Delhi District Court
State vs . (1) Amit Gupta on 26 March, 2011
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 24.2.2003
Judgment reserved on : 25.03.2011
Date of pronouncement : 26.03.2011
SC No.147/2003
ID No. 02403R0145472003
FIR No. 674/02
P.S. Kalkaji
U/s. 302/34 IPC
State Vs. (1) Amit Gupta
S/o Radhey Shyam
st
R/o L1 1923/2 Sangam Vihar
(Acquitted)
J U D G M E N T
1. The question that arises in the present case is the culpability of the accused with respect to the offence of section 302 IPC read with section 34 IPC. The case of the prosecution as emerged from the record is as under:
On 27/10/2002 at about 12:55 p.m. an information was received at the Police Station Kalkaji that at Govindpuri Extension crossing, two persons on a Suzuki motor cycle had come and shot a person in front of shop no.1770/7. On this information, SI Krishan Kumar along with ASI Veer Sen and Ct. Nandu went to the spot at Ravidas Market where lot of blood was spread on the road. He found 1 an empty khol and a gun shot (sikka) The injured was stated to be taken to the hospital. He did not find any eye witness on the spot. SI Ram Pal also came there. SI Krishan went to the hospital, collected the MLC of Gopal Das whom the doctor had declared dead. He sent the dead body to AIIMS mortuary for post mortem. He made an endorsement on the DD no. 11 B and got the case registered u/s 302 IPC. He prepared site plan, called the crime team, got the spot inspected and seized the blood stained control earth, khol and pallets. As per the post mortem report, the injuries were antemortem in nature. Blood in gauze swab around the injury no. 1 and 2, a metallic (brass) bullet with tip (lead) were recovered from the body. The cause of death was opined as hemorrhagic shock due to gun shot. The injury no. 1 was found to be sufficient to cause death in ordinary course of nature. The dead body of the deceased was handed over to the relative of the deceased. On local inquiry, SI Krishan came to know that the information to the PCR was given by one Arvind. He recorded his statement. By that time, the other witness namely Harish also came. Harish Kumar in his statement interalia, stated thus:
He used to drive the car of the deceased Gopal Das who had a shop at Sadar Bazar. He used to supply material to the shopkeepers at Govind Puri. Gopal Das had come in his maruti zen to collect payment from the shopkeepers at Gonvidpuri. After dropping him in front of gali no. 8, Govindpuri Extension, he took the car to Baba banquet 2 hall at the shop of Sharmaji to collect payment. At about 12:45 p.m. when he came, he saw a person aged 2526 years got fallen Gopal Das on the ground. He fired on his neck with a country made revolver. That person then escaped by sitting on a motor cycle which was standing nearby. The motor cycle driver was of the age 2526 years. He could not note down the number of the motor cycle since the number was covered with a helmet hanging behind the motor cycle. He took Gopal Dass to Batra Hospital and got him admitted where he expired. He informed this incident to his relative.
On 12/12/2002 accused Om Prakash @ Bunty was arrested in the case FIR no. 633/02 under Arms Act at Police Station Sangam Vihar where he disclosed of his involvement in the present case and that of Amit Gupta. He disclosed that Amit Gupta was driving the motor cycle. They had gone there to rob someone. When they were standing at the Ravidas marg, they saw a person holding a thaila. They tried to snatch the thaila from that person but when he resisted, he fired on him with the revolver and ran away on the motor cycle. He got recovered a motor cycle from Jaitpur on 18/12/2002. He was subjected to judicial TIP but he refused to participate.
On 14/1/2003, the exhibits were sent to the CFSL. On 30/1/2003, accused Amit Gupta was arrested from AIIMS hospital who 3 on interrogation also disclosed of his involvement in the present case. SI Krishan Kumar took both the witnesses namely Harish Kumar and Arvind Pachori to the hospital where they identified the accused Amit Gupta being the person involved in the incident. They also identified the accused Om Prakash @ Bunty in the police station Kalkaji. On 18/12/2002 the bullet and katta were sent to the Ballistic expert for opinion.
2. After the investigation, the charge sheet was filed against both the accused. Ld. Metropolitan Magistrate took the cognizance of the offence and issued production warrant of the accused Amit Gupta. Since he was hospitalized, it was reported by the Superintendent Jail that accused Amit Gupta was not in position to be produced in the court. After complying with the provisions u/s 207 CrPC, this case was committed to the Court of Sessions and allocated to this court.
3. The Ld. Predecessor of this court vide order dt. 18.11.03, invoking the provision of section 317 Cr.P.C. proceeded with the trial of this case. After making out prima facie case, the charge was framed against the accused Om Prakash u/s 302/34 IPC to which he pleaded not guilty and claimed trial. The charge against the accused Amit Gupta was not framed since he was not produced from Judicial Custody due to injuries.
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4. During the trial of coaccused Om Prakash, prosecution examined 13 witnesses. Ld. Predecessor of this court on considering that PW Harish Kumar did not support the case, the eye witness Arvind Kumar was not traceable and the identity of the accused was not fixed beyond reasonable doubt acquitted the accused Om Prakash of the charges.
5. On 27/11/2003, an application was moved from the Police Station Kalkaji on which the report from the Jail Superintendent was called. Vide order dated 27/11/2010, the trial was proceeded against the accused Amit Gupta. After making out prima facie case u/s 302/34 IPC, the charge was framed against the accused to which he pleaded not guilty and claimed trial.
6. To substantiate its allegations against the accused, the prosecution examined PW1 Jugal Kishore, PW2 HC Devi Singh, PW3 SI Mohar Singh, PW4 Ct. Dharminder, PW5 Devinder Kumar, PW6 Ct. Nandu Singh, PW7 Harish Kumar, PW8 Ct. Chander Pal, PW9 HC Udaivir Singh, PW10 Dr. Pawan Sharma, PW11 SI Madan Pal, PW12 Dr. Chittranjan Behera, PW13 HC Bishan Das, PW14 Ct. Vijender Singh, PW15 SI Sanjeev Dhodi, PW16 Arvind Pachori, PW17 Sh. Harish Kumar, PW18 Ct. Surender Singh, PW19 HC Dinesh, PW20 SI Vir Sen, PW21SI Krishan Kumar and PW22 SI Girish Jain. Ld. APP also tendered the report of FSL dated 19/4/2004 prepared by Senior 5 Scientific Officer ExC1.
7. The accused was examined u/s 313 CrPC wherein he controverted the entire prosecution case and stated that he was not involved in any incident. He stated that he did not make any disclosure nor he was identified by anyone rather he was falsely implicated in this case. He did not lead any evidence in his defence.
8. I have heard the arguments advanced by Ld APP for the State and Ld. Amicus Curie Sh. Rahul Tyagi for the accused.
9. It was argued by Ld. Counsel that the coaccused Om Prakash @ Bunty has already been acquitted of the charges u/s 302/34 IPC. Since the main accused has been acquitted in the present case so the present accused cannot be held for vicarious liability u/s 34 IPC. PW16 and PW17 identified neither the accused nor the vehicle. No TIP of the accused was held. There is no direct evidence against the accused to connect him with the commission of the alleged offence. The testimony of the IO SI Krishan Kumar is meaningless regarding the identification of the accused by the eye witnesses being hearsay evidence.
10. Ld. APP on the contrary argued that the accused was driving the motor cycle at the time of alleged incident. Accused Om Prakash 6 after making fire on the deceased Gopal Das fled away on the motor cycle of the accused Amit. The accused was identified by eye witnesses. All the facts and circumstances show that the said act was actuated by the accused persons.
11. I have carefully considered the rival contentions and gone through the documents and the evidence relied upon by the prosecution.
12. In the instant case, the star witness was PW17 Harish Kumar. He was driver of deceased Gopal Dass. He has stated that on 27/10/2002 he had dropped Gopal Dass at T Point Govind Puri. When he came back, he came to know that someone on a motor cycle had shot Gopal Dass with a pistol, however, he did not see that person. He took him to Batra Hospital in his car where after ½ to ¾ hour he died. He informed the family members of Gopal Das about his death. He was declared hostile by the prosecution but he denied having made any statement to the police. He denied that at about 12:45 p.m. in front of gali no. 8 Ravi Das Marg, he had seen a boy aged 25/26 years getting fallen Gopal Dass on the ground and firing on his neck with desi katta. He also denied that the boy after hitting the deceased sat on the motor cycle of coaccused and he had seen the face of the motor cycle driver. He stated that though he was taken to the hospital by the police on 30/1/2003 but he did not identify the accused Amit nor 7 he identified the accused Om Prakash on 18/12/2002. He stated that when he reached the spot, the incident had already occurred.
13. The other eye witness PW16 Arvind Pachouri has stated that at about 1:00 p.m. he was going to Okhla Railway Station for reservation. When he reached Govind Puri in front of Puja Masala, he saw an old man lying on the road. A man aged 2627 years with a gun/country made katta in his hand shot at the old man three times however he did not notice where the bullet hit on the old man, somewhere on his neck or chest. He stated that the old man was holding something in his hand near to his chest. He stated that there was a person on a motor cycle which was in the starting condition on which a helmet was hanging. The number plate of the motor cycle was not visible. He could only notice UP on the motorcycle. The man who fired from the pistol, sat on the motorcycle and both of them fled away. He called the PCR on his mobile, narrated the whole incident and then left the spot. He stated that the boy who had fired from the pistol was wearing the helmet so he could not see him. However he had seen the face of the person who was driving the motor cycle. He stated that the police had taken him to the hospital to identify that person but he could not identify him. He was declared hostile on the point of identity. He denied that he had identified the accused in the hospital and had stated to IO that he was the same person who was driving the motor cycle on 27/10/2002. He also admitted that he did not participate in 8 judicial TIP. He stated that he is not sure whether the accused Amit Gupta is the same person who was driving the motor cycle.
14. In the instant case, these two were the witnesses of the incident. Both of them did not support the prosecution case on the identity of the accused. Further no judicial TIP of the accused was held. PW21 in his testimony has stated that he had taken both the witnesses to the hospital where they identified the accused but both these witnesses in their testimony denied this fact. Accused Amit Gupta was not arrested from the spot nor there was recovery of any incriminating material from him or at his instance. He was arrested in some other case. On the basis of disclosure statement made by the accused Om Prakash and him, he was arrested in the present case. It is also to be noted that the police had seized an empty khol and pallet from the spot as well as the pallets given by the doctor who had conducted the post mortem. Those pallets and the bullet were sent to the ballistic expert for opinion with the pistol and the cartridges seized from Om Prakash @ Bunty. The ballistic report clearly exonerated the accused. As per the report ExC1 :
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Four 8 mm/.315'' cartridges from the laboratory stock were test fired through the country made pistol .315'' bore already marked exhibit 'F1' in case FSL no. 2003/F0039, FIR no. 633/2002., PS Sangam Vihar, the test fired cartridge cases were marked as 'TCI' to 'TC4' and the recovered test fired bullets were marked in 'TB1 to TB4.' The individual characteristic of firing pin marks present on evidence fired cartridge case marked exhibit 'EC1' and on test fired cartridge cases marked 'TC1 to TC4' were examined and compared under the Comparison Microscope Model Leica DMC and were not found identical. Hence the exhibit 'EC1' has not been fired through the country made pistol .315'' bore marked exhibit 'F1' in case FSL no. 2003/F0039, FIR no. 633/2002, PS Sangam Vihar.
The individual characteristic of staritions present on evidence deformed bullets exhibits 'EB1' & 'EB2' are insufficient for comparison and opinion whether these have been fired through the country made pistol .315'' bore marked exhibit 'F1' in case FSL No. 2003/F0039, FIR no. 633/02, PS Sangam Vihar or not.
15. The rest of the witnesses examined by the prosecution are formal in nature as they did not witness the occurrence. They had come at the spot after incident had occurred. PW1 identified dead body of the deceased. PW2 had taken the photographs of the spot from different angles. PW3 SI Mohar Singh prepared the crime team report ExPW3/A. PW4 Ct. Dharmender had taken the copy of the FIR to the Senior officers. PW9 HC Udaibir had recorded DD of this incident ExPW9/A. PW12 Dr. Chittanjan Behera had conducted the post 10 mortem of the deceased and found the injuries as mentioned above vide his report ExPW12/A. Ct. Virender was present when the accused Om Prakash @ Bunty was arrested in the case FIR no. 633/02 Sangam Vihar under Arms Act. He was also present when the accused pointed out the place. SI Sanjeev Dhodi had recorded the disclosure statement of the accused. He had given the information of his arrest to SI Krishan Kumar. Ct. Surender Singh was present when the accused Om Prakash got recovered the motor cycle HR 26 F 7535.
16. It is pertinent to mention that according to PW16 Arvind, the motor cycle had the number of UP but the motor cycle allegedly recovered at the instance of accused Om Prakash had the number starting from ''HR''. Further no inquiry was made about the registered owner of the motor cycle.
17. PW19 HC Dinesh was the MHC(M). PW SI Veer Sen had accompanied the IO to the spot. PW21 in his cross examination has admitted that he did not move an application for getting the TIP of the accused Amit Gupta conducted. PW22 SI Girish Jain had arrested the accused Om Prakash and recovered the country made pistol and the cartridge in the case FIR no. 633/02.
18. In the instant case main accused Om Prakash has already been acquitted. It is not the case that the accused Amit Gupta has caused the injury on the person of the deceased.
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19. In the case of Prabhu Babaji Navle vs. State of Bombay AIR 1956 Supreme Court 51, the appellant was charged under section 302 r.w.s. 34 for having shared the common intention of four named persons and for having participated in the crime. All the four persons were acquitted. It was held that the element of sharing a common intention with them disappears, and unless it can be proved that he shared a common intention with the actual murderer or murderers, he cannot be convicted with the aid of section 34.
20. In the instant case, neither there is any direct evidence nor circumstantial evidence to connect the accused Amit Gupta with the commission of alleged offence.
21. For the reasons stated above, I am of the considered opinion that the prosecution has failed to prove its case against the accused Amit Gupta beyond reasonable doubt. I, therefore, acquit the accused of the offence punishable u/s 302/34 IPC. He is in custody. He be set at liberty forthwith if he is not required in any other case. The case property be confiscated to the state after the expiry of period of appeal/revision. File be consigned to Record Room.
Announced in open Court Sanjiv Jain
th
on this 26 day of March, 2011 Special Judge NDPS : New Delhi
Patiala House : New Delhi
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