Delhi District Court
State vs Om Prakash @ Omi on 7 November, 2025
SC No. 136/2021 State Vs. Omprakash @ Omi
IN THE COURT OF MS. NISHA SAHAY SAXENA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH DISTRICT: ROHINI COURTS: DELHI
In the matter of:-
(Sessions Case No. 136/2021)
CNR No. DLNT01-001969-2021
FIR No. 497/2019
Police Station : Swaroop Nagar
Under Section : 307 IPC & 25/27/54/59 Arms Act
State V/s Omprakash @ Omi
S/o Roshan Lal
R/o H.No. 555, Gali No. 5
Swaroop Nagar, Delhi.
.... Accused
Date of committal to 15.03.2021
this court
Date of final 27.10.2025
arguments
Date of Judgment 07.11.2025
Appearance : Sh. Girish Giri, Ld. Addl. PP for the State.
Sh. A.K. Tripathi, Ld. counsel for accused.
JUDGMENT
FACTUAL MATRIX AND CASE GENESIS
1. On 22.12.2019 at about 9.50 PM, one Rahul approached the police station Swroop Nagar and informed the Nisha Sahay Saxena Digitally signed by Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 1 of 42 Date: 2025.11.07 16:46:04 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi Duty Officer that his friend Deepak had been shot by accused Omprakash @ Omi (husband of Pooja). The said information was reduced into writing vide DD No. 21B, and was assigned to SI Vikrant, who along with HC Kamlesh Ram and Ct. Mukesh reached at the spot. Leaving HC Kamlesh at the spot, IO SI Vikrant accompanied by Ct. Mukesh shifted the injured Deepak to BJRM Hospital, where his MLC was prepared and the patient was referred to AIIMS Trauma Centre, Delhi. IO along with Ct. Mukesh reached at AIIMS Trauma Centre and recorded the statement of injured Deepak in the presence of his father Vinod Garg.
2. In his complaint / statement made to the police, injured Deepak complained that on 22.12.2019 at about 9.30 PM, on receipt of a telephonic call from Pooja @ Omwati (wife of accused Omprakash @ Omi), he reached at her house i.e. H.No. 555, G Block, Gali no. 5, Swaroop Nagar, Delhi. While Deepak and Pooja @ Omwati were talking, her husband / accused Omprakash @ Omi reached there and started abusing Deepak stating that "Saale Tu Aaj Phir Aa Gya, Tune Mera Ghar Barbaad Kar Diya Hai". When Deepak asked Omprakash @ Omi not to abuse, accused took out a country made pistol from under the mattress in his room and fired upon him at left side of his chest, and ran away from the spot. Injured Deepak called his friend Rahul and sought help. Rahul immediately Nisha Sahay Saxena Digitally signed by Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 2 of 42 Date: 2025.11.07 16:46:12 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi visited the police station Swaroop Nagar and informed the police about the incident. On the basis of statement of complainant present FIR bearing No. 497/2019 was registered under Section 307 IPC & 25/27/54/59 Arms Act.
3. During the investigation, the accused Omprakash @ Omi was apprehended and arrested by SI Vikrant, who recorded his disclosure statement. During investigation, accused got recovered the weapon of offence i.e. country made pistol from under the mattress in his house. Upon completion of the investigation, charge-sheet was filed against the accused, and after cognizance was taken by the Ld. Magistrate, the case was committed to the Sessions Court for trial.
CHARGE
4. Charge was framed against the accused Omprakash @ Omi for offences punishable under Section 307 of the Indian Penal Code, 1860 and under Section 25/27 Arms Act. The accused pleaded not guilty to charge and claimed trial.
PROSECUTION EVIDENCE
5. During trial, prosecution examined twenty two witnesses in all.
S.No Witness Description of testimony
1. PW 1 HC Alok Duty Officer.
Nisha
Kumar Sahay
Saxena
Digitally signed by
FIR No. 497/2019 : PS Swaroop Nagar Page 3 of 42 Nisha Sahay Saxena
Date: 2025.11.07
16:46:29 +0530
SC No. 136/2021 State Vs. Omprakash @ Omi
2. PW 2 Sh. Deepak Complainant / injured.
Garg
3. PW 3 Sh. Vinod Father of complainant.
Garg
4. PW 4 W/HC Sonu DD Writer.
5. PW 5 Smt. Pooja Wife of accused Om Prakash @
@ Omwati Omi.
6. PW 6 Sh. Rahul Brother of complainant /injured.
Garg
7. PW 7 Sh. Krishan Friend of complainant/injured.
Garg @ Rahul
8. PW 8 Dr. Neeraj Proved MLC of injured Deepak
Chaudhary Garg prepared at BJRM Hospital.
9. PW 9 SI Sudhir MHC(M).
Kumar
10. PW 10 Sh. Pawan Nodal Officer -Vodafone-Idea Ltd.
Singh
11. PW 11 Dr. Sanjeev Gave opinion qua nature of injuries Lalwani sustained by injured.
12. PW 12 ASI Manoj Member Mobile Crime Team / Kumar photographer.
13. PW 13 Dr. Proved medical treatment record of Pratyusha injured Deepak Garg at Trauma Priyadarshini, Centre, AIIMS.
14. PW 14 SI Jagdeep Incharge, Mobile Crime Team.
Nara
15. PW 15 Sh. Rajiv Nodal Officer, Bharti Airtel Ltd.
Vashisth
16. PW 16 HC Krishan Joined investigation with IO SI Vashisth Vikrant.
17. PW 17 HC Shiv Deposited the exhibits at FSL. Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 4 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:46:34 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi Kumar
18. PW 18 ASI Joined investigation with SI Kamlesh Ram Vikrant.
19. PW 19 HC Mukesh Joined investigation with SI Vikrant.
20. PW 20 SI Vikrant Investigating Officer.
Singh
21. PW 21 Ms. Prerna Sr. Scientific Officer (Ballistics), Lakra FSL.
22. PW 22 Dr. Monika Sr. Scientific Officer (Biology), Chakravarty FSL.
Documents relied upon by the prosecution :
S.No Nature of document Exhibit 1. Copy of FIR Ex.PW1/A 2. Endorsement on rukka Ex.PW1/B.
3. Certificate under Section 65B of the Ex.PW1/C. Indian Evidence Act
4. Statement of complainant/injured Ex. PW 2/A. Deepak Garg.
5. Seizure Memo of blood sample of Ex.PW2/B. complainant / injured.
6. Copy of complaint made by PW 3 Sh. Ex.PW3/DA.
Vinod Garg
7. Copy of DD No.21-B Ex.PW4/A
8. True copy of DD No.21-B Mark PW4/B
9. Statement of PW 5 / Smt. Pooja Mark PW5/A recorded by police under Section 161 Cr.P.C FIR No. 497/2019 : PS Swaroop Nagar Page 5 of 42 SC No. 136/2021 State Vs. Omprakash @ Omi
10. Statement of PW6 / Rahul Garg under Ex.PW6/A Section 161 Cr.P.C
11. MLC bearing No.182054 pertaining Ex.PW8/A to injured Deepak Garg
12. MLC bearing No.184605 dated Ex.PW8/B 13.02.2020 pertaining to injured Deepak Garg.
13. Relevant entries in Register No.19 Ex.PW9/A (colly)
14. Copy of RC No.21/21/20 Ex.PW9/B
15. Certified copy of CAF and CDR of Ex.PW10/A and mobile number 9643997319 (Smt. Ex.PW10/B Omwati) respectively
16. Certified copy of CAF and CDR of Ex.PW10/C and mobile number 9999502906 (Sh. Ex.PW10/D Krishan Garg) respectively.
17. Cell ID Chart of mobile number Ex.PW10/E. 9643997319 and 9999502906
18. Certificate under Section 65B of the Ex.PW10/F and Indian Evidence Act Ex.PW10/G.
19. Certified copy of CAF, CDR, Ex.PW10/H. Certificate under Section 65B of Indian Evidence Act and Cell ID Charge.
20. Opinion qua nature of injuries Ex. PW11/A. sustained by injured as opined by Dr. Sanjeev Lalwani
21. Photographs of the spot clicked by Ex.PW12/A-1 to Mobile Crime Team Ex.PW12/A-11.
22. Copies of documents with regard to Ex.PW13/A the admission, treatment and (colly) Nisha discharge of the injured/patient Sahay Saxena Digitally signed by FIR No. 497/2019 : PS Swaroop Nagar Page 6 of 42 Nisha Sahay Saxena Date: 2025.11.07 16:46:39 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi Deepak Garg
23. Detailed Inspection Report of Ex.PW14/A. Incharge Mobile Crime Team
24. Certified copy of CAF and CDR of Ex.PW15/A and mobile number 9990624390 (Sh. Ex.PW15/B Krishan Garg) respectively
25. Certified copy of CAF and CDR of Ex.PW15/C and mobile number 7646004695 (Mohd. Ex.PW15/D Dilshad) respectively.
26. Certificate under Section 65B of Ex.PW15/E. Indian Evidence Act in support of CAF and CDR of mobile number 9990624390 and 7646004695
27. Relevant site address (Cell ID chart) Ex.PW15/F.
28. Copy of Road Certificate Ex.PW17/A. No.20/21/2020
29. Copy of Road Certificate Ex.PW17/B. No.21/21/2020
30. Copies of acknowledgments Ex.PW17/C and Ex.PW17/D respectively.
31. Seizure memo of blood, blood stained Ex.PW18/A. earth and earth control
32. Arrest memo of accused Omprakash Ex.PW18/B. @ Omi
33. Personal search memo of accused Ex.PW18/C. Omprakash @ Omi.
34. Disclosure statement of accused Ex.PW18/D. Omprakash @ Omi
35. Pointing out memo of place of Ex.PW18/E. incident Nisha Sahay Saxena Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 FIR No. 497/2019 : PS Swaroop Nagar Page 7 of 42 16:46:45 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi
36. Sketch of country made pistol, empty Ex.PW18/F. shell and live round
37. Seizure memo of country made Ex.PW18/G. pistol, empty shell and live round
38. Rukka Ex.PW20/A.
39. Site Plan Ex.PW20/B
40. Treatment papers of injured Deepak Ex.PW20/C Garg (colly).
41. FSL Report submitted by Sr. Ex.PW21/A. Scientific Officer (Ballistics), FSL
42. FSL report submitted by Sr. Scientific Ex.PW22/A. Officer (Ballistics), FSL
43. One inner and one T-shirt which were Ex.P-1 (colly) worn by injured Deepak Garg at the time of incident
44. Country made pistol Ex.P2.
45. Live cartridge and empty shell Ex.PW18/P-1 (Colly).
46. Brownish cotton wool swab described Ex.P3.
as blood stained gauge piece from the place of incident
47. Cemented concrete pieces having Ex.P4.
brown stains described to be from the place of incident
48. Cemented concrete pieces described Ex.P5.
to be from the place of incident
6. During trial, accused admitted the sanction u/s 39 Arms Act granted by concerned Addl. DCP, Outer North District vide sanction dated 08.09.2021 as Ex. PX, u/s 294 CrPC. He Nisha Sahay Saxena Digitally signed by Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 8 of 42 Date: 2025.11.07 16:46:50 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi further admitted the filing of supplementary charge-sheet qua FSL result by SI Sandeep Kumar and submitted that the concerned witnesses may not be summoned.
DEFENCE CASE
7. In his statement under Section 313 CrPC, the accused Omprakash @ Omi denied all the allegations and claimed false implication by the police. In support of his defence, the accused examined himself as DW 1, his neighbour Sh. Vijay as DW 2 and Sh. Vipin @ Bhupender as DW 3.
8. I have heard arguments advanced by Sh. Girish Giri, Ld. Addl. Public Prosecutor for the State, and Sh. A.K. Tripathi, Ld. counsel for accused and have considered the rival contentions put forth by both the parties, gone through the relevant case law and have scrutinized the evidence adduced by the prosecution.
ANALYSIS & REASONING
9. The case of the prosecution is to the effect that on the fateful day i.e. 22.12.2019, on being called by Pooja @ Omwati, when Deepak Garg reached at her house and was talking with her, accused Omprakash @ Omi (husband of Pooja @ Omwati), being suspicious of their relationship, fired a gun shot on his person and caused him grievous injuries.
Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 9 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:46:54 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi OFFENCE U/S 307 IPC
10. The accused has been charged for the offence punishable u/s 307 IPC. For ready reference, Section 307 IPC is being reproduced herein below :
307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
11. Intention, knowledge and motive are the most important aspects under criminal law in determination of the consequences of various acts. Evidently, from the bare reading of Section 307 IPC, these aspects are vital in the instant case too. As such, a brief legal position concerning these words and how these should be read and interpreted is given herein below:-
Intention - "Criminal intention" simply means the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. The intention of the accused to produce a particular consequence shows his intention to do that act. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word Nisha Sahay 'intent' does not mean ultimate aim and object. Nor Saxena Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 FIR No. 497/2019 : PS Swaroop Nagar Page 10 of 42 16:46:59 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi is it used as a synonym for 'motive'. Where the Legislature makes an offence dependent on proof of intention, the court must have proof of facts sufficient to justify it in coming to the conclusion that the intention existed. No doubt one has usually to infer intention from conduct, and one matter that has to be taken into account is the probable effect of the conduct. But that is never conclusive. As a general rule, every sane man is presumed to intend the necessary or the natural and probable consequences of his acts, and this presumption of law will prevail unless from a consideration of all the evidence the court entertains a reasonable doubt whether such intention existed. This presumption, however, is not conclusive nor alone sufficient to justify a conviction and should be supplemented by other testimony. An accused must be judged to have the intention that is indicated by his proved acts. The burden of proving guilty intention lies upon the prosecution where the intent is expressly stated as part of the definition of the crime. Criminal intent as a psychological fact has to be proved even in regard to offences under the Special Acts unless it is specifically ruled out or ruled out by necessary implication.
Knowledge - Where knowledge of a fact is an essential ingredient of an offence it must be distinctly proved. There are certain offences in the Penal Code where the accused who commits those offences is punished irrespective of the fact whether he had knowledge or not. Where a particular act is forbidden the question of knowledge becomes immaterial.
Motive - Motive is not to be confused with intention. If a man knows that a certain Nisha Sahay Saxena Digitally signed by FIR No. 497/2019 : PS Swaroop Nagar Page 11 of 42 Nisha Sahay Saxena Date: 2025.11.07 16:47:05 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi consequence will follow from his act, it must be presumed in law that he intended that consequence to take place although he may have had some quite different ulterior motive for performing the act. The motive for an act is not a sufficient test to determine its criminal character. By motive is meant anything that can contribute to give birth or even to prevent, any kind of action. Motive may serve as a clue to the intention; but although the motive be pure, the act done under it may be criminal. Purity of motive does not purge an act of its criminal character. An act which is unlawful cannot, in law, be excused on the ground that it was committed from a good motive.
Motive, though not a sine qua non for bringing the offence home to the accused, is relevant and important on the question of intention.
Though the prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the accused. Thus, if there is really no motive and the crime is completely motiveless then that circumstance can be taken into consideration along with the evidence of prior insanity. But if the actual evidence as to the commission of the crime is believed, then no question of motive remains to be established. It is not the bounden duty of the prosecution to prove motive with which a certain offence has been committed. It is sufficient if the prosecution proves by clear and reliable evidence that certain persons committed the offence, whatever the motives may be which induced them to commit that offence. For, motive is a fact very often within the special knowledge of the person doing the act and thus it becomes extremely Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 12 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:47:10 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi difficult to ascertain the motive in a given case but that does not mean that the offence was not committed.
The question of motive is not material where there is direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the intention of the actor. But in cases of circumstantial evidence, absence of motive is a factor in favour of the accused.
12. In view of the legal proposition detailed above, the facts of the present case are required to be tested in order to ascertain the culpability of accused Omprakash @ Omi for the offence u/s 307 IPC, with which he is charged.
13. To substantiate its case, the prosecution examined the injured himself, his brother, his father, his friend and wife of accused. The star witnesses of the prosecution is the injured himself. His brother, his father and his friend have corroborated him on all material aspects. The injured fits the bill of a sterling witness. The injured is the star and sterling witnesses of the prosecution and stood the test of a grilling cross-examination.
14. In Rai Sandeep Vs. State (NCT of Delhi) (2012) 8 SCC 21, Hon'ble Apex Court observed as under :
"In our considered opinion, the 'sterling witness' Nisha should be of a very high quality and caliber whose Sahay Saxena Digitally signed by FIR No. 497/2019 : PS Swaroop Nagar Page 13 of 42 Nisha Sahay Saxena Date: 2025.11.07 16:47:15 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based Digitally signed by Nisha Nisha Sahay Sahay Saxena Saxena Date:
2025.11.07 FIR No. 497/2019 : PS Swaroop Nagar Page 14 of 42 16:47:22 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
15. PW 2 injured Deepak Garg deposed that on 22.12.2019, at about 9:00 pm, on receipt of a telephonic call from Pooja @ Omwati w/o accused Omprakash, who called him at her home which was situated at Gali No. 5, Swaroop Nagar, Delhi, he visited there and met her. While he was talking with Pooja, in the meantime, accused Omprakash @ Omi came there (correctly identified) and started abusing him, saying that "saale tune mera ghar barbad kar diya" to which he requested the accused not to abuse him. PW 2 further deposed that thereafter accused took out a katta (fire arm) from under the mattress on the bed and pointed the same at the left side of his chest, fired at him and fled away from the spot. He sustained gun shot injury on left side of his chest. He immediately called his friend Rahul and informed him about the incident. Rahul came at the spot within 5-7 minutes, and informed the police accordingly, pursuant whereto police came at the spot and took him to BJRM Hospital and then he was Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 15 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:47:27 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi referred to trauma centre, AIIMS, where IO met him and recorded his statement Ex. PW2/A. He correctly identified his blood stained clothes, which he was wearing at the time of incident, as Ex.P1(colly) as well as the weapon of offence i.e. countrymade pistol as Ex. P2.
16. In his cross examination by Ld. defence counsel, PW 2 deposed that on the day of incident, he had taken leave from his job for going to his native village. He further deposed that prior to the incident in question, the accused was not known to him but son of the accused was known to him, as they were friends. He got acquainted with the accused about two months prior to the incident when he had visited the house of the accused as his son used to take his bike. He became friendly with Dinesh son of the accused about 5-6 months prior to the incident. He had visited the house of the accused for the first time about two months prior to the incident but he never visited the house of the accused in the absence of Dinesh.
17. PW 2 further deposed that Pooja had sent a request to him on facebook. She also requested for his mobile number. Thereafter Pooja made a telephone call to him and on seeing the missed call, he called her back. On being put a specific question as to what was his relation with Pooja, he answered that he knew her as aunty as she is the mother of his friend. He Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 16 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:47:33 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi further deposed that he never visited the house of the accused in the absence of accused or his son. He further deposed that Pooja used to talk with him on mobile phone as a stranger and she never disclosed that she was the mother of Dinesh. He came to know about two months prior to the incident when he visited the house of the accused that Pooja was mother of Dinesh and thereafter he told her not to make phone calls to him but she continued to make phone calls which were rejected by him. He further deposed that thereafter he had blocked the phone number of Pooja but she started making telephone calls to him from the mobile phone of accused.
18. He further deposed that on the day of incident, Pooja telephonically asked him to visit her house as some quarrel had taken place between her and her husband. He denied the suggestion that he had visited the house of the accused with 2-3 persons in intoxicated state with country made pistol. He further denied the suggestion that some altercations took place between him and those 2-3 persons or that in that process, he sustained injuries. He volunteered that no such persons had gathered or no altercations took place.
19. PW 2 further denied the suggestion that on 13.12.2019 at about 8:30 pm, he had gone to meet Pooja at her Nisha house or that his father had slapped him in the house of the Sahay Saxena Digitally signed FIR No. 497/2019 : PS Swaroop Nagar Page 17 of 42 by Nisha Sahay Saxena Date: 2025.11.07 16:47:38 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi accused and warned him not to visit the house of the accused again and took him away. He deposed that his father did not stop him from visiting the house of the accused but he merely told him not to lend his bike to the son of the accused. He denied the suggestion that the accused had never fired upon him with country made pistol.
20. PW 3 Vinod Garg father of injured testified that on 22.12.2019 at about 10:30 PM, when he was present at his house, one Rahul friend of his son Deepak informed him that Deepak had received gun shot injury and he is required to be taken to hospital. Accordingly, he alongwith his son Rahul had taken his son Deepak to BJRM hospital, from where he was subsequently referred to Trauma Centre, AIIMS. He further deposed that when they were on the way from BJRM Hospital to Trauma Centre in AIIMS, his son Deepak told them that Omprakash @ Omi had caused gun shot injury to him.
21. In his cross examination by Ld. defence counsel, PW 3 deposed that after the incident, he reached the BJRM Hospital at about 11:00 PM. He knew Rahul, as he is friend of his son Deepak for the last about 7/8 years. He further deposed that statement of his son was not recorded in BJRM Hospital, but it was recorded in Trauma Centre, by the police. He further deposed that prior to one month of the incident, he came to Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 18 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:47:44 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi know that his son Deepak used to visit the house of accused and he stopped him to visit there.
22. However, PW 3 denied the suggestion that accused had met him prior to the incident and requested him that his son Deepak should not visit his house. He further deposed that after the incident, he had visited the police station and made a complaint to the police that he was having fear of his life from the accused and the copy of the said complaint was taken on record as Ex. PW3/DA.
23. PW 5 Pooja @ Omwati (wife of accused) deposed that injured Deepak Garg is friend of his son and was on visiting terms. She did not remember the date, but about two years ago, one day Deepak had come to her house alongwith two boys and they were drunk. She further deposed that a quarrel had taken place between them, which escalated to the extent that one of those boys had fired upon Deepak Garg and injured him and thereafter those boys went away from there. She further deposed that Deepak Garg called his brother, who called police at the spot and police took Deepak Garg to the hospital.
24. The request of Ld. Prosecutor to cross examine the witness was allowed and in her cross examination, PW 5 Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 19 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:47:49 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi deposed that she was not able to recollect whether the date of incident was 22.12.2019 or it was around 9:30 PM. She further deposed that her husband was sleeping inside the house as he was drunk at the time of incident. She admitted it to be correct that her husband was arrested by the police on the next day of the incident for firing upon Deepak Garg. She further admitted it to be correct that the police had recovered the weapon of offence from her house at the instance of her husband. She volunteered that her husband was beaten by the police and under the fear of police, her husband got recovered the said weapon.
25. PW 5 denied the suggestion that on 22.12.2019 at about 9 PM, she had called Deepak Garg to her house upon which he came and they were talking with each other and suddenly at about 9:30 PM, her husband came there, who became furious upon seeing Deepak Garg at his house in the night and a scuffle had taken place between Deepak Garg and her husband. She further denied the suggestion that in anger, her husband had taken out a pistol from under the mattress and fired upon Deepak Garg, which hit him on his chest and then her husband ran away. She further testified that she wanted that her husband be acquitted in the present case.
26. PW 6 Rahul Garg brother of injured Deepak Garg Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 20 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:47:54 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi testified that on 22.12.2019 between 9 to 9:30 PM, when he was present at his house, he received a call from Sh. Krishan Garg @ Rahul, who is friend of his brother, and informed him that his brother had suffered a gun shot injury, pursuant whereto he alongwith his father had gone to BJRM Hospital. He further deposed that at that time, Krishan Garg told him that Omprakash had fired upon his brother. He further deposed that his brother was referred to AIIMS Hospital and he was not in a condition to talk. He further deposed that he did not know much about the present case, but he came to know that at the relevant time someone from the family of accused Omprakash had called his brother to his house.
27. The request of Ld. Prosecutor to cross examine the witness was allowed and in his cross examination, PW 6 Rahul Garg denied the suggestion that on the way to Trauma Centre, his brother had told him that wife of accused Omprakash had called his brother to her house or that accused had seen them talking with each other, upon which accused became furious, took out a pistol from under the mattress and fired upon his brother. On being confronted with his statement Ex.PW6/A, it was found so recorded therein.
28. In his cross examination by Ld. defence counsel, PW 6 deposed that he had gone to the hospital, alongwith his Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 21 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:48:00 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi father, at around 10:40 PM on the day of incident. Police had recorded statement of his father in Trauma Centre. He further deposed that statement of his brother was not recorded in Trauma Centre because he was unconscious. He further deposed that his brother Deepak Garg is 8 th pass and he knew how to sign. Signature of his brother was not obtained by the police, but police had obtained his thumb impression.
29. PW 7 Krishan Garg @ Rahul deposed that injured Deepak Garg is his friend. On 22.12.2022, when he was present at the shop of his friend Navin, between 9 to 10 PM, he received a call from Deepak, informing him that he had received a gun shot injury. On his asking, Deepak told him that accused Omprakash had shot him. He further deposed that thereafter he alongwith one of his friend rushed to the spot, and saw Deepak in pool of blood. As he did not have any conveyance, so he rushed to PS Swaroop Nagar which was at a distance of about 200 meters and apprised the SHO about the incident. Thereafter police officials visited the spot and took Deepak to BJRM Hospital. He had never seen accused Omprakash prior to the incident. On being shown the accused, witness submitted that he has seen the accused for first time in the court on the date of his examination and he had not seen him prior to the incident.
Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 22 of 42 Digitally signed by Nisha Sahay Saxena Date:
2025.11.07 16:48:05 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi
30. In his cross examination by Ld. defence counsel, PW 7 deposed that from BJRM Hospital, Deepak was referred to another hospital, which was perhaps GB Pant Hospital and from there, he was referred to AIIMS Trauma Centre, where he was medically treated. He accompanied Deepak to the Trauma Centre and remained there the whole night. He further deposed that Deepak was unconscious in the hospital. He was informed by the police that the accused had been arrested and the weapon of offence had been recovered. He could not tell whether statement of any person was recorded by the IO in the hospital.
Witness Testimony Analysis
31. The prosecution presented a compelling case through twenty two witnesses, creating an unassailable chain of evidence. Ld. defence counsel has argued that there are material contradictions in the testimony of PW 3 Vinod Garg (father of injured) and PW 6 Rahul Garg (brother of injured) in as much as PW 3 deposed that when they were on the way from BJRM Hospital to Trauma Centre, AIIMS, his son Deepak told them that Omprakash @ Omi had caused gun shot injury to him, on the other hand PW 6 during cross examination by Ld. Prosecutor denied the suggestion that on the way to Trauma Centre, his brother had told him that wife of Nisha accused Omprakash had called his brother to her house or that Sahay Saxena Digitally signed by Nisha Sahay FIR No. 497/2019 : PS Swaroop Nagar Page 23 of 42 Saxena Date: 2025.11.07 16:48:10 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi accused had seen them talking to each other, upon which accused became furious and took out a pistol from under the mattress and fired upon his brother.
32. However, when PW 6 Rahul Garg was confronted with his previous statement given to the police, the said fact qua naming Omprakash @ Omi being the perpetrator of the crime, was so found recorded therein. Further more, the court is of the opinion that such minor contradiction are routine in any trial and does not go to the root of the matter, as PW 2 Deepak Garg injured himself in his testimony has categorically named the accused Omprakash @ Omi to be the assailant, who shot him. Despite grilling and lengthy cross examination of PW 2 Deepak Garg, he stood on firm ground and his testimony could not be shaken. From the cross examination of PW 2, it is clear that rather than contradicting the testimony of PW2 Deepak Garg that accused Omprakash @ Omi fired a gun on him, the thrust of the accused was to justify his act of firing upon him, by putting his defence / version that the complainant / injured was having friendship with Pooja @ Omwati (wife of accused) on social media as well as personally. It is to be noted that PW2 injured Deepak Garg in his cross examination, on a specific question put to him, testified that Pooja @ Omwati had sent a request to him on Facebook, where-after they were on Nisha talking terms telephonically. He further testified that Pooja @ Sahay Saxena Digitally signed by Nisha Sahay FIR No. 497/2019 : PS Swaroop Nagar Page 24 of 42 Saxena Date: 2025.11.07 16:48:15 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi Omwati was talking with him on phone as a stranger and subsequently when he came to know that Pooja @ Omwati was the mother of his friend Dinesh, he told her not to make phone calls to him but she continued to make phone calls, which were rejected. He further testified that he knew Pooja @ Omwati as aunty as she is mother of his friend.
33. After going through the said part of his cross examination, the version of the injured Deepak Garg that on the fateful day after receipt of a call from Pooja @ Omwati, when he visited her house and was talking to her, accused came there and on seeing them talking got furious and fired upon him, inspire much confidence, delineating a clear cut motive to accused that to get rid of him, he fired upon him.
34. Further more, the defence of the accused that on the fateful day, injured along with 2-3 other persons visited the house of accused in intoxicated condition and after an altercation took place among themselves, the injured sustained injuries, does not hold good as the identity of said 2-3 persons could never be established.
35. In this backdrop, if the testimony of PW 5 Pooja @ Omwati is perused, she also deposed that injured Deepak had come to his house along with two boys and they were drunk and a quarrel had taken place between them, which got Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 25 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:48:22 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi escalated to the extent that one of those boys had fired upon Deepak. However, she was also unable to identify of those two boys. In her cross examination, PW 5 testified that her husband/accused was sleeping inside the house and was arrested by the police on the next day. As such, she has established on record the presence of accused as well as injured on the spot at the relevant time.
36. Ld. defence counsel has argued that PW 5 Pooja @ Omwati has not supported the case of the prosecution, turned hostile and rather categorically deposed that it was not the accused, who fired upon the injured, and as such the case of prosecution against the accused collapses on her sole testimony.
37. There is no legal bar to convicting an accused on the testimony of a single witness. Conviction can be based on even uncorroborated testimony of a sole witness, if the Court is satisfied about its credibility and truthfulness. The quality of evidence matters and not the quantity. The wife of the accused has turned hostile, the reasons are well apparent. PW 5 Pooja alias Omwati approximately 45 years of age at the time of incident may have turned hostile due to several compelling reasons such as :
* Martial reconciliation : After the incident, the Nisha Sahay Saxena Digitally signed FIR No. 497/2019 : PS Swaroop Nagar Page 26 of 42 by Nisha Sahay Saxena Date: 2025.11.07 16:48:28 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi couple may have reconciled. The wife might choose to protect her husband to preserve the marriage and family unit, prioritizing domestic stability over justice.
* Social pressure and stigma : Admitting an extra marital relationship in open Court brings immense social shame. She may fear damage to the family reputation and impact on children's future.
* Economic dependence : Financial reliance on her husband makes her vulnerable. Conviction could mean loss of livelihood and social security for her and her family.
* Threats and coercion : She might have had pressure from her own family and relatives to retract her previous statement.
* Guilt and self preservation : She may feel responsible for triggering the violence. Denying the inappropriate relationship with someone her son's age helps to avoid such complications (psychological distress) and emotional judgment.
Hence, the withdrawal of PW5 Pooja alias Omwati from supporting the prosecution version can be well understood.
38. She has categorically stated that she wanted her husband to be acquitted. Otherwise also, she is mother of grown up children, who were friends with the injured and is a Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 27 of 42 Digitally signed by Nisha Sahay Saxena Date:
2025.11.07 16:48:34 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi woman of age. Though she has turned hostile, the Court may extract truthful portion of her testimony. Further the testimony of the injured is corroborated by the medical evidence (gunshot injury on Deepak), forensic evidence (ballistics, weapon recovery), circumstantial evidence (motive-relationship with the wife of the accused and presence of injured and accused at the house at the time of incident).
39. Since PW 2 Deepak Garg's testimony is consistent, cogent and supported by medical / forensic evidence establishing the gun-shot injury and linking it to the accused's weapon, the conviction can be made despite PW5 Smt. Pooja alias Omwati hostility. Her testimony is to be scrutinized carefully.
40. While appreciating the evidence of witness, approach must be whether the testimony of a witness read as a whole appears to have a ring of truth and consistent with the prosecution case or to find out whether it is against the general tenor of the case. In case State of Uttar Pradesh Vs. Krishana Master & Ors, AIR 2010 SC 3071, the Hon'ble Supreme Court has emphasized that"It is the duty of the court to separate falsehood from truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case".
Nisha Sahay Saxena Digitally signed FIR No. 497/2019 : PS Swaroop Nagar Page 28 of 42 by Nisha Sahay Saxena Date: 2025.11.07 16:48:40 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi
41. The testimony of PW 5 to the extent it supported the prosecution case, cannot be ignored. Evidence of even a hostile witness in all eventualities does not stand effaced altogether and same can be accepted to the extent found dependable on a careful scrutiny." In Koli Lakhman Bhai Chanabhai v. State of Gujarat (1999) 8 SCC 624, Hon'ble Supreme Court has held as under:
"It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence."
42. Immediately after the incident, the injured telephonically informed his friend Rahul that he has been shot by Omprakash @ Omi. PW 7 Sh. Krishan Garg @ Rahul immediately reached at the spot and after seeing the injured in pool of blood, immediately informed the police vide DD No. 21 B Ex. PW 4/A, specifically naming that accused Omprakash @ Omi had fired upon his friend. Neither PW 4 W/HC Sonu nor PW 7 Sh. Krishan Garg @ Rahul have been cross examined on this aspect and as such this part of their testimony remained uncontroverted.
Nisha Sahay Saxena Digitally signed FIR No. 497/2019 : PS Swaroop Nagar Page 29 of 42 by Nisha Sahay Saxena Date: 2025.11.07 16:48:44 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi Recovery of weapon of offence i.e. Country made pistol.
43. PW 5 Pooja @ Omwati wife of accused during cross examination by Ld. Prosecutor, admitted it to be correct that the police had recovered the weapon of offence from her house at the instance of accused. Though she volunteered that her husband was beaten by the police and in the fear of police, her husband got recovered the said weapon of offence, but the fact that the weapon of offence was recovered from the house of the accused at his instance gets established. The recovery of weapon of offfence i.e. country made pistol has been categorically proved by PW 18 ASI Kamlesh Ram, PW 19 HC Mukesh and PW PW 20 SI Vikrant Singh vide seizure memo Ex. PW 18/G. The sketch of the same has been proved as Ex. PW 18/F. The country made pistol so recovered at the instance of the accused has been correctly identified by injured Deepak Garg as well as the concerned police offiicials as Ex. P-2. Live cartridge and empty cartridge have also been correctly identified all the police officials concerned.
44. The said weapon of offence was sent to FSL for expert opinion and the relevant portion of FSL report dated 09.04.2021 Ex. PW 21/A, reads as under :
3. Results of Examination / opinion :
(1) The country made pistol 7.62 x 51 mm bore marked as exhibit "F1" is designed to fire standard 7.62 x Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 30 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:48:51 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi 51 mm cartridge. It is in working order in its present condition. Test fire conducted successfully.
(2) The 7.62 x 51 mm cartridge marked as exhibit 'A1' is live one and can be fired through 7.62 x 51 mm caliber firearm.
(3) The 7.62 x 51 mm cartridge case marked as exhibit 'EC1' is an empty cartridge case.
(4) The 7.62 x 51 mm cartridge marked as exhibit 'A1' and two 7.62 x 51 mm cartridges received for test fire were test fired through the country made pistol 7.62 x 51 mm bore marked as exhibit 'F1' above. The test fired cartridge cases were marked as 'TC1' to 'TC3' were examined respectively. (5) The individual characteristics of firing pin marks and breech face marks present on evidence cartridge marked as exhibit 'EC1' and on test fired cartridge case marked as 'TC1' to 'TC3' were examined and compared under comparison microscope model Leica DMC and were found identical. Hence, exhibit 'EC1' has been fired though the country made pistol 7.62 x 51 mm bore marked as exhibit 'F1' above.
(6) The exhibits marked as 'F1' / 'A1' & 'EC1' are firearm / ammunition as defined in the Arms Act, 1959.
45. From the FSL report dated 09.04.2021 Ex. PW 21/A it is clear that the bullet, which caused injury to the injured Deepak Garg was fired from the country made pistol, which was recovered from the house of accused Omprakash @ Omi at his instance.
Injuries sustained by injured.
46. Immediately after the incident, when the matter was Nisha Sahay FIR No. 497/2019 : PS Swaroop Nagar Page 31 of 42 Saxena Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:01 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi reported to the police by PW 7 Krishan Garg @ Rahul, the injured was removed to BJRM Hospital, where he was medically examined vide MLC No. 182054 Ex. PW 8/A, which reveals that on local examination of the patient, gun shot entry wound on left side of chest up to nipple and exit wound were found. The patient was referred to SR Surgery and was taken to Trauma Center, AIIMS, New Delhi. PW 13 Dr. Pratyusha Priyadarshini, Associate Professor, Trauma Centre categorically deposed that on 23.12.2019, she examined one patient Deepak Garg s/o Sh. Vinod Garg, who was referred to Trauma Center from Babu Jagjivan Ram Hospital, Jahangir Puri, Delhi, with the alleged history i.e. firearm injury to left chest with exit wound with haemopneumothorax, lung contusions and laceration and left 4th RIB DP # and 5th RIB SP# and thereafter the patient was discharged on 31.12.2019. She proved on record the copies of all the documents regarding admission, treatment and discharge of the patient Deepak Garg as Ex. PW13/A (colly) (originals seen & returned).
47. After the patient was discharged from hospital, all the requisite documents pertaining to medical treatment of patient / injured were submitted with AIIMS for obtaining the nature of injuries. PW 11 Dr. Sanjeev Lalwani provided the opinion qua nature of injuries to the effect that the injuries sustained by patient were grievous in nature (injuries to chest Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 32 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:07 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi causing danger to his life) which were caused by fire arm, and the opinion has been proved on record as Ex. PW 11/A. Defence of accused.
48. The accused in his statement u/s 313 CrPC claimed false implication and to substantiate his said version he himself entered the witness box as DW 1, wherein firstly he gave a brief description of incident dated 12.12.2019, deposing that on the said date, Deepak visited his house and a quarrel took place, subsequent whereto he called the father of Deepak, who took his son Deepak with him, and while leaving Deepak threatened him to falsely implicate in a police case. As regards incident dated 22.12.2019, his version is that at about 9.30 PM, when he was sleeping, on hearing some commotion in the street, he woke up and his wife informed him that someone had fired upon Deepak. He further deposed that his neighbours Vijay and Vipin were present there in the street. However, the said Vijay and Vipin, when entered the witness box as DW 2 and DW 3 respectively, they did not throw any light upon the incident dated 22.12.2019. They deposed only about the incident dated 13.12.2019, when the accused had a quarrel with Deepak and his father took him back.
49. From the said testimony of DW 2 and DW 3 also it stands established that accused Omprakash @ Omi and Deepak Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 33 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:13 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi were not having cordial relations and they both have motive to harm each other. The motive, no doubt, is a doubled edged sword, and in the case in hand, the motive was also present with the accused to assault the injured as he was suspicious of his wife having a relationship with injured Deepak.
50. Though, injured Deepak may also have a motive to harm the accused, but it is also to be kept in mind that it is human nature that if a person is given a life threatening injury like gun shot injury, as in the instant case, the injured would not let the real culprit and his assaulter go Scot-free. In case Abdul Sayed V. State of MP, (2010) 10 SCC 259, to explain the reliability of injured witnesses, it was held that "Where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant (s) in order to falsely implicate someone".
51. In the light of the above observation of the Hon'ble Supreme Court, I am of the opinion that the accused has only put forward whatever defence he could and however sham it may be, to escape the clutches of law, especially when the identity of the said 2-3 unknown persons, who allegedly came Nisha to the house of the accused along with injured Deepak, could Sahay Saxena Digitally signed by FIR No. 497/2019 : PS Swaroop Nagar Page 34 of 42 Nisha Sahay Saxena Date: 2025.11.07 16:49:18 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi never be established on record. Where the said 2-3 unknown persons vanished has not been explained by the accused or his wife Pooja @ Omwati examined as PW 5.
52. Further it is also to be noted that as per PW 5 Pooja @ Omwati and defence taken by accused, the said unknown 2- 3 persons shot the injured Deepak in the street but the Crime Team Report Ex. PW 14/A, proved on record by PW 14 In- charge Mobile Crime Team SI Jagdeep Nara, reveals that the injured was shot in the last room of the house on the ground floor. Ex. PW 14/A reflects that in the said room, there were two single beds laid side by side, and a quilt was there on the beds. On the floor of the room, there was blood, which had been tried to be washed. Even outside the room, on stair, a mop was lying which was drenched with blood. The photographs Ex. PW 12/A1 to A11, duly supported with certificate u/s 65 B Indian Evidence Act, proved on record by PW 12 ASI Manoj Kumar - Member Mobile Crime Team, duly corroborate the Crime Team Report Ex. PW 14/A. The said photographs clearly depict that the place of incident was inside the room and not the street.
53. Ld. Defence counsel has argued that FSL report dated 08.10.2020 Ex. PW 22/A does not support the Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 35 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:23 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi prosecution case. No doubt, as per FSL report Ex. PW 22/A, DNA profiles could not be generated from the source of exhibits '2' (cemented concrete pieces having brown stains described to be from the place of incident), '4a' (one cut / torn damp foul smelling inner) and '4b' (one cut / torn damp foul smelling jacket having brown stains), but it also reveals that DNA profiles were generated from the source of exhibits '1' (Brownish cotton wool swab described as blood stained gauze piece from the place of incident) and '6' (Brownish foul smelling gauze cloth piece described as blood sample of injured kept in a plastic container), meaning thereby that the blood found in the house of accused was actually the blood that oozed out from the person of injured, after he was shot.
54. In view of the same, the assertion made by the Ld. defence counsel that FSL report Ex. PW 22/A does not support the prosecution case is not factually correct, as the FSL expert could not give its opinion qua the remaining exhibits as DNA profile could not be generated therefrom. Though in the report Ex. PW 22/A, no reason has been ascribed as to why the DNA profile could not be generated from the remaining exhibits, but it can be due to a variety of factors related to DNA degradation, the presence of inhibitors, and technical/procedural errors.
55. The prosecution, with the help of the material Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 36 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:29 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi witnesses and the corroboratory evidence of the police officials, witnesses from FSL and the doctor concerned, is able to prove its case against the accused that it was he, who fired at injured Deepak and caused him dangerous injuries, as detailed in the prosecution case, beyond a shadow of reasonable doubt.
56. From the unrebutted testimony of PW 2 / injured Deepak Garg, it is clear that the accused, on seeing the complainant / injured Deepak in his house talking with his wife Pooja @ Omwati, already having suspicion about their relationship, got furious and shot him. There is no rebuttal to this part of his testimony. As such, there is no doubt that the accused had an intention and full knowledge of his act while firing upon the victim that his act could cause his death. Accused Omprakash @ Omi is a man of age, and presumably possesses the prudence, every man of his age is expected to have. In every prudent man intrinsic is the knowledge, that if a person is shot on his chest by a gun, it could result in his / her death. The motive of the accused while causing such injuries / gun shot is also well established as discussed above.
57. In order to prove offence under Section 307 IPC, prosecution was required to prove that the injury was caused with such intention or knowledge and under such circumstances that if it had caused death, the act of accused Nisha Sahay would have amounted to culpable homicide amounting to Saxena Digitally signed FIR No. 497/2019 : PS Swaroop Nagar Page 37 of 42 by Nisha Sahay Saxena Date: 2025.11.07 16:49:35 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi murder.
58. Motive, knowledge and intention coupled with the actual assault by the accused upon the injured on vital part of his body i.e. chest by a gun shot, make it very clear that the accused in all his fury and rage, had every intention to kill the him and made an attempt to do so. All the ingredients of the offence, in my opinion, are proved beyond shadow of reasonable doubt, against the accused, by the prosecution. Accordingly, accused Omprakash @ Omi is convicted for the offence punishable u/s 307 IPC.
SECTION 25/27 ARMS ACT
59. The accused has also been charged for the offences u/s 25/27 Arms Act. It may be noted in this regard that relevant part of section 3(1) of Arms Act states that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.
60. The first pre-condition for an offence under Section 25(1) (a) is the element of intention, consciousness or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 38 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:41 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved alone will establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or not in possession of the thing in question. If the possession includes the constructive possession of the firearm in question then even though he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession of that firearm.
61. In the case in hand, the recovery of country made pistol at the instance of the accused from his house has been established by the prosecution from the testimony of police witnesses. PW 2 has specifically deposed that it was the same pistol, which was used by the accused for firing upon him. The country made pistol, its sketch as well as seizure memo have been duly proved.
62. Further as per result of FSL Ex. 21/A, such weapon is a firmarm as defined in arms Act, and that the same was in working condition and the test fire was conducted successfully. As such, it is opined that Ex. F1 i.e. pistol, A1 i.e. live cartridge Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 39 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:46 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi and EC1 i.e. empty cartridge case, are firearm / ammunition defined as in Arms Act.
63. From a combined reading of evidence of PW2 with with testimony of police officials, it is clear that article found in possession of accused proved to be a firearm.
64. Dr. Sachin Kumar Singhal, the then Addl. DCP-1, Outer North District, Delhi granted the requisite sanction under section 39 of Arms Act proved as Ex. PX. The same has been admitted by the accused. Thus, the requirement of prosecution under section 39 Arms Act is also satisfied relating to the prosecution of offence u/s 3 of such Act.
65. Under these facts and circumstances, particularly having regard to the evidence of PW2 read with testimony of police officials and FSL result proved on record, it is held that accused was in possession of a firearm as well as ammunition in it. Further, no evidence is led by the defence at all to show that he had any license regarding such firm arm and such ammunition as mandatory under section 3 of Arms Act.
66. The next question is whether accused used such country made pistol loaded with live cartridges and therefore, committed offence u/s 27 of Arms Act. It may also be noted Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 40 of 42 Digitally signed by Nisha Sahay Saxena Date: 2025.11.07 16:49:52 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi that section 27(1) of the Arms Act mandates that whoever, inter alia, uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Further it may also be noted that section 5(1) of Arms Act states that no person shall use, manufacture, sell, transfer, convert, repair, test or prove, or expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
67. As also noted above, it is deposed by PW2 that accused aimed the firearm in question at him and fired at him. As such, there is categorical evidence of PW2 that such firearm was used by the accused in committing such crime in question. It may further be noted that it is not the case of accused nor any evidence is placed on record that such accused had a license for such use as required under section 5 of Arms Act. Accordingly, accused is held guilty of the offence under section 27 of the Arms Act.
Nisha Sahay
68. Accordingly, accused Omprakash @ Omi is hereby Saxena Digitally signed by Nisha Sahay Saxena FIR No. 497/2019 : PS Swaroop Nagar Page 41 of 42 Date: 2025.11.07 16:49:57 +0530 SC No. 136/2021 State Vs. Omprakash @ Omi convicted for the offence punishable u/s 307 IPC for attempting to murder (injured Deepak) and for the offence punishable u/s 25/27 Arms Act for possessing and using fire arm in contravention of section 3 and 5 of Arms Act.
Digitally
signed by
Nisha Nisha
Announced in the open court Saxena
Sahay Date:
Sahay
today i.e. 07th day of November, 2025. Saxena 2025.11.07 16:50:06 +0530 (NISHA SAHAY SAXENA) Principal District & Sessions Judge (North) Rohini Courts, Delhi FIR No. 497/2019 : PS Swaroop Nagar Page 42 of 42