Delhi District Court
State vs . 1. Amit S/O Jai Prakash, R/O Village ... on 12 July, 2010
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IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
SC. No. 19/08
Unique Case ID No. 02402R0471712008.
State Vs. 1. Amit S/o Jai Prakash, R/o Village Sonpala, District Rohtak,
Haryana.
2. Abdul Shahid @ Saidul S/o Shahjahan, R/o C58, DDA Flats,
Shastri Park, Delhi.
3. Anis @ Tayyab S/o Dhaula Miyan, R/o C58, DDA Flats, Shastri
Park, Delhi.
FIR No. 166/08
PS Seelampur
U/s 307/34 IPC.
Date of Institution : 17.11.08
Date of reserving the Judgement : 30.06.2010
Date of pronouncement : 09.07.2010
J U D G E M E N T : Prosecution's case emanates from the fact that on 18.04.08 at about 6pm, Tayyab and Beauty had an altercation over some matter. At that time Ali Hassan was present in the house of Beauty. Abdul Shahid @ Saidul and Amit were also present there by the side of Tayyab. At the instance of Tayyab, Saidul started misbehaving with Beauty. On seeing this, Ali Hassan objected him. A quarrel ensued between them. Saidul threatened him to kill that day. Thereafter, all the of them went away from, while Tayyab remained there at the spot. At about 8pm, Saidul, Tanvir and Amit reached at the house of Beauty and started quarrelling with her. They also started quarrelling with Ali Hassan. All of them exhorted Amit to beat him. On their exhortation, Amit took out his pistol and fired at him. He had narrow escape. Thereafter, Ali Hassan and Beauty raised alarm for help. All the four Accused persons managed their escape from the spot. People of the locality S.C. No. 19/08 Page 1/22 2 also gathered at the spot and chased the accused persons. Police also reached at spot. When Constable Pramod tried to apprehend Amit, he fired at him from his pistol. However, Constable Pramod overpowered him by wielding a danda in his hand. Public persons overpowered accused Saidul, while other accused persons, namely, Tayyab and Tanvir managed their escape good. Statement of Ali Hassan was recorded by police, which became bedrock of the case. Investigation was taken up. During the course of investigation, accused Anis @ Tayyab was arrested in the case. However, accused Tanvir could not be traced and put in column No.2. Investigation culminated into a charge sheet against the accused persons.
2. Charge for offence punishable under section 307 read with section 34 IPC was framed against all the three accused persons, besides a separate charge for offences punishable under sections 186 and 353 IPC & 27 of the Arms Act, to which charges accused persons pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Sh. Ali Hassan (PW1), Rambir Singh, Head Constable (PW2), Suresh Kumar ASI (PW3), Pramod Kumar, Constable (PW4), Mst. Beauty (PW5), Lippi (PW6), Iftekar Ahmed ASI (PW7), Rakesh Kumar, Constable (PW8), Rambir Singh, Head Constable (PW9), Shailender Kumar SI (PW10), Dr. Puneet Puri (PW11) and Amit Roy, Addl. DCP (PW12) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined u/s 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been of denial simplicitor. They claimed their false implication at the hands of investigating agency. However, in order to defend themselves, they have examined Rabia (DW1), Smt. Salma (DW2) and Yogender (DW3) in support of their case.
S.C. No. 19/08 Page 2/22
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5. PW1 Ali Hassan has unfolded facts of the case. His testimony will be discussed in detail in the latter part of the judgement.
PW2 Rambir Singh was posted at PS Seelampur, Delhi, on 18.04.08. He was on patrolling duty in the area of Shastri Park, DDA Flats, Delhi. He was present near A Block, DDA Flats, Shastri Park, Delhi. He heard gun shot round. He saw two persons running from there in different directions. He chased one person and overpowered him with the help of public persons. He apprehended accused Saidul. After about 1520 minutes, Constable Pramod reached there, along with accused Amit. They handed over pistol and accused persons to Iftiak ASI. On the direction of ASI, he took steps to search Magazine of the pistol and spent cartridge. His statement was recorded. Accused persons were interrogated in his presence.
PW3 Suresh Kumar ASI was working as duty officer on 18.04.08. He received rukka Ex.PW3/A, recorded by Shailender Kumar SI and recorded FIR Ex.PW3/B. He made his endorsement Ex.PW3/C underneath the rukka.
Pramod Kumar, Constable (PW4) unfolded facts pertaining to arrest of accused Amit.
Suresh Kumar (PW5) recorded FIR No. 166/08 and proved copy of the same as Ex.PW5/A. Mst. Beauty (PW6) unfolds that on 18.04.08, she was present at her aforesaid house. Ali Hasan was at his shop. Her daughter Lippi was at her in law's house. She heard commotion coming from outside. She came out from her flat and the boys who were raising noises ran away from there. Ali Hassan also reached there. Thereafter, she went to her flat and Ali Hassan went to his shop. Police officials came at the spot and they had taken Ali Hassan along with them. She did not know as to what happened thereafter. Police officials asked her to put thumb impression on some blank papers. She asked them as S.C. No. 19/08 Page 3/22 4 to why they were taking her thumb impression on the blank papers. Police asked her to put thumb impression first and then they would disclose the reason. She put her thumb impression on the documents. No occurrence had taken place in her presence. She did not know anything else. She did not know accused present in the dock. When this witness did not divulge true facts of the case, she was grilled by ld. Prosecutor. However, she did not utter even a single word which could show nexus of the accused persons with offences alleged.
Lippi (PW7) unfolds that she was not present in Delhi, as she was pregnant. She along with her motherinlaw went to Calcutta to give birth to her child at Calcutta. Later on, she came to know regarding the occurrence with her husband. She did not know who quarreled with her husband. She did not know anything else about the case. She too was crossexamined by ld. Prosecutor, for suppressing true facts of the case.
Iftekar Ahmed ASI (PW8) was posted at PS Seelampur. On that day, DD No. 26A and 28A were given to him for investigation. He along with Constable Rakesh Kumar went to place of occurrence, that is, DDA Flats Shastri Park. When they reached Red Light, Shastri Park, SI Shailender met them. They along with Shailender SI reached Shastri Park, DDA Flats. Many public persons were collected there. HC Ramvir and Constable Pramod were also present at the spot. HC Rambir overpowered accused Abdul Shahid @ Saidul and Constable Parmod overpowered accused Amit. One pistol recovered from accused Amit was also produced before him. On the direction of SHO, he handed over investigation to Shailender Kumar SI, who prepare sketch of pistol. Seizure memo of pistol was prepared by IO, besides arrest and personal search memos of the accused persons.
Rakesh Kumar (PW8) and Ramvir Singh, Head Constable (PW9) gave S.C. No. 19/08 Page 4/22 5 confirmation to facts unfolded by Iftekar Ahmed ASI.
Shailender Kumar SI (PW10) conducted investigation of the case. He detailed those investigative steps, which were taken by him during the course of investigation.
PW11 Dr. Puneet Puri, Sr. Scientific Officer (Ballistic), Rohini, examined exhibits of the case. On examination, he found that improvised pistol mark Ex.F1 was in working order. He proved the same to be a fire arm. He proved his report as Ex.PW11/A. Amit Roy, Addl. DCP (PW12) gave sanction u/s 39 Arms Act to prosecute accused Amit under section 25 Arms Act, after going through documents submitted before him. He proved his sanction as Ex.PW12/A.
6. I have heard Sh. Subhash Chauhan, ld. Public prosecutor, for the State, and Sh. Abdul Sattar, Advocate, for the accused and have perused the record.
7. It was submitted by ld. Counsel for accused that no reliance can be placed on the testimony of Ali Hassan, inasmuch as, he has not been fully relied upon by the prosecution and was crossexamined by the ld. Prosecutor. There is no corroboration to his testimony, inasmuch as, PW6 Beauty and PW7 Lippi have not supported the case of prosecution at all. Moreover, it is not established that pistol alleged to have been recovered from possession of the accused is the same pistol, which was used in the commission of offence. Under these circumstances, it was submitted that prosecution has not been able to bring home the guilt of the accused beyond reasonable doubt. As such all the accused persons are liable to be acquitted of the charge.
8. On the other hand, it was submitted by ld. Prosecutor that complainant Ali Hassan was examined on 17.11.08 and 22.11.08. At that time, he had fully supported the case of prosecution, and it was subsequently on 24.11.08 that he did not support the case of prosecution and as such was crossexamined S.C. No. 19/08 Page 5/22 6 by the public prosecutor. In fact, it was submitted that witness has told lie before this Court and as such proceedings are liable to be initiated against him. It was further submitted that testimony of Constable Pramod Kumar regarding obstructing in discharge of his official duties by accused Amit stands proved from his unchallenged testimony, as he was not crossexamined by the accused at all. As regards section 27 of the Arms Act, it was submitted that even if sanction was not filed initially and it was filed later on, that is not fatal and reliance was placed on 2002 (1) JCC 29, Sh. Romesh Sharma vs. State. As such it was submitted that prosecution has been able to bring home guilt of the accused beyond reasonable doubt and all the accused persons are liable to be convicted for the offences alleged against them.
9. I have given my considerable thoughts to respective contentions of the ld. Counsels for the parties and have perused the record carefully.
10. PW1 Ali Hassan is the complainant. He has unfolded that his motherin law is known as Beauty. Tayyab is his maternal uncleinlaw and is cousin brother of his motherinlaw. His house is located on right hand side of the house of her motherinlaw. About 78 months ago, her motherinlaw had altercation with Tayyab. He was present in the house of his motherinlaw at that time. Accused Amit and Shahid @ Saidul were sitting near house of his motherinlaw. At that time, his motherinlaw uttered some words addressing to Tayyab that he should not feel proud of his stooge, making a reference towards Amit and Saidul. On hearing that comment, Saidul got up. He arrogantly addressed his motherinlaw as to why she made a reference towards him in her comment. He asked him to behave properly with elders. Saidul felt offended and started grappling with him. Then he released himself and ran away. Amit also ran away from there. While running away, Saidul uttered that he returned after 10 minutes. From a distance of 1012 paces, S.C. No. 19/08 Page 6/22 7 Saidul asked him to come near him. Since he was angry, therefore he approached Saidul while running. Both of them grappled again with each other. Amit was also present with Saidul at that time. Saidul exhorted Amit to assault him. Amit took out a pistol and aimed at him. At that time, his mother inlaw ran towards him in a bit to save him. She caught hold of accused Amit in order to save the witness and at that juncture a fire went out of that pistol. At that time, the pistol was aiming towards ground. Two or three boys were present there and were shouting catchcatch. Amit started running away. Then he ran in different direction to save himself. After about 15 minutes, police brought Amit back to the place of incidence. He further deposed that when Amit fired shot at him, at that time pistol was in his hand. He had providential escape, when shot was fired at him by Amit. However, he could not say, if pistol Ex.P1 is the same or not. In fact in his statement dated 22.11.08, he stated that pistol Ex.P1 was seen by him for the first time in the police station. In his subsequent statement dated 24.11.08, he deposed that his statement was recorded by police, which is Ex.PW1/A. He had narrated entire incident in that statement. He also identified the signatures on the sketch of pistol Ex.PW1/B, seizure memo Ex.PW2/C and arrest memos of the accused persons. However, he went on stating that when he and Saidul were grappling with each other, he did not pay attention as to who else exhorted Amit. He was shown the pistol and stated that he could not say if the pistol Ex.P1 is the same or not. In fact, he went on stating that it was something different from pistol Ex.P1. Since the witness did not support the case of prosecution in all material particulars, therefore he was crossexamined by the ld. Prosecutor and in crossexamination he could not say, if sketch of pistol Ex.PW1/B and pistol Ex.P1 are having some resemblance with each other and sketch Ex.PW1/B is that of pistol Ex.P1. He denied having stated to police S.C. No. 19/08 Page 7/22 8 that one more person, namely, Tanvir, was also involved in the case or that when two police officials reached at the spot, Constable Pramod tried to apprehend accused Amit, then he pointed pistol towards Constable Pramod or that Constable Pramod hit on the shoulder of Amit with a danda and pistil fell on the ground. In crossexamination by ld. Defence counsel, he admitted that he had not seen anybody when shot was fired at him. He also admitted that Saidul and Tayyab had not exhorted Amit to fire at him. He also admitted that he had not seen pistol Ex.P1 at the spot and he had seen the same for the first time in the Court.
11. The other material witness was PW6 Beauty, motherinlaw of PW6 Ali Hassan. This witness has deposed that on 18.04.08, she was present at her aforesaid house. Ali Hassan is her soninlaw and he was at his shop. Her daughter Lippi was at her in law's house. She heard noise of commotion from outside and came out of her flat and the boys who were raising noise ran away from there. Ali Hassan also reached there. Thereafter, she went to her flat and Ali Hassan went to his shop. Thereafter, police officials came and took Ali Hassan with them. She did not as to what had happened thereafter. She was asked by the police officials to put her thumb impression on some blank papers. She did not know the accused persons. Since she did not support the case of prosecution, she was crossexamined by the ld. Prosecutor and in crossexamination she admitted that Tayyab is her cousin brother, who used to reside near her house. She admitted that police officials came at the spot and inquired from her regarding occurrence, but denied that any statement was recorded. She admitted that Gaffar was known to her, who earns his livelihood by running a shop. However, she pleaded her ignorance, if Tayyab was secret informer and used to give information to police officials regarding Gaffar. She denied that on 18.04.08 at about 8pm, Tayyab came at her flat S.C. No. 19/08 Page 8/22 9 and asked him not to give false information to police against Gaffar or that there were three other boys along with Tayyab. She also denied that Ali Hassan was present at her flat or that one of the boy along with Tayyab misbehaved with him, which was objected by Ali Hassan or the boys grappled with Ali Hassan and threatened to kill Ali Hassan. She further denied that at the instance of Tayyab, those three boys left the flat and Tayyab remained at the flat itself or that Tayyab threatened to see them. She also denied that after sometime, those boys came back, abused and grappled with Ali Hassan or that at the instance of Tayyab one of the boys, namely, Amit took out a pistol and fired the same pointing towards Ali Hassan. She also denied that due to her shrieks, he lost the aim and that bullet did not hit Ali Hassan or that she and Ali Hassan raised an alarm, on which all the accused persons started running from the spot or that Amit was overpowered by Constable Parmod and other accused, namely, Saidul was overpowered by one Head Constable. She also denied that in her presence, one pistol without magazine was recovered from accused Amit or that proceedings regarding preparation of sketch of pistol, seizure memo of the pistol took place in her presence. She admitted that documents Ex.PW1/C, Ex.PW1/J and Ex.PW1/J bear her thumb impression, but went on stating that her thumb impressions were obtained on blank papers. She also could not identify pistol Ex.P1.
12. PW7 Lippi is the daughter of PW6 Beauty and is wife of PW1 Ali Hassan. She has deposed that about eight or ten months ago, she was not present in Delhi. She was pregnant. She had gone along with her motherinlaw to Calcutta to give birth to her child. Later on, she came to know about the occurrence. She did not know about quarrel with her husband. Since this witness did not support the case of prosecution, as such she was cross examined by the ld. Prosecutor, and in crossexamination she denied that on S.C. No. 19/08 Page 9/22 10 18.04.08 she was present at her flat or was preparing food on hearing commotion, she came there and saw Tayyab along with three other boys, or that one of the boy fired towards her husband, but due to shrieks of her mother Beauty, bullet could not hit her husband. She also denied that Tayyab along with three other persons ran away from there or two boys were apprehended by police officials or from one accused one pistol was recovered. She denied having made statement Mark B to the police.
13. PW2 HC Rambir Singh was on patrolling duty on 18.04.08 and was present in the area of Shastri Park, DDA Flats. He has deposed that on hearing the gun shot sounds and seeing persons running and crying catch catch, he saw two persons running there in different directions. He chased one person and apprehended him with the help of public persons, whose name came to be known as Saidul. However, offender ran towards Yamuna Pusta, in which direction Constable Pramod was present on patrolling duty. Constable Pramod chased the offender who ran towards Yamuna Pusta. That person was having pistol in his hand. After about 1015 minutes, Constable Pramod reached there along with accused Amit. Constable Pramod was having pistol in his hand. There was no magazine in the said pistol. Someone gave telephone call to Police Control Room. ASI Iftekhar along with Constable Rakesh reached there. They handed over pistol and accused to ASI Iftekhar. Neither magazine nor spent cartridges could be traced.
14. PW4 Constable Pramod Kumar has deposed that on 18.04.08, he was present on pushta road, Murga Market, Shahdara, Delhi. At about 8pm, he heard noise of commotion. Someone informed him that a fight was going on at Shastri Park, DDA Flats, Delhi. He proceeded towards flats Shastri Park. One boy was seen, while running from the side of DDA Flats. Some persons were chasing him and raising voice that he had fired on someone and was running S.C. No. 19/08 Page 10/22 11 from the scene of crime. He chased that boy. When he reached in front of that boy, he raised his hand, having pistol. He advised him to handover that pistol, but he was not amenable to his advise. He was having a club in his hand and wielded a blow with the club on his hands. Pistol fell down from the hands of accused. He overpowered that boy. In the meanwhile public also reached there. He lifted that pistol and took that boy towards flats, Shastri Park, Delhi. HC Rambir met him near flats, Shastri Park, Delhi, along with accused Saidul. In the meanwhile, ASI Iftekhar Ahmed and Constable Rakesh reached there. He handed over accused Amit with pistol to them. Saidul was also handed over to them. SI Shailender Kumar checked that pistol. There was no magazine in that pistol. Spent cartridge was not there in the pistol. Sketch of the pistol Ex.PW1/B was prepared, which was converted into a cloth parcel, sealed with seal of SK and took the same into possession vide memo Ex.PW1/C. Accused Amit was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. Abdul Saidul was also arrested vide memo Ex.PW1/F. He identified pistol Ex.P1 to be the same which was in the hand of accused Amit, when he was overpowered by him.
15. HC Rambir was on patrolling duty on 18.04.2008. He also witnessed the apprehension of accused Saidul. He deposed that Constable Pramod overpowered accused Amit and one pistol was recovered from accused Amit. He identified pistol Ex.P1 to be the same, which was got recovered from accused Amit by Constabl Pramod.
16. PW10 SI Shailender Kumar is the investigating officer of the case. He has testified that on 18.04.08 on receipt of DD No. 26A and 28A, he along with ASI Iftekhar Ahmed, Constable Rakesh went to DDA Flats, Shastri Park, where HC Rambir and Constable Pramod met them. Constable Pramod produced accused Amit with recovered pistol, without magazine, before him, while HC S.C. No. 19/08 Page 11/22 12 Rambir produced other accused, namely, Saidul. Ali Hassan met him at the spot. He recorded his statement Ex.PW1/A and police officials were directed to search magazine and cartridge. But the same could not be traced. He prepared sketch of the pistol Ex.PW1/A, sealed the same with the seal of SK and took the pistol into possession vide memo Ex.PW1/C. He prepared rukka Ex.PW11/A and got the case registered. Accused were arrested and their personal search was conducted. Site plan Ex.PW11/B was prepared at the instance of Ali Hassan, the complainant. On 20.04.08, accused Anis @ Tayyab was arrested from DDA Flats.
17. PW11 Dr. Punit Puri, Sr. Scientific Officer, examined sealed parcel, which contained one improvised pistol of 9mm caliber, without magazine. On examination, it was found to be in working order. He proved his report Ex.PW11/A.
18. PW12 Amit Roy, Additional DCP, gave sanction to prosecute accused Amit, after going through documents. He proved sanction order dated 31.08.09 as Ex.PW12/A.
19. Charge against accused Amit, Abdul Saidul and Anis @ Tayyab is for offence punishable under section 307 IPC.
20. Aforesaid evidence led by the prosecution goes to show that material witnesses in regard to the charge are PW1 Ali Hassan, PW6 Beauty and PW7 Lippi. The incident is alleged to have taken place in the house of Beauty PW6. However, this witness has wholly not support the case of prosecution and as seen above, she was crossexamined by ld. Prosecutor. But nothing material could be elicited to favour the case of prosecution. Similar is the fate with the testimony of her daughter Lippi. In fact, she has taken a plea that she was not even present in Delhi on the date of incident and she was in Calcutta at that time. There remains solitary testimony of Ali Hassan. S.C. No. 19/08 Page 12/22
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21. As regard the legal proposition regarding solitary testimony of witness is concerned, same is by now well settled, in view of Surender Singh Rautela vs. State of Bihar, 2001 (1) SCC 266, Lallu Manjhi and another vs. State of Jharkhand, (2003) 2 SCC 401, and others that conviction of an accused can be based on the testimony of solitary witness, if his evidence is found to be fully reliable. It cannot be rejected merely because other eyewitnesses had not supported the case of prosecution. It is the quality of the evidence and not the number of witnesses examined by prosecution to establish involvement of an accused, which matters. However, when the case is based on solitary testimony of witness, it is necessary to examine that evidence critically and in order to base conviction he should be wholly reliable.
22. Further more, in order to make out offence u/s 307 IPC, it is not essential that bodily injury capable of causing death should have been actually inflicted. As held by Hon'ble Apex Court in State of M.P. Vs. Imrat and another, reported in (2008) 11 SCC 523, although nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need to be the penultimate act. It is sufficient in law, if S.C. No. 19/08 Page 13/22 14 there is present an intent coupled with some overt act in execution thereof.
23. This being legal proposition, let us turn to the case in hand. It has come in the testimony of Ali Hassan that no injury has been caused to him. It is, therefore, to be seen whether there was any intention on the part of the accused persons to cause his death. In view of the legal position enunciated above, since Ali Hassan is solitary witness to the incident, as remaining two witnesses, namely. Beauty and Lippi have not supported the case of prosecution, his testimony is required to be scrutinized with the great care. As regards the genesis of the occurrence, two versions are forthcoming. According to SI Shailender Kumar, Ali Hassan gave his statement to him, which formed the basis of registration of FIR. A perusal of statement of Ali Hassan Ex.PW1/A, recorded by investigating officer of the case, goes to show that it was stated by Ali Hassan that an altercation had taken place between Tayyab and his motherinlaw Beauty on 18.04.08, inasmuch as, Tayyab had informed police regarding one acquaintance of Beauty, namely, Gaffar. He was also present at the house of Tayyab along with his friend Abdul @ Saidul, Amit and Tanver were present, and at the instance of Tayyab, Saidul was misbehaving with his motherinlaw, which was objected by him and he told him that he should talk decently with elders. Thereupon Saidul asked him as to who is he to intervene and thereupon both started grappling. Thereafter, Saidul told him that he will finish him that day. Thereupon Saidul, Amit and Tanvir went away and Tayyab remained there. Thereafter at about 8pm, Saidul, Tanvir and Amit returned back and they started abusing him and grappling with him. Saidul, Tayyab and Tanvir exhorted him to kill Ali Hassan. Thereupon, Amit took out pistol and fired at him, but he had escaped. However, when this witness appeared in the Court, he gave a different version by stating that his motherinlaw had an altercation with Tayyab. Her mother S.C. No. 19/08 Page 14/22 15 inlaw uttered some words addressing to Tayyab that he should not be proud of his stooge, making reference towards Amit and Saidul. On hearing that comment, Saidul got up and arrogantly addressed his motherinlaw, questioning her as to why she made reference towards him in her comment. Ali Hassan asked him to behave properly with elders. On that advise, Saidul felt offended and started grappling with him. Saidul got himself released and ran away. Amit also ran away from there. After ten minutes, they returned back and again Saidul and Ali Hassan started grappling with each other. Saidul called upon Amit to assault Ali Hassan. Thereupon, Ali took out a pistol and aimed him. Motherinlaw of Ali Hassan intervened and tried to save Ali Hassan. At that time, fire went out of pistol, which was "aimed" towards ground. Two or three boys, who were present there shouted, catchcatch, and then accused persons ran away. A perusal of this testimony goes to show that there is complete difference in the opinion about the genesis of the incident, in the earlier statement Ex.PW1/A and in the testimony of the witness. Further more, there is also difference in the time gap, inasmuch as, as per initial statement Ex.PW1/A, earlier incident had taken place at 6pm and the accused persons returned back to the spot after 8pm, that is, after two hours. Furthe more, intention to kill has to be seen from overt act of the accused. As per testimony of this witness himself, when fire went out of the pistol at that time Amit aimed pistol towards the ground, and not towards Ali Hasan. However, in his subsequent statement dated 22.11.08, he deposed that accused Amit fired shot at him and he had providential escape. Yet in another statement recorded on 24.11.08, he deposed in crossexamination that he had not seen anybody when fire was shot at him. He also admitted that Saidul and Tayyab had not exhorted Amit to fire at him. Moreover, he could not identify pistol Ex.P1 and in fact went on stating that it was something different from pistol Ex.P1. More S.C. No. 19/08 Page 15/22 16 over, this witness was also not totally relied upon by the ld. Prosecutor and as such this witness was crossexamined by him. That being so, since testimony of this witness has not been totally relied upon by the prosecution itself, as such it will be highly unsafe to convict accused on the solitary testimony of this witness, who has been changing his stand time and again and as such is not wholly reliable and trustworthy. That being so, as regards offence u/s 307 IPC, accused persons are entitled to benefit of doubt and are acquitted of the offence.
24. There is another charge against accused Amit for offence u/s 186, 353 IPC and section 27 of the Arms Act. In this regard, as seen above, it has come on the record that Constable Pramod Kumar was present at Pusta Road, Murga Market, Shastri Park, Delhi. At about 8pm, he heard noise of commotion and received information that a fight was going on at Shastri Park, DDA Flats, Delhi. As such, he proceeded towards DDA Flats, Shastri Park. Accused was seen running from the side of DDA Flats, he was being chased by two persons, who were raising noise that he had fired someone and he was running from there. He chased him. Accused raised his hand, having a pistol and aimed at him. He advised the accused to handover the pistol, but he did not accede to his request. Constable was having a club in his hand. He wielded a blow with the club on his hand and pistol fell down from hands of the accused. He overpowered the accused. In the meantime, public also reached there. He lifted that pistol and took Amit towards flats, Shastri Park, Delhi. In the meantime, SI Shailender Kumar, ASI Iftekhar and Constable Rakesh also reached there. He handed over accused Amit with pistol to them. Thereafter, proceedings regarding preparation of sketch of pistol, seizure memo and recovery memos took place. He also filed a complaint u/s 195 Cr.P.C before the Court. The testimony of this witness was challenged by the ld. Counsel for S.C. No. 19/08 Page 16/22 17 the accused on the ground that there is no independent witness to the incident. Although it is correct that there is no independent, however, there is no reason to discredit testimony of Constable Pramod Kumar only on the ground that he is police official. In 2010 III AD (Delhi) 133, Aslam and others (Mohd.) Vs. State, it was held that testimony of police officials need not be rejected merely because they happened to be police officials. Similar view was taken in Tahir vs. State, 1996 (3) SCC 336, where it was held that no infirmity attaches to the testimony of police official, merely because they belong to police force. In Aner Raja Khima vs. State of Saurashtra, AIR 1956 SC 217, it was held that the presumption that a person acts honestly and legally applies as much in the favour of police officials as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient grounds thereof. It is not true that no public witness has been joined in the search of the appellants, but that by itself is not a good ground to reject the testimony of public officials, if it otherwise inspires confidence and stands unimpeached during their crossexamination. In view of the legal decisions discussed above, there is no reason to disbelieve the testimony of Constable Pramod merely because he is a police official. Moreover, his testimony goes unrebutted and unchallenged, inasmuch as, despite opportunity he was not crossexamined at all by the accused persons. Under these circumstances, his testimony goes unrebutted and unchallenged and there is no reason to disbelieve the same.
25. From unchallenged testimony of Constable Pramod, it stands proved that when accused Amit was running from the side of DDA Flats, he was chased by Constable Pramod. Accused was having pistol in his hand. He came S.C. No. 19/08 Page 17/22 18 towards Constable Pramod. Constable Pramod advised him to handover that pistol to him. But he did not accede to his request. As such Constable Pramod, who was having a club in his hand wielded a blow with that club on the hand of accused Amit. The pistol fell down from the hands of accused and he overpowered accused Amit. These facts are sufficient to establish that accused Amit voluntarily obstructed Constable Pramod in discharge of his public functions. As such offence under section 186 IPC is duly proved against accused Amit.
26. As regard offence u/s 353 IPC is concerned, in the instant case assault has been committed by accused Amit against Constable Pramod, when former raised his pistol towards the latter. The act of raising pistol by accused Amit tantamount that his act will cause Constable Pramod to apprehend that accused Amit was about to use criminal force against him. Consequently, accused Amit used assault against Constable Pramod to deter the latter from discharge of his duty. As such offence u/s 353 IPC is proved to the hilt against accused Amit.
27. As regards section 27 of the Arms Act is concerned, although it is established from testimony of Constable Pramod that accused Amit was found in possession of pistol and there is nothing to show that this pistol was licenced one. However, section 3 of the Arms Act provides that no person shall acquire, have in his possession, or carry any fire arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of the Arms Act. Section 39 of the Act provides that no prosecution shall be instituted against any person in respect of any offence u/s 3 without previous sanction of the District Magistrate. In the instant case, the requisite sanction has been granted by Additional DCP Sh. Amit Roy, who has proved sanction order Ex.PW12/A. However, this sanction was granted on 31.08.09. S.C. No. 19/08 Page 18/22
19 However, a bare perusal of this section goes to show that requisite sanction u/s 39 of the Arms Act, 1959 is a condition precedent to the institutions of the proceedings in respect of offence u/s 3 of the Arms Act. Proceedings instituted without such sanction is null and void. Sanction obtained after institution of proceedings u/s 3 of the Arms Act, 1959 cannot be validate the proceedings with retrospective effect.
28. ld. Prosecutor has relied upon Sh. Romesh Sharma (supra). I have carefully gone through this authority. With due respect, this authority does not help the prosecution, inasmuch as, in that case charge sheet was filed against the petitioner u/s 25 of the Arms Act. But that was without ballistic report and sanction u/s 39 of the Arms Act. Later on, supplementary charge sheet was filed containing ballistic report and sanction to prosecute u/s 39 of the Arms Act. Thereafter, charge was framed u/s 25 of the Arms Act. The revision was preferred against the framing of charge. It was held that filing of first charge sheet was nullity as the institution of prosecution without sanction is barred by Sec. 39 of the Arms Act. However, after supplementary charge sheet was filed, Court took cognizance of the same and on that basis charge was framed. As such, after filing a fresh charge sheet/supplementary charge sheet after obtaining sanction, no infirmity was found in the order as such revision was dismissed. In the instant case, situation is different, inasmuch as, as per record the charge sheet was submitted before the Trial Court on 30.06.08. The case was received by way of committal on 14.08.08. Thereafter, charge was framed on 29.09.08. Sanction itself was accorded much after framing of charge, inasmuch as, the same was accorded on 31.08.09 and was filed by way of supplementary charge sheet on 05.09.09. That being so, proceedings u/s 27 of the Arms Act instituted without sanction is not in accordance with law. Therefore, charge u/s 27 Arms Act cannot sustain. Since the sanction to S.C. No. 19/08 Page 19/22 20 prosecute has been given subsequently to the institution of proceedings, prosecution is at liberty to commence new proceedings under this section ab initio
29. In view of foregoing discussions, prosecution has failed to prove its case against all the accused persons for offences punishable u/s 307 IPC. As such accused persons, namely, Amit, Abdul Shahid and Anis @ Tayyab are acquitted of the offence u/s 307 read with section 34 IPC. However, accused Amit is held guilty and convicted for offences punishable under sections 186 and 353 IPC.
Announced in the Open Court (Sunita Gupta)
th
On this 9 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 19/08 Page 20/22 21 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI : SC. No. 19/08
Unique Case ID No. 02402R0471712008.
State Vs. 1. Amit S/o Jai Prakash, R/o Village Sonpala, District Rohtak, Haryana.
FIR No. 166/08 PS Seelampur U/s 307/34 IPC.
Date of Institution : 17.11.08 Date of reserving the Judgement : 12.07.2010 Date of pronouncement : 12.07.2010 ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by ld. Counsel for the convict, pleading that convict Amit remained in custody for about nine months. He is the only bread earner of the family, and as such lenient view be taken while awarding punishment to him.
2. On 18.04.08 Constable Pramod Kumar was present at Pusta Road, Murga Market, Shastri Park, Delhi. At about 8pm, he heard noise of commotion and received information that a fight was going on at Shastri Park, DDA Flats, Delhi.
As such, he proceeded towards DDA Flats, Shastri Park. Convict Amit was seen running from the side of DDA Flats, he was being chased by two persons, who were raising noise that he had fired someone and he was running from there. He chased him. Convict Amit raised his hand, having a pistol and aimed at him. He advised the accused to handover the pistol, but he did not accede to his request. Constable was having a club in his hand. He wielded a blow with the club on his hand and pistol fell down from hands of the convict. He overpowered the S.C. No. 19/08 Page 21/22 22 accused. In the meantime, public also reached there. He lifted that pistol and took Amit towards flats, Shastri Park, Delhi.
2. Record reveals that accused remained in the custody from 19.04.08 to 17.012.08, that is, approximately for a period of 8 months. Under these circumstances, for offences punishable under section 186 IPC, he is sentenced to pay a sum of Rs.500/ as fine, while for offence u/s 353 IPC he is sentenced to period already undergone by him during trial of the case. He is also directed to pay a fine of Rs.2,500/. In default of payment of fine, he would undergo RI for six months.
3. A copy of judgement and order on sentence be supplied to the convict free of cost.
Announced in the Open Court (Sunita Gupta)
th
On this 12 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 19/08 Page 22/22