar Singh proved the factum of granting sanction under section 39 Arms Act by firmly deposing that on 26.09.2012, he was posted as Addl. DCP, SW District Dwarka, New Delhi and on that day copy of FIR, statements recorded by IO u/s 161 Cr.P.C copies of other relevant documents relied upon by the police including seizure memo and ballastic report of FSL Rohini pertaining to this case against the accused Harish Dagar (who was found in his exclusive and conscious possession of prohibited weapon ie one country made katta .315 bore along with two live cartridges of section 3 of Arms Act ), were produced before him by the IO of this case. He deposed that after going through the aforesaid documents and other relevant documents of the case file, he was satisfied that the aforesaid accused Harish Dagar was found in exclusive and conscious possession of prohibited weapon and had committed and offence u/s 307/34 IPC and 25/27 Arms Act, PS J.P. Kalan. Accordingly, requisite sanction u/s 39 Arms Act in this regard was issued to the IO of this case. In his cross-examination, he affirmed his version of granting sanction under section 39 of Arms Act after due application of mind by firmly denying the suggestion that sanction was issued in a mechanical manner without going through the documents. It is thus established that the sanction was duly granted and the same has been properly proved. It is State V/s Harish Dagar & Anr. Page 52 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act further evident from the record that it is not the case of the defence anywhere that the alleged weapon was a licensed one. It is further observed that the factum of the alleged country made pistol being a prohibited weapon as firmly deposed by PW-14 has not been disputed during the entire trial. Moreover, judicial notice of the notification of Delhi Administration can be taken by this court. Thus, it follows from the afore stated discussion that the commission of offences punishable under section 25/27 Arms Act against accused Harish Dagar have been proved beyond reasonable doubt.
63. Record shows that PW-11 Dushyant Rathee deposed that on the directions of Inspector Ram Singh, he went to DDU Hospital. There the doctor handed over to him one sealed pullanda and a sample seal. He brought them to the police station and handed over the same to Inspector Ram Singh vide seizure memo Ex. PW-11/A.
64. In the cross-examination, he affirmed that it was evening time when he reached DDU Hospital, that he remained there for about 25-30 minutes and that he returned to the police station at about 6.30 pm. He denied that he had not received any pullanda or that he had deposed falsely. This testimony of PW-11 shows that the defence failed to shake his credit regarding his going to State V/s Harish Dagar & Anr. Page 53 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act the DDU Hospital, handing over of the pullanda by doctor to him, the seizure of the same vide Ex. PW-11/A by Inspector Ram Singh and the factum of the sample remaining intact. Record further reveals that PW-12/IO stated that PW-11 Dushyant Rathee had brought the blood which was taken out from the body of the injured Govind and one sample seal which was seized by him vide Ex. PW-11/A.
65. Perusal of the document Ex. PW-11/A reveals that the same pertains to the bullet extracted from the body of the victim by the doctor. Considering this mentioning of bullet in the said report and that for proving the contents of a document, the document itself is the best evidence, the oral testimony of PW-12 that PW-11 had brought the blood taken out from the body of injured Govind, is of no consequence. So, it cannot be said that there is any contradiction regarding the factum of seizure of bullet vide memo Ex. PW-11/A. Moreover, it seems that a typographical error was committed at the time of recording evidence due to which the word blood has been typed instead of bullet whose pronunciation sound similar to blood.
66. Record further shows that during the course of evidence of PW-13 two separate pullandas bearing Ex. 7-A were produced and in one of the said pullandas, two bullet heads were found. It State V/s Harish Dagar & Anr. Page 54 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act is evident from the testimony of PW-16 Puneet (Ballistic Report) that he had test fired the weapon by using the two cartridges recovered at the instance of accused Harish from the fields and he had examined one bullet which was extracted from body of victim. So, it is safely inferred that the two bullet heads found in the parcel 7-A are the same bullet heads which were left over after test fire was done with the two cartridges. So, this presence of the two bullets leads in the pullanda Ex. 7-A is self explanatory and same cannot be treated as any sort of inconsistency capable of creating doubt upon the prosecution version.
67. Ld. Counsel for the accused argued that there are grave inconsistencies in the testimony of prosecution witnesses regarding the recovery of the pistol, live cartridge and car allegedly used by the accused persons at the time of the incident. He further argued that even the ballistic report regarding the bullet extracted by the doctors at the time of surgery is not supporting the prosecution version as the experts failed to give any opinion due to insufficient striations. Regarding the aforesaid arguments, it is pertinent to mention that the testimonies of eye witnesses PW-2, PW-3 and PW-5 are sufficient enough to establish the causing of alleged incident by the accused persons in pursuance to their common intention. It is also settled State V/s Harish Dagar & Anr. Page 55 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act proposition of law that in the circumstances like the present one, even recovery of weapon of offence is not necessary. Here, it is apt to refer to observation of Hon'ble High Court of Delhi in CRL.A. 491/2020, SALEEM KHAN Versus THE STATE (GOVT. OF GNCT, DELHI)
19. A contention was raised on behalf of the appellant with respect to non-recovery of the weapon of offence. In connection therewith, it is noted that the Supreme Court has observed in Rakesh and Another v. State of Uttar Pradesh and Another reported as (2021) 7 SCC 188 that recovery of the weapon of offence is not a sine qua non for convicting an accused. Albeit under Sections 302/34 IPC, the Court in this case also opined that it was not possible to reject the ocular evidence of eye-witnesses to the incident, who were reliable and trustworthy. Combined with the fact that the testimonies of the complainant and his brother Sahil are cogent and consistent, the contention raised on behalf of the appellant that the weapon of offence was not recovered, has no merit. The same is rejected accordingly.
68. Applying the aforesaid observations of the Hon'ble High Court and Supreme Court, to the present case as well as considering the firm and cogent and reliable ocular testimonies of the eye witnesses, the arguments advanced by Ld. Defence counsels with respect to the inconsistencies in the testimony of witnesses regarding the recovery of the pistol, live cartridge and car allegedly used by the accused persons at the time of the incident does not have any weight and is thereby declined.
69. Learned Defence Counsel argued that PW- Constable State V/s Harish Dagar & Anr. Page 56 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Mahesh who deposited the various samples with the FSL was not examined by the prosecution during the trial and this omission is fatal to the case of the prosecution as the very deposition of samples to the FSL has come under grave doubt, benefit of which should be given to the accused. In this regard, it is appropriate to refer to the the testimony of PW-18 Narender Singh who was posted as MHCM on 17.06.2011 at PS Jafarpur Kalan. This witness has duly proved the factum of deposition of seven sealed parcels on 17/6/2011 by the IO inspector Ram Singh in the malkhana vide entry number 962/ 11 Ex. PW-18/A made in the register number 19. He further proved that on 20.06.2011 three sealed parcels and one Zen car bearing registration number DL3CK2680 for handed over to him by the IO which were also deposited in the malkhana vide entry number 966/11 Ex. PW- 18/B made in the register number 19.
He further deposed that on 5/8/2011 10 sealed parcels of this case were got deposited in FSL, Rohini vide RC number 104/21/11 Ex. PW-18/C for examination and on 11.01.2012 Constable Kuldeep came to him from FSL along with seven sealed parcels, which were deposited in malkhana and the result of FSL was handed over to IO in sealed envelope and on 01.05.2012 Constable Naresh came to him from FSL along with three sealed parcels sealed with the seal of FSL, which were deposited in malkana and the sealed envelope of FSL was handed State V/s Harish Dagar & Anr. Page 57 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act over to IO.
He further proved that the case property was not tempered till its possession was with him by firmly deposing about the same in his examination in chief, which has gone unrebutted during his cross examination. However, he admitted during his cross examination that he has not mentioned the time in register number 19 regarding handing over the case property to Constable Mahesh. After this question regarding Ct. Mahesh, the defence did not ask any question to the effect that the case property was never handed over to Constable Mahesh, for depositing the same to FSL and hence the said time is not mentioned. As per record, Constable Mahesh was the person who deposited the case property with FSL for examination.
Perusal of the testimonies of PW 15 Shri Naresh Kumar, Senior Scientific Officer, reveals that he has firmly deposed in his examination in chief that on 5/8/2011, 10 sealed parcels were received in the office of FSL, Rohini in the present case, that parcels were sealed as per the sealed mentioned in the forwarding letter and that at the time of opening the parcel with the seals were compared with the specimen seal and found intact. He further stated that parcel number 6,7 and 7A were sent to ballistic division on 24.11.2011 for examination.
PW-16 Shri Punit Puri, Senior Scientific Officer, Ballistics, FSL, Rohini corroborated the sad version by affirming in his State V/s Harish Dagar & Anr. Page 58 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act examination in chief that on 24.11.2011, three sealed parcels were received through biology division of their laboratory.
Record shows that both these witnesses were not cross examined on the aspect of non deposition of the said parcels or presence of tampering in the seals at the time of their deposition which shows that there testimony regarding the factum of receiving the parcels in a properly sealed manner has gone unrebutted.
These testimonies of PW-18 and the FSL witnesses establish that there was no tempering in the parcels at the time of deposition in malkhana till dispatch to FSL and receipt at FSL as well as thereafter. So the contention raised by the ld defence Counsel that tempering of the case property due to non examination of PW-Mahesh can not be ruled out, is not tenable at all.
70. Ld. Defence counsel argued that the IO admittedly did not investigate on the point of taking place of marriage function wherein some hot argument took place between the victim and the accused persons and which formed the motive as per the prosecution version for commission of present offence. He further argued that this omission creates grave doubt on the story of the prosecution. Regarding this issue it is pertinent to mention that it is already established as discussed in the testimony of PW-
State V/s Harish Dagar & Anr. Page 59 of 75FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act 5 that accused persons and victim were present in the said marriage function at village Kajipur and quarrel had taken place between the victim and the accused persons at that marriage party which was initiated by accused persons. It is further seen from the suggestion put in cross examination of PW-5 conducted on behalf of accused Harish that the defence version is that when PW-5 met the two accused in the stairs of the Community Centre, he threatened them that he would get them implicated in a false criminal case and that he was so heavily drunk that he caused ruckucs in the marriage function and was asked to leave the marriage party and that the accused did not hurl abuses upon him in the marriage function. By putting the suggestions defence itself is admitting the factor of taking place of the said marriage function and the presence of accused persons as well as a victim therein and also the fact that an altercation took place over there in the marriage function. So, it cannot be said that it is the case of the the defence that no such marriage function was held where in the hot argument took place between the accused persons and the victim. In the circumstances, this argument of the Ld. defence counsel regarding creation of doubt upon the story of the prosecution due to non investigation of the aspect of taking place of hot argument in the said marriage is of no consequence.
71. Ld. Defence counsel for the accused persons argued that State V/s Harish Dagar & Anr. Page 60 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act the accused persons were admittedly known to PW-2 ie the mother of the victim but she did not mention the name of the accused persons at the very first instance. He submitted that this omission on the part of PW-2 creates grave doubt on the prosecution version of involvement of the accused persons in the incident which further substantiates the defence version of false implication. Regarding this issue, it is pertinent to mention that one of the defence taken by the accused persons by way of suggestion put to police witness/IO is that the mother of the victim was having some monetary dispute with accused Harish due to which she falsely implicated the accused persons in this case. It is seen from the testimony of PW-2, who is the mother of the victim, that the said defence version was never put to her during the entire cross examination. Needless to say that nothing of that sort was ever averred at the time of recording of statement of accused and no defence evidence was led in this regard. These omissions made by the defence show that there was no ground for PW-2 to falsely implicate the accused persons.
72. It is further important to note that the question regarding not mentioning the name of the accused at the very first instance by PW-2 and at the time of making call at hundred number was not put on behalf of the accused persons during her detailed cross examination so as to enable her to give an explanation of her said State V/s Harish Dagar & Anr. Page 61 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act conduct. This is a material omission on the part of the defence which estops them from raising this issue at the stage. There was every possibility that PW-2 would have clarified that she has stated the name of the accused also and and she can't tell as to why the PCR/robkar people have not recorded the same. Furthermore, considering the fact that she is the mother of the victim, who was fired upon his chest in her presence, it is highly probable to forget to disclose all the details in the beginning due to emotional outburst and fear factor. So, in view of the firm testimonies of PW-2, PW-3 and PW-5 regarding the commission of the alleged offence of attempting to kill PW-5 by shooting on his chest with a pistol as discussed above this argument of defence counsel regarding not mentioning the name of the accused at the very first instance is of no consequence. Similarly, the non disclosure of the name of the accused persons before the doctor by the victim, who was conscious and oriented as well as by PW-2 and PW-3 who were also present in the hospital, is of no consequence as one can very well imagine the mental condition of the victim whose blood was oozing out of injury caused by a gun shot in the chest as well as that of his parents accompanying him in the hospital. This question was also not put to PW-2, PW-3 orPW-5 or to doctors Pw-9 and PW-17 which being is a material estops the defence to raise this issue at this stage. Needless to say that the first priority in such circumstances State V/s Harish Dagar & Anr. Page 62 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act was to save the life of the victim / Pw-5 and expecting the victim or his parents disclosing the names of the offenders or other details of the incident does not with stand the test of reasonableness as such a conduct is not expected out of an ordinary prudent person in such circumstances.
73. Learned counsel for defence further argued that prosecution failed to prove the fact as to by whom the injured/PW-5 was admitted to the hospital and this fact creates grave doubt upon the place of incident from which the victim was taken to hospital. He further argued that as per PW-2 and PW-3, the injured was taken to hospital by them in the car of the relative Sachin, whereas as per MLC and testimony of PW-13 one constable Karan Singh, PCR had taken the injured to the hospital. He further argued that prosecution neither examined constable Karan nor Sachin which is a material omission, benefit of which should go to the accused. In this regard, it is worth mentioning that the aspect of place of incident has already been discussed in detail in earlier part of this judgement and there is no iota of doubt regarding the fact that the incident had taken place in the house of the victim. So, in view of the said finding this argument does not carry any weight and the omission is immaterial to prove the place from which the victim was taken to the hospital. Furthermore, no such suggestion was ever put to State V/s Harish Dagar & Anr. Page 63 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act PW-2 to the effect that she is deposing falsely that she has taken her son to the hospital as it was constable Karan Singh, PCR, who had actually taken her son to the hospital from some other place and not from her house as incident had taken place at some other location. This is a material omission on part of defence which precludes it to raise this issue at this stage.
74. This court finds support regarding the observations made in the previous three paragraphs from the following observations made by the Hon'ble Supreme in Mahavir Singh v. State of Haryana, (2014) 6 SCC 716:-
"16. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised."
75. Ld. Counsel for the defence argued that apart from the various discrepancies during the investigation, the most glaring omission is that the investigating agency did not join any public person at the time of investigation, at the spot of incident, at the time of arrest of accused persons, at the time of recovery of pistol, two live cartridges and car as well as at the time of making various other memos exhibited during the evidence.
76. Ld. Sub. Addl. PP for the state has countered the aforesaid arguments by stating that the said inconsistencies are minor ones State V/s Harish Dagar & Anr. Page 64 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act and not material in the present facts as they do not go to the roots of the case & hence the arguments made by Ld. Counsel for accused are not tenable. Regarding the aforesaid omissions and inconsistencies as stated by Ld. Counsel for accused, it is pertinent to mention that these omissions or inconsistencies do not impeach the credibility of PW-2, PW-3 and PW-5 (the eyewitness) in respect of the factum of the causing of the incident by the accused persons as deposed by the said witness. Perusal of the record shows that these omissions do not affect testimony of medical witnesses which established that the gun shot injury was found on the chest of the victim which was dangerous in nature. It is further pertinent to refer to the testimonies of PW-8, PW-10, PW-12 and PW-13, who all are police officials. PW-8 admitted in his cross-examination that no public person had gathered at the spot, when accused Sandeep was arrested as well as at the time when statement of Govind's mother was recorded. Similarly, PW-10 admitted that no public person was with them when they reached the fields of accused Harish. PW-12 deposed that he testified in his cross-examination that he reached the spot of incident at about 12.35 am in the night, that there was only one neighbour present in the house of Govind, where incident had occurred and that he did not record the statement of that neighbour as he had not witnesses the incident. Similarly, PW-13 admitted in his cross-examination that when he reached the spot, State V/s Harish Dagar & Anr. Page 65 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act no public person was present and that it is not necessary that each and every time public persons were present at the spot. He further admitted that IO did not record the statement of any of the shopkeeper or parking attendant situated near Dhansa border at the time of recovery of the car. It is clear from the aforesaid testimonies that the prosecution witnesses have firmly established that no public person was present at the time of conducting the various of the investigation regarding which questions were asked. So, the aforesaid arguments of defence counsel are of no consequence.
77. Furthermore, considering the fact that the incident had taken place during late night hours and that public people generally avoid participating in the investigation, non joining of public witness cannot be said to be fatal to the case of the prosecution. Moreover, the witnesses whose testimony has been referred by the Ld. Counsel for the accused for showing the inconsistencies were not the eye witnesses as they had only conducted the investigation after receiving the information of the alleged incident which implies that the inconsistencies in their version cannot affect the firm, cogent and credit worthy deposition of the eye witnesses. So, the said argument also does not carry any weight.
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78. In the presence facts, it is apt to refer to the following observations made by the Hon'ble High Court of Delhi in State Vs. Navin Ahuja (HC) in Crl. A 1435/10:
" As far as not joining public witnesses at the time of recovery of pistol is concerned, the Court recollects that there is really no such legal pre− requisite. [Ref. State, (Govt. of NCT of Delhi) v. Sunil & Anr. (2001) 1 SCC 652, which held that there is no requirement in law either under Section 27 of the Indian Evidence Act or under Section 161 CrPC to obtain signatures of independent respectable persons of the locality on the statement made by the accused.]
79. Further more, the Apex Court in the case of C. Muniappan & Ors v/s. State of Tamil Nadu, 2010, SCC 567 has held as follows:-
'There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation'.
80. So, immaterial and irrelevant lacunas in investigation State V/s Harish Dagar & Anr. Page 67 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act would not entitle an accused to benefit of doubt. A misplaced leniency would result in miscarriage of justice especially in cases like the present one.
81. In view of the aforesaid observations and case law, it is clear that the discrepancies and inconsistencies in the prosecution version as stated by defence are minor ones and not material in the present facts and circumstances as the same do not go to the roots of the case.
82. Ld. Defence counsel has argued that the site plan and various other memos do not bear the signatures of the persons at whose instance the same were prepared and this omission made by the investigating agency is sufficient to demolish the prosecution version. In this regard, it is pertinent to mention that the prosecution version has been duly proved by the eye witnesses regarding the happening of incident, place of incident, role and identity of accused persons and the police witnesses have also proved role played by them during the investigation as discussed earlier. Here, this court deems fit to refer to the observations of the Hon'ble Supreme court in para 30 of State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 as follows:
"The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the State V/s Harish Dagar & Anr. Page 68 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure memo would vitiate the evidence regarding recovery of the axes."
83. Following the aforesaid observations, it can be said that obtaining the signatures of the person at whose instance memos are prepared is not obligatory and such an omission would not vitiate the evidence. It thus follows that this argument does not have weight and same is declined.
84. The contention of the learned counsel that recovery was not pursuant to disclosure statement of the appellant is liable to be rejected. The recovery of the articles is pursuant to disclosure statement which is admissible under section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused in leading the police party to the hose of the tubewell in the fields of Samaspur and to Dhansa Border parking from where the recovery of country made pistol, two live cartridges and car was consequently made is also admissible under section 8 of the Evidence Act.
85. In this regard, it is apt to refer to the following observations State V/s Harish Dagar & Anr. Page 69 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act made by the Hon'ble Supreme Court in Ghanashyam Das v. State of Assam, (2005) 13 SCC 387 in para 5 :-
"5. Another incriminating circumstance which corroborates the case of the prosecution is that the appellant led the IO PW 12 to Kharbhanga riverside and pointed out the place where he had thrown away the khukri. According to the evidence of PW 12 the IO and PW 6, the khukri was recovered from the river with the help of a diver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW 12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW 12 and PW 6 to the effect that the accused led them to the spot and pointed out the place where the khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under Section 8 of the Evidence Act vide H.P. Admn. v. Om Prakash [(1972) 1 SCC 249 : 1972 SCC (Cri) 88] ."
86. While it is true that the police should not involve innocent persons, fabricate evidence and obtain convictions, it is equally true that cases in which substratum of the prosecution case is strong and substantiated by reliable evidence, lapses in investigation should not persuade the court to reject the prosecution case. The court with its vast experience should be quick to notice mischief if there is any. Incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous considerations should not be allowed to take the court for a ride. The courts will have to adopt a pragmatic approach. No scope must be given to absured and fanciful submissions. It is true that there can be no compromise on basic legal principles, but, unnecessary weightage should not be given to minor errors or lapses. If courts get carried away by every mistake or lapse of the State V/s Harish Dagar & Anr. Page 70 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act investigating agency, the guilty will have a field day. Considering the firm testimonies of the eye witnesses and the police witnesses which have been found reliable by this court as discussed earlier, the submissions relating to alleged discrepancies or lacunas in the investigation like minor inconsistencies in the testimonies of police witnesses regarding the steps taken by them during investigation and composition of the raiding party, absence of signatures on the site plan, non joinder of public persons at the time of arrest, disclosure, recovery of case property and lacunas at the time of deposition of receipt of FSL exhibits as well as other case property and other omissions on the part of the investigating agency are therefore, rejected.
87. In this regard, it is appropriate to refer to the observations of Hon'ble Supreme Court in State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715 in para 19:-
19..... It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. "
88. It is obligatory on the part of the accused while being examined U/s 313 CrPC to furnish some explanation with respect State V/s Harish Dagar & Anr. Page 71 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act to the incriminating circumstances associated with him and the court must take note of such explanation. In this case, both the accused persons remained mum qua the inculpatory circumstances and their defence while replying to questions put to them at the time of recording of statement of accused under section 313 Cr.P.C. They simply replied the questions by stating, 'its a matter of record, its incorrect, they have been falsely implicated, the witnesses have deposed against them as they are interested witnesses'. No specific explanation was given by them to the inculpatory circumstances put at the time of the aforesaid statement which was obligatory upon them. They were having ample opportunity to say that they were not present at the spot or were elsewhere at the time of incident, that they were arrested by calling at the police station and not in the alleged manner, they have been implicated falsey due to monetary dispute between victim's mother and accused Harish, that the allegedly recovered car does not belong to them and the country made pistol as well as cartridges and car was planted on them at the police station, that the clothes allegedly recovered by the police do not belong to them, that the blood on the clothes of the victim and his mother was put subsequent to the incident by the PW-2/victim's moter in collusion with police etc. Even no explanation was given by accused Sandeep qua the blood stains found on his clothes which were matching with victim's blood. This failure of State V/s Harish Dagar & Anr. Page 72 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act accused persons to give appropriate explanation to various inculpatory circumstances provides a link for completing the chain of events/ circumstances/steps which were missing as per the arguments of the ld. Defence counsel due to various lacuna in the investigation like non joinder of public persons, absence of signatures on site plan and other memos prepared during investigation as well as other discrepancies cites by him.
89. It may be noted here that PW-5 is injured witness and his testimony is having much evidentiary value then of an ordinary witness. Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. The evidence of an injured witness has a greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. The evidence of injured witness cannot be doubted on some embellishment in natural conduct or minor contradictions. If there be any contradiction, exaggeration and immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
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90. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that prosecution has successfully proved beyond reasonable doubt through reliable eyewitness of the incident and other police witnesses as well as expert witnesses the identity of both the accused persons as assailants, the fact that the accused persons tresspassed into the house of the complainant Sunita in furtherance of their common intention after making preparation to cause hurt to the victim Govind, the factum of sharing of common intention by both the accused persons to shoot at the complainant in a manner that would have made them liable for murder in case death of the victim was caused, the fact that in pursuance of said common intention both accused committed house tresspass after making preparation of causing hurt, that the accused Harish shot at the chest of the victim Govind on the exhortation of accused Sandeep @ Roddi by using pistol due to which victim sustained dangerous injury, the factum of happening of the alleged incident of firing/ shooting in the alleged manner and that accused Harish was found in possession of unlicensed pistol with two live cartridges which was used by accused Harish in the said incident.
91. Considering the afore-discussed testimonies, analysis, discussion and observations, this Court is of the view that arguments advanced by the Ld. Sub. Addl. PP for the State that State V/s Harish Dagar & Anr. Page 74 of 75 FIR No. 48/2011 P.S. J.P. Kalan U/s. 452/307/34 IPC & 25/27 Arms Act the prosecution has proved all the ingredients necessary for completion of the alleged offences have force whereas the arguments made on behalf of defence that the accused persons have been falsely implicated are found to be unjustified.
92. In view of the aforesaid discussion, this Court is of the view that the prosecution has been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, both accused persons Harish Dagar and Sandeep @ Roddi are hereby convicted for the charge u/s 307/34 and 452/34 IPC levelled against them and accused Harish Dagar is further convicted for the offence punishable under section 25 and 27 Arms Act levelled against him.
93. Let the convicts be heard on the point of sentence.
Announced in the open court (Viplav Dabass)
on 23rd Day of November, 2022 ASJ(FTC)/SW-DWARKA
NEW DELHI
State V/s Harish Dagar & Anr. Page 75 of 75